A mesothelioma diagnosis is devastating, and pursuing a compensation claim is often an important step for patients and their families. But what happens if your loved one sadly passes away before their claim is finalised? It’s a distressing situation, adding legal uncertainty to a time of grief.
In Australia, a mesothelioma compensation claim started in a claimant’s lifetime doesn’t automatically end with the claimant’s passing.
Must be started in your lifetime
The traditional rule was that if a claim was not completed in a person’s lifetime, its value was largely lost.
However, as a result of pressure by asbestos groups over the last 25 years, this rule was changed so that any claim started in a person’s lifetime can continue even if the claimant dies before it is completed.
However, it is crucial that the claim is started in the person’s lifetime.
Who Takes Over the Claim?
A person legally responsible for managing the deceased’s estate steps in. This is usually the Executor named in the Will, or an Administrator appointed by the Court if there’s no Will. They formally take the deceased’s place in the legal proceedings.
What Compensation Can the Estate Recover?
If a claim is commenced in a person’s lifetime, the value of the claim is not impacted by the claimant’s death. This means damages for pain and suffering, economic loss, care, and out-of-pocket expenses are all recoverable.
What About the Family’s Loss? Dependency Claims
Separate from the estate’s claim, eligible dependents (like spouses, partners, and children) may have their own right to claim compensation. “Dependency claim” addresses the financial support and services the dependents lost due to the death. It compensates for things like lost income the deceased would have provided and the value of lost care or household services
What happens if a claim is not commenced in a claimant’s lifetime
Generally, the claim’s value is significantly diminished if the claim is not commenced in a person’s lifetime, as damages for pain and suffering cannot be recovered. For mesothelioma sufferers, the lost damages is generally in the order of $500,000 or more.
There is no scope to explain why the proceedings were not commenced (often, claimants may not be aware of the diagnosis or unaware of their rights to make a claim).
There are some limited exceptions, such as where there is exposure in the United Kingdom or under some of the statutory schemes.
Claims can be commenced quickly, if needed, within hours of first instructions.
Seek Specialist Advice
Navigating these legal pathways during a difficult time requires expert guidance. Segelov Taylor Lawyers specialise in acting for claimants in asbestos litigation We can help you understand your rights, manage the process, and ensure your family’s entitlements are maximised.