Common questions about making a claim
Below we answer common questions about making a claim.
Learn more about:
- Do I need legal help?
- How long will a common law case take?
- What if I die before my claim is settled?
- How much does legal action cost?
Do I need legal help?
You, and sometimes your dependants, can lodge a statutory claim directly with the authority in your state or territory. But most people with mesothelioma find it can be easier 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 as well as, a statutory claim. It is vital to consult an expert asbestos lawyer before applying for statutory benefits to make sure that you aren’t excluded from also claiming common law compensation.
How long will a common law case take?
Most common law claims for mesothelioma are settled out of court through a process called mediation. This can happen within a few months to a year of the claim being lodged. If your prognosis is poor, or you suddenly become very unwell, the process may be sped up to try to ensure that your common law claim is resolved in your lifetime. Very 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 ask them to explain 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.
When my husband was diagnosed with terminal mesothelioma, we were advised to apply for compensation. He reluctantly contacted lawyers, and they assured us we had a very strong case. My husband didn’t survive to win his case, but I did get good advice from our lawyers.SHARON
Podcast: Coping with a Cancer Diagnosis
Dr Anthony Linton, Medical Oncologist, Concord Cancer Centre and Concord Repatriation General Hospital, NSW; Dr Naveed Alam, Thoracic Surgeon, St Vincent’s Hospital Melbourne and Monash Medical Centre, VIC; Donatella Arnoldo, Consumer; Polly Baldwin, 13 11 20 Consultant, Cancer Council SA; Dr Melvin (Wee Loong) Chin, Medical Oncologist, Sir Charles Gairdner Hospital and National Centre for Asbestos Related Diseases, WA; Prof Kwun Fong, Thoracic and Sleep Physician and Director, UQ Thoracic Research Centre, The Prince Charles Hospital, and Professor of Medicine, The University of Queensland, QLD; Vicki Hamilton OAM, Consumer and CEO, Asbestos Council of Victoria/GARDS Inc., VIC; Dr Susan Harden, Radiation Oncologist, Peter MacCallum Cancer Centre, VIC; Penny Jacomos, Social Worker, Asbestos Diseases Society of South Australia, SA; Prof Brian Le, Director, Parkville Integrated Palliative Care Service, The Royal Melbourne Hospital and Peter MacCallum Cancer Centre, VIC; Lung Cancer Support Nurses, Lung Foundation Australia; Jocelyn McLean, Mesothelioma Support Coordinator, Asbestos Diseases Research Institute, NSW; Prof David Morris, Peritonectomy Surgeon, St George Hospital and UNSW, NSW; Joanne Oates, Registered Occupational Therapist, Expert Witness in Dust Diseases, and Director, Evaluate, NSW; Chris Sheppard and Adam Barlow, RMB Lawyers.
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