Asbestos lung cancer compensation claims

Asbestos causes lung cancer as well as mesothelioma

Mesothelioma is the condition most people associate with asbestos, and it gets most of the attention. In terms of the number of people affected, asbestos-related lung cancer is at least as significant, and far fewer of those people ever learn that their work had anything to do with it.

The reason is simple enough. When someone is diagnosed with mesothelioma, the diagnosis itself raises the question of asbestos, because almost nothing else causes it. When someone is diagnosed with lung cancer, nobody asks, because lung cancer is common and has an obvious and much more frequently discussed cause. The occupational history that would have prompted the question is often never taken.

So people who worked for years around asbestos are diagnosed with lung cancer, are treated for lung cancer, and are never told there is anything to look into. Some of them had claims.

Why a lung cancer claim is harder than a mesothelioma claim

It is worth being direct about this, because the difference drives everything about how the claim is run.

The last row is the one that matters most. In a mesothelioma claim, establishing that someone worked with asbestos is usually enough to put the cause beyond serious argument. In a lung cancer claim, how much asbestos, over how long, and in what conditions, is the question the whole claim turns on. A general account of a dusty workplace will not carry it. A reconstructed history, site by site and task by task, might.

Smoking does not end the claim

Most people who have smoked and are then diagnosed with lung cancer assume the matter is closed, and a good many are told so by someone who ought to know better.

The medicine says something different. Asbestos and tobacco do not simply add together. They multiply: a person exposed to both carries a risk substantially greater than the sum of the two risks on their own. Which means a smoker with significant asbestos exposure is not the person least likely to have been harmed by asbestos. They are among the most likely.

Legally, the position is that asbestos does not have to be the only cause, or even the main one. It has to have caused or materially contributed to the condition. A defendant may raise smoking, and in some claims it can reduce the damages recovered. It is not, by itself, an answer to the claim.

Key Point

If you worked around asbestos and have been diagnosed with lung cancer, the fact that you smoked is a reason to have the question looked at properly rather than a reason not to ask.

What the medical evidence has to establish

The question for the specialist is whether asbestos caused or materially contributed to this particular cancer. The framework used internationally for answering it is the Helsinki Criteria, first set out in 1997 and refined since.

In broad terms, attribution to asbestos is supported where there is a cumulative exposure in the order of 25 fibre-years, or where asbestosis is present, or where markers of heavy exposure such as asbestos bodies or fibre counts are found in lung tissue. Pleural plaques on their own indicate exposure but are not, by themselves, taken to establish a dose sufficient to attribute a cancer.

Two things follow for a claim. The first is that the exposure history has to be detailed enough for an occupational physician to put a figure on cumulative dose, which is a different and more demanding exercise than establishing that someone worked around asbestos. The second is that where lung tissue or pathology has been retained, it can be examined, and it sometimes answers the question directly.

Latency is typically 15 to 40 years. By the time the cancer appears the exposure is long finished, which is the ordinary state of affairs in this area rather than an obstacle peculiar to your claim.

Silica and other dusts linked to lung cancer

Asbestos is not the only workplace exposure associated with lung cancer.

Crystalline silica is classified as carcinogenic to humans, and lung cancer is recognised among the conditions associated with silica exposure, particularly where silicosis is also present. Our silica disease page covers silica exposure generally.

Diesel engine exhaust is also classified as carcinogenic, which is relevant to underground mining, tunnelling, transport and plant operation. Coal mine dust exposure brings both silica and diesel particulate into the same working life, which is covered on the black lung disease page.

In practice many working lives involve more than one of these, and the exposure history is built across all of them rather than for one dust at a time.

Who is most often affected

The trades and settings are the same ones behind the other asbestos conditions, because the exposure is the same exposure.

Laggers, insulators, boilermakers, fitters, electricians, plumbers, carpenters and demolition workers. Power stations, refineries, shipyards, railway workshops, foundries and heavy manufacturing. Construction and maintenance on any building put up or refitted before the bans, including schools, hospitals and housing.

It also reaches people who never handled the material. Someone working alongside a trade that was cutting or stripping it, and family members exposed at home through work clothes carrying dust back from a site. The dust disease page sets out the four ways exposure happens.

Compensation claims for asbestos lung cancer

The structure is the same as any other dust disease claim, and most people use both routes.

A statutory workers’ compensation claim does not require proving fault, only that the condition is work-related. It covers medical treatment, income support and a lump sum tied to assessed permanent impairment. Our workers’ compensation page sets out how the Queensland scheme runs.

A common law damages claim requires establishing that an employer, occupier or manufacturer owed a duty of care, fell short of it, and that this caused the condition. It covers past and future economic loss, the cost of future care and treatment, and general damages, and it is where the substantial compensation sits.

Superannuation is the third piece and the one most often missed. Total and permanent disability and income protection cover are contractual entitlements that do not depend on fault, and a lung cancer diagnosis will frequently meet the definitions. Our TPD and superannuation page covers those.

Time limits

Time limits for asbestos-related conditions are generally the most generous in compensation law, because the law has had to accommodate diseases that appear decades after the exposure that caused them.

Queensland has no limitation period for a court claim for a dust-related condition, and the same is true in the Northern Territory and Victoria. New South Wales has no limitation period in its Dust Diseases Tribunal. Elsewhere a period applies but generally runs from when you knew, or ought reasonably to have known, that you had the condition and that it was connected to work, rather than from the exposure. The dust disease page carries the position for every state and territory.

Statutory workers’ compensation claims are tighter than court claims, and in Queensland the general position is six months from the relevant medical assessment or diagnosis. That is the deadline that catches people.

If the person has died

Where someone has died of lung cancer and asbestos exposure is suspected, a claim may still be available, brought by the estate for what the person lost before death or by dependants for what the death cost them. Time limits for those claims generally run from the date of death.

These claims turn on the same causation question, answered without the person’s own account of their work. Where a post mortem was carried out, or where imaging, pathology or retained tissue exist, the evidence of cause may still be available and can be decisive. Where it is not, the exposure history is reconstructed from employment and superannuation records and from people who worked alongside them.

It is worth asking even where lung cancer was recorded as the cause of death with no mention of asbestos, because in most cases nobody was looking for the connection.