Dust disease lawyers for asbestos, silica and coal dust claims

What counts as a dust disease

A dust disease is a condition caused by breathing in harmful dust or fibres, almost always at work and almost always over a long period. The dust is fine enough to reach the deepest part of the lung, where the body cannot clear it. What follows is inflammation and then scarring, and scarring does not reverse.

Three dusts account for most claims in Australia. Asbestos fibres, from insulation, lagging, cement sheeting, brake linings and hundreds of other products used before the bans. Respirable crystalline silica, from cutting, grinding or polishing engineered stone, concrete, brick, tile and natural stone. Coal mine dust, from underground and open cut coal mining, which also carries silica from the surrounding rock.

What these conditions have in common matters more than what separates them. The exposure is historical. The diagnosis arrives years or decades later. By the time anyone is looking for an explanation, the worksite has been demolished, the employer may have been wound up, and the people who could describe the conditions have scattered or died. None of that necessarily bars a claim or makes it impossible to pursue, but that gap is the defining feature of this area of law, and it is why these claims are run by people who do only this.

The conditions the firm acts on

Several of these conditions can arise from the same working life. A person who spent thirty years in construction may have been exposed to asbestos in the 1980s and silica in the 2000s, and a coal mine worker is routinely exposed to both coal dust and silica in the same shift. A full work history is not a formality. It is often the thing that decides which claims exist and against whom.

Why dust disease claims run differently

An ordinary compensation claim has a date. Someone fell, or a car hit them, and the question is what happened on that day and who was responsible. A dust disease claim has no such date, and almost everything about how it is run follows from that.

The exposure is spread across years and often across employers. Liability may be shared between an employer, the occupier of a site the worker was sent to, a labour hire company, and the manufacturer or supplier of the product itself. Records that would settle the question in an ordinary claim, such as a site diary or an incident report, were never created, because nobody treated breathing as an incident at the time.

The medicine is also different. Causation in a dust claim is a question of whether the exposure caused or materially contributed to the condition, and answering it takes a respiratory or occupational physician who works in this field and is prepared to explain their reasoning in court.

And the timeframes cut both ways. The law is generally generous about when a claim can be brought, because it has to be. But some of these conditions progress quickly once they appear, and that changes how a claim is run in practice rather than in theory: expedited listing, evidence taken early, and decisions about timing made with the person’s health in front of you rather than the calendar.

The two ways dust disease compensation is claimed

There are two routes, they are not alternatives, and most people with a work-related dust disease use both.

A statutory workers’ compensation claim is the no fault route. You do not have to prove anyone did anything wrong, only that the condition is work-related. It covers medical treatment, income support while you cannot work, and in most schemes a lump sum tied to an assessed degree of permanent impairment. It is the faster of the two and it is usually lodged first, because it puts support in place while everything else is still being worked out. Our workers’ compensation page sets out how the Queensland scheme runs.

A common law damages claim is the fault route. It requires establishing that an employer, occupier or manufacturer owed a duty of care, breached it, and that the breach caused the condition. It is slower and harder, and it is where the substantial compensation sits, because it can cover past and future economic loss, the full cost of future care and treatment, and general damages for the effect on your life.

There is a third source people often forget. Superannuation commonly includes total and permanent disability and income protection cover, and those are contractual entitlements that do not depend on anyone being at fault. They are frequently payable on a dust disease diagnosis and they are frequently never claimed. Our TPD and superannuation page covers how those run.

Where the exposure happened in the course of employment, the statutory claim and the common law claim interact, and in Queensland the statutory process has to reach a particular point before a common law claim can be started. Getting the order right matters, which is the main argument for advice early rather than late.

Dust disease time limits in each state

Two things are worth drawing out of that table.

The first is that “no limitation period” is not the same as no urgency. Evidence decays whether or not the law has a deadline, and the witnesses who can describe a 1979 worksite are not getting easier to find.

The second is provisional damages, which is the single biggest reason the state matters. Where they are available, a person can be compensated now for the condition they have while keeping the right to come back if a further condition develops later from the same exposure. Where they are not available, the claim is generally resolved once and for all, and the decision about when to settle becomes a much heavier one.

State by state detail sits on the location pages: New South Wales, Victoria, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory.

Proving exposure decades after it happened

This is the part of a dust disease claim that takes the most work and the part most people assume is impossible.

It starts with your own account, taken in detail. Not job titles, but tasks: what you cut, what you pulled out, what the air looked like, whether there was extraction, what you were given to wear and whether anyone checked that you wore it. People routinely underestimate how much they remember until someone asks the right questions.

Around that goes documentary work. Superannuation and tax records establish who employed you and when, often more reliably than memory. Group certificates, payslips, union records and training cards fill gaps. Product and manufacturer records can establish what a particular material contained and when that was known. Company records establish who owned a site and who insured them.

Then there are the people. Co-workers can corroborate conditions, and a statutory declaration from someone who stood next to you is powerful evidence. For claims involving someone who has died, that evidence may be the only first-hand account available, which is a strong reason not to wait.

Expert Tip

Before you do anything else, write down every employer you can remember, the rough years, the sites, and what you actually did on each one. Do it while it is in your head. That single document shortens the investigation more than anything else you can provide.

Where the firm acts on dust disease claims

Dust disease is the one part of the practice the firm runs nationally rather than only in Queensland. That is a deliberate response to how these claims work: exposure histories cross borders, people move interstate during their working life and again when they retire, and the right place to bring a claim is frequently not where the person now lives.

Martin Rogalski has run dust disease matters since 2008 in the District and Supreme Courts of Queensland, the Supreme Court of New South Wales, the Dust Diseases Tribunal of New South Wales and the Supreme Court of Victoria, and on appeal in the Queensland Court of Appeal and the New South Wales Court of Appeal. Where someone is too unwell to travel, the firm travels to them.

General compensation work, meaning workers’ compensation, motor vehicle accidents, public liability, TPD and medical negligence, is Queensland based, and run for clients across the state including Brisbane.

When a family member has died

Where someone has died of a dust disease, a claim may still be available, brought by the estate for what the person lost before they died, or by dependants for what the death cost them. These are separate causes of action with their own rules, and their time limits generally run from the date of death rather than from diagnosis.

Two things make these claims harder, and both are reasons to ask sooner rather than later. If no claim was started during the person’s lifetime, their own account of the work was never recorded, and it has to be reconstructed from employment records and from people who worked with them. And the medical evidence has to establish the cause of death, which is more straightforward where a death certificate or autopsy names the condition and much harder where it does not.

It is still worth asking where no claim was ever made, where the death was years ago, or where the family was told at the time that nothing could be done.