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


CIVIL LIABILITY (DUST DISEASES) AND OTHER LEGISLATION AMENDMENT BILL 2005

           Queensland



Civil Liability (Dust Diseases)
and Other Legislation
Amendment Bill 2005

 


 

 

Queensland Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Part 2 Dust diseases amendments Division 1 Amendment of Succession Act 1981 2 Act amended in div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Amendment of s 66 (Survival of actions) . . . . . . . . . . . . . . . . . . . 4 4 Insertion of new pt 7, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Division 3 Transitional provision for Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 75 Application of amendment made by Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Division 2 Amendment of Limitation of Actions Act 1974 5 Act amended in div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 6 Insertion of new s 30A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 30A Application of s 30 in actions for dust-related conditions ............................. 6 7 Insertion of new pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Part 5 Transitional provision 44 Transitional provision for Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 ................................. 7 Part 3 Other Amendments Division 1 Amendment of Civil Liability Act 2003 8 Act amended in div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9 Replacement of s 54 (Damages for loss of earnings or earning capacity) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

 


 

2 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 54 Damages for loss of earnings. . . . . . . . . . . . . . . . . . . 8 10 Insertion of new ch 5, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Part 3 Transitional provision for Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 81 Awards of damages for loss of earnings . . . . . . . . . . 8 Division 2 Amendment of Personal Injuries Proceedings Act 2002 11 Act amended in div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12 Amendment of s 6 (Application of Act) . . . . . . . . . . . . . . . . . . . . . 9 13 Amendment of s 81 (Particular provisions having continuing effect) ......................................... 10 14 Insertion of new ch 4, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Part 5 Transitional provisions for Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 83 Multiple pre-court procedures . . . . . . . . . . . . . . . . . . 11 84 Continuing application of repealed s 51 . . . . . . . . . . . 12 15 Amendment of sch (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

 


 

2005 A Bill for an Act to amend the Succession Act 1981 and the Limitation of Actions Act 1974 to make further provision in relation to damages when death results from a dust-related condition, and for other matters

 


 

s1 4 s3 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Civil Liability (Dust Diseases) 4 and Other Legislation Amendment Act 2005. 5 Part 2 Dust diseases amendments 6 Division 1 Amendment of Succession Act 1981 7 Clause 2 Act amended in div 1 8 This division amends the Succession Act 1981. 9 Clause 3 Amendment of s 66 (Survival of actions) 10 (1) Section 66-- 11 insert-- 12 `(2A) Despite subsection (2)(a), damages for pain and suffering, for 13 any bodily or mental harm or for curtailment of expectation of 14 life, may be recovered if-- 15 (a) the cause of action related to personal injury resulting 16 from a dust-related condition; and 17 (b) the deceased person commenced a proceeding in 18 relation to the cause of action before the deceased 19 person died; and 20

 


 

s4 5 s4 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 (c) the deceased person died as a result of the dust-related 1 condition or the dust-related condition was a 2 contributing factor to the deceased person's death. 3 `(2B) To remove any doubt, it is declared that personal injury 4 resulting from a dust-related condition does not include 5 personal injury resulting from smoking or other use of 6 tobacco products or exposure to tobacco smoke.'. 7 (2) Section 66-- 8 insert-- 9 `(10) In this section-- 10 dust-related condition see the Civil Liability Act 2003, 11 schedule 2. 12 personal injury includes disease.'. 13 Clause 4 Insertion of new pt 7, div 3 14 Part 7-- 15 insert-- 16 `Division 3 Transitional provision for Civil 17 Liability (Dust Diseases) and Other 18 Legislation Amendment Act 2005 19 `75 Application of amendment made by Civil Liability 20 (Dust Diseases) and Other Legislation Amendment 21 Act 2005 22 `Section 66, as amended by the Civil Liability (Dust Diseases) 23 and Other Legislation Amendment Act 2005, applies in 24 relation to all proceedings surviving for the benefit of a 25 deceased person's estate whether commenced before or after 26 the commencement of this section unless judgment has been 27 given in the proceeding or the proceeding has otherwise 28 ended.'. 29

 


 

s5 6 s6 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 Division 2 Amendment of Limitation of Actions 1 Act 1974 2 Clause 5 Act amended in div 2 3 This division amends the Limitation of Actions Act 1974. 4 Clause 6 Insertion of new s 30A 5 After section 30-- 6 insert-- 7 `30A Application of s 30 in actions for dust-related 8 conditions 9 `(1) This section applies for the purposes of applying section 30 in 10 relation to a right of action if-- 11 (a) the right of action relates to personal injury resulting 12 from a dust-related condition; and 13 (b) the knowledge of the person suffering the injury of the 14 nature and extent of the injury would, apart from 15 subsection (2), be taken to be knowledge of a material 16 fact of a decisive character. 17 `(2) The knowledge is taken not to be knowledge of a material fact 18 of a decisive character unless it is within the means of 19 knowledge of the person suffering the injury that the 20 dust-related condition is, or will be, a contributing factor to 21 significant loss of amenities, or expectation, of the person's 22 life. 23 `(3) To remove any doubt, it is declared that personal injury 24 resulting from a dust-related condition does not include 25 personal injury resulting from smoking or other use of 26 tobacco products or exposure to tobacco smoke. 27 `(4) In this section-- 28 dust-related condition see the Civil Liability Act 2003, 29 schedule 2.'. 30

 


 

s7 7 s9 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 Clause 7 Insertion of new pt 5 1 After part 4-- 2 insert-- 3 `Part 5 Transitional provision 4 `44 Transitional provision for Civil Liability (Dust 5 Diseases) and Other Legislation Amendment Act 6 2005 7 `Section 30A, as inserted by the Civil Liability (Dust 8 Diseases) and Other Legislation Amendment Act 2005, 9 applies in relation to all actions whether the right of action 10 accrued before or after the commencement of this section 11 unless-- 12 (a) judgment has been given in relation to the action; or 13 (b) the action has settled or been discontinued; or 14 (c) an application to extend the period of limitation for the 15 action under this Act has been refused.'. 16 Part 3 Other Amendments 17 Division 1 Amendment of Civil Liability Act 18 2003 19 Clause 8 Act amended in div 1 20 This division amends the Civil Liability Act 2003. 21 Clause 9 Replacement of s 54 (Damages for loss of earnings or 22 earning capacity) 23 Section 54-- 24 omit, insert-- 25

 


 

s 10 8 s 10 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 `54 Damages for loss of earnings 1 `(1) In making an award of damages for loss of earnings, including 2 in a dependency claim, the maximum award a court may 3 make is for an amount equal to the limit fixed by 4 subsection (2). 5 `(2) The limit is an amount equal to the present value of 3 times 6 average weekly earnings per week for each week of the period 7 of loss of earnings. 8 `(3) In this section-- 9 present value means the value when the award is made.'. 10 Clause 10 Insertion of new ch 5, pt 3 11 Chapter 5-- 12 insert-- 13 `Part 3 Transitional provision for Civil 14 Liability (Dust Diseases) and 15 Other Legislation Amendment 16 Act 2005 17 `81 Awards of damages for loss of earnings 18 `(1) It is declared that section 54, as amended by the Civil Liability 19 (Dust Diseases) and Other Legislation Amendment Act 2005, 20 applies in relation to all awards for damages for loss of 21 earnings made on or after the commencement of this section, 22 whether or not liability for the loss arose before or after the 23 commencement. 24 `(2) To remove any doubt, it is declared that section 54 does not 25 apply in relation to an appeal against an award for damages 26 for loss of earnings heard on or after the commencement if the 27 award was made before the commencement.'. 28

 


 

s 11 9 s 12 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 Division 2 Amendment of Personal Injuries 1 Proceedings Act 2002 2 Clause 11 Act amended in div 2 3 This division amends the Personal Injuries Proceedings Act 4 2002. 5 Clause 12 Amendment of s 6 (Application of Act) 6 Section 6(2)-- 7 omit, insert-- 8 `(2) However, this Act does not apply to-- 9 (a) personal injury within the meaning of the Motor 10 Accident Insurance Act 1994 and in relation to which 11 that Act applies; or 12 (b) accidental bodily injury caused by, through, or in 13 connection with a motor vehicle, within the meaning of 14 the Motor Vehicles Insurance Act 1936, and in relation 15 to which that Act applies; or 16 (c) injury within the meaning of the Workers' 17 Compensation and Rehabilitation Act 2003 and in 18 relation to which that Act applies, but only to the extent 19 that an entitlement to seek damages within the meaning 20 of that Act for the injury is regulated by chapter 5 of that 21 Act; or 22 23 Example for paragraph (c)-- 24 W, a worker employed by E, sustains an injury in the course of 25 employment. The injury is caused by a design fault in a machine 26 designed by X Company. 27 If, as a result of sustaining the injury, W seeks damages against 28 E, W must comply with the pre-court procedures under the 29 Workers' Compensation and Rehabilitation Act 2003 before 30 starting a proceeding in a court for damages against E. This Act 31 does not require W to comply with pre-court procedures under 32 this Act in seeking damages against E. 33 If, as a result of sustaining the injury, W seeks damages against 34 X Company, W must comply with the pre-court procedures

 


 

s 13 10 s 14 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 1 under this Act before starting a proceeding in a court for 2 damages against X Company. (d) injury within the meaning of the WorkCover 3 Queensland Act 1996 and in relation to which that Act 4 applies, but only to the extent that an entitlement to seek 5 damages within the meaning of that Act for the injury is 6 regulated by chapter 5 of that Act; or 7 (e) injury within the meaning of the Workers' 8 Compensation Act 1990 suffered on or after 1 January 9 1996 and in relation to which that Act applies, but only 10 to the extent that an entitlement to seek damages within 11 the meaning of that Act for the injury is regulated by 12 part 11 of that Act; or 13 (f) injury within the meaning of the Workers' 14 Compensation Act 1990 suffered before 1 January 1996 15 and in relation to which that Act applies, but only to the 16 extent that the injury suffered created, independently of 17 that Act, a legal liability in the employer of the person 18 suffering the injury for which the employer was 19 indemnified under that Act in relation to the injury or 20 required by that Act to be so indemnified; or 21 (g) injury within the meaning of the Workers' 22 Compensation Act 1916 and in relation to which that 23 Act applies, but only to the extent that the injury 24 suffered created, independently of that Act, a legal 25 liability in the employer of the person to pay damages in 26 relation to the injury.'. 27 Clause 13 Amendment of s 81 (Particular provisions having 28 continuing effect) 29 Section 81, second dot point-- 30 omit. 31 Clause 14 Insertion of new ch 4, pt 5 32 Chapter 4-- 33 insert-- 34

 


 

s 14 11 s 14 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 `Part 5 Transitional provisions for Civil 1 Liability (Dust Diseases) and 2 Other Legislation Amendment 3 Act 2005 4 `83 Multiple pre-court procedures 5 `(1) This section applies if, before the commencement of this 6 section, a claimant started-- 7 (a) pre-court procedures under chapter 2, part 1 in relation 8 to an incident against a respondent; and 9 (b) recovery procedures under, or as permitted by, a relevant 10 Workers' Compensation Act or a relevant Motor 11 Accident Insurance Act in relation to the same incident 12 and against the same respondent. 13 `(2) The pre-court procedures against the respondent are stayed. 14 `(3) A claimant is not entitled to start a proceeding in a court 15 against the respondent only because the pre-court procedures 16 are stayed under this section. 17 `(4) A court may, on application by the claimant, lift the stay if the 18 court is satisfied that-- 19 (a) a claim under a relevant Workers' Compensation Act or 20 a relevant Motor Accident Insurance Act in relation to 21 the incident against the respondent has been incorrectly 22 made; and 23 (b) completion of the pre-court procedures is necessary and 24 appropriate to deal with the claim. 25 `(5) Any liability for costs in relation to the pre-court procedures 26 stayed under this section is taken to be a liability for costs in 27 the recovery procedures unless the stay is lifted under 28 subsection (4). 29 `(6) In this section-- 30 recovery procedures means-- 31 (a) procedures, other than proceedings, taken under a 32 relevant Motor Accident Insurance Act or relevant 33

 


 

s 15 12 s 15 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 Workers' Compensation Act to recover damages for 1 personal injury; or 2 (b) proceedings to recover damages for personal injury. 3 relevant Motor Accident Insurance Act means-- 4 (a) the Motor Accident Insurance Act 1994; or 5 (b) the Motor Vehicles Insurance Act 1936. 6 relevant Workers' Compensation Act means-- 7 (a) the Workers' Compensation and Rehabilitation Act 8 2003; or 9 (b) the WorkCover Queensland Act 1996; or 10 (c) the Workers' Compensation Act 1990; or 11 (d) the Workers' Compensation Act 1916. 12 `84 Continuing application of repealed s 51 13 `(1) Section 51 (Damages for loss of earnings or earning capacity) 14 as in force immediately before 9 April 2003 has no effect in 15 relation to personal injury arising out of an incident happening 16 before that day. 17 `(2) Instead, the Civil Liability Act 2003, section 54 as in force on 18 the commencement of this section has effect in relation to 19 personal injury arising out of an incident happening before 20 9 April 2003. 21 `(3) To remove any doubt, it is declared that subsections (1) and 22 (2) do not apply in relation to an appeal against an award for 23 damages for loss of earnings heard on or after the 24 commencement of this section if the award was made before 25 the commencement.'. 26 Clause 15 Amendment of sch (Dictionary) 27 Schedule, definition average weekly earnings-- 28 omit. 29

 


 

13 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 State of Queensland 2005

 


 

AMENDMENTS TO BILL

1 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005 Amendments agreed to during Consideration 1 Clause 6-- At page 6, line 13, after `dust-related condition'-- insert-- `that is, or will be, a contributing factor to significant loss of amenities, or expectation, of a person's life'.

 


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