New South Wales Consolidated Acts

LIMITATION ACT 1969 - SECT 59

59 Surviving action

(1) This section applies to a cause of action founded on negligence nuisance or breach of duty, for damages for personal injury, which has survived 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 .

(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that--

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of either the deceased or the applicant until a date after the commencement of the year next preceding the expiration of the limitation period for the cause of action, and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,

the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26, the limitation period is extended accordingly.

(3) For the purposes of this section, the material facts of a decisive character do not include facts relating only to--

(a) damages not recoverable by the applicant, or

(b) funeral expenses of the deceased.

(4) This section applies to a cause of action whether or not a limitation period for the cause of action has expired--

(a) before the commencement of this Act, or

(b) before an application is made under this section in respect of the cause of action.