I. ENGLAND
4.1 The 1963 Act provided that a plaintiff had only twelve months from the date of knowledge to commence an action.1 This was in contrast to the ordinary three year period which ran from the date of injury. In 1970, the Law Commission reported on the adequacy of that twelve month period. Although it did not obtain any evidence of actual cases of insufficiency of time, the Commission did recommend that the period be extended to three years.2 This recommendation was implemented by the Law Reform (Miscellaneous Provisions) Act 1971 (UK).
4.2 The Bergfels anomaly was identified in relation to the English equivalent of the New South Wales Compensation to Relatives Act 1897.3 Under that Act, applicants could not take advantage of the discovery rule extension as could ordinary personal injury plaintiffs. The applicant thus had only three years from the date of death within which to commence an action, regardless of ignorance of the material facts relating to that cause of action. In Lucy v W T Henley Telegraph Works Company Ltd4 this anomaly was noted by the English Court of Appeal and following that case the Law Commission was requested to advise -on the amendment of the 1963 Act in the light of that judgment. It recommended the assimilation of the position of applicants to that of living plaintiffs. This recommendation was implemented by the Law Reform (Miscellaneous Provisions) Act 1971 (UK) which provided that the three year period ran from the date of death or the applicant’s own date of knowledge, whichever was later.
4.3 Thirdly, the 1963 Act required that the plaintiff obtain the leave of the court to sue out of time. Leave was to be granted only if the plaintiff satisfied the court that a good prima facie case existed on both the substantive merits and on the entitlement to rely on the discovery rule extension.5 The Law Reform Committee (The Orr Committee) which was given the task of reviewing the Act found that there was no real need for this procedure and recommended its abolition.6 However the Committee did not consider that the limitations issue should always be left to be decided at the trial of the substantive action. It envisaged cases where it would be advantageous to all parties to have the limitations question decided as a preliminary issue.7 No recommendations were, however, made to this effect.
4.4 The most significant and damaging problems with the existing legislation were those arising out of the date of knowledge provisions. The complex statutory formula which was introduced to avoid unnecessary uncertainty (para 2.12) in turn created its own difficulties. These difficulties were discussed in Chapter 3. The decision of the House of Lords in Central Asbestos Co Ltd v Dodd8 (paras 3.25-3.26) added to the state of confusion. It will be recalled that no single interpretation received majority support. In 1971, the Law Reform Committee (the Orr Committee) was invited to consider the limitation of personal injury actions in the light of this uncertainty.
4.5 The Committee recommended the introduction of a two tiered scheme for the commencement and extension of personal injury actions. Firstly, the discovery rule was to be retained, resulting in a primary limitation period of three years running from either the date of injury or the date of knowledge, whichever is later. The Committee considered that the plaintiff’s right to commence an action within three years from the date of knowledge was a valuable one from which they did not wish to detract.9 The Committee did however reject the worthwhile cause of action test on the basis that
[t]he principle that ignorance of the law is no excuse is of long standing and founded on good reasons...10
The current Limitation Act 1980 (UK) thus expressly provides that
...knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.11
4.6 Secondly, the Orr Committee noted the more general criticisms of the Act and concluded that it was
difficult to draft the statutory formula in clear language and in a way which covers the cases intended to be covered, but no others.12
Furthermore, they argued that however skilfully the statutory formula is devised, there will always be the possibility of doing injustice in particular cases.13 To overcome these inherent difficulties the Committee recommended the introduction of what was termed a “residual” discretion to act as a complement to, and not in substitution for, the primary limitation period.14
4.7 The idea of giving the court a discretion to disallow a defence based on the limitation statute had long been mooted in England. Precedents for such a discretion already existed in specific statutes dealing only with certain causes of action15 and suggestions were made that such a discretion be introduced into limitations legislation as a general principle.
4.8 In 1936, the Wright Committee had considered that such a discretion would
obviate the cases of hardship which are bound to occur under any rigid system of limitation, however well devised.16
However, that Committee rejected the introduction of such a discretion due to the lack of certainty it would engender.17
4.9 In its 1962 Report, the Edmund Davies Committee had also considered and rejected the introduction of the discretion. Such a discretion would involve a “fundamental amendment to the existing law”, an amendment to which those consulted were “practically unanimous” in their opposition.18 It would lead to uncertainty and, because it was unfettered, to undesirable divergences of practice among the judiciary.19
4.10 By 1974, however, the Orr Committee was able to argue persuasively for the introduction of such a discretion. Criticisms based on subsequent uncertainty were answered by arguing that previous attempts at formulating objective criteria for the extension of time had not led to certainty. They had not allowed “the defendant or his insurers to close their books at any predetermined time”.20
4.11 The Committee also addressed the criticism that the use of the discretion would lead to divergences of judicial opinion. The Committee recommended a legislative prescription of guidelines to achieve consistency in the application of the court’s discretion.21
4.12 The Committee emphasised that the discretion was a “residual” one which would come into operation when the strict application of the discovery rule would cause injustice.22 For example, the plaintiff who knew all the relevant facts of the case but failed to realise that there was a worthwhile cause of action could not rely on the discovery rule extension. It was envisaged that such a plaintiff could apply for a favourable exercise of the discretion. Arguably, however, the discretion provision is, of more general application, and this has in fact been the interpretation given to it in cases subsequent to the enactment of the Limitation Act 1975 (UK).
4.13 In Firman v Ellis23 the Court of Appeal refused to be bound by the Committee’s stated intention that the discretion should be a residual one and chose instead to interpret the statutory formula on its face. It was held that the power conferred by the Act was unfettered and general24 and arose in all cases where the three year limitation period had expired.
4.14 This interpretation of the section was approved by the House of Lords in Thompson v Brown Construction Ltd25 subject to an earlier decision of the House in Walkley v Precision Forgings Ltd.26 In the earlier case the House of Lords considered that the statutory language used required some qualification of the discretionary power. Section 2D of the 1975 Act (which became s33 of the consolidated 1980 legislation) provided that
(1) if it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -
the court may direct that those provisions shall not apply to the action
It was held that a prerequisite to the exercise of the discretion was the finding that the plaintiff had been prejudiced by the provisions of ss 11 or 12.
4.15 In Walkley the plaintiff had commenced an action within the relevant limitation period but had allowed the action to lapse. After the expiry of that period the plaintiff sought to issue a second writ in respect of the same action and for this purpose relied on the exercise of the discretion. The application was refused. The prejudice which had resulted to the plaintiff was held to be due to his own inaction and not to the operation of s11 or 12.27 The primary limitation period could not be said to have caused him any prejudice at all given that the plaintiff had been able to commence his action within that limitation period.28
4.16 While this is a significant limit on the operation of the discretionary power, as the cases discussed above indicate, the discretion has still been interpreted more widely than was perhaps intended by the Orr Committee.
II. SCOTLAND
4.17 At common law, actions in Scotland were governed only by a long “negative prescription” which, until recently, was a period of twenty years.29 At its expiration the right as well as the remedy is extinguished. Since 1954, the commencement of actions has also been governed by the limitation provisions enacted in England. Actions were thus governed by a three year limitation period as well as the ultimate twenty year prescription. The Limitation Act 1963 (UK) and the Law Reform (Miscellaneous Provisions) Act 1971 (UK) also extended to Scotland. The English Limitation Act 1975 which introduced the discretion to extend the primary limitation period did not apply to Scotland. However a similar provision was introduced by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 which provided that a court may allow an action to be brought after the expiry of the limitation period if it seems equitable to do so.30 The discretion was unfettered with no guidelines for its exercise. The discretion could not however be used to override the long negative prescription.
4.18 In 1980, the Scottish Law Commission recommended that the long negative prescription should not be restored as the sole method of limiting the commencement of actions31 but the question of whether it should continue to apply to personal injury actions at all was left open.32
4.19 In 1982, the Scottish Law Commission recommended that the long negative prescription should no longer govern personal injury claims.33 It recommended that such claims be governed by a three year limitation period34 running from the date of injury or the date of knowledge.35 The Commission made no recommendation in relation to the provisions for discretionary extension, arguing that the 1980 amendments were too recent to allow a judgment to be made on their desirability or efficacy.36 The Commission’s recommendations were implemented in the Prescription and Limitation (Scotland) Act 1984 (UK).
III. VICTORIA
4.20 In 1983, the Victorian Limitation of Actions Act 1958 was amended by the introduction of some of the most sweeping reforms in Australia to date. The reforms have simplified the discovery rule extension formula and introduced a discretionary power of extension. In both cases, significant improvements were made on the English formula of 1975. on which they were modelled.
4.21 The Limitation of Actions Act 1958 (Vic) (which was a consolidation of two earlier Acts37) was based on the Limitation Act 1939 (UK). It provided for a fixed limitation period of three years running from the date of accrual of the cause of action. There was no extension provision.38 In 197239 the discovery rule extension formula was introduced but unlike the English provision did not entitle the plaintiff to an extension as of right. Instead, on satisfaction of the statutory criteria, the court had a discretion to allow an extension of up to one year from the date of knowledge.40 Problems as to the scope of the material facts provisions were encountered in Victoria in similar fashion to the English and New South Wales provisions.
4.22 The Limitation of Actions (Personal Injury Claims) Act 1983 (Vic) was loosely based on the recommendations of the Victorian Chief Justice’s Law Reform Committee contained in its 1981 Report on Limitation of Actions in Personal Injury Claims. The Committee considered that not all personal injury cases should be treated in the same way for the purpose of extending the primary limitation period . A distinction was drawn between those personal injuries arising out of accident, and those arising out of disease. Limitations problems were said to arise only in relation to the latter case41 and the Committee’s recommendations were so confined.
4.23 The Committee considered that the discovery rule extension formula was unnecessarily complex, intricate and abstruse given that it provided for only a very limited form of extension .42 They therefore recommended a simplified formula for the running of the limitation period. In the resulting Act, the period runs from the date on which the plaintiff first knows
This formula altered the existing law, firstly, by providing that the extension is as of right and does not require an exercise of the court’s discretion and secondly, by excluding the worthwhile cause of action test. Thirdly, the plaintiff who satisfies the new test has the ordinary limitation period within which to commence an action.
4.24 The Committee considered and rejected a suggestion of introducing a discretion to disallow the limitations defence. The introduction of such a discretion was said to lead to too much uncertainty and divergence of judicial opinion.44 It did however recommend that the court be given a general discretion to extend the limitation period from three to six years but that it was not to be exercised where the failure to commence an action within the limitation period was due to a failure on the part of the plaintiff’s legal representative.45 This part of the Committee’s recommendations was not accepted by the government which instead chose to adopt the following scheme.
4.25 The three year limitation period then governing personal injury actions was extended to six years46 bringing such cases into line with actions founded on tort or contract generally. That period was subject to the discovery rule extension (para 4.23). Further, the Act conferred on the court a general discretion to extend the limitation period if it considered it just and reasonable so to do.47 Guidelines, closely following the English provisions, were prescribed48 but the Victorian Act removed the prejudice requirement which has caused difficulties in England (paras 4.14-4.15). The discretionary extension provision is applicable to all personal injury cases and, unlike the discovery rule extension, is not confined to those consisting of a disease or disorder.49
4.26 This scheme was extended to actions brought under the Victorian equivalent of the New South Wales Compensation to Relatives Act 1897.50 The six year limitation period thus runs from the date of death, or the-date when the applicant first knows -
The applicant may also apply for an exercise of the court’s discretion to extend the limitation period for the deceased’s cause of action.52 The relevant guidelines incorporate a consideration of the relative circumstances of both the deceased and the applicant.53
4.27 In his Second Reading Speech on the introduction of the above legislation, the Victorian Attorney General praised the simplicity of the scheme which placed no arbitrary limits on the court’s powers. The Act was said to be a recognition of the particular difficulties faced by plaintiffs suffering from a disease or disorder.54
4.28 The amendments appear to be working satisfactorily. In Walla v State Transport Authority55 the legislation was said to constitute a “radical departure from the previous law”.56 In that case, the plaintiff’s ignorance that he had a worthwhile cause of action was said to be a proper consideration in the court’s exercise of its discretion to extend the limitation period.57
IV. WESTERN AUSTRALIA
4.29 The Limitation Act 1935 (WA) was merely a consolidation of the Imperial statutes then in force in Western Australia. Actions founded on tort or contract were governed by a six year limitation period, while actions for trespass to the person were governed by a four year period .58 No provision was made for extension of those primary limitation periods.
4.30 During the 1970’s concern was expressed at the difficulties faced by plaintiffs suffering from latent respiratory diseases in commencing their actions within the limitation period.59 By 1982 the problem of the limitation of personal injury actions, especially those involving asbestos related disease, was becoming urgent.60 This led to a special reference being given to the Law Reform Commission of Western Australia to consider the limitation of actions brought by those suffering from latent injury and disease.61
4.31 In 1982 the Commission’s Report on Limitation and Notice of Actions: Latent Disease and Injury (Part 1) recommended significant changes to the existing law, not confined to latent disease and injury but extending to personal injury generally. Ultimately those recommendations were not adopted by the government of the day62 but they remain a valuable model for the reform of limitations legislation.
4.32 The Commission recommended that all personal injury actions be governed by a six year limitation period, but that that period not apply where the court determined that it was just that it not apply.63 The Commission stressed that its recommendation was not merely a conferral of a judicial discretion. The emphasis was. to be on what was just according to the circumstances of the case and according to certain statutory criteria. One member of the Commission, however, considered that there was no difference between such a scheme and the granting of a judicial discretion exercisable in accordance with statutory guidelines.64 The Commission recommended the following statutory criteria:
(i) The reasons why the plaintiff did not commence the action within the limitation period including, where applicable, that there was a significant period of time after the cause of action accrued during which the plaintiff neither knew nor ought reasonably to have known that he had suffered the injury giving rise to the cause of action.
(ii) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(iii) The extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission or the alleged act or omission of the defendant might be capable at that time of giving rise to an action for damages.
(iv) The conduct of the defendant after the cause of action accrued relevant to the commencement of proceedings by the plaintiff.
(v) The extent to which the defendant may be prejudiced in defending the action, other than by relying on a defence of limitation, if the limitation period does not apply.
(vi) Alternative remedies available to the plaintiff if the limitation period applies.
(vii) The duration of any disability of the plaintiff whether arising before or after the cause of action accrued.65
4.33 The Commission rejected the continued use of extension provisions based on the discovery rule. The English formula was said to be “complicated, confusing and uncertain”.66 The definition of knowledge provisions were said to be operating unsatisfactorily.67 Moreover these problems could not be overcome by more precise drafting due to the inherent inability of Parliament to legislate in advance for all possible situations.68
4.34 Although the Commission’s recommendations were not implemented the government continued to seek a solution to the problem of latent injury and disease. The problem of asbestos related disease, at least, had to be addressed. The government rejected the idea of ex gratia compensation to victims of asbestos related disease.69 Instead the government preferred to amend the Limitation Act 1935 (WA) in respect of asbestos related disease only, by the introduction of a discovery rule formula based on the English Limitation Act 1975.70 Given the urgency of the government’s amendments, it was agreed not to extend them to personal injuries or even latent disease generally until a further and adequate review had been made of relevant issues.71 The resulting Acts Amendment (Asbestos Related Diseases) Act 1983 (WA) provided that the limitation period runs from the date on which the plaintiff first has knowledge -
(a) that the injury was significant;
(b) that the injury was attributable to the act or omission which is alleged to constitute the cause of action;
(c) of the identity of the defendant.72
As in the English provisions, the worthwhile cause of action test is specifically excluded.73
4.35 The government was however most concerned about the retrospectivity of the provisions74 and enacted complex provisions to deal with this issue. In short, those provisions distinguish between claims where the plaintiff’s knowledge arose before 1 January 1984, and those where the plaintiff’s knowledge arose after 1 January 1984. In the latter case, the plaintiff is entitled to the full benefit of the amendments.75 In the former, a plaintiff has only three years from the coming into operation of the amendments within which to commence an action. Further, the plaintiff’s damages are limited to pecuniary loss76 only, and in any case may not exceed $120,000. The government indicated that the figure was an arbitrary limit chosen as a balance between a “financially responsible” figure and one which would provide a “worthwhile amount of damages for a successful plaintiff”.77 The figure can be compared with the prescribed amount of $70,000 available under the Workers’ Compensation Act which, apart from the amendments, would have been the plaintiff’s only source of compensation.
4.36 As it did in 1982 the Commission has again recommended the introduction of a uniform set of rules for all personal injury cases, or at least for all cases involving latent disease. The current distinction made in relation to asbestos related disease was said to be unsatisfactory.78 The form and substance of any such amendments were not however determined, nor were even the parameters of such change mapped out. A discussion paper covering such details is being prepared.79
V. SOUTH AUSTRALIA
4.37 As in Western Australia, the South Australian Parliament has never enacted its own limitations legislation, relying instead on a consolidation of the Imperial statutes then in force.
4.38 The Limitation of Actions Act 1936 (SA) as amended in 195680 provided for a three year limitation period for personal injury actions with no power of extension. In 1970, the Law Reform Committee of South Australia recommended the introduction of a discovery rule extension procedure.81 However the formula contained in the English Limitation Act 1963 was not considered comprehensive enough. Nor was its legislative expression free from ambiguity.82 Specifically, the Committee rejected the requirement that material facts be of “decisive character” and instead chose the phrase material facts “relating to the cause of action”. The Committee further rejected the imposition of constructive knowledge and the legislation refers only to the actual knowledge of the plaintiff.83
4.39 The extension of the primary limitation periods is currently governed by provisions inserted in 1972.84 The court is there given power to extend any limitation period as the justice of the case may require,85 but only if it is satisfied
that facts material to the plaintiff’s case were not ascertained by him until...after the expiration [of the limitation period] and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff....86
No definition is given of what constitutes material facts and no guidelines are provided as to what is “Just” in the circumstances. These extension provisions are of general application and are not confined to personal injury actions.
4.40 The Law Reform Committee of South Australia has recently made a series of recommendations regarding the commencement of actions by plaintiffs suffering from latent injury or disease.87 The Committee did not consider that such plaintiffs would automatically be granted an extension under the above scheme and recommended the enactment of specific legislation to deal with their situation.88
4.41 The Committee proceeded from the premise that victims of latent toxic injuries should have the right to commence an action upon discovery of that injury and not have to rely upon the discretion of the court.89 It thus recommended that the plaintiff be entitled to commence an action within three years of the date of knowledge. The Committee approved the date of knowledge formula contained in the Limitation Act 1975 (UK).90
4.42 The Committee was further of the view that in all cases, and not just those of latent injury, the Court should have a discretion to extend the limitation period according to the English model.91 The anomalies caused by the particular drafting of the English provisions (paras 4.13-4.16) were noted and their elimination recommended.92
4.43 The Committee however recommended the introduction of an outside limit for the bringing of actions and the operation of the extension provisions. It was suggested that there be imposed a thirty year “long stop” beyond which proceedings could not be commenced.93 This period would run from the date of injury and not the date of knowledge. The Committee conceded that while such a period might “not catch all latent injury it should enable proceedings to be brought in the vast majority of cases”.94 This attitude is not easy to reconcile with the Committee’s earlier expressions of concern for the difficulties faced by victims of latent injury and disease.
4.44 The Committee’s recommendations have not yet received legislative consideration.
VI. AUSTRALIAN CAPITAL TERRITORY
4.45 The Limitation Ordinance 1985 (ACT) came into force in December 1985. It repealed New South Wales and Imperial legislation dating back to 1588 and sought to simplify the law in the Territory. Until December 1985 the law in the Territory had been the same as the law in New South Wales prior to the passage of the Limitation Act 1969 (NSW).95
4.46 The Ordinance sets a limitation period of six years for most causes of action.96 This was in part to maintain uniformity with law in force in New South Wales and other jurisdictions in Australia.97
4.47 In relation to claims for personal injuries the court is given a general discretion to extend the limitation period where it is thought to be ‘just and reasonable to do so”.98 Section 36(3) provides a set of guidelines for the exercise of the discretion. The guidelines are not exclusive of other considerations. In exercising the discretion the court is directed to have “regard to all the circumstances of the case including (without derogating from the generality of the foregoing)” the matters set out in s36(2). Six guidelines are provided, including the length and reasons for the plaintiff’s delay, prejudice to the defendant from the delay, the conduct of the defendant in making information available to the plaintiff after the cause of action has accrued, the promptness with which the plaintiff acted after learning of the possibility of a cause of action and the steps taken by the plaintiff to obtain expert advice.
4.48 The Ordinance makes no specific provision for a discovery rule extension but does allow the plaintiff’s ignorance to be taken into account under the general discretion to extend. The scheme settled by the Ordinance is very similar to the guidelines for the exercise of a general discretion suggested by the Law Reform Commission of Western Australia in 1982.99
4.49 The Ordinance sets out two limitation periods for actions for compensation to relatives. A relative must bring an action either within six years of the wrongful act or within three years of the death, whichever is the later.100 The Ordinance allows for an extension of time to be granted to a maximum of six years beyond the death of the person injured.101
4.50 Guidelines, similar to those in s36, are provided for the exercise of the discretion to extend the limitation periods.102
FOOTNOTES
1. Limitation Act 1963 (UK) s1.
2. Law Commission (Scarman Committee) Limitation Act 1963 (Cmnd 4532, 1970) at 8, para 22.
3. Fatal Accidents Act 1846 (UK).
4. [1970] 1 QB 393.
5. Limitation Act 1963 (UK) s2.
6. Law Reform Committee (Orr Committee) Interim Report on Limitation of Actions, Personal Injury Claims (Cmnd 5630, 1974) at 32, para 86. This Recommendation was implemented in the Limitation of Actions Act 1975 (UK) which repealed ss 1-3B of the Limitation Act 1963 (UK), see s4(5) and Sch 2.
7. Id at 32-33, para 87.
8. [1973] AC 518.
9. Law Reform Committee, note 6 at 13, para 35.
10. Id at 20. para 53.
11. Limitation Act 1980 (UK) s14.
12. Law Reform Committee, note 6 at 12, para 32.
13. Ibid.
14. Id at 14, para 38.
15. For example, the Workmen’s Compensation Act 1925 (UK) s14(1) provided that -
(b) failure to make a claim within the [specified] period shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from the United Kingdom, or other reasonable cause.(emphasts supplied)
16. Law Revision Committee (Wright Committee) 5th Interim Report (Statutes of Limitation) (Cmnd 5334, 1936) at 11, para 7.
17. Id at 12. para 7.
18. Committee on Limitation of Actions in Cases of Personal injury (Edmund Davies Committee) Report (Cmnd 1829, 1962) at 13, para 31.
19. Id at 14. para 31.
20. Law Reform Committee, note 6 at 22, para 57.
21. Ibid.
22. Law Reform Committee, note 6 at 14, para 39.
23. [1978] QB 886.
24. Id at 904-905. per Denning LJ: at 910, per Ormrod LJ; at 915, per Geoffrey Lane LJ.
25. [1981] 2 AII ER 296.
26. [1979] 2 AII ER 548, In Thompson v Brown Construction Ltd Lord Diplock commented that he ought not to have expressed prejudice to the plaintiff to be the “only” consideration to be taken into account under s2D. Rather, he said, in view of the wording of s2D(3), prejudice to the plaintiff should be regarded as only one of the matters to be considered, s2D(3) listing many others as well.
27. Id at 551, per Lord Wilberforce.
28. Id at 559, per Lord Diplock.
29. Scottish Law Commission Time Limits in Actions for Personal Injury (Memo No 45, 1980) at 2 para 1-5. The Prescription and Limitation (Scotland) Act 1973 (UK) s7 changed the common law.
30. Section 23.
31. Scottish Law Commission, note 29 at 13, para 2-15.
32. Id at 13, para 2-12.
33. Scottish Law Commission Prescription and Limitation of Actions. Personal Injuries Actions and Private International Law Questions (1982) at 9, para 2.8.
34. Id at 22, para 3.31.
35. Id at 10, para 3.2.
36. Id at 31, para 4.9.
37. Limitation of Actions Act 1955 (Vic): Limitation of Actions (Extension) Act 1956 (Vic).
38. Limitation of Actions Act 1958 (Vic) s5(l).
39. Limitation of Actions (Personal Injuries) Act 1972 (Vic).
40. Id, s23A.
41. Chief Justice’s Law Reform Committee Report on Limitation of Actions in Personal Injury Claims (1981) at 3.
42. Id, at 4.
43. Limitation of Actions (Personal Injury Claims) Act 1983 (Vic) s3.
44. Chief Justice’s Law Reform Committee, note 41 at 3.
45. Id at 1-2.
46. Limitation of Actions (Personal Injury Claims) Act 1983 (Vic) s3.
47. Id s5.
48. Ibid.
49. Ibid.
50. Wrongs Act 1958 (Vic).
51. Wrongs Act 1958 (Vic) (as amended by the Limitation of Actions (Personal Injury Claims) Act 1983 (Vic)) s20(1A).
52. Ibid.
53. Id s20(3).
54. The Hon J Cain, MLA, Attorney General, Victorian Parliamentary Debates, Legislative Assembly, 14 December 1982 at 2766-2767.
55. [1985] VR 327.
56. Id at 329, per Murray J.
57. Ibid.
58. Limitation Act 1935 (WA) s38(1)(c) and (b) respectively.
59. Law Reform Commission of Western Australia Limitation and Notice of Actions (Scope and Approach Paper, Project No 36 Part 11 1984) at 5-6. para 1.4.
60. Id at 6, para 1.5.
61. Law Reform Commission of Western Australia Report on Limitation and Notice of Actions: Latent Disease and Injury (Project No 36 Part 1 1982) at 5, para 1.1.
62. Law Reform Commission of Western Australia Annual Report 1982-1983 at 24, para 3.38.
63. Law Reform Commission of Western Australia, note 61 at 75, para 4.22.
64. Id at 75, para 4:22, fn 3
65. Id at 77-80, paras 4.25-4.32.
66, Id at 67, para 4.5.
67. Ibid.
68. Id at 67, para 4.6.
69. Law Reform Commission of Western Australia, note 59 at 7, para 1.7.
70. Id at 8, para 1.7.
71. West Australian Parliamentary Debates, Legislative Council, 30 November 1983 at 4441, the Hon J M Berinson, Attorney General.
72. Section 38A(7)-(9).
73. Section 38A(7), (for a discussion of the English provisions see para 4.5).
74. S Smith “Asbestos Related Diseases” February 1984 Brief 10 at 10.
75. Limitation Act 1935 (WA) (as amended by Acts Amendment (Asbestos Related Diseases) Act 1983 (WA)) s38A(6).
76. Id s38A(2)-(5).
77. West Australian Parliamentary Debates, Legislative Council, 6 December 1983 at 5987, the Hon J M Berinson, Attorney General.
78. Law Reform Commission of Western Australia, note 59 at 86, para 4.8.
79. Law Reform Commission of Western Australia Annual Report (1984-1985) at 34, para 3.71.
80. Limitation of Actions and Wrongs Act Amendment Act 1956 (SA).
81. Law Reform Committee of South Australia Law Relating to Limitation of Timefor Bringing Actions (No 12, 1970) at 3.
82. Ibid.
83. Ibid.
84. Statutes Amendment (Miscellaneous Provisions) Act 1972 (SA); substituted by Limitation of Actions Amendment Act 1975 (SA).
85. Limitation of Actions Act 1936 (SA) s48(1).
86. Id s48(3).
87. Law Reform Committee of South Australia Report Relating to Claims for Injuries from Toxic Substances and Radiation Effects (No 87, 1985).
88. Id at 10-11.
89. Id at 19.
90. Id at 20-21. Discussed at para 4.5.
91. Law Reform Committee of South Australia, note 87 at 27.
92. Id at 25-26.
93. Id at 27.
94. Ibid.
95. Attorney-General’s Department (Cth) Working Paper, Proposals for the Reform and Modernization of the Laws of Limitation in the Australian Capital Territory 3 para 4.
96. Limitation Ordinance 1985 (ACT) s11(1) but see eg ss14-19 and 23 which set different limitation periods for specific causes of action not related to personal injury, as do ss 17.20,22.27 and 41 of the Limitation Act 1969 (NSW): Working Paper at 13 para 20.
97. Attorney General’s Department Working Paper at 12.
98. Limitation Ordinance 1985 (ACT) s36(2).
99. See para 4.32.
100. Limitation Ordinance 1985 (ACT) s16.
101. Id s39(2).
102. Id s39(3),(5).
