Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW)
New South Wales Workers Compensation Legislation
Amendment (Dust Diseases and
Other Matters) Act 1998 No 130
Contents
Page
1 Name of Act 2 2 Commencement 2 3 Schedules of amendments 2 Schedules
1 Amendment of Dust Diseases Tribunal Act 1989
No 63 3
2 Amendment of Law Reform (Miscellaneous
Provisions) Act 1944 No 28 18
3 Amendment of Law Reform (Miscellaneous
Provisions) Act 1946 No 33 19
4 Amendment of Limitation Act 1969 No 31 20 5 Amendment of Workers Compensation Act 1987 No 70 21 Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Contents
Page
6 Amendment of Workers’ Compensation (Dust
Diseases) Act 1942 No 14 28 7 Amendment of Workplace Injury Management and
Workers Compensation Act 1998 No 86 39
Contents page 2
New South Wales
Workers Compensation Legislation
Amendment (Dust Diseases andOther Matters) Act 1998 No 130
Act No 130, 1998
An Act to amend the Workers Compensation Act 1987, the Workers’ Compensation (Dust Diseases) Act 1942, the Workplace Injury Management and Workers Compensation Act 1998, the Dust Diseases Tribunal Act 1989 and certain other Acts in connection with claims relating to asbestos-related and other dust diseases. and the institution of certain proceedings for, and the entitlement of persons to compensation in, workers compensation matters; and for other purposes. [Assented to 26 November 1998]
Section 1 Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 NO 130 The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Workers Compensation Legislation Amendment
(Dust Diseases and Other Matters) Act 1998.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Schedules of amendments
Each Act that is specified in a Schedule to this Act is amended as set out in that Schedule.
Page 2 Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Dust Diseases Tribunal Act 1989 No 63 Schedule 1
Schedule 1 Amendment of Dust Diseases Tribunal
Act 1989 No 63
(Sect ion 3)
[1] Section 3 Definitions
Omit the definition of Senior Member from section 3 (1).
Insert in alphabetical order:President means the President of the Tribunal.
settlement, when used in relation to a claim, includes
compromise or agreement.
[2] Sections 7 , 7A, 7B, 13, 32B, 32C, 32D, 32F and 32N
Omit “Senior Member" wherever occurring.
Insert instead "President".[3] Section 12A
Insert after section 12:
12A No limitation period
(1 )
The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time.
(2)
Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions.
(3) Without limiting subsection (2):
(a)
sections 14, 18A, 60C and 60G of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal. and
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Schedule 1 Amendment of Dust Diseases Tribunal Act 1989 No 6 3
(b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and (c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force.
[4] Section 12B
Insert as section 12B:
128 Damages for non-economic loss after death of plaintiff
(1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death. (2) Section 2 (2) (d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition. [5] Section 12C
Insert as section 12C:
12C Effect of settlement on proceedings by or against joint
and several tortfeasors
(1)
For the avoidance of doubt. settlement with one or more joint tortfeasors in or in relation to proceedings before the Tribunal and who are liable in respect of damage as a result of a dust-related condition is not a bar to recovery against one or more other joint tortfeasors (whether or not they are defendants in the proceedings), unless the terms of the settlement otherwise provide.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Dust Diseases Tribunal Act 1989 No 63 Schedule 1
(2) A tortfeasor who settles proceedings before the Tribunal that are brought against the tortfeasor by a plaintiff in respect of damage as a result of a dust-related condition is not precluded from recovering contribution in respect of that same damage under section 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act 1946 from any other tortfeasor (whether a joint tortfeasor or otherwise) who is not a party to the settlement only because a judgment giving effect to that settlement has been entered in favour of the plaintiff without the Tribunal having considered the merits of the case. (3) This section does not affect the operation or
interpretation of section 5 (1) (a) of the Law Reform
(Miscellaneous Provisions) Act 1946.
[6] Section 12D
Insert as section 12D:
12D Damages for non-economic loss not to be reduced by
certain compensation payments
(1 )
This section applies to proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) for damages in relation to dust-related conditions.
(2)
In determining damages for non-economic loss in any such proceedings, no deduction is to be made for any amount of compensation already paid or payable, or payable in the future, under the Workers’ Compensation (Dust Diseases) Act 1942.
(3) In this section: damages for non-economic loss means damages or
compensation for the following:
(a) pain and suffering, (b) loss of amenities of life, ( c ) loss of expectation of life, Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 1 Amendment of Dust Diseases Tribunal Act 1989 NO 63
(d) disfigurement, (e) the need for services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to a person by another person, and for which the first person has not paid and is not liable to pay any fee or charge.
[7] Section 25A
Insert after section 25:
25A Material already obtained
(1) Material obtained for the purposes of proceedings before
the Tribunal by discovery or interrogatories may:
(a) with the leave of the Tribunal, and (b) with the consent of: ( i ) subject to subparagraph (ii), the party who originally obtained the material or the party's solicitors, or
(ii) another person prescribed by the rules,
be used in other proceedings before the Tribunal, whether or not the proceedings are between the same parties.
(2) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances. [8] Section 25B
insert as section 25B:
25B General issues already determined
(1)
Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave
of the Tribunal, whether or not the proceedings are between the same parties.
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Amendment of Dust Diseases Tribunal Act 1989 No 63 Schedule 1
(2) In deciding whether to grant leave for the purposes of
subsection (l) , the Tribunal is to have regard to:
(a) the availability of new evidence (whether or not previously available), and (b) the manner in which the other proceedings referred to in that subsection were conducted, and (c) such other matters as the Tribunal considers to be relevant. (3) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances or (without limitation) in relation to specified kinds of issues. (4) This section does not affect any other law relating to matters of which judicial notice can be taken or about which proof is not required.
[9] Section 32E Meetings of the Rule Committee
Omit section 32E (7). Insert instead:
(7) The President may, subject to any decision of the Rule Committee under subsection ( l ) , call meetings of the Rule Committee as and when the President thinks necessary.
[10] Section 33 Rules
Insert at the end of section 33 (4) (k):
, and
(1)
requiring a plaintiff to file and serve on other parties a notice of particulars or further particulars of a specified class or description (verified as prescribed by the rules):
( i )
at the time the plaintiff applies for an expedited hearing or within a specified period before or after making such an application, and
( i i )
at any other specified stage of the proceedings, and
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(m) where there is more than one alleged tortfeasor:
(i) requiring a plaintiff who settles a claim with one or more but not all the alleged tortfeasors (before or after the proceedings were commenced) to file the terms of settlement and particulars of amounts paid under the settlement, and (ii) authorising the disclosure, by the Tribunal or by a member, registrar or officer of the Tribunal, of any terms and particulars filed by a plaintiff to another party to the proceedings, whether or not the terms contain non-disclosure requirements, and (iii) specifying the circumstances in which, and the matters that are to be taken into consideration before which, any such disclosure may be made, and ( n ) empowering the Tribunal to order that all or any of the provisions of section 151AC of the Workers Compensation Act 1987 do not apply in or in relation to a particular case:
( i ) on its own motion, or ( i i ) on application by a party or by an insurer who is not a party and on its being satisfied as to specified matters.
[11] Part 5
Insert after Part 4:
Part 5 Arbitration 38 Arbitration for insurance purposes
(1)
The rules may make provision for or with respect to the arbitration of disputes as to the liability of insurers as referred to in section 151AC of the Workers Compensation Act 1987.
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Amendment of Dust Diseases Tribunal Act 1989 No 63 Schedule 1
(2) In particular, the rules may make provision for or with respect to:
(a)
the appointment of a member, registrar or other officer of the Tribunal, or another person approved by the President, as an arbitrator or referee, and
(b) the reference of disputes to arbitration, and (c)
the determination of the kinds of premises where arbitrations can be conducted and, if relevant, the provision of the services of officers of the Tribunal and the provision of court rooms and other facilities for the purposes of an arbitration, and
(d)
requiring the plaintiff and other persons to give evidence at an arbitration, and
(e)
the joinder of insurers and other persons as parties to the arbitration, including insurers and persons who were not parties to the original proceedings before the Tribunal, and
(f)
the determination and payment of arbitration fees and expenses (including for example the cost of hiring premises) and the persons by whom the whole or any part of any such fees and expenses are to be paid. and
(g)
the determination and payment of costs incurred in an arbitration, and
( h )
the manner in which a determination of an arbitrator may be called in question, and whether or not, or to what extent. a determination may be called in question on a matter of fact or law, and
( i ) any other matters associated with an arbitration. (3) An arbitrator or referee has power to determine issues for the purpose of resolving any such dispute. (4)
Subject to any rules made under subsection (2) (h) , the Tribunal. on application made to it by any party within the period prescribed by the rules, may set aside a determination made by an arbitrator or referee and may:
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(a)
refer the determination back to the arbitrator or referee who made it, or
(b)
revoke the reference to the arbitrator or referee who made the determination and make such order as it thinks fit for the continuance of the matter.
39 Other statutory provisions not affected
Nothing in this Part affects any other Act that enables the reference of actions or other matters to arbitration.
[12] Part 6
Insert as Part 6:
Part 6 Interim payments
Division 1 Preliminary 40 Definitions In this Part:
designated insurer means a designated insurer referred to in section 151AC of the Workers Compensation Act 1987.
inter-insurer dispute means a dispute referred to in section 151AC of the Workers Cornpensation Act 1987, whether or not persons who are not insurers are involved.
Division 2 Interim payments, where no inter-insurer
dispute
41 Interim payments before assessment of damages, where
no inter-insurer dispute
( 1 )
Without affecting the generality of section 10 (4) of this Act. Division 2 of Part 5 of the Supreme Court Act 1970 applies in relation to proceedings before the Tribunal, as if references in that Division to the Supreme Court were references to the Tribunal.
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Amendment of Dust Diseases Tribunal Act 1989 No 63 Schedule 1
(2)
That Division extends to proceedings before the Tribunal in relation to any liability of an employer to or in respect of whom section 151AB of the Workers Compensation Act 1987 applies.
(3)
However, that Division does not apply to any claim in respect of which an inter-insurer dispute remains unresolved.
Division 3 Interim payments, where inter-insurer
dispute42 Definition In this Division:
interim payment means payment of a part or the whole
of damages by a designated insurer:
(a) in accordance with an order of the Tribunal under
section 43, or (b) voluntarily.
43 Interim payments before or after assessment of
damages where inter-insurer dispute
( 1 )
While an inter-insurer dispute remains unresolved. the Tribunal may, in accordance with this section. order a designated insurer who is a party to the dispute to make one or more payments to the plaintiff of part or the whole of the damages sought to be recovered in the proceedings concerned.
(2)
The Tribunal may make such an order against a designated insurer on the application of the plaintiff at any stage of the proceedings or at any time during the currency of the dispute (whether before or after judgment has been obtained, and whether before or after damages have been assessed).
(3) The Tribunal may make such an order if:
(a)
the defendant or the designated insurer has admitted liability, or
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(b)
the plaintiff has obtained judgment against the defendant (whether or not damages have been assessed), or
(c)
the Tribunal is satisfied that, if the proceedings proceeded to trial, the plaintiff would obtain judgment for substantial damages against the defendant.
(4) The Tribunal may order a designated insurer to make one or more payments of such amounts as it thinks just but not exceeding:
(a) if damages have not been assessed—a reasonable proportion of the damages that in the opinion of the Tribunal are likely to be recovered by the plaintiff, or (b) if damages have been assessed—the amount of damages as assessed. (5) In estimating damages that have not been assessed, the Tribunal is to take into account any relevant contributory negligence or any cross-claims on which the defendant may be entitled to rely. 44 Interim payment not admission of liability, where inter-insurer dispute
(l) The fact that a designated insurer makes one or more interim payments is not of itself an admission of liability by the defendant or the designated insurer. (2) The making of. or refusal to make, an order under section 43 is not a finding as to liability in respect of the proceedings. 45 Adjustments, where inter-insurer dispute, before assessment of damages
( 1 )
This section applies to proceedings in which a designated insurer makes one or more interim payments before damages are assessed.
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Amendment of Dust Diseases Tribunal Act 1989 No 63 Schedule 1
(2)
The Tribunal or an arbitrator or referee may make such orders with respect to the interim payments as may be just, and in particular may order one or more of the following:
(a)
the repayment by the plaintiff of all or part of any interim payment, with or without interest,
(b)
the variation or discontinuance of any such payments,
(c)
the payment by another party to the proceedings of all or part of any interim payment that the defendant is entitled to recover from that party.
(3) The Tribunal may make an order under this section:
(a) in making a final judgment or order, or (b) in granting the plaintiff leave to discontinue the proceedings or to withdraw the claim, or
(c) on the application of any party, at any other stage in the proceedings.
(4)
Subject to any direction of the Tribunal, an arbitrator or referee may make an order under this section in the course of an arbitration under section 38, on the application of any party.
46 Adjustments, where inter-insurer dispute, after
assessment of damages
( 1 )
This section applies where a designated insurer makes one or more interim payments after damages are assessed.
(2)
The Tribunal or an arbitrator or referee may make such orders with respect to the interim payments as may be just. and in particular may order reimbursement of the designated insurer by another insurer to the dispute concerned for all or part of any interim payment. with or without interest.
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(3)
In making any such orders, the Tribunal or the arbitrator or referee is to have regard to the provisions of section 151AC of the Workers Compensation Act I987 and to such other matters as the Tribunal considers to be relevant.
(4) The Tribunal may make such an order on the application
of any party.(5)
Subject to any direction of the Tribunal, an arbitrator or referee may make such an order in the course of an arbitration under section 38, on the application of any party.
Schedule 3 Savings, transitional and other provisions
“Part 1 Preliminary” 1 . clause 3.
Insert before clause
Insert ”Part 2 Courts Legislation Amendment Act 1995” before
clause 2.
Insert “Part 3 Courts Legislation Further Amendment Act 1995”before clause 3.
Schedule 3, clause 1 Regulations
Insert at the end of clause 1 (1):
Workers Compensation Legislation Amendment (Dust
Diseases and Other Matters) Act 1998
Schedule 3, Part 5 Insert at the end of Schedule 3:
Part 5 Workers Compensation Legislation
Amendment (Dust Diseases and Other
Matters) Act 19985 Definition
In this Part:
amending Act means the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Dust Diseases Tribunal Act 1989 No 63 Schedule 1 6 President
The person holding office as Senior Member of the Tribunal immediately before the commencement of the amendment of section 7 by the amending Act is taken to have been appointed as President.
Anything done or omitted to be done by, to or in relation to the Senior Member of the Tribunal is taken to have been done or omitted to be done by, to or in relation to the President.
other document of any kind to the Senior Member of the A reference in any other Act, statutory instrument or Tribunal is taken to be or to include a reference to the President. 7 No limitation period
(1)
Section 12A, which was inserted by the amending Act, applies in relation to causes of action arising before or after the commencement of that section, and extends to proceedings pending at that commencement.
(2)
However, section 12A does not apply in relation to a cause of action to the extent that proceedings on the cause of action have been determined before the commencement of that section.
8 Damages for non-economic loss after death of plaintiff
(1) Section 12B, which was inserted by the amending Act, extends so that it applies in relation to the following proceedings:
(a) proceedings commenced before the commencement of that section and pending at that commencement. (b) proceedings commenced before the commencement of that section, where the person died before 7 May 1998 and the proceedings: (i) were pending at the date of death, and
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 1 Amendment of Dust Diseases Tribunal Act 1989 No 63 (ii) were still pending on 7 May 1998,
(c) proceedings commenced before the commencement of that section, where the person died on or after 7 May 1998 and the proceedings were pending at the date of death.
(2) Section 12B applies in relation to proceedings commenced after the commencement of that section, whether the cause of action arose before or arises after that commencement.
(3)
However, section 12B does not apply in relation to a cause of action to the extent that proceedings on the cause of action have been determined before the commencement of that section.
9 Application of section 12C on previous settlements
( l ) Section 12C, which was inserted by the amending Act, applies in relation to causes of action arising before or after the commencement of that section. (2) Section 12C (2) extends to proceedings pending at that commencement, but does not apply to proceedings that have been settled before that commencement.
10 Damages for non-economic loss not to be reduced by
certain compensation payments
( 1 )
Section 12D, which was inserted by the amending Act, applies in relation to causes of action arising before or after the commencement of that section, and extends to proceedings pending at that commencement.
(2 )
However, section 12D does not apply in relation to a cause of action to the extent that proceedings on the cause of action have been determined before the commencement of that section.
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Amendment of Dust Diseases Tribunal Act 1989 No 63 Schedule 1 11 Material already obtained
(1)
Section 25A, which was inserted by the amending Act, applies in relation to causes of action arising before or after the commencement of that section, but does not apply in relation to proceedings pending at that commencement.
(2)
Section 25A does not apply to material obtained by discovery or interrogatories before the commencement of that section.
12 Issues already determined
(1)
Section 25B, which was inserted by the amending Act, applies in relation to causes of action arising before or after the commencement of that section, but does not apply in relation to proceedings pending at that commencement. However, section 25B does apply to issues that have been or are determined in proceedings pending at the commencement of that section to prevent those issues from being relitigated or reargued, without the leave of the Tribunal, in other subsequent proceedings.
(2)
Subject to any rules to the contrary made under section 25B (3), section 25B applies to issues determined before the commencement of that section.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 2 Amendment of Law Reform (Miscellaneous Provisions) Act 1944 No 28 Schedule 2 Amendment of Law Reform
(Miscellaneous Provisions) Act 1944
No 28(Section 3)
Section 2 Effect of death on certain causes of action
Insert after section 2 (6) :
(7) This section has effect subject to section 12B of the Dust
Diseases Tribunal Act 1989.
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Amendment of Law Reform (Miscellaneous Provisions) Act 1946 No 33 Schedule 3 Schedule 3 Amendment of Law Reform
(Miscellaneous Provisions) Act 1946
No 33(Section 3)
Section 6 Amount of liability to be charge on insurance moneys payable against that liability
Insert after section 6 (8):
(9) Despite subsection (8), this section applies in relation to a policy of workers compensation insurance entered into by an employer (whether entered into before or after the commencement of this subsection), where the employer:
(a) being a natural person, has died, or is permanently resident outside the Commonwealth and its Territories, or cannot after due inquiry and search be found. or (b) being a corporation (other than a company that has commenced to be wound up), has ceased to exist, or being a company, corporation, society, association or other body (other than a company that has commenced to be wound up), was at the time when it commenced to employ workers to which the policy relates incorporated outside the Commonwealth and its Territories and registered as a foreign company under the laws of any State or Territory and is not so registered under any such law, or
(d)
being a company, is in the course of being wound up.
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Schedule 4 Amendment of Limitation Act 1969 No 31 Schedule 4 Amendment of Limitation Act 1969
No 31(Section 3)
Section 8 Saving of specified enactments
Insert at the end of the section:
(2)
This Act has effect subject to section 12A of the Dust Diseases Tribunal Act 1989 and clause 7 of Schedule 3 to that Act.
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Amendment of Workers Compensation Act 1987 No 70 Schedule 5 Schedule 5 Amendment of Workers Compensation
Act 1987 No 70(Section 3)
[1] Section 31 Payment in respect of dependent children
Omit section 31 (1) (a) and (b). Insert instead:
(a) be paid to the surviving parent of the child concerned, if there is one, or (b) be paid to the Public Trustee for the benefit of the child or to any person (approved by the Public Trustee) having the care or custody of the dependent child, if no such parent survives.
[2] Section 37 Weekly payment during total incapacity—after first 26 weeks
Omit paragraph (a) of the definition of de facto spouse or other
family member in section 37 (7).
Insert instead:
(a) in relation to:
(i)
an injury received before the commencement of Schedule 5 [2] to the
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998— although not legally married to the worker, lives with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or
( i i ) an injury received after that commencement—is the other party to a de facto relationship with the worker, or
[3] Section 85 Payments to Public Trustee for benefit of beneficiary
Omit section 85 (4). Insert instead:
(4)
A reference in subsection (3) to the widow or widower of a deceased worker includes a reference to a dependant of the worker who is the other party to a de facto relationship with the worker.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 5 Amendment of Workers Compensation Act 1987 No 70 [4] Section 151AB Special insurance provisions relating to occupational diseases
Omit “this section” from section 151AB (6) . Insert instead “sections 151AB and 151AC”.
[5] Section 151AC
Insert after section 151AB:
151AC Further special insurance provisions relating to dust
diseases
(1) Application of this section This section applies in relation to an employer who is liable independently of this Act for damages for a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942 contracted by a worker, where there is a dispute as to which of 2 or more insurers in a category of insurers is liable to indemnify the employer under any of the provisions of section 151AB.
(2) Designated insurer to be responsible pending resolution
of disputeFor the purposes of section 151AB, and pending resolution of the dispute, the insurer who is the designated insurer in the relevant category under this section is to be treated as being the insurer who is so liable to indemnify the employer. Section 151AB has effect. and is to be construed, accordingly.
(3 ) Identification of designated insurer The following provisions have effect for the purpose of determining which insurer among the following categories of insurers is the designated insurer for the purposes of this section:
(a)
If, in the case of a liability that arose before the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer
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Amendment of Workers Compensation Act 1987 No 70 Schedule 5 who was the last of those insurers to be the employer's insurer while the worker was employed before that commencement by that employer is the designated insurer.
If, in the case of a liability that arose after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer who was the last of those insurers to be the employer's insurer while the worker was employed after that commencement by that employer is the designated insurer.
If. in the case of a liability that arose partly before and partly after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB in respect of any liability that arose before that commencement, the insurer who was the last of those insurers to be the employer's insurer while the worker was employed before that commencement by that employer is the designated insurer.
is a dispute as to which of 2 or more insurers is If, in the case of a liability that arose partly before and partly after the relevant commencement, there liable to indemnify the employer under section 151AB in respect of any liability that arose after that commencement, the insurer who was the last of those insurers to be the employer's insurer while the worker was employed after that commencement by that employer is the designated insurer.
(4)
However, the insurers in a category may agree as to which of them is to be the designated insurer or the Dust Diseases Tribunal can order that any one of them is to be the designated insurer, and any such agreement or order overrides subsection (3).
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Schedule 5 Amendment of Workers Compensation Act 1987 No 70 Designated insurer to act for other insurers
In addition to the provisions of section 151AB:
(a)
where subsection (3) (a) or (b) applies-the designated insurer who is the insurer liable under section 151AB (1) is to act for all the insurers in the relevant category in the carriage of the insurance aspects of the claim, and
(b)
where subsection (3) (c) or (d) applies-the designated insurer who is the insurer who is primarily responsible under section 151AB (2) is to act for all the insurers in the 2 relevant categories in the carriage of the insurance aspects of the claim.
Other insurers can make submissions as to damages
Despite subsection (5), if the damages payable to or in respect of the worker have not been assessed, any of the other insurers in dispute may, with the leave of the Dust Diseases Tribunal, make submissions to the Tribunal relating to the amount of damages payable.
Methods of resolving dispute
The dispute may be resolved by such processes as the parties to the dispute agree or as are otherwise available.
relevant time. it is to be resolved by arbitration under However, if the dispute has not been resolved by the Arbitration under special provisions section 38 of the Dust Diseases Tribunal Act 1989, unless the Dust Diseases Tribunal otherwise orders (whether before or after the arbitration commences). The relevant time is:
(a) subject to paragraph (b), the time when the total amount of damages is assessed and payable, or (b) i f the designated insurer pays the total amount of damages assessed, together with all costs payable. to or in respect of the worker, such later time as one of the parties to the dispute notifies to the other party or parties to the dispute.
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Amendment of Workers Compensation Act 1987 No 70 Schedule 5 Nature of resolution of dispute
For the purposes of this section, the dispute is not
resolved until it has been determined which of the insurers in dispute was the insurer when the worker was last employed at the relevant time by the employer in an employment to the nature of which the disease was due. That insurer is referred to in the following provisions of this section as an insurer who is liable.
Adjustment after resolution of dispute If, on resolution of the dispute, it is determined that a designated insurer is not an insurer who is liable, then (in addition to any other liabilities) the insurer who is liable: is liable to reimburse or indemnify the designated insurer for any amounts already paid by the designated insurer in that capacity (including any amounts paid on an interim basis), and
is liable to reimburse or indemnify the employer for any costs of the worker already ordered by the Dust Diseases Tribunal, and
is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in earlier proceedings before the Tribunal because the insurer who is liable disputed liability (thereby giving rise wholly or in part to the dispute), and
Tribunal) liable to pay the reasonable costs of any without affecting the generality of paragraph (c), is (subject to any order of the Dust Diseases of the insurers in dispute (other than the designated insurer) incurred in any such earlier proceedings in making submissions to the Tribunal relating to the amount of damages payable to or in respect of the worker. Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 5 Amendment of Workers Compensation Act 1987 No 70 If, on resolution of the dispute, it is determined that a designated insurer is an insurer who is liable, then (in addition to any other liabilities) the insurer who is liable:
is liable to reimburse or indemnify the employer for any costs of the worker already ordered by the Dust Diseases Tribunal, and
is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in earlier proceedings before the Tribunal because the insurer who is liable disputed liability (thereby giving rise wholly or in part to the dispute), and
Tribunal) liable to pay the reasonable costs of any is (subject to any order of the Dust Diseases without affecting the generality of paragraph (b), of the insurers in dispute incurred in any such earlier proceedings in making submissions to the Tribunal relating to the amount of damages payable to or in respect of the worker. Parties to dispute
An insurer may be or become a party to the dispute even though the insurer was not a party to or represented in the original proceedings before the Dust Diseases Tribunal. Without limiting the foregoing, an insurer becomes a party to the dispute on being joined as a party to an arbitration under section 38 of the Dust Diseases Tribunal Act 1989.
Rules This section has effect subject to orders of the Dust Diseases Tribunal under rules referred to in section 33 (4) (n ) of the Dust Diseases Tribunal Act 1989.
Transitional
This section applies to causes of action arising before or after the commencement of this section, and extends to proceedings instituted before that commencement but only if no hearing in the proceedings has started before
that commencement.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Workers Compensation Act 1987 No 70 Schedule 5
(15) Definition In this section: category of insurers means the category consisting of the insurers in dispute as referred to in a paragraph of subsection (3).
[6] Schedule 6, Part 20
Insert at the end of clause 1 ( 1):
Workers Compensation Legislation Amendment (Dust
Diseases and Other Matters) Act 1998
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 6 Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14 Schedule 6 Amendment of Workers’
Compensation (Dust Diseases) Act
1942 No 14
(Section 3)
[1] Section 3 Definitions
Omit the definitions of Widow and Widower from section 3 ( 1 ) .
[2] Section 3 (1)
Insert in alphabetical order:
De facto relationship means the relationship between two unrelated adult persons:
(a)
who have a mutual commitment to a shared life, and
(b) whose relationship is genuine and continuing, and (c) who live together, and who are not married to one another.
Spouse of a person means:
(a)
where the claim for compensation concerned was made by or in relation to the person before the commencement of Schedule 6 [2] to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—a husband or wife of the person. or
(b)
where the claim for compensation concerned was made by or in relation to the person after that commencement:
( i ) a husband or wife of the person, or ( i i ) the other party to a de facto relationship
with the person.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14 Schedule 6 [3] Section 3 (2) and (3)
Insert at the end of section 3:
(2) For the purposes of determining whether two persons are in a de facto relationship for the purposes of this Act, all the circumstances of the relationship are to be taken into account, including (but not limited to) matters prescribed by the regulations for the purposes of this subsection. (3) The following provisions have effect for the purposes of
this section:
(a) Persons are related if: ( i ) one is the parent, or another ancestor, of the other, or
( i i ) one is the child, or another descendant, of the other, or
( i i i ) they have a parent in common.
(b) For the purposes of paragraph (a):
( i )
a person is taken to be an ancestor or descendant of another person even if the relationship between them is traced through, or to, a person who is or was an adopted child, and
( i i )
the relationship of parent and child between an adoptive parent and an adopted child is taken to continue even though the order by which the adoption was effected has been annulled, cancelled or discharged or the adoption has otherwise ceased to be effective, and
( i i i )
the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is taken to be or to have been the natural relationship of child and parent, and
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 6 Amendment of Workers' Compensation (Dust Diseases) Act 1942 No 14 (iv) a person who has been adopted more than once is taken to be the child of each person by whom he or she has been adopted.
(c) In paragraph (b), adopted means adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
[4] Section 5 Workers' Compensation (Dust Diseases) Board
Omit “2” where twice occurring in section 5 (1) (a).
Insert instead "3".
[5] Section 5 (2A)
Omit "chairperson" and "chairperson's" in each case where
secondly occurring.
Insert instead "person" and "person's" respectively.[6] Section 6 Constitution of Fund
Omit section 6 (2A). Insert instead:
(2A) The board is authorised to make from the fund:
(a) grants for the purpose of clinical or research work relating to the prevention and treatment of dust diseases or for any other purpose relating to the prevention and treatment of dust diseases, and (b) grants for the purpose of providing assistance to groups or organisations that provide support for victims of dust diseases or their families. [7] Section 8 Certificate of medical authority and rates of compensation
Insert “of the person" after "children" in section 8 (2AA)
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14 Schedule 6 Section 8 (2B) (a) (i) and (ii)
Omit the subparagraphs. Insert instead:
(i) a prescribed relative of the worker, or
(ii) a surviving spouse and a child or children of the worker.
Section 8 (2B) (b) (ii)
Omit “a weekly payment”. payment”.
Section 8 (2B) (b) (iii)
Omit “subject”.
Insert instead ”in the case of a surviving spouse and subject”.
Section 8 (2D) (b) and (2E) (b)
Omit “widow or widower” wherever occurring.
Insert instead “surviving spouse”.
Section 8 (9) Insert after section 8 (8):
(9) In this section: prescribed relative of a person means:
(a) where the person died before the commencement of Schedule 6 [12] to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—a surviving spouse of the person, or (b) where the person dies after that commencement: (i) a surviving spouse of the person, or
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 6 Amendment of Workers' Compensation (Dust Diseases) Act 1942 No 14 (ii) if there is no surviving spouse of the person-a father, mother, grandfather, grandmother, step-father, step-mother, grandson, granddaughter, brother, sister, half-brother or half-sister of the person.
[13] Section 8E
Insert after section 8D:
8 E Reimbursement of compensation from negligent third
parties
(1) Purpose of section The purpose of this section is to provide the board with rights to be reimbursed for compensation paid or payable by it where damages are recovered or recoverable, being rights that correspond in certain respects to those available to an employer (or an employer's insurer) under section 151Z of the Workers Compensation Act 1987. (2) Application of section This section applies where a worker suffers disablement or death from a dust disease. (3) Reimbursement where damages recovered a person (the first person) recovers damages from some other person (the second person) in respect of the disablement or death pursuant to the final determination of the relevant proceedings, and
any compensation already paid to the first person there is deducted from the damages the amount of under this Act, or the present value of future benefits payable to the first person under this Act,
or both.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14 Schedule 6 the following provisions have effect:
the second person is liable to pay to the board an amount equal to the amount or amounts so deducted,
the amount that the second person is liable to pay under this subsection is payable within 42 days after recovery of the damages or within such other period as is prescribed by the regulations or as is (subject to the regulations) allowed by the board,
together with interest as prescribed by the the amount that the second person is liable to pay under this subsection, or any unpaid portion of it, regulations, is recoverable by the board in a court of competent jurisdiction as a debt owing to the board.
(4) Reimbursement where damages not sought to be
recovered
the dust disease for which compensation is payable under this Act to a person (the first
person) was caused under circumstances creating
a liability in some other person (the second
person) to pay damages for economic loss in
respect of the disablement or death, and
the first person has not recovered any such damages. and proceedings are not pending for their recovery, and
the first person has received compensation under this Act. the following provisions have effect:
(d)
the board may but is not required to take action to be indemnified, by the second person. for the amount of any compensation already paid to the first person under this Act, being an indemnity limited to the amount of those damages.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 6 Amendment of Workers' Compensation (Dust Diseases) Act 1942 No 14
(e)
a certificate executed by the board and certifying that a specified amount is the amount of compensation paid as referred to in paragraph (d) is (without proof of its execution) admissible in any proceedings and is evidence of the matters certified in the certificate,
(f)
if two or more persons are so liable to pay those damages, they are jointly and severally liable under the indemnity,
(g)
all questions relating to matters arising under this subsection are, in default of agreement, to be settled by proceedings in the Dust Diseases Tribunal or by arbitration if the Tribunal so orders.
(5) Persons affected by section For the purposes of this section:
(a)
a "first person'' can be the worker or another person, and
(b)
a “second person" cannot be the worker's employer.
(6) Joint liability—employer If:
(a)
the first person takes or is entitled to take proceedings to recover damages from the worker's employer as joint tortfeasor or otherwise, in addition to taking or being entitled to take proceedings to recover damages from the second person, and
(b)
the second person is entitled to recover from the worker's employer any contribution towards the damages recovered or would be entitled to do so if proceedings to recover those damages were taken.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14 Schedule 6 the following provisions have effect:
(c)
the amount that the second person is liable to pay to the board under subsection (3) or the amount for which the second person can be required to indemnify the board under subsection (4) is to be reduced by the same proportion as that contribution bears to the amount of those damages,
(d)
the second person is not entitled to recover from the worker’s employer any contribution towards the amount paid or payable to the board by the second person.
(7) Joint liability-non-employer If:
(a)
the first person takes or is entitled to take proceedings to recover damages from another person as joint tortfeasor or otherwise (not being the worker’s employer), in addition to taking proceedings to recover damages from the second person, and
(b)
the second person is entitled to recover from that other person any contribution towards the damages recovered.
the following provisions have effect:
(c)
the second person is entitled to recover from that other person a contribution towards the amount that the second person is liable to pay under subsection (3), being a contribution that bears the same proportion to that amount as the contribution towards the damages recovered bears to the amount of those damages,
(d)
the second person is entitled to recover from that other person that contribution towards the amount paid or payable to the board by the second person,
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 6 Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14
(e)
the second person is entitled to recover that contribution whether or not that other person is or was a party to the proceedings taken by the first person to recover the damages from the second person.
(8) Determination of amount of compensation In cases where damages were paid otherwise than under an award or judgment, the amount of compensation referred to in subsection (3) is, if the regulations so provide, to be determined in accordance with or subject to such principles as are specified or referred to in the regulations.
(9) Regulations The regulations may make provision for or with respect to the following:
(a)
determining the amount of compensation in cases referred to in subsection (8),
(b)
requiring parties to notify the board of prescribed particulars concerning prescribed classes of awards, judgments, settlements or agreements in cases to which this section relates.
(c)
exempting any case or class of cases from the operation of the whole or any specified provisions of this section.
(10) Definitions
In this section
damages means damages whether or not payable under an award or judgment, and includes damages payable under a settlement, but does not include damages of a class excluded by the regulations from this definition.
damages for economic loss means damages other than damages for non-economic loss as defined in section 12D of the Dust Diseases Tribunal Act 1989.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14 Schedule 6 employer, in relation to a worker, means a person who was the worker’s employer at any relevant time, and includes:
(a)
a person who is vicariously liable for the acts of the employer, and
(b)
a person for whose acts the employer is vicariously liable.
Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 ( l) :
Workers Compensation Legislation Amendment (Dust
Diseases and Other Matters) Act 1998
Schedule 2, Part 3 Insert after Part 2:
Part 3 Provisions consequent on enactment of
Workers Compensation Legislation
Amendment (Dust Diseases and Other
Matters) Act 19988 Definition
In this Part:
amending Act means the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998.
9 Reimbursement of compensation-insurance policies
(1 )
If a person liable to pay an amount to the board under subsection (3) of section 8E (which was inserted by the amending Act) or required to indemnify the board for an amount under subsection (4) of that section is or was covered by a policy of insurance or indemnity (issued or effective before the commencement of that section) in respect of the damages recovered or recoverable by another person, the following provisions have effect:
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 6 Amendment of Workers’ Compensation (Dust Diseases) Act 1942 No 14
(a)
The policy is taken also to cover that liability to pay the amount to the board or that requirement to indemnify the board.
(b)
However, the policy remains subject to any monetary limits in respect of the maximum amount payable by the insurer in respect of any relevant cause of action.
(2)
Subclause (1) applies in relation to causes of action arising before but not after the commencement of section 8E.
(3)
However, subclause (1) does not apply in relation to a cause of action where proceedings were determined before the commencement of section 8E.
10 Reimbursement of compensation—causes of action
(1)
Section 8E (which was inserted by the amending Act) applies in relation to causes of action arising before or after the commencement of that section, including where proceedings were pending at that commencement.
(2)
However, section 8E does not apply in relation to a cause of action where proceedings were determined before the commencement of that section.
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Workplace Injury Management and Workers Schedule 7 Compensation Act 1998 No 86 Schedule 7 Amendment of Workplace Injury
Management and Workers
Compensation Act 1998 No 86(Section 3)
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
de facto relationship means the relationship between
two unrelated adult persons:
(a)
who have a mutual commitment to a shared life, and
(b) whose relationship is genuine and continuing, and
and who are not married to one another.
spouse of a person means:(c) who live together, (a) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998-a husband or wife of the person. or (b) in relation to an injury received after that commencement:
( i ) a husband or wife of the person, or ( i i ) the other party to a de facto relationship with the person.
[2] Section 4 (1) definition of “dependants”
Omit paragraph (c). Insert instead:
(c) a person so dependent who:
( i ) in relation to an injury received before the commencement of Schedule 7 to the
Workers Compensation Legislation Amendment (Dust Diseases and Other
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Schedule 7 Amendment of Workplace Injury Management and Workers
Compensation Act 1998 No 86Matters) Act 1998— although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or
(ii) in relation to an injury received after that commencement-is the other party to a de facto relationship with the worker.
[3] Section 4 (4) and (5)
Insert after section 4 (3):
(4) De facto relationship For the purposes of determining whether two persons are in a de facto relationship for the purposes of this Act, all the circumstances of the relationship are to be taken into account. including (but without being limited to) matters prescribed by the regulations for the purposes of this subsection. (5) Meaning of “related” The following provisions have effect for the purposes of this section:
(a) Persons are related if: ( i ) one is the parent, or another ancestor, of the other, or
( i i ) one is the child, or another descendant, of the other, or
( i i i ) they have a parent in common.
(b) For the purposes of paragraph (a):
( i )
a person is taken to be an ancestor or descendant of another person even if the relationship between them is traced through, or to, a person who is or was an adopted child, and
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 No 130
Amendment of Workplace Injury Management and Workers Schedule 7 Compensation Act 1998 No 86 (ii) the relationship of parent and child between an adoptive parent and an adopted child is taken to continue even though the order by which the adoption was effected has been annulled, cancelled or discharged or the adoption has otherwise ceased to be effective, and
(iii) the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is taken to be or to have been the natural relationship of child and parent, and
( iv) a person who has been adopted more than once is taken to be the child of each person by whom he or she has been adopted.
(c)
In paragraph (b), adopted means adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
[Minister’s second reading speech made in—
Legislative Assembly on 29 October 1998
Legislative Council on 17 November 1998]
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