An employer’s application for summary judgment was dismissed after it was held that employees with asbestos related injuries have the right to seek damages when they have a whole of person impairment of greater than 15%.

In Issue

Whether employees with asbestos related injuries, and a whole of person impairment between 15% and 25%, can seek damages from their employer.

The background

The employee alleged he contracted diffuse fibrosis, asbestosis and pleural plaques attributable to the inhalation of asbestos dust and fibres at the Alcoa Refinery.

A medical panel made a determination that the employee's whole of person impairment was 18% and the disease was ‘diffuse pleural fibrosis’. The employee then elected to seek damages as required by the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act).

Alcoa argued that pursuant to s56 of the Limitation Act 2005 (WA) any cause of action had not accrued. The argument was based on the following:

  • Section 56(1) of the Limitation Act relates to asbestos related diseases and provides that a cause of action for damages relating to the inhalation of asbestos accrues, inter alia, when the person has knowledge of the relevant facts. Section 56(2) provides that a person has knowledge of the relevant facts when the person has knowledge ‘that the injury in question was significant’.
  • Section 56(4) of the Limitation Act provides that for the purposes of s56, a disability as defined in the WCIM Act is not to be treated as being significant unless the degree of whole of person impairment is 25% or more.
  • Therefore, Alcoa argued that the employee’s cause of action only arises when he had knowledge that the injury in question was significant, and the injury in question is only significant if the whole of person impairment has been assessed as 25% or more.

The decision at trial

Bowden DCJ dismissed Alcoa’s application for summary judgment. His Honour held that to interpret the legislation in the way contended by Alcoa would mean that persons suffering from asbestos related diseases who have a whole of person impairment of greater than 15% but less than 25% would not be able to pursue a damages claim, whereas a person with a whole of person impairment caused by non-asbestos related diseases would be entitled to have such a claim. This view is inconsistent with the regime specified by the WCIM Act.

His Honour confirmed that once the employee establishes that his whole of person impairment is greater than 15% and elects to retain the right to seek damages and that election is registered and he commences proceedings, he is entitled to pursue his claim and recover capped damages if successful.

Implications for you

In Western Australia, employees with a whole of person impairment greater than 15% related to asbestos related diseases are entitled to seek damages provided they comply with the common law election regime outlined in the WCIM Act.

Alcoa of Australia Ltd v Johansson [2019] WADC 3