A BILL FOR

An Act to amend the Limitation Act 1969 relating to the limitation of actions for personal injury.

BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:

Short title

1. This Act may be cited as the “Limitation (Amendment) Act 1986”.

Commencement

2. (1) Sections I and 2 shall commence on the date of assent to this Act.

(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.

Amendment of Act No. 31, 1969

3. The Limitation Act 1969 is amended in the manner set forth in Schedule 1.

SCHEDULE 1

(Sec. 3)

AMENDMENTS TO THE LIMITATION ACT 1969

(1) Section 6 (Transitional provisions)-

(a) Section 6-

Omit “Subject to section 26 and to Division 3 of Part III”, insert instead “Subject to section 26 and Schedule 5”.

(b) Section 6 (2)-

At the end of “section 6”, insert:

(2) Schedule 5 has effect.

(2) Section 11 (Interpretation)-

(a) Section 11(1)-

After the definition of “Action”, insert:

“Beneficiary”, when used in relation to an order under section 58 or an application for such an order, means a person for whose benefit an action might be, or might have been, brought under the Compensation to Relatives Act 1897.

“Breach of duty”, when used in relation to a cause of action for damages for personal injury, extends to the breach of any duty, whether arising by statute, contract or otherwise, and includes trespass to the person.

(b) Section 11(1)-

After the definition of “Mortgagor”, insert:
“Personal injury” includes any disease and any impairment of the physical or mental condition of a person.

(3) Section 18A-

After section 18, insert:

Personal injury

18A. (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years, running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.

(4) Section 19-

Omit the section, insert instead:

Compensation to relatives

19. An action on a cause of action arising under the Compensation to Relatives Act 1897, by virtue of a death, is not maintainable if brought after the expiration of a limitation period of 3 years running from the date of the death.

(5) Section 51 (Ultimate bar)-

At the end of section 51, insert:

(2) Subsection (1) does not apply to-

(a) a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury; or

(b) a cause of action arising under the Compensation to Relatives Act 1897.

(6) Part III, Division 3 (sections 57-62)-

Omit the Division, insert instead:

DIVISION 3- Personal injury cases

Ordinary action (including surviving action)

57. (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

Compensation to relatives

58. (1) This section applies to-

(a) a cause of action for damages arising under the Compensation to Relatives Act 1897 by virtue of the death of a person caused by a wrongful act, neglect or default; and

(b) such a cause of action that would arise under the Compensation to Relatives Act 1897 but for the expiration as against the deceased of a limitation period.

(2) If an application is made to a court by a person claiming to have a cause of action to which this sectioft applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if It decides that it is just and reasonable to do so, order-


(a) that the expiration of a limitation period for the cause of action of the deceased for the wrongful act, neglect or default has no effect in relation to the cause of action that the applicant claims to have; or

(b) that a limitation period for the cause of action that the applicant claims to have be extended for such period as It determines,

or both.

(3) The court may, in an order under this section, exclude any beneficiary or class of beneficiaries from the operation of the order, if It decides that it is just and reasonable to do so.

Matters to be considered by court

59. (1) In exercising the powers conferred on it by section 57 or 58, a court shall have regard to all the circumstances of the case and (without affecting the generality of the foregoing) shall, to the extent that they are relevant to the circumstances of the case, have regard to the following:

(a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant;

(c) the extent to which the defendant has altered his or her position in reliance on the expiration of the limitation period;

(d) the extent to which the delay has prejudiced or may prejudice a fair trial of the matter by reducing the availability or reliability of oral or other evidence;

(e) the extent to which the delay may have increased the costs of the trial;

(f) the time at which the injury became known to the plaintiff;

(g) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission;

(h) the time at which the plaintiff became aware of the potential for an action for damages in relation to the injury;

(i) the conduct of the defendant after the cause of action arose, including the extent (if any) to which the defendant responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which are or might be relevant to the cause of action;

(j) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(k) the extent of the plaintiff’s injury or loss.

(2) In the application of this section to an application for an order under section 57 in respect of a cause of action that has survived on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, references in subsection (1) of this section to the plaintiff shall be read as including references to the deceased and the applicant, or any of them, as appropriate in the circumstances.

(3) In the application of this section to an application for an order under section 58 (2) (a)-
(a) references in subsection (1) of this section to the plaintiff shall be read as including references to the deceased, the personal representative of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances; and

(b) regard may also be had to delay occurring after the death of the deceased,

whether or not a limitation period has expired in relation to the cause of action that the applicant claims to have, and whether or not the applicant is also making an application under section 58 (2) (b).

(4) In the application of this section to an application for an order under section 58 (2) (b), references in subsection (1) of this section to the plaintiff shall be read as including references to the personal representative of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.

Effect of order

60. (1) If a court orders under section 57 or section 58 (2) (b) that a limitation period for a cause of action be extended for a period determined by the court, the limitation period is accordingly extended for the purposes of-

(a) an action brought by the applicant in that court on the cause of action that the applicant claims to have; and

(b) section 26 (1) (b) In relation to any associated contribution action brought by the person against whom that cause of action lies.

(2) If a court orders under section 58 (2) (a) that the expiration of a. limitation period for a cause of action has no effect in relation to the cause of action that the applicant claims to have, that expiration has no effect for the purposes of-

(a) an action brought by the applicant in that court on the cause of action that the applicant claims to have: and

(b) any associated contribution action brought by the person against whom that cause of action lies.

(3) If a court excludes a beneficiary or class of beneficiaries from the operation of an order under section 58, the beneficiary or beneficiaries shall be treated as not being entitled to compensation in any compensation action brought as a consequence of the making of the order.

(4) In this section-

“compensation action” means an action under the Compensation to Relatives Act 1897;

“contribution action” means an action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946.

Prior bar, etc., ineffective

61. (1) If, after the expiration of a limitation period to which this Division applies, the limitation period is extended by an order under this Division, the prior expiration of the limitation period has no effect for the purposes of this Act.

(2) Applications and orders may be made under this Division as if Division I of Part IV had never been in force.

(3) This Division applies to a cause of action whether or not a relevant limitation period has expired before an application is made under this Division in respect of the cause of action.

Evidence

62. If, under this Division, a question arises as to the knowledge of a deceased person, the court may have regard to the conduct and statements, oral or in writing, of the deceased person.

(7) Section 77 (Rules of Court)-

Omit “58, 59, 60” wherever occurring, insert instead ’57, 58".

(8) Schedule 5-After Schedule 4, insert:

SCHEDULE 5

(Sec. 6(2))

FURTHER TRANSITIONAL PROVISIONS

Limitation (Amendment) Act 1986

Interpretation

1. (1) In this Schedule-

“legal professional negligence” extends to the breach of any duty of professional care owed by a solicitor or barrister, whether arising in tort, by contract or otherwise;

“limitation period” means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under a provision of this Act (including a repealed or omitted provision of this Act).

(2) In this Schedule, a reference to a judgment given extends to a judgment entered, and also to an agreement entered into before and in connection with any such judgment.

Existing causes of action for personal injury to continue to have limitation period of 6 years

2. Section 18A as inserted by the Limitation (Amendment) Act 1986 does not apply to a cause of action that accrued before the commencement of that Act.

Existing causes of action under Compensation to Relatives Act to continue to have limitation period of 6 years

3. Section 19 as substituted by the Limitation (Amendment) Act 1986 does not apply to a cause of action that accrued before the commencement of that Act, and section 19 as in force before that commencement continues to apply to such a cause of action as if the section had not been replaced.

Removal of ultimate bar applicable to pre-existing causes of action

4. Section 51 (2) as inserted by the Limitation (Amendment) Act 1986 applies to a cause of action whether or not a relevant limitation period has expired before the commencement of the Limitation (Amendment) Act 1986.

Provisions permitting extension of limitation periods for personal injury cases to apply to pre-existing causes of action

5. (1) Division 3 of Part III as substituted by the Limitation (Amendment) Act 1986 applies to a cause of action-

(a) whether or not a relevant limitation period has expired-

(i) before the commencement of the Limitation (Amendment) Act 1986; or

(ii) before an application is made under that Division in respect of the cause of action;

(b) whether or not an action has been commenced on the cause of action before that commencement;

(c) whether or not a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired before that commencement, been given (whether before or after that commencement); and

(d) whether or not a judgment in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired before that commencement, been given (whether before or after that commencement).

(2) A reference in Division 3 of Part III as substituted by the Limitation (Amendment) Act 1986 to a limitation period shall be read as including a reference to a limitation period as defined by this Schedule.

Pre-existing judgments and settlements

6. (1) In this clause, “previously barred cause of action” means a cause of action that was not maintainable immediately before the commencement of the Limitation (Amendment) Act 1986, but to which Division 3 of Part III as substituted by that Act applies.

(2) Without affecting the generality of that Division, an action on a previously barred cause of action may be brought as a result of an order made under that Division, even though-

(a) a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired before the commencement of the Limitation (Amendment) Act 1986, been given (whether before or after that commencement), or

(b) a judgment in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired before the commencement of the Limitation (Amendment) Act 1986, been given (whether before or after that commencement),

or both.

(3) Such an action may be brought as if the action in which such a judgment was given had not itself been commenced.

(4) If such an action is brought after the commencement of the Limitation (Amendment) Act 1986 on such a previously barred cause of action, the court hearing the action may, if it decides that it is just and reasonable to do so, do any or all of the following:

(a) set aside any such judgments already given on or in relation to the cause of action;

(b) take into account any amounts paid or payable by way of damages under any such judgments;

(c) take into account any amounts paid or payable by way of costs in connection with any actions In which any such judgments were given.

(5) The Supreme Court may, on application, exercise the power to set aside a judgment under subclause (4)(a) even though it is not hearing the action.

(6) A court (other than the Supreme Court) may not, under this clause, set aside a judgment of any other court.

Existing orders for extensions not affected

7. Division 3 of Part III as in force before the commencement of the Limitation (Amendment) Act 1986 continues to apply to and in respect of an order made under that Division before the commencement of that Act as if that Act had not been enacted.