5. Discount rate applicable to damages awarded for future loss 6
Law Reform (Miscellaneous Provisions) Act 1941
An Act to amend and re‑state the law relating to the legal capacity of spouses; and to amend the law relating to proceedings against, and contributions between, tort‑feasors; and to amend the law as to the effect of death in relation to causes of action.
[Long title amended: No. 28 of 2003 s. 116(2); No. 8 of 2009 s. 84(2).]
1. Short title and commencement
This Act may be cited as the Law Reform (Miscellaneous Provisions) Act 1941 and shall come into operation on a day to be fixed by proclamation 1.
2. Doctrine of unity of spouses abolished
The common law doctrine of unity of spouses is abolished.
(1) A married person has a legal personality that is independent, separate and distinct from the legal personality of the person’s spouse.
(2) A married person has the same legal capacity that the person would have if the person were unmarried.
(3) This section applies to a married person whether the person married before or after the commencement of this section.
[Section 3 inserted: No. 28 of 2003 s. 116(3).]
4. Effect of death on certain causes of action
(1) Subject to the provisions of this section and the Limitation Act 2005, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other.
(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person —
(a) shall not include any exemplary damages;
(b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry;
(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;
(d) shall not, unless because of subsection (2a) this paragraph does not apply, include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life;
(e) shall not include any damages for the loss of the capacity of that person to earn, or for the loss of future probable earnings of that person, during such time after his death as he would have survived but for the act or omission which gives rise to the cause of action.
(2a) Subsection (2)(d) does not apply where —
(a) the death of the person occurs after the day on which the Law Reform (Miscellaneous Provisions (Asbestos Diseases)) Act 2002comes into operation 1;
(b) the death results from a latent injury that is attributable to the inhalation of asbestos which has been caused by the act or omission giving rise to the cause of action; and
(c) proceedings in respect to the cause of action had been instituted by that person before his or her death and were pending at the time of death.
(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.
(5) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Imperial Act 9th and 10th Victoria, Chapter 93 (adopted in Western Australia by the Act 12th Victoria No. 21), as amended by the Act No. 37 of 1900 2, and so much of this Act as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).
[Section 4 amended: No. 80 of 1982 s. 2; No. 84 of 1983 s. 11; No. 1 of 2002 s. 3; No. 20 of 2005 s. 15(1)‑(3); No. 8 of 2009 s. 84(3).]
5. Discount rate applicable to damages awarded for future loss
(1) Where an award of damages that relates to personal injury or the death of a person is to include compensation, awarded as a lump sum, in respect of damage for future loss that is referable to —