Limitation of Actions Consultation - Law Commission

seems, to tort claims generally. 237
The plaintiff had had an intrauterine
contraceptive device, manufactured by the defendant, fitted in 1981. The device
was removed about two weeks later because the plaintiff experienced pain, and
later in the month she was admitted to hospital for treatment. During the following
years she experienced further medical problems. According to her statement of
claim, 238
she did not discover that these later problems were caused by her use of
the device until she read a magazine article in 1991, and she commenced
proceedings in 1992. The New Zealand Court of Appeal held that the
construction of “cause of action”, for the purpose of section 4 of the Limitation
Act 1950, should be consistent for all different fact situations, and that accordingly
the reasoning in Invercargill City Council v Hamlin should be applied, so that, for
the purposes of section 4(7), a cause of action accrued “when bodily injury of the
kind complained of was discovered or was reasonably discoverable as having been
caused by the acts or omissions of the defendant.” 239
10.77 As a result of the growth in building litigation exemplified by a case such as Mount
Albert Borough Council v Johnson the New Zealand Parliament enacted section 91
of the Building Act 1991, 240
which introduced a long stop date of ten years from
the act or omission on which the proceedings are based, in respect of proceedings
arising from building work in the construction, alteration, demolition or removal of
buildings, or the exercise of building control functions in relation thereto. When
proceedings are brought against authorities in respect of the issue of a building
consent or certificate the date of the act or omission is the date of the consent or
certificate. 241
(5) Actions for Breach of Trust
10.78 The limitation period generally applicable to an action by a beneficiary to recover
trust property is six years from the date of accrual of the cause of action. 242
But
there will be no limitation period where the action is in respect of a fraud or
fraudulent breach of trust to which the trustee was a party or privy, or to recover
trust property, or the proceeds of trust property, from the trustee. 243
The New
Zealand Law Commission recommended that, in respect of these two categories of
claim, the recommended general long stop period of fifteen years should be
displaced by one of three years from the beneficiary’s knowledge of the breach of
trust. 244
237 Although leave has been granted for an appeal to the Privy Council.
238 The appeal related to an order to strike out the claim as being time-barred, and so these
facts were assumed to be true for the purposes of the appeal.
239 [1996] 2 NZLR 129, 133.
240 Amended by Building Amendment Act 1992, s 12; and Building Amendment Act 1993, s
19.
241 Building Act 1991, s 91(3).
242 Limitation Act 1950, s 21(2).
243 Ibid, s 21(1).
244 Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988), paras 304 - 305; see
also draft Bill cl 5(2)(d).
209