Retention of Limitation Period

1. There should be a fixed limitation period running from the date of accrual of the cause of action. (6.1)

2. This is to operate in conjunction with a general discretion to extend. (6.1)

Length of Limitation Period

3. The primary limitation period in cases of personal injury should be three years from the date of accrual of the cause of action. (6.11; Draft Bill Cl 18A(2))

Extension Provisions

Discovery Rule Extension Rejected

4. The discretionary provision for extension of the limitation period under the -discovery rule, as it operates under the Limitation Act 1969, should be abandoned. The discovery rule, which operates in England and Victoria to allow a plaintiff to commence an action as of right on satisfaction of the statutory criteria, should not be adopted. (6.23)

Discretionary Extension Proposed

5. A general discretion to extend the limitation period should be introduced. (6.24; Draft Bill Cl 57(2))

6. In exercising the discretion the court should have regard to all the circumstances of the case including, without derogating from the general discretion, the following considerations:

(a) length of and reasons for the delay;

(b) prejudice to the defendant from the delay;

(c) prejudice to the trial of the matter caused by the delay;

(d) any increase in costs caused by the delay;

(e) the time when the plaintiff became aware of the injury,

(f) the time when the plaintiff became aware of the connection between the injury and the defendant's act or omission;

(g) the time when the plaintiff became aware of the possibility of a cause of action;

(h) conduct of the defendant following discovery of the cause of action;

(i) steps taken by the plaintiff to obtain expert advice and the nature of the advice-,

(j) extent of the plaintiff's injury or loss. (6.30; Draft Bill Cl 59(l))

7. The plaintiff should bear the burden of proof to show that justice and equity require that the limitation period be extended. (6.31)

Compensation to Relatives Actions

8. Actions available under the Compensation to Relatives Act 1897 should be integrated into the limitations system proposed. (6.32)

9. The three year primary limitation period should apply to compensation to relatives actions. The three years would run from the date of death. (6.33; Draft Bill Cl 19)

10. Application for exercise of the discretion to extend should be available in respect of the statutory barring of both

• the deceased's cause of action; and
• the applicant's cause of action arising after the death. (6.33, 6.34; Draft Bill Cl 58(l)):

11. The statuatory guidelines for exercise of the discretion to extend should be:

(a) length of and reasons for any delays caused by the deceased, the applicant or both of them;

(b) prejudice to the defendant from the delay;

(c) prejudice to the trial of the matter caused by the delay;

(d) any increase in costs caused by the delay;

(e) the time when the applicant became aware of the injury;

(f) the time when the applicant became aware of the connection between the injury and the defendant's act or omission;

(g) the time when the applicant became aware of the possibility of a cause of action;

(h) conduct of the defendant following discovery of the cause of action;

(i) steps taken by the applicant to obtain expert advice and the nature of the advice,

(j) extent of the applicant's injury or loss.

In assessing the responsibility of the deceased for any delay in bringing proceedings the court should have regard to all the circumstances of the case including such of the matters raised in the guidelines as are applicable to the deceased's conduct. (6.35; Draft Bill Cl 58(3))

Ultimate Bar

12. No ultimate bar should apply in personal injury actions. (6.44; Draft Bill Cl 51)

Retrospectivity

13. The general discretion to extend the limitation period should be available to all plaintiffs, regardless of when their cause of action accrued, and regardless of whether it has been barred by the amending legislation. (7.11; Draft Bill Sch 5 Cl 5)

14. The ultimate thirty year bar should be removed in respect of all causes of action, whether accruing before or after the commencement of the amending legislation. (7.11; Draft Bill Sch 5, Cl 4)

15. The reduction of the primary limitation period, from six years to three, should apply only to causes of action arising on or after the commencement of the amending legislation. (7.11; Draft Bill Sch 5, Cls 2 and 3)

16. Where the court would otherwise be disposed to extend the limitation period to enable a plaintiff to commence proceedings it should have the power to set aside:

(a) a judgment except where the judgment was pursuant to a verdict in favour of the defendant on the merits of the plaintiff's claim;

(b) an agreement to compromise a cause of action and any judgment entered pursuant to such an agreement

whether or not the judgment or agreement occurred before the amending legislation. (7.14; Draft Bill Sch 5, Cl 5)

17. Where compensation has already been paid in respect of the injury, the court should have power to take that into account, by making a deduction from the award proposed. Such a deduction should not include payments made under the Social Security Act 1947 (Cth) or Workers' Compensation legislation. (7.13, 7.17)