Oral Presentation Australasian Association of Bioethics & Health Law and New Zealand Bioethics Conference

My Pain and Suffering is not Negated by My Death - A paper exploring whether a plaintiff’s right to general damages should be preserved after their demise (908)

Naty Guerrero-Diaz 1 , Janine McIlwraith 1
  1. Slater + Gordon Lawyers, Melbourne, VIC, Australia

In most Australian jurisdictions, if a plaintiff in a claim for damages for personal injury dies as a result of the medical negligence, the cause of action survives for the benefit of the estate, with the exception of the rights of the estate to the recovery of damages for pain and suffering for bodily or mental harm or for the curtailment of expectation of life.  In contrast, the position was specifically varied by legislation in relation to asbestos exposure claims so the entitlement to general damages survives the plaintiff’s death. This paper explores the foundation for the rule and whether the distinction between asbestos exposure claims and other personal injury claims can be justified in modern litigation, with particular reference to the potential incentives for defendants to delay and the resultant injustice of the rule in expedited hearings for medical negligence.