What to expect

Below is an outline of the procedure involved in running a common law claim in South Australia.  Claims in other States, overseas, or under specific Acts, such as the Workers Compensation Act or the Commonwealth Safety & Rehabilitation Act, generally follow a similar process.

Contacting us

The process of running a claim commences when you make contact with us.  If you phone our office you will be put through to a senior staff member who will ask you some simple questions. Alternatively, if you have sent us an email or registered through the website, a senior staff member will contact you.

Your matter will be referred to a solicitor who will telephone you and have a more detailed conversation.

Investigating your claim  

An appointment will be made for you to see a lawyer in our office nearest to where you live, or the lawyer will visit you at home or in hospital if you are too ill to travel.

The lawyer will obtain a detailed work history, details of your exposure to asbestos and a detailed medical history. The lawyer will give you some preliminary advice as to what types of claim (if any) are available to you and what investigations we propose to undertake.

You will then receive a statement based on your instructions, which will be sent to you to review, correct and sign. If needed, we will contact potential witnesses such as former work mates to see if they will be able to assist your claim.

Whether you have a dust disease which may entitle you to claim for compensation will often be decided by medical opinion.  As part of the preliminary investigation, we may obtain a report from your treating doctor or have you examined by a doctor of our choice.  We will arrange and pay for the appointment. 

At the end of the investigation process we will provide you with clear advice as to whether, in our opinion, you have good prospects of success in a common law claim.  If appropriate, we will seek your instructions to commence proceedings.

Commencing proceedings

The District Court Rules require, before a claim is commenced, that a letter be sent to the defendant outlining the claim.  A defendant has 60 days to respond to the letter and, if the claim is not resolved within 90 days of sending the letter, proceedings may be commenced in the District Court by way of filing a Statement of Claim. If you have a terminal disease then you can apply to the Court to waive the requirements of a pre-action notice and immediately commence your claim.

Once a Statement of Claim has been filed your matter will be listed for a Status Hearing before a Master of the District Court. You do not need to be present at the Status Hearing, we will represent you. The Court will either classify your claim as an urgent or non urgent matter. The Court will then make directions in relation to the preliminary preparation of your matter and will refer your matter to a Court Settlement Conference within 3 to 6 months, depending on the urgency required.

If your matter does not resolve at the Court Settlement Conference, it will come back before the Master who will make any further orders required to prepare your matter for trial. Once prepared, your matter will be referred to a Listings Conference and listed for trial. Depending on the urgency of the matter and the estimated length of trial, you may wait between 3 to 9 months for a trial date.

If your condition deteriorates we can approach the Court to have your evidence taken on commission and an urgent hearing date appointed.

Court hearing or trial

If your matter proceeds to trial a barrister will be retained to appear on your behalf. If your matter is complex a silk, or senior barrister, will be retained. You will be required to give evidence. If you are ill then most of your evidence will be by way of a written affidavit. Other family members and former work mates may also be called to give evidence. It is likely that doctors and other experts such as an occupational hygienist or occupational therapist who have provided expert reports will be called to give evidence.

The judge will normally reserve his/her decision. It may take weeks to months for the judgment to be handed down.

Whether your cases settles out of court or proceeds to judgment, and you are sucessful, you will be awarded lump sum damages. If you are successful then the defendant will be ordered to pay your costs.