Proposed amendment of Tasmanian Limitation of Actions Laws

On 21 August 2013 a Bill to amend the Limitation Act 1974 (Tas) (the Act) the Limitation Amendment Bill 2013 (No. 44 of 2013) was introduced into the Tasmanian House of Assembly. The Bill's key objective is to amend the Act to make it easier for persons who are suffering "a latent disease" to take action. The Bill is primarily targeted at asbestos related diseases (or more broadly dust diseases). The Bill is one of two related pieces of legislation the other being the Civil Liability Amendment Bill 2013 (No. 45 of 2013) also introduced into the House of Assembly on 28 August 2013.

Background and Purpose

In the second reading speech the Minister explained that the time limit within which a personal injury claim must be made as governed by the current Act which was amended in 2004 to provide for the limitation period for personal injury to commence on the “date of discoverability” being the date on which person knew or ought to have known that the personal injury had occurred and that the injury was attributable to the conduct of the defendant and significant enough to warrant taking action. The 2004 amendments provided that the limitation period for personal injury expires either three years from the date of discoverability or 12 years after the events on which the claim is based (the “long-stop period”), whichever is the earlier. Diseases taking longer than 12 years to become symptomatic and therefore discoverable, were covered by giving the courts discretion, having regard to the justice of the case, to extend time after the long-stop period to the expiry of a period of three years from the date of discoverability.

The 2004 Tasmaina amendments were made at the same time as many other States and Territories had already moved to date of discoverability based limitation periods, excluding New South Wales who had already at that time abolished limitation periods entirely for dust diseases and since that time most jurisdictions have now either abolished limitation periods for asbestos related diseases (or more broadly dust diseases) or have dispensed with a long-stop period so that the limitation period is simply three years from the date of discoverability.

The current Bill is intended to bring Tasmania into line with other jurisdictions by abolishing the 12 year long-stop period, leaving the limitation period as 3 years from the date of discoverability.

Effect of the Change

The amendment removes the need for a person, who may have been recently diagnosed with a serious or even fatal illness,  to have to overcome the additional hurdle of seeking leave from the court to bring an action. In explaining the amendments the Minister said: "[T]here is no convincing policy reason for treating asbestos-related diseases differently to any other latent disease, which is why I have chosen to abolish the long-stop period rather than make special limitation provisions for asbestos-related or dust diseases."

The Bill also introduces a provision allowing an application to a Court to extend time for a further three years past the initial three years after the date of discoverability period, an amendment seen as providing an opportunity for those more disadvantaged members of society who fail to take appropriate action.

Another amendment made by the Bill is to section 26 in relation to providing for the limitation period for personal injury actions to begin later where the person with a right of action is under a disability making clear the intent of the section and ensuring that a person entitled to have a limitation period begin later has an equivalent limitation period to other plaintiffs including the same right to apply for an extension of time.

The Bill also proposes replacing obsolete transitional provisions with new ones to take account of the fact that the date of discoverability is now the only relevant date, no matter when the cause of action may have accrued. The transitional provisions inserted by the Bill allow a person for whom time may have expired under the previous limitations provisions to apply to a court for an extension of time for three years from the date these amendments in this Bill come into effect.

Purpose of Civil Liability Amendment Bill 2013

The Civil Liability Bill 2013 amends the Civil Liabilities Act 2002 (Tas) to:

• Allow a Court to award provisional damages where a plaintiff has established a claim for a particular dust-related disease so that further damages can be awarded at a later date if the person develops a different dust-related disease; and
• Allow for an award of damages for loss of ability to care for another and to set limits on when such a claim can be made and cap the amount that may be awarded; and
• Clarify that in section 28 the reference to “other courts” includes interstate courts.
• Insert a standard provision stating that the Act binds the Crown.

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Limitation Amendment Bill 2013 (No. 44 of 2013) and Civil Liability Amendment Bill 2013 (No. 45 of 2013) explanitory materials and Second Reading Speeches as reported in TimeBase LawOne Service