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NSW dust disease claims – How can I seek compensation for my injury? Part 1

NSW dust disease claims – How can I seek compensation for my injury? Part 1

Published on November 22, 2023 by Tim GauciTim Gauci

Dust-related diseases are a serious concern in many industries in Australia and New South Wales (NSW), and individuals who are diagnosed with a dust disease may be eligible for compensation. NSW provides two main avenues for compensation for dust disease claims:

  1. the Dust Diseases Tribunal; and,
  2. Dust Diseases Care administered by icare.

In this series of articles, we will explore these avenues, and the types of compensation that may be available to you, the worker.

1. The Dust Diseases Tribunal 

In NSW, workers who have contracted dust-related diseases may be eligible for compensation through the Dust Diseases Tribunal (DDT). The DDT has exclusive jurisdiction to hear and determine damages claims for workers who have been affected by dust diseases. These types of claims are civil law claims in negligence and are different from worker’s compensation claims managed by icare.

Who can make a claim?

To be eligible to make a claim, 3 conditions must be met:

  1. A worker (including a deceased worker) has or is currently suffering from a dust-related condition detailed in the Dust Diseases Tribunal Act 1989 (NSW);
  2. The dust-related condition was caused or partly caused by the negligence of another person; and
  3. The worker or estate of the deceased worker has suffered loss as a result of the dust-related condition.

What compensation can I claim?

A worker can make a claim for the following heads of damage:

i. General damages (also known as non-economic loss or pain and suffering) – you can claim damages for reduced life expectancy, loss of the quality of your life and emotional distress. The value of these damages is decided by the Judge.

ii. Loss of past and future earnings – damages are payable for your weekly wage loss including loss of superannuation from the time of your incapacity up until retirement age. Wage increases including any likely promotions and CPI adjustments are factored into these calculations.

iii. Past and future medical treatment expenses – this includes expenses for any surgery, hospital admission, rehabilitation, pharmaceutical expenses, and specialist consultations you have required and will likely need into the future.

iv. Past and future domestic assistance – you can claim damages for home modifications, cleaning services, gardening maintenance as well as gratuitous care provided by your family and friends. A claim may also be made for any domestic or care services that you previously provided to others (such as childcare) which you can no longer do because of your injury.

v. Interest – can be claimed on your past loss up until the time of judgment or settlement.

vi. Costs – The defendant is liable to pay your legal costs in commencing your proceedings.

Workers who contract a dust disease while working in NSW are unable to claim their medical treatment and related expenses from the DDT as these benefits are covered by icare under Dust Diseases Care. You can however claim damages for any care provided by family and friends due to your injury. Additionally, any weekly benefits you receive from a Dust Diseases Care claim, are deducted from the damages awarded for past economic loss in your DDT claim as they are considered damages already paid to you.

If a dust disease worker dies, the legal representative of the deceased worker’s estate can commence or continue the claim in the DDT unless the claim was already commenced and completed before the worker’s death.

The damages recoverable after a worker’s death include:

i. Medical treatment expenses and gratuitous care services received before death;

ii. Economic loss until the date of death; and

iii. Funeral expenses.

General damages (pain and suffering) are able to be claimed only in circumstances where the deceased commenced proceedings in the DDT before death.

Claim for dependency

A separate claim for dependency can also be made by the legal representative of the deceased worker on behalf of certain family members who were a dependent of the deceased worker and relied on that person for financial support. Only one dependency claim can be brought, and defendants will not be able to bring this type of claim where the deceased worker completed proceedings in the DDT before their death.

If you or someone you know is suffering from a dust-related disease, or has died as a result, seeking legal advice and guidance is crucial to ensure that your rights and entitlements are protected. Contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will assist you. You can also complete our Personal Injury Claim Check here

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