Mesothelioma is a cancer of the lining of the lung or peritoneum. The only known cause of mesothelioma in Australia is exposure to asbestos. Up until the mid 1980’s asbestos was used in an extremely wide variety of products. People in many industries (everything from brewers to waterside workers) were routinely exposed to asbestos, often without being aware. People can contract mesothelioma from small exposures to asbestos such as home renovations involving fibro sheets.
If you have contracted mesothelioma you may have right to bring a claim at common law against a former employer, manufacturer of asbestos products or occupier of a building where you were exposed to asbestos. In addition if you were exposed to asbestos during the course of employment in New South Wales you can also claim benefits from the Dust Diseases Authority.
It is important you consult a lawyer as soon as possible as court proceedings must be filed in your lifetime to ensure your full entitlement to damages.
Common Law Claim For Damages
In New South Wales common law claims for mesothelioma are brought in the Dust Diseases Tribunal (DDT). The DDT is a specialist court that was established in 1989 to hear claims for persons suffering from diseases such as mesothelioma. The Court has special procedures and rules of evidence to expedite claims. A claim for a person suffering from mesothelioma usually 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. Mesothelioma claims are subject to the claims resolution process which requires the early exchange of information and compulsory mediation to promote early settlement. In other States claims are brought in special lists in the District or Supreme Courts which have procedures to expedite claims including referring them to mediation or court appointed settlement conferences at any early stage.
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.
You do not need to sue in relation to all of your exposure to asbestos as long as the exposure you sue on is not trivial. 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.
If you are successful in your claim you will be awarded lump sum payout to compensate you for your pain and suffering, loss of expectation of life, medical and other expenses (if you are not covered by the Dust Diseases Authority – see below), the commercial cost of care provided by your friends and family, loss of earnings and superannuation and in some cases the commercial cost of replacing services you provided to others such as young children or a sick or elderly child, spouse or parent. Most mesothelioma claims resolve for between $350,000 and $500,000 clear in your hand (after all costs and disbursements are paid) plus medical expenses (if you are not covered by the Dust Diseases Authority – see below), economic loss and replacement services.
The court will do everything possible to finish your mesothelioma 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 mesothelioma 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.
Dust Diseases Authority (DDA)
If you were exposed to asbestos as a worker in New South Wales and you develop mesothelioma 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.
An application to the DDA is in addition to your common law claim. You can (and most people do) do both. Where there is a DDA award you cannot claim out of pocket expenses which will be covered by the DDA in your court proceedings.
An application to the DDA is an administrative process. You complete an application form and sign authorities to allow the DDA to obtain access to your medical records. You will then be contacted by an industrial history officer who will take a work history and discuss your exposure to asbestos. You will be sent an industrial history statement to proof and sign. Your industrial history along with your medical records will be placed before a Medical Panel which consists of 3 respiratory physicians. 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 on which the Medical Panel finds the first evidence of your mesothelioma on your x-rays or scans. 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.
In addition to your rights with the DDA, on your death a dependant partner or child has rights to a lump sum payment (the amount of the lump sum depends on the level of dependency) and an ongoing pension. Your estate can also claim funeral expenses up to $9,000.00.
We can assist you to complete a DDA application form and guide you through the application process.