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Deaths by Accidents Compensation Act 1952

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

DEATHS BY ACCIDENTS COMPENSATION ACT 1952

1952/35 (NZ) – 1 January 1953

1 Short title

2 Interpretation

3 Act to bind the Crown

PART 1
ACTIONS FOR DAMAGES

4 Right of action when death is caused by negligence

5 Action to be for benefit of family

6 Persons who may bring action

7 Amount of damages

8 Plaintiff to deliver full particulars

9 Money paid into Court

10 Limitation of actions

PART 2
APPORTIONMENT OF DAMAGES

11 Interpretation

12 Costs, medical and funeral expenses

13 Damages may be allotted

14 Disposition of damages

15 Class fund

16 Power to authorise advances

17 Variation of orders

18 Considerations to be taken into account

19 Persons who may apply for order

20 [Spent]

21-22 [Repealed]

PART 3

23 [Repealed]

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To consolidate and amend certain enactments relating to actions for damages on behalf of the families of persons killed by accident

1 Short title

This is the Deaths by Accidents Compensation Act 1952.

2 Interpretation

(1) In this Act –

"child", in relation to any deceased person, means a son, daughter, grandson, granddaughter, stepson, or stepdaughter of the deceased person;

"dependant", in relation to any deceased person, means any wife, husband, parent, or child of that person who has suffered injury as a result of the death of the deceased person or who might reasonably have expected to enjoy some actual pecuniary benefit if the deceased person had not died, whether or not the wife, husband, parent, or child was either wholly or partially dependent upon the deceased person before his death;

"parent", in relation to any deceased person, means a father, mother, grandfather, grandmother, stepfather, or stepmother of the deceased person;

"wife", in relation to any deceased person, means the person who is his wife at his death; and includes every other person who has been his wife and is maintained or entitled to be maintained by him either wholly or partly at the time of his death or would have been so maintained or entitled but for the incapacity due to the accident from which his death resulted.

(2) For the purposes of this Act, in deducing any relationship which is included within the meaning of "parent" and "child" any illegitimate person and any person legally adopted outside Niue shall be treated as being, or as having been, the legitimate offspring of his mother and reputed father or, as the case may be, his adopters.

3 Act to bind the Crown

This Act shall bind the Crown.

PART 1

ACTIONS FOR DAMAGES

4 Right of action when death is caused by negligence

(1) Where the death of a person is caused by any wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensured shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to a crime.

(2) [Spent]

(3) Not more than one action shall lie under this Act for the same subject-matter of complaint.

5 Action to be for benefit of family

Every such action shall be for the benefit of the wife or husband and the parents and children of the person whose death has been so caused.

6 Persons who may bring action

(1) (a) Every such action shall be brought by and in the name of the executor or administrator of the deceased person.

(b) Where no action is so brought within 6 months after the date of the death of the deceased person, or where within 6 months after the date of the death of the deceased person, the executor or administrator declares in writing his desire not to bring the action, or where there is for the time being no executor or administrator of the deceased person, the action may be brought by and in the name of the person, or (if there are more than one) the names of all or of any of the persons, for whose benefit the action would have been if it had been brought by and in the name of the executor or administrator.

(2) Where any such action is brought by and in the name of any person or persons other than the executor or administrator of the deceased person, the action shall be for the benefit of the same person or persons, and shall be subject to the same procedure, as nearly as may be, as if it were brought by and in the name of the executor or administrator.

7 Amount of damages

(1) In every such action the Court may award –

(a) Such damages as it may think proportioned to the injury resulting from the death to the person or persons for whose benefit the action is brought; and

(b) Damages in respect of the amount of actual pecuniary benefit which the person or persons for whose benefit the action is brought might reasonably have expected to enjoy if the death had not occurred, whether or not the person or persons have been either wholly or partially dependent upon the deceased person before his death; and

(c) Damages in respect of the medical and funeral expenses of the deceased person if the expenses have been incurred by the person or any of the persons by whom or for whose benefit the action is brought.

(2) In awarding damages in any such action the court shall not take into account any gain, whether to the estate of the deceased person or to any dependant, that is consequent on the death of the deceased person.

8 Plaintiff to deliver full particulars

In every such action the plaintiff on the record shall be required to deliver to the defendant or his solicitor, in or together with the statement of claim, full particulars of the person or persons for whose benefit the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered.

9 Money paid into Court

If the defendant pays money into court, it shall be sufficient if he pays it in one sum for the benefit of all persons entitled under this Act as a compensation for his wrongful act, neglect, or default, without specifying the shares into which it is to be divided.

10 Limitation of actions

(1) Except as provided in this section, no action shall be brought under this Act after the expiration of 2 years from the date of the death of the deceased person.

(2) Application may be made to the court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date of the death of the deceased person; and the court may grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.

(3) Where any person who is under a disability at the date of the death of the deceased person is entitled, under the proviso to section 6(1), to bring an action in respect of that death, that action may be brought, without the leave of the court, within 2 years from the date when he ceased to be under a disability or sooner died, or an application for leave to bring that action may be made under section 6(2) within 6 years from the date when he ceased to be under a disability or sooner died, if when the action (without such leave) is commenced or the application is made, as the case may be –

(a) No other person has commenced an action under this Act in respect of the death of the deceased person or made an application for leave to bring such an action; and

(b) No grant of administration has been made in Niue in respect of the estate.

(4) For the purposes of this section, a person shall be deemed to be under a disability while he is an infant or of unsound mind.

PART 2

APPORTIONMENT OF DAMAGES

11 Interpretation

For the purposes of this Part –

(a) "trustee" means the trustee appointed by the Court;

(b) without prejudice to the generality of the expression "of unsound mind", a person shall be conclusively presumed to be of unsound mind while he is detained or kept in custody (otherwise than as a voluntary inpatient) under Part 26 of the Niue Act 1966.

12 Costs, medical and funeral expenses

Where any damages for which an action lies under this Act are recovered (either in an action or without any action being brought), the costs which are properly payable out of the damages and are not otherwise recovered may be paid thereout, and the amount (if any) recovered in respect of the medical and funeral expenses of the deceased person may be refunded to the person or persons who paid them, and the balance of the damages may be allotted or disposed of by the court as provided in this Part.

13 Damages may be allotted

(1) Where the court makes an order under this Part and is satisfied that there was only one dependant of the deceased person, the balance of the damages shall be allotted to that dependant.

(2) Where the court makes an order under this Part and is satisfied that there were 2 or more dependants, the court may order –

(a) That the balance of the damages or so much thereof as it may specify shall be allotted to any dependant exclusively, or shall be allotted in such proportions as the court determines among the dependants or among such 2 or more of them to the exclusion of the other or others of them as the court specifies;

(b) That the balance of the damages or so much thereof as it may specify shall be held on trust as a class fund for the benefit of the dependants or of such 2 or more of them to the exclusion of the other or others of them as the court specifies.

14 Disposition of damages

(1) Where any amount is allotted to a dependant under section 13, that amount shall be paid to him unless he is an infant or of unsound mind or except in so far as the court orders that the whole or any part of that amount shall be held on trust under subsection (2).

(2) Where any amount is allotted to any dependant who is an infant or of unsound mind or the court orders that the whole or any part of the amount allotted to a dependant is to be held on trust for that dependant under this subsection, then, except so far as the court directs any immediate payment therefrom, and subject to any directions or conditions given or imposed by the court –

(a) The amount shall be invested and held by the trustee upon trust –

(i) to make such payments (if any) to the dependant out of the income and capital of the amount as the court may specify; and

(ii) to apply the income and capital of the amount or so much of it as the trustee thinks fit for or towards the maintenance or education (including past maintenance or education provided after the death of the deceased person) or the advancement or benefit of the dependant;

(b) The dependant shall have no power, either by himself or in conjunction with any other person or persons, to terminate the trusts upon which the amount is held or to modify or extinguish those trusts;

(c) The interest of the dependant in the income and capital of the amount shall not, while it remains in the hands of the trustee, be alienated, or pass by bankruptcy, or be liable to be seized, sold, attached, or taken in execution by process of law.

(3) (a) Upon any dependant ceasing to be an infant or of unsound mind while any amount is held on trust for his benefit under subsection (2), the balance of that amount and of the income from it remaining in the hands of the trustee shall be paid to the dependant except in so far as the court may have ordered before the payment is made that the whole or any part of that amount shall continue to be held on trust under that subsection;

(b) Where the trustee has notice that an application has been made to the court for such an order he shall not make any payment under this subsection until the application has been disposed of.

(4) (a) The court may order that, if any dependant dies while any amount allotted to him is held on trust under subsection (2) (whether or not he is an infant or of unsound mind) any balance of the amount and of the income from it remaining in the hands of the trustee at his death, or so much of it as the court may specify, shall form part of the dependant’s estate, or shall be added to the amount allotted to any other dependant or to the amounts allotted to all or any of the other dependants in such proportions as the court may specify or to any class fund set aside out of the balance of the damages, and shall be subject to the trusts of the amount or amounts or fund to which it is added.

(b) If and so far as that balance is not wholly disposed of under any order of the court made during the lifetime of the dependant for whose benefit it had been held, or made on an application to the court made not later than 6 months after that dependant’s death, it shall form part of his estate.

15 Class fund

Where any amount is to be held on trust as a class fund for any dependants under section 13(2), that amount shall be invested and the trustee may, but subject to such directions and conditions as the court may give or impose, apply the income and capital of that amount or so much of it as the trustee thinks fit for or towards the maintenance or education (including past maintenance or education provided after the death of the deceased person) or the advancement or benefit of those dependants or of any one or more of them to the exclusion of the other or others of them in such shares and proportions and generally in such manner as the trustee thinks fit; and may so apply the income and capital of that amount notwithstanding that only one of those dependants remains alive.

16 Power to authorise advances

(1) The court may authorise moneys to be advanced to any dependant (whether by way of loan or otherwise) as it thinks fit and upon or subject to such conditions as it thinks fit, out of the damages or out of any amounts allotted to other dependants or out of any amount held on trust as a class fund, for any purpose that the court thinks proper in the interests of the dependants or any of them.

(2) Without limiting the generality of this section, it is hereby declared that any such advance may be made for the purpose of purchasing or otherwise acquiring a residential property for the use of the dependant either alone or in conjunction with any other dependants, or for the purpose of repaying any moneys secured by way of mortgage or otherwise on any residential property owned by the dependant and so used, or for the purpose of furnishing any such residential property.

(3) (a) Where moneys are advanced by way of loan, the court may give such directions in respect of the security to be taken, and may either prescribe the conditions upon or subject to which the moneys are to be advanced or authorise the trustee to prescribe the conditions at his discretion.

(b) The conditions may include power to the trustee to remit interest and principal moneys or any part thereof to the extent of the amount or value of any maintenance, education, advancement, or benefit which the dependant to whom the moneys are advanced may provide for any other dependants.

17 Variation of orders

The Court may vary any order made by it in respect of damages which have been recovered (either in an action or without an action being brought) under this Act and in respect of the income from it so far as the damages and income are for the time being in the hands of the trustee.

18 Considerations to be taken into account

In making or varying an order under this Part the court shall have regard to all relevant considerations including, where the damages are recovered in an action which is tried with a jury, any recommendation which the jury may make in respect of the order; and the court may when it considers that it is just and proper to do so, take into consideration all or any of the following matters –

(a) Any gain to any dependant that is consequent on the death of the deceased person; and

(b) Circumstances which have arisen after the date of the death of the deceased person; and

(c) The probable future needs of the dependants.

19 Persons who may apply for order

An order or variation of an order under this Part may be made by the court of its own motion or on an application made by –

(a) Any dependant of the deceased person;

(b) The husband or wife of any such dependant;

(c) Any near relation by blood or marriage of any such dependant;

(d) [Repealed by 2004/270]

(e) The trustee who holds the amount to which the application relates; or

(f) Any other person who adduces proof of circumstances which in the opinion of the court make it proper that he should make the application.

20 [Spent]

21-22 [Repealed by 2004/270]

PART 3

23 [Repealed by 2004/270]