When you are injured because of someone else’s negligent actions or omissions a claim can be commenced against the at fault party provided certain legal criteria can be met. We commonly refer to these types of claims as common law claims or you might know them as negligence claims.
When making a common law claim there are two main considerations; one being liability and the other quantum. To put it simply liability refers to who is at fault and quantum is about damages or how much you will be paid. There needs to be an at fault party in order for you to claim damages. You are not entitled to damages unless you can prove liability. Of course the legal hurdles and tests that need to be determined in order to prove both liability and quantum are complex and technical and that is why it is important to have the assistance of an appropriately specialised compensation lawyer if making a common law claim.
While we distinguish the types of claims under headings such as motor vehicle accidents, work accidents, public liability, medical negligence by way of example the general principles of liability and quantum apply.
Liability
In order for your claim to be successful the following needs to be established by the evidence:
1. There was a duty of care
2. There was a breach of that duty
3. There was damage occasioned by the breach (causation);
4. Foreseeability (remoteness) of damages.
A common law duty of care arises only in relation to the injury complained of by the plaintiff, and is established by reference to the “neighbour principle”. The neighbour principle involves a consideration of the relationship between the plaintiff and the defendant and of whether injury to the plaintiff is reasonably foreseeable by the defendant as a consequence of the defendant’s conduct within that relationship.
Asbestos Claims
The compensation procedures available to persons affected by asbestos related diseases largely depend upon whether or not the exposure to asbestos has occurred at work or outside of work.
Compensation claims can be made with the workers’ compensation insurer or at common law through the Queensland Courts. How or what you were exposed to and in what circumstances that exposure occurred will determine which compensation avenue most benefits you.
Legal advice should be obtained immediately if you are diagnosed with any of the following diseases:
Mesothelioma
A cancer of the pleura, being the lining of the lungs and other internal organs which can be caused by relatively low exposure to asbestos fibres; Latency period – 30 years
Lung Cancer
A cancer of the lung tissue which can be caused by significant exposures to asbestos, even where other factors are also present such as a history of smoking; Latency period – 20 years
Asbestosis
Scarring in the lung tissue which is usually caused by significant exposurers to asbestos, dust and fibre. Although not a form of cancer, this condition can nevertheless be progressive; Latency period – 15 years or more
Benign Pleural Plaques
Calcium deposits on the lining of the lungs which usually occurs in areas affected by asbestos exposure. Pleural plaques can cause breathing restriction and chest pain; Latency period – 10 years or more.
Note also that you can make a claim even if:
- you are no longer employed where the exposure occurred;
- you were exposed to asbestos more than 50 years ago;
- your employer at the time has since gone out of business;
- you were self-employed or a contractor at the time of exposure;
- your exposure to asbestos was not at work;
- you were exposed to asbestos during home renovations;
- you are not sure where you were exposed to asbestos; and
- you also smoke cigarettes.
As the diseases associated with asbestos exposure can take decades to develop it is important to document any exposure with the appropriate authorities as and when exposure occurs. If you are or have in the past been exposed to asbestos products in the course of your employment your priority should be protecting your interests. To do this you should be notifying the workers’ compensation insurers about the exposure
The Claim Process
Investigation and Disclosure
Compulsory Conference
Calculating a Claim
How We Charge – No Win, No Fee