Limitation of Actions Consultation - Law Commission

to the nature of the acts being carried out. 256
Under the scheme recommended by
the New Zealand Law Commission, the extension of time in favour of a plaintiff
lacking the requisite knowledge would operate in fraudulent concealment cases,
and there would be a special exception to the long stop. 257
10.82 Where a plaintiff is under disability due to infancy or mental illness at the time
when the cause of action accrues, the limitation period, in an action for personal
injuries, is deemed to begin when the disability ends. 258
Under section 24 of the
New Zealand Limitation Act 1950, a person “shall be deemed to be under a
disability while he is an infant or of unsound mind”. 259
There is a conclusive
presumption that a person is of unsound mind “while he is detained or kept in
custody (otherwise than as a voluntary boarder) under any provision of the Mental
Health Act 1969”. 260
The definition is therefore very similar to that adopted under
the English Limitation Act 1980.
10.83 In relation to other claims a limitation period of six years from the accrual of the
cause of action is applicable, 261
subject to a long stop, in land-related claims, of 30
years from accrual. 262
There are no rules to deal with supervening disability.
10.84 The New Zealand Law Commission has recommended a thorough reform of the
law relating to disability of adults, 263
so that the three-year limitation period would
not run during periods exceeding 28 days when the plaintiff was incapable of, or
substantially impaired in, managing his or her affairs because of his or her physical
or mental condition, detention or war. 264
These recommendations, which are
modelled on the New South Wales legislation, 265
would substantially broaden the
scope of the disability provisions, in extending the disabling circumstances
necessary for the provision to apply, and in catering for the possibility of
supervening disability. The various forms of adult disability would, however, not
affect the operation of the fifteen-year long stop recommended by the
Commission. The New Zealand Law Commission has also recommended that,
where a plaintiff is under 18 years of age at the date of the act or omission, both
the general limitation period and the “long stop” period should end on his or her
twenty-first birthday. 266
256 S v G [1995] 3 NZLR 681, 688 (NZ CA). See para 10.75 above.
257 Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988), para 303.
258 Limitation Act 1950, s 24(a).
259 Ibid, s 2(2).
260 Ibid, s 2(3).
261 Ibid, s 24(b).
262 Ibid, s 24(e).
263 Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988), paras 258 - 261.
264 Or warlike operations or circumstances arising from them.
265 See para 10.62 above.
266 Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988), paras 257 and 307.
211