Hon Michael Mischin LLB (Hons) BJuris (Hons) MLC — Inquiry into compensation for asbestos victims

Hon Michael Mischin LLB (Hons) BJuris (Hons) MLC — Inquiry into compensation for asbestos victims

24Attorney General Michael Mischin has asked the Law Reform Commission of Western Australia (LRC) to enquire into possible compensation for people suffering from asbestos related diseases.

The commission will consider whether the ‘once and for all rule’ applicable to judgments in personal injury actions should be reformed.

Mr Mischin said a change in this rule would mean that following a judgment, if a victim developed an injury or disease which was different from or more serious than the injury or disease that the person suffered at the time of judgment, a court would be authorised in certain circumstances to award further damages to that victim.

“The proposal to amend the ‘once and for all rule’ raises a number of complex issues that the commission has been asked to consider,” he said.

“They will also examine whether, where a personal injury prevents a victim from providing gratuitous domestic or other services to another person, the damages recoverable should include a specific head of damages calculated by reference to the value of those services.

“In other words, it would introduce as a distinct component of an award of damages, a separate head of damages reflecting the commercial value of a person’s loss of ability to provide free-of-charge personal or domestic services to others, such as if the person could no longer perform certain tasks on behalf of an aged parent.

“Similarly, the matter of compensation for services the person would otherwise have provided also requires a number of questions to be considered.”

The LRC will report back to the Attorney General with any recommendations for reform by June 30, 2015.

Fact File
The two issues which will be investigated by the LRC were raised during the debate of a private member’s Bill, the Asbestos Diseases Compensation Bill 2013, introduced in the WA Legislative Council in November 2013
Terms of reference for the review are below
Attorney General’s office – 6552 5600

TERMS OF REFERENCE REGARDING PROVISIONAL DAMAGES AND DAMAGES FOR GRATUTIOUS SERVICES

The Law Reform Commission is to enquire into compensation regimes for persons suffering from asbestos related diseases with particular regard to the following areas:

1. Modifying the ‘once and for all’ rule – ‘provisional’ damages

1. Whether the ‘once and for all’ rule applicable to judgments in personal injury actions should be reformed so that, where the victim of a tort develops, subsequent to judgment, an injury or disease which is of a different or more serious character than the injury or disease from which the person suffered at the time of judgment, a court will be authorised in certain circumstances to award further damages to that victim.

2. If such reform is recommended, the form of the proposed regime for award further damages, including but not limited to identifying:

(a) the circumstances in which a court is to be authorised to award further damages, including whether such a power –

(i) should be available in all personal injury claims or should be confined to claims of a particular class, such as claims relating to the contraction of an asbestos related disease;

(ii) should be available whenever a different or more serious injury or disease develops or only where the potential for the development of a different or more serious injury or disease was expressly identified at the time of the initial judgment;

(b) the manner in which an award of further damages is to be approached by a court, including

(i) whether the entirety of the damages the subject of the initial judgment should be assessed afresh or only a head or heads of the damages further assessed;

(ii) how the damages the subject of the initial judgment are to be taken into account;

(iii) in circumstances where the initial judgment was entered by consent or where heads of the damages awarded had been agreed between the parties;

(c) whether there should be any time limit for bringing an application for further damages;

(d) whether, generally or (in view of section 4(2a) of the Law Reform (Miscellaneous Provisions) Act 1941) in the case of actions for latent injury attributable to the inhalation of asbestos, it should be open to the estate of a deceased victim to seek from a court an award of further damages which could have been sought from the victim during his or her lifetime.

2. Damages for the value of services provided by the plaintiff to others

1. Whether, where a personal injury prevents a plaintiff from providing gratuitous services, domestic or otherwise, to another person, the damages recoverable by the plaintiff should include a specific head of damages calculated by reference to the value of those services.

2. If the inclusion in an award of such a head of damages is recommended:

(a) whether such a head of damages should be awarded in all personal injury claims or should be confined to claims of a particular class, such as claims relating to the contraction of an asbestos related disease;

(b) the criteria that ought to be applied in the assessment of such a head of damages including, but not limited to:

(i) the character of the services which should attract compensation;

(ii) the character of the relationship between the plaintiff and the recipients of the services which the plaintiff is prevented from providing;

(iii) whether regard should be had to the likelihood that the services would have been provided by the plaintiff;

(iv) whether damages should be awarded only where expenditure has been incurred in consequence of the plaintiff being prevented from providing a particular service;

(c) whether such damages should be awarded only in respect of services which the plaintiff was prevented from providing during his or her lifetime or whether, in the case of injury or disease resulting in death, damages should be awarded for the ‘lost years’, i.e. for the years in which the services might have been provided after the plaintiff’s actual death until the date to which he or she was expected to have lived had the injury or disease not occurred.

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