Wa s28lb damage must be permanent see also m lombard

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WA s28LB – Damage must be permanent. See also: M Lombard & M McGarvie, ‘Victoria’s Personal Injury Reforms’ (2003) 77(11) Law Institute Journal 58 (b) Wrongful Death & Survival of Actions Wrongs Act 1958 (Vic) Part III Administration and Probate Act 1958 (Vic) s 29 Wrongful death – P has died. CL requires the P to bring the action. Two possible causes of action can be used: 1. Wrongful death action (WA s16 – 22) Dependants of a person killed by D’s negligence can recover for any financial loss they suffer because of the death D’s negligence must have caused the deceased’s death WA s16 – The dependants can only claim if the P would have been able to claim had they been alive. The dependants must also show that they had suffered financial loss because of the death. How? They must show that they where in fact dependant. (i.e single income household, other members can recover, they cannot recover for grief or distress). In limited circumstances gratuitous care (eg: Deceased had been looking after a sick parent, if the parent can show free care then the parent can claim) can be claimed. 2. Survival o f actions Legislation , Administration and Probate Act 1958 (Vic) s 29 Any cause of action the deceased had at the time of her death is vested in her estate. The compensation recoverable will generally be less for estates that living persons. If D’s negligence caused the death : can only recover pecuniary losses suffered by the deceased between the injury and the death. 47
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If D’s negligence is independent of the death : can also recover for non-pecuniary harm suffered by the deceased before her death. Differences between actions In wrongful death the dependants bring the action. In survival of action the estate brings the action The losses suffered under wrongful death are for losses after death. The losses under survival of action are for losses before death. Administration and Probate Act 1958 (Vic) s 29(5) – Specifically allows action to be brought for both wrongful death and survival of actions. 48
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