Personal Injury Update Spring 2021

Asbestos claims demystified

What is asbestos and where is it found?

Asbestos is a term used for a group of naturally occurring minerals, mined
in Australia and around the world, perhaps most notoriously at Wittenoom in
Western Australia.
Once mined, asbestos was mixed with other materials and turned into
building and insulation products and used widely throughout Australia. In
fact, most houses built before 1983, will likely contain asbestos cement
products somewhere, such as in external cladding, eaves, wet areas, meter
boxes, garages and sheds.
When asbestos containing products are cut, drilled, or handled in any way
that causes dust, it is extremely dangerous. Asbestos fibres are inhaled and
can lodge in the lung, causing a range of asbestos related conditions later
in life.

What are the health impacts of asbestos exposure?

Because asbestos was used widely in Australia, it has sadly caused
devastation for thousands of Australians over many decades. Asbestos
causes a number of conditions, including; pleural plaques, asbestos related
pleural disease, asbestosis, lung cancer and mesothelioma.
Mesothelioma most commonly occurs in the pleura but can also occur in the
peritoneum and the pericardium. There is no cure for mesothelioma. There
have been medical advancements in recent years, such as the introduction
of immunotherapy for lung cancer and mesothelioma, but sadly most
treatments for these conditions are palliative.

Of course, asbestos diseases are rare. Most people who are exposed to
asbestos do not develop any health conditions as a consequence. However,
if it does eventuate, the consequences can be grave.

Is asbestos still a problem in 2021?

A common misconception is that asbestos exposure, and asbestos related diseases, are “yesterday’s problem.” Sadly, this couldn’t be further from the
truth. While the face of asbestos related disease sufferers may be changing, the devastation these terrible conditions cause remains the same.
Asbestos related diseases usually take decades to develop from the time that a person was exposed. So typically, asbestos related conditions that are
being diagnosed today are related to asbestos exposure more than a decade or two ago.

What to know about compensation claims

Where a person is diagnosed with an asbestos related condition as a result of past asbestos exposure, they are likely to be entitled to compensation.

It is often possible to pursue a compensation claim even where:

1. The person doesn’t have the funds to pay a lawyer;
2. The person doesn’t know where they were exposed to asbestos;
3. The manufacturer or employer has closed down or the company is deregistered;
4. The person was exposed to asbestos in more than once place;
5. The exposure to asbestos happened many decades ago;
6. The person has a short life expectancy or is very ill.

If a patient is diagnosed with an asbestos related condition, it is important to act quickly. To protect a sufferer’s entitlement to pain and suffering
damages, a case must be issued in that person’s lifetime. This is a simple step for a lawyer to undertake when they know a person’s history of
asbestos exposure.

Different laws apply in different states and sometimes for different time periods. It is critical to get expert advice from a lawyer who acts exclusively
for dust disease sufferers.

The team at Gordon Legal are Australia’s most experienced asbestos team and are experts in identifying where a person may have been exposed to
asbestos and who they have a viable compensation claim against. We are also able to ask the court to expedite a person’s case in appropriate cases,
enabling most claims to be finalised in a person’s lifetime. The vast majority of cases settle out of court avoiding the stress and worry of a trial at a time
when a person’s health is their main priority.

How is litigation managed in regional Victoria –

What is Court circuit?

In many regional cities in Victoria there is no permanent court to hear and determine personal injury claims.

In these cities, such as Geelong, Warrnambool, Bendigo etc, the Magistrates, County and Supreme Courts come to town at various times each year.

Each block of time in which a Court sits in these regional cities is called a circuit. When the Court lists matters for hearing in a circuit it will therefore
be listed to be heard, in the circuit commencing on a certain date. The date on which that individual matter actually commences will depend on its
priority or length of time it has been in the list.

For example, a WorkCover damages hearing might be listed in the Geelong County Court circuit commencing 1 March 2022 but that circuit block
might be from 1 March 2022 to 1 April 2022. The date the matter actually commences might be 6 March 2022 as it is the third in the list to be heard
and the two matters ahead of it conclude or settle allowing that matter to commence.

This causes much confusion for Medical Specialists/Doctors/ Physiotherapists and other witnesses as the need for them to attend Court
to give evidence could arguably be any time in the Court circuit block. This confusion is only remedied by excellent communication between the
witnesses and the lawyers representing the injured person.

What Courts come to Geelong and how often?

The Magistrates Court will come to Geelong six or seven weeks a year on average to hear WorkCover disputes such as;

• Rejected claims;
• Denial or termination of weekly payments;
• Denial or termination of medical and like expenses.

The County Court comes to Geelong, on average four times a year. Each time the County Court comes to Geelong it will sit for four to five weeks.

The County Court is charged with the responsibility of hearing most substantive claims for damages in WorkCover, TAC or Public Liability claims.
The County Court hears personal injury cases seeking damages for pain and suffering, loss of amenity, loss of enjoyment of life as well as economic loss
(loss of wages or loss of earning capacity claims). The County Court will also be the court in most instances which will decide if an injured person
has satisfied the threshold of “serious injury” in WorkCover and Transport Accident claims.

The Supreme Court is charged with the responsibility to hear and determine the most serious claims for damages or those claims who have very
complicated issues of fact or law. The Supreme Court attends Geelong on average, twice each year. Each time the Supreme Court comes to Geelong it
will sit for four to five weeks.

TAC accidents – what Medical professionals in South West Victoria need to know.

The statistics for our region are concerning. Road Safety Statistics show that approximately 25% of Victoria’s roads that cause serious injury or death are
in South West Victoria.

Vic Roads and the TAC have made substantial financial commitments in relation to road safety barriers, improving the quality of our roads and
increasing the number of lanes on which we travel in South West Victoria but the statistics remain of significant concern and alarm.

For those who are injured on our roads, they will have access to the transport
accident scheme.

As medical professionals there are important things you need to know for the benefit of your patients:

• There are strict time limits for lodging a TAC claim form. In order to access benefits under the scheme. An injured person must lodge the claim within
12 months of the date of the accident. There is discretion for the TAC to accept lodgement of the claim up to three years post-accident. Minors
generally have until their 21st birthdays to lodge the claim.
• Once the claim is accepted by the TAC the injured person has access to reasonable medical and like expenses. These are paid for by the TAC.
These are broad ranging and include; Medical treatment, Ambulance services, Physiotherapy, Psychological treatment, accommodation support, travelling expenses, home modifications etc.
• Once the TAC have accepted the claim if the injured person is unable to work, the TAC will pay loss of earnings benefits at 80% of pre accident
earnings for a period of 18 months post injury and loss of earning capacity benefits for an additional 18 months.
• If the injured person has suffered a permanent physical and/or psychological injury they can apply for a lump sum claim known as an
Impairment Benefit Claim. They have 6 years from the date of their injury to pursue this claim.
• If the injured person has suffered a permanent serious injury and the injury occurred in circumstances where the driver of the other vehicle or a third
party was negligent, the injured person may be able to make a common
law claim for damages for their pain and suffering, loss of enjoyment of
life and loss of earnings.

It is really important that people who have suffered physical and/or psychological injuries on our roads are able to access the support and
medical treatment that the TAC scheme provides.


Our experience is that often, the complex nature of injuries associated with a transport accident accompanied by the often complex way of navigating the
TAC scheme means that people do not get the support and assistance they require and that they are entitled to under the TAC legislation. We are happy to speak with your patients, their carers or yourself as their medical treater at no cost for initial advice or consultation.

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