Hall v Don Faulkner Motors Pty Ltd & Ors [2013] QSC 331

 

WorkCover Queensland acting on behalf of the deregistered employer company resisted a claim of dependency for a worker who died in May of 1995, but whose claim for dependency was brought in July 2011.

The plaintiff argued that there was no limitation period in respect of the claim because it fell within a dust related disease, namely asbestos exposure.

The limitation period in respect of dust related exposure, such as asbestos, was lifted on 1 July 2010. The Civil Liability and Other Legislation Amendment Act 2010 amended s 11 of the Limitation of Actions Act 1974:

“(1) Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.
(2) However, a right of action relating to personal injury resulting from a dust-related condition is not subject to a limitation period under an Act or law or rule of law.

(3) To remove any doubt, it is declared that personal injury resulting from a dust-related condition does not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.” (underlining added)

Mullins J undertook an extensive review of the legislative history of dependency claims and the amendment to the limitation period. Justice Mullins found the claim fell within the wording of s.11(1) by reference to the phrase “damages in respect of injury”. However, her Honour found it did not fall within sub-section (2) and hence the limitation period applied and the claim was barred.

Mullins J

[34] The issue is whether “a right of action relating to personal injury” found in s 11(2) of the Act is limited to a plaintiff’s claim for damages in respect of personal injury or whether it also extends to a dependency claim.

[35] The defendants submit that it is a matter of textual significance that s 11(1) of the Act deals with two types of proceeding. The first is described as “action for damages … in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person” which does not include a dependency claim. The second is described as “action for damages … in which damages claimed by the plaintiff consist of or include … damages in respect of injury resulting from the death of any person” which does include a dependency claim. The defendants concede that the description used in s 11(2) of the Act, namely “a right of action relating to personal injury” is similar, but not the same as, the first expression in s 11(1) of the Act, and is capable of incorporating a dependency claim because of the breadth of the word “relating”. It is arguable that a dependency claim can be described broadly as a right of action that relates to the personal injury to the deceased person. The defendants submit, however, that when s 11(2) is construed in the context of s 11(1) of the Act, the expression used in s 11(2) must be refer only to the first type of proceeding provided for in s 11(1) that does not include a dependency claim and not the second type of proceeding. The defendants further submit that if s 11(2) was intended to apply to a dependency claim, the provision would have used an expression that stated clearly that it applied where the injury from the dust-related condition resulted in death.

[36] The defendants claim support from the second reading speech for the Bill that was enacted as the Amendment Act (Queensland, Parliamentary Debates, Legislative Assembly, 7 October 2009, 2608, (C R Dick, Attorney-General and Minister for Industrial Relations)) in which no mention was made of claims relating to death or dependency claims, but instead, the explanation for introducing s 11(2) into the Act is to benefit the person suffering from the dust-related condition who was pursuing a personal injuries claim for damages for that condition:

“Finally, the bill includes an amendment to abolish the statutory limitation period for dust related conditions. Dust related conditions are defined in the Civil Liability Act 2003 to include conditions such as asbestosis, mesothelioma and silicosis. While the dangers of asbestos are now well known, its harmful effects on individuals, families and society continue. The removal of the statutory limitation period for dust related conditions will mean that a person suffering from this kind of condition will no longer need to make an application to the court to extend the limitation period. The removal of this hurdle will deliver significant benefits to those suffering from a dust related condition by improving their access to justice and reducing the cost and stress associated with pursuing a claim. Given that many of the current cases of dust related disease arise from exposure during the 1950s, 1960s and 1970s when few, if any, adequate precautions were taken to protect workers and others, I am proposing that this amendment should have retrospective operation. I commend the bill to the House.”

[37] The defendants also rely on this amendment as being of the same nature as the insertion of s 30A into the Act to benefit a plaintiff who was suffering from a dust-related condition in pursuing a personal injuries action for damages for the condition while still alive. Another amendment made by the Amendment Act was to omit s 30A of the Act which was no longer necessary in the light of the greater benefit conferred by s 11(2) of the Act.

[38] The plaintiff relies on the breadth of the phrase “relating to”: HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126; (2005) 143 FCR 553 at [35]. The plaintiff submits that the dependency claim is a right of action relating to personal injury, as one of the constituent elements of a dependency claim is proof that the deceased sustained a personal injury.

[39] The plaintiff has referred to a number of authorities which have considered whether a dependency claim falls within a particular statutory provision. Each of these cases turns on the statutory context and may be affected by the purpose of the provision or whether construing the relevant provision as including or excluding a dependency claim may be beneficial to the dependants. For example, Taylor J in Unsworth v Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73, 89-91 was initially inclined not to read the words that prescribed a limit on the amount of damages recoverable against the Commissioner “in respect of personal injury” as covering a claim when personal injury resulted in death, but was compelled by the express prescription of a limit for damages as a result of the death of the person to read the words “in respect of personal injury” as applying to any action for damages in respect of personal injury or in respect of the death of any person as the result of the personal injury.

[40] The definition of “personal injury” in s 5 of the Act is that “personal injury includes a disease and an impairment of a person’s physical or mental condition.” The plaintiff argues that this definition is inclusive and does not restrict the interpretation of personal injury, so as to exclude death. The plaintiff also relies on the definition of “damage” in s 5 of the Act which is “damage includes loss of life and personal injury.”

[41] The definition of “damage” does not appear to be relevant for construing s 11(2) of the Act. The term “damage” is not used in s 11 of the Act, but is relevant to s 40 of the Act dealing with the limitation period for the contribution between tortfeasors.

[42] Though an inclusive definition is s 5, it is relevant that there is no express reference to “death” in the definition of “personal injury.” More relevant, however, is that s 11(1) itself draws the distinction between the two types of proceedings – one that includes damages in respect of personal injury and one that includes damages in respect of injury resulting from the death of any person. This gives significance to the lack of reference to “death” in s 11(2) of the Act.

[43] It is recognised in the authorities, including HP Mercantile, that refer to the breadth of the expression “relating to,” that the relationship between the two subject matters connected by “relating to” depends on the context in which the words are used.

[44] Section 14A of the Acts Interpretation Act 1954 requires a purposive approach to the interpretation of a statutory provision. The hardship intended to be alleviated by the enactment of s 11(2) of the Act does not apply to a dependency claim that accrues on the death of the deceased. Section 11(2) must also be construed in the context of the language used in s 11(1) where the distinction is drawn between two types of proceeding. In this context, the expression “relating to” does not have the effect proposed by the plaintiff.

[45] In the light of the purpose of the enactment of s 11(2) of the Act to make it easier for a person suffering from the dust-related condition to pursue an action for personal injuries, but that a dependency claim accrues on the death of the relevant person, s 11(2) of the Act should be construed as applying to the first proceeding referred in s 11(1) of the Act and not the second proceeding. Section 11(2) of the Act therefore does not apply to a dependency claim.

 

NB: the appeal was upheld and overturned the decision:

Hall v WorkCover Queensland [2014] QCA 135

Brisbane Barrister – David Cormack

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