HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-11-18 Daily Xml
Contents
Pdf Xml

ASBESTOS VICTIMS

The Hon. S.W. KEY (Ashford) (14:50): Can the Attorney-General inform the house of how the Rann government has improved access to justice for victims of asbestos-related diseases?

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (14:50): I am glad to tell the house that the sufferers of asbestos-related dust diseases will be given a better chance of successfully claiming damages because of the state government's changes to regulations. The Rann government has actively supported victims of asbestos through progressive asbestos legislation, principally the Dust Diseases Act 2005.

The law enables asbestos-related cases to be expedited through a special list in the District Court, aiming for prompt handling and resolution of claims. The act provides for the practice of accepting findings of general application (for instance, that company X knowingly exposed workers to asbestos) and it improves the District Court's discretion in awarding damages with the expectation that victims will receive increased damages than they would otherwise have received without the law. Contrary to claims by the Independent senator for South Australia, the government has no intention to wind back exemplary damages.

Since the introduction of the legislation, cases are being expedited. I continue to be informed on how cases progress through the court and I understand that they progress efficiently. In fact, there has been a marked improvement since the special list was first introduced. Victims are spared the need to go to trial as most cases are either discontinued or settled by agreement.

The member for MacKillop apparently finds my Latvian tie hilarious, but the Leader of the Opposition has explained that today is the 91st anniversary of the declaration of independence of the Republic of Latvia. We have made other moves to assist victims. The dust diseases regulations are amended to provide greater opportunity for sufferers of asbestos-related diseases to bring claims for damages by moving the date of presumption back from 1971 to 1960.

Workers employed by businesses which had more than 20 employees and which engaged in asbestos-related work in the 1960s will be caught by the presumption. Of course, it can be rebutted by evidence. We have moved to amend the relevant date of occupiers' liability. For those who operate an industrial premises at which any asbestos procedures were carried out, the presumption of knowledge applying to them goes back from 1990 to 1976.

The dust diseases legislation includes a presumption of knowledge about the risks of asbestos. This means that, from a relevant date, a defendant in a dust diseases matter (unless he or she is exempt) is presumed to have engaged in a particular process or procedure knowing of the risks of asbestos. From the outset, arguably, this puts the victim in a sturdy position to pursue his or her claim. Until this change, other defendants who engaged in things like the design of objects containing asbestos or installation of products have been presumed to have known the dangers from 1 July 1971.

This is a second change to this presumptive date since the commencement of the act. Last year, the government amended the regulations, changing the presumed date of knowledge from 1 January 1979 to the earlier 1971 date. We are now taking that date back further. After the change, generally defendants in this group will be presumed to have known about the risks of asbestos from the start of 1960.

Through our consultation and research, we have realised that smaller businesses who may become defendants, perhaps a small mechanic using asbestos brake pads or a builder using materials containing asbestos, may not have known of the dangers of asbestos. For those people, the relevant date will remain 1 January 1971. The smaller businesses will be those that employed fewer than 20 people at the relevant time. That said, the presumption is a starting point. It does not mean that a large business cannot rebut the presumption by leading evidence and, indeed, with small businesses, the plaintiff can lead evidence that the proprietor had actual knowledge of the dangers of asbestos.

We have also amended the provision referred to as 'occupiers liability', which is a catch-all for other asbestos-related products. The date of presumed knowledge for occupiers liability has been taken back to 1976—probably the year that the shadow attorney-general and I started at law school. The date—

Ms Chapman: I started before you.

The Hon. M.J. ATKINSON: You did, congratulations. You must have been a child prodigy! It was not until 1976 that our state law required the occupier of industrial premises where any asbestos procedure was carried on to comply with safety regulations. The regulations apply to commercial and government enterprises alike. The same laws apply whether it is private or public. Weighing the decision about whether to take these dates back has been a difficult task, but I believe that the changes create a fair balance between victims and defendants, and I thank those who made submissions on the discussion paper last year. These changes highlight the fulfilment of the government's pledge to do what is right for victims of asbestos-related diseases.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT