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Contents (1969 - 31)
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Limitation Act 1969 No 31
Current version for 1 July 2018 to date (accessed 16 September 2019 at 22:12)
Part 2 Division 6
Division 6 Personal injury actions
50A   Application of Division—kinds of causes of action
(1)  This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.
(2)  This Division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of this Division (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002).
(3)  This Division does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999.
(4)  This section extends to a cause of action that:
(a)  is a survivor action, or
(b)  is a compensation to relatives action.
50B   Definitions
In this Division:
compensation to relatives action means a cause of action that arises under the Compensation to Relatives Act 1897.
survivor action means a cause of action that survives 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.
50C   Limitation period for personal injury actions
(1)  An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:
(a)  the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b)  the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
Note.
 The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.
(2)  For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times:
(a)  the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,
(b)  the appointment of the plaintiff as the deceased’s personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,
(c)  the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased’s personal representative.
(3)  For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.
50D   Date cause of action is discoverable
(1)  For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:
(a)  the fact that the injury or death concerned has occurred,
(b)  the fact that the injury or death was caused by the fault of the defendant,
(c)  in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2)  A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3)  In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4)  To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
50E   Special limitation period for minors injured by close relatives
(1)  If a cause of action is founded on the death of or injury to a person (the victim) who was a minor at the time of the act or omission alleged to have resulted in that death or injury and the cause of action is against a person who at that time was a parent or guardian of the victim or a close associate of a parent or guardian of the victim:
(a)  the cause of action is for the purposes of this Division discoverable by the victim when the victim turns 25 years of age or when the cause of action is actually discoverable by the victim, whichever is the later, and
(b)  the 12 year long-stop limitation period for the cause of action is a period of 12 years running from when the victim turns 25 years of age.
(2)  A person is a close associate of a parent or guardian of the victim if the person is a person whose relationship with the parent or guardian is such that:
(a)  the parent or guardian might be influenced by the person not to bring a claim on behalf of the victim against the person, or
(b)  the victim might be unwilling to disclose to the parent or guardian the conduct or events in respect of which the cause of action is founded.
(3)  If the victim dies before turning 25 years of age, the limitation period applicable to a survivor action that survives on the death of the victim is to be determined as if references in this section to when the victim turns 25 years of age were references to the death of the victim.
50F   Effect of disability on limitation period
(1)  If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability.
(2)  A person is under a disability while the person:
(a)  is a minor, but not while the minor has a capable parent or guardian, or
(b)  is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person.
(3)  In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person.
(4)  In this section:
capable parent or guardian of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)).
guardian of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 for the minor.
incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:
(a)  any disease or any impairment of his or her physical or mental condition, or
(b)  restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or
(c)  war or warlike operations or circumstances arising out of war or warlike operations.
protected person means:
(a)  a person in respect of whose person another person is guardian, whether under the Guardianship Act 1987 or any other Act or law, or
(b)  a person in respect of whom an order is in force under the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987 that the estate (or any part of the estate) of the person be subject to management under the NSW Trustee and Guardian Act 2009.
(5)  Sections 52 (Disability) and 53 (Notice to proceed) do not apply to a cause of action to which this Division applies.