BlogMesothelioma & Dust Diseases articlesTanya Segelov

Can you claim for loss of the age pension in a mesothelioma claim?

In a recent case in South Australia, Latz v Amaca Pty Limited the District Court of South Australia allowed a claim for loss of the age pension for a man suffering from mesothelioma on the basis that but for his condition of mesothelioma Mr Latz would have lived and received the age pension for another 16 years.

The Dust Diseases Tribunal of New South Wales has however taken a different approach. In two recent decisions, Dib v Amaca Pty Limited and Londos v Amaca Pty Limited the Tribunal did not allow the men suffering from mesothelioma to claim the loss of their age pensions. The Tribunal noted that the loss of an age pension is not a recognized head of damage, that the age pension is paid because of legislation and is not related in any way to a person’s earning capacity.

The Tribunal has previously awarded damages for the loss of a UK pension (Roberts v Amaca Pty Limited) and the loss of a superannuation pension. Unlike the Australian pension, the entitlement to a UK pension is dependent on contribution made during a person’s working life to the National Insurance Scheme. Similarly, loss of a superannuation pension has been awarded on the basis that the entitlement to the pension comes from contributions made from a person’s earnings during their working life.

The Tribunal noted that even if a loss of pension claim was available, in cases of Dib and Londos no pension would be payable as the court must deduct from the claim the cost of living which the court found, based on Australian Bureau of Statistic figures, to be $97.00 a week. Further, as both Mr Dib and Mr Londos were in receipt of a pension from the Dust Diseases Authority (DDA), the court deducted past and future DDA benefits from the claim. Once these deductions were made in each case there was claim remaining.

In the South Australian case of Latz, Mr Latz was not in receipt of a DDA pension. This meant the only deduction to his claim was the cost of living expenses, in that case held to be $30.00 a day or $210.00 a week.

The decision of Latz as is not binding on the Dust Diseases Tribunal. This means that at present a claim for loss of the Australian age pension cannot be maintained in the Dust Diseases Tribunal South Wales.

The Latz case is subject to an appeal to the South Australian Full Court which is being heard on 11 September 2017. Depending on the outcome of the appeal, an application may be sought for special leave to appeal to the High Court. If the claim was upheld in the High Court then a claim could be made in New South Wales. We will keep you updated of any new developments.

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