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Lecture 10: Actions on Death

Causes of action
- Claim by dependents
o Acclaimed by the dependence of that person
o Protects interests they have in dependency relationships i.e.
financial support on the deceased
o Represents their own interests new cause of action
- Survival of actions
o Action by/against estate who represents the deceased to persist
with the legal claim
o Damages may be recoverable to the assets of the estate and to
beneficiaries (no existing relationship but has claim to the
deceaseds estate)
o Represents the plaintiffs interests no new cause of action created
Dependents Action
- Action for damages suffered by the dependent as a result of the death of a
family member caused by another persons tortious act/omission
- Exceptional form of claim for relational economic losses caused by the
death of another person
- S64 Civil Proceedings Act 2011
1. This section applies if:
a. A death is caused by a wrongful act or omission and
b. The act or omission would, if death had not resulted, have
entitled the deceased person to recover damages in a
proceeding for personal injury
2. The person who would have been liable if the death had not resulted is
liable for damages despite the death
3. In a proceeding under this part, a court may award to the members of
the deceased persons family the damages it considers to be
proportional to the damage to them resulting from the death
- S64 explained
o A tort must have been committed and the deceased must be able to
sue for the tort
o Compensates the deceaseds family for the losses suffered as a
result of the tort
o Ambiguity
Aim is to protect the dependents but any causes of action is
based on the tort against the deceased
- Members of the deceaseds family
o Spouse (s62, 63)
Includes de-facto couples:
Someone cohabitating for 2 years
Evidence of long term committed relationship
Relation with deceased and had a child together
Does not include same sex partners in QLD
o Parent (s62)
If a parent is dependent on child for financial support
Includes:
Grandparents
Step-parents

Child (s13)
Includes:
Grandchildren
Stepchildren
Illegitimate/adopted children
Persons to whom the deceased acted in loco parentis
immediately before death
o Actions are usually brought from all parties by the deceaseds
executor
Awarded lump sum which is then divided (S65)
Exception if there is delay on the part of the executor (6
months after death) then individuals can bring action
o No fixed list in Victoria
Cause of action if there is proof in evidence that there is an
economic dependence
Gets around category problems
Pre-conditions of recovery
o Expiry of limitation period precludes action
Can only claim if the plaintiff could claim if limitation period
expired the plaintiff doesnt get an action so neither does the
dependent
Doesnt make sense if the tort was made to protect the
interests of dependents
o Settlement prior to death precludes action
Taylor
o Fact that the defendant dies before the plaintiff does not bar action
Partridge
Actions survive the plaintiff and the defendants death
o Death must be caused by the wrong itself
Later suicide by the deceased may preclude recovery
Haber v Walker
Facts:
o Deceased injured by the defendants negligence
and suffered depression, committing suicide
Death wasnt caused by the defendants wrong but
rather the deceaseds decision
Court was prepared to allow the plaintiff to claim
suicide was a consequence of the original injury
Lyle v SOC
Facts:
o Deceased suffered minor injury and committed
suicide as a result of prescription drug overdose
Total loss of dependency not attributable to
defendantsaction but rather deceaseds decision
o Does the death need to be foreseeable?
Wording of statute states that the deceased must be entitled
to recover damages, which would only happen if damage was
foreseeable
o

Persons acting in loco parentis parental


responsibilities

Dependents should not be able to recover for unforeseeable


damage questions judgment in Haber
Assessment of Damages
o S64(3): Damages are proportioned to the injury resulting from the
death
Court usually gives most of the damages to the spouse since
the spouse has to pay most of the expenses etc.
o Damages are usually based on future economic loss
o Court will not award damages flowing from loss of the dependency
relationship itself

Burgess
Facts:
o Ballroom dancing couple who would perform
together major source of income
o Wife was killed and the husband sued for the
future loss of profit due to the fact that they
could no longer dance
Court held that the damages were irrecoverable since
it didnt flow from the dependency relationship rather a
business relationship between the couple
Discount in damages for the vicissitudes of life if the dependency
relationship would have ended in the future anyways
Courts are generally generous and are inclined to assume the
relationship would not end (consider social objectives)
Ignore possibility that parties would have divorced
Allow for possibility that separated couples might have
reconciled
Ignore possibility that the plaintiff will remarry in the
future despite evidence of intention to do so (S67(2)
(3))
Deduct collateral benefits of the death
Deduct support expected from any actual new relationship of
the plaintiff (s67(4))
Deduct any damages accruing to the deceaseds estate
Ignore certain payments (s70) i.e. life insurance payouts
(non-deductable)

Survival of actions
- Effect of death of one of the parties to an action
- Not concerned with specific claims from defendant, rather prior actions
surviving death
- Old rule personal action dies with the person
o How could there be obligation towards someone whos dead?
o What about the dependent who is now without compensation
state has to support him, but why when the wrongdoer could?
- Succession Act 1981 (QLD)
o S66(1) all causes of action subsisting against or vested in a person
shall survive against/for the benefit of his estate
Does not create a new cause of action
o Death of defendant

S66(6) an action which survives pursuant to subsection (1)


against the state of a deceased person may be brought
against any beneficiary to whom any part of the estate has
been distributed as well as against the personal
representatives
If you inherit money from the deceased, the plaintiff
could bring an action to you personally since you are a
person who has received assets from the estate
S66(7) can get other beneficiaries to contribute to damages
S66(8) if all the assets have already been spent in good
faith (without knowing the possibility of an action) then no
action can be brought
S66(9) there is a cap of liability based on the amount of
money received
You can never be liable for more money than you
received
S66(3) deceaseds estate is liable if the plaintiff suffers
damages after the defendants death

Death of plaintiff
S66(2) exclusions from recoverable damages
a. Damages for pain and suffering for any bodily or mental harm or
for curtailment of expectation of life
Exception where the injury was a fatal related condition in
respect of which the plaintiff had already started an action
prior to death
b. Exemplary damages
c.
d. i. Losses to the state consequent upon the death (except funeral
expenses)
Actions to the estate dont bring much damages in personal
injury cases makes sense as the compensation is towards
the deceased and most damages dont apply to the deceased
but rather their family
ii. Loss of future probable earnings of the deceased if he or she
would have survived
Loss of earnings already given in damages through
dependency action avoid duplicate damages
Statutory compensation schemes
- Workers Accident Compensation
o All jurisdictions
o Employed workers and apprentices
o Accidents and disease arising out of or in the course of
employment
- Motor Accident Schemes
o VIC, TAS, NT
- Criminal Injuries Compensation Schemes
o All jurisdictions
o