Making a claim

Monday 1 June, 2015

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On this page: Common law claimStatutory benefits


Some people who develop mesothelioma due to asbestos exposure may be able to claim compensation. Your legal entitlements may vary depending on the state or territory in which you were exposed to asbestos.

Generally, a person diagnosed with mesothelioma may have 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’.

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.

It 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.

What you must prove?

In a common law compensation claim, you need to prove that:

  • you were exposed to asbestos in your past
  • the defendant owed you a legal duty of care
  • your exposure to asbestos has caused you to develop mesothelioma
  • you have suffered pain, suffering, loss and damage because of the mesothelioma
  • the defendant was negligent in causing, or allowing, you to be exposed to asbestos (for example, your employer failed to prevent you from being exposed to asbestos in your workplace, or a manufacturer failed to warn you that asbestos could be dangerous to your health).

What happens during the claim process?

First, you will meet with a lawyer in their office, 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. If you can’t remember any asbestos exposure, don’t worry. Many people can’t remember straightaway how they were exposed to asbestos, as it was probably a long time ago. It may take time to talk through your history and work out how you were exposed to asbestos.

Your lawyer may organise for you to see a doctor who is an expert in the field of asbestos-related diseases. If you are not well enough to leave your home, then your lawyer can organise for the doctor to visit you at your home or in hospital. Your lawyer will work around your medical appointments or treatments to try to make things less stressful for you.

During the course of your common law claim, your lawyer will contact you regularly to discuss the progress of your claim. If there is a change in your health, you or a family member should let your lawyer know. You should feel able to speak to your lawyer at any time about any aspect of your claim.

Before a common law claim can proceed to a court trial, the claim will usually go to a ‘settlement conference’ or ‘mediation’. A settlement conference or mediation is a chance for the parties in the claim to meet and attempt to settle the claim. Most common law claims for asbestos-related diseases settle at this stage, and do not proceed to a court trial.

If your common law claim does not resolve at the settlement conference or mediation, your claim will go to trial before a court. During the trial, you may be required to give evidence in court. If you are not well enough to attend court, a judge or court-appointed representative will visit you at home or in hospital to take your evidence.

What sort of compensation will I receive?

There are different categories of compensation (known as heads of damages) that you may be eligible for. These are used by the court to determine how much compensation you are entitled to. They include compensation for:

  • the pain and suffering you have endured as a result of the mesothelioma diagnosis (known as general damages)
  • loss of life expectancy
  • past and future loss of income caused by the mesothelioma diagnosis (including your entitlements, such as superannuation)
  • compensation for any out-of-pocket expenses you have incurred as a result of the diagnosis, such as medical or pharmaceutical expenses
  • compensation for the gratuitous care provided to you by your friends and family, as a result of mesothelioma
  • compensation for your legal costs in bringing a common law claim for compensation.

In some circumstances compensation may be claimed for your loss of ability to provide care and domestic assistance to a dependant, such as a spouse, child and/or grandchild.

How long will a common law case take?

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

What if I die before my claim is settled?

Many people diagnosed with pleural 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 dependancy entitlements if you die because of the mesothelioma. Your lawyer will let you know if this applies to you and your family. 

"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 

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. Additionally, 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 will depend on whether your case was resolved at mediation or at trial. Talk to your lawyer for more details.

Will I need to pay money back?

If your claim is successful, your lawyer will let you know if you need to make any repayments to the following:

  • Medicare for any medical treatments received relating to your diagnosis of mesothelioma
  • your private health insurer for any medical treatments that were covered by the insurer, and that related to your diagnosis of mesothelioma
  • Centrelink, if you are receiving a disability pension
  • Department of Veterans’ Affairs, if you have received certain veterans’ entitlements
  • any public hospital where you have received certain inpatient or outpatient services.

Usually, your lawyer will include any amounts you are required to repay in your common law claim. This means that you will still receive your compensation, and you will not be left ‘out of pocket’ for any repayments you may be liable to make.

Finding a lawyer

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

Talking to an expert in this field can help reduce the time taken to investigate a claim. Experienced lawyers also have a good understanding of pleural mesothelioma and what you are coping with.

To find a lawyer who specialises in 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:

New South Wales 02 9926 0333
Victoria 03 9607 9311
Queensland 1300 367 757
South Australia 08 8229 0200
Western Australia 08 9324 8600
Tasmania 03 6234 4133
Northern Territory 08 8981 5104
ACT 02 6274 0300

Statutory benefits

Some states and territories have special government compensation schemes for people who develop mesothelioma and other asbestos-related diseases.

These compensation schemes usually apply only if you have been exposed to asbestos during the course of your employment. Some people may be entitled to bring a common law claim instead of, or in addition to, a statutory claim. It is important that you talk to a lawyer before applying for statutory benefits to ensure you are not excluded from also claiming common law compensation. See the tables below for details.

   New South Wales
Victoria
Queensland
Name of the Act
 Workers’ Compensation (Dust Diseases) Act 1942 Workplace Injury Rehabilitation and Compensation Act 2013  Workers’ Compensation and Rehabilitation Act 2003
Who can make a claim
  • Only people who were employed in NSW
  • People exposed to offending dust such as asbestos dust while employed in NSW
  • People who contracted a disease named in the Act, i.e. pleural mesothelioma
People exposed to asbestos in the course of their employment after 31 August 1985  People exposed to asbestos while working in Queensland
What are my entitlements?
Weekly compensation payments or a pension. The Dust Diseases Board pays for your hospital, medical and pharmaceutical expenses, nursing care, nursing aids and equipment, and other related expenses such as assistance with housework and garden maintenance.  Payment for pain and suffering, past and future medical expenses, past and future loss of income, cost of assistance around the home, and travel to medical appointments.  Lump sum compensation. It doesn’t matter if you are retired or still working.
Do I have to prove fault?
No  No No
Can I apply for other benefits?
Yes, benefits are in addition to your right to claim at common law.  You may be entitled to workers’ compensation benefits and superannuation and total permanent disability claims.  You may be entitled to workers’ compensation benefits, and superannuation and total permanent disability claims. 
Can my family apply?
If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family.  If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family.  If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family. 
How to make a claim
You or your lawyer can submit an application to the Dust Diseases Board. Visit ddb.nsw.gov.au.   Contact WorkSafe Victoria: worksafe.vic.gov.au Contact WorkCover Queensland: worksafe.qld.gov.au.

 

   South Australia
Western Australia  Tasmania
Name of the Act
Return to Work Act 2014 Workers’ Compensation and Injury Management Act 1981 Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011
Who can make a claim People exposed to asbestos while employed in South Australia People who have at least 15% impairment as determined by a Medical Assessment Panel People exposed to asbestos while working as an employee in Tasmania
What are my entitlements?
Weekly payments of 100% from 0–52 weeks, 80% from 53 weeks until retirement age. Medical, health and support services will be provided for the life of the worker.  Lump sum compensation is available if you were exposed to asbestos as an employee in Western Australia, although the compensation awarded is much less than at common law. Lump sum payment with an additional payment for those under 80 years of age, with the amount dependent on your age at diagnosis, plus medical and funeral expenses.
Do I have to prove fault?
No  No  No
Can I apply for other benefits?
Yes, benefits are in addition to your right to claim at common law.  Yes, benefits are in addition to your right to claim at common law.
Yes, but you must apply for compensation under the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 before you can begin action for common law damages.
Can my family apply?
If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family.  If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family.  Yes, if you were eligible for compensation but die before you can make a claim, your family has 12 months to apply.
How to make a claim
Contact ReturnToWorkSA: rtwsa.com.   File a claim with your employer’s insurer. If unknown, file with Insurance Commission of Western Australia: icwa.wa.gov.au. Complete the claim form available from worksafe.tas.gov.au/compensation/ asbestos_compensation.

 

   Northern Territory
ACT
Commonwealth
Name of the Act
 Return to Work Act Workers Compensation Act 1951 Safety, Rehabilitation and Compensation Act 1988
Who can make a claim People exposed to asbestos while employed in the Northern Territory
People who have at least 15% impairment as determined by a Medical Assessment Panel  Current and former Commonwealth Government employees, including former members of the armed forces, if they were exposed to asbestos during the course of their employment
What are my entitlements?
Weekly payments plus medical, surgical and rehabilitation treatment costs.  Lump sum compensation is available if you were exposed to asbestos as an employee in the ACT, although the compensation awarded is much less than at common law.   Lump sum plus medical expenses. The amount of the lump sum is determined by the level of disability at the time of the application, with further applications required as your condition deteriorates.
Do I have to prove fault?
No  No  No
Can I apply for other benefits?
May be entitled to compensation under other laws, in which case won’t be entitled to compensation under this Act.  Yes, benefits are in addition to your right to claim at common law.  If you make a claim through Comcare, you cannot also make a claim at common law. However, your dependants may bring a ‘dependency claim’ later on. This claim will not affect the common law claim made in the lifetime of the person with pleural mesothelioma.
Can my family apply?
If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family.  Discuss your dependants’ entitlements with your lawyer.   
How to make a claim
Contact NT WorkSafe: worksafe.nt.gov.au.   Contact WorkSafe ACT: worksafe.act.gov.au  Contact Comcare: comcare.gov.au.

Reviewed: Theodora Ahilas, Principal, Maurice Blackburn Lawyers, NSW; Shirley Bare, Support Group Facilitator, Asbestoswise, VIC; Geoffrey Dickin, Consumer; Victoria Keena, Executive Officer, Asbestos Diseases Research Institute, NSW; Angela Kyttaridis, Social Worker, Concord Repatriation General Hospital, 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; Clin/Prof AW Musk AM, Schools of Population Health and Medicine, University of Western Australia, and Physician, Sir Charles Gairdner Hospital, Nedlands, WA; Dr Andrew Penman AM, Consultant, Asbestos Diseases Research Institute, NSW; Tanya Segelov, Partner, Turner Freeman Lawyers, NSW; Roswitha Stegmann, 13 11 20 Consultant, Cancer Council Western Australia, WA; Dr Mo Mo Tin, Staff Specialist Radiation Oncology, Chris O’Brien Lifehouse, NSW; and Prof Nico van Zandwijk, Director of the Asbestos Diseases Research Institute and Professor of Medicine, University of Sydney, NSW.

Updated: 01 Jun, 2015