Settling dust disease claims and the importance of provisional damages
In most circumstances, plaintiffs who have suffered a personal injury and bring a claim for that injury are awarded compensation (known as damages) on the basis of the “once and for all” rule. This rule essentially provides that for causes of action arising from the same material facts, the damages awarded must compensate the plaintiff in respect of all losses which the plaintiff has suffered and will suffer in the future.
This means that damages are assessed at a single stage, cannot be subsequently enlarged and are calculated as a lump sum. The consequence of this is that a plaintiff can only make one claim for damages and cannot obtain any further damages in relation to the original claim, even if the plaintiff develops a different or more serious injury or disease that is related to their initial injury after their claim has been decided. The rationale for such a rule is to provide finality and financial certainty, reduce court congestion and avoid protracted litigation.
Whilst the rule is a fundamental feature of our legal system, it creates obvious difficulties for Courts as they are required to make provisions for unknown events in the future. This is especially the case in benign asbestos disease claims because of the high risk of plaintiffs developing other asbestos diseases such as mesothelioma, asbestos related lung cancer or any other asbestos induced cancer. To deal with these unique circumstances, some jurisdictions in Australia have modified the once and for all rule by enacting legislation which allows a Court to make an award of provisional damages.
Given the long latency periods and the possibility of an individual contracting multiple but separate diseases, the Courts Legislation Amendment Bill 1995 amended the Dust Diseases Tribunal Act 1989 to insert section 11A so that all victims of benign asbestos diseases such as asbestosis or asbestos related pleural disease who have a right of action at common law in NSW can bring their claim on a provisional damages basis. This award still involves an immediate assessment of all losses (including future losses) but does not include an assessment for those losses attributable to the happening of a future event. A provisional damages claim therefore enables a plaintiff to receive damages for the benign asbestos condition but also allows them to bring a further claim in the future in the event that they develop another asbestos disease, such as mesothelioma.
As plaintiffs can never make another claim if they have already resolved a claim on a full and final damages basis, provisional damages is a very important protection for an asbestos affected plaintiff and it is why legal practitioners must ensure that they advise their clients of the availability of such an award. Given the significant risk that heavily exposed individuals face of developing mesothelioma, legal practitioners who litigate a claim for a plaintiff exposed to asbestos for benign disease on a full and final basis are at serious risk of an action in professional negligence should their clients later contract a terminal disease as they will have extinguished all future rights to a further claim.