Asbestos related common law claims
The Asbestos-related Claims (Management of Commonwealth Liabilities) Act 2005 provides for Comcare to assume and manage the common law asbestos-related conditions liabilities of the Australian Government and, with certain exceptions, its agencies and controlled companies. The liabilities are assumed by Comcare (and cease to be liabilities of the agencies and controlled companies) on and from 26 October 2005 or the subsequent making of a claim. This centralisation of liabilities and their management is intended to provide greater consistency and meet increased demands of accountability and transparency.
This does not affect or apply to benefits under disability, medical and pharmaceutical, social security or workers’ compensation statutory schemes. They will continue to be delivered and managed by the appropriate agencies in accordance with the relevant statutory schemes. However where a person who has received statutory benefits recovers common law damages the normal requirement to repay the statutory benefits will apply.
The centralisation of common law asbestos liabilities and management does not apply to the liabilities of and claims against the Australian Postal Corporation, Telstra Corporation Ltd and their subsidiaries. It will apply to all other current and former Australian Government agencies and controlled companies.
This new function is set apart from Comcare's workers' compensation and rehabilitation functions under the Safety, Rehabilitation and Compensation Act 1988 and occupational health and safety functions under the Occupational Health and Safety (Commonwealth Employment) Act 1991, separately funded and outside the oversight of the Safety, Rehabilitation and Compensation Commission. The Department of Employment and Workplace Relations has policy responsibility and oversight.
Asbestos was used in a wide range of industries, materials and products as it can be woven into fabric, has excellent insulation properties and is chemically inert. As knowledge of the health dangers increased the use of asbestos has been progressively prohibited, with use, apart from very limited exceptions, now being banned throughout Australia.
Asbestos dust or fibres that are inhaled can cause scarring (fibrosis), infection (effusion) or interaction with the person's immune system (attempted ingestion by macrophages) leading to genetic damage with resulting carcinomas. Inhalation of asbestos dust or fibres may occur from handling asbestos or materials containing asbestos without wearing a respirator, face mask or other personal protective equipment. Some people appear more susceptible to asbestos-related conditions than others with similar exposures.
The Act defines an asbestos-related condition as asbestosis, an asbestos-induced carcinoma, an asbestos-related non-malignant pleural disease, mesothelioma or any other condition caused by inhaling asbestos dust or fibres.
- Asbestosis is a chronic and progressive lung disease of varying intensity in which scarring (fibrosis) of the lung tissue by asbestos dust and fibres restricts lung function.
- The most common asbestos-induced carcinoma is lung cancer, with tobacco usage frequently being a significant contributing factor.
- The asbestos-related non-malignant conditions include pleural plaques, pleural effusion and diffuse pleural thickening; which can but usually do not develop into malignant conditions.
- Mesothelioma is malignant disease of the membrane tissue around the lungs (pleural mesothelioma), intestine (peritoneal mesothelium) or heart (pericardial mesothelium) with death occurring within a year of diagnosis.
- The definition makes provision for any further pathological condition caused by inhaling asbestos dust or fibres that may be discovered.
Comcare has –
- Established Asbestos Legal to accept service of and defend or settle common law asbestos-related condition claims and to pursue contributions from defendants; and
- Delegated the same function to personnel of the Defence Legal Asbestos Litigation Cell in respect of claims relating to Defence personnel and contractors and their dependants estates.
The objective is to provide early compensation by way of appropriate damages where liability is clear and to defray the cost to the Consolidated Revenue Fund by recovering contributions from other defendants where possible and if cost-effective.