Limitation of Actions (Personal Injury Claims) Act 1983

Transcription

1 ANNO TRICESIMO SECUNDO ELIZABETHAE SECUNDAE REGINAE VICTORIA Limitation of Actions (Personal Injury Act 1983 No An Act to make provision for Extending the Period within which Actions for Damages in respect of Personal Injuries may be brought, to amend the Limitation of Actions Act 1958, the Administration and Probate Act 1958 and the Wrongs Act 1958, and for other purposes. [Assented to 10 May 1983] BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say): Short title. Principal Act No Reprinted to No Subsequently amended by Nos. 9075, Commencement. 1. (1) This Act may be cited as the Limitation of Actions {Personal Injury Act (2) In this Act the Limitation of Actions Act 1958 is called the Principal Act. (3) This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette. Amendment or 2. In section 3 (3) of the Principal Act, for paragraphs (a), (3) 5 (*) and ( c ) there sha11 be substituted the following: "(o) a patient within the meaning of the Mental Health Act 1959; (b) a voluntary

2 1983 Limitation of Actions {Personal Injury No (b) a voluntary patient under section 41 of the Mental Health Act 1959; or (c) a protected person within the meaning of the Public Trustee Act 1958.". 3. In section 5 of the Principal Act Amendment of r No s. 5. (a) in paragraph (a) of sub-section (1) (i) after the expression "Actions founded in simple contract (including contract implied in law) or" there shall be inserted the expression "(subject to sub-section (1A)), actions"; and (ii) the expression "but excluding actions referred to in sub-section (6) of this section" shall be repealed; (b) after sub-section (1) there shall be inserted the following sub-section: "(1A) An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from the date on which the person first knows (a) that he has suffered those personal injuries; and (6) that those personal injuries were caused by the act or omission of some person."; and (c) sub-section (6) shall be repealed. 4. In sub-section (1) of section 23 of the Principal Act, paragraph Amendment or (e) shall be repealed. 2*230?. 5. For section 23A of the Principal Act there shall be substituted Amendment of the following: No New s. 23A. "23A. (1) This section applies to any action for damages for personal negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person. (2) Where an application is made to a court by a person claiming court may to have a cause of action to which this section applies, the court, ""bringing'' subject to sub-section (3) and after hearing such of the persons action - likely 59238/83 6

3 Limitation of Actions {Personal Injury No Court to have regard to all circumstances. likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines. (3) In exercising the powers conferred on it by sub-section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following: (a) The length of and reasons for the delay on the part of the plaintiff; (b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) The extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant; (d) The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action; (e) The extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages; (/) 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. (4) The powers conferred on a court by sub-section (2) may be exercised at any time notwithstanding (a) that more than six years has expired since the cause of action accrued; or (b) that an action in respect of such personal injuries has been commenced. (5) An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that a judge of the Supreme Court may give leave to bring an action in any court which seems to him appropriate.". Amendment of No ss. 20 (1). In section 20 (1) of the Wrongs Act 1958 (a) for the expression "three" there shall be substituted the expression "six"; and (b) after

4 1983 Limitation of Actions {Personal Injury No (b) after the expression "complaint, and" there shall be inserted the expression "(subject to sub-section (1A))" After section 20 (1) of the Wrongs Act 1958 there shall be inserted the following sub-section: "(1A) Where the death of a deceased person was caused by an injury consisting of a disease or disorder contracted by a person and the person did not know before he died (a) that he had suffered the injury; or (b) that the injury was caused by the act or omission of some person an action in respect of the injury shall be commenced within six years after the date when the person claiming to have a cause of action under this Part first knows (c) that the death was caused by the injury; and (d) that the injury was caused by the act or omission of some person or, where an application is made to a court under sub-section (2), within the period referred to in the order of the court.". Amendment of No ss.20(u) inserted. 8. In section 20 (2) of the Wrongs Act 1958 for the words and Amendment or expressions in sub-section (2) which follow paragraph (a) there ss'ioo). shall be substituted the following: "and (b) the deceased did not before his death bring an action in respect of the wrongful act neglect or default the court subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.". 9. For sub-section (3) of section 20 of the Wrongs Act 1958 ^me g d g ento1 " there shall be substituted the following sub-sections: ufioo). "(3) In exercising the powers conferred on it by sub-section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following: (a) The length of and reasons for the delay on the part of the deceased or the claimant or each of them (as the case may be); (b) The

5 1983 Limitation of Actions (Personal Injury No (b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) The extent, if any, to which the defendant had taken steps to make available to the deceased or the claimant or each of them (as the case may be) means of ascertaining facts which were or might be relevant to the cause of action of the deceased or the claimant or each of them (as the case may be) against the defendant; (d) The duration of any disability of the deceased arising on or after the date of the accrual of the cause of action; (e) The extent to which the deceased or the claimant or each of them (as the case may be) acted promptly and reasonably once he knew in relation to the injury that caused the death that the act or omission to which that injury was attributable might be capable at that time of giving rise to an action for damages; (/) The steps, if any, taken by the deceased or the claimant or each of them (as the case may be) to obtain medical legal or other expert advice and the nature of any such advice he may have received. (3A) The powers conferred on a court by sub-section (2) may be exercised at any time notwithstanding (a) that more than six years has expired since the cause of action accrued; or (b) that an action in respect of such personal injuries has been commenced by the claimant.". 10. In section 29 of the Administration and Probate Act 1958 (a) for paragraph (b) of sub-section (3) there shall be substituted the following paragraph: "(b) that are commenced against his personal representative after his death (i) within the period within which those proceedings might have been commenced against him had he lived; or (ii) where the proceedings are proceedings for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) and the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person, within such longer period as a court, on application

6 1983 Limitation of Actions {Personal Injury No application made to it by the claimant and after hearing such of the persons likely to be affected by that application as it sees fit and subject to sub-section (3A), decides is just and reasonable."; and (b) after sub-section (3) there shall be inserted the following sub-section: "(3A) In exercising the powers conferred on it by sub-paragraph (b) (ii) of sub-section (3) the court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following: (a) The date when the claimant first knew that the deceased had died; (b) The date when the claimant first knew he had a cause of action against the deceased; (c) The date when the claimant first knew that the personal representative of the deceased had taken out representation; and (d) Any prejudice which may be caused to the personal representative or any other person by extension of the said time.". 11. (1) The Acts amended by this Act shall apply as amended Transitional, by this Act (a) to a cause of action arising not more than six years before the date of commencement of this Act; and (b) to a cause of action arising on or after the date of commencement of this Act. (2) The Acts amended by this Act shall apply as in force immediately before the commencement of this Act to a cause of action arising more than six years before the date of commencement of this Act.