Mesothelioma & Dust 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 conduct some further enquiries to confirm the diagnosis and more more information about who may be liable.  We will provide detailed advice on a claim and may seek your instructions to begin a common law claim (the process in Qld is slightly different as a Workcover claim will usually be 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.

Provided the claim has been commenced in your lifetime, full damages are available. 

Historically, a claim needed to be completed in a person’s lifetime to recover damages for pain and suffering which is usually the most significant part of a claim.  However, the law has been changed over the last 15-30 years in all states so that as long as proceedings are filed in your lifetime, rights are preserved.  Your estate can continue your claim and recover damages for pain and suffering and loss of expectation of life.  The entitlement to some compensation, primarily future economic loss may be affected. 

We act on a “no win/no fee” basis which means we will only recover our fees if you are successful in your claim. 

You will not be charged any money up front. We will pay all of the disbursements incurred in litigating your claim and we will recover the disbursements and our costs billed on a time basis at the successful completion of your claim.  

The defendant will normally pay most (70-80%) of the legal costs as part of a settlement or following a judgment.

We will issue a costs disclosure as soon as possible after taking instructions.  The disclosure will set out our estimate of likely fees.  Please see our article on fees in mesothelioma claims below.

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 is the NSW Workers Compensation authority, and is relevant only if you were exposed to asbestos as a worker in NSW. Part of Icare is known as icare dust diseases and provides compensation for people with mesothelioma who have been exposed to asbestos in the course of employment in New South Wales. ICare used to be known as the Dust Diseases Authority, and before that, for many years, as the Dust Diseases Board. 

There is no corresponding body in any other state. The workers compensation authorities in Queensland and Tasmania are relevant where exposure has occurred as a worker in those states, and the DVA is relevant where exposure occurred in the armed services. 

Icare compensation is in the form of fortnightly pension payments as well as paying all related medical, hospital, pharmaceutical, nursing and other expenses. f you die as a result of a dust disease your dependant may also be eligible for a lump sum payment and an ongoing pension.  Your estate will also receive funeral expenses of p to $15,000.00.  

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

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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. 

While the law is different in different states, all Australian states have amended the law so that there is no time limit in which to commence a claim. However, in order to recover damages for pain and suffering and loss of expectation of life, the claim must be commenced in the person’s lifetime. 

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. 

Exposure to asbestos can have occurred in a wide variety of settings – both at work and outside work.  We are expert at working with a client to identify possible periods of exposure, and then locating witnesses and other evidence that can confirm and corroborate exposure. 

In order to bring a claim, we need to identify exposure to asbestos.  On many occasions we have been able to locate and prove exposure to asbestos that caused disease notwithstanding the client’s initial instructions being that they could not recall any exposure. 

For more information see our article Working out where you were exposed to asbestos. 

You can claim compensation.

From a legal perspective, the answer is that 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 be meaningful or taken into consideration) and which occurred in the latency period (at least 10 –20 years prior to exposure) is a cause of any mesothelioma which later develops.

The expert evidence accepted by the Court is the “single fibre theory,” the theory that there was one fibre that caused the disease, is wrong. Instead, the disease is caused by the cumulative effect of all exposures. 

If you have been exposed in multiple places you can obtain full compensation by suing in respect of any of the places you were exposed. You cannot ‘double-dip’ and sue for a second place of exposure. Typically, “cross-claims” will occur if you have been exposed at multiple places, which operates to share the costs of compensation among the defendants.  

Icare compensation and common law claims are provide different compensation.  

Almost everyone who receives compensation from icare Dust Disease Care would be entitled to additional compensation by way of a common law claim. These claims do not impact or reduce the icare benefit and are generally worth significantly more than the icare benefit.