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Queensland Judgments

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Authorised Reports & Unreported Judgments
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Hall v Don Faulkner Motors Pty Ltd & Ors  
Unreported Citation: [2013] QSC 331
EDITOR'S NOTE

This is an important decision relating to the nature of dependency claims and the operation of the Limitation of Actions Act, specifically in relation to the imposition of limitation periods, the ability to extend the limitation period and the application of the limitation period exception concerning “dust related” diseases.

The plaintiff in this action had commenced a dependency claim on her own behalf and on behalf of her children in respect of the death of her husband who had died after contracting mesothelioma. It was alleged that he had contracted that disease in the course of his employment handling asbestos covered car parts, including brake pads. The husband had died in May 1995 and the proceedings were commenced in July 2011. WorkCover (acting instead of the employer which was now deregistered) raised a limitation point against the claim. From 1 July 2010, the Limitations of Actions Act was amended (by the Civil Liability and Other Legislation Amendment Act 2010) such that s 11(2) provided that an action relating to personal injury resulting from a dust-related condition was not subject to a limitation period under an Act or law or rule of law. A new transitional provision was inserted into the Limitations of Actions Act for the purposes of facilitating the application of the new provision. One question before the Court was whether or not s 11(2) applied to a dependency claim?

An initial question in the matter was whether or not a limitation period had applied in relation to a dependency claim since 1981? In a decision of the Supreme Court in Ex Parte Revis [1981] Qd R 10, it had been held that the Limitation of Actions Act did not apply to dependency claims, although the Act was thereafter amended with the intention of imposing a period of limitation. Mullins J also discussed a number of other amendments to various pieces of legislation relating to the bringing of such claims, including legislation which ensured that limitation periods be regarded as substantive and not merely procedural.

The plaintiff argued that because a dependency claim was not a claim for negligence or breach of duty it was not within the scope of s 11(1) of the Limitation of Actions Act in 1981, however, her Honour found that it was within the scope of the amended Act because it was a claim for “damages in respect of injury”.

The next question was whether or not a dependency claim, where the provider had died after contracting mesothelioma, was within the scope of s 11(2) being a right of action related to personal injury such that there was no limitation period. In her reasons for judgment her Honour conducts a indepth analysis of the competing arguments on this point and concludes that the dependency claim does not fall within s 11(2). The result was that the action was statute barred.

* NOTE: an appeal was filed in relation to this matter on 20 December 2013.