26.Subsection (3) restates section 2(4) of the 1976 Act. It makes provision for the special case where the deceased had a right to damages for non-patrimonial loss arising from defamation, verbal injury or other injury to reputation. It provides that the right to damages only transmits to the deceased’s executor if the deceased had raised an action to enforce the right before death and the action had not been concluded by the date of the deceased’s death. In other words, an executor may be sisted into a defamation action that has already been raised, but the executor cannot raise a new action in which damages are sought only for non-patrimonial loss. If the victim had sustained patrimonial loss as a result of the defamation, however, the executor will have title to sue by virtue of subsection (1).
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