It is useful to note the framework that is in place in NSW for the compensation of those who acquire dust diseases, including asbestos related diseases. In this section we note the jurisdiction of the DDT and the broad heads of damages that may be awarded at common law, as well as the workers’ compensation benefits that are available to dust diseases victims.

By way of comparison, we also note the substance of the legislative schemes that are in place in NSW that provide for the receipt of compensation, or for the recovery of common law damages, by non-dust disease claimants. An appreciation of these schemes is relevant to the equity implications of any reform that the terms of reference require us to take into account.

The discussion in this chapter is limited to liability under the laws of NSW. Consequently, it does not consider the availability of compensation, either statutory benefits or common law damages, to those who are subject to the laws of another jurisdiction. The main example of such a category of plaintiff would be workers who were injured while working in NSW, but who were employed by the Commonwealth. Commonwealth employees are provided for by a statutory compensation scheme established under the Safety, Rehabilitation and Compensation Act 1988 (Cth).¹

Workers’ compensation—no fault schemes

Where a person is injured or killed arising out of or in the course of his or her employment in NSW, that person and his or her dependants can claim compensation which will be funded though statutory contributions.²

In general, injured workers in NSW are entitled to workers’ compensation benefits and modified common law damages under the Workers Compensation Act 1987.

Workers suffering certain dust diseases are covered under their own compensation scheme.³ Certain volunteers (fire fighters, emergency and rescue workers) are covered under their own scheme.⁴

In 2012 and 2015 workers’ compensation reforms modified weekly payments arrangements for all new and existing workers’ compensation claims. The amendments introduced in the Workers Compensation Legislation Amendment Act 2012 do not apply to certain categories of workers, namely, police officers, paramedics, firefighters and coal miners. These workers are referred to as “exempt workers”. Claims by exempt workers are mainly managed as though the 2012 amendments did not occur.

The current scheme provides for the following weekly payments:⁵

The entitlement to weekly payments of exempt workers is determined by reference to the pre-2012 scheme.

The pre-2012 scheme provides for:

The Workers Compensation Act 1987 provides the following further benefits for workers:

In situations where a worker dies as the result of an accident or disease associated with his or her employment, the Act also provides for a lump sum death benefit.¹⁶ This is currently $929,200 (as at 1/4/2024), and is to be apportioned between dependents,¹⁷ or otherwise paid to the worker’s legal personal representative.¹⁸ Provision is also made for weekly payments for dependent children¹⁹ and funeral expenses.²⁰

This compensation scheme is regulated by State Insurance Regulatory Authority.²¹ Insurance and Care NSW (icare)²² acts on behalf of the Workers Compensation Nominal Insurer, the statutory insurer in NSW.²³

The Personal Injury Commission resolves disputes in relation to workers compensation statutory entitlements, except for certain classes of injured person. The District Court of NSW has jurisdiction to resolve disputes about claims by coal miners, workers suffering dust diseases and volunteers.²⁴

Separate provision is made for dust diseases victims, whose total or partial disablement for work was reasonably attributable to the exposure to dust, in the course of their work. The applicable no fault statutory scheme is established under the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (the “1942 Act”), which is administered by the icare dust diseases care and also known as the Dust Diseases Authority (“DDA”).²⁵

Decisions by the DDA in relation to the award of compensation follow upon assessment, and the issue of a certificate,²⁶ by the Medical Assessment Panel, which is also established under the 1942 Act. Decisions of the Medical Assessment Panel and of the DDA are subject to appeal to the District Court.²⁷

The benefits available under the dust diseases workers’ compensation scheme similarly include:

Where a worker dies as a result of a dust disease that was reasonably attributable to exposure to dust in the course of his or her work, those who were wholly dependent on that worker are entitled to compensation as follows:

It is noted that, although the lump sum death benefit payable under the 1987 Act is greater than that payable under the 1942 Act, the surviving dependent spouse is entitled to weekly compensation benefits under the 1942 Act, but not under the 1987 Act.

Unlike the general workers’ compensation scheme, there is no compensation payable under the dust diseases workers’ compensation scheme for permanent impairment, nor for pain and suffering. Such damages must be recovered in dust diseases cases through a common law action brought in the Dust Diseases Tribunal of New South Wales (“DDT”).

The 1942 Act provides the DDA with mechanisms for reducing payments made to an eligible claimant in certain circumstances. If a worker or a worker’s spouse is qualified to receive a government pension, the board can adjust the weekly payments to ensure they will still be entitled to receive that pension.³⁷ Additionally, where the claimant is entitled to receive compensation from another source, the board can require a person to take all appropriate and reasonable steps to claim compensation from that other source and, if he or she fails to do so, it can reduce the dust disease compensation that would otherwise be payable.³⁸ It is an offence to fail to inform the DDA that a person is receiving compensation under another Act, ordinance, or law of the Commonwealth, or of another State or Territory or of another country.³⁹

There are cases where a person who contracted a dust disease, including an asbestos-related disease, in the course of his or her work, will not receive workers’ compensation benefits. Such people include employees whose employers did not make contributions to the NSW workers’ compensation scheme (such as Commonwealth employees⁴⁰) or independent contractors who were not covered by the workers’ compensation scheme.⁴¹ In such cases their dependants will similarly be unable to receive the statutory benefits that are available upon the victim’s death.

Persons whose exposure to dust was not work-related are ineligible for compensation under the 1942 Act.

Common law damages—fault-based liability

In NSW, the recovery of common law damages for personal injury or death is subject to a different regime, depending on the circumstances in which the injury or death was caused. Separate provisions apply in relation to:

The application of these separate regimes can result in material differences in the outcome of damages claims for comparable levels of incapacity and loss.

Moreover there is a difference in the jurisdictions in which awards of “common law damages” are made. Claims subject to the Motor Accidents Compensation Act 1999 (NSW), Motor Accident Injuries Act 2017, the Civil Liability Act 2002 (NSW) and the modified provisions of the Workers Compensation Act 1987, are brought in the District and Supreme Courts, from which appeal lies to the Court of Appeal. The jurisdiction to award “common law damages” in relation to dust diseases is vested in the DDT, from which appeal lies to the Court of Appeal.

See further H Luntz and S Harder, Assessment of damages for personal injury, 5th edn, LexisNexis, 2021.

The recoverability of “common law damages”, in respect of fault-based motor accident injuries is currently subject to the limitations arising from the Motor Accidents Compensation Act 1999 (NSW). That Act imposes:

The recovery of compensation under this Act is regulated by procedural requirements that impose duties on authorised insurers to attempt expeditious claim resolution,⁵⁰ and that provide for an assessment process as a precondition to commencement of court proceedings.⁵¹

Proceedings must be commenced within 3 years of the motor accident, except with leave of the court, which cannot be granted unless the claimant has provided a full and satisfactory explanation for the delay and the total damages awarded is likely to exceed 25% of the maximum amount that may be awarded for non-economic loss.⁵²

For a summary of the relevant authorities on what constitutes a “full and satisfactory explanation” under s 109 see Stein v Ryden [2022] NSWCA 212 at [33]–[38]. The applicant’s explanation for the delay is the central focus: at [39].

Special provision is made in this Act, to allow the recovery of damages for a limited class of no fault claimants. This is confined, however, to those cases where the victims were either children, or where the injury or death arose as the result of a blameless accident.⁵³ In these cases the accident is deemed to have been caused by the fault of the owner or driver of the relevant vehicle, provided it was the subject of motor accident insurance cover.

In addition, the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) has established a statutory compensation scheme that provides compensation for severe motor accident injury victims and that applies regardless of fault.⁵⁴ The injuries compensated include spinal cord injury, brain injury, multiple amputations, burns and permanent blindness.⁵⁵

Claims for damages arising from motor accidents occurring after 1 December 2017 are the subject of the 2017 Act.

The Act provides for the payment of no fault statutory benefits for persons injured in a motor accident as defined in s 1.4, however those benefits are restricted for persons at fault. The statutory benefits include weekly compensation and treatment and care costs for varying periods, depending on whether the person was at fault and the extent of the impairment suffered. Statutory benefits are not payable if compensation under the Workers Compensation Act 1987 is payable in respect of the injuries.⁵⁶ Statutory benefit payments are reduced after 52 weeks for contributory negligence, if applicable.⁵⁷ A claim for statutory payments must be made within 3 months of the motor accident.⁵⁸

Damages are payable for persons who were not at fault and have more than threshold injuries. A “threshold injury” is defined as a soft tissue injury and a minor psychological or psychiatric injury that is not a recognised psychiatric illness.⁵⁹ Damages are restricted to past and future economic loss unless the permanent impairment as a result of the injuries suffered is more than 10% and then non-economic loss damages to compensate pain and suffering and loss of amenities of life are available up to a maximum of $605,000.⁶⁰

Statutory benefits are payable for reasonable funeral expenses if the death of a person results from a motor accident. “The death of a person” includes a reference to the loss of a foetus of a pregnant woman, whether or not the pregnant woman died and regardless of the gestational age of the foetus.⁶¹

For actions commenced prior to 28 November 2022, a claim for damages could not be made until 20 months after the motor accident, unless the claim related to a death or where the extent of permanent impairment was greater than 10% and all claims for damages had to be made within 3 years of the motor accident. A claim for damages could not be settled within 2 years of the motor accident unless the extent of permanent impairment was greater than 10%.⁶²

A damages claim cannot be settled unless the claimant is represented by an Australian legal practitioner or the settlement is approved by the Personal Injury Commission. If damages are payable the award will be reduced by the amount of the weekly payments received and there is no entitlement to future statutory payments.

If there is a dispute as to the extent of a person’s permanent impairment a court or Member of the Personal Injury Commission may refer a claimant for assessment by a medical assessor. The certificate of a medical assessor is prima facie evidence of the extent of permanent impairment as a result of the injury and conclusive evidence of any other matter certified, including the extent of the person’s permanent impairment.⁶³ A court can reject the contents of a certificate on the grounds of denial of procedural fairness but only if the admission of the certificate would cause substantial injustice.

When assessing damages consideration must be given to the steps taken by the claimant to mitigate their loss and any other reasonable steps that could have been taken, including by undergoing treatment and undertaking rehabilitation.⁶⁴ Contributory negligence applies to the assessment of damages, which must be found where drugs, alcohol or the failure to wear a seatbelt or helmet have been a factor in the accident or injury.

A claimant is not entitled to commence court proceedings until the claim has been assessed by a Member of the Personal Injury Commission, or the Member has issued a certificate that the claim is exempt.⁶⁵ Proceedings must be commenced within 3 years of the motor accident, except with leave of the court, which cannot be granted unless the claimant has provided a full and satisfactory explanation for the delay and the total damages awarded is likely to exceed 25% of the maximum amount that may be awarded for non-economic loss.⁶⁶ An insurer may require a claimant to commence proceedings and the claimant must do so within 3 months of the notice, or the claim is deemed to have been withdrawn.⁶⁷ A court may grant leave to reinstate the claim if the claimant provides a full and satisfactory explanation for the delay in commencing the proceedings. If a claimant provides significantly new evidence in court proceedings, the claim must be referred back to the claims assessment process and the proceedings adjourned until it is complete.⁶⁸

Legal costs are capped and costs are not recoverable for the claims assessment process unless they are included in the assessment.

Claims under this Act for “common law damages” arising out of other forms of fault-based liability, are also subject to limitations. For example:

Some limits are placed on the recovery of damages where the injury is solely related to mental or nervous shock.⁷⁷ Damages cannot be recovered for pure mental harm, arising from mental or nervous shock in connection with another person’s death or injury, unless:

Additionally, the plaintiff needs to have developed a recognised psychiatric illness in order to recover damages for pure mental harm.⁷⁹

There are no provisions comparable to those that were introduced in relation to the Motor Accidents Scheme, that allow recovery for blameless injuries or injuries occasioned to children.

In addition to the entitlement for workers’ compensation outlined above, an injured worker is also entitled to pursue common law damages, as modified by the 1987 Act against the party whose negligence or other wrongful act or omission led to the injury.⁸⁰

No damages are recoverable unless the worker dies or has sustained a permanent impairment of at least 15%.⁸¹

The worker’s claim for loss of economic capacity is confined to the recovery of past lost earnings and future loss due to the deprivation or impairment of the worker’s earning capacity.⁸²

Future losses are currently calculated according to the 5% actuarial discount rate.⁸³

In awarding such damages, the court is required to disregard the amount (if any) by which the worker’s net weekly earnings would have exceeded the amount that is the maximum amount of weekly statutory compensation payable in respect of total or partial incapacity, currently $2341.80.⁸⁴

Common law damages are not available in respect of the victim’s non-economic loss, the recovery of which is confined to the statutory no fault lump sum benefits that are available to the claimant for such losses.

Interest on damages is not payable unless certain conditions are satisfied.⁸⁵

If a worker sues an employer at common law, and receives damages, these will have an impact on the statutory compensation that he or she can receive. For example, an award of damages in a common law action will mean that:

During his or her lifetime, a person who suffers a dust disease can sue a person, whose wrongful act or omission caused or contributed to that injury, to recover damages of the kind that were previously available under the common law. They include, accordingly:

Successfully completing such an action, either by settlement or by judgment, during the plaintiff’s lifetime, extinguishes the possibility of common law claims being brought after death, including claims by that person’s estate, or by his or her dependants.⁹² It does not, however, bar dust diseases victims or their dependants from claiming statutory dust diseases workers’ compensation benefits, where the victim’s disease was work related. In this respect, the 1942 Act does not contain a provision equivalent to that contained in the 1987 Act,⁹³ which has the effect of terminating any further entitlement to workers’ compensation benefits, once common law damages are recovered.

As noted above, the DDT has exclusive jurisdiction in NSW in respect of all common law claims arising from injuries caused by exposure to dust, and non-exclusive jurisdiction in proceedings for contribution between defendants, and questions arising under relevant policies of insurance.⁹⁴ It has jurisdiction over any injuries caused by a “dust-related condition”, which is defined in the Dust Disease Tribunal Act 1989 (NSW) as meaning:

Schedule 1 to the Dust Disease Tribunal Act 1989 (NSW) now lists, for the purposes of that Act, 14 dust diseases:

Pneumoconiosis is any “disease of the lung caused by the inhalation of dust, especially mineral dusts that produce chronic induration and fibrosis”.⁹⁶ The DDT’s jurisdiction, therefore, includes diseases caused by asbestos dust, as well as a range of other diseases and conditions caused by exposure to industrial dusts.

In a number of respects differences exist in relation to the recoverability of “common law damages” in, and the procedures followed by, the DDT when compared with the recovery of such damages in accordance with the other schemes outlined above. They include, for example:

There are also two substantive law differences:

The recovery by a worker of compensation from one source may affect his or her ability to recover from another source. A recipient of benefits under the dust diseases workers’ compensation scheme cannot be required to repay anything to the DDA if he or she also receives compensation benefits for the same injury from another source.¹⁰⁷ In this respect, the dust diseases workers’ compensation scheme is unlike the general workers’ compensation scheme where repayment can be required if, for example, the injured worker recovers common law damages for the same injury.¹⁰⁸ In addition, unlike the general workers’ compensation scheme,¹⁰⁹ recovery of common law damages does not bring an end to a worker’s statutory compensation entitlements under the dust diseases workers’ compensation scheme.

However such payments are recoverable by the DDA from the wrongdoer who is, or who would have been, liable to the dust disease claimant if sued by that person.¹¹⁰

If a worker has received workers’ compensation benefits prior to judgment in a common law action, any weekly benefits that have been received are to be taken into account and deducted from the common law damages for loss of earning capacity or economic loss recovered by the injured person or his or her estate.¹¹¹ In addition, where a worker has an entitlement to statutory workers’ compensation benefits but has failed to claim them, the failure to claim the compensation available under the statutory scheme may be construed as a failure to mitigate the worker’s loss. Where a worker has failed to mitigate his or her loss, the DDT may make a deduction from an award of common law damages for the statutory compensation entitlements which the worker has not, but could have, claimed.¹¹²

On the other hand, statutory compensation benefits paid to a worker are not to be deducted from damages awarded for non-economic loss.¹¹³

The relatives of dust diseases victims can bring claims for nervous shock in the DDT.¹¹⁴ Such cases are likely to be determined according to the common law principles, unaffected by Pt 3 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which has been repealed and only replaced for proceedings subject to the Civil Liability Act 2002 (NSW).¹¹⁵

Post-death claims

The legal personal representative of the estate of a deceased person who was injured as the result of the wrongful act of another, can bring an action to recover common law damages on behalf of the estate, or continue an action already commenced by the deceased, provided the deceased had a cause of action. Such an estate action is not, however, available if the deceased commenced and completed an action for the recovery of such damages before dying.

This type of action is based on the survival of causes of action legislation that was introduced in NSW by the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (the “1944 Act”).¹¹⁶ Similar provisions exist in other common law jurisdictions. Prior to its introduction any cause of action that was vested in the deceased died with that person.¹¹⁷

In an estate action, the economic loss damages recoverable comprise:¹¹⁸

The damages recoverable by the estate, in an estate action, do not include any damages for the loss of the deceased’s earning capacity past the date of his or her death, (that is, during the “lost years”),¹²² nor do they include exemplary damages.¹²³

In non-dust disease cases, damages for non-economic loss cannot be recovered in an estate action.¹²⁴

In dust diseases estate actions, damages for non-economic loss and interest thereon,¹²⁵ including damages for the loss of the deceased’s expectation of life, can be awarded, but only if proceedings for damages had been commenced by the injured person during his or her lifetime.¹²⁶ There is no restriction on the award of interest on damages for past economic loss. The entitlement to interest in such cases differs from that applicable to claims under the other compensation schemes.¹²⁷

The legal personal representative of a deceased person can also bring an action under the 1897 Act, on behalf of specified family members,¹²⁸ for compensation for the loss of support that they sustain, consequent upon the death of a person who died as the result of the wrongful act of another.¹²⁹ Only one such dependency action can be brought.¹³⁰

The damages recoverable in such an action, for the benefit of any eligible claimant, are limited to the loss of that dependant, that arose from the loss of the expectation of the deceased’s financial support,¹³¹ although they also include reasonable funeral or cremation expenses as well as the reasonable cost of erecting a headstone or tombstone.¹³² Although the relevant provision does not explicitly limit the damages recoverable in this way,¹³³ this approach has been accepted in Australian law following decisions of the Privy Council. Where there is more than one dependant,¹³⁴ the amount recovered in the proceedings is apportioned between the dependants, according to their individual loss.¹³⁵

The measure of damages available is the extent of the support that is lost by the dependant from the time of death, reduced by benefits obtained by the dependant as a consequence of the death, other than those benefits that are specifically excluded under s 3(3) of the 1897 Act.

Completion in the deceased’s lifetime of an action, brought by the deceased, for damages arising out of the injury—either through settlement with the wrongdoer or through the judgment of a court—will mean that his or her dependants will no longer have a right of action under the 1897 Act. This is because a dependency action can only be brought, if the deceased would have been entitled to bring an action and to recover damages, as a result of the defendant’s wrongful act or omission.¹³⁶ Completion of an action in the deceased plaintiff’s lifetime extinguishes any such entitlement.¹³⁷

Dependency actions are available in relation to each of the categories of liability previously mentioned. Once again, such proceedings are determined by the Supreme or District Courts, save for dust disease dependency actions which are determined in the DDT.

The loss that a dependant can recover in a dependency action is not limited to a claim for loss of financial support, but includes the value of domestic services that the deceased would have provided to the dependant.¹³⁸

Proceedings under the 1897 Act brought in the DDT are subject to the unmodified common law and, as a consequence, it has been accepted that damages for the dependant’s future loss of support are calculated by reference to the 3% actuarial tables rather than the 5% tables that are applied in relation to claims by dependants under the other schemes.¹³⁹