Preparing a dust diseases compensation claim in NSW
NSW has a specialist jurisdiction for dust diseases claims through the Dust Diseases Tribunal (DDT) and the Dust Diseases Board (DDB, now part of icare). Workers (and their dependants) who develop a dust disease from occupational exposure can claim compensation through the workers compensation system and/or bring common law proceedings in the DDT against negligent employers or manufacturers.
This is an 8-step workflow for preparing a dust diseases compensation claim in NSW. Dust diseases claims — including asbestosis, mesothelioma, silicosis, and other occupational lung diseases — are heard by the Dust Diseases Tribunal of NSW, which has exclusive jurisdiction over these claims.
Before you start
- A medical diagnosis of a compensable dust disease
- A history of occupational exposure to the relevant dust (asbestos, silica, etc.)
- The worker's employment history and occupational records
The workflow
Obtain medical diagnosis and DDB certification
Arrange for the worker to be examined by the Dust Diseases Board (icare Dust Diseases Care). The DDB certifies whether the worker has a dust disease and the degree of disability. This certification is critical for both workers compensation benefits and common law proceedings.
Document the exposure history
Take a detailed statement from the worker covering their complete employment history, the workplaces where exposure occurred, the nature of the dust exposure (asbestos types, silica sources), the duration of exposure, and the safety precautions (or lack thereof) at each workplace.
Identify all potential defendants
Identify every employer, occupier, manufacturer, and supplier who contributed to the worker's dust exposure. Search historical records, ASIC company searches, and asbestos product databases. Consider whether any defendants are insolvent and whether the James Hardie Special Purpose Fund or Amaca/Amaba apply.
Gather supporting evidence
Obtain the worker's employment records, superannuation records, tax records, Medicare and hospital records, and any prior workers compensation claims. Source co-worker statements confirming the exposure conditions. Obtain the DDB medical file and any specialist respiratory or oncology reports.
Apply for workers compensation benefits
Lodge a claim for weekly payments and medical expenses under the Workers' Compensation (Dust Diseases) Act 1942 with icare Dust Diseases Care. Benefits include weekly compensation, medical and hospital expenses, and dependant benefits in the case of death.
File proceedings in the Dust Diseases Tribunal
Prepare and file a Statement of Claim in the Dust Diseases Tribunal of NSW. The claim must set out the dust disease, the exposure history, the defendants' negligence, and the damages sought. For mesothelioma, apply for an expedited hearing given the terminal nature of the disease.
Serve defendants and manage interlocutory steps
Serve the Statement of Claim on all defendants. Manage the interlocutory process — discovery of documents, interrogatories, and evidence from defendant companies about the products used and safety practices at the relevant workplaces. Arrange any additional medical evidence.
Negotiate settlement or proceed to hearing
Engage in settlement negotiations with the defendants and their insurers. Prepare a schedule of damages covering past and future economic loss, pain and suffering, medical expenses, and care costs. If settlement is not reached, prepare for and attend the DDT hearing.
What you will have at the end
Workers compensation benefits secured through icare Dust Diseases Care, and a common law damages claim filed in the Dust Diseases Tribunal. The worker (or their dependants) receives compensation for the harm caused by occupational dust exposure.
Common issues
- Difficulty identifying defendants when the exposure occurred decades ago and companies have been deregistered
- Multiple defendants disputing apportionment of liability for the exposure
- Mesothelioma claims requiring urgent action due to the rapid progression of the disease
- Overlap between the workers compensation statutory scheme and common law damages (credit provisions)
- Cross-jurisdictional exposure where the worker was exposed in multiple states
Run this workflow on a real matter
Quillio helps research defendant company histories, draft exposure chronologies, and prepare the Statement of Claim for the Dust Diseases Tribunal. See /practice-areas/personal-injury-lawyers or start a free trial.
This workflow is a general guide for NSW dust diseases claims. These claims involve complex legal and medical issues, strict time limitations, and urgent deadlines (particularly for mesothelioma). Always seek specialist dust diseases legal advice.
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