Version incorporating amendments as at
1 July 2014
table of provisions
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 1
3 Definitions 1
Part 2—Provisional Damages for Asbestos-related Conditions 3
4 Provisional damages for asbestos-related conditions 3
5 Only one subsequent award of damages for asbestos-related condition permitted 4
6 Regard may be had to initial award of damages 4
7 Regard must be had to legal costs incurred in initial action 4
8 Transitional provision 5
ENDNOTES 7
General Information 7
Table of Amendments 8
Explanatory Details 9
Version No.004
Asbestos Diseases Compensation Act 2008
No. 69 of 2008
Version incorporating amendments as at
1 July 2014
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purposes
The main purposes of this Act are—
(a) to permit the awarding of provisional damages to persons suffering from asbestos-related conditions; and
(b) to amend the Accident Compensation Act 1985 in relation to proceedings relating to asbestos-related conditions; and
(c) to amend the Wrongs Act 1958 in relation to dependants' claims for damages arising from deaths caused by dust-related conditions.
2 Commencement
This Act comes into operation on the day after the day on which it receives the Royal Assent.
3 Definitions
(1) In this Act—
asbestos-related condition means—
(a) asbestosis; or
(b) asbestos induced carcinoma; or
(c) asbestos-related pleural diseases; or
(d) mesothelioma;
injured person means a person who is suffering from, or has suffered from, an asbestos-related condition;
subsequent action means an action for a subsequent award of damages for an asbestos-related condition;
subsequent award has the meaning set out in section 4.
(2) In this Act, a condition evidenced solely by the presence of pleural plaques is not an asbestos-related condition.
s. 3
Part 2—Provisional Damages for Asbestos-Related Conditions
4 Provisional damages for asbestos-related conditions
s. 4
If it is proved or admitted in an action for damages in respect of an asbestos-related condition that the injured person may at some time in the future develop another asbestos-related condition wholly or partly as a result of the act or omission giving rise to the cause of action, the court may—
(a) award, in the first instance, damages for the asbestos-related condition assessed on the assumption that the injured person will not develop another asbestos-related condition; and
(b) award damages at a future date if the injured person does develop another asbestos-related condition (the subsequent award).
Note to s. 4 amended by No. 67/2013 s. 649(Sch. 9 item 1).
Note
A claim by an injured person for damages for an asbestos-related condition may involve an injury to which—
(a) t he Workers Compensation Act 1958 applies, if the injury arises out of, or in the course of, the injured person's employment before 4 p.m. on 31 August 1985;
(b) the Accident Compensation Act 1985 applies, if the injury arises out of, or in the course of, or was due to the nature of, the injured person's employment on or after 4 p.m. on 31 August 1985 but before 1 July 2014;
(ba) the Workplace Injury Rehabilitation and Compensation Act 2013 applies, if the injury arises out of, or in the course of, or was due to the nature of the injured person's employment on or after 1 July 2014;
(c) the Wrongs Act 1958 applies, if the injury did not arise out of or in the course of, or was not due to the nature of, the employment of the injured person.
5 Only one subsequent award of damages for asbestos-related condition permitted
s. 5
If a payment of provisional damages has been made to an injured person in respect of an asbestos-related condition only one subsequent award of damages for another asbestos-related condition can be made to that person.
6 Regard may be had to initial award of damages
If a payment of provisional damages has been made to an injured person for an asbestos-related condition, a court may have regard to those damages when assessing damages to be awarded in a subsequent action for damages for another asbestos-related condition suffered by that person.
7 Regard must be had to legal costs incurred in initial action
(1) If a payment of provisional damages has been made to an injured person for an asbestos-related condition, a court or a registrar of a court must have regard to the legal costs incurred in respect of the action for those damages (the initial action) when assessing the amount to be awarded as legal costs in a subsequent action for damages by that person for another asbestos-related condition.
(2) The purpose of subsection (1) is to ensure that legal costs awarded in a subsequent action are not in respect of work undertaken for the purposes of the initial action.
(3) In considering any possible duplication of legal costs, the court or registrar must have regard to the following factors—
(a) any work undertaken in the initial action—
(i) to identify the party or parties to be named as defendants; and
(ii) to identify the circumstances of the injured person's exposure to asbestos; and
(iii) in relation to the negligence or breach of duty of the party or parties to be named as defendants; and
(iv) as to the relationship and causal nexus between the injured person's condition and the exposure to asbestos; and
(b) any other factors that the court or registrar considers appropriate.
8 Transitional provision
s. 8
(1) This Act applies to causes of action arising and actions commenced before or after the commencement of this Act.
(2) However subsection (1) does not apply to an action commenced before the commencement of this Act if—
(a) the hearing of the action had commenced before the commencement of this Act; or
(b) damages were awarded or a settlement reached (other than for provisional damages) in that action before that commencement.
Pt 3 (Heading and ss 9–11) repealed by No. 69/2008 s. 11.
s. 9
Pt 4 (Heading and ss 12–14) repealed by No. 69/2008 s. 14.
ENDNOTES
General Information
Minister's second reading speech—
Legislative Assembly: 9 October 2008
Legislative Council: 30 October 2008
Endnotes
The long title for the Bill for this Act was "A Bill for an Act to permit the awarding of provisional damages to persons suffering from asbestos-related conditions, to amend the Accident Compensation Act 1985 in relation to actions relating to asbestos-related conditions, to amend the Wrongs Act 1958 in relation to dependants' claims for damages arising from deaths caused by dust-related conditions and for other purposes."
The Asbestos Diseases Compensation Act 2008 was assented to on 25 November 2008 and came into operation on 26 November 2008: section 2.
Table of Amendments
Endnotes
This Version incorporates amendments made to the Asbestos Diseases Compensation Act 2008 by Acts and subordinate instruments.