Common law claims

Common law claims are claims for lump sum damages for negligence or breach of a statutory duty, usually brought against a former employer or a manufacturer.  Generally speaking greater entitlements are available through court claims for persons who have been exposed to asbestos in Western Australia and develop an asbestos disease than through workers’ compensation claims.

For Western Australians exposed to asbestos outside of employment but in the state of Western Australia, such as in self-employment, a court claim for damages would be the only avenue for compensation and significant lump sum compensation can be obtained.  For example, housewives with asbestos disease who were exposed to asbestos from their husband’s work clothes could have a claim for damages against their husbands’ employers who exposed them to asbestos or a manufactuer of the asbestos products which were the source of the exposure.  Self-employed carpenters with asbestos disease usually have strong claims against the manufacturers of the asbestos cement fibro products they used.

Time limits

Common law claims in Western Australia are subject to strict time limits. A claim for an asbestos disease must be commenced within 3 years of when a person develops a “significant” asbestos disease. The Court may extend the time in which a claim can be brought by a further 3 years in certain circumstances. 

A claim under the Fatal Accidents Act by a dependant (where a person has died from a dust disease) must be commenced within 3 years of the asbestos disease sufferer’s death.

Importantly, a person exposed to asbestos should seek advice about compensation immediately after diagnosis to ensure their enititlements to compensation are protected.

Types of damages available

If a claim is commenced in a person’s lifetime, damages for pain and suffering and for loss of expectation of life are available, even if the claim is not completed before the person dies.  However, if a claim is not commenced in a person’s lifetime, these damages are not available in any later claim brought. It is therefore important that claims are commenced as soon as possible.

It is very important that you contact a lawyer and obtain advice as soon as you are diagnosed with an asbestos disease.

Amount of damages

In awarding damages, the Court will make findings as to a number of heads of damage, including damages for pain and suffering, damages for loss of expectation of life, damages for economic loss (where a person can no longer work because of their dust disease) and damages for past and future out of pocket expenses. Damages are also available for the value of the care a person needs from their family as a result of their illness. 

The amount of damages awarded for a claim will vary greatly depending on the individual circumstances of the claimant. A claim for a person suffering from mesothelioma or lung cancer who is not working at the time of diagnosis is valued at approximately $200,000.00 to $350,000.00, once costs and disbursements have been paid.

Recent developments in Western Australia

Firstly, in relation to court claims there have been promising developments in the law in Western Australia in recent years.  Legislation has been enacted which will firstly allow damages for pain and suffering (general damages) in asbestos disease cases to survive a person’s death if a person dies before a court claim is completed and the asbestos disease causes demise.  This brings Western Australia in line with other states of Australia such as New South Wales, Victoria, South Australia and Queensland.

Secondly, where a person dies of an asbestos disease and a dependency action is brought under the Fatal Accidents Act by for example a lost one’s widow the recovery of damages through the death of that person is now calculated without reference to any amount of damages awarded to the estate.  Before, this vital piece of legislation was enacted it was the case that any damages recovered as a part of the estate action for pain and suffering and loss of expectation of life was taken into account and essentially deducted from damages awarded to a dependant.

Special laws in other States

Despite the above Western Australia does lag behind other States, particularly New South Wales, South Australia and Victoria in relation to special laws for court claims for asbestos disease.

Provisonal damages

In some States of Australia including New South Wales, South Australia and Victoria claims can be commenced on a provisional damages basis or a full and final damages basis. An award of provisional damages permits a claimant to make a claim for the dust disease they are now suffering from and a further claim in the event that they later develop another, different, asbestos disease.

Western Australia is yet to enact a similar law and therefore, if a person has been exposed to asbestos in Western Australia he or she can only bring a claim on a full and final basis and will be prevented from bringing further proceedings in the future should he or she be diagnosied with another asbestos disease in the future. 

If you have been exposed to asbestos in more than one State in Australia, say for example Western Australia and New South Wales you would be able to bring a provisional damages claim with respect to your New South Wales exposure.  Therefore it is important that you obtain advice from your lawyer about whether you are entitled to commence your claim on a provisional damages basis and again this will be determined by where your exposure to asbestos occurred.

Third party care claims

This head of damage was formerly known as Sullivan v. Gordon damages or damages for services provided to a third party.  These damages were awarded in circumstances where a person cared for a loved one who was a child, sick or elderly and then developed an asbestos disease and could no longer provide care and assistance to their loved one.  The cost of replacing those services could be claimed as a part of the court claim. 

Unfortunately the High Court decision of CSR Limited v. Eddy abolished these damages but certain States of Australia including New South Wales, South Australia, Victoria, ACT and most recently Queensland have enacted legislation to make these damages available.

Dust Diseases Tribunal of New South Wales

In 1989, New South Wales created a specialist court called the Dust Diseases Tribunal.  This court has all the powers of the Supreme Court of New South Wales but its jurisdiction is limited to dust diseases and in practical terms to asbestos disease cases.

Special procedures have been set in place in the Dust Diseases Tribunal to allow cases to be heard quickly and efficiently.  From the time of filing a claim in the Dust Diseases Tribunal it has been the case that claims for mesothelioma, have been completed in as short a time as 2 weeks.

As many persons with asbestos disease have been exposed to asbestos in various States around Australia, the Dust Diseases Tribunal has heard cases in respect of persons suffering from mesothelioma in Western Australia and indeed has visited the state and taken evidence in hospitals and at bedsides of those with mesothelioma.