Depending on the circumstances of your claim, compensation for mesothelioma related to asbestos exposure could be substantial.
While there is no cure, compensation can help provide the ongoing care for those living with mesothelioma and other dust diseases. In addition, it can help provide financial stability for their dependents after their passing. Learning what those with asbestos-related diseases are entitled to under the law is a good place to start if you are debating whether to lodge a claim.
Mesothelioma compensation and liability
Mesothelioma is a type of cancer of the mesothelium or thin lining surrounding the organs of the body. According to the Lung Foundation of Australia, 90% of mesotheliomas are pleural or affect the pleura or lungs. The main cause is typically long-term exposure — an average of 40 years — to asbestos fibres that inflame the mesothelium.
Australia has the second-highest mesothelioma death rate in the world. Once this type of lung cancer is diagnosed, its cause is irrefutable.
The compensation depends on who must pay or liability.
Government liability for asbestos
Australia recognised the harmful effects of asbestos (i.e. difficulty breathing, painful tissue inflammation, irregular heartbeat, and more) and banned its use in 2003. Until then, the silicate mineral was heavily mined in Western Australia and used for manufacturing a variety of building materials such as insulation, sheeting and roofing, pipes and a host of friction products like brake pads, brake linings, and clutch discs among others. In recognition of the failure to protect Australians from the life-threatening impacts of asbestos, the Commonwealth, states and territories have their industrial injuries disablement benefits related to mesothelioma and occupational lung disease.
Due to the widespread use of asbestos, the extremely long latency period to develop mesothelioma and the difficulty in linking the cause to one particular party, an asbestos-related claim may be addressed by government compensation schemes (under the guidance of various statutory laws) or common law. The direction taken may impact the compensation received by the affected party.
At the time of writing the Asbestos-related Claims Bill 2005, the average mesothelioma claim was $300,000. Though it’s possible to pursue common law damages with the government, it may not be the most advantageous approach to recovering costs related to mesothelioma or other dust diseases linked to asbestos exposure. Under the Safety, Rehabilitation and Compensation Act, mesothelioma compensation is limited to a pay-out of $110,000 for non-economic loss. It is more common to sue for non-economic losses such as pain and suffering, emotional distress and loss of enjoyment of life in court.
Workplace negligence leading to asbestos exposure
The Australian Mesothelioma Register tracks asbestos exposure and has determined the jobs at highest risk are boiler workers, power plant workers, carpenters, railway workers and naval workers. Notably, the highest number of claims have been lodged against James Hardie Industries, a reorganised company once known for mining asbestos and manufacturing products derived from airborne fibres, James Hardie Industries put countless lives at risk in Australia.
Victims of workplace negligence may be unaware of their susceptibility for decades. Gerard Malouf & Partners brought and won a workplace negligence case on behalf of a teacher exposed in the 1960s. His employer had failed to adequately meet workplace safety measures. Sadly, that client passed away before the proceedings closed. However, because he took action whilst living, his wife and children received compensation.
Manufacturer liability and asbestos
Though the presence of asbestos does not ensure a diagnosis of a chronic dust disease or malignant lung cancer like mesothelioma, it is often difficult to pinpoint the source of exposure when you are diagnosed. A mesothelioma lawyer familiar with asbestos-related claims can help you determine the cause which might be long-term exposure to asbestos products.
A home renovator in Adelaide lodged a claim against James Hardie Industries after he was diagnosed with mesothelioma in 2017. The man was vulnerable between the 1990s and 2000s to fencing containing asbestos. The South Australia Supreme Court upheld the South Australian Employment Tribunal’s decision in 2019 based on the manufacturer’s duty of care to consumers and awarded the asbestos victim $2.23 million.
Asbestos trust fund
It may be possible to access financial assistance from schemes typically established by companies compelled to contribute. In 2005, James Hardie agreed to contribute up to 35% of its annual cash flow to a trust fund for victims of mesothelioma until 2045. However, since then, the support and financial aid for those with mesothelioma that is not work-related have been limited.
In 2021, the Australian Capital Territory (ACT) received $8 million from the federal government for a special trust fund to provide for victims of Mr Fluffy. The loose-fill asbestos product was widely used in Canberra homes in the 1970s. The first person to receive a $250,000 grace payment from the ACT scheme acknowledged the financial assistance helped to offset the cost of very expensive medical treatment and pain management.
Asbestos exposure and compensation
As mesothelioma symptoms can appear decades after exposure to asbestos, linking the period of susceptibility with an activity or product can be tricky, especially for those open to asbestos products in rental apartments or community spaces where disclosure is not possible or not explicit. Additionally, asbestos in the environment poses risks to everyone.
Familiarising yourself with the signs of mesothelioma is a necessary first step if you suspect that you have been made vulnerable to asbestos through your job, products used, or in the case of the Canberra man, as a bystander. Next, you will need to seek out a medical diagnosis in order to seek financial aid from either an employer, a company or asbestos trust fund. Your general practitioner will be a critical part of your claim for compensation.
It’s important to understand that where you were exposed to asbestos is a crucial part of where to lodge a claim. Victims of mesothelioma do not receive equal compensation because the party (or parties) responsible have different criteria for determining what can be considered compensable under the law. An experienced dust diseases lawyer will make your options for compensation plain.
Asbestos claim process explained
When you receive a medical diagnosis of lung cancer, asbestos-related disease or mesothelioma, the list of things to attend to will be long. However, filing a mesothelioma claim within your lifetime is wise. If you’re certain the exposure to asbestos was work-related, you are most certainly entitled to compensation. Though states and territories’ mesothelioma compensation schemes have different limitations on making a claim. Typically, the timeline to file a claim is 6 to 12 months from diagnosis. Individuals can lodge a claim directly with the state scheme, but most choose to use a mesothelioma lawyer because the process is complex.
Who can file an asbestos claim?
Some people think they do not have a case because it would be “too hard” to prove or the company they work for is no longer. However, anyone diagnosed with an asbestos-related disease may be entitled to compensation from a state or territory’s scheme or common law courts.
Compensable lung diseases include:
- Asbestosis (thickening and scarring of lungs and pleura).
- Pleural mesothelioma (around the lungs and chest wall).
- Peritoneal mesothelioma (around the abdominal organs).
- Pericardial mesothelioma (around the heart).
- Testicular mesothelioma (around the testicles).
- Dust diseases (chronic and malignant).
Notably, a diagnosis of benign mesothelioma (the development of non-life-threatening tumours from asbestos exposure) is not considered eligible for compensation.
Under the Asbestos-related Claims Bill 2005 current and former employees of the Australian government or agency may file a workers’ compensation claim. The Commonwealth anticipates claims from several parties, including:
- Former waterside workers.
- Family members exposed to contaminated clothing.
- Tenants of government-owned or constructed properties.
- Contractors and subcontractors.
- Dependents of the affected parties.
- Visitors.
In light of the widespread use of asbestos, parliamentary research estimated the Commonwealth’s total liability for asbestos claims to be approximately $6 billion.
Where you file a claim — in court or with a government compensation scheme — most likely depends on your circumstances. This decision is a reason people seek out a mesothelioma lawyer who can help them to determine the most sensible course of action.
Where to file a claim for mesothelioma compensation?
There are two main ways to be compensated for the disadvantageous effects of mesothelioma: a common law claim or a statutory claim. Both are made simpler and easier with a personal injury lawyer that has experience settling for mesothelioma.
A common law claim — like workplace negligence or personal injury — is lodged with the court. A lawyer draws up a formal document to initiate the originating process and names the party or parties allegedly responsible. Defendants might include manufacturers of asbestos-containing materials and products (i.e. roofing, wall cladding, pipes), landlords responsible for proper disposal of asbestos materials and insurance companies.
This process must begin when the claimant is alive. Should they die before the process is complete, the estate will be able to see the process to completion. So long as the process begins before a claimant’s death, there will be an opportunity to make provisions for any dependents. In some cases, dependents of those who die from mesothelioma may be eligible for compensation. Ask a lawyer familiar with mesothelioma claims if this applies to your family.
A statutory claim for mesothelioma may be made directly to the government scheme responsible for administering the asbestos-related compensation funds set aside by law to care for those exposed while at work. In some cases, you may be able to bring both common law and statutory claims. To ensure the maximum settlement for your claim, consult a lawyer familiar with your local scheme.
What’s included in a dust disease claim?
Many factors are at play when you bring a claim for mesothelioma or other asbestos-related diseases. The first step is medical evidence that the condition you suffer from stems from exposure to asbestos or friable asbestos. A lawyer will need to review your medical history, speak with your doctor and confer with medical experts. You may also be asked to provide financial records, employment history and communications with parties responsible for mitigating risks associated with inhaling or coming into contact with asbestos.
When you seek compensation for mesothelioma from a government scheme, the primary information you will need are proof of diagnosis, the name of the employer and the dates that you were employed. The process for statutory claims has been streamlined to provide for victims and their dependents.
The following related costings might be included in the claim:
- Medical treatment and related expenses.
- Rehabilitation expenses.
- In-home care payments.
- Travel and accommodation related to rehabilitation and treatment.
- Expenses might include mobility scooters, wheelchairs, handrails, ramps, beds and reclining chairs.
- Counselling expenses.
- Funeral expenses.
- Lost wages or pension.
How long do mesothelioma claims take to conclude?
Typically it takes 3-6 months for a skilled lawyer to settle. In the event that you die before your mesothelioma claim has reached a conclusion, your estate and whomever you appoint as your enduring power of attorney can see it through. Granted, this scenario does involve advance planning. Your mesothelioma lawyer should guide you in the steps necessary to ensure that your dependents are maintained.
Your mesothelioma legal team
If you have been diagnosed with pleural, peritoneal or a rarer form of lung cancer that is tied to asbestos exposure, it is crucial to contact an experienced mesothelioma lawyer as soon as possible. GMP Law has a mesothelioma legal team that specialises in dust disease, mesothelioma and asbestos claims.
GMP Law is committed to obtaining the maximum result for the client. Ask us about our Difficult Case Policy. We ensure that you are happy or we reduce our fees. Your mesothelioma lawyer will create a straightforward Costs Agreement and your first consultation is no obligation. Most importantly, our mesothelioma team will approach your claim comprehensively and fight aggressively for you and your loved ones.
If you have received a diagnosis of lung cancer tied to asbestos exposure, you have a right to make a claim and receive mesothelioma compensation. Contact us for no-obligation legal advice about your claim.
+ Selby, K. (2023, October 2). Mesothelioma in Australia. Asbestos.com. Retrieved October 9, 2023, from https://www.asbestos.com/mesothelioma/australia/
