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TASMANIA
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LIMITATION AMENDMENT BILL 2004
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CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 2 amended (Interpretation)
5. Section 5 amended (Actions in respect of personal
injuries incurred before commencement day)
6. Section 5A inserted
5A. Actions in respect of personal injuries incurred
on or after commencement day
7. Section 26 amended (Extension of limitation period in
case of disability)
8. Section 38A inserted
38A. Savings and transitional provisions
[Bill 80]-VI
2
LIMITATION AMENDMENT BILL 2004
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Limitation Act 1974
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Limitation Amendment
Act 2004.
Commencement
2. This Act commences on a day to be proclaimed.
Principal Act
3. In this Act, the Limitation Act 1974* is referred to as
the Principal Act.
*No. 98 of 1974
[Bill 80] 3
s. 4 No. Limitation Amendment 2004
Section 2 amended (Interpretation)
4. Section 2(1) of the Principal Act is amended by
inserting after the definition of "action" the following
definitions:
"commencement day" means the day on which the
Limitation Amendment Act 2004 commences;
"date of discoverability", in the case of an action
for damages for personal injuries, means the
date when the plaintiff knew or ought to have
known, but for the incapacity caused by the
relevant personal injury, that personal injury
or death
(a) had occurred; and
(b) was attributable to the conduct of the
defendant; and
(c) in the case of personal injury, was
sufficiently significant to warrant
bringing proceedings;
Section 5 amended (Actions in respect of personal
injuries incurred before commencement day)
5. Section 5 of the Principal Act is amended by inserting
after subsection (1) the following subsection:
(1A) This section applies only to an action
where the cause of action accrued before the
commencement day.
4
2004 Limitation Amendment No. s. 6
Section 5A inserted
6. After section 5 of the Principal Act, the following
section is inserted in Division 2:
Actions in respect of personal injuries
incurred on or after commencement day
5A. (1) This section applies only to an action where
the cause of action accrues on or after the
commencement day.
(2) For the purpose of this section, "personal
injury" includes any disease and any impairment of
a person's physical or mental condition.
(3) An action for damages for negligence,
nuisance or breach of duty (whether that duty exists
by virtue of a contract or a provision made by or
under an enactment or independently of any
contract or any such provision), where the damages
claimed by the plaintiff for the negligence, nuisance
or breach of duty consist of, or include, damages in
respect of personal injuries to any person, must not
be brought after the expiration of whichever of the
following periods of limitation is the earlier:
(a) 3 years commencing on the date of
discoverability;
(b) 12 years commencing on the date of the
act or omission which it is alleged
resulted in the personal injury or death
that is the subject of the action.
(4) An action for damages under the Fatal
Accidents Act 1934 in respect of the death of a
person is taken to be an action referred to in
subsection (3).
5
s. 6 No. Limitation Amendment 2004
(5) A judge may extend the period of
limitation referred to in subsection (3)(b) to the
expiry of 3 years commencing on the date of
discoverability having regard to the justice of the
case and, in particular to
(a) whether the passage of time has
prejudiced a fair trial of the action; and
(b) the nature and extent of the plaintiff's
loss; and
(c) the nature of the defendant's conduct.
(6) The periods of limitation specified in
subsection (3)(a) and (b) apply to the personal
representative of a deceased person commencing at
the earliest of the following times:
(a) the date when the deceased person knew
that personal injury
(i) had occurred; and
(ii) was attributable to the conduct of
the defendant; and
(iii) was sufficiently significant to
warrant bringing proceedings;
(b) the date when the personal
representative was appointed, if he or
she knew or ought to have known the
date of discoverability at that time;
(c) the date when the personal
representative first knew or ought to
have known the date of discoverability,
if he or she acquired that knowledge or
ought to have acquired that knowledge
after being appointed to that position.
6
2004 Limitation Amendment No. s. 7
Section 26 amended (Extension of limitation period
in case of disability)
7. Section 26 of the Principal Act is amended as follows:
(a) by inserting the following subsection after
subsection (1):
(1A) If a person proposing to bring an
action to which section 5A applies is a person
under a disability when the cause of action
accrues or as a result of the cause of action
accruing becomes a person under a disability,
the period of limitation determined under that
section applies when that person ceases to be
under a disability or dies, whichever event
first occurs.
(b) by omitting subsection (6) and substituting the
following subsections:
(6) This section does not apply to an
aggrieved party proposing to bring an action
under section 5 or 5A unless that aggrieved
party proves that he or she or, as the case
requires, the person under a disability was not
in the custody of a parent or was in the
custody of a parent who was a person under a
disability at the time when the cause of action
accrued.
(7) This section does not apply to an
action where a cause of action accrued on or
after the commencement day if the parent of a
minor under a disability in respect of which
the action may be brought is the intended
defendant or is in a close relationship with the
intended defendant, in which case the period
of limitation is 3 years commencing on the
date when the plaintiff attains 25 years of age.
7
s. 8 No. Limitation Amendment 2004
(8) For the purpose of subsection (7), a
close relationship is a relationship where
(a) either parent may be directly or
indirectly influenced by the
intended defendant not to bring an
action on behalf of the minor
against the intended defendant; or
(b) the minor may be unwilling to
disclose to the parent the conduct
or events on which the action may
be based.
(9) A judge may, if he or she considers it
in the interests of justice to do so, extend the
period of limitation referred to in
subsection (7) to 3 years commencing on the
date of discoverability.
Section 38A inserted
8. After section 38 of the Principal Act, the following
section is inserted in Part IV:
Savings and transitional provisions
38A. (1) A person who has a cause of action which
accrued before the commencement day may apply to
a judge for an extension of the period of limitation
specified in section 5(1) to 3 years commencing on
the date of discoverability.
(2) A judge may extend the period of
limitation specified in subsection (1) having regard
to
(a) the justice of the case; and
8
2004 Limitation Amendment No. s. 8
(b) the consequences to the defendant of the
defendant's reliance on the period of
limitation specified in section 5(1); and
(c) the matters mentioned in
section 5A(5)(a), (b) and (c).
(3) A person may apply to a judge for an
extension of the period of limitation specified in
section 5(1) to 12 months commencing on the
commencement day if that person
(a) suffers from an injury or disease the
date of discoverability of which occurred
6 or more years after the cause of action
accrued; and
(b) has a cause of action which accrued
before the commencement day; and
(c) proposes to rely on a date of
discoverability which occurred more
than 2 years before the commencement
day.
(4) The judge may extend the period of
limitation referred to in subsection (3) having regard
to the matters set out in subsection (2).
Government Printer, Tasmania 9