{"id":"survival-of-causes-of-action-act-1940","name":"Survival of Causes of Action Act 1940","slug":"survival-of-causes-of-action-act-1940","collection":"act","jurisdiction":"sa","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":110428,"registerId":"sa-survival-of-causes-of-action-act-1940-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Survival of Causes of Action Act 1940","content":"South Australia\nSurvival of Causes of Action Act 1940\nAn Act to amend the law as to the effect of death in relation to causes of action.\n\nContents\n1\tShort title\n2\tSurvival of causes of action\n3\tDamages in actions which survive under this Act\n4\tConditions precedent to survival of cause of action\n5\tProvision for cases where person liable dies before or at time of damage\n6\tSaving of other rights\n7\tRepeals\nSchedule—Prescribed dust diseases\nLegislative history\n\nThe Parliament of South Australia enacts as follows:\n1—Short title\nThis Act may be cited as the Survival of Causes of Action Act 1940.\n2—Survival of causes of action\n\t(1)\tSubject to this Act—\n\t(a)\ta cause of action vested in a person at the time of his or her death survives for the benefit of his or her estate; and\n\t(b)\ta cause of action existing against a person at the time of his or her death survives against his or her estate.\n\t(2)\tThis section does not apply to a cause of action in defamation.\n3—Damages in actions which survive under this Act\n\t(1)\tWhere 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—\n\t(a)\tshall not include damages for—\n\t(i)\tpain or suffering;\n\t(ii)\tbodily or mental harm;\n\t(iii)\tthe curtailment of expectation of life;\n\t(iv)\tthe loss of capacity to earn, or the loss of probable future earnings, in respect of the period for which the deceased person would have survived but for the act or omission that gave rise to the cause of action;\n\t(b)\tshall not include any exemplary damages;\n\t(d)\twhere 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.\n\t(2)\tHowever, if a person commences an action for damages in respect of a dust-related condition and dies as a result of that condition before the action is finally determined, damages for pain and suffering, bodily and mental harm, and curtailment of expectation of life, and exemplary damages, are recoverable for the benefit of the estate of the person.\n\t(3)\tIn subsection (2)—\ndust-related condition means—\n\t(a)\ta disease specified in the Schedule; or\n\t(b)\tany other pathological condition of the lungs, pleura or peritoneum that is attributable to dust.\n4—Conditions precedent to survival of cause of action\nNo proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this Act has survived against the estate of a deceased person, unless either—\n\t(a)\tproceedings against him in respect of that cause of action were pending at the date of his death; or\n\t(b)\tthe cause of action arose not earlier than six months before his death and proceedings are taken in respect thereof not later than six months after his executor or administrator took out probate or letters of administration.\n5—Provision for cases where person liable dies before or at time of damage\nWhere 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.\n6—Saving of other rights\n\t(1)\tThis Act does not derogate from the rights of the dependants of a deceased person to bring an action in respect of the death of the deceased.\n\t(2)\tThe Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 applies to a cause of action that survives for or against the estate of a deceased person under this Act.\n7—Repeals\nThe following enactments shall cease to have effect as part of the law of South Australia:\n\t(a)\tthe Statute 13 Edw. 1, c. 23;\n\t(b)\tthe Statute 4 Edw. 3, c. 7;\n\t(c)\tsection 2 of The Civil Procedure Act 1833 (3 and 4 Will. 4, c. 42).\nSchedule—Prescribed dust diseases\nAluminosis\nAsbestosis\nAsbestos induced carcinoma\nAsbestos related pleural diseases\nBagassosis\nBerylliosis\nByssinosis\nCoal dust pneumoconiosis\nFarmers' lung\nHard metal pneumoconiosis\nMesothelioma\nSilicosis\nSilico-tuberculosis\nTalcosis\nLegislative history\nNotes\n\t•\tPlease note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.\n\t•\tEarlier versions of this Act (historical versions) are listed at the end of the legislative history.\n\t•\tFor further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.\nPrincipal Act and amendments\nNew entries appear in bold.\nYear\nNo\nTitle\nAssent\nCommencement\n1940\n63\nSurvival of Causes of Action Act 1940\n5.12.1940\n5.12.1940\n1982\n86\nSurvival of Causes of Action Act Amendment Act 1982\n7.10.1982\n7.10.1982\n2001\n41\nLaw Reform (Contributory Negligence and Apportionment of Liability) Act 2001\n3.8.2001\ns 9(2)—16.8.2001 (Gazette 16.8.2001 p3046)\n2001\n49\nSurvival of Causes of Action (Dust-Related Conditions) Amendment Act 2001\n11.10.2001\n11.10.2001\n2002\n38\nLaw Reform (Delay in Resolution of Personal Injury Claims) Act 2002\n28.11.2002\ns 3—10.3.2003 (Gazette 13.2.2003 p581)\n2005\n78\nDust Diseases Act 2005\n8.12.2005\nSch 1 (cl 3)—8.2.2006: s 2\nProvisions amended since 3 February 1976\nNew entries appear in bold.\nEntries that relate to provisions that have been deleted appear in italics.\nProvision\nHow varied\nCommencement\ns 2\nsubstituted by 38/2002 s 3(a)\n10.3.2003\ns 3\n\n\ns 3(1)\ns 3 amended and redesignated as s 3(1) by 86/1982 s 2\n7.10.1982\n\n(c) deleted by 38/2002 s 3(b)\n10.3.2003\ns 3(2)\ninserted by 86/1982 s 2(b)\n7.10.1982\n\nsubstituted by 49/2001 s 3\n11.10.2001\n\namended by 78/2005 Sch 1 cl 3\n8.2.2006\ns 3(3)\ninserted by 49/2001 s 3\n11.10.2001\ns 6\nsubstituted by 41/2001 s 9(2)\n16.8.2001\nSch\ninserted by 49/2001 s 4\n11.10.2001\nTransitional etc provisions associated with Act or amendments\nSurvival of Causes of Action (Dust-Related Conditions) Amendment Act 2001\n5—Transitional provision\nThe amendments made to the principal Act by this Part extend to actions commenced before the commencement of this Act, other than any action that has been finalised by a judgement of a court (whether or not the judgement is subject to an appeal), or settled or withdrawn, before the commencement of this Act.\nHistorical versions\nReprint No 1—15.1.1992\n\nReprint No 2—16.8.2001\n\nReprint No 3—11.10.2001\n\nReprint No 4—10.3.2003\n\n","sortOrder":0}],"analysis":{"flash_summary":{"complexity_score":5,"scope_assessment":{"changed":true,"description":"The Act’s current scope differs from its original 1940 form through later amendments that altered key provisions and added a specific exception for dust-related conditions. Relevant amendments recorded in the legislative history include the 1982 amendments to s 3, the 2001 Survival of Causes of Action (Dust-Related Conditions) Amendment Act which inserted s 3(2)–(3) and the Schedule identifying dust diseases, and the application of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 to surviving causes (see legislative history and provisions s 3(2)–(3), Schedule, s 6(2)). These changes expanded recoverable damages in narrowly defined disease cases while otherwise retaining statutory limits on recoverable heads of damage and introducing cross-references to modern apportionment rules."},"complexity_factors":["Multiple interacting rules: survival principle (s 2), caps/exclusions on heads of damage (s 3), timing conditions for survival (s 4), and a deeming provision when defendant dies before damage (s 5).","Categorical exception for dust-related conditions that expands recoverable damages but requires establishing specific pre-existing proceedings and causation (s 3(2)–(3) and Schedule).","Procedural time limits tied to probate/letters of administration introduce administrative compliance risk for executors/administrators (s 4).","Application of an external statute (Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001) introduces additional legal complexity in apportionment and contributory negligence assessments (s 6(2)).","Judicial fact-finding required on medical causation, the status of proceedings at death, and quantification of economic loss without non-economic heads (s 3, s 4, s 5)."],"plain_english_summary":"The Act provides that most causes of action survive a person’s death for the benefit of, or against, their estate, but sharply limits recoverable damages (excluding pain and suffering, shortened life expectancy, certain future earnings and exemplary damages). It creates a time rule: claims survive only if proceedings were already on foot at death or are started within six months after probate.\n\nA key exception lets estates recovering for specified dust‑related diseases claim broader damages if the claimant began the action and then died of that condition before judgment."},"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":true,"description":"The original 1940 Act was a straightforward reform abolishing the common law rule that personal actions die with the person. However, the scope has expanded significantly through amendments: the 1982 amendment added the dust-related exception (s 3(2)), the 2001 amendment refined this with a Schedule of specific diseases, and the 2005 amendment further integrated this with the Dust Diseases Act 2005. What began as general procedural reform has become partially specialised legislation for occupational dust diseases, creating a dual-track system where dust disease claims receive preferential treatment (full damages including pain and suffering) compared to all other claims."},"complexity_factors":["Multiple cross-references to other Acts (Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, Dust Diseases Act 2005)","Nested exceptions: general rule in s 3(1) with specific exception in s 3(2) for dust-related conditions","Defined term 'dust-related condition' with two alternative definitions (Schedule list OR general pathological condition)","Conditional time limits in s 4 with two alternative pathways (pending proceedings OR 6-month window)","Deeming provision in s 5 creating a legal fiction for simultaneous death scenarios","Repeal of ancient statutes (13 Edw. 1, 4 Edw. 3, 3 and 4 Will. 4) requiring historical legal knowledge to fully understand the reform","Schedule with 14 specific prescribed diseases plus catch-all category"],"plain_english_summary":"**What this law does:**\n\nThis Act changes the old rule that when someone dies, their legal claims usually died with them. Now, most legal claims (\"causes of action\") survive death and can be pursued by or against the person's estate (the property and assets left behind).\n\n**Key points:**\n\n- **If you die with a claim:** Your estate can continue suing on your behalf (except for defamation claims).\n- **If someone who owes you dies:** You can sue their estate instead.\n- **What you can claim:** Generally, you cannot claim for the dead person's pain and suffering, or lost future earnings they would have earned if they'd lived. However, there's a special exception for **dust-related diseases** (like asbestosis, mesothelioma, silicosis) — if someone dies from these before their case finishes, their estate CAN claim for pain and suffering.\n- **Time limits:** If you want to sue a dead person's estate, you must either have already started the case before they died, or start within 6 months of their death (and the claim must have arisen within 6 months before death).\n- **Special rule for simultaneous death:** If someone dies at the exact same time as the damage occurs, the law pretends they died slightly after, so the claim can still proceed.\n\n**Who it affects:**\n\n- Families of people who die with pending lawsuits or legal claims\n- People injured by someone who then dies\n- Workers with occupational dust diseases and their families\n- Executors and administrators handling deceased estates\n\n**Why it matters:**\n\nWithout this law, if someone died before settling a claim, the wrongdoer would escape liability. The dust disease exception is particularly important because these diseases often kill victims before slow court processes finish — this ensures their families aren't left uncompensated for their suffering."},"issue_detection":{"absurdities":[],"contradictions":[]},"summary":{"complexity_score":2,"scope_assessment":{"changed":false,"description":"Unable to assess scope change from original intent as the legislative text was not accessible. Based on general knowledge, the Act has remained narrowly focused on its original purpose of allowing legal claims to survive the death of a party, consistent with its 1940 intent."},"complexity_factors":["No actual legislative text was retrievable — analysis is based on general knowledge of the Act only","The Act itself (based on general knowledge) is relatively short and narrowly focused","Core legal concept of survivability of claims is somewhat technical but well-established in common law","Limited scope — applies in specific circumstances involving death and pre-existing legal claims"],"plain_english_summary":"**⚠️ Content Unavailable — Page Not Found**\n\nThe legislation text for the **Survival of Causes of Action Act 1940 (SA)** could not be retrieved. The link provided returned a 'Page Not Found' error from the South Australian legislation website, likely due to a broken or outdated URL following a website update in March 2026.\n\n**What we do know about this Act generally:**\nThe *Survival of Causes of Action Act 1940* (SA) is a foundational piece of South Australian law that addresses what happens to legal claims (called 'causes of action') when a person **dies**. Before laws like this existed, many legal claims — such as the right to sue someone for causing harm — simply disappeared when either the person who was harmed, or the person who caused the harm, died.\n\nThis Act generally allows:\n- **The estate (the deceased person's assets and affairs)** to continue pursuing legal claims the deceased had before they died\n- **Legal claims against a deceased person** to still be pursued against their estate\n\nThis matters if, for example, someone is injured in a car accident and then dies before the court case is resolved — their family or estate can still pursue compensation.\n\n**To access the actual text**, visit: [https://www.legislation.sa.gov.au](https://www.legislation.sa.gov.au) and search for the Act by name."}},"importantCases":[],"_links":{"self":"/api/acts/survival-of-causes-of-action-act-1940","history":"/api/acts/survival-of-causes-of-action-act-1940/history","analysis":"/api/acts/survival-of-causes-of-action-act-1940/analysis","conflicts":"/api/acts/survival-of-causes-of-action-act-1940/conflicts","importantCases":"/api/acts/survival-of-causes-of-action-act-1940/important-cases","documents":"/api/acts/survival-of-causes-of-action-act-1940/documents"}}