What it does
The Law Reform (Miscellaneous Provisions) Act 1944 fundamentally alters the historical common-law maxim actio personalis moritur cum persona by providing, in s 2(1), that on the death of any person after the commencement of the Act all causes of action subsisting against or vested in that person survive against, or for the benefit of, the person's estate. This core reform ensures that neither the death of a wrongdoer nor the death of a person injured extinguishes liability or the right to compensation in most circumstances.
The provision is expressly made subject to the balance of s 2. The proviso to s 2(1) carves out several categories: causes of action for defamation, seduction, inducing one spouse to leave or remain apart from the other, or claims under Division 2 of Part 3 of the Property (Relationships) Act 1984. These exclusions reflect policy decisions that certain personal or relational harms should not survive to burden or benefit an estate.
Subsection (2) then imposes strict quantitative and qualitative limits on damages recoverable for the benefit of a deceased person's estate. Paragraph (a) prohibits exemplary damages and damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings, during the period after the person's death as they would have survived but for the act or omission. Paragraph (b) confines damages for breach of promise to marry to those that flow directly to the estate. Paragraph (c) requires that, where death was caused by the relevant act or omission, damages are to be calculated without reference to any loss or gain to the estate consequent on the death, save that a sum for funeral expenses may be included. Paragraph (d) further excludes damages for the pain or suffering of the deceased, any bodily or mental harm, or the curtailment of the person's expectation of life when death resulted from the act or omission.