Limitation of Actions Consultation - Law Commission

discoverable. 228
Moreover, one should appreciate that the approach in Invercargill
was not to contrast discoverability and accrual of the cause of action as starting
dates: rather the cause of action was regarded as accruing at the date of
discoverability.
10.75 The decision in Invercargill City Council v Hamlin could therefore be argued not to
have any direct application in a wider context. But the ambit of the discoverability
rule has been broadened by two subsequent decisions of the New Zealand Court
of Appeal. First, in S v G 229
discoverability was applied to an action arising out of
sexual abuse. The defendant had been convicted of indecently assaulting the
plaintiff when she was below the age of majority. The plaintiff, some years later,
brought an action against the defendant in negligence 230
and in trespass to the
person in respect of psychological and emotional damage caused by the abuse. 231
It
was held that the plaintiff’s cause of action in negligence began when the plaintiff
discovered, or should have discovered, a causal link between that damage and the
abuse. In reaching this decision the court drew upon the reasoning of the Supreme
Court of Canada in KM v HM. 232
As regards the claim for trespass to the person,
which did not require proof of damage, the Court of Appeal supported the trial
judge in holding that a discoverability test should be applied, but with regard to the
date on which the plaintiff realised, or should have realised, her lack of genuine
consent to the plaintiff’s actions. 233
The court recognised that this could mean that
time could run in respect of trespass claims before it started to run in a negligence
claim on the same facts, 234
but the rules relating to fraudulent concealment could
operate to delay the start of the limitation period. 235
10.76 Now, in G D Searle & Co v Gunn, 236
the New Zealand Court of Appeal has applied
discoverability to personal injury cases outside the area of sexual abuse and, it
228 So, eg, before discovering the defect the plaintiff could have sold the property for its full
market value. See [1994] 3 NZLR 513, 522, per Cooke P; 533, per Casey J (NZ CA);
[1996] AC 624, 648, per Lord Lloyd of Berwick (PC).
229 [1995] 3 NZLR 681.
230 Based on the defendant’s duty of care as a doctor.
231 The plaintiff also brought a claim based on breach of fiduciary duty. The court rejected her
contention that no limitation period applied under the Limitation Act 1950 to such an
action and held that either a limitation period applied by analogy to those applicable in
common law claims, or else the doctrine of laches would produce a similar result: [1995] 3
NZLR 681, 688 - 689. Cf, on this point, KM v HM (1992) 96 DLR (4th) 289 (Sup Ct of
Canada): see para 10.98 below.
232 (1992) 96 DLR (4th) 289: see paras 10.98 below. Having established an accrual date based
on discoverability the court then had to decide whether to grant leave to the plaintiff to
bring the proceedings under the Limitation Act 1950, s 4(7) (see para 10.72 above). On the
facts the court refused to grant leave.
233 Cf Stubbings v Webb [1993] AC 498 (HL): see paras 3.32 - 3.35 above. This case is not
mentioned in the judgment in S v G.
234 Because of delay between the plaintiff realising her lack of consent, and the onset of
psychological damage.
235 See para 10.81 below.
236 [1996] 2 NZLR 129.
208