Australian Capital Territory Current Acts

CIVIL LAW (WRONGS) ACT 2002 - SECT 16

    (1)     This section applies to a cause of action that survives under this part for the benefit of a dead person's estate.

    (2)     The damages recoverable do not include exemplary damages.

    (3)     If the act or omission that gave rise to the cause of action caused the person's death, the damages recoverable—

        (a)     must be calculated without regard to any loss or gain to the estate resulting from the death; and

        (b)     do not include damages for—

              (i)     the person's pain or suffering or for any bodily or mental harm suffered by the person or for the loss of the person's expectation of life; or

              (ii)     the person's loss of capacity to earn or loss of future probable earnings; and

        (c)     do not include damages of the kind mentioned in section 100 (Damages for loss of capacity to perform domestic services).

    (4)     However, damages mentioned in subsection (3) (b) (i) may be recovered if—

        (a)     the cause of action related to a personal injury resulting from an asbestos-related disease; and

        (b)     the person gave notice under section 51 (Notice of claim) before the person's death; and

        (c)     the person died either—

              (i)     as a result of the asbestos-related disease; or

              (ii)     the asbestos-related disease was a contributing factor to the person's death.

    (5)     The damages may include an amount to compensate for any reasonable funeral expenses paid or payable by the estate.

    (6)     An amount to compensate for any reasonable funeral expenses may be reduced to the extent (if any) that the court considers just and equitable having regard to the age and health of the dead person immediately before the act or omission that gave rise to the cause of action.

    (7)     In deciding whether an expense is reasonable for subsection (5), regard must be had to the religious and cultural circumstances of the dead person and the members of the dead person's family.

    (8)     In this section:

"asbestos-related disease" means any of the following diseases:

        (a)     asbestosis;

        (b)     asbestos induced carcinoma;

        (c)     asbestos-related pleural diseases;

        (d)     mesothelioma;

        (e)     a disease prescribed by regulation.

"member", of a dead person's family—see section 23.