LIMITATION ACT 1935 - SECT 47A

LIMITATION ACT 1935 - SECT 47A

47A .         Protection of persons acting in execution of statutory or other public duty

        (1)         Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless —

            (a)         the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and

            (b)         the action is commenced before the expiration of one year from the date on which the cause of action accrued,

                and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues.

        (2)         A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given.

        (3)             (a)         Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.

            (b)         Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.

            (c)         Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made.

        (4)             (a)         In this section person includes a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown.

            (b)         This section is to be construed so as not to affect the provisions of the Crown Suits Act 1947 .

        (5)         Where an action is one to which this section applies and —

            (a)         the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and

            (b)         the person who suffered the latent injury had the knowledge referred to in section 38A of this Act before 1 January 1984,

                the period limited by this section for the doing of any thing in relation to that action shall run not from the time otherwise provided by this section but from the time of the coming into operation of the amending Act.

        (6)         Where in an action to which subsection (5) applies it is proved that —

            (a)         the person who suffered the latent injury had the knowledge referred to in section 38A of this Act before 1 January 1984; and

            (b)         the period of 6 years applicable under subsection (3)(a) of this section as in force before the coming into operation of the amending Act had expired before the action was commenced,

                damages shall not be awarded except in respect of pecuniary loss and the total amount of the damages awarded shall not in any case exceed $120 000.

        (7)         Where an action is one to which this section applies and —

            (a)         the cause of action arises from a person having suffered a latent injury that is attributable to the inhalation of asbestos; and

            (b)         the person who suffered the latent injury did not have the knowledge referred to in section 38A before 1 January 1984,

                the period limited by this section for the doing of any thing in relation to that action shall run not from the time otherwise provided by this section but from the time when that person has the knowledge referred to in section 38A.

        (8)         After the coming into operation of the amending Act —

            (a)         a notice may be given;

            (b)         an action may be commenced; or

            (c)         consent may be given, or leave may be granted, to bring an action,

                in accordance with subsection (5) or (7) of this section notwithstanding that the period of limitation applicable before the coming into operation of the amending Act in respect thereof had expired before the coming into operation of that Act.

        (9)         In subsections (5), (6), (7), and (8) —

        latent injury has the same meaning as is given to that expression by section 38A of this Act;

        the amending Act means the Acts Amendment (Asbestos Related Diseases) Act 1983 .

        [Section 47A inserted: No. 73 of 1954 s. 4; amended: No. 84 of 1983 s. 5.]