Dust Diseases & Asbestos
7. Role of the Tribunal
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 20 Jul 2015
- The NSW Parliament set up the Dust Diseases Tribunal as an inferior court of record in 1989. The tribunal holds the exclusive jurisdiction to hear and determine claims for damages for dust-related diseases. This means that no other courts or tribunals are able to hear proceedings for damages in respect of a dust-related condition or death. A compensation claim through the Dust Disease Board does not affect your entitlement to claim damages under common law in respect of your employer's negligence.
- For a claim resulting from a dust disease to be brought under the Dust Diseases Tribunal Act 1989 (NSW) an applicant must satisfy the section 11 requirements and establish that:
- a person is suffering, has suffered or has died and immediately before death was suffering from a dust-related condition; and
- the dust-related condition resulted entirely or in part from a breach of duty owed to the claimant by another person; and
- the person who is or was suffering from the condition or a person claiming because of a relationship of dependency to that person would have been entitled to bring an action for the recovery of damages because of that dust-related condition or death.
- In order to succeed you must establish that one or more of your employers or manufacturers of asbestos products were negligent and that as a consequence of their breach of duty of care you or a relevant person has developed an asbestos or dust-related disease.
- Since most claimants are terminally ill the tribunal aims to hear claims quickly and justly. Most cases are heard within a couple of weeks of lodging an application. If the claimant’s medical condition requires extensive testing and specialised reports the application process may be delayed and take up to a few months.
- In NSW there is no limitation period within which a claim must be brought forward in a tribunal. Similarly Victoria, the Northern Territory and Queensland also exclude dust disease claims from limitation periods. This means that in these states and territories you can bring an action for a dust disease at any time regardless of how many years have passed since your exposure to asbestos or other dangerous dusts.
- In Western Australia however a claim for an asbestos disease must be brought within 3 years of when a person develops a ‘significant’ asbestos disease. An applicant should consult with a lawyer in their state or territory to ensure that they are not under time pressure for lodging an application with the relevant tribunal.
- All claims brought before the Dust Diseases Tribunal must go through a claims resolution process which includes compulsory mediation. Most claims are settled during this process and outside of court.
- If no settlement is reached during the claims resolution process the case will need to be heard before the tribunal. If the applicant is successful in their claim they are then awarded a lump sum as compensation.
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