{"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":{"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."},"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":true,"description":"The 1940 Act originally provided basic survival of causes of action while excluding defamation and most non-economic damages. The 2001 Survival of Causes of Action (Dust-Related Conditions) Amendment Act substantially expanded its practical scope by inserting s 3(2)–(3) and the Schedule, allowing recovery of previously barred damages for pain, suffering, curtailment of expectation of life and exemplary damages in dust-disease cases. This shifted the legislation from a general rule of limited recovery to a dual regime that treats occupational dust diseases as a distinct, more generous category."},"complexity_factors":["Layered damages exclusions in s 3(1) with a targeted carve-out for dust-related conditions in s 3(2)–(3)","Procedural preconditions in s 4 creating six-month time bars that differ depending on whether proceedings were already on foot","Deeming fiction in s 5 to handle simultaneous death and damage scenarios","Cross-reference in s 6(2) to the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001","Legislative history showing four substantive amending Acts between 1982 and 2005 that inserted, substituted and relocated text"],"plain_english_summary":"**This South Australian law ensures most legal claims do not vanish when a person dies.** \n\nIf someone dies with an active right to sue another person (a 'cause of action'), their estate can continue that claim for the benefit of the estate. Likewise, if someone had a claim against a person who then dies, the claimant can still pursue the estate. \n\nKey limits: \n- Defamation claims are completely excluded. \n- In most surviving claims, damages cannot cover pain and suffering, mental harm, lost life expectancy, lost future earnings, or punitive (exemplary) amounts. \n- However, a special exception allows full damages (including pain, suffering and exemplary damages) when a person dies from a dust-related lung disease (such as asbestosis or mesothelioma, listed in the Schedule) before their court case finishes. \n- Strict time limits apply to claims brought against a deceased person's estate. \n- The law does not interfere with separate rights that family dependants may have to claim for the death itself. \n\nIt matters because it lets estates recover compensation for wrongs that happened before death, while protecting against inflated or speculative claims, and it gives important extra rights to victims of historical occupational dust diseases."},"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":"What this Act does (mechanics)\n\n- The Act makes clear that most legal causes of action that a person has at the moment they die continue to exist afterwards for the benefit of, or against, the deceased person's estate (s 2(1)(a)–(b)). Defamation claims are excluded (s 2(2)).\n\n- If a cause of action survives for an estate, the damages that the estate can recover are limited. Generally the estate cannot recover damages for pain and suffering, bodily or mental harm, shortened life expectancy, lost future earnings for the period the person would otherwise have lived, or exemplary (punitive) damages. If the wrongful act caused death, the damages must be calculated without taking into account gains or losses to the deceased’s estate that result from the death, though funeral expenses may be claimed (s 3(1)(a)–(b),(d)).\n\n- Exception for dust-related conditions: if a person starts a damages action for a dust-related condition and then dies from that condition before the action is finally decided, the estate can recover for pain and suffering, bodily and mental harm, curtailment of life expectancy, and exemplary damages (s 3(2)). \"Dust-related condition\" is defined to include the diseases listed in the Schedule and other pathological conditions of the lungs, pleura or peritoneum attributable to dust (s 3(3) and Schedule).\n\n- A tort claim will not survive against an estate unless either (a) proceedings against the defendant were already on foot when the defendant died, or (b) the cause of action arose no earlier than six months before the defendant’s death and the executor or administrator starts proceedings within six months after taking out probate or letters of administration (s 4).\n\n- If a defendant died before or at the same time as the damage was suffered, the Act treats the cause of action as if it had existed against the defendant before their death (s 5).\n\n- The Act does not affect the separate rights of dependants to bring an action for death. Also, the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 applies to surviving causes of action (s 6(1)–(2)).\n\n- The Act repeals certain old English and early local enactments (s 7).\n\nStated purpose and how the Act achieves it\n\n- The short title and long title indicate the Act is intended to change “the law as to the effect of death in relation to causes of action.” Mechanically, it does this by (a) declaring survival rules (s 2), (b) setting which heads of damage an estate can and cannot recover (s 3), (c) imposing timing conditions for bringing surviving tort claims (s 4), and (d) adding a specific exception for claims related to dust diseases (s 3(2)–(3) and Schedule).\n\nWho pays, who decides, and how behaviour may change\n\n- Who pays: money awarded for surviving causes of action is payable to or recoverable by the deceased person’s estate and so ultimately affects the estate and its beneficiaries (s 2(1)). Where the defendant has died, any liability runs against the defendant’s estate (s 2(1)(b)).\n\n- Who decides: courts determine whether a cause of action survives, the quantum of damages subject to the statutory exclusions and exceptions (s 3), the application of the six‑month timing rule or the existence of pending proceedings at death (s 4), and whether a condition qualifies as a dust‑related condition under the Schedule (s 3(3)). The Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 applies to surviving causes (s 6(2)).\n\n- Behavioural effects and incentives:\n  - Potential plaintiffs have an incentive to start proceedings before death or ensure proceedings are pending at death to preserve broader recovery rights (s 4; s 3(2) as to dust claims).\n  - Estates of deceased claimants generally cannot recover non‑economic losses (pain and suffering, etc.) unless the dust‑disease exception applies (s 3(1)–(2)), which may shift claim strategy toward dependants’ death actions where available (s 6(1)).\n  - Executors/administrators face a compliance task to commence surviving tort claims within the six‑month window after probate where applicable (s 4(b)).\n\nCosts, trade‑offs, implementation risks and compliance burden (source‑grounded)\n\n- Costs and who bears them: the statutory cap on recoverable heads of damage (exclusion of pain and suffering, certain future earnings, exemplary damages) reduces the categories of loss an estate can recover (s 3(1)(a)–(b)). The financial incidence falls on the party that is ordered to pay (the defendant or the defendant’s estate) and on the claimant estate through the net award received (s 2(1); s 3(1)).\n\n- Concentrated benefits and limited exceptions: the dust‑related condition exception (s 3(2)–(3) and Schedule) creates a specific class of claimants whose estates may recover broader heads of damage if an action was already commenced and the claimant dies of that condition before final determination. That is a legally delineated, class‑based exception.\n\n- Trade‑offs: the Act narrows recoverable heads of damage for most surviving claims (s 3(1)), while preserving separate death actions by dependants (s 6(1)). This structure shifts some categories of loss from estates to dependant‑death remedies or extinguishes them for estates, depending on which route is available.\n\n- Implementation risks and evidentiary issues: applying the dust‑disease exception requires establishing that the deceased commenced an action for a dust‑related condition and died as a result of that condition before final determination (s 3(2)–(3)). Courts must interpret medical causation and whether a condition fits the Schedule or the broader definition in s 3(3).\n\n- Compliance burden and procedural timing: executors and administrators must monitor time limits and probate formalities because a surviving tort claim can be barred unless proceedings were pending at death or are brought within six months after probate (s 4).\n\n- Bureaucratic or judicial discretion: the Act leaves courts the role of applying the statutory exclusions and exceptions, assessing causation for dust conditions, and applying contributory negligence and apportionment rules under the referenced Law Reform Act (s 6(2)).\n\nImmediate practical implications\n\n- Estates seeking to recover for a deceased person’s cause of action should check whether proceedings were already on foot at death or, if the cause arose shortly before death, ensure timely commencement after probate (s 4).\n- If a claimant with a dust‑related disease commences an action and dies of that disease before determination, their estate can recover a broader range of damages than estates in other surviving claims (s 3(2)–(3) and Schedule).\n\nKey sections to consult: s 2 (survival rule and defamation exclusion), s 3 (limits on damages and dust‑disease exception), s 4 (conditions precedent/timing), s 5 (deeming where defendant died before damage), s 6 (savings and application of Law Reform Act), Schedule (listed dust diseases)."}},"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"}}