Report 131 (2011) - Compensation to relatives
PDF version (594 kb)
Updates and background for this project (Digest)
How to obtain a hard copy of this report
Table of contents
Participants
Terms of reference
Executive Summary
Recommendations
1. Introduction
Background to this Report
The Strikwerda principle
Asbestos and asbestos-related disease
Asbestos
Asbestos-related disease
The legal framework for the compensation of personal injury in NSW
Workers’ compensation – no fault schemes
Common law damages – fault-based liability
Post-death claims
Options in the Consultation Paper
Our approach
2. Retain or abolish the Strikwerda principle
Background
The 1998 amendment to the Dust Diseases Tribunal Act
The consequences of Strikwerda for a dependency action
Arguments in favour of abolition of the Strikwerda principle
Nullification of the 1998 amendment
Special features of dust disease cases
National consistency
Abolition of the Strikwerda principle would have minimal impact
Arguments in favour of the retention of the Strikwerda principle
Compensation for actual loss
Preferential treatment of dust diseases claimants
Increase in claims liabilities
Need for certainty in business
Potential for unforseen consequences and net widening
Analysis of the arguments
The nullification argument
Would abolition of the Strikwerda principle result in over-compensation?
Would abolition of the Strikwerda principle be likely to lead to an increase in filings?
Would abolition of the Strikwerda principle have a significant impact
on the costs of claims?
Would abolition of the Strikwerda principle give rise to an unfair inequality in treatment?
The James Hardie agreement
Conclusion
Loss of services claims
Claims resolution process
3. Remove the pre-death commencement requirement in dust diseases actions
Arguments in favour of removing the requirement
Arguments in favour of retaining the requirement
Analysis of the arguments
Increase in inequality between categories of injury victims
Increase in number of claims following death
Financial impact of change
Possible solutions
Post-death extension period
Extension subject to leave
Restrict any extension to asbestos-related deaths
Our conclusion
Joinder of defendants after death
4. Further options and other matters
Option 4 – Bereavement damages
The submissions
Our conclusion
Option 5 – Extend the entitlement to damages for non-economic loss to all estate actions
The submissions
Our conclusion
Option 6 – Alter the list of benefits which are to be disregarded when assessing damages in dependency actions
The submissions
Our conclusion
Recovery for non-economic loss in cases of supervening events causing death
Appendix A Assumed facts underlying Table 2.3
Appendix B Submissions
Appendix C Consultations
Table of cases
Table of legislation
Bibliography
|
