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Consolidated Acts of Samoa 2011 |
Arrangement of Provisions
PART I
PRELIMINARY
PART IA
SURVIVAL OF CAUSES OF
ACTION AFTER DEATH
PART II
CHARGES ON INSURANCE MONEY
PART III
LIABILITY OF TORTFEASORS
PART IV
LIABILITY OF EMPLOYERS
1964 No.7
AN ACT to effect reforms in the law relating to (1) the effect of death in relation to causes of action; (2) charges on insurance money payable as indemnity for liability to pay damages or compensation; and (3) proceedings against and contributions among tortfeasors; and to restate the law as to the liability of employers to their servants for injuries caused by the negligence of fellow servants
[Assent and commencement date: 31 July 1964]
PART I
PRELIMINARY
1. Short title - This may be cited as the Law Reform Act 1964.
2. Balance of Act divided into parts - The balance of this Act is divided into Parts as follows:
PART I:- Survival of causes of action after death.
PART II:- Charges on insurance money.
PART III:- Liability of tortfeasors.
PART IV:- Liability of employers.
PART IA
SURVIVAL OF CAUSES OF ACTION AFTER DEATH
3. Effect of death on certain causes of action - (1) Subject to the provisions of this Part, on the death of a person after the passing of this Act all causes of action subsisting
against or vested in the person shall survive against or, as the case may be, for the benefit of his or her estate:
PROVIDED THAT this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart
from the other or to claims under the Divorce and Matrimonial Causes Ordinance 1961 for damages on the ground of adultery.
(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for
the benefit of the estate of that person:
(a) shall not include any exemplary damages;
(b) in the case of a breach of promise to marry, shall be limited to such damage (if any) to the estate of that person as flows from the breach of promise to marry;
(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated
without reference to any loss or gain to his or her estate consequent on his or her death, except that a sum in respect of funeral
expenses may be included.
(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this Part has survived against
the estate of a deceased person, unless either:
(a)proceedings against him or her in respect of that cause of action were pending at the date of his or her death; or
(b)the cause of action arose not earlier than 2 years before his or her death and proceedings are taken in respect thereof not later
than 12 months after his or her personal representative took out representation:
PROVIDED THAT no such proceedings shall be maintainable unless notice in writing giving reasonable information of the circumstances upon which
the proceedings will be based and the name and address of the prospective plaintiff and of his or her solicitor or agent (if any)
in the matter is given by the prospective plaintiff to the personal representative of the deceased person as soon as practicable
after the personal representative took out representation.
(4) Despite anything in subsection (3), application may be made to the Court, after notice to the personal representative, for leave
to bring the proceedings at any time before the expiration of 6 years after the date when the cause of action arose, whether or not
notice has been given to the personal representative under subsection (3); and the Court may, if it thinks it is just to do so, grant
leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the failure to
give the notice or the delay in bringing the proceedings, as the case may be, was occasioned by mistake or by any other reasonable
cause or that the personal representative was not materially prejudiced in his or her defence or otherwise by the failure or delay.
No distribution of any part of the estate of the deceased made before the date of the giving of the notice of the intended application
shall be disturbed by reason of the application or of an order made thereon.
(5) Where damage has been suffered by reason of an act or omission in respect of which a cause of action would have subsisted against
any person if that person had not died before or at the same time as the damage was suffered, it is taken, for the purposes of this
Part, to have been subsisting against the person before his or her death such cause of action in respect of that act or omission
as would have subsisted if he or she had died after the damage was suffered.
(6) The rights conferred by this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation
of any rights conferred by the Fatal Accidents Act 1974, and so much of this Part as relates to causes of action against the estates of deceased persons shall apply in relation to causes
of action under that Act.
(7) In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability
in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the
administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by
a contract, promise, or breach of trust.
4. Limitation of damages recoverable - Where by virtue of this Part a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include any damages for his or her pain or suffering, or for any bodily or mental harm suffered by him or her, or for the curtailment of his or her expectation of life.
PART II
CHARGES ON INSURANCE MONEY
5. Amount of liability to be charged on insurance money payable against that liability - (1) If a person (hereinafter in this Part referred to as the insured) has, whether before or after the passing of this Act, entered
into a contract of insurance by which he or she is indemnified against liability to pay any damages or compensation, the amount of
the person’s liability shall, on the happening the event giving rise to the claim for damages or compensation, and despite
that the amount of such liability may not then have determined, be a charge on all insurance money that is or may become payable
in respect of that liability.
(2) If, on the happening of the event giving rise to any claim for damages or compensation as aforesaid, the insured has died insolvent
or is bankrupt or, in the case of a corporation, is being wound up, or if any subsequent bankruptcy or winding up of the insured
is deemed to have commenced not later than the happening of that event, the provisions of the last preceding subsection shall apply
despite the insolvency, bankruptcy, or winding up of the insured.
(3) Every charge created by this section shall have priority over all other charges affecting the said insurance money, and where
the same insurance money is subject to 2 or more charges by virtue of this Part those charges shall have priority between themselves
in the order of the dates of the events out of which the liability arose, or, if such charges arise out of events happening on the
same date, they shall rank equally between themselves.
(4) Every such charge as aforesaid is enforceable by way of an action the insurer in the same way and in the same Court as if the
action were an action to recover damages or compensation from the insured; and in respect of any such action and of the judgment
given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the Court shall have the
same powers, as if the action were against the insured:
PROVIDED THAT, except where the provisions of subsection (2) apply, no such action shall be commenced in any Court except with the leave of that
Court.
(5) Such an action may be brought although judgment has been already recovered against the insured for damages or compensation in
respect of the same matter.
(6) A payment made by an insurer under the contract of insurance without actual notice of the existence of any such charge shall to
the extent of that payment be a valid discharge to the insurer, despite anything contained in this Part.
(7) No insurer is liable under this Part for any sum beyond the limits fixed by the contract of insurance between the insurer and
the insured.
(8) If the liability of an insurer to a worker is less than the liability of the employer to the worker, the worker may prove for
the balance in the bankruptcy or liquidation of the employer.
6. Claims for damages or compensation against estate of deceased owner where no administrator - (1) Where:
(a) a person desires to claim damages or compensation on account of an event, whether happening before or after the commencement of this section, in respect of which a contract of insurance was in force at the time of the happening of the event indemnifying the insured from liability in respect of those damages or that compensation; and
(b) the insured is deceased and there is in Samoa no administrator within the meaning of the Administration Act 1975 of the estate of the insured,-
the person desiring to claim those damages or that compensation may give notice in writing to the insurer requiring the insurer to
nominate some person to be the defendant in place of the insured in any action proposed to be brought in any Court claiming those
damages or that compensation.
(2) Within 14 days after the service on the insurer of such a notice, the insurer may, by notice in writing served on the claimant,
nominate some person (with his or her consent) to be the defendant in the proposed action, and thereupon the claimant may sue the
defendant so nominated, describing him as the administrator ad litem of the estate of the insured.
(3) If within the said period of 14 days the insurer does not nominate a defendant as aforesaid, the Court, in which an action claiming
those damages or that compensation is intended to be commenced may, on the application of the claimant, appoint the Public Trustee
to be the administrator ad litem of the estate of the insured for the purposes of the intended action, and it shall be the duty of
the Public Trustee to act as such.
(4) Where any such appointment is made, the claimant may sue the Public Trustee, describing him as the administrator ad litem of the
estate of the insured.
(5) The person nominated as the defendant by the insurer or, as the case may be, the Public Trustee is indemnified by the insurer
in respect of any judgment against him (including the costs of the action and any costs awarded under subsection (6)), and also in
respect of all costs and expenses reasonably incurred by him in or in connection with the action irrespective of the result of the
action, and, in the case of the Public Trustee, shall be entitled to recover from the insurer reasonable remuneration for his services:
PROVIDED THAT, where in such action the plaintiff obtains judgment against the administrator ad litem, the judgment shall not be enforceable against
the administrator ad litem by execution or otherwise except to the extent to which the insured was entitled to be indemnified by
the insurer under the contract of insurance, and, to the extent to which the judgment is not so enforceable, the amount thereof is
deemed to be a liability of the estate (if any) of the insured, and is enforceable accordingly against that estate.
(6) Where in an action against the Public Trustee as administrator ad litem the plaintiff recovers judgment, the Court may award the
plaintiff his or her costs of and incidental to the order appointing the Public Trustee as such administrator.
(7) No appointment or nomination of an administrator ad litem under this section shall confer any rights or impose any obligations
on the Public Trustee or on the person so nominated in respect of any other assets of the estate of the insured or any liabilities
in connection with that estate.
7. Consequential repeal and saving - Section 22 of the Worker's Compensation Ordinance 1960 is consequentially repealed:
PROVIDED THAT where the event giving rise to a claim for damages or compensation happens before the passing of this Act all rights under that section
22, whether accrued on the passing of this Act or subsequently accruing, shall subsist for the benefit of the person having the claim.
PART III
LIABILITY OF TORTFEASORS
8. Proceedings against, and contribution between, joint and several tortfeasors- (1) Where damage is suffered by a person as a result of a tort (whether a crime or not):
(a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;
(b) if more than 1 action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife, husband, parent, or child of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise), the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the Court is of opinion that there was reasonable ground for bringing the action;
(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued in
time have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall
be entitled to recover contribution under this section from any person entitled to be indemnified by him or her in respect of the
liability in respect of which the contribution is sought.
(2) A tortfeasor may recover contribution under this section from the husband or wife of the former husband or wife of the person
by whom the damage was suffered, in any case where he or she could have recovered such contribution if the marriage relationship
had never existed.
(3) In any proceedings for contribution under this section the amount of the contribution recoverable from a person shall be such
as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage;
and the Court shall have power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered
from any person shall amount to a complete indemnity.
(4) For the purposes of this section:
(a) the expressions "parent" and "child" have the same meanings as they have for the purposes of the Fatal Accidents Act 1974;
(b) the reference in this section to "the judgments first given" shall, in a case where that judgment is reversed on appeal, be construed
as a reference to the judgment first, given, which is not so reversed, and, in a case where a judgment is varied on appeal, be construed
as a reference to that judgment as so varied.
(5) Nothing in this section shall:
(a) affect any criminal proceedings against a person in respect of a wrongful act; or
(b) render enforceable an agreement for indemnity which would not have been enforceable if this section had not been passed.
PART IV
LIABILITY OF EMPLOYERS
9. Defence of common employment abolished - (1) Where an injury or damage is suffered by a servant by reason of the negligence of a fellow servant, the employer of those servants
is liable in damages in respect of that injury or damage in the same manner and in the same cases as if those servants had not been
engaged in a common employment.
(2) This section applies to every case in which the relation of employer and servant exists, whether the contract of employment is
made before or after the passing of this Act.
10. Repeal - Section 361 of the Samoa Act 1921 (NZ) shall cease to be part of the law of Samoa.
REVISION NOTES 2008-2011
This Act has been revised under section 5 of the Revision and Publication of Laws Act 2008.
The following general revisions have been made:
(a) Insertion of the commencement date
(b) Other minor editing has been done in accordance with the lawful powers of the Attorney General.
(i) “any” changed to “a/an” where appropriate
(ii) Present tense drafting style where appropriate:
- “shall be” changed to “is/are”
- “shall be deemed” changed to “is/are taken”
- “hereby” removed
(iii) Removal/replacement of obsolete, archaic and Latin terms with plain language: “notwithstanding” changed to “despite”
(iv) Numbers in words changed to figures
(v) Part I renumbered as Part IA and a “Part I-Preliminary” inserted.
There were no amendments made to this Act since the publication of the Consolidated and Revised Statutes of Samoa 2007.
This Act has been consolidated and revised in 2008, 2009, 2010 and 2011 by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is the official version of this Act as at 31 December 2011. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.
Aumua Ming Leung Wai
Attorney General of Samoa
Revised and consolidated in 2008 by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)
Revised in 2009, 2010 and 2011 by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).
The Law Reform Act 1964 is administered by the Office of the Attorney General.
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