Making a claim
Some people who develop mesothelioma due to asbestos exposure may be able to claim compensation. Your legal rights may vary depending on the state or area where you are exposed to asbestos.
In general, people diagnosed with mesothelioma may have two different types of legal rights:
Claims made by the court, known as "common law claims."
Claims under the Government Compensation Scheme are called "statutory claims."
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| Compensation Mesothelioma |
Common law claim
The common law claim is through the court's claim procedure. The claim is made against one or more parties that cause a person to be exposed to asbestos. These individuals are called "defendants." The common law claims begin with the submission of a formal court document called "original procedure." The initial process must be submitted throughout your lifecycle to protect your right to compensation.
As long as you make a common law claim in your lifetime, your legacy is still able to continue your claim if you die before the claim is determined.
You will need to speak with a lawyer with experience in compensation for asbestos as soon as possible after the diagnosis. If you are too unsuitable to visit a lawyer in their office, they can visit you at home or in the hospital, discuss how the process can be simplified for you and your family.
It is possible to file a common law claim even under the following circumstances:
You were exposed to asbestos many years ago
You are no longer working for your exposed employer
You have been working for many employers
You are a self-employed or contractor
Your employer is no longer in business
You are either a smoker or a smoker
You are exposed to another state or overseas asbestos
You are not vulnerable to the workplace
You just simply exposed to asbestos
You are more than once in contact with asbestos
You do not know how you exposed to asbestos.
What must you prove?
In the common law compensation claim, you need to show that:
You've been exposed to asbestos in the past
The defendant owes your legal care obligations
Your exposure to asbestos has led you to develop mesothelioma
You have suffered pain, pain, loss and damage because of mesothelioma
The defendant negligence causes or permits you to be exposed to asbestos (for example, your employer has failed to prevent you from contacting asbestos in the workplace, or the manufacturer has failed to warn you that asbestos is dangerous to your health).
What happens during the claim process?
First, you will meet a lawyer in their office, in your home or the hospital. Your lawyer will be from your complete life and work history and discuss any exposed asbestos that you may have. If you do not remember any asbestos exposed, do not worry. Many people can not directly remember how they are exposed to asbestos as it may be a long time ago. It may take a chance to talk about your history and know how you are exposed to asbestos.
Your attorney can arrange an expert in the field of asbestos-related diseases. If you are not good enough to leave your home, then your lawyer can organize a doctor to visit you at your home or in the hospital. Your lawyer will be around your medical appointment or treatment, trying to make things lighter to your stress.
During your common law claims process, your attorney will contact you regularly to discuss your claim progress. If your health changes, you or your family should let your lawyer know. You should be able to talk to your lawyer at any time about any aspect of your claim.
Claims should normally be "reconciled" or "conciliated" until the common law claims can be heard before the court. Settlement meetings or mediation are opportunities for the parties to meet and try to resolve the claim. The most common law claims on asbestos-related diseases are settled at this stage without a court trial.
If your common law claim is not resolved in a reconciliation meeting or mediation, your claim will be tried in court. During the trial, you may need to provide evidence in court. If you are not good enough to attend a court, a judge or a court appointed representative will visit you at home or take your evidence to the hospital.
What compensation will I get?
You may be eligible for different types of payment (known as damages). These are used by the court to determine how much compensation you are entitled to. They include the following compensation:
sufferingThe pain and pain you suffer from the diagnosis of mesothelioma (known as general damages)
Loss of life expectancy
Past and future loss of income caused by the diagnosis of mesothelioma (including your rights, such as pensions)
Compensate any self-paid expenses, such as medical or medical expenses, due to your diagnosis
Paid by your friends and family, due to the results of mesothelioma provided to your free care
To indemnify the legal fees that make your claim for common law.
In some cases, compensation may be sought because of your ability to provide care and family assistance to dependents such as spouses, children, and grandchildren.
How long will a typical law case take?
The most common legal requirements for mesothelioma are settled in court. Only a few cases were tried in court. Most of the claims are resolved within 3-6 months of the filing of the claim. If your prognosis is not good, or you suddenly become very unwell, the process can be accelerated to ensure that your common law requires that you be resolved in your lifetime.
What if I die before my claim is settled?
Many people diagnosed with pleural mesothelioma worry that their demands will not be finalized until they die. The greatest part of the compensation is usually the general damages. As long as you make a common law claim in your lifetime, then your general damages are protected if your death before your claim is determined, your legacy will be able to continue your claim.
In some cases, if you die because of mesothelioma, your family may also be entitled to the right of attachment. Your lawyer will inform you if this applies to you and your family.
"When my husband was diagnosed with terminal mesothelioma we were advised to apply for compensation. He reluctantly contacted lawyers, and they assured us we had an adamant case. My husband didn’t survive to ‘win’ his case, but I did, with a lot of help, caring, understanding and good advice from our lawyers." – Sharon
How much does legal action cost?
Legal fees usually depend on the amount of legal work required to resolve your case. Most lawyers specializing in asbestos compensation claims provide a "no win, no charge" agreement. This means that lawyers will only charge legal fees when they successfully resolve your case. Also, you are entitled to claim most of the legal fees to the defendant as part of your common law claim. The amount will depend on whether your case is settled in mediation or at trial. Please consult your lawyer for more details.
Will I need to pay the money back?
If your claim is successful, your lawyer will inform you if you need to pay the following fees:
Medical insurance accepts any medical treatment associated with your diagnosis of mesothelioma
Your private health insurer, any health insurance covered by an insurance company, and related with your diagnosis of mesothelioma
Centrelink if you are receiving a disability pension
Veterans Affairs Department if you have received some veterans right
Any public hospital, you have been given an individual hospital or outpatient service.
Often, your attorney will include any amount you will need to reimburse in your common law application. This means that you will still receive your compensation and you will not be "left" for any repayment that you might do.
Finding a lawyer
Manufacturing mesothelioma requires a specialized area. It is important to talk to experienced lawyers and law firms in this field of work as they usually have a lot of knowledge about how to use asbestos and where to use asbestos.
Talking with experts in this area will help reduce the time required to investigate claims. Experienced lawyers also have a good understanding of pleural mesothelioma and what you are dealing with.
To find a lawyer who specializes in common law requirements for mesothelioma and other asbestos-related diseases (such as lung or asbestos lungs), please contact the legal association of your state or territory:
New South Wales 02 9926 0333
Victoria 03 9607 9311
Queensland 1300 367 757
South Australia 08 8229 0200
Western Australia 08 9324 8600
Tasmania 03 6234 4133
Northern Territory 08 8981 5104
ACT 02 6274 0300
Statutory benefits
Some states and regions have special government compensation programs for people developing mesothelioma and other asbestos-related diseases.
These compensation schemes are usually only applicable to situations where you are exposed to asbestos during work. Some may have the right to make a common law claim instead of a statutory claim. Before applying for legal benefits, please consult with a lawyer to ensure that you will not be excluded from claiming common law compensation. For more information, see the following table.
| New South Wales | Victoria | Queensland | |
| Name of the Act | Workers’ Compensation (Dust Diseases) Act 1942 | Workplace Injury Rehabilitation and Compensation Act 2013 | Workers’ Compensation and Rehabilitation Act 2003 |
| Who can make a claim |
| People exposed to asbestos in the course of their employment after 31 August 1985 | People exposed to asbestos while working in Queensland |
| What are my entitlements? | Weekly compensation payments or a pension. The Dust Diseases Board pays for your hospital, medical and pharmaceutical expenses, nursing care, nursing aids and equipment, and other related expenses such as assistance with housework and garden maintenance. | Payment for pain and suffering, past and future medical expenses, past and future loss of income, cost of assistance around the home, and travel to medical appointments. | Lump sum compensation. It doesn’t matter if you are retired or still working. |
| Do I have to prove fault? | No | No | No |
| Can I apply for other benefits? | Yes, benefits are in addition to your right to claim at common law. | You may be entitled to workers’ compensation benefits and superannuation and total permanent disability claims. | You may be entitled to workers’ compensation benefits, and superannuation and total permanent disability claims. |
| Can my family apply? | If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family. | If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family. | If you were working at the time of your diagnosis and you die because of your asbestos-related disease, your dependants may also receive entitlements. Your lawyer will discuss this with you and your family. |
| How to make a claim | You or your lawyer can submit an application to the Dust Diseases Board. Visitddb.nsw.gov.au. | Contact WorkSafe Victoria:worksafe.vic.gov.au. | Contact WorkCover Queensland:worksafe.qld.gov.au. |
Reviewed: Theodora Ahilas, Principal, Maurice Blackburn Lawyers, NSW; Shirley Bear, Support Group Facilitator, Asbestoswise, VIC; Geoffrey Dickin, Consumer; Victoria Keena, Executive Officer, Asbestos Diseases Research Institute, NSW; Angela Kyttaridis, Social Worker, Concord Repatriation General Hospital, NSW; Jocelyn McLean, Mesothelioma Support Coordinator, Asbestos Diseases Research Institute, NSW; Kirsten Mooney, Thoracic Cancer Nurse Coordinator, WA Cancer and Palliative Care Network, Department of Health, WA; Clin/Prof AW Musk AM, Schools of Population Health and Medicine, University of Western Australia, and Physician, Sir Charles Gairdner Hospital, Nedlands, WA; Dr Andrew Penman AM, Consultant, Asbestos Diseases Research Institute, NSW; Tanya Segelov, Partner, Turner Freeman Lawyers, NSW; Roswitha Stegmann, 13 11 20 Consultant, Cancer Council Western Australia, WA; Dr Mo Mo Tin, Staff Specialist Radiation Oncology, Chris O’Brien Lifehouse, NSW; and Prof Nico van Zandwijk, Director of the Asbestos Diseases Research Institute and Professor of Medicine, University of Sydney, NSW.
source : www.cancervic.org.au/about-cancer/cancer_types/mesothelioma/compensation-mesothelioma.html
