LIMITATION ACT 1985 - SECT 39 Action for compensation to relatives

LIMITATION ACT 1985 - SECT 39

    (1)     Subject to subsection (3), if, apart from the end, as against a deceased person, of a limitation period in relation to a cause of action, the personal representative of the deceased person would be entitled to institute proceedings in relation to a cause of action referred to in section 16, the court may, if it decides it is just and reasonable so to do, on application made by the personal representative, order that, for the purposes of such proceedings, the limitation period is extended for the further period that the court determines.

    (2)     The court shall, in a declaration made under subsection (1), specify a period, being a period not exceeding 6 years beginning on the day of death of the person injured, within which proceedings in relation to the cause of action may be instituted.

    (3)     In exercising the powers given to it by subsection (1), the court shall have regard to all the circumstances of the case, including, for example, the following:

        (a)     the reasons for the failure of the person to begin an action before the end of the relevant limitation period;

        (b)     whether a significant period of time elapsed after the cause of action accrued during which the person did not know, and could not reasonably have known, that he or she had suffered an injury giving rise to a cause of action;

        (c)     whether the person knew, or ought reasonably to have known, before his or her death that he or she had suffered such an injury;

        (d)     if the person knew before his or her death that he or she had suffered such an injury, the extent to which he or she acted promptly and reasonably;

        (e)     the extent to which a declaration specifying a limitation period would, or would be likely to, result in prejudice to the defendant;

        (f)     the conduct of the defendant after the relevant cause of action accrued, including the extent to which the defendant took steps to make available to the person means of ascertaining facts in relation to the cause of action;

        (g)     the steps (if any) taken by the person to obtain, for the cause of action, medical, legal or other expert advice, and the nature of the advice.

    (4)     Subject to subsection (5), if, at the time of his or her death, a person had a cause of action, the court, on application by his or her personal representative, may—

        (a)     if the court considers it just and reasonable to do so; and

        (b)     whether or not the limitation period applicable under section 16 has ended since the death of the person; and

        (c)     whether or not an action on such a cause of action has been begun;

extend that limitation period for the further period, not exceeding 6 years from the date of death of the deceased person, that the court considers appropriate.

    (5)     In exercising the powers given to it by subsection (4), the court shall have regard to all the circumstances of the case, including, for example, the following:

        (a)     the reasons for, and length of, the delay on the part of the personal representative in instituting proceedings;

        (b)     whether, after the death of the deceased person, a significant period of time elapsed before a relative of the deceased person or the personal representative knew or ought reasonably to have known that the act, neglect or default that resulted in the death was capable of giving rise to a cause of action;

        (c)     the extent to which, when the personal representative became aware that the act, neglect or default that caused the death was capable of giving rise to a cause of action, the personal representative acted promptly and reasonably;

        (d)     the extent to which an extension of the limitation period would, or would be likely to, result in prejudice to the defendant;

        (e)     the conduct of the defendant after the relevant cause of action accrued to the personal representative, including the extent to which the defendant took steps to make available to the personal representative means of ascertaining facts in relation to the cause of action;

        (f)     the steps (if any) taken by the personal representative to obtain, for the purposes of the cause of action, medical, legal or other expert advice and the nature of any such advice.