Limitation of Actions Consultation - Law Commission

proceedings were issued some 28 years after the events in question. By this time
one of the defendant doctors had died, one was over 80, and the medical notes of
both these defendants had been destroyed. Margaret Puxon QC commented in a
brief note on the case
yet another medical negligence case brought years after the alleged breach
of duty - 28 years in this case - underlines the injustice that can be done to
defendants who have to rely on their memory of clinical facts long after
they have retired from practice and have presumably put behind them their
professional expertise and judgment. This is the fourteenth such case dealt
with in these reports since 1989 when they began..... 135
12.100 Related problems have been found in other causes of action in respect of which
there is no limitation period. This is illustrated by Re Coghlan. 136
An application
was made by the plaintiff to prove a will over 50 years after the death of the
testator, the whole of whose estate, with one minor exception, had been
distributed on the footing that he had died intestate. Despite the fact that the
laches of the plaintiff (who had been aware of the terms of the will for over thirty
years) would probably have proved a bar to any proceedings in equity to recover
any of the distributed property, an application by the defendants to dismiss the
action as frivolous, vexatious and an abuse of the process of the court failed. 137
12.101 The long-stop proposals which have been made by law reform bodies in other
common law jurisdictions (and in some cases enacted) are as follows:
(1) A period of 30 years from the day of the act or omission on which the
claim is based for the majority of claims, reduced to 10 years for most cases
against health facilities or health facility employees (save where the claim is
based on a foreign object in the body of the plaintiff, for which the period
is again 30 years); 138
135 [1994] 5 Med LR 111,119.
136 [1948] 2 All ER 68.
137 Evidence of the problems caused to defendants by long limitation periods, which would be
multiplied by the lack of any long-stop period is also provided by submissions made to us
by the Solicitor to the Commissioner of the Metropolitan Police. Though his comments
only relate directly to actions alleging misfeasance by police officers, they have a wider
application:
While police are always expected to have documentation - indeed police officers,
having to deal with many incidents, rely on notes to refresh their memories - there are
considerable problems with retaining a vast amount of material. There is increasing
pressure for the early destruction of records and documents. Many documents which
might be relevant in civil proceedings are routinely destroyed before the six year
limitation period expires. Not only is it very expensive to retain large quantities of
documents, they also have to be retained in a manner so that they can be found when
needed. Storage costs are met from public funds.
138 Ontario Limitations (General) Bill 1992, s 15. See Ontario Limitations Act Consultations
Group, Recommendations for a New Limitations Act, Report of the Limitations Act Consultation
Group (1991), recommendation 13 and recommendation 15 (pp 34 - 38).
285