Oral Presentation Clinical Oncology Society of Australia Annual Scientific Meeting 2018

Occupational cancer and compensation - the legislative aspects    (#71)

Simon Millman 1
  1. Member for Mount Lawley, Mount Lawley, WA, Australia

Provisional Damages and Damages for Gratuitous Services

For a number of years, asbestos advocates have been calling for equity for WA victims.

Currently, WA victims of Asbestos-related diseases are second-class citizens because, unlike most other jurisdictions in Australia, they are unable to access provisional damages or damages for gratuitous services.

Hopefully, this will soon change as advocates continue their push for legislative reform. 

  1. Provisional Damages

Given the nature of asbestos-related diseases, it is possible for victims to develop a non-malignant condition such as asbestosis and then to subsequently develop a malignancy - lung cancer and mesothelioma.

Should a victim of a non-malignant illness proceed with a claim to determine liability and compensation, their claim is often 'settled' with a 'once-and-for-all' settlement sum. This prevents them from returning if they later develop a malignancy, operating as a barrier to equitable compensation and as a disincentive to claiming compensation for non-malignant conditions. 

  1. Damages for Gratuitous Services

Given the nature of asbestos-related diseases, victims may not experience symptoms until late in life. For instance, a victim exposed during their working life might only experience symptoms after they have retired.

In many relationships in Australia, consequent upon demographic and socio-economic factors, one partner acts as the caregiver for the other.

In other jurisdictions in Australia, asbestos victims can claim damages for 'gratuitous services' from the negligent party if they are no longer able to fulfil their role as primary caregiver. This compensation is to offset the cost of having a third party fulfil the primary caregiver role.

In WA, victims are not entitled to claim compensation for these 'gratuitous services', significantly prejudicing asbestos victims and enabling negligent parties to avoid their full liability.