3An action to be maintainable against any person causing death through neglect despite the death of the person injured

#### 3 An action to be maintainable against any person causing death through neglect despite the death of the person injured 3 An action to be maintainable against any person causing death through neglect despite the death of the person injured > > (1) Whensoever 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, then and in every such case 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 has been caused under such circumstances as amount in law to a serious indictable offence. > > > (2) In any such action any reasonable expenses of the funeral or the cremation of the deceased person and the reasonable cost of erecting a headstone or tombstone over the grave of the deceased person may be recovered. > > > (3) In assessing damages in any such action there shall not be taken into account: > > > > > (a) any sum paid or payable on the death of the deceased under any contract of insurance, or > > > > > (b) any sum paid or payable out of any superannuation, provident, or like fund, or by way of benefit from a friendly society, benefit society, or trade union, or > > > > > (c) any sum paid or payable by way of pension under: > > > > > > > (i) the Widows’ Pension Act 1925–1942, > > > > > > > (ii) the Coal and Oil Shale Mine Workers (Pensions) Act 1941–1942, > > > > > > > (iii) the [Australian Soldiers’ Repatriation Act 1920–1943](http://www.legislation.gov.au/) of the Parliament of the Commonwealth, > > > > > > > (iv) the [Widows’ Pensions Act 1942–1945](http://www.legislation.gov.au/) of the Parliament of the Commonwealth, > > > > > > > (v) the [Invalid and Old-age Pensions Act 1908–1945](http://www.legislation.gov.au/) of the Parliament of the Commonwealth, > > > > > > or under any Act (Commonwealth or State) amending or replacing any such Act. > > **s 3:** Am 1928 No 8, sec 2 (1); 1942 No 15, sec 44 (a); 1946 No 23, sec 2; 1999 No 94, Sch 4.89.