Western Australian Current Acts Western Australian Current Acts (1) In this section
—
latent injury means a disease or injury of such a
nature that, at the time it is suffered by a person, that person does not know
and could not reasonably be expected to know that he has suffered the disease
or injury;
the amending Act means the Acts Amendment
(Asbestos Related Diseases) Act 1983 .
(2) Where the period
of limitation within which an action, suit, or other proceeding may be brought
would, but for this section, be fixed by section 38(1)(c) of this Act and
—
(a) the
cause of action arises from a person having suffered a latent injury that is
attributable to the inhalation of asbestos;
(b) the
person who suffered the latent injury had knowledge of the relevant facts
before 1 January 1984; and
(c) the
period of limitation that would be applicable thereto had the amending Act not
come into operation had expired before 1 January 1984,
that action, suit, or
other proceeding may be commenced within the period of 3 years after the
coming into operation of the amending Act.
(3) Where in an
action, suit, or other proceeding to which subsection (2) applies it is proved
that —
(a) the
person who suffered the latent injury had knowledge of the relevant facts
before 1 January 1984; and
(b) the
period referred to in paragraph (c) of that subsection had expired before 1
January 1984 and before the action, suit, or other proceeding was commenced,
damages shall not be
awarded except in respect of pecuniary loss and the total amount of the
damages awarded shall not in any case exceed $120 000.
(4) Where the period
of limitation within which an action, suit, or other proceeding may be brought
would, but for this section, be fixed by section 38(1)(c) of this Act and
—
(a) the
cause of action arises from a person having suffered a latent injury that is
attributable to the inhalation of asbestos;
(b) the
person who suffered the latent injury had knowledge of the relevant facts
before 1 January 1984; and
(c) the
period of limitation that would be applicable thereto had the amending Act not
come into operation had not expired before 1 January 1984,
that action, suit, or
other proceeding may be commenced within the period referred to in paragraph
(c) of this subsection or, if that period expires less than 3 years after the
coming into operation of the amending Act, may be commenced within the period
of 3 years after the coming into operation of that Act.
(5) Where in an
action, suit or other proceeding to which subsection (4) applies it is proved
that —
(a) the
person who suffered the latent injury had knowledge of the relevant facts
before 1 January 1984; and
(b) the
period referred to in paragraph (c) of that subsection had expired before the
action, suit, or other proceeding was commenced,
damages shall not be
awarded except in respect of pecuniary loss and the total amount of the
damages awarded shall not in any case exceed $120 000.
(6) Where the period
of limitation within which an action, suit, or other proceeding may be brought
is fixed by section 38(1)(c) and —
(a) the
cause of action arises from a person having suffered a latent injury that is
attributable to the inhalation of asbestos; and
(b) the
person who suffered the latent injury did not have knowledge of the relevant
facts before 1 January 1984,
the period of
limitation so fixed shall run not from the time provided by section 38 but
from the time when that person has knowledge of the relevant facts.
(7) For the purposes
of this section a person has knowledge of the relevant facts in relation to a
cause of action when he has knowledge —
(a) that
the injury in question was significant;
(b) that
the injury was attributable in whole or in part to the act or omission which
is alleged to constitute the cause of action;
(c) of
the identity of the defendant; and
(d) if
it is alleged that the act or omission was that of a person other than the
defendant, of the identity of that person and the additional facts supporting
the bringing of an action against the defendant,
and knowledge that any
acts or omissions did or did not, as a matter of law, give rise to a cause of
action is irrelevant.
(8) For the purposes
of this section an injury is significant if the person whose knowledge is in
question would reasonably have considered it sufficiently serious to justify
his instituting proceedings for damages against a defendant who did not
dispute liability and was able to satisfy a judgment.
(8a) For purposes of
this section, an injury —
(a) that
is an injury within the meaning of the Workers’ Compensation and Injury
Management Act 1981 ; and
(b) in
respect of which proceedings in which damages are sought have not been
instituted before 4 p.m. on 30 June 1993,
is not to be treated
as being significant unless either the parties to proposed proceedings have
agreed, or a medical panel as described in section 36(1) of that Act has
determined, that the degree of the disability assessed as prescribed in
section 93D(3) of that Act, is 30% or more.
(9) For the purposes
of this section a person’s knowledge includes knowledge which he might
reasonably have been expected to acquire —
(a) from
facts observable or ascertainable by him; or
(b) from
facts ascertainable by him with the help of medical or other appropriate
expert advice which it is reasonable for him to seek,
but a person shall not
be fixed under this subsection with knowledge of a fact ascertainable only
with the help of expert advice so long as he has taken all reasonable steps to
obtain (and, where appropriate, to act on) that advice.
(10) Unless the
context otherwise requires, a reference, however expressed, in this Act or in
any other Act or law to the time from which a period of limitation runs shall,
where the period of limitation is one to which subsection (6) applies, be read
as if it were a reference to the time from which it is provided by that
subsection that the limitation period shall run.
[Section 38A inserted: No. 84 of 1983 s. 4;
amended: No. 48 of 1993 s. 44; No. 42 of 2004 s. 164 and 174.]