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1
Civil Liability (Dust Diseases) and Other Legislation
Amendment Bill 2005
Civil Liability (Dust Diseases) and Other
Legislation Amendment Bill 2005
Explanatory Notes
General Outline
Objectives of the Legislation
The proposed legislation provides for amendments to a number of Acts to
improve procedures in dust-related personal injury claims. The proposed
legislation:
· Allows for awards of general damages to be made where the
plaintiff dies prior to final determination of the claim; and
· Clarifies the point in time at which knowledge of the nature and
extent of a personal injury will constitute a material fact of a
decisive character for the purposes of extending a limitation
period for the claim
The proposed legislation also provides for amendment of the Civil Liability
Act 2003, so far as it relates to the limit of damages that may be awarded
for economic loss in a personal injury claim, in response to the Supreme
Court decision in the matter of Doughty v Cassidy.
In addition, the legislation provides a clarification of the exceptions to
application of the Personal Injuries Proceedings Act 2002 to better reflect
the original intention of Parliament that a single claim will only be required
to proceed through one form of pre-court procedure.
Reasons for the objectives and how they will be achieved
The incidence of dust-related conditions affecting Queenslanders continues
to rise. These types of conditions have the potential to dramatically affect a
person's life, with some dust-related conditions causing death within a very
short time from diagnosis. In such instances, a claimant will not always be
able to complete the normal court processes prior to their death. This has
implications for the amount of damages awarded for the claim. Currently,
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Civil Liability (Dust Diseases) and Other Legislation
Amendment Bill 2005
where a claimant dies prior to judgment being given in the matter, their
claim for general damages ceases without any benefit to their estate. The
proposed amendment to the Succession Act 1981 allows the claim for
general damages to survive their death.
The diagnosis of dust-related conditions can be uncertain from a legal
perspective. Normally, the condition manifests a substantial time after the
actual exposure, requiring an extension of time to be sought under the
Limitation of Actions Act 1974. Also, more serious dust-related conditions
can start from lower level health problems, but this progression is not
always the case. As a result, when seeking an extension, argument can
ensue as to whether knowledge of the earlier health problems constitutes a
"material fact of a decisive character" for the purposes of the test under the
Act. The proposed amendment clarifies that the knowledge of the nature
and extent of the personal injury will constitute a material fact of a decisive
character when the person knows the dust-related condition will
significantly affect the person's amenities of life, or their life expectancy.
The decision of the Supreme Court in Doughty v Cassidy had the effect of
limiting the awards of damages that may be made for economic loss in
personal injury claims further than what was originally intended by
Parliament. The proposed amendment makes Parliament's original
intention clear given the decision.
The Personal Injuries Proceedings Act 2002 is proposed to be amended to
better reflect the original intention of Parliament that, where a person
makes a personal injury claim, then they will only be required to enter into
one pre-court procedure so far as a claim against an individual respondent
is concerned.
Administrative cost to Government of implementation
There is no administrative cost to government in implementation of the
provisions.
Consistency with Fundamental Legislative Principles
The proposed legislation provides for the retrospective application of the
amendments to the Succession Act 1981, the Limitation of Actions Act
1974, the Civil Liability Act 2003, and the Personal Injuries Proceedings
Act 2002.
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Civil Liability (Dust Diseases) and Other Legislation
Amendment Bill 2005
Consultation
Community
The Australian Lawyers Alliance, Bar Association of Queensland,
Queensland Asbestos Related Disease Support Society Incorporated and
the Queensland Law Society have been consulted on the proposed
amendments.
Government
The Department of Premier and Cabinet, Queensland Treasury through the
Office of the Insurance Commissioner on behalf of the Motor Accident
Insurance Commission and Queensland Government Insurance Fund, the
Department of Industrial Relations and WorkCover Queensland have been
consulted.
Notes on Provisions
Part 1 Preliminary
Clause 1 provides the short title of the Bill for citation purposes.
Clause 2 provides that Division 1 of Part 2 of the Bill is to amend the
Succession Act 1981.
Clause 3 amends section 66 of the Succession Act 1981 by inserting three
new subsections. Proposed subsection 2A amends the general principle in
section 66 that awards for general damages are not to be made where a
claimant dies prior to judgment of a claim. The proposed clause provides
that awards of general damages in a claim based upon the incidence of a
dust-related condition may be made after the death of a claimant in
circumstances where the claimant has filed the proceedings prior to their
death, and the person dies either as a result of the dust-related condition or
as a result of an incident which is related to or caused by the dust-related
condition. For example, where a person has both a heart condition and
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Civil Liability (Dust Diseases) and Other Legislation
Amendment Bill 2005
asbestosis, and they have commenced legal proceedings based upon having
contracted asbestosis, then an award of general damages will be awardable
if the person dies and the evidence provides the person has died at least in
part as a result of the asbestosis, such as where a person dies from a heart
condition made worse by asbestosis. The dust-related condition does not
have to be the primary cause of death, but the death must be connected to it.
Proposed subsection 2B ensures that an argument that a tobacco related
disease is within the definition of "dust-related condition" may not be
made. Proposed subsection 10 inserts the definition of "dust-related
condition" into section 66, referring to the definition contained within the
Civil Liability Act 2003 as being the definition for the purposes of the
Succession Act 1981. The proposed subsection also provides that the term
"personal injury" is interpreted so that it includes the contraction of a
disease.
Clause 4 inserts a new section 75 within the Succession Act 1981 to provide
that the amended section 66 has retrospective effect. That is, it does not
matter that the cause of action arose prior to the commencement of the
amendments. Proposed section 75 provides that the amendments apply to
all proceedings whether filed before or after the commencement of the
amended section 66 except for those which have been determined either by
way of settlement or court decision. It does not matter that the incident
occurred prior to commencement of the provision.
Clause 5 provides that Division 2 of Part 2 of the Bill amends the
Limitation of Actions Act 1974.
Clause 6 inserts a new section 30A in to the Limitation of Actions Act 1974.
The proposed new section provides that the material facts relating to the
nature and extent of the dust-related condition will not be decisive in
character unless they provide the person with knowledge, or it is within
their means of knowledge, that the condition will be a contributing factor to
significant loss of amenities, or expectation, of life.
For example, a person is diagnosed with pleural plaques on 2 January 1996.
At the time, the doctor states that, given the person's history of exposure to
asbestos, the person may develop asbestosis. On 2 January 2005 the person
is diagnosed with asbestosis, and advised that this disease will develop to
the point where it will significantly affect their life. The relevant time at
which there is a material fact of a decisive character for the purposes of the
proposed section 30A is 2 January 2005. A further example is where a
person is diagnosed with mild or an early form of asbestosis on 2 January
1996. At the time, the doctor states the disease may develop into a
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Civil Liability (Dust Diseases) and Other Legislation
Amendment Bill 2005
significant injury. On 2 January 2005 the person is informed the asbestosis
has deteriorated, and advised that this disease will develop to the point
where it will significantly affect their life. The relevant time at which there
is a material fact of a decisive character for the purposes of the proposed
section 30A is 2 January 2005.
Proposed subsection (3) ensures an argument that a tobacco related disease
is within the definition of "dust-related condition" may not be made. The
clause inserts the definition of "dust-related condition", referring to the
definition contained within the Civil Liability Act 2003 as being the
definition for the purposes of the new section.
Clause 7 provides the transitional arrangements for incidents that have
occurred prior to commencement of the proposed section 30A of the
Limitation of Actions Act 1974. The proposed section provides that,
irrespective of when the incident occurred, the amendments will apply to
all matters other than those which have either been dealt with finally by a
Court in its original jurisdiction, or have been settled or discontinued.
Clause 8 provides that Division 1 of Part 3 of the Bill amends the Civil
Liability Act 2003.
Clause 9 replaces section 54 of the Civil Liability Act 2003 in response to
the Supreme Court of Queensland decision of Doughty v Cassidy [2004]
QSC 366. In that decision, it was found a Court will normally be required
to undertake the following calculation to assess economic loss: A - B = C,
where A equals the total capacity lost expressed by reference to a period of
time, B equals the amount by which the total is to be reduced for various
factors relevant to the case, and C is the amount to be awarded for the
period of loss. The effect of the decision was to limit the amount the Court
could determine for A, and not to limit C as was intended when the
provision was originally passed.
The amendment provides that the limit of the amount to be awarded (C in
the above calculation) is to be an amount equal to the limit specified in the
current subsection (2). The limit is defined by reference to lost earning
capacity expressed as a capacity on a per week basis, and is 3 times average
weekly earnings per week (defined in Schedule 2 of the Civil Liability Act
2003). The limit is also expressed as the "present value" of that capacity,
meaning the value prior to being discounted on the basis a portion of the
amount would have been earned at some time in the future. Further, the
level of earning capacity retained will not affect the calculation.
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Civil Liability (Dust Diseases) and Other Legislation
Amendment Bill 2005
For example, a court determines that, pre-injury, a person had an earning
capacity of $500,000 per year. As a result of the injury, the person's
earning capacity is reduced to $300,000 per year. The total capacity lost is
therefore $200,000 per year. The court then determines that it would reduce
this amount by 15% on the basis of work history indicating a decline in
earnings to $170,000 per year. This is then further reduced by 5% for the
regular changes in life, leaving a total of $161,500 per year. If the average
weekly earnings per week at the time of judgment total $120,000 per year,
then the Court may award $120,000 per year only, and not the $161,500.
Further, if the Court determines that the person would have earned this
amount each year for the next 5 years, it would apply any discounting table
to the amount of $120,000 per year. The section does not require the Court
to assess an amount of loss for each and every week, although in
appropriate cases a court may continue to discern between different
capacities at different times.
The proposed section also amends the heading to section 54 to reflect the
fact earning capacity is a part of loss of earnings as a result of the definition
of that term within the Act.
Clause 10 inserts a transitional provision which provides the amended
method of limiting amounts to be awarded for economic loss is to be
applied to all awards of damages for economic loss made under the Civil
Liability Act 2003 after commencement of the provision, irrespective of
whether the incident occurred before commencement or not. The provision
is not intended to provide a party with a new right to increase their damages
for economic loss through an appellate process.
Clause 11 provides that Division 2 of Part 3 of the Bill amends the Personal
Injuries Proceedings Act 2002.
Clause 12 inserts a new subsection (2) in to section 6 of the Personal
Injuries Proceedings Act 2002 to reflect the original intention of
Parliament that claims against a party only be required to proceed through
one form of statutory pre-court procedure. In relation to personal injury
claims based upon a motor vehicle accident, where the injury suffered
comes within the term of "personal injury" or "accidental bodily injury" as
provided within the Motor Accident Insurance Act 1994 or the Motor
Vehicles Insurance Act 1936 (whichever is or was in force at the date of the
accident), the claimant is not required to proceed through the pre-court
procedure within the Personal Injuries Proceedings Act 2002 in relation to
the claim regulated by either the Motor Accident Insurance Act 1994 or the
Motor Vehicles Insurance Act 1936.
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Civil Liability (Dust Diseases) and Other Legislation
Amendment Bill 2005
In relation to personal injury claims based upon a work related accident,
where the injury suffered comes within the term of a injury as provided
within the Workers' Compensation and Rehabilitation Act 2003, the
WorkCover Queensland Act 1996, the Workers' Compensation Act 1990 or
the Workers' Compensation Act 1916 (whichever is or was in force at the
date of the accident), the claimant is not required to proceed through the
pre-court procedure within the Personal Injuries Proceedings Act 2002 in
relation to the claim to which either the Workers' Compensation and
Rehabilitation Act 2003, the WorkCover Queensland Act 1996, the
Workers' Compensation Act 1990 or the Workers' Compensation Act 1916
applies.
The differences in wording in each of proposed paragraphs (a) to (g) reflect
the differences in language and application of each of the respective pieces
of legislation commented upon within each paragraph. The example
provided for paragraph (c) is drafted to allow application of the
circumstances to each piece of workers' compensation legislation which
contains a pre-court procedure.
Clause 13 amends section 81 of the Act by ceasing the continuation of
section 51 of the Personal Injuries Proceedings Act 2002 as it was prior to
amendment by the Civil Liability Act 2003 and as commented upon in the
case of Doughty v Cassidy, to incidents that occurred prior to 9 April 2003.
Clause 14 inserts two transitional provisions in to the Personal Injuries
Proceedings Act 2002. The first, proposed section 83, deals with instances
in which one claimant is currently proceeding against one respondent
through both the pre-court procedure under the Personal Injuries
Proceedings Act 2002, and under either relevant workers' compensation or
motor vehicle accident legislation. The effect of the clause is to stay the
pre-court procedure, or the portion of it against that respondent, under the
Personal Injuries Proceedings Act 2002, with the intention that the
procedure or proceedings commenced under the other piece of legislation
be completed. Any costs incurred under the stayed procedure which would
be claimable under the stayed procedure are then claimable under the
procedure which is continued. The stay may be lifted by a Court where the
other procedure is incorrectly continued, and the Court considers it
appropriate to complete the stayed procedure.
The second provision inserted, proposed section 84, clarifies that the prior
application of the former section 51 of the Personal Injuries Proceedings
Act 2002, as it was prior to its repeal by the Civil Liability Act 2003 on 9
April 2003, will no longer apply to any assessment of economic loss in a
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Civil Liability (Dust Diseases) and Other Legislation
Amendment Bill 2005
personal injury claim. Section 54 of the Civil Liability Act 2003, as
amended by this Bill, will apply to those incidents in which judgment or
final determination has not been made, no matter when the incident
occurred. It will not allow an appeal court to amend the amount awarded at
first instance.
Clause 15 amends the Dictionary in Schedule 2 of the Personal Injuries
Proceedings Act 2002 by omitting a redundant definition.
© State of Queensland 2005