In New South Wales victims of benign asbestos diseases such as asbestosis or asbestos related pleural disease who have a right of action at common law in the Dust Diseases Tribunal of New South Wales, can bring their claim on a provisional damages basis.
How provision damages work
By bringing a claim on a provisional damages basis it enables the plaintiff to receive damages for the benign asbestos condition but allows the plaintiff to bring a further claim in the future in the event that he develops another asbestos disease such as pleural mesothelioma, peritoneal mesothelioma, asbestos related lung cancer or any other asbestos induced cancer.
Given that there is no age barrier to developing an asbestos related cancer (particularly mesothelioma), this is an important protection for a plaintiff.
Let us take a practical example of a plaintiff who has asbestos related pleural disease and who is bringing a common law claim for provisional damages for that condition of asbestos related pleural disease in the Dust Diseases Tribunal of New South Wales.
The plaintiff would recover damages for his asbestos related pleural disease. When judgment is entered the Judge makes an order listing the dust related conditions in respect of which the plaintiff may seek further damages should he develop one of those diseases in the future. In the case of our plaintiff with asbestos related pleural disease, the asbestos related conditions in respect of which he could seek further damages in the future are:
- Pleural mesothelioma
- Peritoneal mesothelioma
- Asbestos related lung cancer
- Asbestos induced carcinoma of any other organ
Had that plaintiff brought his claim for asbestos related pleural disease on a full and final damages basis, he would be prevented from making a further claim in the future should he develop any of the conditions listed above. Whilst the claim on a full and final damages basis would have included a sum of money for the risk of developing another asbestos related disease such as mesothelioma in the future, the sum of money that he would have received for that risk is only small.
Unfortunately we are seeing more and more clients in their 80’s and even 90’s developing asbestos related cancer such as mesothelioma. For this reason plaintiff’s with a benign asbestos disease are advised to bring their claim on a provisional damages basis.
If you would like further information on provisional damages, including which other Australian States have a system that allows for claiming provisional damages, then we invite you to contact Turner Freeman’s Parramatta office on 02 8833 2500 or via our online enquiry form.