There are many causes of lung cancer including exposure to silica dust.
If you have contracted lung cancer and were exposed to silica dust, you may have a right to bring a claim at common law against your former employer, head contractor or occupier of the site where construction work was carried out. In addition, if you were exposed to silica dust during the course of employment in New South Wales you may also be able to claim benefits from the Dust Diseases Authority.
To succeed in a claim in relation to your lung cancer you do not need to prove that your exposure to silica dust was the cause of your lung cancer but rather that it made a material contribution.to the development of the lung cancer.
It is important you consult a lawyer as soon as possible as court proceedings must be filed in your lifetime for all of your damages to survive.
Common Law Claim for Damages
In New South Wales silica induced lung cancer claims are brought in the Dust Diseases Tribunal (the DDT). The DDT is a specialist court that was established in 1989 to hear claims for persons suffering from dust diseases such as lung cancer. The Court has developed special procedures and rules of evidence to expedite claims. A claim for a person suffering from lung cancer usually takes between 3 to 6 months to finalise. Claims can run quicker if necessary and have on occasions been completed in as little as a few days. Since 2005 lung cancer claims are subject to the claims resolution process which requires the early exchange of information and compulsory mediation to promote early settlement. In other States claims are brought in special lists in the District or Supreme Courts which have procedures to expedite claims including referring them to mediation or court appointed settlement conferences at any early stage.
Most claims are brought against a former employer, head contractor or occupier of the site where construction work was carried out. If your employer no longer exists, you can still sue if you can determine the workers’ insurer of the company. Lung cancer is an indivisible injury which means you do not have to sue in relation to all your exposure to silica dust provided you can prove the exposure you have sued on made a material contribution to the development of your lung cancer.
The issue of whether exposure to silica dust made a material contribution to the development of lung cancer is often a point of contest particularly if you are or were a smoker. There are a number of ways the court will assess this: If you are also suffering from silicosis then there is no question that your silica exposure made a material contribution to your lung cancer even if you were a heavy smoker. If you do not have silicosis then you will need to show you had a heavy and sustained exposure to silica. We will sit with you at your home, in hospital or at our offices and take a detailed history in relation to your work, exposure to silica dust and smoking history to determine whether we believe you have had sufficient exposure to silica to succeed in a claim.
If you are successful in your claim you will be awarded lump sum compensation to compensate you for your pain and suffering, loss of expectation of life, medical and other expenses (if you are not covered by the Dust Diseases Authority- see below), the commercial cost of care provided by your friends and family, loss of earnings and superannuation if you were working at the time you experienced symptoms and in some cases the commercial cost of replacing services you provided to others such as young children or a sick or elderly child, spouse or parent.
A lung cancer claim is worth between $350,000 and $450,000 clear in your hand (after all costs and disbursements are paid) plus medical expenses (if not covered by the Dust Diseases Authority), economic loss and replacement services.
If you are or where a smoker your damages may be reduced if a court finds you were contributory negligent in continuing to smoke cigarettes when you knew or should have known of the dangers to your health from smoking.
The court will do everything possible to finish your claim in your lifetime. However, if you die before your claim is finalised then provided the claim is filed in court in your lifetime your estate can continue your claim at full value.
In lung cancer claims, we act on a full no win no fee basis which means we will not be paid unless you win your claim. More information about our fees is set out on our fee policy page.
Dust Diseases Authority (DDA)
If you were exposed to silica dust as a worker in New South Wales and you develop lung cancer you may also have a right to claim a pension and have all your medical, hospital, pharmaceutical, nursing and nursing aids and equipment costs paid. The DDA will also pay for travel expenses and assistance required around your home and garden.
An application to the DDA is in addition to your common law claim. You can (and most people do) both, although where there is a DDA award you cannot claim in your court proceedings for out of pocket expenses which will be covered by the DDA.
An application to the DDA is an administrative process. You complete an application form and sign authorities to allow the DDA to obtain access to your medical records. You will then be contacted by an industrial history officer who will take a work history and discuss your exposure to silica dust. You will be sent an industrial history statement to proof and sign. Your industrial history along with your medical records will be placed before a Medical Panel which consists of 3 respiratory physicians. If your application is approved the CEO will grant you a fortnightly pension. The pension is not means tested. Your pension will be backdated to the date on which the Medical Panel finds the first evidence of your lung cancer on your x-rays or scans. It generally takes 4 to 6 weeks for your application to be processed. Once approved the DDA will pay all of your related expenses and refund any expenses paid by you in the past.
In addition to your rights with the DDA, on your death a dependant partner or child has rights to a lump sum payment (the amount of the lump sum depends on the level of dependency) and an ongoing pension. Your estate can also claim funeral expenses up to $9,000.00.
We can assist you to complete a DDA application form and guide you through the application process.