Published: 30 August 2019
Author: Ashleigh Kemp
Dust diseases, silicosis and asbestos – making a claim
A recent case has warned of an emerging ‘third wave’ of asbestos victims – handymen and people who undertook home renovations during the 1990s and 2000s.
Mathew Werfe, a 42 year old handyman from South Australia, was recently awarded $3 million in compensation after developing a rare form of mesothelioma. Mr Werfe inhaled asbestos fibres while renovating two homes in the late 1990s and early 2000s.
Even though James Hardie, the manufacturer of the asbestos products that caused Mr Werfe’s injuries, had stopped making the products by the 1990s, it was found that they failed to warn the public about the dangers of home renovations when their products are present.
In the last few years, a worrying trend has emerged of stonemasons developing silicosis after inhaling silica dust, which is present in products like granite, and is currently a popular material being used in new kitchens. When the stonemasons cut the product, crystalline silica fibres are inhaled and can cause damage to the lung which is often fatal.
WorkSafe recently reported that between July 2017 and March 2019, 44 silicosis claims have been lodged with WorkSafe Victoria, 35 of them stonemasons.
What do I do if I think I have been exposed?
If you were exposed in the course of your employment, you should lodge a WorkCover claim as soon as possible.
If you were exposed not in the course of employment, then your right to claim comes under the Wrongs Act 1958 (Vic). Common types of Wrongs Act claims are the partners of people working with asbestos products who were exposed to the fibres when they washed their partners' clothes.
In both cases, you should seek legal advice as soon as possible, even if you have not developed symptoms. Of course, you should speak to your doctor about what investigations and treatment can be undertaken.
If I have a claim, what am I entitled to?
If your claim is a WorkCover claim, then your entitlements are the same as any other WorkCover claim – this previous blog provides a helpful summary. Like all WorkCover cases, you can make a common law claim for damages for both pain and suffering and economic loss. The current maximum for pain and suffering damages is $623,950, in addition to the maximum for economic loss which is currently $1,433,140.
If your claim is under the Wrongs Act, you are entitled to claim damages for your pain and suffering and economic loss. There is currently no limit on the amount of pain and suffering damages you can claim.
If your partner died as a result of exposure to asbestos or similar products at work, you may be eligible to make a claim for a lump sum through WorkCover dependency provisions. The maximum lump sum amount is presently $623,950. Eligible dependents are also entitled to a pension, both for themselves and their children.
If your partner dies as a result of exposure to asbestos or similar products, you can also make a wrongful death claim under the Wrongs Act, where the maximum amount of compensation for a dependent for a wrongful death is currently $1,030,920.
Am I out of time?
If you were exposed to asbestos or other dust that causes diseases many decades ago, you can still make a claim. The law is complicated in this area as it has been amended many times and different, complicated rules apply depending upon the date you were exposed. Therefore, it is important you speak to an expert lawyer who understands the different rules and entitlements.
What happens if I am terminally ill?
The Supreme Court can give your case priority if you are terminally ill. A lawyer with experience in dust diseases will be able to issue the necessary proceedings and request an expedited hearing.
I already had a settlement and now my condition is worse?
If you have previously received a settlement but your condition becomes worse, you can apply for additional settlement under Section 4 of Asbestos Diseases Compensation Act 2008.
What happens if I die before a settlement is reached?
If legal proceedings have already been issued, the claim can be continued by your estate under section 29 of the Administration and Probate Act 1958. Your partner and dependents will also be eligible to make a wrongful death and/or dependency claim.
If you think you have been exposed to asbestos or dust from other construction materials and you'd like to talk to a legal expert about your eligibility to make a WorkCover or claim inder the Wrongs Act please call us on 1300 366 441 to arrange a free first consultation.