The Commonwealth, and each state and territory have different legislation and compensation systems, it is important a specialist litigator, explains the system running in the jurisdiction where you are making the claim. Depending on the jurisdiction, if you qualify, you may be able to make both a ‘Common Law‘ claim and a separate ‘Statutory Scheme‘ claim – or you may be able to make either a ‘Common Law‘ claim but not a ‘Statutory Scheme‘ claim – or vice versa. The differences between ‘Common Law‘ and ‘Statutory Scheme‘ claims is explained below.
Common Law Claims
A ‘Common Law‘ (or ‘civil’) claim is where you sue a private or public listed entity for damages. These could include entities such as manufacturers of asbestos containing materials and products and also employers believed responsible for a diagnosed sufferer’s exposure to asbestos, etc. In many instances it is their insurance companies which the case is brought against – particularly if the defendant concerned no longer exists. In most cases compensation will be determined by the relevant jurisdiction’s court, and involve a lump sum monetary payout.
Normally compensation is worked out on the basis of an amount based on all, or some of (but not limited to) the following:
- The claimants pain and suffering;
- Potential shortening of life.
- Loss of income or earning potential.
- Past medical and care costs. – This means the costs incurred by past providers such as Medicare, health funds, etc. are calculated and added into the total – these amounts will be deducted from the final payout figure and reimbursed to Medicare, health fund, etc.
- Future medical and care costs. – A review of the sufferers health and care needs will be carried out to allow future medical and care costs to be estimated and allowed for. An allowance may also be negotiated within this amount for the cost of viable, or potential treatments not listed on the PBS. If you have private health cover, your litigator may also be able to negotiate a deal where the health fund starts paying the medical bills again if in the future, the medical cost allowance is reached. We would suggest this is something you particularly bring up with your specialist litigator.
- An allowance for future provision for dependents (if any) where the claimant is the primary provider and/or caregiver [this may involve making provision for the future welfare of dependent spouses, children, etc].
- Defendants legal cost (or a percentage of)
Statutory Scheme Claims
A ‘Statutory Scheme‘ claim is a claim made against a ‘Commonwealth‘ Government or a ‘State‘ or ‘Territory‘ Government Statutory Authority funded compensation scheme – these are known as ‘Statutory Schemes‘ however, not all jurisdictions run them. Each scheme caters for workers in their own demographic, for example, the Commonwealth’s Comcare scheme caters for Commonwealth employees, such members of the Australian Defence Force or the Australian Broadcasting Corporation, etc., whereas the NSW’s Dust Diseases Authority caters for employees covered by the NSW Workcover Compensation Scheme, and so on.
‘Statutory Schemes‘ mostly are no fault schemes that only require proof of diagnosis and proof of employment whilst working with asbestos in the applicable jurisdiction. This means there is no necessity to find someone to ‘sue‘. Making a ‘Statutory Scheme‘ claim is generally a lot more straight forward than making a ‘Common Law‘ claim – but it is not automatic. This is particularly the case if there is an employment history of exposure to asbestos fibres/dust whilst working in other jurisdictions, or there is evidence of exposure caused outside of employment. There is nothing normally open and shut where any form of compensation is involved, therefore it is preferable advice is sought from a specialist litigator to help with an application. Sufferers exposed whilst not working as an employee, mostly are only able to make a ‘Common Law‘ claim (see above).
‘Statutory Scheme‘ compensation may involve [but not be limited to] some, or all of the following:
- Payment of medical expenses, including in some cases experimental or non PBS listed treatments.
- Hospital and hospice care.
- Rehabilitation expenses.
- Support and care including counseling, home nursing, occupational therapy, etc.
- Supply of care aids – beds, recliners, wheely walkers, wheel chairs, etc.
- Travel and/or travel expenses assistance.
- In home assistance such as home help, lawn mowing, etc.
- Provision of home structural support – may include making changes to the home like putting in handrails, ramps, etc. to make the house more user friendly.
- Funeral expenses.
- Pensions; and/or
- Lump some payouts to either the sufferer, carer and/or bereaved dependent(s)
All jurisdictions have differing ‘Statutory Schemes‘ and laws on compensation. For example: Many people diagnosed with and asbestos related disease resulting from asbestos dust/fibres exposure, whilst employed and working in NSW, are unaware they may be compensated by the NSW Government’s icare Dust Diseases Care (a ‘Statutory Scheme‘ claim) and still be eligible to make a ‘Common Law‘ claim. But this is not necessarily the case in other states, territories and the Commonwealth.
It is preferable, if considering registering with a ‘Statutory Scheme’ authority, that advice is first sought from a specialist asbestos litigator before filling out the application forms. You can find links and phone numbers to relevant ‘Statutory Authorities‘ by clicking [here].
All persons diagnosed with an asbestos related disease are encouraged to seek specialist legal advice. This will allow informed decision making regarding legal matters. It is important that legal advice is obtained as soon as possible after a person is diagnosed with an asbestos related disease.
Often a substantial amount of compensation will be lost, or a case may be unable to be conducted at all, if it is not pursued in a claimants lifetime. In situations involving grave health, specialist lawyers can sometimes commence proceedings within a matter of hours after speaking with someone suffering an asbestos related disease such as mesothelioma asbestos cancer, thus protecting their family’s rights.
Remember: Experienced accredited asbestos disease litigators normally work on a no win, no fee case basis – this means there is, in most cases, no up front out of pocket costs to you.
It is vital to consult a legal firm that is accredited, and has extensive experience in asbestos related disease litigation, as soon as possible after being diagnosed. To find out more about specialist litigators and how to find one to suit you – click [here].