38Action by estate of deceased person

38 Action by estate of deceased person (1) If the executor or administrator of the estate of a deceased person institutes proceedings in relation to a cause of action for damages for personal injury that accrued before that person’s death, the court may, subject to subsection (2)— (a) if the court considers it just and reasonable to do so; and (b) whether or not the limitation period applicable to that cause of action has ended; and (c) whether or not an action in relation to the personal injury has been begun; extend the limitation period for the further period, not exceeding 6 years, beginning on the day of the person’s death as the court considers appropriate. Part 3 Postponement of bar Division 3.2 Personal injuries, latent damage to property and economic loss Section 38 page 36 Limitation Act 1985 Effective: 26/11/25 R28 26/11/25 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) In exercising the powers given to it by subsection (1), the court shall have regard to all the circumstances of the case, including, for example, the following: (a) the reasons for the failure of the deceased to institute proceedings before his or her death or for the failure of the executor or administrator to do so before the end of the limitation period; (b) whether, after the cause of action accrued, a significant period of time elapsed before the injured person knew or ought reasonably to have known that he or she had suffered the injury giving rise to the cause of action; (c) if the deceased person knew before his or her death that the relevant injury might give rise to an action for damages— whether he or she acted on that knowledge promptly and reasonably; (d) whether the executor or administrator of the estate, when he or she became aware that the relevant injury might give rise to a cause of action for damages, acted promptly and reasonably; (e) the extent to which an extension of the limitation period would, or would be likely to, result in prejudice to the defendant; (f) the conduct of the defendant after the cause of action accrued to the injured person or to the executor or administrator of the estate of the person, including the extent to which the defendant took steps to make available to the injured person, executor or administrator means of ascertaining facts in relation to the cause of action; (g) the steps (if any) taken by the injured person or the executor or administrator to obtain medical, legal or other expert advice and the nature of any such advice. Postponement of bar Part 3 Personal injuries, latent damage to property and economic loss Division 3.2 Section 39 R28 26/11/25 Limitation Act 1985 Effective: 26/11/25 page 37 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au