One of the most common questions I am asked as a lawyer who has acted for sufferers of asbestos disease for over 20 years is whether a claim can be made for compensation after a person has died.
In New South Wales, the crucial point is whether proceedings are commenced before a person died. If a claim is commenced in a person’s lifetime, damages for pain and suffering and loss of expectation of life survive death and may be awarded to the estate. However, if a claim is not commenced until after a person died, no damages for pain and suffering and loss of expectation of life will be awarded.
This means that the short answer is while a claim can be made, it is rarely done as in most cases the cost of making the claim is greater than the likely compensation awarded. In NSW, damages for pain and suffering and loss of expectation of life are worth between $300,000.00 to $400,000.00 for a person suffering from a terminal condition. Unless the sufferer was working at the time of diagnosis or caring for a dependent, their estate is limited to claiming out-of-pocket expenses and the cost of gratuitous care provided to them because of their asbestos disease.
Further, if the sufferer has died without providing a written statement or Affidavit evidence will need to be obtained from co-workers and other witnesses in relation to a person’s exposure to asbestos. In many cases the process of locating and obtaining statements from lay witnesses is a costly exercise.
If a person was working at the time of their diagnosis or was caring for a dependant a claim can be commenced by a dependant pursuant to the Compensation to Relatives Act.
For dependents of sufferers exposed to asbestos while employed in New South Wales a claim to the Dust Diseases Authority is generally a better option. If there are then also court proceedings, the Court will deduct any lump sum or pension received from the Dust Disease Authority from the damages awarded.
However, if proceedings are filed in a sufferer’s lifetime, even if they die before any other step has been taken, the claim can be continued by the estate at full value and include an amount for pain and suffering and loss of expectation of life. Given the above, it is important that proceedings are commenced as soon as possible so that all rights are preserved.
The situation is different in other states, and overseas. In the United Kingdom for example, a claim for full compensation may be commenced by a person’s estate after the person had died. The estates of Australian residents who were exposed to asbestos in the United Kingdom (even if they died here or also had exposure in Australia) can bring such claims. Segelov Taylor lawyers work with lawyers in the UK to assist such claimants.
If you have any questions in relation to the above or compensation in relation to mesothelioma, lung cancer or other dust diseases, please do not hesitate to contact Tanya Segelov of Segelov Taylor Lawyers on 02 8880 0500 or firstname.lastname@example.org.