Many former members of the Australian Defence Forces (ADF) were exposed to asbestos during their service, most notably those who served in the Royal Australian Navy but also former members of the Royal Australian Air Force and the Royal Australian Army. Unfortunately, some of those exposed have and will develop asbestos diseases including asbestosis, asbestos related pleural disease (ARPD), lung cancer or mesothelioma.
If you have contracted an asbestos disease because of service in the ADF you have the choice of either claiming statutory compensation under the Commonwealth Safety Rehabilitation and Compensation Act, 1988 or making a common law claim for lump sum compensation in court. It is important you make an informed decision before deciding which claim to make as your decision is irrevocable.
A statutory or Comcare claim is an administrative process whereby you complete an application form and attend a medical examination. You do not have to prove fault just that your exposure to asbestos during your service has caused you to suffer disease causing disability. If your claim is accepted you will receive a lump sum for permanent impairment, weekly payments of compensation where the asbestos related disease has prevented you from working and medical expenses.
Common Law Claim
A common law claim is a claim through the courts for lump sum compensation. All states have developed specialised processes to deal with dust diseases claims. In New South Wales, common law claims are brought in a specialist court, the Dust Diseases Tribunal of New South Wales. This Court was established in 1989 and has specialist judges and rules of evidence to allow claims to run quickly. Since 2005 claims in the Dust Diseases Tribunal have been subject to the Claims Resolution Process which requires compulsory mediation before a matter can come before the court. In other states, claims are brought in special court lists to ensure they are dealt with expeditiously. Most cases settle at mediation without ever reaching court. Malignant claims normally take 3 to 6 months from start to finish but can go quicker if required.
To be successful in your claim you must prove negligence, that is that at the time of your exposure to asbestos the Commonwealth knew or ought to have known of the dangers of exposure to asbestos and failed to take reasonable precautions to prevent you from contracting an asbestos disease. The Commonwealth does not usually dispute negligence and in most cases argues only about the amount of damages to be awarded. This is because documents produced by the Commonwealth in previous cases show the Commonwealth was warned of the dangers of exposure to asbestos from lagging around pipes in naval ships in the 1940s.
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 (including new treatments for mesothelioma such as Avastin and Keytruda), the commercial cost of gratuitous 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 child or sick or elderly spouse or parent. The amount of monies you are awarded will depend on the circumstances of your claim including your age, the period you have suffered disability, your level of disability and your prognosis. If you are suffering from mesothelioma and are not working at the time of your diagnosis you will likely receive damages in the range of $400,000.00 to $450,000.00 in your hand after all costs are paid.
If you are suffering from asbestosis or ARPD can claim provisional damages. This means a claim is brought for the condition you are now suffering from and you reserve the right to bring a further claim in the future if you contract a new asbestos disease such as mesothelioma or lung cancer.
I have acted for sufferers of asbestos diseases including many former service members for over 20 years. In my experience former service members who suffer from an asbestos disease are nearly always better off making a common law claim against Comcare than bringing a statutory Comcare claim. This is because a common law claim in most cases results in a higher award of money than a Comcare claim. Further, a Comcare claim may involve more than one application as the amount you receive will be determined by your level of disability at the time you make the application even if you have a terminal disease such as mesothelioma or lung cancer and you will have to make a further application if your condition deteriorates. A common law claim will provide compensation based on your current and likely future disability.
Claim by a Dependant
If your loved one has died of an asbestos related disease then you can make a claim as a dependant under the Safety Rehabilitation and Compensation Act, 1988. Benefits include funeral expenses, a lump sum payment and payments to dependant children. A claim can be made by a dependant even if the deceased received lump sum compensation from a common law claim in their lifetime.
Ex-service members may also have entitlements under the Veterans Entitlements Act, 1986. A successful application results in the payment of a pension but not a lump sum. A successful application can also result in the payment of medical and related expenses.
Segelov Taylor has expertise in bringing claims on behalf of persons suffering from asbestos diseases. Both Tanya Segelov and David Taylor have acted for hundreds of sufferers of asbestos diseases including the late asbestos campaigner Bernie Banton. If you have any questions in relation to compensation for asbestos diseases, please contact our office on 02 8880 0500, email firstname.lastname@example.org. We will come and see you at your home or in hospital and provide advice to you. We act on a ‘no win no fee’ basis for all asbestos claims.