Claiming compensation

Friday 30 September, 2011

Reviewed: Dr Malcolm Feigen, Senior Radiation Oncologist, Austin Health; Dr Paul Jenkinson, GP; Mary Duffy, Lung Nurse Specialist, Peter MacCallum; Prof Bill Musk, Respiratory Physician; Kathryn Turner, Social Worker, Slater & Gordon Lawyers ; Jane McDermott, Principal, Maurice Blackburn Lawyers; Asbestos Diseases Society of Victoria

On this page: Statutory benefits | Does it matter where in Australia I was exposed to asbestos? | What if I was exposed in the UK? | Who can I sue for compensation? | What sort of compensation will I get? | What's required of me during a claim process? | How long will a claim take? | What if I die before the claim resolves? | Will I need to pay money back? | How to choose a lawyer | How will I afford a lawyer? | Is it worth it?

This section tells you about your potential legal rights. It's not legal advice. Please contact a lawyer for legal advice about your own situation.

Almost every case of mesothelioma is caused by previous exposure to asbestos in the workplace or at home. Everyone who is diagnosed with mesothelioma in Australia is entitled to investigate bringing a compensation claim either at common law or under a statutory compensation scheme.

The process for bringing legal claims for compensation for mesothelioma is straightforward. Depending on the treatment you are receiving and how you are feeling, it is advisable to see a lawyer as soon as you are up to it to discuss your potential claim.

You should be aware that you must lodge your claim in court within your lifetime to protect your rights to common law compensation. In many states this is the largest component of damages available to you. A lawyer can lodge this document on your behalf to ensure that your common law entitlements are protected.

During this very difficult time your lawyer can advise you about the process and how this can be made easier for you and your family. Common law compensation In a common law compensation claim you need to prove that:

  • your employer and/or the manufacturer of the asbestos products to which you were exposed owed you a duty of care
  • they were negligent in exposing you to asbestos dust and fibre
  • because of that negligence you have been injured
  • because of that injury you have suffered damage.

The claim begins with a formal court document called a Statement of Claim. Most Australian states and the ACT are able to speed up the hearing of asbestos claims. New South Wales has a dedicated tribunal called the Dust Diseases Tribunal to deal with these types of claims. Your lawyer will present a medical report from your treating doctor to confirm your condition to speed up your claim.

Most asbestos claims are settled at a pre-trial conference or mediation. If it cannot be resolved, it will proceed to a hearing or trial. At the hearing or trial, your lawyer will need to prove duty of care, negligence, injury and damage as described above.

Statutory benefits

Some states have statutory compensation schemes for people with mesothelioma. Ask your lawyer whether you qualify for any of these schemes.

New South Wales:

In New South Wales, the relevant Act is the Workers Compensation (Dust Diseases) Act 1942 (NSW). You can make a claim to the Dust Diseases Board if you can show that:

  • at all relevant times you were a worker and employed in New South Wales within the meaning of the Act
  • you have been exposed to offending dust such as asbestos dust
  • you have contracted a disease named in the Act.

If you meet these criteria you are entitled to weekly compensation payments or a pension. You are also entitled to relevant hospital, medicines and related expenses.

This entitlement continues through your lifetime. If you die from the asbestos-related disease, your dependants at the time you made the claim become eligible to claim for lump sum and weekly compensation.

You are not required to prove fault. Your lawyer will submit the application. The Dust Diseases Board (DDB) will then contact you. See the DDB website or talk with your lawyer.

Victoria

In Victoria, the relevant Act is the Accident Compensation Act 1985 (Vic). You have entitlements if you were exposed to asbestos in the course of your employment after 31 August 1985.

If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependents may also have entitlements.Your lawyer will discuss this with you and your family.

Queensland

In Queensland, the relevant Act is the Workers' Compensation and Rehabilitation Act 2003 (Qld).

Your entitlement to claim damages begins on the date you are diagnosed with an asbestos-related illness. Your entitlement depends on where your asbestos exposure occurred. Generally, people who were exposed in the workplace are entitled to workers' compensation benefits. 

Any claim for these benefits must be made within six months of being diagnosed with an asbestos-related illness.

You do not have to prove fault by your employer to qualify. However, you must prove you were exposed to asbestos in the workplace for which the workers' compensation insurer is liable.

It doesn't matter if you are retired or still working. Your lawyer will advise you whether you qualify for these benefits and how much you can expect to receive. Generally, workers' compensation benefits for serious asbestos-related illnesses are paid in a series of lump sums.

Western Australia

In Western Australia, you may have entitlements under the Workers Compensation & Injury Management Act 1981 (WA). Please discuss this with your lawyer.

Tasmania

At the time of writing, the Asbestos Related Diseases (Occupational Exposure) Compensation Bill 2011 is to be passed and come into operation on 1 October 2011. The Act will seek to provide statutory benefits in a short timeframe to sufferers of mesothelioma. Your lawyer will be able to discuss this with you.

Commonwealth statutory entitlements

Some current and former Commonwealth Government employees may also be able to apply for statutory benefits. They need to have been exposed to asbestos during the course of this employment. Please discuss with your lawyer.

Does it matter where in Australia I was exposed to asbestos?

Usually the law of the state where you were exposed to asbestos will govern your claim. Different Australian states have different compensation schemes and entitlements. Depending on where you were exposed, you may have entitlements to common law damages, pensions and/or statutory benefits.

It may be that you have entitlements in competing jurisdictions. If you were exposed to asbestos in two or more states in Australia your lawyer will advise you as to where you should bring your claim to maximise your compensation entitlements.

What if I was exposed to asbestos in the UK?

If your only exposure to asbestos happened in the UK, you may be able to bring a common law claim in England or Scotland. Unlike in Australia, you do not need to issue this common law claim in your lifetime to protect your rights. Discuss your claim with a lawyer as soon as you are able to, as time limits apply.

If your asbestos exposure was as a result of work for an employer on or after 5 July 1948 you can also apply for a pension from the Industrial Injuries and Disablement Benefit Scheme . See the website for a claim form. You will need your national insurance number and your inland revenue history. Your lawyer can help with this.

You may also be able to apply for a one-off payment under the UK Pneumoconiosis Etc (Workers' Compensation) Act (1979) and the Diffuse Mesothelioma Scheme 2008. See www.nidirect.gov.uk for a claim form.

If you were exposed to asbestos in both Australia and the UK you may still be able to apply for a pension or one-off payment under these schemes. In the UK there are differences between English and Scottish laws. If you have questions, seek advice from a lawyer who practises in this area.

Who can I sue for compensation?

To ensure your rights are protected, contact a lawyer who will take a life and employment history of all of your potential lifetime exposures to asbestos.

From this history your lawyer will be able to tell you which entities to sue, known as defendants. Common defendants to asbestos claims include:

  • former employers
  • manufacturers of products containing asbestos such as James Hardie or Wunderlich
  • occupiers of sites where asbestos was present.

Very often if you worked with asbestos your previous employer may have gone out of business. This may not stop you from starting a claim for your compensable injury of mesothelioma. If it can be shown that your former employer had workers' compensation insurance at the time of your employment, an application can be made to the Court to reinstate the company for the purpose of litigating your claim.

Depending on your own personal history, your lawyer will issue your claim against your former employers and/or the manufacturers of the asbestos products you used and/or the occupiers of the sites you worked at.

If you have any documents related to your previous employers, please bring this to your first meeting with your lawyer.

What if I was self-employed?

If you were self-employed and remember using asbestos products, it is likely you will be entitled to claim compensation from the:

  • manufacturers of the products you used and/or
  • occupiers of the sites at which you worked.

Lawyers who practise in this area will be able to advise you more about this.

What if I smoked?

Mesothelioma is not caused by tobacco. Therefore you can still bring a compensation claim for mesothelioma if you smoked.

What sort of compensation will I receive?

Your common law claim may include damages for:

  • pain and suffering
  • loss of expectation of life
  • past and future medical expenses
  • past and future care and assistance
  • past loss of wages and loss of future earning capacity if you were working at the time of diagnosis
  • past and future domestic care expenses for a dependent (e.g. a child) (these damages are only available in New South Wales and South Australia).

Statutory benefits will be calculated in line with the relevant scheme.

What will be required of me during the claim process?

First, you will meet with a lawyer at your home or in the hospital. Your lawyer will take a detailed life and work history from you and discuss any exposures to asbestos you may have had. To prepare for this meeting, you may wish to make notes about your work history and the names of any former workmates.

If you can't remember any asbestos exposure, don't worry. Many people can't remember straight away how they were exposed to asbestos. This is normal: 20 to 50 years may pass between inhaling asbestos fibres and developing mesothelioma. It may take time to talk through your history and work out how you were exposed to asbestos.

Your lawyer will issue proceedings based on this advice and any investigations that were required to identify the defendants.

You may be asked to visit doctors, for your lawyers and the defendants. If you are not well enough, you will not have to do this. Your lawyer will work around your medical appointments or treatments to make things less stressful for you.

During your claim your lawyer will contact you often to discuss progress. Make sure that you or a family member contacts your lawyer if there is a change in your health. You should feel able to speak to your lawyer at any time about any aspect of your claim.

My father was initially reluctant to contact a lawyer, but once he did he felt very comfortable with the lawyers he used who were very experienced in this area of law. They were professional, forthright, upfront and honest, yet compassionate. Dad was encouraged by the fact that his lawyers sought the best possible outcome for him, and that this was achieved in a short timeframe and within his lifetime, with the least amount of intrusion into his remaining time. (Ellie, 46)

Before a trial, there is a ‘pre-trial conference' or ‘mediation' stage. Your lawyer will ask you for instruction in relation to any offers made to resolve your claim. This can be done over the phone.

If your case is to be heard before a court, you may be required to give evidence in court. If you are not well enough, you can give evidence at home.

How long will a claim take?

Generally the whole process should be complete within three to six months. Claims can be done in a shorter timeframe if you become very unwell. To allow this to happen your medical team would need to provide evidence in support of your situation. 

What if I die before my claim resolves?

Many people suffering from mesothelioma have concerns about what will happen to their claim if they die before it is resolved. Provided the claim is lodged or issued in Court within your lifetime, your entitlement to general damages, often the largest component of a common law claim, is protected for your estate and your family.

Your family may also have dependency entitlements if you die because of your mesothelioma. Your lawyer will be able to advise you as to whether this applies to you and your family.

When my husband was diagnosed with terminal Mesothelioma our lives were shattered. We were advised to apply for compensation. He reluctantly contacted lawyers, as he was unsure of his chances of "winning" his case and didn't want to leave me in financial strife if he lost. Lawyers 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. This has enabled me to have the financially secure future that Gordon had hoped for me. (Sharon, 68)

 Will I need to pay money back?

When your claim is resolved, you will need to reimburse the following for treatment and other costs related to your illness:

  • Medicare Australia
  • your private health insurer (if you have one)
  • Centrelink, if you are receiving a disability pension or
  • the Department of Veterans' Affairs. 

After your matter has settled there may be a period you will no longer receive a pension on account of your settlement. Your lawyer will discuss this with you during settlement negotiations.

Your lawyer may be able to negotiate a cap on future payments to your private health insurer. This will give you and your family some certainty about the costs of your future care.

How to choose a lawyer

Because making a mesothelioma claim is a specialised area it is important you deal with a lawyer and law firm experienced in this area of work. Lawyers who practise exclusively in this area often have a wealth of knowledge about asbestos and how and where it was used. This will often cut down the time taken to investigate a claim.

They will have a good understanding not only of how to make the claim but also about your disease and what you are coping with.
Questions you may like to ask the law firm:

  • How much experience of mesothelioma compensation claims does the lawyer have?
  • How successful has the lawyer been in past mesothelioma compensation claims?
  • How long does a mesothelioma compensation claim dealt with by this lawyer normally take to go to court or be settled? As a guide, claims for living mesothelioma sufferers should be finished within three to six months or sooner if possible.
  • What charges does the lawyer make for dealing with a mesothelioma compensation claim? Does the lawyer work on a no win-no charge basis or what are the full details of charges? What are the conditions attached to no win-no charge?
  • How much compensation am I likely to receive? 

How will I afford a lawyer?

All lawyers who practise solely in asbestos litigation will offer you a no win-no charge agreement. This means that you do not have to come up with any out-of-pocket expenses until the claim is resolved. Conditions will apply to this and you will need to discuss this with your lawyer. You should feel free to ask your lawyer about legal costs when you first meet them and throughout the conduct of your claim.

Is it worth it?

In most common law claims for mesothelioma, people receive most of the settlement monies in an out-of-court or court settlement. This applies to statutory benefits as well. If your case is successful, you will need to pay legal fees.

I strongly recommend recently diagnosed persons try to seek legal advice on asbestos litigation. I now know how respectful and sensitive they are in processing what is often an exhausting claim on your behalf. They do all the hard work and research and were always very understanding of the awful range of emotions during this very confusing time in your life - don't wait. (Jane, 52)

To find a lawyer

For a referral to a lawyer who only deals with common law claims for mesothelioma and other asbestos-related diseases such as lung cancer or asbestosis, contact the law society in your state or territory:

  • Victoria: (03) 9607 9311
  • New South Wales: (02) 9926 0333
  • Queensland: (07) 3842 5842
  • Northern Territory: (08) 8981 5104
  • Western Australia: (08) 9322 7877
  • South Australia: (08) 8229 0222
  • Tasmania: (03) 6234 4133

 

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