4 Instituting proceedings

Contract contract cause of action accrues when breach

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Contract Contract cause of action accrues when breach occurs. Negligence Negligence cause of action accrues when damage is suffered (because damages is a key element of the cause of action for negligence.
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Accrual of Cause of Action Cause of action can accrue without knowledge of plaintiff e.g. where defendant’s negligence has caused plaintiff to suffer a latent injury. In this case, limitation period may run from date of discoverability . This is not when plaintiff actually became aware, but rather when the plaintiff ought to have known of the negligence i.e. an objective test.
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Suspension of Limitation Period Can be postponed/suspended for: Fraud, deceit, concealment (s 27); Acknowledgment or part-payment by defendant (ss24-6); Plaintiff is under a disability (under 18 or has a mental disability e.g. that prevents them from managing their affairs, properly instructing a solicitor etc…) BUT see restrictions under ss 27J & 27E.
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Suspension of Limitation Period cont. In Victoria, s. 27J provides that a minor is only under a disability for the purpose of suspending the limitation period (for personal injury cases) if they do not have a capable parent of guardian.
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Personal Injury Actions Personal injuries- most commonly litigated in seeking time extension See Part IIA ‘personal injuries’ includes any disease and any impairment of a person’s physical or mental condition (s 3(1))
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Part IIA LAA – s 27D For personal injury / death, the limitation period expires after whichever of the 2 following periods elapses first : 3 years from date on which the cause of action is discoverable by the plaintiff OR 12 years from date of the act/omission alleged to have resulted in the death or personal injury.
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DISCOVERABILITY A cause of action can accrue without the plaintiff’s knowledge Limitation period to run from discoverability Justification: although less certain for defendant, much more likely to cause injustice to individual cases Under LAA, discoverability is an objective test-when plaintiff ought to have known of the negligence
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Discoverable’: s 27F A cause of action is discoverable on the first date that Plaintiff knew or ought to have known all of the following facts— (a) the fact that the death / personal injury concerned has occurred; AND (b) the fact that the death / personal injury was caused by Defendant’s fault; AND (c) in the case of personal injury, fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
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CAVEN V WOMEN’S & CHILDREN’S HEALTH Kaye J considered whether to make an order to extend the time in which to bring legal proceedings Key issue: whether plaintiffs knew or ought to have known key facts before expiration of time limitation period Not an easy question to answer Need to consider whether plaintiffs took all reasonable steps Plaintiffs did not succeed on discoverability ground Query: is an objective test on discoverability appropriate, fair and just?
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LAA – s 27B Does NOT apply to: Dust-related conditions Injuries caused by tobacco Certain statutory compensation schemes.
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Extending the Limitation Period
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