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DUST DISEASES BILL

The Hon. NICK XENOPHON: I seek leave to introduce the bill in an amended form.

Leave granted.

The Hon. NICK XENOPHON obtained leave to introduce a Bill for an act to provide more expeditious remedies for those suffering from disabilities resulting from exposure to dust; and for other purposes. Read a first time.

The Hon. NICK XENOPHON: I move:

That this bill be now read a second time.

There is a great deal of urgency with this particular bill relating primarily to asbestos related diseases, and I will explain the urgency shortly. We have debated the issue of asbestos in this chamber over a number of years. I am grateful for the support of members from both sides of the chamber in relation to the issue of amendments to legislation in 2001 to amend the Survival of Causes of Action Act in relation to asbestos related claims so that we put an end to what were known as deathbed hearings where victims of asbestos with a very short time to live and who were literally gasping for their last breath were forced into a situation where they were before the courts and, if there were delays in litigation and they died before their claims were heard by the competent tribunal or court, then their claim for non-economic loss would die with them, and with it a significant proportion of their claim for damages.

Fortunately, in 2001, this parliament decided to amend the law—and I am very grateful for the support in this chamber of the Labor Party and colleagues such as the Hon. Terry Cameron—

Members interjecting:

The PRESIDENT: Order! Members should be aware of standing orders relating to people standing between the chair and the speaker.

The Hon. NICK XENOPHON:—the Australian Democrats and, indeed, the late Hon. Trevor Crothers. I am also grateful for the support of the then leader of the opposi­tion (now Premier) who, together with me, is a patron of the Asbestos Victims Association and the industrial relations minister Michael Wright. It was unusual for a private member's bill to have been passed at that time, but it was imperative that that matter be dealt with because of the injustice caused and the unique nature of asbestos related claims. There is an imperative for this particular law follow­ing a decision of the High Court of Australia almost 12 months ago in the case of BHP Billiton Limited v. Schultz. The High Court, in effect, decided that South Australian asbestos victims would not necessarily be able to access the Dust Diseases Tribunal of New South Wales.

That decision arose following an appeal by BHP Billiton. We know, Mr President—and no doubt you are familiar at a personal level—of the number of asbestos cases arising out of the Whyalla shipyards. As a result of that case, it was determined that South Australian victims of asbestos related disease would not necessarily have the right to bring a claim before the Dust Diseases Tribunal of New South Wales following a successful application of the employer, BHP Billiton, to cross-vest the Trevor Schultz case back to South Australia. The reason why BHP Billiton did that, and the reason for those who have been responsible for exposing their workers to asbestos over the years, was simply a cold hard economic one on their part: it is about saving bucks for their culpable behaviour.

The position now is that those who have been exposed to asbestos over the years have no guarantee of having their case heard before the Dust Diseases Tribunal of New South Wales, which has dealt expeditiously with asbestos related diseases for a number of years. It is a specialist tribunal recognising the unique nature of dust diseases and, in particular, asbestos related claims. I will refer to that briefly. We now know that asbestos related diseases should have been avoided, given the evidence that companies, such as James Hardie—a corporate citizen with a shameful record in this nation—were aware, as early as the 1930s, of the risk that asbestos posed to their work force. Indeed, in 2001, I spoke to a bill with respect to amending the Survival of Causes of Action Act, I referred to affidavit evidence from an employee of James Hardie who had safety responsibilities in the 1940s and 1950s and who was aware that the management of James Hardie knew of the danger posed by asbestos. International literature in the late 1800s referred to the link between asbestos exposure and significant health problems.

So, this is a case in which the employers, namely, those responsible for dealing in and distributing asbestos, were well aware of its dangerous and deadly properties and their consequences. Notwithstanding that, these companies continued to sell this deadly product for many years—indeed, up until the 1980s.

The Hon. J. Gazzola: It's shameful.

The Hon. NICK XENOPHON: It certainly is. What is more shameful is that some of these companies, particularly James Hardie, have attempted to avoid their responsibility. We are aware of the long campaign led by the ACTU last year, and assisted by various victims groups around the country, to ensure that James Hardie pay its dues after its attempt to be too clever by half and restructure its operations and move out of Australia. I believe that that was done, significantly, in part to avoid its responsibility to its victims. At the end of last year, a $5 billion compensation package was announced. Heads of agreement were discussed. The agreement was supposed to be executed by March this year. Subsequently, it was delayed until June and again until September. We are still waiting for an imminent settlement with James Hardie to be signed, sealed and delivered. This is a case of injury in which there is a special degree of culpability on the part of those involved in the responsibility for asbestos exposure.

Mesothelioma is one of the most terrible ways to die. It is a lung cancer and is excruciating in its final stages. The average time from diagnosis to death is nine to 10 months but, in many cases, it can be much shorter than that. The situation is that South Australia now has the highest level of mesothelioma cases and, therefore, the inevitable deaths from the disease, per capita in the world. That is because James Hardie had factories here and because asbestos products were in so many public buildings, even in the 1960s and 1970s—for example, the old David Jones building, in our universities and in literally hundreds of thousands of homes in Adelaide and throughout South Australia, including, of course, the fibro homes in cities such as Whyalla.

I now refer briefly to submissions made on behalf of the Asbestos Victims Association of South Australia and the Australian Manufacturing Workers Union (South Australian Branch) in relation to reforms to court procedures for dust related claims. This is what this bill is about. I also express my great gratitude to all those involved with the Asbestos Victims Association, particularly the secretary, Terry Miller. He is a victim of asbestosis but, despite the disabilities associated with his condition, he has been a tireless cam­paigner.

I also thank the previous secretary, Colin Arthur, who was the founding secretary of the Asbestos Victims Association. I saw him recently at the annual general meeting of the association. Unfortunately, Colin has some pretty terrible days with his health because of his condition. I am also grateful for the work of the lawyers for the Asbestos Victims Association—particularly Turner Freeman and Tanya Segelov—and for their input with the enormous amount of work and submissions to assist the AVA and AMWU in pushing for law reform in relation to this issue. The conse­quence of the Schultz decision is that South Australians are now second-class citizens with respect to asbestos related and dust diseases claims. They are second-class citizens with respect to procedures, because they are at a disadvantage compared with those in New South Wales and other jurisdic­tions. They are second-class citizens with respect to damages. They are second-class citizens with respect to eviden­tiary requirements and with respect to the way the claims are processed, and that is why it is so important that this matter be dealt with as a matter of urgency and that this bill be passed before we rise for the summer break and indeed rise, I presume, for a number of months, given the state election on 18 March next year.

I would like to refer briefly to some aspects of the submission made by the AVA and the AMWU. The submis­sion points out that for every mesothelioma victim it is estimated that there are 10 victims diagnosed with asbestos-related lung cancer. Further, hundreds of people each year are diagnosed with non-malignant asbestos-related conditions such as asbestos-related pleural disease and asbestosis. Asbestosis is a progressive condition whereby parts of the lung become stiff and shrunken with consequential breathing difficulties. Asbestos can develop to become very severe, extremely debilitating and, in some cases, fatal.

Asbestos-related diseases have a long latency period. The mean latency period for a victim of mesothelioma is 37 years from the date of diagnosis. Cases of lung cancer, meso­thelioma, asbestosis and asbestos-related pleural disease that are litigated in courts today relate to exposures to asbestos that occurred at work and elsewhere from the 1930s to the 1980s. The submission goes on to point out that asbestos was widely used in industry from the 1930s to the 1980s. Workers who have suffered from asbestosis and other dust-related diseases include carpenters, electricians, plumbers, brake mechanics, fitters, boilermakers, labourers, factory workers and laggers and, indeed, shop assistants.

I will refer shortly to the case of a woman who now is suffering from mesothelioma who worked as a shop assistant in John Martins many years ago, a woman who had no idea that she was being exposed to this deadly dust. These diseases are not simply confined to workers where there is a high exposure. Women who washed their husband's or father's work clothes, and children who have hugged their fathers as they came home from work have developed asbestos-related diseases, mainly mesothelioma. Increasingly, mesothelioma has been diagnosed amongst men and women whose only exposure to asbestos has occurred during the course of home renovations.

In South Australia there has been widespread publicity in relation to the cases of Helene Edwards and Belinda Dunn. Helene Edwards assisted her father to renovate her bathroom for a period of two weeks in the late 1970s. Belinda Dunn is a woman that I have met, that I know, a woman of great courage who has, against the odds, managed to survive for several years post diagnosis, but that is because of some radical therapy that she had in the United States, some experimental therapy, and she is very much the exception rather than rule. Belinda's only exposure to asbestos was as a four-year old when she played on and around a pile of corrugated asbestos cement sheeting that her father had removed from their carport. Belinda was 29 years of age at the time of her diagnosis, having given birth to her only son three weeks previously.

So, unlike other personal injuries claims, where a cata­strophic event occurs and over time the claimant's condition stabilises and in most instances improves so that the claimant ultimately lives as close to a normal life as possible, in dust diseases litigation the reverse occurs. The claimant suffers a catastrophic incident; they are diagnosed with a malignant condition; and the condition deteriorates until such time as they die, and in many cases it is an appalling death. Claimants diagnosed with a malignant condition frequently die within a period of 12 months from diagnosis.

Time is of the essence in these claims. With mesothelioma it is a fatal disease. There is no surgical or medical interven­tion means that can cure it. It can be caused by the inhalation of a small amount of asbestos dust. There is no minimum level of exposure that is required. Just being exposed to it is enough. There may be no sign of injury from inhalation for many years. It is a case where the pleural lining that has many nerve endings is triggered by the tumour, the tumour spreads, compressing and invading the lungs and other organs, causing breathlessness, cough, extreme pain and eventually death. It is a most horrible disease and, having spoken to the family members of mesothelioma victims, and knowing victims of mesothelioma, it is a most terrible way to die.

Until the Schultz decision, claimants with a dust disease could almost invariably bring a claim in the Dust Diseases Tribunal of New South Wales where they have a structure for the speedy resolution of claims. The submission of the AVA and the AMWU indicates that there will be 50 to 100 claims filed each year, with up to 50 per cent of those claims being for persons suffering from malignant conditions, that is, fatal conditions. I have been to a number of seminars and listened to experts on mesothelioma and experts on asbestos-related diseases, and we have world-class experts here in our state, such as Professor Doug Henderson and Professor Jack Alpers from Flinders Medical Centre.

We now know that not only is there no cure for meso­thelioma but that the incidence of asbestos-related conditions and asbestos-related deaths is not expected to peak until 2020, so the worst is yet to come. The best estimates that we have is that there will be in the order of 2 000 South Australians who will die from related conditions. In other words, it will overtake, if it has not already, the road toll in this state. For every mesothelioma case there are between one to two other cases—on average, up to two other cases—of asbestos-related lung cancers and malignancies. As a result of the Schultz decision it has left South Australian claimants in limbo. It has left them with a degree of significant uncertainty. It has left them in a situation where they are literally second-class citizens when it comes to getting access to justice with respect to their claims.

I think it ought to be put on the record for my parliamen­tary colleagues on this side of the chamber that at the ALP convention on 7 and 9 October a motion was moved by John Camillo, the Secretary of the AMWU in South Australia, someone who I pay tribute to for his continuing interest and his passion in reform for ensuring that asbestos victims get a fair go. Of course, many of his members have been exposed to asbestos and many have died because of asbestos-related diseases. The motion was seconded by George Karzis, and I will read it in full, as follows:go.

Convention notes the recent decision of the High Court prevent­ing some asbestos victims from accessing the NSW Dust Diseases Board. The Dust Diseases Board jurisdiction provides expedited hearings of claims for compensation by victims who often have only months to live. The New South Wales jurisdiction also entails lower costs for litigants while providing more appropriate potential damages assessments.

The convention therefore calls on the State Parliamentary Labor Party to help all asbestos victims to access legal remedies similar to those provided by the New South Wales jurisdiction by:

×Creating a special list in the District Court with a judge appointed to case manage claims for dust-related conditions;

×Legislating to allow victims of dust-related conditions to claim provisional damages;

×Legislating to allow the use of historical evidence and medical evidence tendered in previous proceedings in dust-related cases, and further to limit the re-argument of issues determined in previous cases;

×Amending the Limitation of Actions Act to exclude claims for dust-related cases; and

×Amending the Wrongs Act to provide that damages for non-economic loss awarded to an estate in a dust-related condition claim are not to be taken into account in assessing damages under the act where death occurred as a consequence of a dust-related condition.

That resolution was put and carried by the ALP convention of 7-9 October 2005, and I commend the ALP for that, because it was doing the right thing by asbestos victims. What we need to do now is take it one step forward and pass this bill, which is true to the spirit of that resolution of the ALP convention. I also acknowledge that Liberal members and my cross-bench colleagues have expressed a significant degree of sympathy and support for this particular bill, so I hope it will be passed with cross-party and cross-bench support. It is simply that important, and is an issue which goes beyond politics.

Just last week I held a media conference to talk about this bill and to announce that I would be bringing it forward into the chamber today. At that conference two very courageous people came forward. The first was Ben Bendyk whose father, Leonard, a Polish immigrant with limited English, was diagnosed with mesothelioma. Ben contacted solicitors on 17 March 2005 and, after two conferences at his home (and this is under the Dust Diseases Tribunal rules of New South Wales), Leonard swore an affidavit on 2 May 2005 detailing his work and exposure history. He had worked as a general labourer/concreter on the David Jones site for two or three years during its construction in the late 1950s, when Brad­fords were spraying asbestos. That statement of claim was filed in the Dust Diseases Tribunal on 29 April 2005 and listed for urgent—

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order! I am conscious that the Hon. Mr Xenophon is battling over a number of conversations in the chamber.

The Hon. NICK XENOPHON: Mr Acting President, I am always battling; it does not have to be over voices, but I thank you for your protection. It was listed for urgent hearing on 2 May 2005 and the solicitors entered a very accelerated timetable in the DDT, bringing the matter back on 6 June. Mr Bendyk's condition deteriorated quickly. In that case the defendant filed a cross-vesting application in the New South Wales Supreme Court—in other words, an application that would have had the consequence of slowing down Mr Bendyk's claim. The terms of settlement in the claim were finally resolved on 11 May 2005, because further declarations were made on 10 May 2005, something that can be done under the DDT rules.

Mr Bendyk died some 24 hours after his claim was settled, but when I spoke to his son Ben he told me how important it was for his father to have settled his claim, that he had some peace of mind before he passed away that he could, at least, make provision for his grandchildren knowing what he was going to get and with the satisfaction of knowing that there was going to be some compensation for his claim, at least some measure of justice. So, notwithstand­ing the terrible condition that Mr Bendyk had and that he died a terrible death, he left this earth with some sense of justice, and that was very important. It is very important for all victims and their families.

The other person at the media conference whom I should refer to was Anita Micallef. This woman was diagnosed with mesothelioma last year and, again, she was exposed by being a shop assistant in a department store a number of years ago. She had no idea that she was being exposed to this deadly dust, and she now has—

The Hon. T.G. Cameron interjecting:

The Hon. NICK XENOPHON: The Hon. Terry Cameron says that the stuff is everywhere. What is particular­ly shameful is that James Hardie knew; it knew how deadly this stuff was in the 1930s, and it could well have known earlier.

The Hon. T.G. Cameron interjecting:

The Hon. NICK XENOPHON: The Hon. Terry Cameron says that so did CSR. It did too; it has admitted it now, but at least CSR has not tried to cut and run as James Hardie seems to have done by moving to the Netherlands, by trying all these too-clever-by-half measures to avoid their responsibilities.

The Hon. T.G. Cameron interjecting:

The Hon. NICK XENOPHON: The Hon. Terry Cameron makes the very good point that CSR is still paying out claims from the 1950s and 1960s. What he may not know is that Wittenoom was closed down not because CSR was concerned about its workers but because it was not making any money in Wittenoom; it was not making any dough there, and that is why they closed it down.

Anita Micallef told the media conference that under the rules of the Dust Diseases Tribunal she was able to have her claim heard in an expeditious way; she did not have to reinvent the wheel, as so many plaintiffs have to do in other personal injury claims. So the claim did not take three or four weeks as it could have taken under our existing rules of court; I understand it took just two or three days. That is how it should be for asbestos victims, and that is what this bill is trying to do.

553 I will in due course seek leave to have the explanation of clauses incorporated in Hansard, but I will not do so at this stage, because I want to mention several aspects of this bill which, no doubt, will be explored further during the commit­tee stage. However, these are matters that I wish honourable members to reflect on, and the reason why all these provi­sions are essential to give justice for victims of asbestos-related disease. I believe that many of these defendants, particularly James Hardie and CSR, have a very high level of culpability and moral responsibility, given their knowledge and conduct over the years in relation to such claims.

Clause 5 relates to the abolition of limitation of actions. It abolishes any time limit. This is something that is routinely pleaded in these sorts of cases. Given that the average period of time from exposure to diagnosis can be 37 years, it is often an issue that is taken up by defendants, and it slows down the progress of the claim. There is still an onus on the plaintiff to prove their claim on the balance of probabilities to show that there was an exposure to asbestos and that there was a link between that exposure and the disease they suffer from. So, they still have that onus. The limitation of actions argument is one that has been a technical defence. It has slowed down claims, and it almost invariably never succeeds. It is a technical defence that delays a claim. It was abolished as a defence in New South Wales in 1998 and is something that these companies that are culpable have lived with, because they ought to have known that it was just a technical defence.

Clause 9 of the bill provides for special rules of evidence and procedure. It stops companies such as James Hardie, BHP and CSR arguing facts over and over again. It does not take away their rights. If a defendant believes that there is a special reason why certain facts should carry an evidentiary burden, they can be granted leave to have the matter heard in a different way. However, in the overwhelming majority of cases that is something that is not necessary and does not need to occur. It means that trials that would have lasted three or four weeks take just one or two days. The bill also seeks to ensure that the Dust Diseases Tribunal rules and proced­ures are followed as closely as possible, because they are rules and procedures that have worked over the years not just for plaintiffs but also for defendants who know how the rules work.

Following the Schultz decision, it is my clear understand­ing that a number of defendant lawyers in these types of actions have been bragging and boasting that, by virtue of that decision, they can get away with paying South Australian victims of asbestos-related diseases more cheaply; that claims in South Australia are not worth as much. They regard them as being worthless claims, because the award of damages in such cases appears to be significantly less than those in the Dust Diseases Tribunal of New South Wales. That is something that I find very disturbing. We know that, in the decision of Ewins, v. BHP Billiton Ltd and Wallaby Grip Ltd, which was a case in the Supreme Court of South Australia, where the case was cross vested back to South Australia, the award for non-economic loss for the late Mr Ewins was of the order of $100 000. For asbestos victims in other states the award is $150 000 and upwards. So, it seems that South Australian victims are at a disadvantage. They suffer the same, they go through the same agony and their family goes through an incredible trauma, but in South Australia their claims are worth less, and that is something that ought to be rectified, given the nature of this condition.

Clause 10 deals with the issue of damages and provides for provisional damages. This is particularly important because, in many cases, individuals may be diagnosed with a non-malignant condition such asbestosis, and they are entitled to bring a claim. However, their dilemma is that, if they bring a claim and settle that claim and they subsequently develop a malignancy—if they develop mesothelioma—they are precluded from bringing a claim in the future under the way in which our system currently works. They are placed in an invidious position. Often when a person develops mesothelioma—

The Hon. T.G. Cameron: That is a disgrace.

The Hon. NICK XENOPHON: The Hon. Terry Cameron says it is a disgrace, and it certainly is. This measure would allow for provisional damages, as is allowed in the Dust Diseases Tribunal of New South Wales, so that there can be a provisional award of damages. When a person is not terminally ill they can have their case dealt with; they can have their case heard while they are still well enough to give evidence in a relatively reasonable physical state. The matter is heard and there can be certain findings of fact as to exposure. If they subsequently contract mesothelioma or an asbestos-related lung cancer, little more needs to be done other than an assessment of damages down the track.

Clause 10(5) provides that any loss or impairment for the injured person's capacity to perform domestic services should be determined on the basis of costs at commercial rates. This is something that needs to be referred to briefly, and I am happy to refer to it further in the committee stage of this bill. I will give the council an example. This is necessary as a result of the High Court decision in CSR Limited & Anor v Eddy as Administrator Representing the Estate of Thompson. This High Court decision was handed down on 15 June 2005. In that case, Mr Thompson's wife was disabled (presumably with severe disabilities), and she needed assistance. Before Mr Thompson fell ill he was able to care for his wife.

A claim was made for the services that he provided to his disabled wife whilst he himself was disabled and following his death. The New South Wales Court of Appeal, based on the decision of Sullivan v Gordon, awarded damages to Mr Thompson on the basis that, after he died, his wife would be able to get the care that he himself was giving her during his lifetime when he was healthy. In that case, the High Court held that it could not award damages, because the scope of the award of damages needed to be for the injured person and not for others, and it was up to legislators to take action.

As I understand it, the ACT has already dealt with this in its own legislation; and, as I understand it, it may well have preceded this particular decision. I know of one case in South Australia of a mother with young children. Her husband is working. She has a terminal asbestos-related condition. As a result of the decision of the High Court in CSR Limited v Eddy she will not be able to include in her claim the costs of looking after those young children. She can make a claim only for her own needs. The children may not have a claim in their own right. They cannot bring a claim if their mother's case is settled, because there could be an argument of joinder of action.

The husband's loss of servitium claim would not cover this. In cases of dependency and in cases where services are provided, this amendment seeks to provide compensation for that. This is something particularly pertinent in the two cases to which I have referred. One has already been to the High Court. The way in which that would be dealt with is that, if you have relatives who look after children, or the family member can no longer be looked after by the person who has died or who is suffering from a terminal asbestos-related condition, any award of damages for that can be held in trust and kept for those particular services.

That is something that a court can do. This piece of legislation has a great deal of urgency to it, as I previously indicated. This piece of legislation will bring South Aust­ralian victims in line with other states. As a result of the High Court decision in Schultz, we have a situation where South Australians are second-class citizens. This parliament has done the right thing by asbestos victims in the past as a result of the passage of legislation in 2001. I urge this parliament again to do the right thing, and to do so with a great deal of urgency. I seek leave to have the explanation of clauses incorporated in Hansard without my reading it.

Leave granted.

TAKE IN L:\2READEXP\DDB.DOC

Explanation of Clauses

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause inserts definitions of terms used in the Bill. Most notably, "dust disease" is defined as meaning:

(a) asbestosis;

(b) asbestos induced carcinoma;

(c) asbestos related pleural disease;

(d) berylliosis;

(e) mesothelioma;

(f) silica-induced carcinoma;

(g) silicosis;

(h) silico-tuberculosis;

(i) any other disease or pathological condition resulting from exposure to dust;

(j) any other disease or pathological condition declared by the regulations to be within the ambit of this definition.

A dust disease action is defined as being a civil action in which the plaintiff claims damages for (or in relation to) a dust disease or the death of a person as a result of a dust disease, and also asserts that the dust disease was wholly or partly attributable to a breach of duty owed to the person who suffered the disease by another person.

4—Object of this Act

This clause sets out the object of this measure.

5—Abolition of limitation of action

This clause abolishes any time limits in relation to commen­cing a dust disease action that might otherwise apply under another Act or law.

6—The Dust Diseases Tribunal

This clause provides for the establishment of the Dust Diseases Tribunal as a division of the District Court, and requires the procedure of the Tribunal to correspond as nearly as practicable to the procedure in the Dust Diseases Tribunal of New South Wales.

The clause also requires the Chief Judge of the District Court to make special rules (or, until such rules are made, assign a dust disease action to a judge or master to make directions that will achieve the same result as such rules) to ensure that a dust disease action is dealt with in the same way as a corresponding action before the Dust Diseases Tribunal of New South Wales.

7—Transfer of actions to the Dust Diseases Tribunal

This clause provides for the transfer of dust disease actions in other courts to be transferred to the Dust Diseases Tribu­nal.

8—Costs

This clause provides that costs awarded in the Dust Diseases Tribunal are to be awarded on the same basis as for other District Court matters (but in the case of a action that falls within the jurisdictional limits of the Magistrates Court, costs will be awarded on the same basis as for a civil action in the Magistrates Court).

9—Special rules of evidence and procedure

This clause sets out rules that are to apply in the Dust Diseases Tribunal, dispensing with certain evidentiary formalities relating to the admission of evidence previously admitted in similar proceedings and the proving of certain facts that are not seriously in dispute. This is intended to have the effect of reducing the time and costs of proceedings.

The clause also relieves plaintiffs from the need to give the defendant notice of a proposed claim in order to expedite the proceedings.

The clause also restricts the ability of a party to re-litigate an issue of a general nature that has been established by decision of the Tribunal, by decision of the Dust Diseases Tribunal of New South Wales, or by decision of a court or tribunal of co-ordinate jurisdiction, and prevents the Tribunal referring a dust disease action for mediation except at the plaintiff's request.

10—Damages

This clause provides for the award of provisional damages, given the long incubation period of dust diseases. The clause also provides for the Tribunal to make orders requiring a defendant to make interim payments to the plaintiff in relation to damages that are yet to be assessed.

The Tribunal is required to have regard to, and seek consis­tency with, awards in corresponding actions before the Dust Diseases Tribunal of New South Wales.

The Tribunal must also include damages for the loss or impairment of an injured person's capacity to perform domestic services (whether for the injured person or other­wise) when determining damages in a dust disease action.

11—Causation where multiple defendants or insurers involved

This clause provides that, in terms of establishing causation, a dust disease will be taken to consist of a series of injuries of equal seriousness, 1 arising on each day of the wrongful exposure of the injured person to dust. This applies for the purpose of apportioning liability between defendants or insurers (in the case of multiple defendants or insurers).

12—Procedure where multiple defendants or insurers involved

This clause sets out procedures that apply in the case of multiple defendants or insurers. In such a case, the Tribunal is to appoint a representative defendant to represent all defendants. Judgement and interim payment orders will, in the first instance, be given against this defendant (and he or she will be able to recover against other defendants contribu­tions in respect of damages and other costs). This is the case regardless of whether the designated defendant is later found not to be liable in relation to the claim.

The Tribunal is also, in the case of multiple insurers, to appoint a designated insurer for the purposes of the action.

The Tribunal must determine questions of liability, and quantum of liability, before dealing with any questions of contribution. This will prevent delays pending the resolution of any inter-insurer dispute.

13—Certain provisions of the Corporations Act 2001 of the Commonwealth do not apply

This clause provides that a dust disease action, or proceedings to enforce a judgement, may be commenced against a company in liquidation despite the Corporations Act 2001 of the Commonwealth.

Schedule 1—Related amendment and transitional provision

Part 1—Amendment of Civil Liability Act 1936

1—Amendment of section 24—How to bring action etc

This clause amends section 24 of the Civil Liability Act 1936 to include any sum recovered or recoverable for the benefit of the estate of the deceased under section 3(2) of the Survival of Causes of Action Act 1940 as a matter not to be taken into account when assessing damages under section 24.

Part 2—Transitional provision

2—Transitional provision

This clause provides that (except in the case of an action where the hearing had commenced before the commencement of this Bill) proposed amendments made by this Bill apply to causes of action arising and actions commenced before or after the commencement of this Bill.

The Hon. R.K. SNEATH secured the adjournment of the debate.