Queensland Consolidated Acts

SUCCESSION ACT 1981 - SECT 66

66 Survival of actions

(1) Subject to the provisions of this section and with the exception of causes of action for defamation or seduction, on the death of any person after the 15 October 1940 all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate.

(2) Where a cause of action survives pursuant to subsection (1) for the benefit of the estate of a deceased person, the damages recoverable in any action brought—

(a) shall not include damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life; and

(b) shall not include exemplary damages; and

(c) in the case of a breach of promise to marry—shall be limited to damages in respect of such damages as flow from the breach of promise to marry; and

(d) where the death has been caused by the act or omission which gives rise to the cause of action—shall be calculated without reference to—

(i) loss or gain to the estate consequent upon the death save that a sum in respect of funeral expenses may be included; or

(ii) future probable earnings of the deceased had the deceased survived.

(2A) Despite subsection (2) (a) , damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life, may be recovered if—

(a) the cause of action related to personal injury resulting from a dust-related condition; and

(b) the deceased person commenced a proceeding in relation to the cause of action before the deceased person died; and

(c) the deceased person died as a result of the dust-related condition or the dust-related condition was a contributing factor to the deceased person’s death.

(2B) To remove any doubt, it is declared that personal injury resulting from a dust-related condition does not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

(3) 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 section, to have been subsisting against that person before his or her death such cause of action in respect of that act or omission as would have subsisted if that person had died after the damage was suffered.

(4) The rights conferred by this section 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 Civil Proceedings Act 2011 , part 10 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under those Acts as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1) .

(5) Nothing in this section enables any proceedings to be taken which had ceased to be maintainable before the commencement of this Act.

(6) An action which survives pursuant to subsection (1) against the estate of a deceased person may be brought against any beneficiary to whom any part of the estate has been distributed as well as against the personal representatives.

(7) Where an action is brought against a beneficiary to whom a part of the estate has been distributed that beneficiary is entitled to contribution from any beneficiary to whom a distribution has been made, being a beneficiary ranking in equal degree with himself or herself for the payment of the debts of the deceased, and to an indemnity from any beneficiary to whom a distribution has been made, being a beneficiary ranking in lower degree than himself or herself for the payment of the debts of the deceased, and the beneficiary may join any such beneficiary as a party to the action brought against him or her.

(8) Where an action is brought against a beneficiary (including a beneficiary who has been joined as aforesaid) whether in respect of an action which has survived against the estate or for contribution or indemnity, the beneficiary may plead equitable defences and if the beneficiary has received the distribution made to the beneficiary in good faith and has so altered the beneficiary’s position in reliance on the propriety of the distribution that, in the opinion of the court, it would be inequitable to enforce the action, the court may make such order as it thinks fit.

(9) In no case may a judgment against a beneficiary exceed the amount of the distribution made to the beneficiary.

(10) In this section—

"dust-related condition" see the Civil Liability Act 2003 , schedule 2 .

"personal injury" includes disease.