We are commonly contacted by children who have a parent recently diagnosed with mesothelioma and who have been asked by their parent to obtain information about compensation options and the best lawyer to assist.
This process of finding the right lawyer can be difficult. Aside from conveyancing, wills and perhaps family law disputes, most people have had very limited contact with lawyers. It is very hard to know what the right questions to ask are, and how to assess the best lawyer for your parent.
Below are some matters that may assist in the process.
Find a lawyer who is expert in running mesothelioma cases
Mesothelioma and asbestos disease compensation are a very specialised area of law. Some personal injury lawyers occasionally also act for people with mesothelioma. The nature of mesothelioma – caused by exposure to a substance that occurred many years – is very different to obtaining compensation for a motor vehicle accident, or back injury in the workplace. The law between states varies little – the important thing is expertise in the area of law.
Many people are unsure as to whether they were exposed to asbestos. The exposure may have occurred 40 or 50 years earlier. A feature of an expert mesothelioma lawyer is training, expertise and resources that assist in determining where a person may have been exposed, and who can be sued for that exposure.
Check if the person has recently run cases to judgement. While most cases (upwards of 95%) settle and only a small number run each year, the lawyers that do run cases are likely to be among the most experienced. Lawyers generally publish blogs and articles about their successful cases, while judgments made by Courts are published on websites such as Austlii.
Ask about your parent’s rights to compensation
It is vital to understand what rights and entitlements your parent may be entitled to. This can be quite complex and will depend upon matters such as:
- Whether your parent exposed to asbestos in the course of work, or outside work.
- Whether your parent was in the navy or other armed services.
- Where the exposure to asbestos occurred: Which state or states did it occur in? Was there any exposure in the United Kingdom, the United States or somewhere else?
- Whether the mesothelioma has or will cause your parent to stop work: If yes, there is likely to be a claim for economic loss.
- Whether your parent was caring for anyone else prior to becoming sick: If so who and how much? In many states (but not all) this will give rise to further compensation.
- Whether your parent has any other illnesses or comorbidities.
Individuals may have multiples sources of compensation. Some sources extinguish other rights, while other sources of compensation can be brought in addition to each other. General guidance as to the likely source and value of compensation is important. An experienced mesothelioma lawyer will be able to provide some initial guidance as to what claims are available and their likely range quite quickly.
If you don’t know the answers to these questions (particularly the questions about where they were exposed to asbestos) don’t worry. One of the things that experienced mesothelioma lawyers can assist with is working out where your parent may have been exposed.
Mesothelioma can be an aggressive cancer, and sufferers’ condition can deteriorate quickly. It is important to act quickly for several reasons.
Firstly, where the exposure is in Australia, the claim must be commenced in their lifetime in order to recover general damages, which are normally worth about $400,000-$600,000, and often comprise most of the value of the case. We are often approached by people whose parents have recently died who say that they kept intending to contact a lawyer but didn’t get round to it.
General damages are recoverable if a claim is commenced the day before the person has died, but are not recoverable if it is commenced the day after a person has died. Expert mesothelioma lawyers have experience in commencing claims urgently – within hours of initial instructions if needed.
Secondly, while many sufferers of mesothelioma want compensation for the benefit of their spouse and family, it is also important to obtain compensation when they are at a stage when they can benefit from it.
Thirdly, as people get sicker, their ability to recall where they were exposed to asbestos, or to participate in the claims process may become more difficult.
Ask about what the process will involve
The process will differ a bit for each claim, based mainly on where the claim is brought, and what matters are likely to be the biggest issues in the case.
The process for common law claims in each state is typically that the case is commenced in a Court; information is obtained and exchanged between lawyers as to the nature of the claim; there is a mediation or settlement conference within about 3 months (it can be more or less depending on the circumstances) and if the matter is not resolved it is set down for final hearing.
Matters can settle at any time during the process. Very few cases reach the final hearing stage.
What is likely to be in issue in the case is usually quite predictable. In the vast majority of cases, the issues are exposure to asbestos and damages. Where a claimant stops working because of their disease, the economic loss claim is often a significant issue. Where a claimant cares for someone else, a claim for compensation for the loss of ability to provide that care may be a focus. In some cases, there can be a dispute about the diagnosis (these are resolved by experts examining pathology material and the like) or who was responsible for the products that your parent was exposed to. These issues generally determine the focus of the work done in the preparation of the case.
An expert lawyer will be able to describe this process, and what will be needed from your parent. Typically, your parent will need to speak to the lawyer about their history on a few occasions, and undergo a few examinations (which often happen at their home) by occupational therapists, to provide an opinion on the care they will need, and doctors, to provide an opinion on their condition and prognosis.
Ask about legal costs
Legal costs can be challenging.
Most firms act for clients with mesothelioma on a “no win, no fee basis”, although this can mean different things.
Some firms require the claimant to pay some or all of the disbursements – external costs such as medical reports and the like. Other firms operate on a fully funded no win, no fee basis which means that they cover all the disbursements, etc.
It is against the law in all state of Australia to act on a contingency basis. A contingency basis is where the lawyer charges a percentage of what is recovered. In Australia, legal costs need to be fair and reasonable by reference to the work that is done. Generally, about 75% to 80% of the legal costs will be paid by the defendant.
If a lawyer suggests that their costs will be much more than 75% of the costs to be paid by the defendant, this may be a concern. However, it is also worth noting that the crucial question is how much your parent will recover. For example, it would make sense to pay an extra $10,000 in legal costs for a more experienced lawyer if your parent recovers an extra $100,000 in compensation.
Feel confident and comfortable with the lawyer
Acting for someone with mesothelioma is a personal relationship. It is crucial that you, and more importantly, your parent, has trust and confidence in their lawyer.
Tanya Segelov and Segelov Taylor Lawyers
Tanya Segelov has acted for claimants with mesothelioma since 1996. She is one of the preeminent mesothelioma compensation lawyers in Australia.
She routinely acts for clients in every state of Australia.
There is a great deal more information about her work, our firm and the process for bring a claim for mesothelioma on our website. Alternative, please call Tanya directly (1800 430 855), or email Tanya to discuss your parent’s circumstances.