When a plaintiff dies before their claim is finished, can the estate still recover damages and, if so, what damages are available?
Since the Law Reform (Miscellaneous Provisions) Act 1944, a damages claim can be bought on behalf of the estate by the personal legal representatives to recover damages that the deceased would have received.
Only economic loss damages are recoverable in the estate action. That is:
- Medical and hospital expenses incurred before the death;
- Damages for gratuitous care services provided prior to the death that were both received and provided by the deceased to other people;
- The loss of earning capacity prior to the date of death; and
- Funeral expenses.
The estate cannot claim damages for lost earning capacity past the date of his or her death (that is, during the “lost years”) and exemplary or punitive damages are not available.
General damages, which is compensation for pain and suffering and otherwise known as ‘non-economic loss damages’, however survive to the estate in the event that the death was not caused by a negligent act. If the death was caused by the negligence of the Defendant, then no general damages may be awarded.
The injured person is usually a very important witness in their own claim. Therefore, it is not only the availability of the remedy that is important but you will need to carefully consider whether the case can be proved without that evidence being available.