In this matter the Court of Appeal considered the application of the Limitation of Actions Act to “dependency claims”. The appellant was the widow of Mr Hall who had died in May 1995 of mesothelioma. He had been employed by each of the relevant respondents at different times between 1966 and 1978 during which he had been exposed to asbestos dust. At the date of his death the three year limitation period for the commencement of an action for damages for negligence or breach of duty had expired under s 11 of the Limitation of Actions Act. The question for the Court was whether or not the plaintiff’s action for a dependency claim was also barred?
The first issue was whether or not s 11(1) of the Limitation of Actions Act applied to dependency claims? That section imposed a three year limitation period for certain actions in which the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person “or damages in respect of injury resulting from the death of any person”. The highlighted words were added in 1981 and, at the same time provision was made for the extension of the limitation period in the circumstances referred to in s 29 or s 31 of the Act. In 1995 the provisions giving rise to the existence of dependency claims was moved from the Common Law Practice Act and subsequently to the Civil Proceedings Act in 2011. At first instance it was held that the limitation period of three years in s 11(1) did apply to the dependency claims. That conclusion was accepted by the Court of Appeal although that did not conclude the matter.
The next question concerned the application of s 11(2) of the Limitation of Actions Act which provided that right of action relating to personal injury resulting from a dust-related condition is not subject to limitation period under an Act or law or rule of law. The precise issue was whether or not this had the effect of providing that dependency claims relating to dust related diseases were within the scope of s 11(2)? The Court held that the words “a right of action relating to personal injury” were of wide import by the use of the expression “relating to” which was close to “in relation to” with the result that dependency claims were within s 11(2) such that no limitation period applied in relation to such claims where they arose out of a dust related disease.
The discussion of the Court (Muir JA with whom McMurdo P and Atkinson J agreed) is interesting as, in part, it prefers an interpretation informed by the intention of the Minister who introduced the legislation into the Parliament than one which appeared from the natural reading of the words. The Court relied on an approach to statutory interpretation which identified that if the target of a legislative provision is clear, the court’s duty is to ensure that it is hit rather than to record that it has been missed.
It is also to be noted that the Court held that the mere fact that the limitation period for Mr Hall’s (the deceased’s) personal injuries action had expired on his death did not prevent the dependency claim from arising as, at the date of his death, he had an entitlement to damages. In the result it was held that there was no relevant limitation period which prevented the bringing of the dependency claim.