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A Wollongong firm accused of providing negligent advice to a man who allegedly died as a result of silica exposure in his workplace has failed to have the case removed from the Dust Disease Tribunal.
The wife of a truck driver and concrete batcher who allegedly died of complications from inhaling dust that contained silica has accused Nikolovski Lawyers of providing negligent advice around a potential common law claim against his former employer, Boral.
In her statement of claim, the wife alleged Nikolovski Lawyers told the employee in September and November 2019 that he was unable to pursue the claim because he was not suffering from a dust disease within the meaning of the Dust Diseases Tribunal Act 1989 (DDT Act).
It is based on this advice that the employee did not pursue Boral for the common law claim prior to his death in October 2022.
While the disease of scleroderma did not fall within the act around this time, Nikolovski Lawyers had in its possession a medical assessment panel certificate from icare Dust Diseases Care that stated it was “caused by dust” and “may also cause a dust disease”.
On that basis, the employee’s condition fell within the second limb of the definition of “dust-related condition”, and so the firm allegedly had some evidence “that scleroderma was a pathological condition of the lungs, pleura or peritoneum” and was thus compensable.
Judge David Russell SC of the Dust Disease Tribunal added that Nikolovski Lawyers could have made the alternative case that the employee suffered from a pathological condition of the lung, and thus he was able to bring a claim under the DDT Act.
In a notice of motion filed in the Dust Disease Tribunal on 24 April, Nikolovski Lawyers sought to challenge the tribunal’s jurisdiction.
In the alternative, the firm sought to have the statement of claim struck out because no reasonable cause of action is disclosed, or for having a tendency to cause prejudice, embarrassment, or delay.
Nikolovski Lawyers “completely failed” on its amended notice of motion challenging jurisdiction and “almost completely failed” on its application to strike out the statement of claim, save for one paragraph that was readily acknowledged by counsel for the wife.
On the jurisdictional issue, Nikolovski Lawyers’ counsel, James Sheller SC, said there was “no overlap of damages” between the claim against Boral and the claim against the firm, and the pleading did not make it clear whether both claims were ancillary or related.
While that was correct, Judge Russell said that was “the whole point of the action against Nikolovski … the plaintiff alleges that the estate lost the right to claim three heads of damage against Boral, because of inadequate advice provided by Nikolovski”.
Sheller’s submission that no legal representation of Nikolovski Lawyers could have any role in the hearing of the matter involving Boral “and vice versa” was also rejected, with Judge Russell finding the firm would have “every right” to participate in the claim against Boral and challenge allegations made by the wife against Boral.
“For example, if Boral presented no evidence in relation to whether or not [the employee] was exposed to silica dust, Nikolovski would be perfectly entitled to present such evidence,” Judge Russell said.
Judge Russell also identified the common facts the wife would need to prove her claim against Boral and Nikolovski Lawyers, including the state of her husband’s employment, whether the disease was due to Boral’s alleged negligence, and any alleged loss of earnings.
The tribunal also considered the medical certificate evidence.
“Even if scleroderma were to be regarded as a non-dust-related injury because it did not fall within either limb of the definition of ‘dust-related condition’ … a claim in relation to scleroderma could be brought … because there were other diseases and conditions suffered by [the employee],” Judge Russell said.
Citation: Sullivan v Nikolovski Lawyers Pty Ltd [2026] NSWDDT 5.
