Family Provision Claims – the difference between states

Courts in all states in Australia generally expedite all lung cancer 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. 

Yes, absolutely. This is the most common concern we address, and the answer is clear. The law recognises that asbestos exposure and smoking have a synergistic effect, meaning their combined risk is far greater than either risk alone.¹ If your work history exposed you to significant levels of asbestos, that exposure is considered a material cause of your lung cancer. The company that negligently exposed you cannot use your smoking history to avoid its responsibility. We have successfully secured compensation for many clients who were also smokers.

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. 

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.

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 lung cancer which later develops.

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’.

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 (NSW Statutory compesnation) 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. 

You don’t need to have all the proof ready to speak with us.

Our expert team will handle the investigation for you. The key evidence we will gather includes a detailed account of your work history to identify where and when you were exposed to asbestos, and medical reports that confirm your lung cancer diagnosis. We also look for clinical evidence of asbestos damage, such as the presence of asbestosis.

We have extensive experience in building strong cases, even when the exposure happened decades ago.

This is a very common situation and does not prevent a successful claim. Companies that exposed workers to asbestos were required to have insurance. Our firm maintains an extensive database of historical insurance records for companies across Australia, even those that ceased operating many years ago.  We will trace the correct insurer and bring the claim against them to secure your compensation.