Asbestos Induced Lung Cancer

There are many causes of lung cancer including inhalation of asbestos. Indeed, some estimates are that there are six lung cancers caused by asbestos inhalation for every case of mesothelioma.

Asbestos Induced Lung Cancer

There are many causes of lung cancer including inhalation of asbestos. Indeed, some estimates are that there are six lung cancers caused by asbestos inhalation for every case of mesothelioma.

In order for a lung cancer to be attributed to exposure to asbestos a person must either have asbestosis, or a substantial history of asbestos exposure must be identified. The level of exposure associated with personal home renovation, or occasional occupational exposure are not sufficient to cause lung cancer.

Asbestos induced lung cancer is more common in people who smoked. This increased risk is not just associated with smoking, but rather the combined effect of smoking and asbestos lead to a greater risk than the sum of the two individual risks.

The symptoms, treatment and prognosis for asbestos induced lung cancer is not different to other lung cancers.

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Compensation for asbestos induced lung cancer

The primary claim for compensation in a court is known as a common law claim for damages.

Courts in each mainland state have developed special procedures and processes for dealing with claims for diseases caused by asbestos.  In New South Wales, claims are brought in the Dust Diseases Tribunal (DDT), while in other States claims are brought in special lists in the District or Supreme Courts.

Most claims are brought against former employers and manufacturers of asbestos products. If your former employer no longer exists, you can still sue if we can determine the workers’ compensation insurer of the company.

A primary issue in claims for lung cancer is whether the cancer was caused by asbestos (or some other carcinogen, most commonly smoking).  This means it is important to identify all the asbestos exposure.  However, you do not need to sue in relation to all of your exposure to asbestos.  For example, you are entitled to damages, even if part of your exposure occurred overseas. We will sit with you at your home, in hospital or at our offices and take a detailed history in relation to your work and exposure to asbestos to determine who you should sue.

In asbestos induced lung cancer claims, we act on a full no win no fee basis which means we will not be paid unless you win your claim. More information about our fees is set out on our fee policy page.

How much are claims worth?

For claims for asbestos induced lung cancer, the amount of compensation will be affected by a range of factors including whether you have been able to have successful treatment, and the likelihood of further disease in the future.  If you are successful in your claim you will be awarded lump sum payout.  The lump sum is comprised of various “heads of damage”.  Heads of damage for which people with asbestos induced lung cancer are typically compensated include:

  • damages for pain and suffering and, if relevant loss of expectation of life;
  • an amount for the commercial cost of care provided by your friends and family,
  • damages for ‘out of pocket expenses’ – the medical and other expenses that you incur as a result of the disease (this head may not be payable if these expenses are paid by the Dust Diseases Board).
  • depending on your circumstances, an amount for the commercial cost of replacing services you provided to others such as young children or a sick or elderly child, spouse or parent.
  • loss of earnings and superannuation if the disease stopped you working.

What if I was a smoker?

The fact that you were a smokier does not prevent you from bring a claim.  Defendants have previously argued that the amount of damage a person with an asbestos induced lung cancer who was a smoker should received should be reduced on the basis of their “contributory negligence” in choosing to smoke.  The response to this is that smokers have an impaired capacity to chose because of the addictive nature of nicotine.

FAQ

Courts in all states in Australia generally expedite all mesothelioma claims. 

The claims can be completed very quickly, particularly when the plaintiff is very sick.  In some cases, claims have been started and finished within a week. 

When normal expedition applies, claims usually take between three and six months to complete after the claim is filed. 

  1. The first step is to meet with Tanya or David who will take a detailed history, including as to where you were exposed to asbestos and provide you some initial advice.  We will provide a costs disclosure and some authorities enabling us to obtain detailed information.
  2. We will then conduct some further enquiries to confirm the diagnosis and more more information about who may be liable.  We will provide detailed advice on a claim and may seek your instructions to begin a common law claim (the process in Qld is slightly different as a Workcover claim will usually be made at this stage). 
  3. If you so instruct, we will commence proceedings on your behalf .  At this stage, the general damages are protected for the benefit of your estate.
  4. There will be a process of further investigations, and information exchange with the defendant.  This process is different in each state.
  5. We will put an offer to the other side to settle the claim.
  6. The matter will proceed to a settlement conference, also known as a mediation.  Most matters settle at or around this time, although if they do not, they can settle at any later stage as well.
  7. If your matter does not settle at or around mediation, your claim will proceed to a court hearing.  Following a hearing the judge will issue a judgment as to liability and the amount of compensation to be paid.

Provided the claim has been commenced in your lifetime, full damages are available. 

Historically, a claim needed to be completed in a person’s lifetime to recover damages for pain and suffering which is usually the most significant part of a claim.  However, the law has been changed over the last 15-30 years in all states so that as long as proceedings are filed in your lifetime, rights are preserved.  Your estate can continue your claim and recover damages for pain and suffering and loss of expectation of life.  The entitlement to some compensation, primarily future economic loss may be affected. 

Exposure to asbestos can have occurred in a wide variety of settings – both at work and outside work.  We are expert at working with a client to identify possible periods of exposure, and then locating witnesses and other evidence that can confirm and corroborate exposure. 

In order to bring a claim, we need to identify exposure to asbestos.  On many occasions we have been able to locate and prove exposure to asbestos that caused disease notwithstanding the client’s initial instructions being that they could not recall any exposure. 

For more information see our article Working out where you were exposed to asbestos. 

You can claim compensation.

From a legal perspective, the answer is that each exposure caused the disease. Expert evidence accepted by Courts in Australia is that each exposure that is not de minimis (A legal term meaning too small to be meaningful or taken into consideration) and which occurred in the latency period (at least 10 –20 years prior to exposure) is a cause of any mesothelioma which later develops.

The expert evidence accepted by the Court is the “single fibre theory,” the theory that there was one fibre that caused the disease, is wrong. Instead, the disease is caused by the cumulative effect of all exposures. 

If you have been exposed in multiple places you can obtain full compensation by suing in respect of any of the places you were exposed. You cannot ‘double-dip’ and sue for a second place of exposure. Typically, “cross-claims” will occur if you have been exposed at multiple places, which operates to share the costs of compensation among the defendants.  

Icare compensation and common law claims are provide different compensation.  

Almost everyone who receives compensation from icare Dust Disease Care would be entitled to additional compensation by way of a common law claim. These claims do not impact or reduce the icare benefit and are generally worth significantly more than the icare benefit. 

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More Information

Most people with mesothelioma can make a claim at common law. A common law claim is a claim in court for lump sum compensation. A claim is commenced by filing a Statement of Claim in court.

All States have developed specialised processes to deal with mesothelioma claims. In New South Wales claims are filed in the Dust Diseases Tribunal, a specialist court which has special rules of evidence and procedure to expedite claims. In other States, claims are brought in special lists in the Supreme Court or District Court to ensure that the needs of people with mesothelioma are addressed.

Most claims are brought against a former employer, manufacturer of asbestos products or an occupier of a building. If the employer no longer exists a claim can be made against the employer’s workers’ compensation insurer.

In all States matters proceed to a pre-trial or court appointed settlement conference or a mediation to see if the matter can be resolved prior to the hearing.

Most claims settle at mediation or after mediation but before the trial. If a matter proceeds to hearing, then in most jurisdictions evidence in chief can be given by way of Affidavit. If you are not well enough to travel, then your evidence will be taken at your home or hospital.

The courts will do everything possible to finish a claim in your lifetime. However, if you die before your claim is finished then provided the claim was filed in court in your lifetime, the claim can be continued by your estate at full value.

If you were exposed to asbestos during the course of employment in New South Wales, then you can make a claim at common law as well as receive a pension and have your medical and other expenses paid by the Dust Diseases Authority.

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In the free initial case assessment we will obtain general information and provide preliminary advice on whether we believe you are likely to have a claim for compensation, the value of any claim and our costs in the event you were to instruct us.

The case assessment is usually via phone (we will call you at the arranged time) or by video conference (such as Zoom or Teams).

There is no cost associated with this case assessment, nor any obligation to instruct us in your matter.

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