Exposure to asbestos is a cause of a number of types of cancer.
The two most well-known asbestos related cancers are mesothelioma and lung cancer.
Unlike mesothelioma, exposure to asbestos is not the only cause of lung cancer. Most people who develop lung cancer were smokers. Further, unlike mesothelioma where small exposure can cause the disease, asbestos will cause lung cancer only where a person has had heavy and sustained exposure, usually, about five to ten years of occupational or similar exposure. The issue as to whether a claimant had sufficient exposure to asbestos is generally the most significant issue in claims for asbestos related lung cancer.
Asbestos can cause all different kinds of lung cancer. Often (but not always) a person who suffers an asbestos related lung cancer will have other asbestos lung disease or markings such as asbestosis, or pleural plaques.
The fact that a person was a smoker (even a heavy smoker) does not mean that a lung cancer should not be attributed to asbestos exposure. Rather, for smokers with sufficiently large histories of exposure to asbestos, the cause is the combined effect of smoking and asbestos. Indeed, asbestos and smoking have a synergistic effect in the causation of lung cancer, that is they act together to increase the risk by a multiplicative rather than an additive effect.
However, defendants have argued that the amount of damages to be awarded to smokers should be reduced based on contributory negligence, i.e. that by continuing to smoke the person contributed to their condition. Whether such a claim will succeed depends on issues such as when the person started and stopped smoking, and the extent to which they were addicted.
The easiest way to prove to establish a history of sufficient exposure to attribute a lung cancer to asbestos is to show the person suffers from asbestosis. In the absence of asbestosis, a heavy and prolonged exposure to asbestos is required. This is done by a detailed industrial history, a fibre assay (examination of lung tissue to count asbestos fibres) or an assessment of cumulative exposure to asbestos carried out by an industrial hygienist.
A claim for asbestos related lung cancer in New South Wales is brought in the Dust Diseases Tribunal of NSW. This is a specialist Court which hears claims for persons exposed to dust such as asbestos. It has special rules of evidence to allow claims to be heard quickly and Judges with particular expertise in asbestos diseases. Since 2005 all claims for asbestos disease in the Dust Diseases Tribunal are subject to the Claims Resolution Procedure which requires the early exchange of information and mediation before a matter can proceed to Court.
A claim will normally take between three to six months to complete however can go quicker if required. The Court will do everything possible to complete a claim in the claimant’s lifetime. However, if a claim is not completed in in their lifetime then your estate can still recover full damages provided the claim was commenced prior to the person dying.
If successful, the claimant will normally be awarded lump sum compensation to compensate for pain and suffering, loss of expectation of life, medical and other expenses with the commercial cost of care provided by friends and family, loss of earnings and superannuation and in some cases the commercial cost of replacing services provided to others such as children, grandchildren or an elderly or sick spouse or parent.
A common law claim is normally worth between $350,000 and $400,000 after costs plus loss of earnings, expenses and replacement services.
In addition to a claim at common law, persons sufferings from an asbestos related lung cancer who were were exposed to asbestos in the course of employment in NSW are also entitled to make a claim for compensation to the Dust Diseases Authority (DDA). The DDA is a statutory body of the NSW Government that provides compensation to persons suffer from dust related conditions.
An application to the DDA is an administrative process. After an initial application form is completed, the person will be contacted by an Industrial History Officer who will take a statement as to exposure to asbestos. The Statement along with medical records are then considered by a Medical Panel of three respiratory physicians. Successful claimants receive an award for weekly compensation, along with payment of all medical, hospital, pharmaceutical, at home nursing, nursing aides and any other expenses as a result of the dust disease.
If you or a family member have contracted lung cancer and have been exposed to asbestos, please contact Tanya Segelov of Segelov Taylor Lawyers on 02 8880 0500 or tanya@segelovtaylor.com.au.
We act on a “no-win no fee” basis for all asbestos claims. This means you will not be charged any money upfront and will only be charged for our legal costs if you are successful in your claim.