The importance of commencing proceedings within a claimant’s lifetime
It is especially important to be aware that a claim for compensation should be commenced within a claimant’s lifetime.
Some asbestos related conditions, particularly mesothelioma and other asbestos-induced cancers, can be aggressive and sufferers may have limited life expectancy.
The majority of asbestos compensation claims in South Australia are common law claims in negligence and claimants can seek compensation for loss including pain and suffering, loss of income, care needs and medical expenses. Often, the most financially significant component of a common law claim is compensation for pain and suffering.
Amendments were made to the Survival of Causes of Actions Act in 2001 to ensure that damages for pain and suffering, bodily and mental harm, curtailment of expectation of life and exemplary damages could be recovered posthumously by a person’s estate when a person dies as a result of an asbestos-related condition, provided that Court proceedings were commenced within the person’s lifetime.
If Court proceedings are not commenced within a claimant’s lifetime their Estate may be precluded from claiming a significant amount of compensation.
People who have been exposed to asbestos in the course of their work may also have rights to claim workers compensation entitlements and to maximise entitlements these claims need to be commenced and resolved within a claimant’s lifetime. If a claim is not resolved within a claimant’s lifetime, compensation for non-economic loss is not recoverable.
Time limits apply to commence actions
Common law negligence claims are also subject to time limits imposed by Section 36 of the Limitations of Actions Act 1936. The effect of this section is that a claim must be brought within 3 years of the date on which a person becomes aware of a diagnosis of a compensable asbestos-related condition. If a claim is not brought within this 3 year period a claimant may lose their right to claim compensation.
In some circumstances it is possible to obtain a 12 month extension of time to bring a common law claim if a claimant becomes aware of new facts relevant to the viability of the claim after the 3 year time limit has passed. This might include, for example, new information regarding the severity of their asbestos-related condition or new information about the source of their exposure to asbestos.
Worker’s compensation claims are also subject to time limits and should be brought within 6 months of diagnosis.
In light of these strict time limits, it is important that legal advice regarding potential rights be sought as soon as possible upon diagnosis of an asbestos-related condition, particularly in relation to a diagnosis of mesothelioma or other asbestos-related cancer. Johnston Withers Lawyers are able to act urgently to ensure that a claimant’s potential rights are protected, including quickly preparing and filing relevant Court documents. We are also able to travel to see our clients at home or in hospital to take urgent instructions.
Disclaimer: the above information is of a general nature and relates to claims in South Australia. Time limits provisions are different in other States and Territories. Specific advice should be sought about individual circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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