Section 39Part 3 — Extension or Exclusion of Ordinary Time Limits
Discretionary exclusion
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39. (1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which —
section 13 or 16 prejudices the plaintiff or any person whom he represents; and
any decision of the court under this subsection would prejudice the defendant or any person whom he represents, the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
The court shall not, under this section, disapply section 16(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 13.
In acting under this section, the court shall have regard to all the circumstances of the case and, in particular, to —
the length of, and the reasons for, the delay on the part of the plaintiff;
the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 13 or 16 (as the case may be);
the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and Limitation Law (1996 Revision) Section 40 c Revised as at 13th day of August, 1996 Page 27
the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
In a case where the person injured died when, because of section 13, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on his part.
In a case under subsection (4) or any other case where the time limit or one of the time limits depends on the date of knowledge of a person other than the plaintiff, subsection (3) has effect mutatis mutandis and in particular as if a reference to the plaintiff included a reference to any person whose date of knowledge is or was relevant in determining the time limit.
A direction by the court disapplying section 16(1) shall operate to disapply to the same effect section 3 of the Torts (Reform) Law (1996 Revision).
A reference in this section to section 13 includes a reference to that section as extended by this Part or Part IV.
In this section — “court” means the court in which the action has been brought.