COMPENSATION (FATAL INJURIES) ACT 1974

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NORTHERN TERRITORY OF AUSTRALIA

COMPENSATION (FATAL INJURIES) ACT 1974

As in force at 1 May 2016

Table of provisions

1 Short title ......................................................................................... 1 2 Repeal ............................................................................................. 1 4 Interpretation ................................................................................... 1 5 Application ....................................................................................... 2 6 Act binds the Crown ........................................................................ 2 7 Liability in respect of the death of a person ..................................... 3 8 One action for the benefit of members of deceased person's

family ............................................................................................... 3 10 Damages ......................................................................................... 3 11 Contributory negligence ................................................................... 5 12 Payment into court ........................................................................... 5 13 Alternative action where personal representative is not

appointed or does not bring action .................................................. 6 14 Special endorsement on writ of summons ....................................... 6 15 Powers of the court to make orders in relation to actions ................ 6 16 Provisions applicable where action tried before court with a

jury ................................................................................................... 7

ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

____________________

As in force at 1 May 2016 ____________________

COMPENSATION (FATAL INJURIES) ACT 1974

An Act relating to compensation to relatives of persons whose deaths are caused by wrongful act, neglect or default

1 Short title

This Act may be cited as the Compensation (Fatal Injuries) Act 1974.

2 Repeal

(1) The Compensation (Fatal Injuries) Ordinance 1938 and the Compensation (Fatal Injuries) Ordinance 1970 are repealed.

(2) Despite the repeal made by subsection (1), the provisions of the Compensation (Fatal Injuries) Ordinance 1938 as amended continue to apply in relation to a cause of action in respect of the death of a person that occurred before the commencement of this Act.

4 Interpretation

(1) In this Act:

child, in relation to a deceased person, includes an adopted child and a grand-child and a stepchild of the deceased person.

parent, in relation to a deceased person, includes an adoptive parent, and a step-father, a step-mother, a grand-father, and a grand-mother of the deceased person.

personal representative, in relation to a deceased person, means the person to whom a grant of probate of the will or administration of the estate of the deceased person has been made in a State or Territory and includes an executor by representation of the deceased person, the Public Trustee if he or she is administering the estate of the deceased person and the Curator of Deceased Estates if he or she is administering the estate of the deceased person.

Compensation (Fatal Injuries) Act 1974 2

(2) Each of the following persons is, for this Act, a member of a deceased person's family:

(a) a spouse or de facto partner of the deceased person;

(b) a child of the deceased person;

(c) a person to whom the deceased person stood, immediately before his or her death, in loco parentis;

(d) a person who stood, immediately before his or her death, in loco parentis to the deceased person;

(e) a parent of the deceased person;

(f) a brother, a sister, a half-brother and a half-sister of the deceased person;

(g) a former spouse or de facto partner of the deceased person.

(3) For this Act:

(b) a child of a deceased person born alive after the death of that person must be treated as having been born before the death of the deceased person; and

(d) an infant to whom a deceased person stood, immediately before his or her death, in loco parentis must be treated as the child of the deceased person.

(4) A reference in this Act to an action or proceeding must be read as a reference to an action or proceeding under this Act.

5 Application

(1) Subject to subsection (2), this Act applies only where a death occurs on or after the commencement of this Act, whether the act, neglect or default that caused the death occurred before or after that commencement.

(2) This Act does not apply to or in relation to a death occurring in or as a result of an accident within the meaning of the Motor Accidents (Compensation) Act 1979, except in those circumstances in which an action in respect of that death is not precluded by that Act.

6 Act binds the Crown

This Act binds the Crown.

Compensation (Fatal Injuries) Act 1974 3

7 Liability in respect of the death of a person

(1) Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect of the injury, the person who would have been liable, if the death had not ensued, is liable to an action for damages despite the death of the person injured and irrespective of whether the death of that person was caused by circumstances that amount in law to an offence.

(2) A settlement, release or judgment in respect of the wrongful act, neglect or default causing his or her death made, given or obtained by the deceased person after the commission or occurrence of the wrongful act, neglect or default does not, subject to section 10(5), affect the liability of a person to an action under this Act.

8 One action for the benefit of members of deceased person's family

(1) Not more than one action may be brought against any one person in respect of a death.

(2) Subject to section 13, any such action must be brought by and in the name of the personal representative of the deceased person for the benefit of those members of the deceased person's family who sustained damage because of his or her death.

10 Damages

(1) The court may award to the parties respectively for whose benefit the action is brought, such damages as it may think proportioned to the injury resulting from the death of the person injured.

(2) The amount of damages recovered under this section must, after deducting the costs not recovered from the defendant, be divided amongst the persons for whose benefit the action is brought in such shares as the court determines.

(3) Damages in an action may include:

(a) the reasonable expenses of burial or cremation of the deceased person that are incurred by a person for whose benefit the action is brought; and

(b) the reasonable medical and hospital expenses of the deceased person in relation to the injury that resulted in the death of the deceased person that are incurred by a person for whose benefit the action is brought; and

Compensation (Fatal Injuries) Act 1974 4

(c) if the deceased person is survived by a spouse or de facto partner – damages for loss or impairment of consortium in the same manner as damages would be assessed in a claim in tort by a husband for damages for loss or impairment of consortium; and

(d) if the deceased person customarily performed household services – the reasonable expenses that would be incurred by a person for whose benefit the action is brought in respect of the hire of help to perform those services; and

(e) if the deceased person is survived by a child of his or her who is an infant:

(i) the reasonable expenses that would be incurred by a person on whose behalf the action is brought in respect of the hire of a person to live in the home and care for the infant until the infant attains the age of 18 years; and

(ii) damages on account of loss of care and guidance of the child by the deceased person as a parent; and

(f) solatium.

(4) In assessing damages in action, no reduction must be made on account of:

(a) a sum paid or payable on the death of, or personal injury to, the deceased person under a contract of insurance; or

(b) a sum paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society, lodge or trade union; or

(c) a sum paid or payable by any government or person consequent upon the death or injury of the deceased person and being:

(i) a payment instead of furlough or long service leave; or

(ii) a payment by way of pension, social service benefit or repatriation benefit; or

(d) a sum paid or payable as a gratuity consequent upon the death of the deceased person; or

(e) any sum in respect of the acquisition by a member of the deceased person's family, consequent upon the death, of, or an interest in, a dwelling used at any time as the home of the member, or of, or of an interest in, the household contents of

Compensation (Fatal Injuries) Act 1974 5

any such dwelling; or

(f) a premium that would have become payable under a contract of insurance in respect of the life of the deceased person if he or she had lived beyond the time at which he or she died; or

(g) any other gain or benefits that have accrued or may accrue to the deceased person's estate or to any person for whose benefit an action is brought consequent upon the death of the deceased person; or

(h) the marriage or entry into a de facto relationship, or the prospects of doing so, of a surviving spouse or de facto partner or a surviving former spouse or de facto partner.

(5) A payment made as a result of a settlement, release or judgment in respect of the wrongful act, neglect or default causing his or death made, given or obtained by the deceased person within the period of 6 months after the commission or occurrence of the wrongful act, neglect or default causing his or her death must be taken into account in assessing damages in an action.

11 Contributory negligence

(1) Where a person dies as the result partly of his or her own wrong and partly of the wrong of another person or other persons, and accordingly, if an action were brought for the benefit of his estate under Part II of the Law Reform (Miscellaneous Provisions) Act 1956, the damages recoverable would be reduced, any damages recoverable in an action under this Act must be reduced to the same extent as if they were damages in an action so brought for the benefit of the estate of the deceased person.

(2) In this section, wrong has the same meaning as in Part V of the Law Reform (Miscellaneous Provisions) Act 1956.

12 Payment into court

(1) Where an action is brought under this Act, the defendant may pay an amount of money into court as compensation for the benefit of the persons for whose benefit the action is brought and who are entitled to compensation under this Act.

(2) Where an amount of money is paid into court by way of compensation, no portion of that amount must be paid out of court except under an order of the court.

Compensation (Fatal Injuries) Act 1974 6

13 Alternative action where personal representative is not appointed or does not bring action

(1) Where an action has not been commenced by and in the name of the personal representative of a deceased person within 6 months after the death of the deceased person, any one or more of the persons for whose benefit an action may be brought may bring such an action.

(2) An action brought by a person other than the personal representative of the deceased person must be for the benefit of the same persons and subject to the same provisions and procedures, mutatis mutandis, as if it were brought by the personal representative of the deceased person on behalf of those persons.

14 Special endorsement on writ of summons

The writ of summons or other process by which an action is commenced must, in addition to any other endorsements required or permitted to be made, be endorsed with a statement specifying the names of each of the persons for whose benefit the action is brought and the relationship of each of those persons to the deceased person.

15 Powers of the court to make orders in relation to actions

(1) Where:

(a) an action has been commenced; and

(b) 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, on application made by or on behalf of that person, or of its own motion, order the action to proceed as if the name of that person had been so included.

(2) The court may order that any one or more of the persons for whose benefit an action has been brought be separately represented by counsel or solicitor, or both.

(3) 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.

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

Compensation (Fatal Injuries) Act 1974 7

16 Provisions applicable where action tried before court with a jury

If an action or the assessment of damages in an action is tried before the court with a jury, the references in section 10 to the court must be read as references to the jury before which the action is tried.

ENDNOTES

Compensation (Fatal Injuries) Act 1974 8

ENDNOTES

1 KEY

Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced

2 LIST OF LEGISLATION

Compensation (Fatal Injuries) Ordinance 1974 (Act No. 36, 1974) Assent date 23 September 1974 Commenced 23 September 1974

Transfer of Powers (Further Provisions) Ordinance 1977 (Act No. 51, 1977) Assent date 9 December 1977 Commenced 1 January 1978 (s 6)

Status of Children Act 1978 (Act No. 16, 1979) Assent date 26 January 1979 Commenced 21 September 1979 (Gaz G38, 21 September 1979, p 1)

Compensation (Fatal Injuries) Act 1979 (Act No. 68, 1979) Assent date 26 June 1979 Commenced 1 July 1979 (s 2)

Statute Law Revision Act 1980 (Act No. 6, 1981) Assent date 9 January 1981 Commenced 9 January 1981

Limitation Act 1981 (Act No. 87, 1981) Assent date 21 September 1981 Commenced 26 February 1982 (Gaz G8, 26 February 1982, p 2)

Compensation (Fatal Injuries) Amendment Act 1982 (Act No. 89, 1982) Assent date 14 December 1982 Commenced 20 May 1983 (Gaz G20 20 May 1983, p 4)

De Facto Relationships (Miscellaneous Amendments) Act 1991 (Act No. 82, 1991) Assent date 24 December 1991 Commenced 1 January 1992 (s 2)

ENDNOTES

Compensation (Fatal Injuries) Act 1974 9

Compensation (Fatal Injuries) Amendment Act 2001 (Act No. 13, 2001) Assent date 28 June 2001 Commenced 1 August 2001 (s 2, s 2 Law Reform (Miscellaneous

Provisions) Amendment Act 2001 (Act No. 12, 2001) and Gaz G29, 25 July 2001, p 2)

Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (Act No. 1, 2004) Assent date 7 January 2004 Commenced 17 March 2004 (Gaz G11, 17 March 2004, p 8)

Statute Law Revision Act 2011 (Act No. 30, 2011) Assent date 31 August 2011 Commenced 21 September 2011 (Gaz G38, 21 September 2011, p 5)

Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related

Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016)

3 SAVINGSS AND TRANSITIONAL PROVISIONS

s 66 Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (Act No. 1, 2004)

4 GENERAL AMENDMENTS

General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 5 and 11.

5 LIST OF AMENDMENTS

lt amd No. 6, 1981, s 4 s 1 amd No. 6, 1981, s 4 s 2 amd No. 6, 1981, s 4; No. 30, 2011, s 3 s 3 rep No. 51, 1977, s 3 s 4 amd No. 16, 1979, s 19; No. 6, 1981, s 4; No. 89, 1982, s 3; No. 82, 1991,

s 11; No. 1, 2004, s 62; No. 30, 2011, s 3 s 5 sub No. 68, 1979, s 4 s 6 amd No. 6, 1981, s 4 s 7 amd No. 6, 1981, s 4; No. 30, 2011, s 3; No. 8, 2016, s 45 s 8 amd No. 30, 2011, s 3 s 9 rep No. 87, 1981, s 3 s 10 amd No. 1, 2004, s 62; No. 30, 2011, s 3 s 11 amd No. 6, 1981, s 4; No. 13, 2001, s 3; No. 30, 2011, s 3 s 12 amd No. 6, 1981, s 4; No. 30, 2011, s 3 ss 13 – 16 amd No. 30, 2011, s 3