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, otherwise known as non-economic loss damages, also do not survive to the estate. There is however an exception in respect of dust diseases. In that case, general damages including damages for loss of expectation of life can be awarded but only if the proceedings for the damages have been filed during the lifetime of the deceased.
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.