Western Australian Current Acts Western Australian Current Acts (1) A cause of action
for damages relating to a personal injury —
(a) that
is attributable to the inhalation of asbestos or silica dust; and
(b) to a
person who did not have knowledge of the relevant facts before 1 January 1984,
accrues when the
person has knowledge of the relevant facts.
(2) For the purposes
of this section a person has knowledge of the relevant facts in relation to a
cause of action when the person 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.
(3) 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
the person’s commencing an action for damages against a defendant who
did not dispute liability and was able to satisfy a judgment.
(4) For the purposes
of this section an injury to which this subsection applies must not be treated
as significant unless —
(a) the
parties to the proposed action have so agreed; or
(b) a
medical panel constituted as described in the Workers’ Compensation and
Injury Management Act 1981 section 36(1) —
(i)
has determined that the degree of the disability assessed
in accordance with section 93D(2) of that Act is 30% or more; or
(ii)
has assessed that the worker’s degree of whole of
person impairment evaluated as described in sections 146A and 146C of that Act
(on or after 14 November 2005) is 25% or more;
or
(c) a
Dust Disease Medical Panel constituted under the Workers Compensation and
Injury Management Act 2023 section 124 has determined for the purposes of Part
7 Division 2 of that Act that the degree of permanent whole of person
impairment resulting from the injury is at least 25%.
(4A) Subsection (4)
applies to an injury that —
(a)
before 14 November 2005, is a disability as defined in the Workers’
Compensation and Injury Management Act 1981 ; or
(b) on
or after 14 November 2005 and before the commencement of the
Workers Compensation and Injury Management Act 2023 Part 7 Division 2, is an
injury as defined in the Workers’ Compensation and Injury Management Act
1981 ; or
(c) on
or after the commencement of the Workers Compensation and Injury Management
Act 2023 Part 7 Division 2, is an injury from employment for the purposes of
that Act.
(5) For the purposes
of this section a person’s knowledge includes knowledge which the person
might reasonably have been expected to acquire —
(a) from
facts observable or ascertainable by the person; or
(b) from
facts ascertainable by the person with the help of medical or other
appropriate expert advice which it is reasonable for the person to seek,
but a person is not to
be fixed under this subsection with knowledge of a fact ascertainable only
with the help of expert advice so long as the person has taken all reasonable
steps to obtain (and, where appropriate, to act on) that advice.
[Section 56 amended: No. 21 of 2023 s. 657.]