Limitation of Actions Consultation - Law Commission

division among jurisdictions as to which of the two approaches is the correct
one. 370
10.120 The other category of case discussed in Johnson v Johnson involves a delay in
realisation, not of the facts themselves, but of their causal relationship with the
damage experienced by the plaintiff. The Court of Appeals of Wisconsin took a
liberal approach in Hammer v Hammer, 371
where the material facts were very
similar to those in the English case of Stubbings v Webb, 372
in that the plaintiff did
not claim to have repressed memories of the abuse, but did say that she had never
understood the relationship between the abuse and her psychological difficulties in
adult life until she entered counselling and therapy. The court was unimpressed
with the arguments about stale and unreliable evidence, preferring to focus instead
on the need to provide justice for abuse survivors and identifying the fact that in
the absence of a discoverability rule for such cases few plaintiffs would ever be in a
position to bring an action. But American courts have seemed reluctant to follow
this approach in other cases. For example, in EW v DCH 373
the Supreme Court of
Montana rejected the plaintiff’s claim, emphasising that she had known for several
years that she had been abused, and that she had experienced psychological
problems, even if she was not aware of the causal connection between the two
series of events. Sheehy J said:
The law does not contemplate such discovery as would give complete
knowledge before the cause of action accrues. ... Rather, the discovery
doctrine only tolls the running of the statutory clock until such time as
the plaintiff, in the exercise of reasonable care and diligence, should
have been aware of the wrongful act and injury. 374
10.121 The courts have also discussed whether factors other than lack of discoverability
might be capable of postponing the start of the limitation period. 375
In the vast
majority of cases the fact that the plaintiff was a minor at the time of the alleged
abuse will serve to postpone the running of time. In some cases mental disorder
caused by the abuse has been successfully pleaded as a further postponing
factor. 376
But the courts have been generally unwilling to apply statutory rules
relating to fraudulent concealment to situations where abusers have sought to
370 See, eg, Hoult v Hoult 792 F Supp 143 (US Dist Ct 1992) (discoverability applied); cf, eg,
Ernstes v Warner 860 F Supp 1338 (US Dist Ct 1994).
371 418 NW 2d 23 (1987).
372 [1993] AC 498 (HL). See paras 3.32 - 3.35 above.
373 754 P 2d 817 (1988). See also, eg, Hildebrand v Hildebrand 736 F Supp 1512 (1990). Cf
Osland v Osland 442 NW 2d 907 (ND 1989).
374 754 P 2d 817, 820.
375 See para 10.124 in relation to postponing factors generally.
376 See, eg, Leonard v England 445 SE 2d 50 (NC 1994) in which post-traumatic stress
disorder (PTSD) suffered by the plaintiff, allegedly as a result of abuse by the defendant
during the plaintiff’s childhood, rendered the plaintiff “incompetent” and the limitation
period did not run. Cf Snyder v Boy Scouts of America Inc 205 Cal App 3d 1318; 253 Cal
Rep 156 (1988), where PTSD was held to be insufficient to toll the statute.
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