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Other Parliamentary SpeechesThis page is dedicated to Peter's speeches during parliament that do not fall under Questions or Questions without notice. They range from debating legislation, reporting on events or issues in his seat of Southport and his Ministerial Statements.
Civil Liability (Dust Diseases) and Other Legislation Amendment Bill |
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| Posted by Administrator (admin) on Sep 29 2005 |
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Mr LAWLOR (Southport-ALP) (11.51 am):
The Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 amends four pieces of legislation: the Succession Act 1981, the Limitation of Actions Act 1974, the Civil Liability Act 2003 and the Personal Injuries Proceedings Act 2002. I intend to address briefly the effect of this legislation on the first two of those acts.
The amendments to the Succession Act and the Limitation of Actions Act are amendments that relate to dust diseases and are focused upon assisting victims of dust related conditions, such as asbestosis and mesothelioma. It is expected that the incidence of diagnosis of these diseases will peak between 2015 and 2025. Most claims made in relation to these conditions are made by workers. However, the number of claims made by partners or children of workers is increasing. The rise in the popularity of do-it-yourself home improvements may also result in an increase in the number of people contracting dust diseases. I should be pretty safe, because I think that I am probably the most useless handyman in the world, but certainly in Australia.
There are two characteristics that distinguish these diseases from other diseases or injuries that may result in personal injuries claims. Firstly, these diseases usually become apparent only 20 to 30 years after exposure to dust. Secondly, the disease may result in the death of an individual within a short time-a few months, maybe even weeks. Prior to diagnosis, there may be very few symptoms. The illness of a friend of mine fitted neatly into these criteria. Several years ago, at the age of 40, he died of mesothelioma. At the time he had a young family. He was a carpenter and he believed that he contracted the disease by coming into contact with asbestos when he was a young apprentice. He built silos in western New South Wales. In those days it was the apprentice's job to cut up the fibro that they used to build the silos. Of course, at that time the danger of asbestos was unknown-or certainly unknown to the general population.
Mr Wilson: Unknown to the workers.
Mr LAWLOR: That is right. It was unknown to the workers. It was well known to Hardie and other companies, but it was unknown to the workers. Therefore, there were no precautions taken, such as the wearing of masks or goggles. Under the existing legislation, some inequities can arise between personal injuries claims that are dust disease based as opposed to other types of personal injury claims.
The amendments made to the Succession Act relate to awards for general damages and the amendments made to the Limitation of Actions Act relate to whether an extension of the limitation period can be granted. Presently, under section 66 of the Succession Act, if a claimant commences proceedings but dies before final judgment no award for damages can be made. Given the virulence of these diseases, that often happens. That even encourages defendants not to settle. If they can spin out an action for some length of time, they may be able to avoid having to pay general damages altogether.
The proposed amendments will rectify this anomaly. An award for general damages will be permitted where an action is commenced but not finalised prior to the death of a claimant. In these circumstances, the general damages, together with all the other damages claimed under the other headings, will go to the estate of the deceased.
A claim for damages for personal injury must be commenced within three years from the date on which the cause of action arose pursuant to section 11 of the Limitation of Actions Act. However, pursuant to sections 30 and 31 of that act, the court may extend this time limit to a date one year after the discovery of 'material fact of a decisive character'. Because of the nature of dust related illnesses, that is, the uncertainty about the progression of the disease and also the time at which it can be diagnosed, it is difficult to identify the time the 'material fact of a decisive character' arises. Therefore, questions arise as to whether a low-level or a high-level condition is the 'material fact of a decisive character'.
The proposed amendment to the Limitation of Actions Act will remove this hurdle by providing that a 'material fact of a decisive character' is one by which a claimant becomes aware that the dust diseases 'is, or will be, a contributing factor to significant loss of amenities, or expectation, of the person's life'. I commend the bill to the House. Last changed: [PUBLISHED_DATE] at 12:00 AM
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