Types of cancer
Making a claim
People who develop mesothelioma due to asbestos exposure may be able to make a claim for compensation. It is important to get advice from an experienced lawyer as soon as possible, as a case for compensation must be started within your lifetime.
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Some people who develop mesothelioma due to asbestos exposure may be able to claim compensation. Your legal entitlements will depend on the state or territory in which you were exposed to asbestos. In some cases, the exposure may have occurred overseas.
Mesothelioma usually takes a long time to develop, so you may have been exposed to asbestos up to 50 years ago or even longer. You might think it was a small exposure, or you may not remember coming into contact with asbestos. Talking to your friends and family can help you remember places where you may have been exposed to asbestos.
An expert lawyer will also talk you through your life history and help you find out where the exposure took place. They will explain what compensation you may be able to claim and help make the process easy for you to understand.
Generally, a person diagnosed with mesothelioma has 2 different types of legal entitlements:
- a claim through the court, known as a “common law claim”
- a claim under a government compensation scheme, known as a “statutory claim”.
Common law claim
A common law claim is brought against the party or parties (the people or organisations) who caused you to be exposed to asbestos. These are called the defendants.
A common law claim begins by filing a formal court document known as an “originating process”. The originating process must be lodged within your lifetime to protect your entitlement to compensation. This means that your estate will still be able to continue with your claim if you die before it is finalised.
If you’d like to make a claim, it’s important to speak with a lawyer experienced in asbestos-related compensation claims as soon as possible after your diagnosis.
If you’re too unwell to see a lawyer in their office, they may be able to visit you at home or in hospital to discuss the process and how it can be simplified for you and your family.
It may still be possible to bring a common law claim even if you:
- were exposed to asbestos many years ago
- no longer work for the employer where you were exposed
- have worked for many employers
- were self-employed or a contractor at the time of exposure
- worked for an employer who is no longer in business
- are, or were, a smoker
- were exposed to asbestos in another state or overseas
- were not exposed in the workplace
- were only briefly exposed to asbestos
- were exposed to asbestos on more than one occasion
- don’t know how you may have been exposed to asbestos.
Statutory claims
Some states and territories have special government compensation schemes for people who develop mesothelioma and other asbestosrelated diseases while at work. Contact the relevant organisations below for more information.
State and territory compensation schemes
Australian Capital Territory
Default Insurance Fund
02 6207 0184
New South Wales
Dust Diseases Care
1800 550 027
Northern Territory
NT WorkSafe
1800 250 713
Queensland
WorkCover Queensland
1300 362 128
South Australia
ReturnToWorkSA
13 18 55
Tasmania
WorkSafe Tasmania
1300 366 322
Victoria
WorkSafe Victoria
1800 136 089
Western Australia
WorkCover WA
1300 794 744
Commonwealth
Comcare
1300 366 979
Common questions about making a claim
You, and sometimes your dependants, can lodge a statutory claim directly with the authority in your state or territory. But most people with mesothelioma find it can be easier to use a lawyer to arrange all their claims. The laws around Australia vary and can be complex. Some people may be entitled to bring a common law claim instead of, or as well as, a statutory claim. It is vital to consult an expert asbestos lawyer before applying for statutory benefits to make sure that you aren’t excluded from also claiming common law compensation.
Use the “find a lawyer” search on your local law society website:
- NSW – The Law Society
- QLD – Queensland Law Society
- VIC – Law Institute of Victoria
- TAS – Law Society of Tasmania
- SA – Law Society of South Australia
- WA – Law Society of Western Australia
- NT – Law Society Northern Territory
- ACT – ACT Law Society
Mesothelioma legal claims are a specialised area. It’s important to talk to a lawyer or law firm experienced in this area, as they often have the appropriate information about how and where asbestos was used. An experienced lawyer may reduce the time it takes to investigate a claim. They also understand what you are coping with and may work around medical appointments to try to make things less stressful for you. The state mesothelioma support organisations may also help you find a lawyer experienced in dealing with asbestos cases.
Most common law claims for mesothelioma are settled out of court through a process called mediation. This can happen within a few months to a year of the claim being lodged. If your prognosis is poor, or you suddenly become very unwell, the process may be sped up to try to ensure that your common law claim is resolved in your lifetime. Very few cases actually proceed to a court trial.
Many people diagnosed with mesothelioma worry that their claim won’t be finalised before they die. The largest component of compensation is usually the general damages. So long as you start a common law claim in your lifetime, then your entitlement to general damages is protected, and your estate would be able to continue with your claim if you die before your claim is finalised.
In some circumstances, your family may also be entitled to dependency entitlements if you die because of the mesothelioma. Your lawyer will let you know if this applies to you and your family.
Legal costs generally depend on the amount of legal work required to resolve your case. Most lawyers who specialise in asbestos-related compensation claims offer a “no win, no fee” agreement. This means that the lawyers will only charge for legal services if they are successful in resolving your case.
You are also entitled to claim a large portion of your legal costs from the defendants as part of your common law claim. The amount of costs awarded will depend on whether your case was resolved at mediation or at trial.
Ask your lawyer for a costs agreement, and ask them to explain what is involved. Be aware that even under a “no win, no fee” agreement, if you:
- start a claim but decide to not continue with the action, you will usually need to pay any legal costs up to that point
- proceed but lose the court case, you will not need to pay your lawyer, but you may still need to pay court costs for yourself and possibly for the defendant
- are successful, a significant portion of your compensation might be absorbed by any costs that the defendant doesn’t have to pay.
When my husband was diagnosed with terminal mesothelioma, we were advised to apply for compensation. He reluctantly contacted lawyers, and they assured us we had a very strong case. My husband didn’t survive to win his case, but I did get good advice from our lawyers.”
Sharon
Sources and references
Understanding Mesothelioma - A guide for people with cancer, their families and friends
Acknowledgments
This edition has been developed by Cancer Council NSW on behalf of all other state and territory Cancer Councils as part of a National Cancer Information Subcommittee initiative.
All updated content has been clinically reviewed by A/Prof Anthony Linton, Medical Oncologist, Concord Cancer Centre and Concord Repatriation General Hospital, NSW; Dr Naveed Alam, Thoracic Surgeon, St Vincent’s Private Hospital Melbourne and Monash Medical Centre, VIC; Prof David Morris, Peritonectomy Surgeon, St George Hospital and UNSW, NSW.
This edition is based on the previous edition, which was reviewed by the following panel: A/Prof Anthony Linton (see above); Dr Naveed Alam, (see above); Donatella Arnoldo, Consumer; Polly Baldwin, 13 11 20 Consultant, Cancer Council SA; Dr Melvin (Wee Loong) Chin, Medical Oncologist, Sir Charles Gairdner Hospital and National Centre for Asbestos Related Diseases, WA; Prof Kwun Fong, Thoracic and Sleep Physician and Director, UQ Thoracic Research Centre, The Prince Charles Hospital, and Professor of Medicine, The University of Queensland, QLD; Vicki Hamilton OAM, Consumer and CEO, Asbestos Council of Victoria/ GARDS Inc., VIC; Dr Susan Harden, Radiation Oncologist, Peter MacCallum Cancer Centre, VIC; Penny Jacomos, Social Worker, Asbestos Diseases Society of South Australia, SA; Prof Brian Le, Director, Parkville Integrated Palliative Care Service, The Royal Melbourne Hospital and Peter MacCallum Cancer Centre, VIC; Lung Cancer Support Nurses, Lung Foundation Australia; Jocelyn McLean, Mesothelioma Support Coordinator, Asbestos Diseases Research Institute, NSW; Prof David Morris (see above); Joanne Oates, Registered Occupational Therapist, Expert Witness in Dust Diseases, and Director, Evaluate, NSW; Chris Sheppard and Adam Barlow, RMB Lawyers.
We also thank the health professionals, consumers and editorial teams who worked on previous editions of this title. Previous editions of this title and related resources were funded in part by the Heads of Asbestos Coordination Authorities and a donation from Lyall Watts.
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