Protecting common law entitlements to compensation in dust diseases claims

It is recommended for any person who has been diagnosed with a dust related disease to seek legal advice as soon as possible regarding their potential compensation entitlements. Strict time limits apply to claims for dust related diseases, especially in respect of terminal illnesses such as mesothelioma.

For a common law claim, it is important for a sufferer who has been diagnosed with a dust related disease to get legal advice and, if a claim for compensation should be made, file a Statement of Claim in their lifetime so as to protect their claim for damages for the benefit of their estate. If a sufferer of a dust related disease has not filed a claim in Court and then passes away, their family is restricted in what type of claim for compensation they could make. For example, the estate would not be able to claim general damages for “pain and suffering”, which often comprises a significant component of an overall award of damages. If a sufferer commences a common law claim during their lifetime, the sufferer’s estate can continue with the claim even if they pass away before the claim is finalised. However, the damages that may be the claimed by the estate may still be limited.

New South Wales has a dedicated tribunal called the Dust Diseases Tribunal (the DDT) to deal with dust related claims. The DDT has a “Claims Resolution Process” which aims to expedite the hearing of claims for compensation made by sufferers of a dust disease. A claim can be removed from the Claims Resolution Process and expedited in the DDT in some circumstances where a sufferer is gravely illand may not survive the time in which their case progresses to a hearing before a judge.

It is also important to note that if a Statement of Claim is not filed in a dust related injury sufferer’s lifetime, a claim for compensation may still be available to the estate or the dependants of the deceased. However, the claim will be limited to the financial consequences of the death and the dependants are generally only entitled to claim medical expenses, the cost of care during the deceased’s illness, lost earnings of the deceased, and funeral expenses. The law does not allow a claim to be made for the usual grief caused by the loss of a loved one.

Making a dust related disease claim is a specialised area of the law. Different states have different time limits in which to bring a claim. It is important that sufferers talk to a lawyer experienced in this field of work. Lawyers in this area have a comprehensive understanding of the dust diseases legislation and have access to information about how and where harmful dusts were used. Slater and Gordon are proud to provide our clients suffering from dust related diseases with leading legal services. We have specialist lawyers who deal exclusively with dust disease cases.