Reducing financial stress allows a sufferer and their family to concentrate on dealing with the complications of living with an asbestos related disease.
About Asbestos Related Disease Litigation
All persons diagnosed with an asbestos related disease (ARD) are encouraged to seek specialist legal advice. Even if you do not know what your exposure was by, or your possible exposure cause was not employment related. Seeking specialist legal advice will allow informed decision making regarding legal matters.
It is important that specialist 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. Traditionally the litigators will take instructions at the sufferers home, or if necessary in a hospital – in other words they will come to you.
Making A Claim
Making a claim is generally not onerous, especially if you give instructions to a Specialist Accredited Litigator with considerable asbestos related disease litigation experience. You engage them to do the difficult leg work, the main thing you have to do is give them your ‘life journey‘ history, not just your work history, and as many memories and facts you can. You do not need exact dates, but obviously the more accurate facts and recollections you can give them, the better they can ‘pick the chaff out of the straw’ and decide on the best way to make a claim and a successful case for you.
Keep an open mind
The main thing is try to keep an open mind re asbestos exposure. If someone is diagnosed with an asbestos related disease, it means they have been exposed – it is a matter of finding out where and who to make a claim against. If you believe you have had a predominant source of exposure, or a history of multiple exposures, try not to become fixated on just one, it will help the litigator and your case if you can keep an open mind and provide as much overall information as possible. Remember: If you have been diagnosed with an ARD you have been exposed to asbestos fibres/dust – somewhere, somehow.
Experienced accredited asbestos disease litigators mostly work on a no win, no fee case basis – this means there is normally no up front out of pocket costs to you. Always establish what you will need to pay and when, and if it is on a no win – no fee basis, when first talking with a specialist litigator.
Asbestos Related Diseases that may be compensable include:
Eligibility To Claim
It may be possible to make a claim even if:
- Your exposure occurred many decades ago
- You have left the employment where you were exposed
- Your employer went out of business years ago
- You worked for multiple employers where you may have been exposed
- You were self employed or worked under contract
- Your exposure did not occur at work
- You were exposed in a number of different places
- You are not sure where or how your exposure occurred
- You are, or have been a heavy smoker
- You are living in a different state or country from that in which you were exposed to asbestos
- You believe your exposure was indirect. For example, your exposure was caused by a family member or friend bringing home asbestos dust on their clothes.
Successful Litigation Factors
A successful litigation case depends on three factors:
- Proof of diagnosis;
- Establishing causation (responsibility for the cause of the exposure); and
- Finding who to sue for compensation*.
Specialist Legal Advice
It is vital to consult a legal firm that is accredited, and has considerable experience in asbestos related disease litigation, as soon as possible after being diagnosed.
Note: Experienced accredited specialist litigators will have extensive resources available to try to figure out who, or what company is responsible for the causation – you will just need to give them as much of your life history as possible (not just work history). That being said, proving causation is not always possible – particularly where there is no work or employment history of working with asbestos and/or no known, or traceable history of exposure.
* ‘Statutory schemes‘ mostly are no fault schemes that only require proof of diagnosis and proof/history of employment whilst working with asbestos – read more about ‘common law‘ and ‘statutory schemes‘ below.
Each state and territory have different systems, it is important the specialist litigator you appoint, 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‘ claim – or you may be able to make either a ‘common law‘ claim but not a ‘statutory‘ claim – or vice versa.
‘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 Comcare funded compensation scheme, or a claim made against a ‘State‘ or ‘Territory‘ Government Workcover funded compensation scheme. ‘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 the case in all states and territories.
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.
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 a list of specialist litigators click [here].