ASBESTOS DISEASES COMPENSATION BILL 2008
PARLIAMENT OF VICTORIA Asbestos Diseases Compensation Bill 2008 TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 1 1 Purposes 1 2 Commencement 2 3 Definitions 2 PART 2--PROVISIONAL DAMAGES FOR ASBESTOS- RELATED CONDITIONS 3 4 Provisional damages for asbestos-related conditions 3 5 Only one subsequent award of damages for asbestos-related condition permitted 4 6 Regard may be had to initial award of damages 4 7 Regard must be had to legal costs incurred in initial action 4 8 Transitional provision 5 PART 3--AMENDMENTS TO ACCIDENT COMPENSATION ACT 1985 6 9 New Division 9B inserted in Part IV 6 Division 9B--Actions by workers with asbestos-related conditions 6 135BB Actions by workers with asbestos-related conditions 6 10 New Division 11 inserted in Part IX 8 Division 11--Asbestos Diseases Compensation Act 2008 8 300 Section 135BB 8 11 Repeal of Part 8 561284B.I-7/10/2008 i BILL LA INTRODUCTION 7/10/2008
Clause Page PART 4--AMENDMENTS TO WRONGS ACT 1958 9 12 Assessment of damages 9 13 New section 23AE inserted 9 23AE Transitional for assessment of damages 9 14 Repeal of Part 10 ENDNOTES 11 561284B.I-7/10/2008 ii BILL LA INTRODUCTION 7/10/2008
PARLIAMENT OF VICTORIA Introduced in the Assembly Asbestos Diseases Compensation Bill 2008 A Bill for an Act to permit the awarding of provisional damages to persons suffering from asbestos-related conditions, to amend the Accident Compensation Act 1985 in relation to actions relating to asbestos-related conditions, to amend the Wrongs Act 1958 in relation to dependants' claims for damages arising from deaths caused by dust-related conditions and for other purposes. The Parliament of Victoria enacts: PART 1--PRELIMINARY 1 Purposes The main purposes of this Act are-- (a) to permit the awarding of provisional 5 damages to persons suffering from asbestos- related conditions; and 561284B.I-7/10/2008 1 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 1--Preliminary s. 2 (b) to amend the Accident Compensation Act 1985 in relation to proceedings relating to asbestos-related conditions; and (c) to amend the Wrongs Act 1958 in relation to 5 dependants' claims for damages arising from deaths caused by dust-related conditions. 2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 10 3 Definitions (1) In this Act-- asbestos-related condition means-- (a) asbestosis; or (b) asbestos induced carcinoma; or 15 (c) asbestos-related pleural diseases; or (d) mesothelioma; injured person means a person who is suffering from, or has suffered from, an asbestos- related condition; 20 subsequent action means an action for a subsequent award of damages for an asbestos-related condition; subsequent award has the meaning set out in section 4. 25 (2) In this Act, a condition evidenced solely by the presence of pleural plaques is not an asbestos- related condition. __________________ 561284B.I-7/10/2008 2 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 2--Provisional Damages for Asbestos-related Conditions s. 4 PART 2--PROVISIONAL DAMAGES FOR ASBESTOS- RELATED CONDITIONS 4 Provisional damages for asbestos-related conditions If it is proved or admitted in an action for 5 damages in respect of an asbestos-related condition that the injured person may at some time in the future develop another asbestos-related condition wholly or partly as a result of the act or omission giving rise to the cause of action, the 10 court may-- (a) award, in the first instance, damages for the asbestos-related condition assessed on the assumption that the injured person will not develop another asbestos-related condition; 15 and (b) award damages at a future date if the injured person does develop another asbestos-related condition (the subsequent award). Note 20 A claim by an injured person for damages for an asbestos-related condition may involve an injury to which-- (a) the Workers Compensation Act 1958 applies, if the injury arises out of, or in the course of, the injured person's employment before 4 p.m. on 31 August 1985; 25 (b) the Accident Compensation Act 1985 applies, if the injury arises out of, or in the course of, or was due to the nature of, the injured person's employment on or after 4 p.m. on 31 August 1985; (c) the Wrongs Act 1958 applies, if the injury did not arise out 30 of or in the course of, or was not due to the nature of, the employment of the injured person. 561284B.I-7/10/2008 3 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 2--Provisional Damages for Asbestos-related Conditions s. 5 5 Only one subsequent award of damages for asbestos-related condition permitted If a payment of provisional damages has been made to an injured person in respect of an 5 asbestos-related condition only one subsequent award of damages for another asbestos-related condition can be made to that person. 6 Regard may be had to initial award of damages If a payment of provisional damages has been 10 made to an injured person for an asbestos-related condition, a court may have regard to those damages when assessing damages to be awarded in a subsequent action for damages for another asbestos-related condition suffered by that person. 15 7 Regard must be had to legal costs incurred in initial action (1) If a payment of provisional damages has been made to an injured person for an asbestos-related condition, a court or a registrar of a court must 20 have regard to the legal costs incurred in respect of the action for those damages (the initial action) when assessing the amount to be awarded as legal costs in a subsequent action for damages by that person for another asbestos-related condition. 25 (2) The purpose of subsection (1) is to ensure that legal costs awarded in a subsequent action are not in respect of work undertaken for the purposes of the initial action. (3) In considering any possible duplication of legal 30 costs, the court or registrar must have regard to the following factors-- (a) any work undertaken in the initial action-- (i) to identify the party or parties to be named as defendants; and 561284B.I-7/10/2008 4 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 2--Provisional Damages for Asbestos-related Conditions s. 8 (ii) to identify the circumstances of the injured person's exposure to asbestos; and (iii) in relation to the negligence or breach 5 of duty of the party or parties to be named as defendants; and (iv) as to the relationship and causal nexus between the injured person's condition and the exposure to asbestos; and 10 (b) any other factors that the court or registrar considers appropriate. 8 Transitional provision (1) This Act applies to causes of action arising and actions commenced before or after the 15 commencement of this Act. (2) However subsection (1) does not apply to an action commenced before the commencement of this Act if-- (a) the hearing of the action had commenced 20 before the commencement of this Act; or (b) damages were awarded or a settlement reached (other than for provisional damages) in that action before that commencement. __________________ 561284B.I-7/10/2008 5 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 3--Amendments to Accident Compensation Act 1985 s. 9 PART 3--AMENDMENTS TO ACCIDENT COMPENSATION ACT 1985 9 New Division 9B inserted in Part IV See: After Division 9A of Part IV of the Accident Act No. 5 10191. Compensation Act 1958 insert-- Reprint No. 15 as at 17 April 2008 "Division 9B--Actions by workers with and asbestos-related conditions amending Act Nos 107/1997, 135BB Actions by workers with asbestos-related 95/2003, 12/2008 and conditions 24/2008. 10 LawToday: (1) This section applies to a worker who may www. have an entitlement to recover damages in legislation. vic.gov.au accordance with section 134AB or 135A in respect of an injury that is an asbestos- related condition arising out of, or in the 15 course of, or due to the nature of, employment. (2) If this section applies, the worker may, subject to compliance with the requirements of this section, bring proceedings in 20 accordance with-- (a) section 134AB without complying with the requirements of subsections (1) to (21) and subsections (27), (28) and (38) of that section; or 25 (b) section 135A without complying with subsections (1) to (6) and subsections (13), (13A), (18A) and (18B) of that section. (3) If a worker commences proceedings under 30 section 134AB or 135A on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to an Associate Judge of the Supreme Court-- 561284B.I-7/10/2008 6 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 3--Amendments to Accident Compensation Act 1985 s. 9 (a) for an order allowing leave for the worker to proceed nunc pro tunc; and (b) for an order allowing an expedited hearing of the proceedings if the 5 asbestos-related condition gives rise to an imminent risk of death. (4) The Associate Judge of the Supreme Court must not grant the orders referred to in subsection (3) unless the Associate Judge of 10 the Supreme Court is satisfied on the balance of probabilities that the injury arising out of, or in the course of, or due to the nature of, employment is an asbestos-related condition. (5) If the Associate Judge of the Supreme Court 15 does not grant the orders referred to in subsection (3), the Associate Judge of the Supreme Court must make an order that the proceedings be struck out on the grounds that this section does not apply and that the 20 proceedings have not been brought in accordance with section 134AB or 135A. (6) If the Associate Judge of the Supreme Court does grant the orders referred to in subsection (3), the worker can only recover 25 damages in accordance with section 134AB, 135A or 135AC if the worker establishes that the worker has a serious injury within the meaning of section 134AB(38) or 135A(19). (7) If the worker dies from the asbestos-related 30 condition before the hearing of the proceeding, it is established for the purposes of subsection (6) that the worker had a serious injury within the meaning of section 134AB(38) or 135A(19). 561284B.I-7/10/2008 7 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 3--Amendments to Accident Compensation Act 1985 s. 10 (8) In this section, asbestos-related condition has the same meaning as it has in the Asbestos Diseases Compensation Act 2008.". 10 New Division 11 inserted in Part IX 5 At the end of Part IX of the Accident Compensation Act 1985 insert-- "Division 11--Asbestos Diseases Compensation Act 2008 300 Section 135BB 10 (1) Section 135BB as inserted by section 9 of the Asbestos Diseases Compensation Act 2008 applies in respect of an action for damages made before or after the commencement of that section 9. 15 (2) However subsection (1) does not apply to an action commenced before the commencement of section 9 of the Asbestos Diseases Compensation Act 2008 if-- (a) the hearing of the action had 20 commenced before that commencement; or (b) damages were awarded or a settlement was reached (other than for provisional damages) in that action before that 25 commencement.". 11 Repeal of Part This Part is repealed on the first anniversary of the day on which this Act receives the Royal Assent. Note 30 The repeal of this Part does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). __________________ 561284B.I-7/10/2008 8 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 4--Amendments to Wrongs Act 1958 s. 11 PART 4--AMENDMENTS TO WRONGS ACT 1958 12 Assessment of damages After section 19(1) of the Wrongs Act 1958 See: Act No. insert-- 6420. Reprint No. 9 5 "(1A) In assessing damages in any action under this as at 28 April 2004 Part, there shall not be taken into account-- and amending (a) any damages under section 29(2A) of Act Nos the Administration and Probate Act 108/2004, 51/2005, 1958 recovered or recoverable for the 75/2005, 10 benefit of the estate of the deceased 97/2005, 24/2006, person; or 41/2006 and 12/2008. (b) any share of those damages paid or LawToday: likely to be paid to any person for www. legislation. whose benefit the action under this Part vic.gov.au 15 is brought.". 13 New section 23AE inserted After section 23AD of the Wrongs Act 1958 insert-- "23AE Transitional for assessment of damages 20 (1) Section 19(1A) as inserted by section 12 of the Asbestos Diseases Compensation Act 2008 applies in respect of any action brought under this Part before or after the commencement of that section 12. 25 (2) However subsection (1) does not apply to an action if damages were awarded or a settlement was reached in that action before the commencement of section 12 of the Asbestos Diseases Compensation Act 30 2008.". 561284B.I-7/10/2008 9 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Part 4--Amendments to Wrongs Act 1958 s. 14 14 Repeal of Part This Part is repealed on the first anniversary of the day on which this Act receives the Royal Assent. Note 5 The repeal of this Part does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 561284B.I-7/10/2008 10 BILL LA INTRODUCTION 7/10/2008
Asbestos Diseases Compensation Bill 2008 Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 561284B.I-7/10/2008 11 BILL LA INTRODUCTION 7/10/2008