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Making a claim
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 takes a long time to develop, so you may have been exposed to asbestos some 40 years ago. You might think it was a minor exposure, or you may not remember any exposure. Talking to your friends and family can help to recall 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 two 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”.
A common law claim is a claim process through a court. The claim is brought against the party or parties who caused a person to be exposed to asbestos. These parties are known as 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. As long as you start a common law claim during your lifetime, your estate will still be able to continue with your claim if you die before the claim 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 visit the lawyer in their office, they can 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
- you no longer work for the employer where you were exposed
- you have worked for many employers
- you were self-employed or a contractor
- your employer is no longer in business
- you are, or were, a smoker
- you were exposed to asbestos in another state or overseas
- you were not exposed in the workplace
- you were only briefly exposed to asbestos
- you were exposed to asbestos on more than one occasion
- you don’t know how you may have been exposed to asbestos.
How long will a common law case take?
The majority of common law claims for mesothelioma are settled out of court through a process called mediation. This often happens within 3–6 months of the claim being lodged. If your prognosis is poor, or you suddenly become very unwell, the process can be sped up to try to ensure that your common law claim is resolved in your lifetime. Only a few cases actually proceed to a court trial.
What if I die before my claim is settled?
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.
How much does legal action cost?
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 get them to talk it through with you so you know 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.
Some states and territories have special government compensation schemes for people who develop mesothelioma and other asbestos-related diseases during their employment.
Do I need a lawyer?
You, and sometimes your dependants, can lodge a statutory claim directly with the authority in your state or territory. However, most people with mesothelioma prefer 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 in addition to, a statutory claim. It is vital to consult an expert asbestos lawyer before applying for statutory benefits to ensure you aren’t excluded from also claiming common law compensation.
This information is reviewed by
This information was last reviewed August 2019 by the following expert content reviewers: A/Prof Brian McCaughan, Cardiothoracic Surgeon, Chris O’Brien Lifehouse, NSW; Theodora Ahilas, Principal Lawyer, Maurice Blackburn Lawyers, NSW; Prof David Ball, Director, Lung Service, Peter MacCallum Cancer Centre, VIC; Shirley Bare, Consumer; Cassandra Dickens, Clinical Nurse Consultant, Cancer Care Coordinator – Thoracic Malignancies, Sunshine Coast University Hospital, QLD; Penny Jacomos, Social Worker, Asbestos Diseases Society of South Australia, SA; A/Prof Thomas John, Medical Oncologist, Senior Clinical Research Fellow, Austin Health, and Olivia Newton-John Cancer Research Institute, VIC; Victoria Keena, Executive Officer, Asbestos Diseases Research Institute, NSW; Penny Lefeuvre, Consumer; Jocelyn McLean, Mesothelioma Support Coordinator, Asbestos Diseases Research Institute, NSW; Prof David Morris, Peritonectomy Surgeon, St George Hospital and University of New South Wales, NSW; Caitriona Nienaber, 13 11 20 Consultant, Cancer Council Western Australia; Prof Anna Nowak, Medical Oncologist, Sir Charles Gairdner Hospital, and Professor of Medicine, School of Medicine and Pharmacology, The University of Western Australia, WA; Prof Jennifer Philip, Palliative Care Specialist, St Vincent’s Hospital, Peter MacCallum Cancer Centre and Royal Melbourne Hospital, VIC; Nicole Taylor, Acting Lung Cancer and Mesothelioma Cancer Specialist Nurse, The Canberra Hospital, ACT.