A claim may be summarily dismissed despite the incapacity of the plaintiff if a fair trial can no longer be had, but the cause of the delay, the available evidence, the attempts to obtain evidence in a timely fashion and the nature of the claim are all factors to be taken into account. Where delay is attributable to a plaintiff's incapacity that may itself result from the defendant's alleged tortious conduct, the alleged tortfeasors and the court may need to take reasonable steps to accommodate the difficulties created by delay. Section 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW) does not extend to distress or embarrassment in civil proceedings involving sexual assault — it is confined to criminal proceedings.
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