Fatal Accidents Act 1934

Fatal Accidents Act 1934

An Act to consolidate and amend the law as to compensating the families of persons killed by accidents

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Fatal Accidents Act 1934 .

2.   Act to bind Crown

[Section 2 Inserted by No. 14 of 1993, s. 20 ]

(1)  This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

(2)  An action may be brought under this Act against the Crown in the same circumstances as it may be brought against a subject.

3.   Interpretation

[Section 3 Substituted by No. 48 of 1994, s. 4 ]

(1)  In this Act, unless the contrary intention appears –[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]

member of the family, in relation to a person, means that person's –

(a) [Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse, partner, parent, stepparent, grandparent, child, stepchild or grandchild; or

(b) brother, sister, half-brother or half-sister;

[Section 3 Subsection (1) amended by No. 18 of 2008, s. 20, Applied:26 Jun 2008]

[Section 3 Subsection (1) amended by No. 18 of 2008, s. 20, Applied:26 Jun 2008] partner, in relation to a person, means an individual who, at the time when a wrongful act, neglect or default occurred in respect of the person, was in a personal relationship, within the meaning of the Relationships Act 2003 , with the person;

wrongful act, neglect or default means a wrongful act, neglect or default referred to in section 4 .

3A.   

4.   Action to be maintainable notwithstanding the death of the person injured

Whenever the death of a person is caused by 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 shall have been caused under such circumstances as amount in law to a crime.

5.   Action to be for the benefit of certain relations

[Section 5 Amended by 7 Geo. VI No. 34, s. 2 ]Every such action shall be for the benefit of the members of the family of the persons whose death shall have been so caused, and, subject to this Act, shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the parties aforesaid in such shares as the jury by their verdicts shall find and direct.

6.   Only one action to lie

[Section 6 Subsection (1) amended by No. 98 of 1974, s. 40 and Sched. 1 ]

(1)  [Section 6 Subsection (1) amended by No. 52 of 1965, s. 2 ]Not more than one action under this Act shall lie for and in respect of the same subject-matter of complaint.

(2)  [Section 6 Subsection (2) omitted by No. 98 of 1974, s. 40 and Sched. 1 ].  .  .  .  .  .  .  .  

(3)  [Section 6 Subsection (3) omitted by No. 98 of 1974, s. 40 and Sched. 1 ].  .  .  .  .  .  .  .  

7.   Plaintiff to deliver particulars

[Section 7 Amended by 25 Geo. V No. 78 ][Section 7 Amended by No. 23 of 2009, s. 12, Applied:16 Jun 2009] In every such action the plaintiff on the record shall be required, together with the statement of claim, to deliver to the defendant or the defendant's Australian legal practitioner a full particular of the persons for whom and on whose behalf such action is brought, and of the nature of the claim in respect of which damages are sought to be recovered.

8.   Persons beneficially interested may sue in default of executor, &c.

[Section 8 Amended by 25 Geo. V No. 78 ]

(1)  If in any case there is no executor or administrator of the person deceased, or, if there is such executor or administrator and no action under this Act is brought within 6 months after the death of such deceased person by and in the name of his executor or administrator, then and in every such case such action may be brought by and in the name or names of all or any of the persons, if more than one, for whose benefit such action would have been if it had been brought by and in the name of such executor or administrator.

(2)  Every action brought as provided by 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 it were brought by and in the name of such executor or administrator.

9.   Payment into court without division

(1)  In any action brought under the provisions of this Act it shall be sufficient, if the defendant is advised to pay money into court, that he pay it 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 it is to be divided by the jury.

(2)  If the sum so paid into court is not accepted, and an issue is taken by the plaintiff as to its sufficiency, and the jury shall think the sum sufficient, the defendant shall be entitled to the verdict upon that issue.

10.   Assessing damages

[Section 10 Amended by 7 Geo. VI No. 34, s. 2 ][Section 10 Amended by No. 77 of 1955, s. 2 ][Section 10 Amended by No. 43 of 1956, s. 2 ][Section 10 Amended by No. 55 of 1965, s. 5 ]

(1)  [Section 10 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]In assessing damages in any action under this Act, 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 assurance, whether made before or after the commencement of this Act;

(b) [Section 10 Subsection (1) amended by No. 18 of 2008, s. 21, Applied:26 Jun 2008] the value of such portion of the estate of the deceased person as passes to the members of his family, except so far as that value exceeds the sum of $250 000;

(c) 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, whether that sum forms portion of the estate of the deceased person or not; or

(d) any sum paid or payable by way of pension, benefit, or allowance under –

(i) [Section 10 Subsection (1) amended by No. 16 of 2006, s. 22, Applied:01 Nov 2006] the Veterans' Entitlements Act 1986 of the Commonwealth; or

(ii) the Social Security Act 1991 of the Commonwealth –

or under any Act (whether an Act of the Commonwealth or of this State) amending or replacing any such Act.

(2)  In any action brought under this Act damages may be awarded in respect of the expenses of the funeral or cremation of the deceased person and the reasonable cost of erecting a headstone or tombstone over the grave of the deceased person and hospital and medical expenses incurred as a result of the wrongful act causing his death if such expenses have been incurred or paid by the parties by whom, or for whose benefit, the action is brought, whether or not any such parties have sustained other pecuniary loss by reason of the death of the deceased.

SCHEDULE 1