Mesothelioma & Asbestos Disease Compensation

Courts in all states in Australia generally expedite all mesothelioma claims. 

The claims can be completed very quickly, particularly when the plaintiff is very sick.  In some cases, claims have been started and finished within a week. 

When normal expedition applies, claims usually take between three and six months to complete after the claim is filed. 

1. The first step is to meet with Tanya or David who will take a detailed history, including as to where you were exposed to asbestos and provide you some initial advice.  We will provide a costs disclosure and some authorities enabling us to obtain detailed information.
2. We will then make further enquiries to confirm the diagnosis and find out more about who may be liable. We will give you detailed advice on your claim and may ask for your instructions to start a common law claim. (The process in Queensland is slightly different, as a WorkCover claim is usually made at this stage.)
3. If you so instruct, we will commence proceedings on your behalf .  At this stage, the general damages are protected for the benefit of your estate.
4. There will be a process of further investigations, and information exchange with the defendant.  This process is different in each state.
5. We will put an offer to the other side to settle the claim.
6. The matter will proceed to a settlement conference, also known as a mediation.  Most matters settle at or around this time, although if they do not, they can settle at any later stage as well.
7. If your matter does not settle at or around mediation, your claim will proceed to a court hearing.  Following a hearing the judge will issue a judgment as to liability and the amount of compensation to be paid.

If your claim is started in your lifetime, your estate can continue it after you die.

In the past, a claim had to be finished in a person’s lifetime to recover damages for pain and suffering, which is usually the largest part of a claim. Over the last 15 to 30 years, every state has changed the law so that, as long as proceedings are filed in your lifetime, your rights are preserved. Your estate can continue your claim and recover damages for pain and suffering and loss of expectation of life. Some compensation, mainly for future economic loss, may be affected.

We act on a no win, no fee basis. You pay nothing upfront. We pay all the disbursements of your claim, and we recover them, with our costs charged on a time basis, only when your claim succeeds. If your claim does not succeed, you do not pay our fees and you do not repay the disbursements. We do not charge an uplift fee.

The defendant will usually pay most of the legal costs (generally about 80%) as part of a settlement or after a judgment.

We will give you a costs disclosure as soon as possible after you instruct us. It sets out our estimate of likely fees.

A common law claim is a claim in a court for lump sum compensation. A claim is normally brought against a former employer, occupier of a building or manufacturer of asbestos products. For a person suffering from mesothelioma or lung cancer a claim usually takes 3 to 6 months to complete but can proceed more quickly if required. 

All States have developed specialised processes to deal with dust diseases claims. In Victoria and South Australia there are special lists of the Supreme and District Court to ensure they are dealt with expeditiously.  In New South Wales, a specialist court known as the Dust Diseases Tribunal of New South Wales has special rules of evidence and procedure to expedite mesothelioma and other dust disease claims. 

icare runs the NSW Government’s workers compensation schemes. Its Dust Diseases Care scheme compensates people with mesothelioma and other dust diseases who were exposed at work in New South Wales. It was previously known as the Dust Diseases Authority, and before that, for many years, as the Dust Diseases Board.

No other state has an equivalent body. The workers compensation schemes in Queensland and Tasmania are relevant where exposure occurred at work in those states, and the Department of Veterans’ Affairs is relevant where exposure occurred in the armed services.

icare Dust Diseases Care pays fortnightly pension payments, and pays all related medical, hospital, pharmaceutical, nursing and other expenses. If you die as a result of a dust disease, your dependants may be eligible for a lump sum and an ongoing pension, and icare contributes to funeral expenses.

An application to icare is an administrative process. It is separate from, and in addition to, a claim at common law.

Yes.  That is one of the things that is ordinarily compensated.

As part of a common law claim a court will award reasonable medical expenses.  A recent decision in a Segelov Taylor matter in the Supreme Court of Western Australia confirmed that new forms of treatment for mesothelioma as prescribed by the treating oncologist were reasonable and the defendant was ordered to pay for the cost of the treatment which amounted to $60,000.00. 

People who are entitled to a benefit from Icare (where exposure was as a worker in NSW) is accepted are able to claim the cost of treatments recommended by a treating oncologist. 

The law is different in each state. Under the old common law rule, if a person died before their claim was finished, their damages for pain and suffering and loss of expectation of life were lost. Every state has changed that rule. Those damages can now be recovered as long as the claim is started in the person’s lifetime; it does not need to be finished.

States have also made other changes, including special processes for dust disease claims and, in many cases, abolishing the time limit for starting a dust disease claim. The claim must still be started while the person is alive.

We can assist.

Your entitlement to bring a claim arises from where you were exposed to asbestos, not where you now live.  We have acted for many Australian migrants who develop mesothelioma and who lived in the United Kingdom and other countries where they were exposed to asbestos.  

We maintain relationships with lawyers in many countries which enables us to effectively represent these clients. 

Yes. Exposure to asbestos can happen in a wide variety of settings, both at work and outside work. We have long experience working with clients to identify possible periods of exposure, and then finding witnesses and other evidence to confirm it.

To bring a claim, we need to identify an exposure to asbestos. Many times we have found and proved an exposure that caused the disease, even though the client first told us they could not recall any.

Yes. From a legal perspective, each exposure caused the disease. Expert evidence accepted by courts in Australia is that each exposure that is not de minimis (a legal term meaning too small to matter), and that happened more than about 10 years before diagnosis, is a cause of any mesothelioma that later develops. Courts have accepted expert evidence that the single fibre theory (that one fibre caused the disease) is wrong. Instead, the disease is caused by the cumulative effect of all exposures.

If you were exposed in several places, you can obtain full compensation by suing in respect of any one of them. You cannot claim twice. A separate system of “third party claims”, or “cross-claims”, shares the cost of compensation between defendants. That claim generally runs separately from your claim and does not usually add work or risk for you. It is a matter for the defendants and their insurers.

Yes. icare compensation and a common law claim provide different compensation.

Almost everyone who receives compensation from icare Dust Diseases Care is also entitled to compensation through a common law claim. A common law claim does not affect or reduce the icare benefit, and is generally worth much more than it.