South Australian Current Acts South Australian Current Acts (1) Every such action
shall be for the benefit of the spouse, domestic partner, parent, brother,
sister and child of the person whose death has been so caused, and shall be
brought by and in the name of the executor or administrator of the person
deceased.
(2) In every such
action, the court may, subject to this Act, give such damages as it thinks
proportioned to the harm resulting from the death to the parties respectively
for whom and for whose benefit the action is brought.
(2a) In any such
action in respect of the death of any person after the passing of the Wrongs
Act Amendment Act 1939 damages may be awarded in respect of any
medical expenses incurred as a result of the injury causing the death and the
funeral expenses of the deceased person if such expenses have been incurred by
the parties for whose benefit the action is brought.
(2aa) In assessing
damages under this section in any action based on a death occurring after the
passing of the Wrongs Act Amendment Act 1956 there shall not be taken
into account—
(a) any
sum paid or payable on the death of the deceased under any contract of
assurance or insurance, whether made before or after the passing of the said
Act;
(b) any
sum paid or payable consequent on the death of the deceased person as a
gratuity to any person for whose benefit the action is brought;
(c) any
superannuation payments or benefits consequent upon the death of the deceased
person;
(d) any
sum paid or payable consequent upon the death of the deceased person under any
contributory medical hospital death or funeral benefit scheme;
(e) any
sum paid or payable as a social service benefit or pension by the Governments
of the Commonwealth of Australia, or the United Kingdom, or the State of South
Australia to or in respect of any person for whose benefit the action is
brought;
(f) any
sum recovered or recoverable for the benefit of the estate of the deceased
under section 3(2) of the Survival of Causes of Action Act 1940
(which permits the recovery of damages for certain kinds of non-economic loss
where the deceased dies of a dust-related condition).
(3) The amount so
recovered, after deducting the costs not recovered from the defendant, shall
be divided amongst the before-mentioned parties in such shares as the court
finds and directs.
(4) Where a deceased
person is survived by a spouse and a domestic partner, the action shall,
subject to this section, be brought for the benefit of both.
(5) An action need not
be brought under this section for the benefit of a person who has, by notice
in writing served upon the executor or administrator of the deceased,
renounced the benefit of this section.
(6) Where the court
considers it appropriate that any person for whose benefit an action lies
under this section should present an independent claim for the benefit of an
action under this section, it may permit or require that person to appear or
be represented in the proceedings in all respects as if he were a separate
party to the proceedings.
(7) No action lies
against the executor or administrator for failing to bring an action for the
benefit of a domestic partner if he brings the action without notice of the
claim of the domestic partner under this section, but the interest of any such
domestic partner in the action shall be recognised by the court if application
for recognition is made to the court before the proceedings are finally
determined.