No Win No Fee on all compensation claims

Former Commonwealth employees

A number of former Commonwealth employees or former Defence personnel were exposed to asbestos. Former employees of the PMG, Telecom and Telstra may have been exposed as a consequence of working with asbestos cement pipes and pits during the installation or repair of underground telephone lines. Ex-Defence Force personnel, particularly members of the Royal Australian Navy, may have had exposure to asbestos while serving aboard Navy ships where asbestos insulation was used.

Former Commonwealth employees have the choice of claiming statutory compensation pursuant to the provisions of the Commonwealth Safety Rehabilitation and Compensation Act, 1988 or claiming lump sum compensation in negligence from Comcare which has been given the responsibility for dealing with such claims against former Commonwealth Departments or Agencies.

Unlike a NSW worker, a former Commonwealth employee is unable to claim both statutory compensation and lump sum compensation in negligence. An ex-Commonwealth employee must make a choice between one or the other.

Statutory Compensation

A former Commonwealth employee is entitled to make a claim on Comcare under the Safety Rehabilitation and Compensation Act, 1988. Entitlements include a lump sum for permanent impairment, weekly payments of compensation where the asbestos related disease has prevented the victim from working and medical expenses.

Our experience is that a former Commonwealth employee who has asbestos related disease is better served by making a claim against Comcare in negligence for lump sum compensation. That is because the lump sum obtained through a negligence claim results from one set of court proceedings in the DDT and covers compensation for pain and suffering, past and future medical expenses, past and future voluntary and commercial nursing care as well as compensation for other losses. A claim for statutory compensation on Comcare under the Safety, Rehabilitation and Compensation Act, 1988 may involve more than one application. Each application needs to be supported by supporting evidence. A number of applications may need to be made in order to secure a victim’s full entitlement. Finally, the compensation available through a negligence claim is superior to that which can be obtained through a claim for statutory compensation.

In the event the asbestos related disease causes the death of the former Commonwealth employee then any dependant of that employee has the right to make a claim under the Safety Rehabilitation and Compensation Act, 1988. Benefits include funeral expenses, a lump sum payment and payments to dependant children.

Ex-Defence Force personnel may also have entitlements under the Veterans Entitlements Act, 1986.  A successful application results in the payment of a pension but not a lump sum. A successful application can also result in the payment of medical and related expenses.

Our experience is that ex-Defence Force personnel who have an asbestos related disease is better served by making a claim against Comcare in negligence for lump sum compensation. This is largely because there is no entitlement to lump sum compensation for pain and suffering under the Veterans’ Entitlements Act, 1986 and because the compensation obtainable through a negligence claim for lump sum compensation is superior to the entitlements available under the Veterans’ Entitlements Act, 1986.

Common Law Compensation

Ex-Commonwealth employees or ex-Defence Force personnel with asbestos related diseases can make a claim for compensation through the Dust Diseases Tribunal of NSW (“the DDT”). The compensation claimed includes compensation for pain and suffering, past and future medical expenses, past and future wage loss  and past and future voluntary care and commercial care.

All such claims are dealt with by the DDT. They are subject to the claims resolution process in the same manner as a claim by a NSW worker is as outlined above.


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