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NSW Dust Diseases Tribunal (DDT) - Article #4

NSW Dust Diseases Tribunal (DDT) – Article #4

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

NSW Dust Diseases Tribunal (DDT)

Our previous articles looked at Dust Diseases, iCare’s Dust Diseases Care and Claiming damages

This article looks at the NSW Dust Diseases Tribunal (DDT) which is a unique court established to hear claims for compensation brought by people suffering from dust diseases as well as dependents of people who have died from a dust disease.

The DDT hears civil law claims for damages in circumstances where:

  1. A person (including the estate of deceased persons) has or is currently suffering from a dust-related condition; and
  2. The dust-related condition was caused or partly caused by the negligence of another party; and
  3. That person, their estate or relative is entitled to claim damages in respect of that dust-related condition.

A person or relative will only be entitled to claim damages where they suffer from one of the following dust diseases:

  • 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.

The DDT is unique in that it recognises the time-sensitive nature of these claims and aims to resolve claims quickly, particularly in the case of terminal illness. As such, the DDT follows specific procedures which prioritise gravely ill plaintiffs, encourage early settlement of claims and reduce legal and administrative costs.

How does it work?

A claim begins when a plaintiff lodges a Statement of Claim with the DDT, indicating the circumstances of their claim and the compensation claimed.

The process by which a claim for damages will proceed through the DDT is determined by the type of dust disease and the severity of the illness:

  • Asbestos-related claims: The Claims Resolution Process will apply to a claim involving a condition that is asbestosis, asbestos-induced carcinoma, an asbestos-related pleural disease or mesothelioma.
  • Other non-asbestos related dust disease claims: Claims are case managed by a Judge who will set a timetable to ensure the matter progresses towards hearing in an efficient manner.
  • Gravely ill plaintiffs: Urgent claims are not subjected to set timeframes and are accelerated through the DDT to final hearing.

The Claims Resolution Process (CRP)

After filing a Statement of Claim, the plaintiff is also required to file and serve a Statement of Particulars which provides additional information as to the compensation claimed.

Once the Statement of Particulars is served on the defendants, the CRP commences and the claim will proceed towards hearing in accordance with a specific timetable. This will include specific times for the plaintiff to be examined by medical specialists, for the defendant to file a reply to the Plaintiff’s claim and for the service of all evidence relied upon by parties. The purpose of this timetable is to reduce the cost of litigation by ensuring the early provision of information about the claim and encourage early settlement.

Parties can make offers at any time throughout the CRP to settle the claim however ultimately the CRP requires parties to participate in a compulsory mediation no later than:

  • 9-12 weeks after the Statement of Particulars is served on all defendants in malignant claims; or
  • 18-24 weeks after the Statement of Particulars is served on all defendants in non-malignant claims.

While most claims resolve at the mediation stage, those that do not are immediately appointed a hearing date. In circumstances where a party is dissatisfied with the decision of the DDT, they have the right to appeal to the Supreme Court of NSW, although only where there is an issue of law or a question as to the admission or rejection of evidence.

Case Management of Non-Asbestos Dust Diseases

Unlike the CRP, non-asbestos related dust diseases are progressed towards hearing through a series of direction hearings in which a judge will issue orders to each party to ensure the proper and efficient preparation of the matter for hearing.

The types of orders a judge may make include ordering expert evidence, joining additional parties to the dispute, disclosure of medical evidence and arranging a mediation. Parties may make attempts to negotiate and settle the claim at any time prior to hearing.

Once the judge believes that the parties have had sufficient time to prepare their case, they will list the matter for hearing. After hearing all of the evidence, the judge will make a decision as to whether the defendant is liable to pay the plaintiff damages for their injury as well as the amount of damages owed to the plaintiff.

Urgent Claims

Where the DDT is satisfied that due to the seriousness of the plaintiff’s medical condition, their life expectancy is so short that they will not be able to complete the requirements of the CRP or they are unlikely to be able to give evidence once the CRP is complete, their claim will be accelerated to expedited hearing.

Special accommodations are made to ease the burden of court proceedings on the plaintiff. For example, the DDT will hold bedside hearings at any time of day or night on any day of the week. Alternatively, gravely ill plaintiffs can give evidence via video link or telephone and therefore do not need to travel to court. In circumstance where gravely ill plaintiffs attend the DDT, they will have access to a hospital style bed and oxygen concentrator equipment.

Please click here to find out who can claim damages from the DDT.

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