Partridge v Chick [1951] HCA 67

v Sutton 52 SASR 576

84 C.L.R.]

OF AUSTRALIA.

{HIGH COURT OF AUSTRALIA.]

PARTRIDGE. : : PLAINTIFF,

AND

CHICK . : . '5 : DEFENDANT,

ON APPEAL FROM THE

' 5 APPELLANT ;

. RESPONDENT.

SUPREME COURT OF

VICTORIA.

Tort—Negligence—Fatal accident—Death of wrongdoer before that of injured person —Action against estate of wrongdoer—Administration and Probate Act 1928 (No. 3632) (Vict.), s. 25* Survival of Actions Act 1942 (No. 4918) (Vict.), a. 2*—Wrongs Act 1928 (No. 3807) (Vict.), #8. 15, 16.*

Where the death of A is caused by the wrongful act, neglect or default of B which is such as would (if death had not ensued) haveentitled A to maintain an action and recover damages in respect thereof and B dies before A, the effect of the Administration and Probate Act 1928 (Vict.), s. 25 (1), (6) (as enacted by the Survival of Actions Act 1942 (Vict.), s. 2), is that an action will lie under s. 15 of the Wrongs Act 1928 (Vict.) for the recovery from the estate of B of damages in respect of the death of A.

Decision of the Supreme Court of Victoria (Lowe A.C.J.) reversed.

* The Administration and Probate Act 1928 (Vict.), s. 25, is amended by the Survival of Actions Act 1942 (Vict.), s. 2. The amendment consists in the substitution for the former sub-ss. (1), (2), (5)-(7), of 8. 25 of the following provisions: "(1) Subject to the pro- visions of this section, on the death of any person after the commencement of the Survival of Actions Act 1942, 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 sub-sec- tion shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under

Part IV. of the Marriage Act 1928 for damages on the ground of adultery. (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; (6) in the case of a breach of promise of marriage shall be limited to such damage (if any) to the estate of that person as flows from the breach of the 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—(i) shall be calculated with- out reference to any loss or gain to his estate consequent on his death, except: