Asbestos & Dust Diseases Compensation Rights

Published 17 Jun 2010

If you believe you have a significant Dust Disease or Asbestos claim you could have acquired this disease through exposure to Asbestos and developed mesotheliona, lung cancer - pleural plaques or kidney disease or another Asbestos related disease.  Under those circumstances, you may be eligible for compensation.

Generally compensation claims are made through the courts under Common Law if it can be proven on the balance of probability, that is greater than 50% that the exposure resulted due to negligence of another party.

1.  The first step is to ensure that you have a defined disease according to the Dust Diseases Tribunal.  In other words you need to have undergone a series of radiological tests including x-rays, CT Scans and/or MRI scans to establish that the disease exists.

2.  Once evidence exists of this Dust Disease/Asbestos problem it would generally show up as plaques or dark marks on x-rays and you should registered immediately with the Dust Diseases Board.  The Dust Diseases Board is a separate entity and it is situated at Level 2, 82 Elizabeth Street, Sydney.  There is a detailed claim form to fill in and this claim form will entitle you to medical expenses, out of pocket expenses and possibly a weekly compensation pension for wage loss.

3.  Additionally you may have a right for Common  Law damages claim as set out hereunder

Common Law Damages Claim

This is an additional claim to the monies payable by the Dust Diseases Board and involves proceeding being issued out of the Dust Diseases Board much the same way as people would sue for negligence against another party that has caused personal injury.  This process involves a litigation claim and should be commenced as soon as possible once the Dust Disease is established so that a maximum amount for pain and suffering, wage loss and future and past medical care can be claimed.

The process is relatively uncomplicated in that documentation needs to be lodged once again in the Dust Diseases Tribunal for a Common Law Damages claim and the claim will be mediated with the insurance company before being formally litigated.  We hope to achieve on your behalf a favourable settlement via mediation and avoid the long and costly legal process that might occur if the matter does not settle.  Generally matters do settle and finalise within a few months of lodgement.

Who Can Make a Claim for Asbestos Compensation?

Just having Asbestos exposure alone is not enough to bring a claim for a successful Asbestos case.  You must have been diagnosed with an Asbestos related disease such as Asbestosis and/or mesothelioma or another type of Dust Disease associated with Asbestos exposure even a very bad cough or reduced respiratory capacity even though you may not actually have a cancer at the stage you lodge the case.  If you do settle for a specific Dust Disease problem, non cancerous you are entitled to recommence the action if the Asbestos plaque changes in nature known as metastasizes and becomes full blown mesothelioma or Asbestosis.  Accordingly, it is best to lodge a claim even if you are suffering from even mild symptoms of restrictive lung capacity etc as you can get some compensation at an early stage and then have the matter prepared so that if it develops into a much more significant problem you can reopen the case in the future.

Time for making an Asbestos Claim

If you have an Asbestos related disease it is possible to make a claim even if 3 years has expired as there is essentially no time limit within which to bring a claim which is unlike any other area of Personal Injury Law.  In other words some 20 to 40 years later you could bring successfully a compensation case.

You can bring Asbestos related disease compensation claim even if you have left employment, had multiple past employers, were self employed, were a heavy smoker or not quite sure how your Asbestos exposure occurred or that it occurred interstate or over seas.  If you are a family member of a person that has died from Asbestos you may have a claim as a result of the passing or illness of that family member.

Areas of Damages that can be Claimed in an Asbestos Action

The following is a list of damages that can possibly be claimed:-

1.  Past and future medical expenses as a result of your condition; 

2.  Past, present and future economic loss and/or potential loss of earning capacity; 

3.  The cost of homecare assistance such as gardening, assistance around the house, cooking, cleaning etc if you are unable to do so, even if that is currently being provided voluntarily by family members or friends; 

4.  The cost of alterations to your house to make it easier to live such as bathroom, kitchen renovations; 

5.  A significant amount for pain and suffering and loss of enjoyment of life generally;

Court Action

The vast majority as mentioned above of actions settled well before trial in Asbestos related cases.  90% of the time this occurs and we are experts at bringing a litigation matter to a successful and early conclusion and generally can take only a few months to finalise assuming all the medical reports and facts relating to how the asbestos poisoning arose are available.  Indeed if there is an urgency as occurs sometimes with people suffering from malignant mesothelioma and expedition application to made and the matter finalised within a few weeks or days if the need arises.

The effect of Workers Compensation benefits

All states in New South Wales provide a no fault statutory compensation scheme for people who have suffered injuries arising in the work place including those injuries and disabilities arising from Asbestos related diseases.  We can advise you as to what benefits are available under the Workers Compensation Act and/or whether pursuing Common Law rights are more suitable.

Our firm Gerard Malouf & Partners are a "No Win - No Fee" policy subject to various conditions as contained in our easy to understand Cost Agreement.  We have the expertise, compassion and commitment to achieve for you and your family members the best possible outcome in the least amount of time.