The Law Handbook 2024

Chapter 10.1: Negligence and injury 933 An ‘incapacitated person’ is a person who is incapable of or substantially impeded in the management of their affairs in relation to the cause of action by reason of any disease or impairment of their physical or mental condition. Personal injury resulting from child abuse There is no limitation period for personal injury from child abuse (s 27O–27R). However, a court can dismiss or permanently stay such proceedings in cases where a fair trial is not possible (see s 27R). Under the Children Legislation Amendment Act 2019 (Vic), the Supreme Court can set aside a previously settled cause of action (except Commonwealth Redress Scheme settlements) in death and personal injury actions resulting from child abuse if it is just and reasonable to do so. Also, such a cause of action can now be issued again despite a previous such action being dismissed because of the expiry of a relevant limitation period (if the limitation period expired before 1 July 2015) (see pt 2 div 5 LAA Act) Extensions of limitation periods The Limitations Act allows people claiming to have a cause of action to apply to a court for leave to extend a limitation period to allow the issue of court proceedings. Similar provisions apply to such cases whether the cause of action arose before or after the commencement of the WLAAIR Act (see s 23A, pt IIA, div 3 respectively). Both provisions allow a court to extend such limitation periods if it decides it is ‘just and reasonable’ to do so. In considering such applications, the courts must take into account several factors (e.g. the length of and reasons for the plaintiff’s delay in taking action). The factors to be taken into account are very similar in both provisions. However, the WLAAIR Act adds further factors for a court to specifically take into account, such as whether the passage of time has prejudiced a fair trial of the claim. Other matters Penalty interest If an action for damages proceeds to a final decision in which the court awards damages (that is, the action is not settled out of court by the parties), the award generally carries an amount of damages for interest as well. The interest is generally not awarded on damages for the future, that is, future loss of earning capacity and future medical or nursing expenses. However, in actions by dependants arising out of a wrongful death, the damages are assessed as at the date of death, and the court may award interest on the whole of the damages awarded. The interest, known as ‘penalty interest’, varies from time to time; the current rate is regularly published in the Government Gazette . Costs A plaintiff who succeeds in an action for damages is generally entitled to costs. Such costs are generally assessed by the Costs Court of the Supreme Court if the parties are not able to agree. Costs are usually awarded on what is known as the ‘party–party scale’. The scale does not necessarily cover all the costs that the plaintiff’s legal representatives may have properly incurred in running the action for damages (see ‘Legal costs’ in Chapter 2.1: Legal representation). These costs are known as ‘solicitor–client’ costs. The plaintiff usually pays solicitor–client costs out of the award of damages after the amount of party–party costs has been taken into account. If the plaintiff and the legal representatives are unable to agree on the appropriate amount of solicitor–client costs they can be fixed by the Costs Court of the Supreme Court (see ‘Complaining about your lawyer’s bill’, in Chapter 2.1: Legal representation).