Chapter 6 - Compensation
Access to compensation
6.1
Access to compensation as a result of workplace
exposure to toxic dust is a complex issue. All Australian workers, excluding
employees of the Commonwealth who are covered by the Safety, Rehabilitation and Compensation Act 1986, may access workers'
compensation via separate legislation in every State and Territory as well as
having the ability to apply for compensation under common law entitlements. The
lack of a uniform compensation system results in inconsistent application of
legal standards and precedence in compensation proceedings. The Australian
Manufacturing Workers Union (AMWU) stated:
The predominant difficulty we have with [dust-related
compensation] claims is the definition of what is eligible under workers
compensation schemes, where the definition will be a significant and contributing
factor related to people's work. For instance, there are issues around how much
someone's work contributed versus how much someone's cigarette consumption
contributed et cetera. We have dealt with that and sorted that out much better
in the asbestos area, just because we have killed so many people. We do not
know how that all works out in terms of other toxic dusts. That is very
difficult to work out. There are problems about eligibility. There are then
problems about causation and we do not know who has been exposed and all of
those things...[242]
6.2
The NSW Government established the Workers'
Compensation (Dust Diseases) Board, a statutory authority that grants awards of
compensation to all persons disabled for work as a consequence of a dust
disease reasonably attributable to exposure to the inhalation of dust in a NSW
occupation. Compensation may also be available to the dependents of these
victims and their widows.
6.3
As well as compensation under the Workers' Compensation (Dust Diseases) Act 1942, victims of dust
diseases may be entitled to damages at common law. Those claims are conducted
before the Dust Diseases Tribunal of NSW, a highly specialised tribunal that
deals solely with diseases caused by dust.[243]
6.4
In Victoria,
the Victorian Accident Compensation Act
1985 provides compensation for persons who have sustained an injury or
health condition due to workplace injury or exposure. The Victorian Workcover
Authority stated that 'the onset of a work-related disease (resulting from
exposure to toxic dust) is treated no differently from an acute injury. Injured
persons are entitled to be compensated for loss of earnings and medical
expenses and also have common law rights that can be exercised'.[244]
6.5
In November 2005, the Dust Diseases Bill was introduced
into the South Australian Parliament. The Bill
provided for a new regime for compensation for people injured as a result of
dust disease, defined in the Bill as including
asbestos related diseases or other diseases or pathological conditions
resulting from exposure to dust. Following amendments, both in the Legislative
Council and the House of Assembly, the operation of the Act was restricted
solely to diseases resulting from exposure to asbestos.[245] Workers affected by exposure to
other dusts will remain covered by the South Australian Workers Rehabilitation and Compensation Act 1986.[246]
6.6
The AMWU provided the following comments on the
Workers' Compensation (Dust Diseases) Board:
The current common law damages system that operates in New
South Wales through the Dust Diseases Tribunal of New
South Wales (the Tribunal) has been acknowledged as "world's best
practice" by numerous commentators. Accordingly, extensive reform of the
existing system for compensating victims of dust disease through the Tribunal
is...both unnecessary and inappropriate.[247]
6.7
The Dust Diseases Board of NSW has been commended for assisting
workers to gain compensation for exposure to toxic dust. However, Dr
Thomas Faunce, Senior
Lecturer at the Medical School
and Law Faculty, Australian National
University and the Construction,
Forestry, Mining and Energy Union (CFMEU) highlight some restrictions of this
State-based model:
Although organisations such as the Dust Diseases Board in New
South Wales have done a good job and have a certain amount of money to fund
resources, obviously that is limited by the financial restrictions of the fact
that it is just a state.[248]
Authorities such as the Dust Diseases Board of NSW are
instrumental in gaining compensation for workers. However, they are able to help only if the
worker approaches them.[249]
6.8
The complexity surrounding State-based compensation
schemes is confirmed by Dr John
Bisby's, a consultant on Medical, Toxicology
and Control Systems representing Cement Concrete and Aggregates Australia,
statement on dust monitoring and medical testing processes:
The Dust Diseases Board has various functions. They have a
branch that does medical testing of workers. The WorkCover Authority of New
South Wales has people who do dust monitoring, so
both are done in New South Wales.
To a certain extent this applies in all states. Each state really organises
things differently. For example, Western Australia
has regulations that require slightly different medical testing to any of the
other states - and, indeed, different to the Commonwealth national
recommendations. All X-rays in Western Australia
go to the state government and they are reviewed medically at the state level,
which I do not think happens in any other state.[250]
6.9
To reduce the inconsistencies in each State, the
Australian Sandblasting Diseases Coalition (ASDC) recommended the creation of a
national regulatory body, a National Toxic Dust Diseases Board. This board
would investigate, adjudicate and where appropriate provide financial
compensation for employees and their families whose health has been adversely
affected by toxic dust diseases.
6.10
The ASDC further recommended that the:
National Toxic Dust Diseases Board would apply standards
established on the best available scientific evidence by medical and
epidemiological experts. In addition to this, the regulatory body would be in
charge of distributing funds from the responsible employer corporations, to
compensate for any medical, or other financial expenses, incurred by toxic dust
associated diseases.[251]
6.11
The ability to seek compensation for exposure to toxic
dust in the workplace is at times restricted by an employer structuring its
corporate identity to protect assets from legal action and minimise liability.
The AMWU provided this example:
James Hardie
exploited the Corporations Act for its own purposes. Unfortunately this
practice has become all too common. The AMWU is aware of both large and small
corporations who put in place asset protection schemes which result in their
employees, or victims and potential victims as the case may be, being unable to
access the full and true assets and resources of the company in the event that
the company enters administration or liquidation.[252]
6.12
Dr Faunce
recommended that the Committee consider the compensation improvements which are
coming out of the British coal dust inquiry in terms of making it much more
science based. Dr Faunce
explained:
The long latency periods of silica are similar to asbestos, even
though it is only a small aspect of the inquiry. All of these things create
capacity for companies that want to avoid liability, to delay actions, to wait
until people die, to obfuscate, to put on delay motions and to keep pushing
things away because of this long period. We need to have a compensation system
that does not facilitate that sort of tactical gaming by an industry that does
not want to pay compensation.[253]
6.13
Accessing compensation for a work related exposure to
toxic dust is often confounded by a worker having a prior history of cigarette
smoking. The Committee heard from many witnesses on the effect of cigarette
smoking when determining compensation claims for respiratory illness from workplace
exposure to toxic dust.
Over the past ten years Coal Miners Insurance (CMI) has not seen
any cases of lung disease consistent with exposure to respirable coal dust or
silica. The issue of workers' compensation for health effects from these two
dusts is greatly confounded by self-inflicted exposures such as smoking.[254]
One of the main areas of controversy in this area, responsible
for denying compensation, involves health problems such as asthma, silicosis,
emphysema or excess sputum being ascribed exclusively to uncompensable
cigarette smoking in workers with that history, regardless of exposure to toxic
dust. This conclusion is not in accordance with the best recent scientific
evidence or the approach emerging from the recent UK
coal mining disease litigation and enquiry.[255]
6.14
The Committee notes the evidence provided by Dr
Faunce on a British coal compensation case
where the court recommended an approach to addressing the effect of cigarette
smoking in toxic dust claims:
Disability in a toxic, dust-exposed cigarette smoker should not
be regarded for compensation purposes as if it were entirely due to one cause
or the other. Rather, [during the British coal litigation] the court decided
that it should attempt to estimate as far as possible the contribution of each
cause and then award compensation proportionally. A related recommendation was
that compensation should prima facie be paid to any worker with chronic
obstructive airways disease who had worked underground for 20 years in
coalmining. But you could apply that to 20 years in sandblasting, even in the
absence of pneumoconiosis on a chest X-ray. In other words, if you work in
sandblasting for 20 years you are entitled to compensation if you have
something wrong with your lungs. You do not have to go through this process.
That is one approach that at least needs to be considered.[256]
6.15
To assist workers with the complexity as well as reduce
the traditional adversarial nature of common law actions, Professor
E Haydn Walters
commented on the option of establishing a neutral expert panel to aid workers'
access to compensation.
In these situations, it is always difficult if you are
advocating for somebody. I think it would probably be much better if the courts
in some way could have a fairly neutral group who could try to dissect these
issues. As you say, it is complex...A professional body, perhaps, which could
give information to the courts, and perhaps in a neutral way to the plaintiffs
themselves, would be quite useful...I think what you need is not confrontation
with people being hired on one side or the other; what you need is neutral professional
commentary from people who are aware of all the facts.[257]
Limitations in seeking legal redress
6.16
All Australian States have Limitations of Actions
legislation which limit the time within which proceedings can be issued in
relation to claims for damages for personal injuries. Limitation legislation is
intended to prevent a plaintiff from taking an unreasonable length of time to
commence proceedings to enforce a right or rights claimed by the plaintiff.
6.17
The ASDC noted that for cases where exposure to dust
have occurred in NSW, there is no statute of limitation. If the exposure to
dust occurred in other States, then the limitation laws of those States will
apply.[258] As silicosis has a latency
period of anywhere between 10 to 30 years, this could dramatically effect
the outcome for employees across Australia
affected by the exposure of toxic dust and negligent work
practices/regulations. The ASDC recommended that the Senate establish a
regulatory body to allocate compensation claims nationally for those employees
affected by toxic dust related diseases.[259]
6.18
Each jurisdiction in Australia
now has a provision that allows for a limited extension of time in certain
circumstances for civil claims. The circumstances in which extensions will be
granted are, however, extremely restrictive in most jurisdictions. Generally a
number of factors must be considered before leave can be given to issue
proceedings out of time. These include the reasons for the delay, the prejudice
that the defendant has suffered by the delay and the merit of the substantive
claim.
6.19
Applications for an extension of time within which to
issue proceedings are costly (in the range of $10 000 to $15 000 for
each side) and there is no guarantee that leave to issue proceedings will be
granted. If the application is unsuccessful, the applicant in addition to his
or her own legal costs will be liable for the other side's legal costs.
6.20
Mr Fraser
Hobday provided an example of problems in Western
Australia with Statute Limitations and applications for
extensions.
The proposal to change the current Limitations Act may assist
some toxic substance victims, but the WA State Solicitor's Office argues
against full discretionary extension powers to the judiciary that are exercised
in nearly all other Australian States. So in this case, only plaintiffs that
fit the fixed criteria will be granted an extension of time from a 3-year
limitation period.
Unfortunately this will prevent the judiciary from being
informed of all the reasons causing delay and acting in any discretionary
manner. Therefore circumstances will arise where plaintiffs would have
legitimate cause for a damages claim in other states in Australia,
but not WA.[260]
6.21
The Australian Lawyers Alliance (ALA) identified the main
barriers to legal redress for workers injured as a consequence of workplace exposure
to toxic dust:
- the inadequacy of workers compensation benefits
(including limits on compensation, inadequate provision for lump sums for
permanently disabled workers and recovery of only a percentage of usual weekly
income);
- the statutes of limitation;
- thresholds to the access of common law benefits
both in employee and public liability claims (insofar as such claims are
work-related through the use of defective products or injury at the premises of
others);
- that damages available to an injured worker in
lifetime do not enure for the benefit of their estate or dependants after
death; and
- the abolition of claims for exemplary damages.[261]
6.22
One barrier encountered by many witnesses when claiming
compensation for occupational toxic dust exposure included the high cost of
legal representation and process. The AMWU suggested that:
Necessary reforms should be directed to improving the delivery
of damages to victims of dust disease in the most timely and cost effective
manner possible. Procedures should be streamlined so as to reduce legal costs.
The reduction of legal costs in the processing of compensation claims is a
fundamental principle that UADFA supports. A reduction in legal costs, long
term, maintains the pool of money available to compensate victims of dust
disease. UADFA's primary aim is to ensure that the pool of money necessary to
compensate victims remains available indefinitely into the future.[262]
Alternative models of financial support
6.23
The Dust Diseases Board offers compensation to two
types of categories of injured worker applicants including those still working
and those who have retired. Retired workers certified by the Board as being
disabled by a dust disease as a result of employment in New
South Wales receive a compensation payment for the
actual disability suffered, rather than for loss of earnings caused by the dust
disease. These workers are paid according to the level of disability
experienced, as assessed by the Medical Authority. Workers who are below retirement
age or still in the workforce and who have been certified as being disabled by the
dust disease will be paid according to the economic loss suffered.
6.24
Workers are entitled to receive weekly benefits which
include an amount to acknowledge dependants as well as medical, hospital,
ambulance, home care, palliative care and any other associated costs reasonably
and properly incurred in the treatment of a dust disease.
6.25
The weekly amount varies, according to degree of
disability, as certified by the Medical Authority. This normally ranges from 10
per cent disablement to 100 per cent disablement and is based upon the medical
evidence provided. The Dust Diseases Board has a policy of reviewing the
medical condition of all workers on a two to three year basis to monitor the
level of their disability and ensure that the correct compensation entitlements
are being distributed. Workers whose condition has deteriorated and who are
able to produce supporting medical evidence can have their level of disability
reviewed by the Medical Authority at their request.[263]
6.26
Mr Richard
White recommended a compensation scheme
based on the 'Bernard Collaery
model, which is basically the Veterans' Affairs model, including pension and
entitlement with lump sum and flow-on entitlements that go with that'.[264]
6.27
The ACTU provided the following comments relating to alternative
models of financial support:
Statutory benefit schemes must be adequate to compensate workers
for loss of income, medical expenses and ongoing care, dependants’ support,
travel, funeral and other expenses as well as projected superannuation
entitlements up to retirement age. The provisions contained in statutory
schemes ought to ensure that a claimant is entitled to weekly payments of
compensation for total incapacity in situations where a worker may have some
residual capacity for work like activity but is genuinely unable to obtain
suitable employment.
In addition most schemes provide for lump
sum payments for permanent impairment. It is critical to ensure that the assessment
methods utilised by Compensation Schemes adequately assess the extent of
impairment and disability. Most schemes rely on the various editions of the
American Medical Association Guides for the Evaluation of Permanent Impairment.
These Guides are notorious for under assessment of respiratory conditions
(other than for advanced conditions). Modification of the Guides, as is
currently under consideration in Victoria, may be necessary.[265]
6.28
The Committee discussed the value of having a scheme to
compensate people for their medical expenses associated with getting diagnoses
and treatment when they have been exposed to toxic dust. Mr
Nickolas Karakasch,
who has worked in sandblasting and protective coating industry for 40 years,
supported the idea of such a scheme and stated:
At the moment it is a very long drawn-out process. The legal
profession probably rub their hands and make a lot of money out of it, but if
you can take that aspect out of it – there will always be the legal profession
involved but I think that is a good idea – that would short-circuit all of
these long delays, grief and heartache imposed on individuals and families
associated with this sort of litigation.[266]
6.29
The ALA
provided their opinion on an alternative model of financial compensation being a
levy scheme which would include no-fault arrangements and limited compensation
paid to affected workers. The ALA
stated:
As a fall-back, if all the other potential areas of compensation
were exhausted without being able to be accessed and a worker was then left
only with an ability to access medical costs because of the problems in
accessing compensation, then I think it has merit. But there is no doubt the
best means of addressing compensation is a combination of a statutory scheme
and common law entitlements, which have been significantly restricted in recent
years but, nonetheless, still serve a useful purpose.[267]
6.30
Workers who become ill after working in occupations
exposing them to toxic dust face many issues. Perhaps the most pressing are the
need for accurate diagnosis, appropriate treatment and the ability to access a
consistent, fair and clear compensation process. Evidence suggests that access
to compensation for toxic dust exposure is difficult and vastly different
depending on the State in which the claim is made. Various limitations, not
only legislatively, exist to prevent access to compensation. A further factor
causing confusion for these workers, who require help and need assistance, is
the fact that a number of models for financial support exist. Each of these
models differ in the way they compensate either the worker or their dependents
for economic loss, non-economic loss, treatment and medical costs as a result
of occupational exposure to toxic dust. There is a compelling case for
compensation mechanisms to be available other than through litigation, and in
circumstances that are more nationally consistent.
Recommendation 9
6.31
That State and Territory Governments move as soon as
possible to set up nationally consistent identification, assessment and
compensation mechanisms for persons affected by workplace related exposure to
toxic dust and their families to at least the current New South Wales standard.
Recommendation 10
6.32
That the State and Territory Governments use the New
South Wales Workers'
Compensation (Dust Diseases Act) 1942 as the model for this mechanism.
Recommendation 11
6.33
That the State and Territory Governments, other than
New South Wales, move as soon as possible to adopt the approach of New South
Wales to remove statutes of limitation that restrict legal proceedings for
claims for personal injuries resulting from exposure to toxic dust.
Navigation: Previous Page | Contents | Next Page