Claiming compensation for asbestos related diseases
Victims of dust disease in South Australia have two avenues of compensation. These include the Workers Compensation Act 1971 or the Return to Work Act 2014 and Common Law.
The Workers Compensation Act or the Return to Work Act
If you were exposed to dust at work prior to 30 September 1987 then your claim will be covered by the Workers Compensation Act 1971. If you were exposed to dust at work after 30 September 1987 then your claim is covered by the Return to Work Act 2014.
Claims brought pursuant to the Workers Compensation Act 1971 involve making an application against a former employer or in circumstances where the employer no longer exists and the insurer has not been identified, against the Statutory Reserve Fund.
You will be required to undergo a medical examination. The maximum amount of compensation payable under the Workers Compensation Act 1971 is $40,000 plus medical expenses and in some cases, lost earnings. Claims under the Return to Work Act 2014 can result in higher amounts of compensation, but as asbestos was phased out in industries by this time it rarely applies.
A common law negligence claim in relation to a sufferer of a terminal condition such as mesothelioma or lung cancer, who at the time of diagnosis was not working, is usually valued at approximately $250,000 to $400,000 after all costs and disbursements have been paid.
Following the introduction of the Dust Diseases Act 2005 (SA), all claims for asbestos conditions are usually brought in the District Court of South Australia.
In July 2017 an amendment was made to the Dust Diseases Act allowing a person to bring a claim for an asbestos condition in either the District Court of South Australia or the South Australian Employment Court. Whether a claim is brought in the District Court or the Employment Court is a jurisdictional question only, and the changes were introduced to address certain administrative difficulties associated with these claims being managed by the District Court registry. It is anticipated that this change will affect neither the manner in which the claim is heard nor the amount of compensation available to claimants.
Both the District Court and the Employment Court are required to ensure that such claims have priority and are dealt with expeditiously.
Dust Diseases Act
The Dust Diseases Act introduces evidentiary presumptions that assist in proving your case. If the defendant carried on a prescribed industrial or commercial process, then it is assumed, unless there is evidence to the contrary, that the defendant knew at the relevant time that exposure to asbestos could cause a dust disease. If you were exposed to sufficient asbestos to cause a dust disease and you have that dust disease, then it is assumed that your dust disease was caused by your exposure to asbestos. In addition, the Act allows you to tender evidence from previous proceedings and rely on previous findings of courts in South Australia and elsewhere including New South Wales.
What you can claim for
The Court will award damages for pain and suffering, loss of expectation of life, past and future out-of-pocket expenses including medical expenses, the commercial cost of gratuitous care and assistance that has been and will be provided as a result of your asbestos condition, the loss or impairment of your capacity to provide domestic services for the benefit of others and, where appropriate, loss of earning capacity. In addition to these compensatory damages, the Act provides that a Court must award exemplary damages (damages designed to punish a defendant) if you can prove that the defendant knew that a person such as yourself was at risk of exposure to asbestos dust and knew at the time of your exposure that exposure to asbestos dust could cause a dust disease.
Claims in South Australia can proceed on a provisional damages basis. This means you claim damages for the asbestos conditions you are now suffering from and you reserve the right to make a further claim if you develop another asbestos condition in the future. Damages for pain and suffering and loss of expectation of life survive death provided proceedings are commenced in the person’s lifetime.
Claims in South Australia are subject to limitation periods. An asbestos claim must be commenced within three years of you becoming aware of your asbestos related condition. The Court can extend the time limit for a period of 12 months after you become aware of a material fact such as an increase in your disability or extent of disease.
If you recover any damages at common law, then you must repay any monies received for a claim brought under any Workers Compensation Acts that apply in South Australia.