Court of Appeal

Hall v WorkCover Queensland [2014] QCA 135 ; [2015] 2 QdR 88 (13/12304) Margaret McMurdo P and Muir JA and Atkinson J 6 June 2014

Full-text: QCA14-135.pdf

Catchwords

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – TORT ACTIONS INVOLVING PERSONAL INJURIES – where the appellant is the widow of the deceased – where the deceased had been employed by the respondents – where the deceased was exposed to asbestos dust during his employment – where the deceased died of mesothelioma – where at the date of the deceased’s death the three year limitation period for the commencement of actions for damages for negligence or breach of duty prescribed by s 11 of the Limitation of Actions Act 1974 (Qld) had expired – whether the primary judge erred in finding that the appellant’s claim for damages was statute barred

Summary Notes

General Civil Appeal – Limitation of Actions – where the appellant is the widow of the late Gregory Hall who was diagnosed with mesothelioma in August 1994 – where the deceased had been employed by the respondents at different times between 1966 and 1978 and had been exposed to asbestos dust during his employment – where the deceased died of mesothelioma – where at the date of the deceased’s death the three year limitation period for the commencement of actions for damages for negligence or breach of duty prescribed by s 11 of the Limitation of Actions Act 1974 (Qld) had expired – whether the primary judge erred in finding that the appellant’s claim for damages was statute barred – where the resolution of the issue under consideration is dependent on the meaning of the words “a right of action relating to personal injury” under s 11(2) LAA – where this section is an emphatic statement by the legislature that any qualifying right of action is not subject to any limitation period howsoever or whatsoever – where it would be wrong to approach its construction on the basis that its role was merely to qualify s 11(1) – where if it was intended that the role of s 11(2) be confined to excluding from the scope of s 11(1) rights of action it would have been simple enough to say so – where the course the legislature has chosen to follow is to provide for a blanket exemption from all limitation provisions for any right of action “relating to” personal injury resulting from a dust related condition – where the words “relating to” are of wide import – where the language of s 11(2) comfortably accommodates dependency claims – where under s 11(2), the relevant relationship is that between a right of action and “personal injury” – where the respondent’s proposition that the ordinary meaning of “personal injury” does not encompass death is of dubious validity – where it is unnecessary to address most of the parties’ interesting and learned arguments in relation to whether the dependency claim is otherwise statute barred – where the cause of action of the deceased and that pursued under s 66 Succession Act 1981 (Qld) are one and the same. Appeal allowed. Order the question whether the appellant’s claim for damages as pleaded is barred by the LAA be answered “No”. Costs.