Fatal Accidents Act 1959

In this Act unless inconsistent with the subject matter or context —

In deducing any relationship for the purposes of this Act —

an adopted person shall be treated as the legitimate child of his adopters; and

an illegitimate person shall be treated as the legitimate child of his parents.

In this section, adopted person means a person who is legally adopted whether in the State or elsewhere, and whether before or after the coming into operation of this Act.

For the purposes of this Act, a child of the deceased person born alive after the death of that person shall be treated as having been born before the death of the deceased person.

Where 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 is 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 a crime.

An injured party who did not commence an action relating to the injury before the limitation period for commencing the action expired is to be taken to be entitled, for the purposes of subsection (1), to maintain an action in respect of the injury if, before the person died, the person —

was not aware of the physical cause of the injury and it was reasonable for the person not to be aware of that cause;

was aware of the physical cause of the injury but was not aware that the injury was attributable to the conduct of a person and it was reasonable for the person not to be aware that the injury was so attributable; or

was aware of the physical cause of the injury and that the injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person’s identity.

In an action brought under this Act in respect of the death of any person after the coming into operation of this Act, damages may be awarded in respect of any medical expenses incurred as a result of the injury which caused the death and the funeral expenses of the deceased person, if the expenses have been incurred by the parties for whose benefit the action is brought.

In assessing damages in an action brought under this Act, there shall not be taken into account —

any sum paid or payable on the death of the deceased under any contract of insurance;

any sum paid or payable out of or under any superannuation, provident or like fund or scheme, or by way of benefit from a friendly society, benefit society or trade union;

any sum paid or payable by way of pension under the provisions of —

the Repatriation Act 1920‑1957, of the Parliament of the Commonwealth; or

the Social Services Consolidation Act 1947‑1953, of the Parliament of the Commonwealth; or

the Coal Industry Superannuation Act 1989; or

any other Act for the payment of a pension to the spouse or a de facto partner of the deceased,

any damages for the pain or suffering of the deceased person or for any bodily or mental harm suffered by the deceased person or for the curtailment of the deceased person’s expectation of life that, because of the Law Reform (Miscellaneous Provisions) Act 1941 section 4(2a), are recovered or recoverable for the benefit of the deceased person’s estate.

Subsection (2)(d) applies to an action that is, or could be, brought under this Act whether the cause of action accrues before, on or after the day on which the Fatal Accidents Amendment Act 2008 commences (commencement day) but does not apply to —

an action that was finalised before commencement day by a judgment of a court or by agreement of the parties to the action; or

a claim, in respect of an action that could have been brought under this Act, that was finalised before commencement day by agreement of the parties to the prospective action.

Every action brought under this Act shall be for the benefit of relatives of the person whose death has been caused in any manner referred to in section 4.

The action shall be brought by and in the name of the executor or administrator of the deceased person as the case may be.

In every action the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought.

In any action under this Act, the relationship between a parent and his or her illegitimate child, and any other relationship traced through that relationship, shall be recognized only if —

in the case of a claim by, or through relationship with, the illegitimate child, parentage is admitted by or established against the deceased parent in his or her lifetime; and

in the case of a claim by, or through relationship with, the parent of a deceased illegitimate child, parentage is admitted by or established against the parent in the lifetime of the illegitimate child.

Subsection (3) does not apply to or in respect of a relationship established by the Artificial Conception Act 1985.

The amount of damages recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the persons for whose benefit the action was brought in such shares as the court finds and directs.

In any action the defendant may pay money into court as compensation in one sum to all persons entitled under this Act, for his wrongful act, neglect or default, without specifying the shares into which the money is to be divided by the court.

No portion of the money so paid in shall be paid out of court except under the order of a judge, but otherwise the rules of court for the time being in force relating to payment into and out of court and tender and matters associated therewith, with any necessary modifications, apply.

Where the money paid in is not accepted, and an issue is taken by the plaintiff as to its sufficiency, if the court decides the money is sufficient the defendant is entitled to the verdict upon that issue.

Where there is no executor or administrator of the deceased person, or where his executor or administrator does not bring an action under this Act within 6 months after the death of the deceased person, any one or more of the persons for whose benefit the action might be brought by the executor or administrator may bring the action.

Any action so brought shall be for the benefit of that or those persons and is subject to the same provisions and procedure, as nearly as may be, as if it were brought by an executor or administrator.

Where —

an action under this Act has been commenced; and

the court is satisfied that a person whose name is not included in the names of the persons for whose benefit the action is stated to have been brought is a person whose name should have been so included,

The court may order that any one or more of the persons for whose benefit an action has been brought be separately represented.

Where the court makes an order under this section, the court may, at the same time or subsequently, make such orders in relation to procedure in the action as it thinks fit.

The powers of the court under this section are in addition to and not in derogation of any other powers of the court.