Western Australian Current Acts Western Australian Current Acts (1) Notwithstanding
the foregoing provisions of this Act but subject to the provisions of
subsection (2) and (3), no action shall be brought against any person
(excluding the Crown) for any act done in pursuance or execution or intended
execution of any Act, or of any public duty or authority, or in respect of any
neglect or default in the execution of the Act, duty or authority, unless
—
(a) the
prospective plaintiff gives to the prospective defendant, as soon as
practicable after the cause of action accrues, notice in writing giving
reasonable information of the circumstances upon which the proposed action
will be based and his name and address and that of his solicitor or agent, if
any; and
(b) the
action is commenced before the expiration of one year from the date on which
the cause of action accrued,
and for the purposes
of this section, where the act, neglect, or default is a continuing one, no
cause of action in respect of the act, neglect, or default accrues until the
act, neglect or default ceases but the notice required by paragraph (a) may be
given and an action may thereafter be brought while the act, neglect or
default continues.
(2) A person may
consent in writing to the bringing of an action against him at any time before
the expiration of 6 years from the date on which the cause of action accrued
whether or not the notice as required by subsection (1) has been given.
(3) (a)
Notwithstanding the foregoing provisions of this
section application may be made to the Court which would but for the
provisions of this section have jurisdiction to hear the action, for leave to
bring an action at any time before the expiration of 6 years from the date on
which the cause of action accrued, whether or not notice as required by
subsection (1) has been given to the prospective defendant.
(b)
Where the Court considers that the failure to give the required notice or the
delay in bringing the action as the case may be, was occasioned by mistake or
by any other reasonable cause or that the prospective defendant is not
materially prejudiced in his defence or otherwise by the failure or delay, the
Court may if it thinks it is just to do so, grant leave to bring the action,
subject to such conditions as it thinks it is just to impose.
(c)
Before an application is made under the provisions of paragraph (a), the party
intending to make the application shall give notice in writing of the proposed
application and the grounds on which it is to be made to the prospective
defendant, at least 14 days before the application is made.
(4) (a)
In this section person includes a body corporate,
Crown agency or instrumentality of the Crown created by an Act or an official
or person nominated under an Act as a defendant on behalf of the Crown.
(b) This
section is to be construed so as not to affect the provisions of the
Crown Suits Act 1947 .
(5) Where an action is
one to which this section applies 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 had the knowledge referred to in
section 38A of this Act before 1 January 1984,
the period limited by
this section for the doing of any thing in relation to that action shall run
not from the time otherwise provided by this section but from the time of the
coming into operation of the amending Act.
(6) Where in an action
to which subsection (5) applies it is proved that —
(a) the
person who suffered the latent injury had the knowledge referred to in
section 38A of this Act before 1 January 1984; and
(b) the
period of 6 years applicable under subsection (3)(a) of this section as in
force before the coming into operation of the amending Act had expired before
the action 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.
(7) Where an action is
one to which this section applies 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 the knowledge referred to
in section 38A before 1 January 1984,
the period limited by
this section for the doing of any thing in relation to that action shall run
not from the time otherwise provided by this section but from the time when
that person has the knowledge referred to in section 38A.
(8) After the coming
into operation of the amending Act —
(a) a
notice may be given;
(b) an
action may be commenced; or
(c)
consent may be given, or leave may be granted, to bring an action,
in accordance with
subsection (5) or (7) of this section notwithstanding that the period of
limitation applicable before the coming into operation of the amending Act in
respect thereof had expired before the coming into operation of that Act.
(9) In subsections
(5), (6), (7), and (8) —
latent injury has the same meaning as is given to
that expression by section 38A of this Act;
the amending Act means the Acts Amendment
(Asbestos Related Diseases) Act 1983 .
[Section 47A inserted: No. 73 of 1954 s. 4;
amended: No. 84 of 1983 s. 5.]