Limitation of Actions Consultation - Law Commission

in commencing proceedings. And we believe that the present English test does
afford that flexibility, albeit that there is a danger that the courts may apply the test
to produce too low a threshold of significance. Horbury v Hall & Rutley 62
may be
an example of this. Furthermore, the existence of the rule precluding more than
one claim for damages in respect of the same cause of action 63
may seem to
exacerbate the prejudicial effect which this has on plaintiffs. It has been argued
that section 14(2), as it has been interpreted by the courts, operates against the
perceived intention of the subsection, to allow plaintiffs time for their injuries to
manifest themselves fully, 64
and that the courts could in future interpret it
differently. 65
But it could be counter-argued with some cogency that the function
of section 14(2) is not to permit plaintiffs a possibly indefinite time for their
injuries to become fully apparent, which would be unfair to defendants, but is
merely to provide a threshold beyond which the injury will be considered serious
enough to merit litigation, however it may develop in the future.
12.40 As our general approach is focused on the plaintiff’s knowledge of the cause of
action, rather than (as under the present law) on knowledge of injury or damage,
the relevant test would be whether the plaintiff knew that the cause of action was
significant. We do not foresee any problems with this shift and expect that, for
practical purposes, the change would make little difference in areas such as
personal injury and negligently caused latent damage, where a significance test
currently applies with reference to damage or injury.
12.41 It should be emphasised that the significance test will only assist plaintiffs where
there is some change in the plaintiff’s circumstances. The usual situation is where
the plaintiff’s injuries worsen or he becomes aware that his injuries are worse than
he thought they were. In contrast, a plaintiff who, after a long delay, brings
proceedings for a trivial cause of action, where there has been no change of
circumstances, cannot claim that the cause of action is insignificant so that the
date of discoverability has not started to run. By starting proceedings in respect of
a cause of action that is, and always has been, trivial, the plaintiff indicates that, in
his eyes, the cause of action is, and always has been, significant.
12.42 As we take the view that it is knowledge of the facts constituting the cause of
action that is relevant, including knowledge of the defendant’s act or omission that
constituted a breach of duty, 66
the problems that have arisen under the existing law
in applying the significance test in situations where the plaintiff’s awareness of
injury or damage or injury sets in before he or she is aware that anything out of the
ordinary has happened 67
would seem to fall away.
62 [1991] CIIL 692. See para 12.35 above.
63 As illustrated by Bristow v Grout, The Times, 3 November 1986; affirmed, The Times, 9
November 1987 (CA): see para 3.44 above.
64 T Prime and G Scanlan, The Modern Law of Limitation (1993) p 155.
65 See A McGee, Limitation Periods (2nd ed 1994) pp 129 - 130. See also T Prime and G
Scanlan, op cit, p 155, n 24.
66 See para 12.30 - 12.31 above.
67 See paras 3.41 - 3.42 above.
265