There are many causes of lung cancer including inhalation of asbestos. Indeed, some estimates are that there are six lung cancers caused by asbestos inhalation for every case of mesothelioma.
In order for a lung cancer to be attributed to exposure to asbestos a person must either have asbestosis, or a substantial history of asbestos exposure must be identified. The level of exposure associated with personal home renovation, or occasional occupational exposure are not sufficient to cause lung cancer.
Asbestos induced lung cancer is more common in people who smoked. This increased risk is not just associated with smoking, but rather the combined effect of smoking and asbestos lead to a greater rick than the sum of the two individual risks.
The symptoms, treatment and prognosis for asbestos induced lung cancer is not different to other lung cancers.
The primary claim for compensation in a court is known as a common law claim for damages.
Courts in each mainland state have developed special procedures and processes for dealing with claims for diseases caused by asbestos. In New South Wales, claims are brought in the Dust Diseases Tribunal (DDT), while in other States claims are brought in special lists in the District or Supreme Courts.
Most claims are brought against former employers and manufacturers of asbestos products. If your former employer no longer exists, you can still sue if we can determine the workers’ compensation insurer of the company.
A primary issue in claims for lung cancer is whether the cancer was caused by asbestos (or some other carcinogen, most commonly smoking). This means it is important to identify all the asbestos exposure. However, you do not need to sue in relation to all of your exposure to asbestos. For example you are entitled to damages, even if part of your exposure occurred overseas. We will sit with you at your home, in hospital or at our offices and take a detailed history in relation to your work and exposure to asbestos to determine who you should sue.
The court will do everything possible to finish your claim in your lifetime. However, if you do die before your claim is finalised then (provided the claim was filed in court in your lifetime) your estate can continue your claim. More limited claims can be commenced after a person has died.
In asbestos induced lung cancer claims, we act on a full no win no fee basis which means we will not be paid unless you win your claim. More information about our fees is set out on our fee policy page.
How long do claims take?
A claim for a person suffering from asbestos induced lung cancer takes between 3 to 6 months to finalise. Claims can run quicker if necessary and have on occasions been completed in as little as a few days. All courts that deal with asbestos claims have special processes and procedures that promote early settlement, and the quick resolution of matters.
How much are claims worth?
For claims for asbestos induced lung cancer, the amount of compensation will be affected by a range of factors including whether you have been able to have successful treatment, and the likelihood of further disease in the future. If you are successful in your claim you will be awarded lump sum payout. The lump sum is comprised of various “heads of damage”. Heads of damage for which people with asbestos induced lung cancer are typically compensated include:
- damages for pain and suffering and, if relevant loss of expectation of life;
- an amount for the commercial cost of care provided by your friends and family,
- damages for ‘out of pocket expenses’ – the medical and other expenses that you incur as a result of the disease (this head may not be payable if these expenses are paid by the Dust Diseases Board).
- depending on your circumstances, an amount for the commercial cost of replacing services you provided to others such as young children or a sick or elderly child, spouse or parent.
- loss of earnings and superannuation if the disease stopped you working.
Effect of Smoking
The fact that you were a smokier does not prevent you from bring a claim. Defendants have previously argued that the amount of damage a person with an asbestos induced lung cancer who was a smoker should received should be reduced on the basis of their “contributory negligence” in choosing to smoke. The response to this is that smokers have an impaired capacity to chose because of the addictive nature of nicotine.
Are there time limits?
All Australian Jurisdictions 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.
Dust Diseases Authority (DDA)
If you were exposed to asbestos as a worker in New South Wales and you develop an asbestos induced lung cancer you may also have a right to claim a pension and have all your medical, hospital, pharmaceutical, nursing and nursing aids and equipment costs paid. The DDA will also pay for travel expenses and assistance required around your home and garden. You do not need to live in New South Wales at the time you develop the lung cancer in order to make an application.
An application to the DDA is in addition to your common law claim for damages. You can (and most people do) do both.
An application to the DDA is an administrative process. If your application is approved the CEO will grant you a fortnightly pension. The pension is not means tested. Your pension will be backdated to the date when the disease developed. It generally takes 4 to 6 weeks for your application to be processed. Once approved the DDA will pay all of your related expenses and refund any expenses paid by you in the past.
Your entitlement to bring a claim arises from where you were exposed to asbestos, not where you now live. We have acted for many clients who have moved from Australia and have lived in New Zealand, the United Kingdom, the United States, Greece and other countries when they have developed mesothelioma.
We maintain relationships with lawyers in many countries which enables us to effectively represent overseas based clients.
Historically, a claim needed to be completed in a person’s lifetime in order to recover damages. However, changes to the law means that so long as proceedings are filed in your lifetime, then rights are preserved. Your estate can continue your claim. The entitlement to compensation, primarily future economic loss may be affected.