Legal Matters

In response to pressure from the ADSA the West Australian Government made legislative changes enabling claims to be brought forward. Further lobbying by the ADSA resulted in the release of Mines Department and Health Department records relating to the Wittenoom and James Hardie mines, which had been thought long destroyed. These records told a completely different story to that which had emerged in earlier unsuccessful trials and the ADSA began pressing for another test case.

The law firm Slater & Gordon first became involved in asbestos litigation in the 1985 Victorian action of Pilmer V. Mcpherson ltd. Mr Pilmer suffered from malignant mesothelioma as a consequence of his asbestos exposure at work. His case was the first successful claim in negligence in relation to an asbestos disease and he received damages of $270,000. It was the first time in Australia that any worker had received common law damages for asbestos-related disease and it demonstrated that such cases could be won, even though the exposure which caused the disease had occurred 30-40 years earlier.

The ADSA and Slater & Gordon then combined resources in order to bring test cases before the courts in Western Australia. This pioneering work resulted in a number of firsts and over the years has redefined the compensation benefits paid to victims of asbestos exposure and their families. After winning the first negligence claim for an employee suffering from an asbestos-related disease, Slater & Gordon went on to win:

• The first negligence claim for exposure to Wittenoom blue asbestos
• The first award of damages against an employer as punishment rather than compensation
• The first group settlement of over 300 asbestos related claims
• The first verdict against an occupier of premises where asbestos related cancer developed
• The first damages award for asbestos-caused mesothelioma
• The first damages award for a waterside worker for asbestos-related illness
• The first use of video-taped evidence by a critically ill claimant at hospital

In the late 1990's Slater & Gordon had a breakthrough when compensation was won for waterside workers who had been exposed to asbestos for many years. Their claims had previously been denied because of the difficulty in proving who had employed them. A landmark case was also won when a cigarette smoker suffering an asbestos related disease was granted compensation. The defence had argued he was not entitled to any compensation because smoking had worsened his condition. Slater & Gordon also pioneered the speedy trial process for critically ill claimants, helping many to achieve final peace of mind.

Working with the ADSA, Slater & Gordon have developed the largest and most successful asbestos practice in Australia. As a result of their joint endeavours, the categories of eligible claimants has broadened and legal action is now much less stressful and uncertain.

Who can claim compensation?

If you have been exposed to asbestos and have been diagnosed with asbestosis, cancer, mesothelioma, pleural plaques or another asbestos related condition, you may be entitled to claim compensation. There are various legal avenues available to sufferers in asbestos cases.

Generally, compensation claims are made through the courts under the common law, when, among other things, exposure to asbestos has resulted from the negligence of another party.

A negligence claim requires a finding that the illness was caused by another's failure to take reasonable care. Scientific evidence of the health dangers of asbestos has been available since the 1930's, and largely ignored by employers, manufacturers and governments. They put profit and convenience ahead of health and safety. This makes those responsible negligent. Largely as a result of the joint endeavours of the ADSA and Slater & Gordon, you are entitled to make a claim even if:

• You have since left that employment
• Exposure occurred many years ago
• You have worked for many employers
• You were self-employed or a contractor
• Your employer went out of business years ago
• You were a heavy smoker
• Your exposure occurred interstate or overseas.

What compensation can be recovered?

Under the common law, damages can be claimed for:

Past and future medical expenses
Loss of income and income earning capacity
Pain and suffering

Damages are generally limited to compensation for losses actually suffered. However, in some cases punitive damages are awarded. Punitive damages are an additional amount intended to punish the wrongdoer and are awarded over and above compensation.

The spouses and dependent children of someone who has died from an asbestos-related illness may also be entitled to claim compensation for loss of financial support, as well as for loss of domestic services. Dependants cannot claim for pain and suffering.

Who can help?

We have a register of the most experienced lawyers to provide advise if so required. Contact us on 1800 646 690 or use our contact form to get further details.