Making a claim

Monday 1 May, 2017

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On this page: Common law claimStatutory benefits | Mesothelioma support in Australia


Some people who develop mesothelioma due to asbestos exposure may be able to claim compensation. Your legal entitlements will depend on the state or territory in which you were exposed to asbestos. In some cases, the exposure may have occurred overseas.

Mesothelioma takes a long time to develop, so your exposure to asbestos may have occurred some 40 years ago. You might think it was a trivial exposure, or you may not remember any exposure. Talking to your friends and family can help to bring back memories of places where you may have been exposed to asbestos.

An expert lawyer will also talk you through your life history and help you find out where the exposure took place. They will explain what compensation you may be able to claim and help make the process easy for you to understand.

Generally, a person diagnosed with mesothelioma has two different types of legal entitlements:

  • a claim through the court, known as a "common law claim"
  • a claim under a government compensation scheme, known as a "statutory claim".
"When my husband was diagnosed with terminal mesothelioma, we were advised to apply for compensation. He reluctantly contacted lawyers, and they assured us we had a very strong case. My husband didn't survive to `win' his case but I did, with a lot of help, caring, understanding and good advice from our lawyers." – Sharon

Common law claim

A common law claim is a claim process through a court. The claim is brought against the party or parties who caused a person to be exposed to asbestos. These parties are known as the "defendants". A common law claim begins by filing a formal court document known as an "originating process". The originating process must be lodged within your lifetime to protect your entitlement to compensation. As long as you start a common law claim during your lifetime, your estate will still be able to continue with your claim if you die before the claim is finalised.

You need to speak with a lawyer experienced in asbestos-related compensation claims as soon as possible after your diagnosis. If you're too unwell to visit the lawyer in their office, they can visit you at home or in hospital to discuss the process and how it can be simplified for you and your family.

t may still be possible to bring a common law claim even if:

  • you were exposed to asbestos many years ago
  • you no longer work for the employer where you were exposed
  • you have worked for many employers
  • you were self-employed or a contractor
  • your employer is no longer in business
  • you are, or were, a smoker
  • you were exposed to asbestos in another state or overseas
  • you were not exposed in the workplace
  • you were only briefly exposed to asbestos
  • you were exposed to asbestos on more than one occasion
  • you don't know how you may have been exposed to asbestos.

Finding a lawyer

Making a mesothelioma claim is a specialised area. It is important to talk to a lawyer or law firm experienced in this area of work, as they often have a wealth of knowledge about how and where asbestos was used.

You can find a leading lawyer in asbestos by checking the Doyles Guide Directory – visit doylesguide.com/australia and type "asbestos" in the search bar. Mesothelioma support organisations can also assist you in contacting an expert asbestos lawyer.

Talking to an expert in this field can help reduce the time taken to investigate a claim. Experienced lawyers also understand mesothelioma and what you are coping with. Your lawyer will work around medical appointments or treatments to try to make things less stressful for you.

How long will a common law case take?

The majority of common law claims for mesothelioma are settled out of court within 3–6 months of the claim being lodged. If your prognosis is poor, or you suddenly become very unwell, the process can be sped up to try to ensure that your common law claim is resolved in your lifetime. Only a few cases actually proceed to a court trial.

What if I die before my claim is settled?

Many people diagnosed with mesothelioma worry that their claim won't be finalised before they die. The largest component of compensation is usually the general damages. So long as you start a common law claim in your lifetime, then your entitlement to general damages is protected, and your estate would be able to continue with your claim if you die before your claim is finalised.

In some circumstances, your family may also be entitled to dependency entitlements if you die because of the mesothelioma. Your lawyer will let you know if this applies to you and your family.

How much does legal action cost?

Legal costs are generally dependent on the amount of legal work required to resolve your case. Most lawyers who specialise in asbestos-related compensation claims offer a "no win, no fee" agreement. This means that the lawyers will only charge for legal services if they are successful in resolving your case. You are also entitled to claim a large portion of your legal costs from the defendants as part of your common law claim. The amount of costs awarded will depend on whether your case was resolved at mediation or at trial.

Ask your lawyer for a costs agreement and get them to talk it through with you so you know what is involved. Be aware that even under a "no win, no fee" agreement, if you:

  • start a claim but decide to cease the action, you will usually need to pay any legal costs up to that point
  • proceed but lose the court case, you will not need to pay your
  • lawyer, but you may still need to pay court costs for yourself and possibly for the defendant
  • are successful, a significant portion of your compensation might be absorbed by any costs that the defendant doesn't have to pay.

Statutory claims

Some states and territories have special government compensation schemes for people who develop mesothelioma and other asbestos-related diseases. These schemes usually apply only if you have been exposed to asbestos during your employment.

he authorities for Australia's asbestos compensation schemes are:

Do I need a lawyer?

It is possible for you and sometimes your dependants to lodge a statutory claim directly with the authority in your state or territory. However, most people with mesothelioma prefer to use a lawyer to arrange all their claims.

The laws around Australia vary and can be complex. Some people may be entitled to bring a common law claim instead of, or in addition to, a statutory claim. It is vital to consult an expert asbestos lawyer before applying for statutory benefits to ensure you aren't excluded from also claiming common law compensation.

Using an expert asbestos lawyer will allow you to access all your entitlements while concentrating on your health and spending time on the things that are important to you.

Advance care planning

It is also worth seeking the advice of a lawyer to ensure your will is up to date and that your intentions for your estate are clear.

You may wish to arrange legal documents appointing a substitute decision-maker. Depending on where you live, the documents for appointing this person may be known as an enduring power of attorney, enduring power of guardianship, or appointment of an enduring guardian. You can also outline your wishes for your future medical care in an advance care directive. These documents are part of advance care planning.

Cancer Council offers a Legal Referral Service that can help with wills and advance care planning, and assistance is free for eligible clients. Call 13 11 20 to find out more.

Mesothelioma support in Australia

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Reviewed: Dr Steven Kao, Medical Oncologist, Chris O'Brien Lifehouse, NSW; Theodora Ahilas, Principal, Maurice Blackburn Lawyers, NSW; Prof David Ball, Director, Lung Service, Peter MacCallum Cancer Centre, VIC; Cely Benchoam, Consumer; Prof Kwun Fong, Thoracic Physician, University of Queensland Thoracic Research Centre, The Prince Charles Hospital, QLD; Victoria Keena, Executive Officer, Asbestos Diseases Research Institute, NSW; Angela Kyttaridis, Social Worker, Concord Repatriation General Hospital, NSW; Dr Judith Lacey, Head of Supportive Care and Integrative Medicine, Chris O'Brien Lifehouse, NSW; Amanda Maple, 13 11 20 Consultant, Cancer Council SA; A/Prof Brian McCaughan, Thoracic Surgeon, Sydney Cardiothoracic Surgeons, Strathfield Private Hospital and University of Sydney, NSW; Jocelyn McLean, Mesothelioma Support Coordinator, Asbestos Diseases Research Institute, NSW; Kirsten Mooney, Thoracic Cancer Nurse Coordinator, WA Cancer and Palliative Care Network, Department of Health, WA; Prof David Morris, University of New South Wales, Department of Surgery, St George Public Hospital, NSW; Rod Smith, Awareness and Support Co-ordinator, Bernie Banton Foundation. We also thank the health professionals, consumers and editorial teams who have worked on previous Cancer Council resources.

Updated: 01 May, 2017