Occupation and increased cancer risk
What's involved in finding out if you can claim?
What's involved for the person who makes a claim?
How much would the compensation be?
If you have cancer that has been caused or contributed to by your work, you may be able to sue your employer and gain financial compensation. Examples include exposure to such substances as asbestos, coal tar pitch, wood dust, rubber, benzine, radiation or ultraviolet lights.
Occupational cancer litigation (the process of bringing a lawsuit) is a specialised area of the law. The lawyer will often need to consider complex issues, and do extensive research and intensive work.
Most of the larger law firms with specialist cancer litigation departments will be appreciative and considerate of the shock and distress you are likely to feel as a result of finding out you have cancer. They will make every attempt not to intrude on your life and to minimise any stress or inconvenience. However, if you wish to claim compensation, there will be a need for some input from you. Here, we try and give an overview of the process and address some commonly asked questions.
It has been known for more than 200 years that being exposed in the workplace to various substances may cause cancer. The first discovery of an occupational cancer was scrotal cancer among chimney sweeps, which was made in 1775.
It is generally occupational scientists who collect the data about whether being exposed to particular substances does or does not increase the risk of certain cancers. The historical records of an occupational group are looked at to work out whether a particular cancer has been caused by the occupation. Of course, the cancer need not develop during the period of employment. It could take many years.
Studies relating to occupational cancers are continuing and complex. There are usually a number of lifestyle and personal history considerations to be taken into account. Where there is definite evidence of an increase of cancer in an occupational group, the 'carcinogen' (cancer-causing substance) can be found at high levels and a specific cancer usually develops.
The International Agency for Research on Cancer has categorised chemicals according to four levels:
Click here for a table that relates to those cancers in the Group 1 category. More information about the other groups mentioned above can be found in the book Cancer Epidemiology and Prevention Second Edition 1996 by David Schottenfeld, M.D. and Joseph F Fraumeni, JR, M.D.
You cannot look at an occupation and the research without also looking at lifestyle factors such as smoking and alcohol, when forming a definite view about the cause of a particular cancer. Litigation arising from occupational carcinogens is a very complex area of law and specialist medical and legal advice is essential. Sometimes, for example, smoking may be the only cause of cancer, and no claim would then be possible against your employer. Other times, a smoking habit may have combined with the exposure to a cancer-causing substance to increase the risks of developing cancer. A claim against your employer may then be possible.
Some law firms will give you the option of having the first consultation take place in their office, at your home, or in hospital. The first consultation will usually take about one hour.
As many occupational cancers are associated with long periods of exposure to the cancer-causing substance, the first meeting with a lawyer will involve taking a detailed work history. The lawyer will also ask you for details of the types of substances to which you were exposed.
To find a lawyer who specialises in this area, you can call the Law Institute of Victoria Referral Service on (03) 9607 9311.
In most cases it will be necessary to get an expert opinion about the most likely cause of the cancer and whether your work has caused, or contributed to, its development. An opinion may be sought from either your own doctor, or a specialist familiar to your lawyer. Sometimes it will also be necessary to get an expert opinion from an industrial hygienist about acceptable workplace standards at the time of your exposure.
In each State there is a legal scheme which compensates workers for injuries they sustain at work. The schemes limit the amount of compensation available and have strict time frames for making claims.
To be eligible to make a claim for worker's compensation, you need to show that the work, and particularly the cancer-causing substance, made a significant contribution towards causing and/or speeding up the development of the cancer.
Many substances are known to cause cancer. This knowledge is readily available within the chemical industry. Companies that use these substances have a duty to make sure that people, including workers, are not exposed to their harmful effects.
If a person is exposed to known cancer-causing substances and develops cancer, because the company did not protect them, then the person has a common law claim against the company.
A common law claim is a claim for compensation for pain and suffering and loss of enjoyment of life and for loss of earning capacity. It is a claim based on a company's obligation to provide a safe environment for workers and/or others who may be exposed to dangerous substances.
In 1960, mesothelioma was defined as a cancer for which the only proven cause is exposure to asbestos. A history of smoking is not considered relevant when a diagnosis of mesothelioma is made. Therefore, when bringing a claim in relation to mesothelioma, there is no argument as to what has caused the disease. The issues are where the asbestos exposure occurred and what the employer or occupier of the premises knew about the dangers of asbestos at the time of the exposure.
Some people diagnosed with mesothelioma don't know where they have been exposed to asbestos. Specialist lawyers who have collected a wealth of knowledge and information about the presence and use of asbestos are often able to identify where and how a person was exposed. Provided an asbestos exposure can be established, a claim for mesothelioma should be successful.
Smokers who have also been exposed to asbestos have a greatly increased risk of getting lung cancer. Where x-rays or other scans demonstrate past exposure to asbestos, and lung cancer has been diagnosed, a claim for compensation can be made, despite a history of smoking.
The level and extent of both a person's asbestos exposure and smoking history will be considered when assessing the value of the claim. Because a claim is usually made against an employer or occupier of the premises where the exposure took place, you can only claim for that which you can prove is as a result of the exposure. That which may be a result of smoking cannot be claimed from the employer/occupier of the premises.
Specialist doctors usually decide how much cancer is due to asbestos exposure and how much to smoking. As a result, a discount will usually be applied to the total value of the claim. This is to take account of the person's own contribution to the cancer through smoking and is called 'contributory negligence'.
People who have been heavily exposed to wood dust are at increased risk of developing nose (nasal) cancers. The link between excessive wood dust exposure and nose cancer was first recognised in about 1965.
A man worked as a cabinet maker from about 1970 to about 1995. In 1995 he was diagnosed with cancer of the sinuses from which he died at the age of 40. He left a wife and two children who had been financially dependent on him. His widow and children received over half a million dollars in compensation because it was proved that his heavy exposure to wood dust was the cause of his cancer. It was also proved that at the time of his exposure to wood dust his employer knew, or should have known, of the association between wood dust and nose cancer.
Occupational factors have been shown to have an association with an increased risk of some bladder cancers since the 1950s.
A man worked unprotected in a rubber factory from 1963 to 1983. His duties included cutting and handling hot rubber, and he was exposed to fumes from the hot rubber. He continued to work in the factory until 1996, during which time he was provided with various forms of protection. He has never been a smoker. In 1994, at the age of 56 years, he was diagnosed with transitional cell carcinoma of the bladder. He brought a claim on the basis of expert medical opinion that the fumes from the heating of the rubber contained polycyclic aromatic hydrocarbons—risk factors for bladder cancer. His employer should have appreciated that fact, and therefore should have provided better protection.
The average time frame for claims relating to cancer is between three and six months from the time you first see your lawyer until the case is resolved. Courts are aware of the need to give such cases priority. Claims can proceed faster where medical evidence indicates that you are very unwell, and need a speedy claim.
In Victoria, cancer caused by exposure to various dusts such as asbestos is subject to special legislation. Provided you start the claim during your lifetime, the claim can proceed if you die before it is resolved. Consult a lawyer for advice as soon as possible.
It is impossible to provide that sort of information within this website. The issues of each case must be considered and assessed on an individual basis. However, where there is good evidence to support a claim, it is likely that compensation of tens to hundreds of thousands of dollars would be payable.
Some larger law firms with specialist departments in occupational cancer litigation will offer the first consultation free of charge. Usually they will also agree to investigate a claim for you and will not charge a fee if the matter does not go ahead.
Expert opinion from medical specialists and the like regarding the cause of your cancer may be an expense that you would be required to meet. If the matter went ahead and was successful, the cost of the expert opinion would be recovered from the other party.
Once you have an expert opinion that supports a link between your employment and the development of your cancer, those law firms with specialist departments will usually agree to represent you on the basis that they will only charge a fee if the action is successful. In other words, a 'no win, no charge' arrangement.
Upon settlement of your claim, you will be asked to contribute towards the legal costs of your claim from any settlement sum. Each firm will have its own fee arrangements. However, in a general sense, fees are calculated by the number of hours worked and take into account the scale for a particular court.
In Victoria, the Limitation of Actions Act 1958 allows you to make a claim up to three years from when you find out you have cancer. At the end of the three-year period you will not be able to bring proceedings—but there are exceptions. You should always consult a lawyer about your circumstances even where you think the three years have passed. The period for making a claim in the other Australian States varies.
The information contained in this chapter is necessarily brief and may not be relevant to every claim. Litigation is complex and specialist advice is essential.
Updated June 2004
