Limitation of Actions Consultation - Law Commission

10.112 Below we shall examine three specific areas where latent damage has been
especially problematic. Those areas are: product liability; professional (especially
medical) negligence; and liability for sexual abuse. However the importance and
scope of discoverability goes far beyond this. It has assumed increasing importance
in cases involving chemical contamination, 349
and in at least one state
discoverability has been applied in relation to defamation. 350
(b) Product liability
10.113 The traditional approach to limitation in product liability cases in negligence has
been for the limitation period to commence when the cause of action accrues, that
is, when the injury is caused to the plaintiff. 351
But there has been an increasing
tendency for the courts to apply discoverability. 352
Where an action has been
brought on the basis of a breach of warranty, the general rule has been that the
cause of action accrues on the date on which the goods are delivered, and the
Uniform Commercial Code provides for a limitation period, for breach of
warranty, of four years from the date of delivery. 353
But some courts have also
applied a discoverability test to breaches of warranty and held that the cause of
action accrues when the plaintiff knew, or ought to have known, of the breach. 354
10.114 Several state legislatures, however, sought to contain the problems for defendants
posed by the adoption of discoverability tests for limitation, by passing statutes
providing for a limitation period 355
based either on the date when the product was
manufactured, or when it was first sold to consumers. 356
This legislation, however,
349 See, eg, Daniels v Beryllium Corpn 227 F Supp 591 (Pa 1964); Stoleson v United States 629 F
2d 1265 (US CA 1980); Vispisiano v Ashland Chemical Co 527 A 2d 66 (NJ 1987).
350 Manguso v Oceanside Unified School District 88 Cal App 3d 725; 152 Cal Rep 27 (1979). The
plaintiff, a teacher, sued the defendant in relation to allegedly defamatory remarks
contained in a letter filed in a confidential file held by her employer. The limitation period
was held to commence when the plaintiff could reasonably be expected to discover the
contents of the letter.
351 See, eg, Cannon v Sears, Roebuck & Co 374 NE 2d 582 (Mass 1978). Cf Dincher v Marlin
Firearms 198 F 2d 821 (US CA 1952), where the statute provided that the limitation period
should begin on the date of the act or omission complained of: this was construed to mean,
at the latest, the date on which the goods in question were purchased, and so the injury to
the plaintiff occurred after the limitation period had ended (but see the strong dissenting
judgment in that case of Circuit Judge Frank).
352 See, eg, Franzen v Deere & Co 334 NW 2d 730 (Iowa 1983); Yustick v Eli Lilly & Co 573 F
Supp 1558 (US Dist Ct 1983); Anthony v Abbott Laboratories 490 A 2d 43 (RI 1985).
353 Paras 2-725(1) and (2). See, eg, Berry v G D Searle & Co 309 NE 2d 550 (Ill 1974).
354 See, eg, Parrish v B F Goodrich Co 207 NW 2d 422 (Mich 1973). Cf Everhart v Rich’s Inc
194 SE 2d 425 (Ga 1972).
355 Or period of repose: see para 10.104 n 331 above.
356 See A R Turner, “The Counter-Attack to Retake the Citadel Continues: An Analysis of the
Constitutionality of Statutes of Repose in Products Liability” (1981) 46 J of Air Law and
Commerce 449; S C Randell, “Comment: Due Process Challenges to Statutes of Repose”
(1986) 40 Southwestern LJ 997.
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