Mesothelioma

Most people with mesothelioma can make a claim at common law. A common law claim is a claim in court for lump sum compensation. A claim is started by filing a statement of claim in court.

All states have specialised processes for mesothelioma claims. In New South Wales, claims are filed in the Dust Diseases Tribunal, a specialist court with special rules of evidence and procedure to speed up claims. In other states, claims are brought in special lists in the Supreme Court or District Court, so the needs of people with mesothelioma are met.

Most claims are brought against a former employer, a manufacturer of asbestos products or the occupier of a building. If the employer no longer exists, a claim can be made against the employer’s workers compensation insurer.

In all states, claims go to a pre-trial or court-appointed settlement conference, or a mediation, to see if the claim can be resolved before a hearing. Most claims settle at or after mediation, before any trial. If a claim goes to a hearing, in most courts your evidence can be given in a written affidavit. If you are not well enough to travel, your evidence will be taken at your home or in hospital.

The courts will do everything possible to finish a claim in your lifetime. If you die before your claim is finished, and the claim was filed in court in your lifetime, your estate can continue it and still recover damages for pain and suffering.

If you were exposed to asbestos at work in New South Wales, you can make a claim at common law and also receive a pension and have your medical and other expenses paid by icare Dust Diseases Care.

Claims generally take between three to six months from start to finish however claims can go faster if required. The court will do everything possible to finish your claim in your lifetime. If your condition deteriorates you can approach the court at any time with medical evidence and seek an urgent hearing or mediation date.

It is common for a person diagnosed with mesothelioma not to recall straight away where they were exposed to asbestos, particularly if they did not work with asbestos. In recent decades we have seen a rise in “third wave” mesothelioma: people exposed to asbestos outside work, through home renovations or the work of others.

About one in three Australian homes contains asbestos. If your home was built before 1983, it is likely to contain some asbestos materials, even if only in the eaves and wet areas (bathroom, laundry and kitchen). Fibro sheeting made in Australia before the mid-1980s commonly contained asbestos.

There is no threshold of exposure to asbestos for the development of mesothelioma. This means a small exposure may be enough, for example from renovating your home, helping someone else renovate, or being present while others did building work such as:

• cutting, drilling and installing fibro sheets;
• removing or demolishing fibro sheets;
• sanding and painting fibro walls;
• sweeping up after painting or building work; and
• shaking out and washing clothes worn during renovation or painting work.

You may also have been exposed through the work of others, such as washing a spouse’s or relative’s work clothes, or hugging them when they came home in their work clothes.

We have acted for hundreds of people with asbestos diseases since 1994, and have built up knowledge, contacts and records to help establish where you were exposed. We will come to your home or hospital, take detailed instructions and research your exposure to asbestos. If we cannot establish where you were exposed, you will not be charged for any of the work we have done.

How much compensation you may receive depends on your circumstances, including your age, your pain and suffering, your lost income, the care you need, and the state where your claim is brought. We can give you an estimate once we know your situation.

If your claim succeeds, you will be awarded lump sum compensation for:

• pain and suffering;
• loss of expectation of life;
• past and future out-of-pocket expenses;
• the commercial cost of care provided by family and friends;
• economic loss, if you were working when your symptoms began;
• the commercial cost of replacing care you gave a dependant because of their age or a physical or mental disability; and
• legal costs.

If you were exposed to asbestos at work in New South Wales, a common law settlement will not affect your right to a pension and to have your medical and other expenses paid by icare Dust Diseases Care.

The vast majority of claims settle out of court either at a mediation or court appointed settlement conference or in the lead up to the hearing. It is very rare that a matter will proceed to final hearing.

Where matters proceed to court it is usually because of a dispute as to how much a claim is worth. Such a claim will normally take only one or two days to be heard and judgment will be given within a very short space of time, usually a week.

If you are not well enough to attend court, then your evidence will be taken at your home or hospital. In most courts your evidence in chief will be given by a written statement known as an Affidavit.

Segelov Taylor acts on a no win, no fee basis in all mesothelioma claims. You pay nothing upfront. We pay all the disbursements in your claim, such as court fees and medical reports, as the claim runs. If your claim does not succeed, you do not pay our fees and you do not repay those disbursements. We do not charge an uplift fee.

If your claim succeeds, the defendant will usually pay most of your legal costs (generally about 80%). Our fees are charged at an hourly rate, plus disbursements. We do not charge a percentage of your compensation, which is not permitted for claims like these in Australia.