Acts Amendment (Asbestos Related Diseases) Act 1983 (WA)

WESTERN AUSTRALIA.

ACTS AMENDMENT

(ASBESTOS RELATED

DISEASES).

No. 84 of 1983.

AN ACT to amend the Limitation Act 1935-1978, the Crown Suits Act 1947-1954, the Fatal Accidents Act 1959-1973, the Law Reform (Miscellaneous Provisions) Act 1941-1982 and the Local Government Act 1960-1983.

[Assented to 22 December 1983.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent

of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

PART I-PRELIMINARY.

1. This Act may be cited as the Acts Amendment Short title.

(Asbestos Related Diseases) Act 1983.

No. 84.]

Acts Amendment (Asbestos

[1983.

Related Diseases).

Commence-

ment. 2. This Act shall come into operation on the 28th

day after the day on which it is assented to by the

Governor.

PART II-LIMITATION ACT 1935-1978.

Principal

Act.	3.	(1) In this Part the Limitation Act 1935-1978
Reprinted

as approved	is referred to as the principal Act.
5 May 1983.

(2) The principal Act as amended by this Act

may be cited as the Limitation Act 1935-1983.

Sections 38A

and 38B	4.	After section 38 of the principal Act the
inserted.

following sections are inserted

Extended

limitation

38A. (1) In this section

period in

certain

cases.

"latent injury" means a disease or injury of such a nature that, at the time it is suffered by a person, that person does not know and could not reason- ably be expected to know that he has suffered the disease or injury;

"the amending Act" means the Acts Amendment (Asbestos Related Diseases) Act 1983.

(2) Where the period of limitation within which an action, suit, or other proceeding may be brought would, but for this section, be fixed by section 38 (1) (c) of this Act and

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos;
(b)	the person who suffered the latent injury had knowledge of the relevant facts before 1 January 1984; and

1983.]

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(c)	the period of limitation that would be applicable thereto had the amend- ing Act not come into operation had expired before 1 January 1984,

that action, suit, or other proceeding may be commenced within the period of 3 years after the coming into operation of the amending Act.

(3) Where in an action, suit, or other proceeding to which subsection (2) of this section applies it is proved that

(a)	the person who suffered the latent injury had knowledge of the relevant facts before 1 January 1984; and
(b)	the period referred to in paragraph

damages shall not be awarded except in respect of pecuniary loss and the total amount of the damages awarded shall not in any case exceed $120 000.

(4) Where the period of limitation within which an action, suit, or other proceeding may be brought would, but for this section, be fixed by section 38 (1) (c) of this Act and

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos;
(b)	the person who suffered the latent injury had knowledge of the relevant facts before 1 January 1984; and
(c)	the period of limitation that would be applicable thereto had the amend- ing Act not come into operation had not expired before 1 January 1984,

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that action, suit, or other proceeding may be commenced within the period referred to in paragraph (c) of this subsection or, if that period expires less than 3 years after the coming into operation of the amending Act, may be commenced within the period of 3 years after the coming into operation of that Act.

(5) Where in an action, suit or other proceeding to which subsection (4) of this section applies it is proved that

(a)	the person who suffered the latent injury had knowledge of the relevant facts before 1 January 1984; and
(b)	the period referred to in paragraph (c) of that subsection had expired before the action, suit, or other proceeding was commenced,

damages shall not be awarded except in respect of pecuniary loss and the total amount of the damages awarded shall not in any case exceed $120 000.

(6) Where the period of limitation within which an action, suit, or other proceeding may be brought is fixed by section 38 (1) (c) of this Act and--

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and
(b)	the person who suffered the latent injury did not have knowledge of the relevant facts before 1. January 1984,

the period of limitation so fixed shall run not from the time provided by section 38 of this Act but from the time when that person has knowledge of the relevant facts.

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(7) For the purposes of this section a person has knowledge of the relevant facts in relation to a cause of action when he has knowledge

(a)	that the injury in question was significant;
(b)	that the injury was attributable in whole or in part to the act or omis- sion which is alleged to constitute the cause of action;
(c)	of the identity of the defendant; and
(d)	if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant,

and knowledge that any acts or omissions did or did not, as a matter of law, give rise to a cause of action is irrelevant.

(8) For the purposes of this section an injury is significant if the person whose knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(9) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire

(a)	from facts observable or ascertain- able by him; or
(b)	from facts ascertainable by him with the help of medical or other appro- priate expert advice which it is reasonable for him to seek,

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but a person shall not be fixed under this subsection with knowledge of a fact ascertain- able only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

(10) Unless the context otherwise requires, a reference, however expressed, in this Act or in any other Act or law to the time from which a period of limitation runs shall, where the period of limitation is one to which sub- section (6) of this section applies, be read as if it were a reference to the time from which it is provided by that subsection that the limitation period shall run.

Revival.

38B. An action, suit, or other proceeding may be commenced in accordance with section 38A of this Act notwithstanding that the period of limitation applicable before the coming into operation of the Acts Amendment (Asbestos Related Diseases) Act 1983 in respect of the action, suit or other proceeding may have expired before the coming into operation of that Act. ".

Section 47A

amended. 5. Section 47A of the principal Act is amended

by inserting after subsection (4) the following

subsections-

(5) Where an action is one to which this section applies and

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and
(b)	the person who suffered the latent injury had the knowledge referred to in section 38A of this Act before 1 January 1984,

1983.]

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the period limited by this section for the doing of any thing in relation to that action shall run not from the time otherwise provided by this section but from the time of the coming into operation of the amending Act.

(6) Where in an action to which subsection (5) of this section applies it is proved that

(a)	the person who suffered the latent injury had the knowledge referred to in section 38A of this Act before 1 January 1984; and
(b)	the period of 6 years applicable under subsection (3) (a) of this section as in force before the coming into operation of the amending Act had expired before the action was com- menced,

damages shall not be awarded except in respect of pecuniary loss and the total amount of the damages awarded shall not in any case exceed $120 000.

(7) Where an action is one to which this section applies and

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and
(b)	the person who suffered the latent injury did not have the knowledge referred to in section 38A of this Act before 1 January 1984,

the period limited by this section for the doing of any thing in rela:tion to that action shall run not from the time otherwise provided by this section but from the time when that person has the knowledge referred to in section 38A of this Act.

No. 84.]

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(8) After the coming into operation of the amending Act

(a)	a notice may be given;
(b)	an action may be commenced; or
(c)	consent may be given, or leave may be granted, to bring an action,

in accordance with subsection (5) or (7) of this section notwithstanding that the period of limitation applicable before the coming into operation of the amending Act in respect thereof had expired before the coming into operation of that Act.

(9) In subsections (5), (6), (7), and (8) of this section

"latent injury" has the same meaning as is given to that expression by section 38A of this Act;

"the amending Act" means the Acts Amendment (Asbestos Related Diseases) Act 1983. ".

PART III-CROWN SUITS ACT 1947-1954.

Principal	6.	(1) In this Part the Crown Suits Act 1947-1954
Act.
Reprinted

as approved

is referred to as the principal Act.

14 April

1971.

(2) The principal Act as amended by this Act may

be cited as the Crown Suits Act 1947-1983.

Section

amended.

Section 6 of the principal Act is amended by

inserting after subsection (3) the following sub-

sections

(4) Where an action is one to which this section applies and

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and

1983.]

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(b)	the person who suffered the latent injury had the knowledge referred to in section 38A of the Limitation Act 1935 before 1 January 1984,

(5) Where in an action to which subsection (4) of this section applies it is proved that

(a)	the person who suffered the latent injury had the knowledge referred to in section 3M of the Limitation Act 1935 before 1 January 1984; and
(b)	the period of 6 years applicable under subsection (3) (a) of this section as in force before the coming into operation of the amending Act had expired before the action was commenced,

damages shall not be awarded except in respect of pecuniary loss and the total amount of the damages awarded shall not in any case exceed $120 000.

(6) Where an action is one to which this section applies and

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and
(b)	the person who suffered the latent injury did not have the knowledge referred to in section 38A of the Limitation Act 1935 before 1 January 1984,

the period limited by this section for the doing of any thing in relation to that action shall run not from the time otherwise provided by

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this section but from the time when that person has the knowledge referred to in section 38A of the Limitation Act 1935.

(7) After the coming into operation of the amending Act

(a)	a notice may be given;
(b)	an action may be commenced; or
(c)	consent may be given, or leave may be granted, to bring an action,

in accordance with subsection (4) or (6) of this section notwithstanding that the period of limitation applicable before the coming into operation of the amending Act in respect thereof had expired before the coming into operation of that Act.

(8) In subsections (4), (5), (6), and (7) of this section

"latent injury" has the same meaning as is given to that expression by section 38A of the Limitation Act 1935;

"the amending Act" means the Acts Amendment (Asbestos and Related Diseases) Act 1983. ".

PART IV-FATAL ACCIDENTS ACT 1959-1973.

Principal

Act.	8. (1) In this Part the Fatal Accidents Act 1959-
as approved

Reprinted	1973 is referred to as the principal Act.
13 Aprl/ 1976.

(2) The principal Act as amended by this Act may

be cited as the Fatal Accidents Act 1959-1983.

Section 7

amended.

9. Section 7 of the principal Act is amended

(a)	in subsection (1), by inserting before "every" the following-

" subject to this section ";

1983.]

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(b)	by inserting after subsection (1) the follow- ing subsection

C C

(la) An action brought under this Act may, where the death in respect of which the cause of action arose

(a)

resulted from a latent injury that is attributable to the inhalation of asbestos; and

(b)

occurred before 1 January

1984,

be commenced without leave within the period of 3 years after the coming into operation of the amending Act notwith- standing that

(c)	at the time of his death, the person in respect of whose death the action is brought may have been barred by the expiration of a period of limita- tion from maintaining an action in respect of the act, neglect or default by which his death was caused; or
(d)	the period of 6 years applic- able under subsection (2) (c) of this section may have expired before the coming into operation of the amending Act. "; and

(c)	by inserting after subsection (2) the fol- lowing subsections

'C (3) An action brought under this

Act may, where the death in respect of which the cause of action arose

(a)	resulted from a latent injury that is attributable to inhala- tion of asbestos; and
(b)	occurred on or after 1 January 1984 but before the coming into operation of the amending Act,

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be commenced in accordance with sub- section (1) or (2) of this section not- withstanding that, at the time of his death, the person in respect of whose death the action is brought may have been barred by the expiration of a period of limitation from maintaining an action in respect of the act, neglect, or default by which his death was caused.

(4) Where

(a)	in an action to which sub- section (la) or (3) of this section applies it is proved that, at the time of his death the person in respect of whose death the action is brought was barred by the expiration of a period of limitation from maintaining an action in respect of the act, neglect, or default by which his death was caused; or
(b)	in an action to which subsec- tion (la) of this section applies it is proved that the period of 6 years applicable under sub- section (2) (c) of this section had expired before the action was commenced,

damages shall not be awarded except in respect of pecuniary loss and the total amount of the damages awarded shall not in any case exceed $120 000.

(5) Where in an action brought under this Act in respect of a death that

(a)	resulted from a latent injury that is attributable to the inhalation of asbestos; and

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(b)	occurred on or after the com- ing into operation of the amending Act,

it is proved that the damages that would (if death had not ensued) have been recoverable by the deceased person in respect of the act, neglect or default by which his death was caused would, by reason of the amending Act, have been limited to damages in respect of pecuniary loss and a total amount in any case of $120 000, then damages shall not be awarded under this Act except in respect of pecuniary loss and the total amount of the damages awarded shall not in any case exceed $120 000.

(6) In subsections (la), (3) and (5) of this section

"latent injury" has the same mean- ing as is given to that expres- sion by section 38A of the Limitation Act 1935;

"the amending Act" means the

Acts Amendment (Asbestos

Related Diseases) Act 1983. ".

PART V-LAW REFORM (MISCELLANEOUS PROVISIONS)

ACT 1941-1982.

Principal

10.

(1) In this Part the Law Reform (Miscel-

Act.

laneous Provisions) Act 1941-1982 is referred to as

the principal Act.

(2) The principal Act as amended by this Act may be cited as the Law Reform (Miscellaneous Provi- sions) Act 1941-1983.

11. Section 4 of the principal Act is amended in =d4.

subsection (2) by inserting after paragraph (c) the

following paragraph-

" (ca) where the cause of action arose from the

suffering of a latent injury that is attri-

butable to the inhalation of asbestos and

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it is proved that the damages that would (if death had not ensued) have been recoverable by the deceased person would, by reason of the Acts Amendment (Asbestos Related Diseases) Act 1983, have been limited to damages in respect of pecuniary loss and a total amount in any case of $120 000, shall not include damages except in respect of pecuniary loss and the total amount of the dam- ages recoverable shall not in any case exceed $120 000; ".

PART VI-LOCAL GOVERNMENT ACT 1960-1983.

Principal

Act.	12. (1) In this Part the Local Government Act
as approved

Reprinted	1960-1983 is referred to as the principal Act.
24 June 1983. Amended UP Act No. 8	(2) The principal Act as amended by this Act may be cited as the Local Government Act 1960-1983.
of 1983.
Section 860

amended. 13. Section 660 of the principal Act is amended by

inserting after subsection (2) the following sub-

sections

(3) Where an action is one to which this section applies and

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and
(b)	the person who suffered the latent injury had the knowledge referred to in section 38A of the Limitation Act 1935 before 1 January 1984,

1983.]

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(4) Where in an action to which subsection

(3) of this section applies it is proved that—.

(a)	the person who suffered the latent injury had the knowledge referred to in section 38A of the Limitation Act 1935 before 1 January 1984; and
(b)	the period of 6 years applicable under subsection (2) of this section as in force before the coming into opera- tion of the amending Act had expired before the action was commenced,

damages shall not be awarded except in respect of pecuniary loss and the total amount of the damages awarded shall not in any case exceed $120 000.

(5) Where an action is one to which this section applies and

(a)	the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and
(b)	the person who suffered the latent injury did not have the knowledge referred to in section 38A of the Limitation Act 1935 before 1 January 1984,

the period limited by this section for the doing of any thing in relation to that action shall run not from the time otherwise provided by this section but from the time when that person has the knowledge referred to in section 38A of the Limitation Act 1935.

(6) After the coming into operation of the amending Act

(a)	a notice may be served;
(b)	an action may be commenced; or

No. 84.]

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an action,

in accordance with subsection (3) or (5) of this section notwithstanding that the period of limitation applicable before the coming into operation of the amending Act in respect thereof had expired before the coming into operation of that Act.

(7) In subsections (3), (4), (5), and (6) of this section

"latent injury" has the same meaning as is given to that expression by section 38A of the Limitation Act 1935;

"the amending Act" means the Acts Amendment (Asbestos and Related Diseases) Act 1983. ".