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Dust Diseases Tribunal: Claiming Damages - Article #3

Dust Diseases Tribunal: Claiming Damages – Article #3

Published on May 26, 2021 by Scott Dougall and Sabrina BathgateScott Dougall and Sabrina Bathgate

In our earlier articles in this series, we looked at Dust Diseases as well as iCare’s Dust Diseases Care.

This article examines the NSW Dust Diseases Tribunal (DDT) which hears civil claims for damages in circumstances where a person alleges they have contracted a dust disease due to another person’s negligence.

In recognition of the fact that dust diseases take many years to detect and cause noticeable deterioration, there is no limitation on when a person may commence proceedings in the DDT. This also means that it does not matter if the company or employer no longer exists. A claim may still be brought against them.

The DDT differs from iCare’s Dust Diseases Care in that it is a “fault-based” scheme in which any person may make a claim for damages, regardless of whether the disease was contracted in the course of their employment or otherwise. Furthermore, plaintiffs can claim compensation for additional types of loss that are not available under iCare’s Dust Diseases Care including damages for pain and suffering.

Workers who have or are currently receiving benefits from iCare’s Dust Diseases Care are able to make an additional claim in the DDT. Bringing a claim for damages in the DDT will not extinguish a worker’s right to continue receiving benefits from Dust Diseases Care.

Who can claim damages in the Dust Diseases Tribunal?

A dust diseases victim will be eligible Under the Dust Diseases Tribunal Act 1989, claims for compensation for dust diseases can commenced in the Dust Disease Tribunal where the following 3 conditions are met:

A dust diseases victim will be eligible to claim damages in the DDT where the following 3 conditions are met:

  1. A person (including deceased persons) has or is currently suffering from a dust-related condition covered by the Dust Diseases Tribunal Act 1989;

The DDT will only hear claims for damages where there is medical evidence that the victim was or is currently suffering from any of the following dust-related conditions:

  • Aluminosis
  • Asbestosis
  • Asbestos induced carcinoma
  • Asbestos related pleural diseases
  • Bagassosis
  • Berylliosis
  • Byssinosis
  • Coal dust pneumoconiosis
  • Farmers’ lung
  • Hard metal pneumoconiosis
  • Mesothelioma
  • Silicosis
  • Silico-tuberculosis
  • Talcosis
  • Any other pathological condition of the lungs, pleura or peritoneum that is caused by dust.
  1. The dust-related condition was caused or partly caused by the negligence of another person; and

A plaintiff will need to establish fault before damages will be awarded. To do this, the victim will need to prove that:

  • The defendant (for example an employer, property owner, manufacturer or some other third-party) owed the injured plaintiff a duty of care;
  • The defendant breached that duty through a wrongful act or omission; and
  • That wrongful act or omission caused or contributed to the plaintiff’s injury.
  1. The victim or estate of the deceased victim has suffered loss as a result of the dust-related condition.

Once fault is established, the victim will need to prove that they have suffered loss as a result of the dust disease and are therefore eligible to claim compensation under any of the following heads of damages:

  • General damages (also known as non-economic loss or pain and suffering) – Plaintiffs can claim damages for reduced life expectancy, loss of quality of life and emotional distress. The value of these damages cannot be calculated and decided at the judge’s discretion.
  • Past and future earnings loss – damages are payable for weekly wage loss including loss of superannuation from the time of incapacity up until retirement age. Wage increases including promotions and CPI are factored into calculations of economic loss.
  • Past and future medical treatment expenses This included expenses for surgery, hospital admissions, rehabilitation, pharmaceutical expenses and specialist consultations.
  • Past and future domestic assistance – damages may be claimed for home modifications, cleaning services, gardening maintenance as well as gratuitous care provided by family and friends. A claim may also be made for any domestic or care services that the plaintiff previously provided to others and which they can no longer do as a result of the injury.
  • Interest – This is claimable on past loss up until the time of judgment or settlement.
  • Legal costs – The defendant will be liable to pay the plaintiff’s legal costs in commencing proceedings in the DDT.

Workers who have contracted a dust disease whilst working in NSW are unable to claim medical treatment and related expenses from the DDT as these benefits are covered under Dust Diseases Care. However, workers can still claim damages for any care provided by their family and friends as a consequence of the injury.  Similarly, any weekly benefits received from Dust Diseases Care, will be deducted from damages awarded for past economic loss as they are considered damages already paid.

Post-death Claims

When a dust disease victim dies, the legal personal representative of the deceased victim’s estate can commence or continue a claim in the DDT unless a claim was already commenced and completed during the victim’s life.

The damages recoverable after the victim’s death include:

  • Medical treatment expenses and gratuitous care services received prior to death.
  • Economic loss only up until the date of the deceased’s death.
  • Funeral expenses.
  • General damages (pain and suffering) are claimable only in circumstances where the deceased had commenced proceedings in the DDT during their lifetime.

A separate claim can also be brought by the legal personal representative of the deceased person on behalf of certain family members who were a dependant of the deceased person and relied on that person for financial support. Only one dependency claim may be brought in respect of the dust disease injury. Dependant’s will not be able to bring this type of claim where the deceased victim completed proceedings in the DDT during their lifetime.

For more information on the Dust Disease Tribunal and how it operates, click here.

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