Part 5Wrongful acts or neglect causing death

Part 5—Wrongful acts or neglect causing death 23—Liability for death caused wrongfully Whenever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to an indictable offence. 24—How to bring action etc (1) Every such action shall be for the benefit of the spouse, domestic partner, parent, brother, sister and child of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased. (2) In every such action, the court may, subject to this Act, give such damages as it thinks proportioned to the harm resulting from the death to the parties respectively for whom and for whose benefit the action is brought. (2a) In any such action in respect of the death of any person after the passing of the Wrongs Act Amendment Act 1939 damages may be awarded in respect of any medical expenses incurred as a result of the injury causing the death and the funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought. (2aa) In assessing damages under this section in any action based on a death occurring after the passing of the Wrongs Act Amendment Act 1956 there shall not be taken into account— (a) any sum paid or payable on the death of the deceased under any contract of assurance or insurance, whether made before or after the passing of the said Act; (b) any sum paid or payable consequent on the death of the deceased person as a gratuity to any person for whose benefit the action is brought; (c) any superannuation payments or benefits consequent upon the death of the deceased person; (d) any sum paid or payable consequent upon the death of the deceased person under any contributory medical hospital death or funeral benefit scheme; (e) any sum paid or payable as a social service benefit or pension by the Governments of the Commonwealth of Australia, or the United Kingdom, or the State of South Australia to or in respect of any person for whose benefit the action is brought; (f) any sum recovered or recoverable for the benefit of the estate of the deceased under section 3(2) of the Survival of Causes of Action Act 1940 (which permits the recovery of damages for certain kinds of non-economic loss where the deceased dies of a dust-related condition). (3) The amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the court finds and directs. (4) Where a deceased person is survived by a spouse and a domestic partner, the action shall, subject to this section, be brought for the benefit of both. (5) An action need not be brought under this section for the benefit of a person who has, by notice in writing served upon the executor or administrator of the deceased, renounced the benefit of this section. (6) Where the court considers it appropriate that any person for whose benefit an action lies under this section should present an independent claim for the benefit of an action under this section, it may permit or require that person to appear or be represented in the proceedings in all respects as if he were a separate party to the proceedings. (7) No action lies against the executor or administrator for failing to bring an action for the benefit of a domestic partner if he brings the action without notice of the claim of the domestic partner under this section, but the interest of any such domestic partner in the action shall be recognised by the court if application for recognition is made to the court before the proceedings are finally determined. 25—Restriction of actions and time of commencement Not more than one action shall lie under this Part for and in respect of the same subject matter of complaint; and every such action shall be commenced within three years after the death of the deceased person. 26—Particulars of person for whom damages claimed In every such action the plaintiff shall be required to deliver to the defendant or his solicitor, full particulars of the person or persons for whom and on whose behalf the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered. 27—Provision where no executor or administrator or action not commenced within 6 months (1) In any case falling under section 23, if there is no executor or administrator of the deceased person or, there being such an executor or administrator, no action is commenced under this Part within six months after the death of the deceased person, then an action may be brought by and in the name or names of the person or all or any of the persons for whose benefit an action could have been brought under this Part by an executor or administrator of the deceased person. (2) Every action brought under this section shall be for the benefit of the same persons and shall be subject to the same regulations and procedure as nearly as may be as if brought by or in the name of an executor or administrator of the deceased person. 28—Liability to parents of person wrongfully killed (1) Whenever the death of an infant is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the infant to maintain an action to recover damages, the person who would have been liable if death had not ensued shall be liable to pay to the surviving parents or parent of the child such sum— (a) where the death occurred before the commencement of the Wrongs Act Amendment Act 1974—not exceeding one thousand dollars; or (b) where the death occurred after the commencement of the Wrongs Act Amendment Act 1974—not exceeding $10 000, as the court thinks just by way of solatium for the suffering caused to the parents or parent by the death of the child. (2) Where both parents bring an action to recover any sum of money payable under this section, the amount recovered after deducting the costs not recovered from the defendant, shall be divided between the parents in such shares as the court directs. (3) Where both parents survive the child and either of them does not join in bringing an action under this section, the other may bring an action for such amount as he claims to be due to him or her. parent means the father or mother of a child. 29—Liability to surviving spouse or domestic partner of person wrongfully killed (1) Whenever the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled that person to maintain an action to recover damages, the person who would have been liable if death had not ensued shall be liable to pay to the surviving spouse or domestic partner of the deceased person such sum— (a) where the death occurred before the commencement of the Wrongs Act Amendment Act 1974—not exceeding one thousand four hundred dollars; or (b) where the death occurred after the commencement of the Wrongs Act Amendment Act 1974—not exceeding $10 000, as the court thinks just by way of solatium for the suffering caused to the spouse or domestic partner by that death. (2) Where the deceased person is survived by a spouse and a domestic partner, they may both claim solatium under this section, but the total amount awarded by way of solatium in any such case shall not exceed the amount that could have been awarded if the deceased had been survived by a single spouse or domestic partner. (3) Where, in any proceedings under this section, a spouse and a domestic partner both claim solatium under this section, any solatium awarded by the court shall be apportioned between the claimants in such manner as the court thinks just. (4) In proceedings for solatium by a spouse, it is not necessary for the court to inquire if the deceased was also survived by a domestic partner (but a domestic partner may, at any time before the proceedings are finally determined, apply to the court to be joined as a party to the proceedings). 30—Further provisions as to solatium etc (1) The rights conferred by sections 28 and 29 shall be in addition to and not in derogation of any rights conferred on the parent, spouse or domestic partner by any other provision of this Act. (2) In an action brought to enforce any right given under section 28 or 29 the court may in its discretion refuse to order the payment of any sum by way of solatium if, having regard to the conduct of the plaintiff in relation to the deceased person, or to the relations which existed between the plaintiff and the deceased person, or for any other sufficient reason, it considers that no such payment should be made. (3) Any cause of action conferred on any person by section 28 or 29 shall not, on the death of that person, survive for the benefit of his estate. (4) A cause of action conferred on a person by section 28 or 29 is exercisable notwithstanding that the death of the person injured by the wrongful act, neglect or default was caused in circumstances which in law amount to an indictable offence.