The correct test for disability under s 11(3)(b)(i) of the Limitation Act 1969 (NSW) is that stated by Slattery J in Kotulski v Attard — whether the person is substantially impeded in the management of his or her affairs in relation to the cause of action, assessed by reference to how a reasonable person without impairment would conduct themselves. The test in 'C' v CSIRO, which focused primarily on 'understanding', is not the correct test. A person's ability to engage in some activities (writing letters, pursuing other legal proceedings) does not preclude a finding of disability in relation to the specific cause of action. The proper procedure is for the defendant to plead the statute, the plaintiff to reply relying on s 52, and for the issue to be tried separately — not by way of an application for extension of time.
The full text is available to signed-in members, including the 9 later cases that cite this judgment.
1 of the 9 citing cases carry a classified treatment. How each court treated it is available to signed-in members.