Part 1 Survival of causes of action after death

3 Effect of death on certain causes of action

(1)

Subject to the provisions of this Part, on the death of any person after the passing 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 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)
[Repealed]

(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 include any damages for the loss of earnings of the person relating to the period when, but for the death of the person, he or she would have been likely to receive earnings from his or her employment or other occupation.

(3)

No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this Part has survived against the estate of a deceased person, unless either—

(a)

proceedings against him in respect of that cause of action were pending at the date of his death; or

(b)

the cause of action arose not earlier than 2 years before his death and proceedings are taken in respect thereof not later than 12 months after his personal representative took out representation:

provided that no such proceedings shall be maintainable unless notice in writing giving reasonable information of the circumstances upon which the proceedings will be based and the name and address of the prospective plaintiff and of his solicitor or agent (if any) in the matter is given by the prospective plaintiff to the personal representative of the deceased person as soon as practicable after the personal representative took out representation.

(3A)

Notwithstanding anything in subsection (3), application may be made to the court, after notice to the personal representative, for leave to bring the proceedings at any time before the expiration of 6 years after the start date of the claim’s primary period (as specified in section 11(1) of, and adjusted in accordance with all relevant exceptions and modifications (if any) set out in, the Limitation Act 2010), whether or not notice has been given to the personal representative under subsection (3); and the court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the failure to give the notice or the delay in bringing the proceedings, as the case may be, was occasioned by mistake or by any other reasonable cause or that the personal representative was not materially prejudiced in his defence or otherwise by the failure or delay. No distribution of any part of the estate of the deceased made before the date of the giving of the notice of the intended application shall be disturbed by reason of the application or of an order made thereon.

(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 Part, 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 Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred by the Deaths by Accidents Compensation Act 1908, and so much of this Part as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under that Act.

(6)

[Repealed]

(7)

No contract of insurance entered into under the Motor-vehicles Insurance (Third-party Risks) Act 1928 in respect of any period before 1 June 1937 shall, notwithstanding anything to the contrary in that Act, be deemed to indemnify the insured—

(a)

against liability to pay damages in respect of any pain or suffering caused to any person by reason of any act or omission that has caused his death:

(b)

against liability to pay damages in respect of any cause of action which by virtue of this Part has survived for the benefit of the estate of a deceased person unless proceedings in respect of that cause of action were pending at the date of his death or proceedings are taken in respect of the cause of action not later than 12 months after his personal representative took out representation.

(8)

This section is subject to section 5 of the Accident Compensation Act 1972.

Compare: 24 & 25 Geo V c 41 s 1

Section 3(1) proviso: replaced, on 3 October 1975, by section 6(2) of the Domestic Actions Act 1975 (1975 No 53).

Section 3(2)(b): repealed, on 3 October 1975, by section 6(3) of the Domestic Actions Act 1975 (1975 No 53).

Section 3(2)(d): inserted, on 2 September 1996, by section 2(1) of the Law Reform Amendment Act 1996 (1996 No 130).

Section 3(3)(b): amended, on 1 January 1952, by section 35(2) of the Limitation Act 1950 (1950 No 65).

Section 3(3)(b) proviso: inserted, on 26 October 1955, by section 2(1) of the Law Reform Amendment Act 1955 (1955 No 73).

Section 3(3A): inserted, on 26 October 1955, by section 2(2) of the Law Reform Amendment Act 1955 (1955 No 73).

Section 3(3A): amended, on 1 January 2011, by section 58 of the Limitation Act 2010 (2010 No 110).

Section 3(6): repealed, on 1 January 1971, by section 171(1) of the Insolvency Act 1967 (1967 No 54).

Section 3(8): inserted, on 1 April 1974, by section 184 of the Accident Compensation Act 1972 (1972 No 43).