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This is a Bill, not an Act. For current law, see the Acts databases.
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
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