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Home | Blog | Provisional damages under the Dust Diseases Act 2005 SA

What are your rights

Exposure to asbestos dust and fibre is known to cause many different types of diseases, from benign scarring on the lung through to conditions such as asbestosis, lung cancer and mesothelioma, a cancer of the lining of the lung. It is possible for a person to develop a number of different asbestos related diseases and they may not all develop at one time. Further, conditions such as asbestosis vary in severity from person to person, with some sufferers experiencing little to no respiratory impairment whilst others may require home oxygen and experience a shortening of life expectancy.

There are many factors that go into calculating damages in asbestos cases, but the major factor is the severity of the disease and the impact on the victim’s day to day life. As such, a claim for an asbestos related cancer will ordinarily be worth substantially more in damages than a claim for an asbestos related condition causing a limited respiratory impairment.

So what happens when you receive compensation for an asbestos related disease and your condition subsequently worsens, or if you develop a different sort of asbestos related disease?

If you have previously been compensated and you develop a different disease

The Dust Diseases Act 2005 allows those who make a claim through the Courts for an asbestos related condition to choose between claiming damages on a provisional damages basis or on a full and final basis.

For example, if a plaintiff with asbestosis causing a 15% respiratory disability was to claim damages on a full and final basis, this means that after the claim has settled the plaintiff would be prevented from making any further claim in respect of asbestos exposure, even if the plaintiff was to ultimately develop a condition such as mesothelioma.

Conversely, if the plaintiff was to claim damages for the condition of asbestosis on a provisional damages basis and the plaintiff was to later develop a condition such as mesothelioma, that plaintiff would be able to make a further claim for compensation in relation to the condition of mesothelioma.

It is important that your lawyer advises you of your right to claim damages on a provisional damages basis before commencing a claim in relation to your asbestos related conditions.

If you have previously been compensated and your disease gets worse

Unfortunately, even when damages have been claimed on a provisional damages basis, we are unable to make a further claim in relation to the same asbestos related condition, even if that condition gets substantially worse.

For example, if the same plaintiff diagnosed with a 15% respiratory disability from the condition of asbestosis was to suffer a severe deterioration in the condition of asbestosis such that the plaintiff is now suffering from a 50% respiratory disability and a limited life expectancy, the plaintiff still would be unable to bring a further claim for the condition of asbestosis. This is because the plaintiff previously received compensation for this condition.

For this reason it is important when bringing a claim for an asbestos related condition, that damages are claimed in relation to both the effect that the condition has had on the sufferer’s life in the past and present, and also the effect that the condition will likely have on the sufferer’s life into the future.

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