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LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1941 - SECT 4

LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1941 - SECT 4

4 .         Effect of death on certain causes of action

        (1)         Subject to the provisions of this section and the Limitation Act 2005 , on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other.

        (2)         Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person —

            (a)         shall not include any exemplary damages;

            (b)         in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry;

            (c)         where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;

            (d)         shall not, unless because of subsection (2a) this paragraph does not apply, include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life;

            (e)         shall not include any damages for the loss of the capacity of that person to earn, or for the loss of future probable earnings of that person, during such time after his death as he would have survived but for the act or omission which gives rise to the cause of action.

        (2a)         Subsection (2)(d) does not apply where —

            (a)         the death of the person occurs after the day on which the Law Reform (Miscellaneous Provisions (Asbestos Diseases)) Act 2002 comes into operation 1 ;

            (b)         the death results from a latent injury that is attributable to the inhalation of asbestos which has been caused by the act or omission giving rise to the cause of action; and

            (c)         proceedings in respect to the cause of action had been instituted by that person before his or her death and were pending at the time of death.

        [(3)         deleted]

        (4)         Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

        (5)         The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Imperial Act 9th and 10th Victoria, Chapter 93 (adopted in Western Australia by the Act 12th Victoria No. 21), as amended by the Act No. 37 of 1900 2 , and so much of this Act as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

        [Section 4 amended: No. 80 of 1982 s. 2; No. 84 of 1983 s. 11; No. 1 of 2002 s. 3; No. 20 of 2005 s. 15(1)-(3); No. 8 of 2009 s. 84(3).]