Limitation of Actions Consultation - Law Commission

action does not accrue until the facts relevant to it are reasonably discoverable by
the plaintiff.
(a) Option one: date of discoverability
12.9 According to this option, time would not start to run until the plaintiff knows, or
ought reasonably to know, that he or she has a cause of action (that is, that time
should not start to run until the date of discoverability). The date of
discoverability responds to the injustice to a plaintiff of the limitation period
running before the plaintiff knew, or could reasonably have known, that he or she
had a cause of action. To adopt it for (most) contract and tort claims would be to
continue the developments in limitation law since the Limitation Act 1963. While
the acceptance of discoverability in personal injury claims and in negligent latent
damage claims has been in direct response to the injustice exposed by the House
of Lords’ decisions in Cartledge v E Jopling & Sons Ltd 12
and Pirelli General Cable
Works Ltd v Oscar Faber & Partners, 13
the injustice of “latent damage” potentially
remains for all claims where a discoverability test does not apply. A further
advantage of a general move to discoverability is that it “swallows up” at least to
some degree, the need for special “discoverability” exceptions based on mistake,
fraud or concealment, 14
and thereby renders the law simpler.
12.10 Discoverability has been recommended as the basic test for limitation periods by
other (common law) law reform bodies, most notably the Alberta Law Reform
Institute, 15
the Ontario Limitations Act Consultation Group 16
and the Law Reform
Commission of Western Australia. 17
And while the Law Commission of New
Zealand has proposed the date of the act or omission giving rise to the cause of
action as the date of commencement of the limitation period, it would still allow
for an extension (as of right) where the plaintiff gains knowledge of a material fact
relating to the claim after that date. 18
12.11 But while a move to discoverability may be regarded as having the principal merit
of producing greater justice to plaintiffs by overcoming the “latent damage”
problem (under which a plaintiff might lose his or her action before he or she
could reasonably have known of it), it might be thought to carry the disadvantage -
in contrast to, for example, the “accrual” approach - of uncertainty. Although
there are some areas where the law is not wholly certain as to when a cause of
action accrues (in particular, for pure economic loss in the tort of negligence), it is
12 [1963] AC 758.
13 [1983] 2 AC 1.
14 See paras 8.11 - 8.24 above.
15 In Limitations, Report No. 55 (1989), a recommendation subsequently enacted in Alberta’s
Limitations Act 1996, c L-15.1.
16 Recommendations for a New Limitations Act, Report of the Limitations Act Consultation Group
(1991).
17 Report on Limitation and Notice of Actions, Project No 36 - Part II (1997). See also the
proposals of the Law Reform Commission of Ireland, Report on the Statute of Limitations:
Claims in Respect of Latent Personal Injuries, LRC 21 (1987), discussed at para 10.38 above.
18 Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988). See para 10.68
above.
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