Common law claims

Common law claims are claims for lump sum damages for negligence or breach of a statutory duty, usually brought against a former employer or a manufacturer.  In South Australia most common law claims are brought in the District Court of South Australia. 

Time limits

Common law claims in South Australia are subject to strict time limits. A claim for an asbestos disease must be commenced within 3 years of when the injury first came to the claimant's knowledge. The Court may extend the time in which a claim can be brought for a further 12 months after the claimant became aware of a material fact.

A claim under the Civil Liability Act, 1936 (SA) by a dependant (where a person has died from a dust disease) must be commenced within 3 years of the asbestos disease sufferer’s death.

If a claim is commenced in a person's lifetime, damages for pain and suffering and for loss of expectation of life are available, even if the claim is not completed before the person dies.  However, if a claim is not commenced in a person’s lifetime, these damages are not available in any later claim brought. It is therefore important that claims are commenced as soon as possible.

It is very important that you contact a lawyer and obtain advice as soon as you are diagnosed with an asbestos disease.

Amount of damages

In awarding damages, the Court will make findings as to a number of heads of damage, including damages for pain and suffering, damages for loss of expectation of life, damages for economic loss (where a person can no longer work because of their dust disease) and damages for past and future out of pocket expenses. Damages are also avaliable for the value of the care a person needs from their family as a result of their illness, along with the value of the care that a person can no longer provide to others. 

In South Australia, many claimants may also seek payment of exemplary damages as the Dust Diseases Act, 2005 provides that the Court must award exemplary damages (damages designed to punish a defendant) if you can prove that a defendant knew that a person, such as yourself, was at risk of exposure to asbestos dust and knew at the time of your exposure that exposure to asbestos could result in a dust disease.

The amount of damages awarded for a claim will vary depending on the invidual circumstances of the claimant. A claim for a person suffering from mesothelioma or lung cancer who is not working or caring for others at the time of diagnosis is valued at approximately $175,000 to $275,000, once costs and disbursements have been paid.

Provisional damages

Claims in South Australia can be commenced on a provisional damages basis or a full and final damages basis. An award of provisional damages permits a claimant to make a claim for the dust disease they are now suffering from and a further claim in the event that they later develop another, different, asbestos disease.

It is important that you obtain advice as to whether to commence your claim on a provisional damages basis or full and final damages basis to protect your rights to bring a further claim should you be diagnosed with another asbestos disease in the future.

Specialist procedures

In addition to the provisions relating to exemplary damages, there are special Court Rules and procedures for dealing with asbestos claims. The Dust Diseases Act provides for evidentiary presumptions that assist in proving your case.

If a defendant carried on a prescribed industrial or commercial process, as defined by the Dust Diseases Regulations, 2006, then it is assumed, unless there is evidence to the contrary, that the defendant knew at the relevant time that exposure to asbestos could cause a dust disease.

This means that rather than you proving that the defendant knew or ought to have known that exposure to asbestos could cause a dust disease, the defendant has the onus of proving it did not know.

In addition, if you were exposed to sufficient dust to cause a dust disease and you have contracted that dust disease, then it is assumed that your dust disease was caused by your exposure to that dust.

Further, the Act allows you to tender evidence from previous proceedings and rely on previous findings of Courts in Australia.