Sunday 5th August 2012
Asbestos Free Tasmania Foundation CEO Susan Wallace today welcomed the Attorney-General’s announcement that the State Government would make the legal process easier for sufferers of asbestos related diseases to claim compensation.
Ms Wallace said these amendments will assist in delivering a fairer, less complex and less costly legal process for those with asbestos-related disease.
“These changes will help iron out some of the difficulties asbestos disease sufferers experience trying to navigate the law in Tasmania and will make a claim for compensation through our courts less procedurally difficult, less complicated and less costly.”
In 2011 Tasmanian Government introduced a ‘no fault’ workers compensation scheme for asbestos disease sufferers. This scheme is working well. However the Common Law in Tasmania also requires review and change.
“Not all asbestos exposures are from work situations. Across the country we are seeing a new wave of asbestos diseases caused by exposure through home renovation and other circumstances.”
“At the moment we have situation where, if you can show your disease is work-related, you can access the statutory compensation scheme which has a speedy, lawyer-free process and a level of evidence much lower than that needed by a court.”
“By contrast, if you are ill because you inhaled fibres while you washed your husband’s overalls and he worked with asbestos, or if you are ill because of a home renovation done in ignorance you have way too many legal hoops to jump through to receive compensation through Tasmania’s courts.”
Provisional Damages – Common law damages claims in Tasmanian are usually settled on the basis of the ‘principle of finality’. This is designed to ensure plaintiffs are unable to keep coming back for further compensation once an award has been made. The insidious nature of asbestos-related diseases is such that victims can develop asbestosis and go on to develop mesothelioma or lung cancer – separate and usually much more debilitating diseases.
“The court in Tasmania does not have the power to make a concession for provisional damages and in most cases the ‘principle of finality’ applies so if you have one disease and are unlucky enough to develop another, you have nowhere to go, ” said Ms Wallace.
Time Limitations – Currently Asbestos disease sufferers in Tasmania have to make an almost impossible choice when it comes to when to make a claim for damages. These people are ill but don’t know how severe their disease is going to be over time and don’t know if they are going to develop another asbestos related disease. Yet the law gives them just one window of time in which they can make a claim.
The twelve year rule further complicates the process.
“When someone is diagnosed with mesothelioma more than 12 years has almost always elapsed since they were exposed to asbestos. It is usually 30 to 40 years.”
“At the moment their first step towards a degree of justice is to go to court to have a judge award an extension which is costly and an absolute waste of time in circumstances were the claimant may not have long to live.”
“We believe there is a very strong case for exempting dust-related diseases from the Limitation Act altogether, just as they have done in New South Wales and Queensland, and we will be putting that case to the Attorney General.”
“Clearly we will have to see the detail of the legislation but today’s announcement gives us great hope.”