Limitation of Actions Consultation - Law Commission

ecommended a definition of knowledge based on the Alberta definition. 58
In
contrast in New South Wales and British Columbia the likely outcome of the
proceedings has to be considered. 59
And in New Zealand the issue of significance
has simply been left without further definition. 60
The Scottish Law Commission
has recommended the adoption of a test for significance very similar to that in
section 14(2) of the 1980 Act. 61
12.38 We have found this issue difficult but have ultimately provisionally concluded that
the present English approach of assuming that the defendant does not dispute
liability and has the resources to meet the claim is to be preferred. Although that
assumption is an unrealistic one, we think that it has to be made to avoid making
the law complex and uncertain. For example, we wish to avoid the court having to
determine the chances of the substantive action being successful in deciding the
limitation issue: and we do not think that plaintiffs should be allowed to argue that
the fact that their evidence was incomplete was a good reason for not issuing
proceedings in time. We also consider that it is right to make the significance
threshold a low one. After all, it must be remembered that the central alternative
to discoverability as the starting date is the accrual of the cause of action and the
triviality of the cause of action is irrelevant to the latter. Moreover, a court faced
with the problem of a trivial injury becoming more serious assesses damages
according to the likely future position. There is therefore no necessary reason why
plaintiffs should delay to see if their position will worsen. In the sphere of personal
injury, provisional damages are also now available. And in many situations of
damage becoming more serious there is a continuing cause of action so that time
can start to run afresh from the latest date of knowledge of the cause of action.
12.39 One might argue that the above arguments suggest that there should be no
significance test at all. But we do think that there is a justification for the courts
having the flexibility to decide what is so trivial that it excuses the plaintiff's delay
58 Law Reform Commission of Western Australia, Report on Limitation and Notice of Actions,
Project No 36 - Part II (1997), para 7.21.
59 Namely:
“(i) that an action on the cause of action would (apart from the effect of the
expiration of a limitation period) have a reasonable prospect of success and of
resulting in an award of damages sufficient to justify the bringing of an action
on the cause of action; and
(ii) that the person whose means of knowledge is in question ought, in his own
interests, and taking his circumstances into account, to bring an action on the
cause of action.” (New South Wales S.N.S.W. 1969 Act no 31, s 57(c)) and
“(i) an action on the cause of action would, apart from the effect of the expiration
of a limitation period, have a reasonable prospect of success; and
(ii) the person whose means of knowledge is in question ought, in his own
interests, and taking his circumstances into account, to be able to bring an
action.” (Limitation Act 1979, R.S.B.C 1979 c 236 s 6(3)).
60 New Zealand Law Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC
R6 (1988), Model Limitations Act cl 6. See also Ontario Limitations (General) Bill 1992,
clause 5(1), which lays down simply that the “having regard to the nature of the injury, loss
or damage, a proceeding would be the appropriate means to seek to remedy it”.
61 Report on Prescription and Limitation of Actions (Latent Damage and Other Related
Issues)(1989) Scot Law Com No 122, paras 2.17 - 2.25. See para 10.13 above.
264