Limitation of Actions Consultation - Law Commission

that time started to run against a purchaser of a house severely damaged by dry rot
when she was informed of unsupported chimney breasts (which cost £l32 to
repair), not when the extent of the dry rot became apparent (remedial works for
which cost £75,000). In consequence her claim was time barred. As the judge
noted:
Many people would write off a claim which was for a maximum of £132 if
it would be contested, but if the prospective Defendant did not dispute
liability a reasonable person in the Plaintiff's circumstances and with 1984
money values would consider the loss sufficiently serious to institute
proceedings. 54
In reality the degree of damage which would lead a reasonable plaintiff to bring
proceedings against a defendant who disputed liability, or whose resources to meet
a claim are uncertain, is likely to be considerably greater than in cases where the
defendant is solvent and admits liability.
12.36 On the other hand - and in support of the present English approach - if one feeds
in all the realities that go into making a reasonable decision, as to whether a legal
action should be brought, one risks making the test of discoverability too complex
and uncertain. It would be particularly difficult for account to be taken of the
plaintiff's prospects of success in the action. To do so would in effect require a
trial of the substantive claim in order to fix the date of discoverability. Moreover, if
one fed in the defendant’s resources, one could produce a result that a very serious
injury is not “significant” where the defendant is insolvent.
12.37 Knowledge of the "significance" of the injury is regarded as one of the essential
criteria for a definition of knowledge by other law reform bodies. 55
The Law
Reform Commission of Saskatchewan has chosen to recommend the full English
formula. 56
The Alberta Law Reform Institute preferred to keep the assumption of
'no dispute on liability' but to dispense with the explicit assumption that the
defendant has the resources to meet the claim. 57
The Western Australia Law
Reform Commission does not discuss what “significance” means, but
54 [1991] CIIL 692, 694. See also Bristow v Grout, The Times, 3 November 1986, and
McCafferty v Commissioner for Metropolitan Police [1977] 1 WLR 1073, where though the
plaintiff initially regarded the deterioration to his hearing as an “irritating nuisance” which
was not worth bothering about, the court treated it as “significant” on the basis of the
assumptions incorporated in the Act. The court also held in McCafferty that, in considering
whether an injury was “significant”, no regard could be had to circumstances affecting the
plaintiff such a desire not to bring an action against his employer thus imperilling future job
prospects.
55 See para 12.28. An exception is the Newfoundland Law Reform Commission, which has
recommended that the criteria for knowledge should be limited to “the identity of the
defendant and the facts on which [the plaintiff's] action is founded”, noting “We feel that
each additional item of knowledge and definition will multiply problems.” See Working
Paper on Limitation of Actions, NLRC-WP1 (1985), p l99.
56 Proposals for a New Limitation of Actions Act, Report to the Minister of Justice (1989) p 32 and
s 10 (3) of the proposed Act.
57 Alberta Law Reform Institute, Limitations, Report No 55 (1989), p 33. See Limitations Act
1996, c L-15.1, s 3(1).
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