What to expect when making a damages claim

It’s strongly recommended that you get legal advice before starting a claim. There are also dust diseases support groups you can talk to. 

The Dust Diseases Tribunal is a unique court with special procedures designed to ensure an early resolution and fair outcome for plaintiffs (claimants) who may be in poor health.  

The Tribunal manages claims for damages brought by dust disease sufferers, or by their dependents if the sufferer has died. There’s no time limit for starting a claim and no maximum amount that can be claimed.

These are civil law claims and are different from worker’s compensation claims, which are handled by icare. You may be able to claim from both in some cases.

Claims filed at the Dust Diseases Tribunal are usually placed into 1 of 2 categories:

  • asbestos-related claims 
  • other dust-related claims.

The Tribunal has different procedures for dealing with cases in each category, which are summarised below.

You can also view the relevant legislation and rules that apply to Dust Diseases Tribunal proceedings to find information relevant to your specific case.

Asbestos-related disease claims

The Dust Diseases Tribunal Regulation 2019 (the Regulation) applies the Claims Resolution Process (CRP) to all asbestos-related claims for damages.    

The objectives of the CRP are to reduce the cost of claims and encourage settlement by allowing information and particulars to be provided early.      

The CRP prescribes that specific forms be used, and procedures followed to a particular timetable.     

If a plaintiff is suffering from mesothelioma or carcinoma, the claim is categorised as malignant and will follow a shortened timetable under the CRP procedure. The timetable will vary slightly for claims where there is more than one defendant.    

If a plaintiff is suffering from an asbestos-related disease other than mesothelioma or carcinoma, the claim is categorised as ‘non-malignant’ and will follow another specific timetable of procedures. Again, the timetable will vary slightly for claims where there is more than one defendant.  

When a plaintiff is gravely ill

Where medical evidence shows a plaintiff to be gravely ill, an application can be made to remove the claim from the usual CRP procedures, in the interests of urgency. The claim can be assigned for urgent case management.

If necessary, bedside hearings of the plaintiff’s evidence can also be organised. This application would be made by Notice of Motion supported by an Affidavit and medical evidence. Tribunal judges can hold bedside hearings at any time of the day and night, on any day of the week.

View an example of proceedings for an Asbestos claim

Other dust-related claims

Damages claims for non-asbestos related dust diseases are case-managed by a judge using Directions Hearings. The aim is for a just, quick and cheap resolution of the real issues in dispute.

At Directions Hearings, the judge makes orders to progress the matter to be ready for hearing. Please refer to the relevant legislation , Practice notes and Advice to Practitioners for further information.

At any time throughout the proceedings parties (plaintiffs and defendants) to a claim can continue to try to negotiate and settle the claim prior to any Hearing. They may also consider using Alternative Dispute Resolution such as Mediation or Arbitration.

View an example of proceedings for other dust-related claims

Hearings

In all types of dust diseases matters, when the parties have prepared their case, or been given reasonable time to prepare their case, the Judge will order that the claim be set down for Hearing.

At the Hearing the Judge can only consider issues that have been agreed to be in dispute by the parties. When the Judge has heard all the evidence he or she will make a decision and then hand down a Judgment.

In summary

In dust diseases matters it’s important to note that:

  • you can ask that your claim be managed urgently if you become gravely ill
  • you can settle your claim at any time. Note, most claims go through the Tribunal’s Alternative Dispute Resolution process
  • parties to a claim can negotiate and settle at any time
  • if your claim can’t be settled, it will be heard by a judge.

The Tribunal can hear evidence via phone or video link if you or a witness can’t attend a hearing. A request would need to be made to the Judge hearing your case.

Our Sydney office has a room with a hospital-style bed and an oxygen concentrator. Arrangements can be made through the Tribunal Registry during office hours, Monday to Friday, 9am to 4pm. Bedside hearings also take place in Sydney and other places to hear evidence from gravely ill plaintiffs.

How costs are determined

Usually the costs of a claim will be paid by the liable defendants. Legal counsel for all parties will discuss how costs will be divided and paid. If they can’t agree, they can make a costs assessment application that will be decided by a Tribunal assessor.

If this occurs, the name of the case will show in a list of matters to be heard by the Tribunal. This could mean you see your name and case again. Matters to determine costs only involve counsel and the Tribunal. Plaintiffs never take part. 

Last updated:

06 Aug 2020

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