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Hall v Don Faulkner Motors Pty Ltd

 

[2013] QSC 331

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

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

PARTIES:

KAREN LESLEY HALL
(plaintiff)
v
DON FAULKNER MOTORS PTY LTD
(ACN 009 711 102)
(first defendant)
IRVING MOTORS PTY LTD
(ACN 009 877 972)
(second defendant)
WORKCOVER QUEENSLAND
(third defendant)
v
A P EAGERS LTD (Formerly Eagers Holdings Ltd) (ACN 009 680 013)
(first third party)
SALMON STREET LTD (Formerly General Motors Holden’s Limited) (ACN 004 125 197)
(second third party)  

FILE NO:

BS5919 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application for determination of separate question

DELIVERED ON:

6 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2013; written submissions dated 12 August 2013 and 19 August 2013.

JUDGE:

Mullins J

ORDER:

  1. The answer to the separate question “Is the plaintiff’s claim for damages as pleaded in paragraphs 7, 8, 26 and 27 and 28 of the statement of claim barred by reason of s 11(1) of the Limitations of Actions Act 1974?” is “Yes.”
  2. The application is adjourned to a date to be fixed.

CATCHWORDS:

LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATION GENERALLY – OPERATION OF STATE STATUTES IN PARTICULAR ACTIONS – OTHER MATTERS – where the plaintiff brings a dependency claim on behalf of herself and her children in respect of the death of her late husband 16 years after the death occurred – where the deceased died as a result of mesothelioma – where the deceased never brought an action during his lifetime for damages for personal injuries in respect of his mesothelioma – whether the plaintiff’s claim is statute barred due to the operation of the Limitation of Actions Act 1974 (Qld)

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS OR PHRASES – GENERALLY – where the plaintiff brings a dependency claim on behalf of herself and her children in respect of the death of her late husband 16 years after the death occurred – where the deceased died as a result of mesothelioma – whether the plaintiff’s claim is statute barred as a result of the operation of s 11(1) of the Limitation of Actions Act 1974 (Qld) – whether the abolition by s 11(2) of the Limitation of Actions Act 1974 (Qld) of the limitation period for a right of action relating to personal injury resulting from a dust-related condition applies to a dependency claim where the deceased died from a dust-related condition

Acts Interpretation Act 1954, s 14A, s 14B

Choice of Law (Limitation Periods) Act 1996, s 5

Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005, s 6

Civil Proceedings Act 2011, s 64

Common Law Practice Act 1867, s 12, s 14

Common Law Practice and Limitation of Actions Acts Amendment Act 1981, s 6, s 9

Law Reform (Limitation of Actions) Act 1956, s 5, s 6

Limitation of Actions Act 1974, s 5, s 7, s 11, s 29, s 31, 40, 43A

Supreme Court Act 1995, s 17

Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220, considered

De Sales v Ingrilli (2002) 212 CLR 338, considered

W v Eaton (2011) 20 Tas R 105, considered

HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553, considered

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, considered

Ex parte Revis [1981] Qd R 10, considered

Unsworth v Commissioner for Railways (1958) 101 CLR 73, considered

COUNSEL:

M Grant-Taylor QC and S Tzouganatos for the plaintiff

W Sofronoff QC SG and K F Holyoak for the second and third defendants 

SOLICITORS:

Turner Freeman Lawyers for the plaintiff

Bruce Thomas Lawyers for the second and third defendants

  1. The second and third defendants (the defendants) applied for the determination of a separate question in this dependency claim brought by the plaintiff on her own behalf and on behalf of her children in respect of the death of her late husband Mr Gregory Hall who died on 28 May 1995. This proceeding was filed on 7 July 2011. The plaintiff alleges that her husband’s death was caused by mesothelioma as a result of the negligence, breach of contract or breach of statutory duty of the first and second defendants. The first defendant has been deregistered and the proceeding is being litigated against the third defendant as the relevant insurer of the first and second defendants.
  1. Although technically an application for an order that the question be decided separately before the trial, the parties were agreed that the question raised by the limitation defence pleaded in paragraph 15 of the defence of the defendants should be determined separately and the hearing of the application was directed to the issue expressed in the application:

“Is the plaintiff’s claim for damages as pleaded in paragraphs 7, 8, 26, 27 and 28 of the statement of claim barred by reason of s 11(1) of the Limitations of Actions Act 1974?”

  1. Paragraphs 7 and 8 of the statement of claim set out the capacity in which the plaintiff sues as dependent spouse and on behalf of the children of her marriage with Mr Hall. Paragraphs 26, 27 and 28 of the statement of claim set out the claim for loss of dependency. Paragraph 15 of the defence alleges that the plaintiff may not commence and maintain the proceeding in respect of the losses of dependency by reason of s 11(1) of the Act, as the cause of action in respect of the dependency losses accrued no later than the date of Mr Hall’s death and this proceeding was not commenced prior to the expiration of the limitation period on 28 May 1998, making this proceeding statute-barred.
  1. Mr Hall had never brought an action during his lifetime for his condition of mesothelioma. It appears that it was not diagnosed until 9 August 1994, by which stage the condition was advanced and terminal. Mr Hall had been employed as a spare parts assistant by the first defendant between 1966 and 1971 and by the second defendant between 1976 and 1978. During the course of employment with both the first and second defendants, it is claimed Mr Hall handled car parts and asbestos brake pads and brake shoes and was exposed to asbestos dust and fibre. The plaintiff alleges that Mr Hall developed mesothelioma as a result of the exposure to asbestos dust and fibre during his employment.

The relevant legislation

  1. The plaintiff’s dependency claim is now pursued under s 64 of the Civil Proceedings Act 2011 (CPA):

“(1) This section applies if—

(a)a death is caused by a wrongful act or omission, whether or not an offence; and

(b)the act or omission would, if death had not resulted, have entitled the deceased person to recover damages in a proceeding for personal injury.

(2) The person who would have been liable if the death had not resulted is liable for damages despite the death and whether or not the death was caused by circumstances that were an offence.

(3) In a proceeding under this part, a court may award to the members of the deceased person's family the damages it considers to be proportional to the damage to them resulting from the death.”

  1. There are two pre-conditions to the dependants bringing’ a dependency claim: (1) the wrongful death; and (2) if death had not resulted, the wrongful act or omission would have entitled the deceased to recover damages in a proceeding for personal injury.
  1. Prior to the commencement of the Civil Liability and Other Legislation Amendment Act 2010 (the Amendment Act) on 1 July 2010, s 11 of the Limitation of Actions Act 1974 (the Act) provided:

“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.”

  1. After 1 July 2010, s 11 of the Act provided:

“(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.

  1. 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.
  1. 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.
  1. In this section—

dust-related condition see the Civil Liability Act 2003,

schedule 2.”

  1. The Amendment Act inserted a new s 47 into the Act which is a transitional provision arising from the enactment of s 11(2) of the Act.  Subsections (1) and (2) of s 47 provide:

“(1)Section 11(2) applies to a right of action relating to personal injury resulting from a dust-related condition whether the right of action accrued before or after the commencement of this section.

(2)However, subsection (1) does not apply if—

  1. judgment has been given in the action; or
  1. the action has been settled or discontinued; or
  1. (c)
    an application before the commencement of this section to extend the period of limitation applying to the action before the commencement was refused by a court.”

Issues

  1. It is not in issue that mesothelioma is a dust-related condition within the meaning of s 11(2) of the Act. The defendants formulate the question to be decided on the application as whether s 11(2) of the Act applies to the dependency claim, so that there is no time bar. The plaintiff contends that there has been no limitation period applying to dependency claims since 1981 and formulates the issues to be addressed, in order to answer the question expressed in the application, as:
  1. does s 11(1) of the Act apply to a dependency claim?
  1. if s 11(1) of the Act applies to a dependency claim, does s 11(2) of the Act apply to the dependency claim?
  1. If s 11(2) of the Act does not apply, is the dependency claim statute barred?
  1. The plaintiff contends that if any of these questions are answered in the negative, it follows that the question expressed in the application should be answered in the negative. The threshold issue for this set of questions is whether any limitation period applies to a dependency claim, since the commencement of the Common Law Practice and Limitation of Actions Acts Amendment Act 1981 (the 1981 Act). 

Legislative history of dependency claims in Queensland

  1. At common law there was no civil remedy available to dependants for the wrongful death of a person and this was addressed in the United Kingdom by the enactment of the Fatal Accidents Act 1846 (UK), known as Lord Campbell’s Act, which conferred on dependants the right to compensation for the death of another.  An equivalent statutory cause of action was enacted in Queensland in s 12 of the Common Law Practice Act 1867:

“12.Whensoever the death of a person shall be caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony.”

  1. The compensation recoverable under a dependency claim is limited to the economic benefits lost by the dependants: De Sales v Ingrilli (2002) 212 CLR 338 at [11], [55], [91] and [126]. 
  1. The original limitation period that applied to such a dependency claim was set out in s 14 of that Act:

“14.Provided that not more than one action shall lie for and in respect of the same subject matter of complaint and that every such action shall be commenced within twelve calendar months after the death of such deceased person.”  

  1. The limitation period was increased to three years, as a result of the amendment made to s 14 of the Common Law Practice Act 1867 by s 6 of the Law Reform (Limitation of Actions) Act 1956. 
  1. When the Act was enacted, s 14 of the Common Law Practice Act 1867 remained.  Section 7 of the Act expressly provided that the Act “does not apply to an action … for which a limitation period is fixed by or under an enactment other than this Act.”  The effect of s 7 of the Act was considered by Wanstall CJ in Ex parte Revis [1981] Qd R 10 where a widow sought an extension of the period of limitation under s 31 of the Act to bring a dependency claim arising from the death of her husband.  Wanstall CJ applied s 7 of the Act to conclude that the Act did not apply to a dependency claim and also held that a dependency claim was not within the then terms of s 31 of the Act which was confined to “actions for damages for negligence … where the damages claimed by the plaintiff for the negligence … consist of or include damages in respect of personal injury to any person” on the basis that a dependency claim was not an action to recover damages in respect of personal injury.
  1. The decision in Revis resulted in the 1981 Act.  Pursuant to s 6 of the 1981 Act, that part of s 14 of the Common Law Practice Act 1867 that provided for the limitation period in respect of a dependency claim was omitted from s 14.  Pursuant to s 9 of the 1981 Act, s 11 of the Act was amended to include a reference to “damages in respect of injury resulting from the death of any person” and similar amendments were also made by the 1981 Act to s 29 and s 31 of the Act.  The intention of these amendments (which is apparent from the amendments themselves) was to include the limitation period for a dependency claim in the Act and make the provisions of the Act relating to extension of the limitation period also apply to a dependency claim and thus overcome the effect of the decision in Revis.  (It is the plaintiff’s submission that the 1981 Act did not achieve this intention, but I will deal with that submission below.)    
  1. In 1995 the provisions from the Common Law Practice Act 1867 (including those governing dependency claims) were relocated to the Supreme Court Act 1995. 
  1. The Act was amended in 1996 by the Choice of Law (Limitation Periods) Act 1996 which inserted s 43A into the Act to overcome the effect of the decision in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1. :

(1)In this section—

limitation law means a law (including, but not limited to, this Act) that provides for the limitation or exclusion of any liability or the barring of a right of action for a claim by reference to the time when a proceeding on, or the arbitration of, the claim is started.

(2)A limitation law of the State is to be regarded as part of the substantive law of the State.

(3)This section applies to a cause of action that arose before the commencement of this section but does not apply to a proceeding started before the commencement.

  1. As explained in the Explanatory Note for the Bill that resulted in the enactment of the Choice of Law (Limitation Periods) Act 1996, the Bill was based on a model Bill for the States and Territories of Australia “to ensure that limitations periods are treated as matters of substantive law for the purposes of choice of law.”  That is made clear by s 5 of the Choice of Law (Limitation Periods) Act 1996: 

“If the substantive law of a relevant place is to govern a claim before a court of the State, a limitation law of the relevant place is to be regarded as part of that substantive law and applied accordingly by the court.”

  1. The Explanatory Note for the relevant Bill explained the purpose of s 43A of the Act:

“This section characterises limitation laws of Queensland as part of the substantive law of this State so that, when the law of Queensland is applied in another jurisdiction as the law governing the proceedings, Queensland Limitation Laws will also be applied.”

  1. This provision had its genesis in overcoming forum shopping within Australia by addressing the treatment of limitation periods for the purpose of choice of law.  The decision in McKain was revisited by the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 for the purpose of choice of law where there is an interstate element.  The judgment of the majority concluded at [102]:

Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws.”

  1. The effect of John Pfeiffer was therefore to make the common law of Australia in relation to choice of law consistent with the effect of the State and Territory legislation, such as the Choice of Law (Limitation Periods) Act 1996.   
  1. Although not an amendment relating to dependency claims, the Act was amended by s 6 of the Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 to insert s 30A into the Act that enhanced the application of s 30 of the Act in respect of an action relating to personal injury resulting from a dust-related condition.
  1. The transitional provision relating to s 30A of the Act is set out in s 44 of the Act:

Section 30A, as inserted by the Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005, applies in relation to all actions whether the right of action accrued before or after the commencement of this section unless—

(a) judgment has been given in relation to the action; or

(b) the action has settled or been discontinued; or

(c) an application to extend the period of limitation for the action under this Act has been refused.”

  1. The reasons for inserting s 30A into the Act were explained in the Explanatory Notes for the Civil Liability (Dust Diseases) and Other Legislation Amendment Bill 2005:

“The diagnosis of dust-related conditions can be uncertain from a legal perspective.  Normally, the condition manifests a substantial time after the actual exposure, requiring an extension of time to be sought under the Limitation of Actions Act 1974.  Also, more serious dust-related conditions can start from lower level health problems, but this progression is not always the case.  As a result, when seeking an extension, argument can ensue as to whether knowledge of the earlier health problems constitutes a ‘material fact of a decisive character’ for the purposes of the test under the Act.  The proposed amendment clarifies that the knowledge of the nature and extent of the personal injury will constitute a material fact of a decisive character when the person knows the dust-related condition will significantly affect the person’s amenities of life, or their life expectancy.” 

  1. The Supreme Court Act 1995 was repealed by the CPA with effect from 1 September 2012.  Part 10 of the CPA now governs wrongful death proceedings.  The relevant provisions from the Supreme Court Act 1995 were modernised and relocated to the CPA.

Does s 11(1) of the Act apply to a dependency claim?

  1. It is argued on behalf of the plaintiff that, despite the amendments made to s 11 of the Act by the 1981 Act, a dependency claim is not within the introductory words of s 11 that make the provision applicable to “an action for damages for negligence, trespass, nuisance or breach of duty” and that s 11 therefore does not apply to a dependency claim.  The plaintiff’s argument is that the insertion of the words “damages in respect of injury resulting from the death of any person” into s 11 of the Act did not result in the limitation period specified in s 11 of the Act applying to a dependency claim, as a dependency claim does not fall within the category of proceedings covered by the description “an action for damages for negligence, trespass, nuisance or breach of duty.”
  1. Before s 11 of the Act was amended by the 1981 Act, s 11 was in similar terms to its predecessor which was s 5 of the Law Reform (Limitation of Actions Act) 1956.  Both provisions in those terms did not apply to a dependency claim before the 1981 Act, as the limitation period for a dependency claim was set out in s 14 of the Common Law Practice Act 1867.  The mischief at which the amendment of s 11 (and s 29 and s 30) made by the 1981 Act was directed was explained in the second reading speech (Queensland, Parliamentary Debates, Legislative Assembly, 8 September 1981, 1926 (S S Doumany, Minister for Justice and Attorney-General)):

It is also proposed in this Bill to introduce reforms in respect of periods of limitation applicable to actions brought by dependants of a deceased bread-winner pursuant to the provisions of the Common Law Practice Act.

Under the Common Law Practice Act the spouse, parents or children of a deceased bread-winner may maintain an action for damages for their loss of dependency resulting from the death of the bread-winner.

A dependency action under the Common Law Practice Act must be commenced within three years after the death of the deceased person, and there is no provision in that Act for an extension of the period of limitation. Infants who seek to claim for their loss of dependency must bring the action within three years of the death of the bread-winner. Such a limitation in respect of children can have grave consequences for their future welfare.

The Queensland Bar Association has submitted that section 29 of the Limitation of Actions Act should have application to a dependency action.  Under that provision the limitation period during which an infant may bring an action in respect of personal injury is postponed until three years after the cessation of his infancy. It is considered that the limitation period should be similarly postponed in the case of a dependency action brought by an infant or by a person under some other disability.

My attention has been drawn to a recent Supreme Court decision in which it was held that a dependency action under the Common Law Practice Act is not an action in respect of which the limitation period may be extended under the provisions of section 31 of the Limitation of Actions Act.

Section 31 of the Limitation of Actions Act enables the court in an appropriate case to extend a period of limitation where a plaintiff has become aware of relevant evidence which would enable him to maintain an action. The fact that section 31 of the Limitation of Actions Act does not apply to a dependency action can have serious consequences, particularly in a case where a widow cannot locate all relevant witnesses within the limitation period.  There may be a case in which a widow cannot ascertain the identity of the person whose negligence caused the death of her husband until after the limitation period has expired.

This Bill provides that sections 29 and 31 of the Limitation of Actions Act apply to a dependency action. The Queensland Bar Association and the Queensland Law Society support the application of those provisions to a dependency action.  This Bill would ensure that widows and children of a deceased bread-winner would have more adequate means to pursue their claims for compensation.”

  1. The plaintiff notes that there is no reference in the second reading speech for the Bill that was enacted as the 1981 Act to s 11 of the Act. The second reading speech focuses on the law reform achieved by the 1981 Act to apply the provisions in the Act for extending the limitation period to a dependency claim. The inclusion of a reference to dependency claims in s 29 and s 31 of the Act had the effect described only if the limitation period for a dependency claim was the subject of s 11 of the Act. The substantive amendment of inserting the words “or damages in respect of injury resulting from the death of any person” was made by the 1981 Act accordingly to each of s 11, s 29 and s 31 of the Act. There is therefore nothing of significance in the omission of a reference to s 11 of the Act in the second reading speech.
  1. Although the 1981 Act pre-dated the insertion of s 14A and s 14B into the Acts Interpretation Act 1954, it is still a permissible approach to consider the parliamentary debates for ascertaining the mischief with which the statute was intended to deal:  Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220, 223.  
  1. After the 1981 Act amended s 11 of the Act, the opening words to s 11 of “an action for damages for negligence, trespass, nuisance or breach of duty” must be construed within the context of the balance of the provision and the Act. The insertion of the words “or damages in respect of injury resulting from the death of any person” is consistent only with the opening words of the provision extending to a dependency claim. Without the addition of the words “or damages in respect of injury resulting from the death of any person,” it would have been arguable that s 11 did not apply to a dependency claim, but the addition of those words as one type of action for damages covered by the general description of the opening words supports the interpretation of the opening words as wide enough to encompass a dependency claim. It is also relevant that the same opening words are found and the same structure used in s 31(1) of the Act which is a provision that confers a benefit on those bringing a dependency claim: cf the approach in W v Eaton (2011) 20 Tas R 105 at [11] and [29].
  1. It is apparent from the terms of the 1981 Act that the intention of the legislature was to preserve the limitation period of three years for a dependency claim, but to relocate it to the Act where the extension of limitation provisions could also be made to apply to a dependency claim. The amendment of the Act by the 1981 Act was sufficient to impose a limitation period of three years on a dependency claim and to make the extension provisions in s 29 and s 31 of the Act applicable to a dependency claim. That means that s 11(1) of the Act applies to a dependency claim.

Does s 11(2) of the Act apply to a dependency claim?

  1. 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.
  1. 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.
  1. 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.”

  1. 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.
  1. The plaintiff relies on the breadth of the phrase “relating to”: HP Mercantile Pty Ltd v Commissioner of Taxation (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.
  1. 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) 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.
  1. 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.”
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.

Is the dependency claim otherwise statute barred?

  1. The plaintiff’s argument is that, as Mr Hall had not obtained an extension of the limitation period at the time of his death, he did not have an entitlement to recover damages in respect of the negligent act or omission that caused his mesothelioma and that prohibition upon his commencing proceedings was not lifted until the commencement of the retrospective operation of s 11(2) of the Act on 1 July 2010 which enlivened his claim for damages for personal injuries.
  1. There is a lack of logic in speaking in terms of the Amendment Act enlivening Mr Hall’s claim for damages for personal injuries on the commencement of the Amendment Act on 1 July 2010, when Mr Hall died in 1995.  The plaintiff’s argument ignores the fact that the limitation period for the plaintiff’s dependency claim expired in May 1998, as any dependency claim accrued on the death of Mr Hall.
  1. The parties’ supplementary submissions dealt with arguments on whether the limitation period applying to Mr Hall’s personal injuries action at the date of his death was a procedural or substantive law. Although s 43A of the Act was enacted to address choice of law issues, its terms are unequivocal about making a limitation law as part of the substantive law of the State. The limitation law must extend to the provisions that enable extension of the limitation period. It is arguable that at the moment of his death Mr Hall had a good claim for seeking an extension to the limitation period and that was a matter which the plaintiff could have pleaded in bringing a dependency claim in the three years after Mr Hall’s death: Crawford v Hydro-Electric Commission [1963] Tas S R 83, 88.  It is not necessary to deal with this argument, as the plaintiff’s third issue is based on isolating Mr Hall’s personal injuries action at the moment of death from the dependency claim and treating it as a matter to be able to be revived 15 years after Mr Hall’s death.  The plaintiff’s third issue does not affect the application of s 11(1) of the Act to the plaintiff’s dependency claim.

Orders

  1. The effect of s 11(1) of the Act is that the plaintiff’s dependency claim that accrued on Mr Hall’s death expired three years after his death.
  1. The answer to the separate question “Is the plaintiff’s claim for damages as pleaded in paragraphs 7, 8, 26, 27 and 28 of the statement of claim barred by reason of s 11(1) of the Limitations of Actions Act 1974?” is “Yes.”
  1. The other order I will make is to adjourn the application to a date to be fixed.
  1. This will give the parties an opportunity to reach agreement on the issue of the costs of the application for the separate question and any further orders that should be made in respect of the proceeding in light of the answer to the separate question. If the parties are unable to agree on costs and/or any further orders, they should agree on a timetable for the filing and service of submissions to enable the question of costs and any further orders to be finalised.
Close

Editorial Notes

  • Published Case Name:

    Hall v Don Faulkner Motors Pty Ltd & Ors

  • Shortened Case Name:

    Hall v Don Faulkner Motors Pty Ltd

  • MNC:

    [2013] QSC 331

  • Court:

    QSC

  • Judge(s):

    Mullins J

  • Date:

    06 Dec 2013

  • White Star Case:

    Yes

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment [2013] QSC 331 06 Dec 2013 -
Appeal Determined (QCA) [2014] QCA 135 06 Jun 2014 -

Appeal Status

{solid} Appeal Determined (QCA)