Common law 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.
Learn more about:
- Making a claim
- Finding a lawyer
- How long will a common law case take?
- What if you die before your claim is settled?
- How much does legal action cost?
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.
Making a mesothelioma claim is a specialised area. It is important to talk to a lawyer or law firm experienced in this area of work, as they often have information about how and where asbestos was used.
Talking to an experienced lawyer can help reduce the time taken to investigate a claim. Experienced lawyers also understand mesothelioma and what you are coping with. Your lawyer will work around medical appointments or treatments to try to make things less stressful for you.
These support organisations can also help you find a lawyer experienced in dealing with asbestos cases. The Law Societies in each state and territory have “find a lawyer” search on their websites. Search the internet for the Law Society in your state or territory.
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.
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 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.
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. We also thank the health professionals, consumers and editorial teams who have 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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