Subversion Down-Under: Innovation, Ambition and the Introduction of Survival of Causes of Action Legislation in South Australia and Victoria

ABSTRACT

For much of the twentieth century, the standard characterization of the relationship between the English common law metropole and the Dominion periphery has been one of the subservience and deference of the latter to the former. While the relationship was hierarchical, such characterizations undersell the innovation and ambition that the periphery, working within imperial legal constraints, could bring to the shared common law of the empire. This article considers the introduction of survival of actions legislation in two Australian jurisdictions, South Australia and Victoria, in the early 1940s. While based on the antecedent English legislation, both jurisdictions toyed with – and in South Australia’s case delivered – a much wider reform than took place in England. Rather than being mechanical recipients of law crafted in the metropole, Australian jurisdictions were well able to decide whether the English model was the best reform for their common law.

KEYWORDS:

• Tort
• death
• legal history
• survival of actions
• Lord Campbell's Act

I. Introduction

The introduction of English survival of actions legislation, originally passed by the Westminster Parliament in 1934,¹ into Australian jurisdictions has received little historical analysis. To the extent the question has been considered at all, it has been seen as a simple case of the incorporation of an English statute into those jurisdictions: at the end of the process, England and the Australian jurisdictions had survival of causes of action legislation in largely the same form.² On deeper analysis, however, it turns out that this is only a half truth. The interpretation of the English legislation following its enactment made survival of causes of action legislation the most controversial tort issue of the 1930s in England. By the time Australian jurisdictions came to consider the issue, it was not simply a question of uncontroversially enacting the English antecedent but required consideration of wider questions about the extent to which compensation for death should be available. If, as Mitchell suggests, the reform of the actio personalis rule was seen in England as a reform primarily for the lawyers,³ in Australian jurisdictions it was very much a reform for the politicians.

I have elsewhere analysed the intense political debates around incorporating the 1934 Act in Queensland and New South Wales (the first and last states to introduce a version of the 1934 Act).⁴ In both of those jurisdictions, the proposal was that the English legislation should be implemented in toto and the debates were over the extent to which, if at all, an Australian state should depart from the English legislative precedent. Although Queensland adopted the 1934 Act as is, and New South Wales departed from it in an important way (to be noted below), in no sense did the difference in approach turn on the extent of obeisance to law originating from the metropole. As I have argued elsewhere, Australian lawyers of the twentieth century saw the common law as their own, a common resource of subjecthood and Empire.⁵ While the desire for unity of the common law among the constituent members of the Empire was an important cultural constraint, legislatures (in particular) of the Australian jurisdictions had considerable freedom to choose what they wanted.⁶ So while the debates in the Queensland and New South Wales legislatures were about whether to adopt the English legislation, the substance was whether that law was suitable for them. To that question the source of the legislation was only one, if an important, consideration.

This article is about the introduction of the 1934 Act in two other Australian jurisdictions: South Australia and Victoria. Unlike in Queensland and New South Wales, in both of these jurisdictions it was largely accepted that the English legislation as interpreted meant that it could not simply be copied lock stock and barrel into those jurisdictions. At first glance, concentrating on the legislative solutions that were adopted (slightly different for each jurisdiction) to the English problem masks the more profound challenges to the existing rules that were debated as part of the implementation process. In South Australia, this resulted in radical legislative change outside of the survival of actions legislation. In Victoria, the prospect of a root-and-branch reform of the law relating to compensation for death was momentarily raised before serendipity stepped in and a much more limited reform was enacted. But the implementation story of these jurisdictions show just how much innovation and deviation was contemplated in these jurisdictions (and, in South Australia’s case, delivered).

II. The English Problem

At common law, the death of either party to a personal action extinguished the action (actio personalis moritur cum persona). By the first part of the twentieth century, the rule was largely seen as anomalous. There were many exceptions to the rule – it did not apply to actions involving personal and real property or to actions on a contract – and its operation in the new world of compulsory third party liability insurance relating to the use of motor vehicles defeated the purpose of the legislation.⁷ The rule was the first topic the newly-created English Law Revision Committee was asked to consider and was the subject of its first interim report. The Committee recommended that the general application of the rule should be reversed and that the standard position be that, other than for specified actions, causes of action existing for or against the deceased at the date of the death should survive for the benefit of or against the deceased’s estate.⁸

Paul Mitchell has explored the relationship between the Interim Report, members of the Law Revision Committee, and the Parliamentary Draftsman, in drafting the 1934 Act and it is not necessary to repeat that here.⁹ But there were a number of drafting choices that were ultimately made in the 1934 Act that should be highlighted as they played a role in the future Australian discussions of the legislation. The first is that the 1934 Act dealt with both causes of action surviving for the benefit of, and against, the estate of a deceased person. This was broadly consistent with the Interim Report which, while recognising the pressing concern with actions surviving against the estate in the motor accident context, pointed out other anomalies that allowing an action to survive for the benefit of the estate would solve. By choosing to deal with both issues at the one time, however, a fundamental difference between the two cases was minimized: what to do about recoverable damages? This was largely a non-issue for actions surviving against the estate of the deceased. Here the living plaintiff would receive what any other living plaintiff would receive suing a living defendant. But the drafters of the legislation were aware that this approach could not apply mutatis mutandis for actions by the deceased’s estate. The first issue was what to do with benefits and losses that accrued to the estate because of the death where the death was the result of the defendant’s tortious conduct. The somewhat bland conclusion in the 1934 Act – that, apart from funeral expenses, any loss or gain to his estate consequent on his death was to be ignored – masked some profoundly difficult questions that had troubled the drafters.

Of immediate concern was the issue of what, if anything, to do about allowing recovery for loss of earning capacity in the ‘lost years’ – the years that the deceased would have lived but for the tort. As Mitchell notes, the drafters disagreed amongst themselves over how to handle the issue and in the end effectively fudged it.¹⁰ Only after it became clear, forty years later, in Pickett v British Rail Engineering Ltd,¹¹ that a living plaintiff could claim for loss of earnings during the lost years was the matter raised expressly in the context of survival of action claims, and once it was held that this head of damages survived for the benefit of the estate, legislation very quickly was passed to preclude it.¹² As Lord Wilberforce had justified the result in Pickett in part on the basis that these were funds that the plaintiff would have been able to spend on her dependants, it was immediately clear why this was unacceptable for estate claims where the death of the deceased would also give rise to a claim for dependants under Lord Campbell’s Act legislation for what might arguably be the same loss. This was especially problematic where the beneficiaries of the estate were not the dependants: the defendant might be liable for the same loss twice. While the High Court of Australia recognized the lost years claim fifteen years before the House of Lords,¹³ it was not until the year after Gammell that the High Court of Australia was asked to consider the same issue and it reached the same conclusion.¹⁴ As in England,¹⁵ reforming legislation was swiftly passed to exclude this head of damages from estate claims.¹⁶

The ‘lost years’ issue reflected a wider challenge for the drafters of the 1934 Act: what to do about losses that arose directly out of the death itself. On one level, the answer was simple. Since 1808, death was not actionable at common law, either by the deceased’s representatives or by anyone adversely affected by it.¹⁷ The statutory cause of action introduced by Lord Campbell’s Act of 1846¹⁸ allowed a claim, later judicially held to be restricted to pecuniary losses,¹⁹ to a limited class of dependants. Concerns over allowing a ‘loss of earnings during the lost years’ claim to the estate, and the subsequent problem of overlapping claims to which that gave rise, influenced the drafting of the final version of the 1934 Act (even if only to fudge the issue). But what other possibilities for overlap were there?

One possible area for concern related to non-pecuniary losses claimed by the estate. The Interim Report had recognized that different considerations applied to the estate claim where death resulted from the tort and had recommended reforms to Lord Campbell’s Act to overcome any difficulties of the actio personalis rule. Political worries (including extending a Lord Campbell’s Act claim to employees for loss caused by the death of their employer!) stopped the drafters from adopting this model,²⁰ but it was also clear to the Committee that the estate claim could not simply be seen as a mirror image of a claim by a living plaintiff. The first draft of the 1934 legislation excluded ‘vindictive damages’ and the exclusion of exemplary damages in the 1934 Act based on this was, largely uncontroversially, included in the legislation of all Australian jurisdictions.²¹ More curious was the initial exclusion of ‘any sum in respect of the mental or bodily suffering of that person before his death’. Mitchell found no specific discussion relating to the inclusion of this clause nor any on its later omission. Perhaps such damages were thought to be personal to the plaintiff and it was inappropriate for the beneficiaries of the estate to take the benefit of them.²² Whatever motivated the drafters, it was no doubt thought that it was a relatively minor issue because it was the reimbursement of economic losses to the estate that was at the heart of the reform and awards of non-pecuniary loss would be moderate by comparison.²³

It must be doubted whether the drafters of the 1934 legislation saw the next step. At the end of the year, in Flint v Lovell,²⁴ a run-of-the-mill personal injury action, the trial judge awarded the 70-year-old plaintiff an amount of £4000 for non-pecuniary loss, specifically stating that his choice of amount reflected the fact that the plaintiff’s life had been shortened from ‘a number of years’ to probably less than one.²⁵ The amount of damages for non-pecuniary loss, including the component relating to the shortening of the plaintiff’s life, was upheld by majority in the Court of Appeal. But the real controversy arose two years later when, in Rose v Ford,²⁶ the House of Lords unanimously upheld the majority judgment in Flint v Lovell. In recognising a head of damages comprising loss of expectation of life, the House of Lords affirmed that this award was non-pecuniary, was assessed objectively and not subjectively, and that, together with the more conventional non-pecuniary awards for pain and suffering and loss of amenity, it survived for the benefit of the estate under the 1934 Act.

It is hard to overstate just how significant this decision was seen as by contemporaries. The author of the ‘The Articled Clerk’ in the Law Journal in July 1939 wrote that ‘Rose v. Ford will go down to history as one of the great landmarks in case law, comparable with Donoghue v. Stevenson (1932 A.C. 562), the “snail in the bottle” case, or Rylands v. Fletcher (1868, L.R. 3 H.L. 330), in the law of nuisance’.²⁷ It is not difficult to see why. Shortly after the decision of the House of Lords in Rose v Ford, it was recognized that, even if the death of the deceased was effectively instantaneous, the deceased would still have had an action before death that could survive for the benefit of the estate.²⁸ In such cases, the only damages recoverable were for loss of expectation of life (there being no claim, as then understood, for any pecuniary losses and also no pain and suffering or loss of amenity award as the death was the immediate result of the tort). As English law had not recognized causing death as an actionable wrong, there was a strong case for saying the estate claim for non-pecuniary loss of expectation of life was at least a functional equivalent. As The Economist pithily put it in December 1938: ‘Under the Law Reform Act as interpreted by the House of Lords in Rose v Ford, a dead person’s representatives can recover the damages which he would have claimed, if he had been alive, for the loss he suffers through actually being dead. The logic is obscure, but the law is clear’.²⁹ It was certainly clear enough for third party liability insurers who maintained a chorus of criticism from the time Rose v Ford was decided.³⁰ Apart from the imposition of an unanticipated liability, quantum for claims for loss of expectation of life were impossible to consistently assess, and between 1937 and 1940 there was considerable variety between (primarily) jury awards for this head of damage.³¹ It was also not apparent how this could be remedied: what instructions could a jury be given to assist in the calculation?³²

Whatever the merits of these criticisms, it was not quite so simple, in theory or in practice, to transplant these critiques from England to the Australian jurisdictions. This was not, however, because Australian courts rejected loss of expectation of life as a head of damages per se. While the legitimacy of the loss of expectation of life head of damages recognized in Flint v Lovell and Rose v Ford was not considered in a reported Australian decision before the introduction of survival of actions legislation, newspaper reports of trials in South Australia, New South Wales and Victoria suggest there was no difficulty with this head of damages being claimed.³³ The amounts claimed could be considerable; in Fisher v Wheelahan, a women in her mid-twenties claimed for £10000, including damages for loss of expectation of life, and her counsel asked the jury to award the ‘heaviest damages ever given in the County Court in a motor accident claim’.³⁴ But what was different was that the Australian experience of abrogation of the actio personalis rule differed from that in England.

III. Actio Personalis in Australia

While the 1934 Act was clearly a major impetus for reform of the actio personalis rule, a number of Australian jurisdictions had made or attempted to make inroads into it prior to the English legislation. New South Wales had abrogated the rule in the context of Lord Campbell’s Act claims in 1928.³⁵ The New South Wales legislation was the model for a provision in Victorian lawyer and legislative reformer Maurice Blackburn’s Wrongs Bill of 1931.³⁶ While the bill covered a number of controversial areas including contribution between tortfeasors, abrogation of the contributory negligence defence and overturning Victorian Railway Commissioners v Coultas, the actio personalis provision was one of the less contentious albeit it did not receive universal acclamation.³⁷ The bill was sent to the generally moribund Statute Law Revision Committee of the Victorian Parliament which, with uncharacteristic initiative, forwarded it to the Victorian judges for comment.³⁸ The Judges’ Report, as it was known, proved more hostile. The judges did not like dealing with survivorship piecemeal for Lord Campbell’s Act claims. More broadly, they recognized that hard cases could be found whichever rule was adopted and plumbed for the status quo:

The view taken for some hundreds of years is that private wrongs and wrongs like public crimes should be buried with the offender. It is compensation from him that the law provides and not (perhaps after a long lapse of time) from his beneficiaries. The clause is not recommended.³⁹

Accordingly, when Blackburn reintroduced the Wrongs Bill the following year it was shorn of the actio personalis clause and the attempt at reform was abandoned. This was despite Blackburn’s initial suggestion receiving strong support from the Law Institute of Victoria, the leading professional body for lawyers in the state.⁴⁰

When the 1934 Act was passed, there was considerable interest in passing it in Australian jurisdictions. In New South Wales, instructions were given to the Parliamentary Draftsman to prepare legislation in both 1935 and 1937 but nothing seems to have come of this. In South Australia there were also suggestions that the English legislation should be adopted. In April 1936, the Council of the Law Society of South Australia wrote to the Attorney General recommending the introduction of the legislation in that jurisdiction. But there was also a reference to the difficulty raised by the Court of Appeal decision in Rose v Ford and it suggested that if legislation was passed ‘a declaratory provision should be included to overcome this difficulty’.⁴¹ While this was ambiguous as to what should be declared, when a similar request was made two-and-a-half years later, it was clear what was meant: the legislation should be adopted with limitations:

1. That damages in actions brought on behalf of the deceased should be limited to the economic loss or the expectation of such loss to the estate of the deceased;

2. That actions for defamation should not be made an exception as in the English Act, but that they should survive for the benefit of and against the estate of the deceased person.⁴²

While including the expectation of economic loss to the estate as within the recoverable losses hinted – perhaps unintentionally – at the ‘lost years’ problem discussed above,⁴³ the choice of language was clearly an attempt to exclude the estate’s claim for loss of expectation of life recognized by the House of Lords in Rose v Ford. And in Victoria, it was reported in July 1939 in the Law Institute Journal that the Statute Law Revision Committee of the Law Institute of Victoria had recommended that the English legislation implementing the Law Revision Committee Report should be adopted but, somewhat ambiguously, only after ‘due consideration of all practical difficulties that appear from subsequent litigation in England’.⁴⁴ Over two years later, when responding to criticisms during debate on the Statute Law Revision Bill that the Statute Law Revision Committee was not called to discuss these measures, the Attorney General was able to note that the government had considered some of the suggestions put to them for new legislation ‘particularly the proposed bill as to survival of actions’.⁴⁵

Another reason the English legislation was not introduced in Australian jurisdictions before 1940 was that the immediate problem that prompted that legislation in England had been solved in a piecemeal fashion in a number of Australian jurisdictions. While the early calls of the Law Society of South Australia to pass the 1934 Act in that jurisdiction were ignored, South Australia was the first Australian jurisdiction to provide for a form of survival of actions in motor vehicle accidents. The Road Traffic Act Amendment Act 1936, which introduced compulsory third-party liability insurance for the use of motor vehicles, amended the Road Traffic Act 1934 by adding s.70D(2) which stated:

Where an insured person has caused death or bodily injury by negligence in the use of a motor vehicle specified in a policy of insurance under this Part but that insured person is dead or cannot be served with process, any person who could have obtained a judgment in respect of the death or bodily injury so caused against that insured person if he were living or if he had been served with process may recover by action against the insurer the amount of the judgment which he could have so recovered against the insured person⁴⁶

The South Australian legislation formed the basis for discussions about a similar solution in Victoria and New South Wales. In correspondence between the parliamentary draftsmen of those states in April 1939, the assistant parliamentary draftsman in NSW, F.P. McRae, noted that the draft New South Wales legislation adopted the provisions of the South Australian legislation which ‘appear to be a rather neat solution of the bankruptcy difficulty and the “actio personalis” trouble’.⁴⁷ In a draft of similar Victorian legislation, a handwritten annotation to the equivalent of s.70D observed that ‘this alters law in effect as to “actio personalis moritur cum persona” and then “English Law Reform”’.⁴⁸ Clearly the later reference shows the 1934 Act was part of the inspiration for the section but only in the broadest sense as the solution adopted did not have English ancestry. The provision was included in the Victorian legislation that was ultimately passed, the Motor Car (Third Party Insurance) Act 1939.⁴⁹ It took New South Wales a little longer but the same reform was made in its compulsory third party liability for motor vehicles legislation in 1942.⁵⁰

By this time, however, the landscape had changed. Australian jurisdictions, beginning with Queensland in September 1940, had begun to directly implement their own versions of the 1934 Act. It implemented the 1934 Act in full, without amendment. But when the next jurisdiction to pass a version of the 1934 Act did so – South Australia – the package of legislation was markedly different from the English precedent.

IV. South Australia – The Radical Reformers

Two years before the Queensland legislation, a private member’s bill was introduced by Hermann Homburg MP into the Legislative Council of South Australia allowing for the survival of actions for the benefit of the estate. As he described the bill, ‘It says that if A dies before action his death shall not prevent his legal representatives from making or continuing the same claim which A could have made in his lifetime’.⁵¹ Unlike the Queensland debate, where much of the Opposition defence of the proposal to exclude non-pecuniary losses from the estate claim was that Lord Campbell’s Act claims provided for dependants on the wrongful death of the deceased, Homburg pointed out that this legislation left gaps where there was no financial dependency: there was no claim for solatium, or for any special or general damages which a deceased could have claimed for if he lived.⁵² His bill would eliminate these gaps.

The leader of the governing Liberal-Country League in that chamber, the lawyer C.R. Cudmore, responded by noting, correctly, that the English legislation on which Homburg said he based the bill (the 1934 Act) dealt with both survival of actions for and against estates of deceased persons so there was a gap in the bill. With Calvinistic honesty, he stated that the exhortations from the Law Society of South Australia in 1936 to pass a bill of this nature had been noted by government but that at that time

the Crown Law Officers were very busy completing the consolidation of the Acts and producing that work which we all now know to be so useful, and it was felt that as the law was to be consolidated and repatriated it was a bad time to bring in anything new.⁵³

But the controversies over the recovery by the estate for damages for loss of expectation of life ‘have given everyone furiously to think whether the English law which is now recommended should be introduced here’.⁵⁴ Observing that the Law Society of South Australia had initially asked for the 1934 Act to be passed, he noted they had now changed their minds and thought there should be some limitation for recovery for expectation of life and the Society was considering what recommendation it should make to the government. Cudmore was also dubious about the exemption of defamation from the causes of action which survived. And returning to a common theme in these debates, he foresaw difficulties with the insurance companies ‘as to what their premiums will be for the compulsory insurance we have introduced here’. Cudmore suggested that the bill be referred to the Crown Law Officers and the Supreme Court judges.

The report of the Crown Solicitor was tabled in early September 1938.⁵⁵ It was unfavourable to the legislation as drafted, in part because of its limit only to actions surviving for the benefit of the estate but equally because it allowed for general damages, including loss of expectation of life, to survive. Pointing out that adequate provision was made for dependants under the South Australian Lord Campbell’s Act legislation, the Crown Solicitor opined: ‘I am unable to see the justice of imposing liabilities to benefit people who have actually suffered no financial loss, or who have gained financially as a result of the death’.⁵⁶ But amendments were recommended, including extending the bill’s coverage so actions survived against the estate as well as for its benefit, including for defamation, and excluding heads of damage for pain and suffering and loss of expectation of life. If this was done, ‘I would recommend that the Government should support it as a desirable amendment of the law’.⁵⁷ Despite some support to proceed on the limited basis that the amended bill apply only to motor vehicle accidents, it lapsed in the Parliamentary session. Homburg reintroduced it in the next session, in October 1939, but withdrew it two weeks later because his ‘highly controversial and technical’ bill was not appropriate ‘whilst questions of much greater moment are demanding the attention of members’.⁵⁸

While Homberg might have been reticent to proceed, significant reform was enacted through the Wrongs Act Amendment Act 1939. This included allowing dependants to claim for medical and funeral expenses relating to the wrongful death where incurred by the dependants,⁵⁹ the claim for medical expenses being a deliberate extension of the recommendations of the Law Revision Committee in 1934 which covered only funeral expenses. While not mentioned in the debate, the claim for medical expenses was closer to an expenses claim for the estate albeit it arose only where the dependants had suffered a loss.⁶⁰ Certainly the wider actio personalis question was on Cudmore’s mind when, in commenting on the bill, he said he was ‘rather surprised’ that provisions to deal with the issue on the lines he had suggested the previous year had not been included in the bill before the Council. While the government ‘was apparently in some doubt as to the wisdom’ of introducing such legislation, he hoped it would do so.

Despite the pressures of the war on parliamentary time, Cudmore’s wish was granted the following year.⁶¹ Initially planned in July 1940 to be included as an amendment to the Administration and Probate Act 1919, the Survival of Causes of Actions Bill was introduced into the House of Assembly in early September. It provided for the survival of causes of action by and against the estate but defamation was excluded only for actions for the benefit of the estate; the estate of the deceased defamer was to remain liable.⁶² Pain and suffering, bodily or mental harm, or curtailment of expectation of life were excluded from the damages the estate could recover from the tortfeasor. In the second reading speech, the Attorney General defended the exclusion of the latter on the basis ‘it was not logical that living persons entitled to the estate of the deceased should derive large sums of money because of the bodily and mental suffering of the dead man’.⁶³ In response, another lawyer and former member of the Council of the Law Society of South Australia, Charles Abbott, suggested at the committee stage a radical amendment not previously seen in prior discussions of the issue. While agreeing that pain and suffering and bodily and mental injury should not be recoverable by the estate, he did not think that nothing should be received for loss of expectation of life by the estate in all cases. Abbott was concerned about the lack of recovery by parents of a minor who was killed in circumstances where no financial dependency could be proved. Using his experience and knowledge as a practitioner to provide examples of the problem, he observed that courts ‘had strained as hard as they can to find some dependency even on some quite young children who are not really contributing to the parental support’.⁶⁴ He proposed removing the prohibition on the claim for loss of expectation of life and adding: ‘Where a deceased person is under the age of sixteen years shall be the sum of £500’.⁶⁵

Abbott defended his proposal against the conventional attacks on the estate award for loss of expectation of life raised by the Attorney General. In particular, Abbott was scrupulously fair in pointing out the difficulties English judges and juries had in valuing the award. His figure of £500 was what he thought appropriate looking at the most recent English cases but ultimately his aim was to give a firm direction to the courts, leaving it to the legislature to increase or decrease the amount as appropriate. But one can have sympathy with the Attorney General’s comment that ‘the whole thing was fraught with considerable difficulties’.⁶⁶ The reality was that Abbott was trying to use the award to the estate to deal with the shortcoming that Lord Campbell’s Act legislation was held not to provide non-pecuniary awards to the dependants. While Abbott chose the age of 16 because of a statutory presumption that a child under that age could not provide for his/her own maintenance,⁶⁷ his amendment would also work in practice because, in effect, no-one under the age of sixteen could make a will so the parents would be the beneficiaries of any award made to the estate and, in the absence of other claims on the estate, would receive the full award.

A satisfactory compromise was reached through the fortuitous coincidence that legislation amending the Wrongs Act (where the South Australian Lord Campbell’s Act was located) was coming before the Parliament. When the Survival of Causes of Action Bill came back to the House of Assembly, Abbott withdrew the amendment because the Wrongs Act had been suitably amended to deal with his concerns. When the Survival of Causes of Action Bill reached the Council, Cudmore pointedly cited Australian academic criticism of loss of expectation of life damages generally⁶⁸ and uncharitably called the Abbott-inspired amendment to the Wrongs Act a ‘sop’ for eliminating the expectation of life claim for the estate.⁶⁹ Even discounting for self-congratulation, Abbott’s own summary of how his proposal passed into law seems fairer: when the Wrongs Act Amendment Bill came back before the House of Assembly, he took ‘some credit’ for convincing the Attorney General to introduce the measure. He had overcome initial opposition from the Law Society and others, but by conferring with the Council, other members of the profession and the parliamentary draftsman, the amendment created ‘in a much more satisfactory way the reform in the law I endeavoured to introduce into the Survival of Causes of Action bill’. It was an ‘admirable addition to the law and one which this House should take some pride in having passed’.⁷⁰ What ended up on the statute book were provisions allowing a discretionary solatium of up to £300 to the parents of a deceased child, and of £500 to the surviving spouse for the death of their spouse, for the suffering caused by these deaths. These were payable on the same conditions that enlivened the dependants’ claim under Lord Campbell’s Act legislation. This was the first statutory claim for bereavement in the Anglo-Australian common law.

Unfortunately, no records survive to indicate where Abbott obtained inspiration for his idea. In the first case under the legislation to reach the High Court of Australia, in 1945, Sir Owen Dixon suggested it came from comments made by Cleland J in the South Australian Supreme Court decision of Matthew v Flood in 1939.⁷¹ Here Cleland J noted that the real items of damage – the gravity of injury preceding death, solatium for mental anguish and loss of society, or costs of mourning or medical or funeral expenses caused by the injury – were disregarded ‘unless and until the Legislature has altered the position if it should think fit to do so’.⁷² This may be correct but the debates over allowing the estate to claim for loss of expectation of life for deceased young children had also prompted contemporary discussion over the inadequacy of the law’s response to this situation and encouraged other attempts to find ways of providing a solatium to parents for the wrongful death of infants. The original writ in the famous case of Chester v Waverley Corporation, where a mother claimed in respect of the drowning of her seven-year-old son in a flooded trench in a suburban Sydney street, pleaded a loss of consortium claim for the boy’s mother as well as a claim for funeral expenses.⁷³ This claim was settled for the funeral costs and withdrawn (and a fresh action brought later for the mother’s psychiatric harm for which the case is now remembered).⁷⁴ Moreover, in an unreported judgment in an appeal from the Banco Court of the Supreme Court of New South Wales to the High Court of Australia in early 1939, Evatt J condemned the current state of Australian law dealing with the tortious death of children. In Corben v Commissioner for Railways (NSW), the eighteen-year-old deceased died when he fell through an open door of a suburban Sydney train as a result of the negligent driving of the train. In the Banco Court, Jordan CJ had observed that Lord Campbell’s Act legislation had not set up a system of Saxon wer-geld or blood money which, in his view, was the unfortunate result of the treatment of loss of expectation of life under the 1934 Act in England. He thought the consequences of that interpretation ‘extraordinary’.⁷⁵ In the High Court, Evatt J responded:

The only ‘extraordinary consequence’ in Shepherd v Hunter [an English case allowing the estate of a young child damages for loss of expectation of life] was that the personal representatives of the little child aged 3 were awarded the ridiculous sum of £90 in respect of the child’s loss of expectation of life for which the wrongdoer is now liable to pay compensation … But I gather the Chief Justice means that the result is ‘unfortunate’ because nothing at all should be awarded in such a case and the notorious inadequacy of Lord Campbell’s Act in relation to claims based upon the death of children as a result of the defendant’s negligence, is a very desirable thing. In my opinion, the English Act of 1934 has helped to remove a great scandal from the law and it is high time that Australian legislatures should address their minds to the question.⁷⁶

By making the legislative change to Lord Campbell’s Act legislation rather than allowing the estate claim for loss of expectation of life, another challenge was avoided. The 1934 Act and its Australian successors provided that the claim under the 1934 Act was in addition to, and not in derogation of, the claims of dependants under Lord Campbell’s Act legislation. But what of the situations where the beneficiaries of the estate and the dependants were the same? In Rose v Ford itself Lord Wright indicated that some sort of set-off between the claims would have to be made in such cases and he was able to clarify his views in Davies v Powell Duffryn Associated Colleries Ltd in 1942.⁷⁷ The House of Lords held that damages recovered under the 1934 Act by someone who was also a dependant under Lord Campbell’s Act were to be set off against recovery by that dependant under his or her Lord Campbell’s Act claim. If a potential claim under the 1934 Act could be brought subsequent to the Lord Campbell’s Act action, the quantum of damages in the latter claim required an evaluation of the amount that would be awarded under the 1934 Act if a claim was made and that amount was deducted from the damages awarded under the Lord Campbell’s Act claim. The reasoning was that, while the cause of action under Lord Campbell’s Act legislation was not affected by the presence of the 1934 Act claim, this did not mean that the quantum was unaffected.

Almost immediately after this case, it was argued that awards of solatium under the Wrongs Act Amendment Act 1940 should, in light of Davies v Powell Duffryn, also be deducted from awards under Lord’s Campbell’s Act legislation. In Gigney v Duffy,⁷⁸ Angas Parsons J rejected the argument as a matter of principle. Noting the existence of solatium in the law of Scotland,⁷⁹ he held that the solatium awarded under the Wrongs Act was for the benefit of the parents and the surviving wife or husband and was ‘distinct from damages known to English law’.⁸⁰ Two subsequent decisions made no deduction for solatium⁸¹ albeit Davies v Powell Duffryn does not appear to have been cited.⁸² When the issue was more formally considered by Richards J in Zoanetti v Public Trustee, he held that the different legislative context allowed for Davies v Powell Duffryn to be distinguished⁸³ and this approach was upheld on appeal to the High Court of Australia.⁸⁴ But Dixon J’s summary of the aim of the amendments is instructive:

They are inserted as additional sections of the same statute. The clear intention is to undo the exclusion of a solatium for the distress and suffering caused by the death and to give a further right to compensation in respect of that head of actual but intangible damage … Further, it is not true that the sum awarded as a solatium is a ‘benefit’ or ‘gain’ resulting from the death, within the meaning of the principles worked out under the provisions found in s.20(2) [of the South Australian Lord Campbell’s Act]. It is a reparation in respect of what the law now recognizes as a distinct loss or damage suffered by reason of the death.⁸⁵

While Dixon J’s judgments often demonstrate admirable clarity, there were additional reasons why he should have spoken so authoritatively on this issue. As an analysis of the introduction of the Victorian legislation shows, he had been thinking about wrongful death for some time.

A final observation on the South Australian debates surrounding the introduction of the legislation is the lack of weight given to the position reached in English law after Rose v Ford. Unlike in Queensland and New South Wales, it was largely assumed that that position was undesirable. Discussing Homburg’s 1938 Bill, after citing criticism of the post-Rose v Ford situation, Cudmore noted, simply, that these were the ‘defects’ which had arisen in England and that all the other states ‘had been doubtful about’ introducing that law to their jurisdictions.⁸⁶ By the time the Survival of Causes of Action Bill was before Parliament, Queensland had passed the 1934 Act in toto but that made no difference: English law was initially described as ‘unsatisfactory’ so that South Australia should in this connection ‘vary from the English law’⁸⁷ but, once Abbott’s amendment was being debated, as being in a ‘state of chaos’.⁸⁸ Clearly the contemporary English criticism played a major part, but that criticism was mirrored in Australia, and the final decision was framed as a considered decision on what was in the best interests of South Australia. As Abbott himself put it, ‘Sometimes we take the best from the English laws and try to improve on them’.⁸⁹

V. Victoria – What might have been … 

As noted above, there was a history in Victoria of advocating for the abolition of the actio personalis rule. As in South Australia, the solution to the specific motor vehicle accident problem pre-dated the general legislation so this delayed further movement and the Survival of Actions Bill was not introduced to the Victorian parliament until July 1942. In form, the Victorian legislation copied the South Australian legislation with one exception to be duly noted. Like South Australia, the fact that the 1934 Act, unamended, remained the law in England was largely ignored. This was despite the fact that, as was acknowledged by the Attorney General when introducing the bill, the House of Lords in Benham v Gambling, decided in December 1940, had largely settled, at least as a matter of practice, disquiet over the impact of Rose v Ford on awards under the 1934 Act.⁹⁰ Rather, the Attorney General drew on literature suggesting that the Law Revision Committee had not contemplated or intended that non-pecuniary loss should be recovered by the estate.⁹¹ The New Zealand precedent of amending the 1934 Act to exclude the estate claim for non-pecuniary loss was relied upon; it was said that the ‘New Zealand’ amendment on this point was included in the bill before the Legislative Assembly.⁹² The annotations to the South Australian and Victorian legislation both suggested that the inspiration for the amendment was the New Zealand legislation but, in fact, only South Australia directly copied it. The New Zealand legislation excluded recovery for non-pecuniary loss in all estate claims but the Victorian legislation read differently: it only applied where the death of the deceased was caused by the act or omission which gave rise to the cause of action. In the absence of archival records, it is impossible to know the reason for the change, but it is likely the views of Sir Owen Dixon, discussed below, were influential. Whatever the origin, its significance was appreciated when survival of actions legislation was debated in New South Wales two years later.⁹³

Perhaps the reason that this change avoided parliamentary scrutiny was that there was a greater, political, challenge that had to be navigated. The debate in the Legislative Assembly was characterized by a fractious interaction between the Attorney General and the leader of the opposition, John Cain. This was prompted by the former’s earlier defection from the Australian Labor Party (ALP) and subsequent re-election and appointment as Attorney General under Albert Dunstan’s Country Party minority government, a minority government that was supported by Cain’s Labor Party with the former coalition partner of the Country Party, the conservative United Australia Party, the formal opposition. The oddity of the situation was revealed when it was Cain who revealed that Sir Owen Dixon had drafted a bill to deal with both claims under Lord Campbell’s Act and survival of actions. Cain stated that the Labor party preferred Dixon’s bill to that introduced by the government:

It is clear that Sir Owen Dixon made a thorough examination of the matter in the interests of the community generally, and the Government should have presented his views and suggestions to Parliament.⁹⁴

In fact, the Victorian ALP had gone so far as to set up a committee to deal with the actio personalis question, including consideration of Dixon’s draft bill, and had decided to adopt it as the party’s preferred measure.⁹⁵ In the end, the ALP confined its objections to principle and supported the bill as an improvement on the existing common law. As reported by one member of the Legislative Assembly, Dixon had taken part in discussions over some of the previous bills to reform this area of the law and that he (Dixon) did not think the ‘other-way’ operation of the survival of actions legislation in England and Wales operated well for damages for the death of children and people without dependants. If amending legislation was to be introduced, Dixon thought it should be in the New Zealand rather than the English form.⁹⁶ As this was the form the bill largely took, it is understandable that the ALP supported it: as ALP Legislative Council member Archibald McDonald Fraser put it, despite some worries over denying the claim for loss of expectation of life, the bill ‘generally does put into oblivion’ the old doctrine ‘which came, it seems, from the time of St. Augustine’ and for that reason it had his support.⁹⁷

A copy of Dixon’s proposed bill has not survived in the records. However, from the parliamentary debates, and from an article Dixon later wrote on the subject where he discussed the proposed bill, it seems Dixon proposed formally separating the law which applied to causes of action by the estate from those against the estate as part of ‘more scientific’ reform of this area of the law; this separation was an ‘obvious step’. But Dixon equally thought that:

a reformer minded to reverse that rule has no ground for treating the question of the survival of wrongs causing death as governed by the same considerations as the survival of causes of action to which the deceased had become entitled, but which he had not enforced in his life time, his death occurring as an independent and unconnected event.⁹⁸

For Dixon the reason was clear. In the latter case the rights of action vested at death were ‘valuable rights of the deceased’ forming part of their assets or wealth and their delictual origin ‘is not a ground in logic or modern policy for depriving them of the transmissibility which is so important a characteristic of other choses in action’.⁹⁹ While Dixon recognized that injures resulting in death could be fitted into the same category ‘formally or dialectically’, every substantial consideration ‘removes it to another’. In such cases, it was wrongfully caused death that was the gist of the complaint and the death of a human being ‘cannot in reason be made a subject of compensation to his estate’. It did, however, produce a ‘profound effect’ upon the ‘circle of people with whom he lives and among whom he moves’. Thus the question

by which the law is really faced is whether survivors interested in his life should be compensated for the loss and injury they sustain from the wrongful act causing his death and, if so, in respect of what interests.¹⁰⁰

Dixon was scathing of the attempts reached by English law to address this question under the 1934 Act. The distinction between an impermissible claim for loss of life itself, and the permissible claim for loss of expectation of life as recognized in Flint v Lovell, ‘might defeat anyone’.¹⁰¹ For the 1934 Act claim, fantastic attempts to discover ‘some way of estimating the value to the dead man while living of his probable future existence’ were made, but after Flint v Lovell and Rose v Ford an escape from an indeprensus et irremeabilis error was possible only by a rescue, achieved by Benham v Gambling ‘softly and deftly but, it must be confessed, under cover of darkness’.¹⁰²

The ultimate problem for Dixon was, in effect, the use of square pegs to fill a round hole. The real issue was the sense of loss that was felt by relatives in the case of wrongful death. When relatives sought legal redress in such cases:

they are actuated by much more than a desire for gain. Men and women connected by ties of relationship or close association with a man or woman upon whom they depend for moral support, comfort and companionship almost uniformly regard the death of the latter by a wrongful act as a thing for which justice demands that they should have some redress.¹⁰³

For Dixon, the solution was to formally separate survival of actions for deceased plaintiffs and defendants, and, for the former, separate situations where the death resulted from the tort that survived for the benefit of the estate from situations where it did not. Where death resulted from the tort:

The leading provision of the reforming enactment should formulate the principle that when the death of a person is caused by an act or omission amounting to a civil wrong against him a person interested in the continuance of his life shall be entitled to compensation from the wrongdoer.¹⁰⁴

Dixon recognized that there was no reason of principle to limit the class of persons who should be eligible to claim but this should be done on (unstated) policy grounds. The class he proposed was wider than the list under contemporary Lord Campbell’s Act legislation. It included a husband, wife, child, parent, adopted child, a person in loco parentis to an adopted child, a step-child, a step-father, a step-mother, a grandparent, and a grandchild. Perhaps most radically, he also included a category of ‘dependant, a person who at the time of the death of the person dying was wholly or partially dependant upon him for his maintenance and support’.¹⁰⁵ To avoid doubt, he expressly noted that such a dependant did not need to be related to the deceased. He also thought that illegitimate relationships would ‘nowadays’ be recognized in such a reform: a giveaway, perhaps, that post-war mores had led Dixon to conclude that his earlier proposal needed to be broadened in this respect.

The most radical part of Dixon’s reform was the extension of the recoverable interest of dependants beyond pecuniary losses. ‘Interest in the continuance of the life’ was to have two elements. The first element was material interests (which consisted in the enjoyment of pecuniary benefits or material advantages having a value in money brought to an end by the death of the person dying or in a reasonable expectation of the enjoyment of such benefits or advantages in the future). The second was intangible interests (which consisted in the natural ties of relationship or close association and the moral comfort and companionship arising thereout).¹⁰⁶ As to valuation, Dixon thought that very broad language was sufficient: damages ‘shall be measured by reference to his interest therein and shall be a fair and just compensation in money for its destruction’.¹⁰⁷

The idea that a loss of dependency claim could encompass claims for non-pecuniary (intangible) loss was radical enough but to extend it to non-relatives was a seismic break from tradition. Equally interesting is that Dixon seems to have envisaged that claims for non-pecuniary loss arising out of the loss of natural ties, close association and companionship were different from claims for solatium. This is because Dixon separately considers the question whether claims for solatium should be allowed indicating that he saw it as separate from the claim for (broadly) loss of consortium. While the distinction had been drawn in some US jurisdictions, it was novel in the Anglo-Australian context.¹⁰⁸ Dixon thought that solatium claims should also be allowed to dependants but was clear that a decision had to be made: ‘But one thing the reformer should not do. He should not leave the question undecided. If he thinks a solatium should be included, he should say so expressly’.¹⁰⁹

If intangible losses to dependants were covered by re-thinking Lord Campbell’s Act claims, it was necessary that any suggestion that they could be recovered under the survival of actions legislation be excluded. To that end, Dixon suggested that such legislation should be framed to allow all causes of action vested in a deceased at death to survive (subject to any cause of action exception). Where the death was caused by the cause of action vested in the deceased at death, damages would be limited to funeral and burial expenses and the actual material loss suffered by the deceased before his death, calculated without reference to any gain or loss to his estate by reason of this death. But damages were not to include a solatium for pain, suffering, distress of mind or wounded feelings, or anything for loss of expectation of life. In effect, the Lord Campbell’s Act action subsumed any claim for non-pecuniary loss by the estate. There is a potential non-sequitur here – if material loss was recoverable between the date of injury and the date of death, there was no reason why non-pecuniary loss (at least for pain and suffering and loss of amenity) should not be. Perhaps Dixon thought that by giving a wide class of dependants a claim for their own non-pecuniary loss this sufficiently captured the compensation that was given by the estate’s claim for non-pecuniary loss. The real loser from this change would be the non-dependant beneficiary but, on Dixon’s reasoning, such a beneficiary ought to have been excluded from recovering anything for intangible losses.

Dixon was aware that his suggested reform would arouse the ‘traditional distrust’ of lawyers but explained his actions ‘by the not inconsiderable justification of the distrust that has been given to lawyers by the operation of the Law Reform (Miscellaneous Provisions) Act 1934’.¹¹⁰ By the time the article was published he was aware that his proposal had not been accepted in Victoria. When introducing the Survival of Actions Bill in the Legislative Assembly, the Attorney General noted that Dixon’s draft bill and its accompanying memorandum (very probably the basis for the later article) had been submitted to the Victorian Bar Committee for comments which, while suggesting amendment, generally agreed with the proposals. But the bill was given a much frostier reception by the parliamentary draftsman, who noted that many provisions were highly debatable and others needed further discussion and consideration. Here serendipity stepped in, because in April 1942, Dixon was appointed as Australian minister in Washington, where he spent the following two years. As the Attorney General noted:

Unfortunately, owing to his having undertaken other work of national importance, His Honour was unable to give the necessary time for further consideration of his proposals, some of which might fairly have been regarded as unorthodox. The Government, therefore, has decided to introduce the legislation on the lines of the English legislation, but to adopt such alterations as have been made in New Zealand to meet the Rose v. Ford line of cases to which I have referred.¹¹¹

The path ultimately taken by the Victorian government had the advantage of making Victorian law largely consistent with the law that had been adopted in the other states that had abolished the actio personalis rule. As Dixon’s 1948 article reveals, however, he had not changed his views. And while on one level his criticism and suggestions were contributions – not necessarily original – to an already crowded debate, the production of a draft bill took a considerable practical step towards the kind of wholesale reform recommended by the Law Revision Committee (if in a different form). Left to make the case, his reputation as a judge would have made him a powerful advocate albeit there were political limits as to how far a sitting High Court judge could involve himself in the political process of law reform when the measure in question attracted political opposition. But the fact that his bill attracted the support of the ALP as the preferred means of reform leaves the tantalizing possibility that a root-and-branch rethinking of compensation for wrongful death was prevented by Dixon’s disappearance from the local scene rather than a wholesale rejection of his ideas.

VI. Conclusion

The passing of survival of actions legislation in Australian jurisdictions reveals the complexity and nuance that characterized the relation between English private law and its reception in its diaspora legal communities as the twentieth century progressed. In South Australia and Victoria, English developments were simply the catalyst for reforms that went well beyond anything contemplated in the mother country. In Victoria, Sir Owen Dixon’s radical suggestion to recast the law relating to compensation for wrongful death did not make it to the statute book,¹¹² but the distinction he drew between survival of actions in cases where the wrong caused the death, and those where it did not, is the most likely source of the distinction which was made in the Victorian legislation.¹¹³ But if the Victorian version of the 1934 Act differed from its English antecedent in minor, if important, ways, the same could not be said about South Australia. Not only did its formal survival of actions legislation depart from the 1934 Act by omitting estate claims for non-pecuniary loss, the Abbott-inspired amendments to the Wrongs Act were the result of a fundamental rethinking about the scope of compensation for wrongful death. Serendipitously, perhaps, this change took place where it should have – by an amendment of South Australia’s Lord Campbell’s Act legislation – rather than in survival of actions legislation where a solatium was indirectly and imperfectly provided through the estate claim for non-pecuniary loss, in particular for loss of expectation of life. When English law finally caught up with the South Australian innovation, some forty years later, the same taxonomy was adopted.¹¹⁴

More broadly, a study of the introduction of the survival of actions legislation in South Australia and Victoria highlights the continuing tension between the rhetoric of a universal common law and the reality of its fragmentation when disseminated throughout the Empire. While the fragmentation should not be overstated – in most ways the Victorian and South Australian legislation did copy the 1934 Act – the extent of the dissonance should also be recognized. No doubt the English criticism of the position reached under Rose v Ford was important in encouraging Australian legislators to depart from it, but the justifications for the changes went beyond a simple recitation of these criticisms. In South Australia and Victoria, the arguments over the best survival of actions regime to introduce went in different directions, and beyond, those in England, illustrated most graphically by Sir Owen Dixon’s proposed reconstruction of the basis of compensation for wrongful death. Not too much should be read into the failure of the proponents of reform to spruik the distinctiveness of what they were suggesting. Rather, they saw themselves as working within the long tradition of incremental reform within the common law family of which they were proudly a part. Self-conscious assertions of legal independence were inconsistent with this tradition but this should not mask the reality that, as the South Australian and Victorian experience of introducing survival of actions legislation illustrates, Australian innovation and exceptionalism were a feature of Australian private law earlier than the formal statements of legal independence later in the twentieth century might suggest.¹¹⁵

Acknowledgements

The author would like to thank the staff of the State Library of South Australia (especially Tasha), State Records South Australia (especially Nick Miller and Kirsty Buchan), the Law Society of South Australia (especially Lorna Hartwell and Stephen Hodder), the Public Record Office Victoria (especially Matthew Parker), the University of Melbourne Archives (especially Sophie Garrett), and the Law Institute of Victoria (especially Josie Cox and Renata Mason). Thanks are also due to Peter Beacham (South Australian Attorney General’s Department), Carolyn Macvean (Parliament of Victoria), Shane Hilton (Parliament of South Australia), and Dr John Weste (South Australian Parliamentary Librarian). A particularly heartfelt thanks goes to Aimee Travers, Parliamentary Counsel at the South Australia Office of Parliamentary Counsel, for her persistent and ultimately successful efforts to have government legal professional privilege (!) waived over records of the parliamentary draftsman (and also to the South Australian Attorney-General and Shadow Attorney General, and their staffs, for facilitating this request). Earlier drafts of this article were presented at the Annual Conference of the Australia and New Zealand Law and History Society, the Australian Centre for Private Law at the TC Beirne School of Law at the University of Queensland, and the Kings-Cambridge Private Law Forum in Cambridge. My thanks are due to the participants in all these events, and to Professor Paul Mitchell and Justice Mark Leeming who read early drafts of this article, for their helpful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Mark Lunney

Mark Lunney is the Professor of Tort Law at the Dickson Poon School of Law, King’s College London and adjunct professor at the University of New England, Australia.

Notes

1 Law Reform (Miscellaneous Provisions) Act 1934.

2 Mark Lunney, ‘Civil Wrongs’, in Peter Cane, Lisa Ford and Mark McMillan, eds., The Cambridge Legal History of Australia, Cambridge, 2022, ch.28.

3 Paul Mitchell, A History of Tort Law 1900–1950, Cambridge, 2015, ch.10.

4 Mark Lunney, ‘Death Can be Fatal! – The End of Empire and Survival of Actions Legislation in Queensland and New South Wales’, in Kate Falconer, Andrew Fell and Kit Barker, eds., Life and Death in Private Law, Oxford, 2024, forthcoming.

5 Mark Lunney, A History of Australian Tort Law 1901–1945: England’s Obedient Servant?, Cambridge, 2018, ch.2.

6 Colonial Laws Validity Act 1865 (Imp) s.3. The earlier constraint of ‘repugnancy’ also allowed some flexibility to depart from English law, as in the Slander and Libel Act 1847 (NSW), which abolished the common law distinction between libel and slander. See generally Enid Campbell, ‘Colonial Legislation and the Laws of England’, 2 University of Tasmania Law Review (1965), 148.

7 Because where the negligent driver was killed in the accident, the injured victim’s cause of action was extinguished on the driver’s death so there was no liability to which the insurance could attach. Compensation for victims of motor vehicle accidents was an important issue in the early 1930s: see Peter Bartrip, ‘Pedestrians, Motorists and No-Fault Compensation for Road Accidents in 1930s Britain’, 31 Journal of Legal History (2010), 45; Peter Bartrip, ‘No-Fault Compensation on the Roads in Twentieth Century Britain’, 69 Cambridge Law Journal (2010), 263.

8 Law Revision Committee, Interim Report (London, 1934) Cmd 4540.

9 Mitchell, A History of Tort Law 1900–1950, ch.10.

10 Ibid., 261–264.

11 [1980] AC 136.

12 Gammell v Wilson [1982] AC 227. See Mitchell, A History of Tort Law 1900–1950, 271–272.

13 Skelton v Collins (1966) 115 CLR 94.

14 Fitch v Hyde-Cates (1982) 150 CLR 482 (on the New South Wales legislation but there was no relevant difference between Australian jurisdictions on this point).

15 Administration of Justice Act 1982 s.4(2).

16 For example, Law Reform (Miscellaneous Provisions) Amendment Act 1982 (NSW); Administration and Probate (Survival of Actions) Act 1982 (Vic).

17 Baker v Bolton (1808) 1 Camp 493.

18 Fatal Accidents Act 1846.

19 Blake v Midland Railway Co (1852) 18 QB 93.

20 This concern also prevented the drafters from accepting the Law Revision Committee’s view that the rule in Baker v Bolton should be abolished: Mitchell, A History of Tort Law 1900–1950, 254–256.

21 In New South Wales, academic criticism from the United States over the 1934 Act’s exclusion of exemplary damages (‘Legislation’, 48 Harvard Law Review (1935), 1008, at 1011) was noted but ultimately ignored: State Archives Collection of New South Wales, NRS 302 / NRS 333: Attorney General (and Justice) Special Bundles, 1822–1984 – Law Reform (Miscellaneous Provisions) Bill (to amend the law in relation to actions for the recovery of damages, etc – 51/2587), 1925–1952 [12/1352.2], Memo by Holmwood, ‘Proposed Bill to Abolish the Doctrine “Actio Personalis Moritur Cum Persona”’, March 24, 1943.

22 The Law Revision Committee Report (para.13) stated that damages ‘should be proportioned either to the loss to the estate or the loss to the dependants or both heads of loss together in certain cases, as already explained’. The meaning of this somewhat Delphic comment is not much illuminated by the preceding discussion. The idea that non-pecuniary losses were personal to a plaintiff and hence could not be transferred to the estate had a solid academic pedigree especially in continental law (see Paul Weidenbaum, ‘The Problem of Rose v Ford and Comparative Law’, The Bell Yard: Journal of the Law Society’s School of Law (1936), 23; E.C. Stiefel, ‘Shortened Expectation of Life and Foreign Law’, 17 Canadian Bar Review (1939), 338). Writing several years later, the Secretary of the Law Revision Committee also used this reasoning to justify the exclusion of both exemplary damages and awards for pain and suffering from the estate claim: John Foster, ‘Law Revision’, 2 Modern Law Review (1938), 14, at 15–16.

23 Claims for damage to real and personal property survived for the benefit of the estate before the 1934 Act, and, in the Law Revision Committee’s Report, it was the inability of the estate to claim for economic losses (funeral, medical expenses) that was thought to justify extending a claim to the deceased estate.

24 [1935] 1 KB 354.

25 It appears that the medical prognoses for his future were unduly pessimistic, it being noted by Langton that ‘some three years after his accident, he appeared to have been still alive, and even in a condition of health to justify the expression usually associated with a certain Mr. John Walker of the Regency period’: George Langton, ‘Damages for Loss of Expectation of Life: A Suggestion’, 58 Law Quarterly Review (1942), 53, at 54.

26 [1937] 1 AC 826.

27 ‘The Articled Clerk’, 88 Law Journal (1939), 90.

28 Morgan v Scoulding [1938] 1 KB 786. For the competing views see C.K.A. (Allen), ‘Is Life a Boon?’, 7 Law Quarterly Review (1941), 462, at 463 and the editor’s (A.L. Goodhart) reply at 465, and more generally Mitchell, A History of Tort Law 1900–1950, 260.

29 ‘Torts and Corpses’, The Economist, 24 Dec. 1938, 649.

30 C.E. Golding, ‘Case of Rose v Ford: Effect of House of Lords Decision’, The Financial Times, 20 June 1938, IV. See also ‘Insurance Topics’, The Financial Times, 31 Jan. 1938, 6; Observer, ‘City Men and Matters’, The Financial Times, 7 June 1938, 4; Guy F. Johnson, ‘Insurance Review IV – Accidents and Motor Departments: Premiums and Claims’, The Financial Times, 20 June 1938, IV; ‘Motor Claims Heavier – Fresh Forms of Liability’, The Times, 13 July 1938, 23; ‘Advance Likely in Motor Business Premiums’, The Financial Times, 20 Jan. 1939, 5; W.A. McKenzie, ‘Fight is On to Stop Dearer Motoring – Third Party Law is Crippling Companies’, Daily Mail, March 29 1939, 11. Concerns of insurers were reported in the law professional journals: ‘Motor Insurance and the “Accident-Prone”’, 82 Solicitors’ Journal (1938), 10; ‘Company Meeting – The London Assurance’, 185 Law Times (1938), vi (April 30 1938).

31 See, generally, Allen, ‘Is Life a Boon?’.

32 A.B., ‘Loss of Expectation of Life’, 11 Australian Law Journal (1938), 537, at 539–540.

33 ‘Woman Claims Damages’, The Herald (Melbourne), 24 September 1935, 3; ‘Collision at Hurstville’, Propeller (Sydney), 9 April 1936, 4; ‘Youth Claims Damages’, The News (Adelaide), 11 March 1938, 7.

34 ‘Young Woman Completely Paralysed for Rest of Life Sues for £10,000’, Border Morning Mail, 24 May 1938, 1. The case was settled without the terms being made public. See also the high profile action by A.B. Piddington, briefly a Justice of the High Court of Australia in 1913, who sued at the age of 76 in the Supreme Court of New South Wales for £15000, including for loss of expectation of life, after being knocked down and injured by a car while crossing Philip Street in Sydney (the centre of legal Sydney): Daily Telegraph (Sydney), 19 April 1939, 4. The jury found for the defendant and the verdict was upheld by majority on appeal to the Full Court of the Supreme Court of New South Wales and the High Court of Australia ((1940) 63 CLR 533).

35 Compensation to Relatives Amendment Act 1928 (NSW).

36 Parliamentary Debates (Victoria), Legislative Assembly, 27 August 1931, 2554 (Blackburn).

37 As was the case for the other suggested reform in this area, allowing for the recovery of medical and funeral expenses of the deceased.

38 Speaking in a Parliamentary debate in 1941, the Attorney General, Mr A.S. Bailey, commented that the Committee had not met for nineteen years: 16 Law Institute Journal (1942), 13.

39 Public Record Office Victoria, VPRS 10265/P000 Parliamentary Counsel Bill Files, Wrongs Act 1932, Memorandum from the Judges of the Supreme Court with regard to the Wrongs Bill 1931, December 3, 1931. The attempt to allow medical and funeral expenses of the deceased in a Lord Campbell’s Act action fared no better.

40 ‘The proposal has everything to commend it’ (4 Law Institute Journal (1930), 249); ‘The Law Institute of Victoria has given serious consideration to its provisions and entirely approves of them’ (Parliamentary Debates (Victoria), Legislative Assembly, 27 August 1931, 2557 (Mr Slater, Attorney General)).

41 State Records of South Australia, AGO 186/1936 – Wrongs Act 1936 (‘SA Archive File’), Letter, Secretary Law Society of South Australia to Attorney General, 29 April 1936.

42 Ibid., Letter, Secretary Law Society of South Australia to Attorney General, 25 October 1938.

43 The language was likely borrowed from the English cases on Lord Campbell’s Act restricting a dependant’s claim to economic losses. Given the primary purpose of the recommendation was to distinguish between economic and non-economic heads of damages, it seems unlikely the possible ramifications of such a change for estate claims for economic loss were countenanced.

44 ‘Statute Law Revision’, 13 Law Institute Journal (1939), 115.

45 ‘Statute Law Revision’, 16 Law Institute Journal (1942), 12, referring to a debate in the Legislative Council in November 1941.

46 In force 1 April 1937: South Australian Government Gazette, No. 0012, 18 March 1937, 585.

47 Public Record Office Victoria, VPRS Series 10265/P0000 Parliamentary Bill Files EB127 – Motor Vehicle 3rd Party Insurance 1939–1941 (‘Victorian Archive File’), Report upon Motor Vehicles (Third Party Insurance) Loose Bill, Parliamentary Draftsman’s Chambers, 11 April 1939.

48 Ibid., Draft Bill, Motor Car (Third Party Insurance), Rough Draft for Consideration of Cabinet, 9 May 1939, s.11.

49 Motor Car (Third Party Insurance) Act 1939 (Vic) s.12 (not in force until 22 January 1941: Victorian Government Gazette, No. 415, 18 December 1940, 4323).

50 Motor Vehicles (Third Party Insurance) Act 1942 (NSW) s.15(2)(a) (in force on 1 February 1943: New South Wales Government Gazette, No 172, 24 December 1942, 3238).

51 Parliamentary Debates (South Australia), Legislative Council, 10 August 1938, 827 (Homburg) (Law Reform Bill).

52 Ibid.

53 Ibid., 24 August 1938, 1131 (Cudmore).

54 Ibid.

55 Ibid., 7 September 1938, 1344. There is no record of the judges’ view on the proposals in the bill.

56 Ibid., 1345.

57 Ibid.

58 Ibid., 18 October 1939, 1320 (Homburg).

59 Wrongs Act Amendment Act 1939 (SA) s.5. Note that the consequence to insurance premiums of the change to allow funeral expenses was raised even here (Parliamentary Debates (South Australia), House of Assembly, 10 August 1939, 463 (Abbott)). The Parliamentary Draftsman, EL Bean, thought these amounts were very unlikely to affect premiums (State Records South Australia, PD 2/38, Memorandum, EL Bean to Acting Attorney General, 16 August 1939).

60 Cudmore, who introduced the amendment incorporating this change, did not acknowledge its source but it seems likely its inspiration was the Statutes Amendment Act 1937 (NZ) s.7(2). Cf. the comments of the parliamentary draftsman, E.L. Bean, that the amendment was just and might be accepted because if the deceased had lived such expenses were recoverable so ‘[t]here seems no reason why the person liable should be in a better position because the victim of the injury has died’: State Records South Australia, PD 2/38, Memorandum E.L. Bean to Acting Attorney General, 24 October 1939). This is reasoning that supported the abolition of the actio personalis rule.

61 Representatives of the Law Society of South Australia, including Charles Abbott, had again made representations to the Attorney General on the necessity of legislation on the actio personalis rule in an interview with him in April 1940 and were told it had been deferred until this year’s (1940) legislative programme: SA Archive File, Interview, S.W. Jeffries (Attorney General) with H. Mayo KC, A.M. Moulden, A.J. Hannan KC, C.L. Abbott MP, and J.H. Portus, 13 April 1940.

62 The Law Society of South Australia initially recommended that all actions for defamation should survive (Annual Report 1939, ‘Various Recommendations to the Government’, No. 6). However, a vociferous objection to allowing the action to survive for the benefit of the estate was made to the Attorney General by a leading South Australian lawyer, R.B. Stuckey (SA Archive File, Letter R.B. Stuckey to Attorney General, 17 October 1939), and it seems this may have resulted in the position taken in the bill. However, the Attorney General indicated he was not wedded to this provision and, in Committee, Charles Abbott’s amendment to adopt the position under the 1934 Act – where defamation actions survived neither for or against the estate – was accepted: Parliamentary Debates (South Australia), House of Assembly, 23 October 1940, 1052–1053.

63 Parliamentary Debates (South Australia), House of Assembly, 24 September 1940, 670 (S.W. Jeffries, Attorney General).

64 Ibid., 23 October 1940, 1053 (Abbott). While Abbott does not name the cases, the likeliest candidate is Sawford v Faehse, where the trial magistrate awarded £200 under the South Australian equivalent of Lord Campbell’s Act for the loss of services provided to the father by his deceased fourteen-year-old son (incorrectly remembered by Abbott as seventeen), reduced on appeal to £100: The News (Adelaide), 13 September 1937, 3; 20 December 1937, 5.

65 Parliamentary Debates (South Australia), House of Assembly, 23 October 1940, 1053 (Abbott).

66 Ibid., 1057.

67 Ibid., 1054; Maintenance Act 1926 (SA) s.34(2).

68 A.B., ‘Loss of Expectation of Life’.

69 Parliamentary Debates (South Australia), Legislative Council, 21 November 1940, 1530 (Cudmore).

70 Parliamentary Debates (South Australia), House of Assembly, 18 November 1940, 1504 (Abbott).

71 Public Trustee v Zoanetti (1945) 70 CLR 266, at 285.

72 [1939] SASR 389, at 392.

73 Supreme Court of New South Wales, Janet Chester v The Council of the Municipality of Waverly, No 3897 of 1937 (30 November 1937).

74 (1939) 62 CLR 1. See generally Gideon Haigh, The Brilliant Boy: Doc Evatt and the Great Australian Dissent, Melbourne, 2022; Mark Lunney, ‘Unseen Networks: The Legal Professions’ Involvement in the Law Reform (Miscellaneous Provisions) Act 1944 (NSW)’, 92 Australian Law Journal (2018), 449.

75 Commissioner for Railways v Corben (1938) SR (NSW) 55, at 65.

76 National Archives of Australia, A10071, 1938/76 CORBEN, Ruby Pearl versus the Commissioner of Railways [on appeal from the New South Wales Supreme Court], Judgment of Evatt J, 17.

77 [1942] AC 601, at 614–616 (Lord Wright); 609–610 (Lord Macmillan).

78 [1942] SASR 76.

79 Albeit being somewhat confused by its origin in the remedy of assythment: Ibid., 81.

80 Ibid.

81 Rafferty v Barclay [1942] SASR 147; McPhail v The Municipal Tramways Trust, unreported, 12 Jan. 1944.

82 And there was academic argument against the position reached in those cases: R.L. Newman, ‘Deductions from Damages under the Fatal Accidents Act’, 16 Australian Law Journal (1943), 327.

83 [1944] SASR 150. This was followed in Taverner v Swanbury [1944] SASR 194.

84 Public Trustee v Zoanetti (1945) 70 CLR 266.

85 Ibid., 285–286 (Dixon J).

86 Parliamentary Debates (South Australia), Legislative Council, August 24 1938, 1132 (Cudmore).

87 Parliamentary Debates (South Australia), House of Assembly, October 23 1940, 1055 (S.W. Jeffries, Attorney General).

88 Ibid., 1057. Only Abbott was prepared to say, at least in respect of the estate claim for loss of expectation of life, ‘The English legislation is good’: Ibid., 1054 (Abbott).

89 Ibid. Abbott’s disagreement was that he did not think the clause abolishing the estate claim for loss of expectation of life was an improvement.

90 [1941] AC 157, where the quantum for loss of expectation of life was effectively capped at £200.

91 Parliamentary Debates (Victoria), Legislative Assembly, 21 July 1942, 282 (Bailey, Attorney General). The Leader of the United Australia Party also referred to English law having got itself ‘very tangled’ (Parliamentary Debates (Victoria), Legislative Assembly, 4 Nov. 1942, 1661 (Oldham)).

92 Parliamentary Debates (Victoria), Legislative Assembly, 21 July 1942, 282 (Bailey, Attorney General). New Zealand originally copied the 1934 Act in 1936 (Law Reform Act 1936 (NZ) Part 1) but, once the effects of Rose v Ford on estate claims became apparent, amended the legislation to remove the estate claim for non-pecuniary loss (Statutes Amendment Act 1937 (NZ) s.17).

93 Lunney, ‘Death Can be Fatal! – The End of Empire and Survival of Actions Legislation in Queensland and New South Wales’.

94 Parliamentary Debates (Victoria), Legislative Assembly, 4 November 1942, 1660 (Cain).

95 Parliamentary Debates (Victoria), Legislative Council, 2 December 1942, 1930 (Fraser). The only provision not accepted was one that prevented juries from assessing damages.

96 Parliamentary Debates (Victoria), Legislative Assembly, 4 November 1942, 1662 (Oldham).

97 Parliamentary Debates (Victoria), Legislative Council, 2 December 1942, 1931 (Fraser).

98 Owen Dixon, ‘The Survival of Causes of Action’, 1 University of Queensland Law Journal (1948), 1, at 2–3.

99 Ibid., 3.

100 Ibid.

101 Ibid., 2

102 Ibid.

103 Ibid., 3.

104 Ibid., 4.

105 This list is taken from the reference to Dixon’s proposed bill by John Cain in the debate on the introduction of the Survival of Causes of Action Bill in the Victorian Parliament (Parliamentary Debates (Victoria), Legislative Assembly, 4 November 1942, 1659 (Cain). Dixon’s summary of eligible claimants in his article is shorter but is not inconsistent with the detail in Hansard so it is likely Dixon simply gave examples of the eligible class rather than a verbatim recitation of the full list.

106 Dixon, ‘The Survival of Causes of Action’, 4. Unhelpfully, when the proposal was raised in the Victorian Parliament in 1942, the Hansard reporter noted the two interests involved as ‘material’ and ‘tangible’ which rather defeated the clarity argument that supported Dixon’s suggested reform!

107 Ibid., 5. Cf. the more radical reform suggested by Canadian Cecil Wright who argued that the common deficiency of Lord Campbell’s Act claims in respect of the death of young children could be remedied by allowing ‘recovery based on loss of investment or on something akin to replacement value should be considered. Amendments along this line seem sound’! (Cecil A. Wright, ‘The Abolition of Claims for Shortened Expectation of Life by a Deceased’s Estate’, 16 Canadian Bar Review (1938), 193, at 199).

108 For the US see generally Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts, 2nd ed., Eagan, Minnesota, 2011–2023, §375.

109 Dixon, ‘The Survival of Causes of Action’, 5.

110 Ibid., 6.

111 Parliamentary Debates (Victoria), Legislative Assembly, 21 July 1942, 282 (Bailey, Attorney General).

112 Note that his suggestion that there be no fixed class of eligible claimants in a Lord Campbell’s Act claim, eligibility being satisfied by factual dependence, was recommended by the Victorian Chief Justice’s Law Reform Committee (Report on survival of causes of action for personal injury and matters related to claims for wrongful death, 1982) and introduced into Victorian law by the Wrongs (Dependants) Act 1982.

113 The distinction is maintained in the current Victorian survival of actions legislation: Administration and Probate Act 1958 (Vic) s.29(2)(c)(ii).

114 Administration of Justice Act 1982 s.1(1)(a) abolished the head of damages for loss of expectation of life but, in s.1(1)(b), allowed for an award of pain and suffering to be increased for the claimant’s awareness that his expectation of life had been shortened. Section 3 amended the Fatal Accidents Act 1976 (the current English version of Lord Campbell’s Act legislation) by introducing a statutory claim for bereavement. South Australia has retained the 1940 structure in its current law, the only change being an increase in the maximum amount awarded for solatium to AU$10,000: Civil Liability Act 1936 (SA) ss.28–30.

115 For examples of nineteenth century innovation in contract law see W. Swain and K. Fairweather, ‘To Your Marrowbones All: Loan Transactions and the Law in 19th Century New South Wales’, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4061256>; W. Swain, ‘The Laws of ‘An Old and Settled Society”: The Law of Contract in New South Wales in the Mid-Nineteenth Century’, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3963517>. See also Lunney, ‘Civil Wrongs’.