Limitation of Actions Consultation - Law Commission

(2) A period of 30 years from the act or omission giving rise to the cause of
action beyond which no action, except those which are subject to no
limitation period at all, may be brought; 139
(3) A period of 15 years after the act or omission giving rise to the cause of
action or on which the claim is based; 140
(4) A period of 10 years from the act or omission or breach of legal duty on the
part of the defendant giving rise to a claim. 141
12.102 There appears, therefore, to be a wide-ranging consensus among law reform
bodies that there is a need for a “long-stop” period. In general, we agree with that
consensus. We think that a long-stop does act as a fair counterbalance to the
“discoverability” starting point. However, we have had some concerns about
whether a long-stop should be applied to personal injury actions. Plaintiffs who
have suffered personal injury can be regarded as meriting special concern simply
on the ground that personal injury is a more extreme type of harm than property
damage or economic loss. We particularly have in mind those who suffer industrial
diseases, such as asbestosis and other forms of pneumoconiosis, where the
symptoms may not become apparent for decades after the negligent conduct. In
cases of latent personal injury the merits of cutting into the “discoverability” test
are particularly questionable.
12.103 One strategy for dealing with personal injury claims would be to give the courts a
discretion to override the long-stop. We consider this below but provisionally reject
it on the grounds of the uncertainty and consequent wasted costs that it involves. 142
Another strategy would be to impose a much longer long-stop in personal injury
139 This applies notwithstanding any disability, confirmation, or postponement of the running
of time. Newfoundland Law Reform Commission, Working Paper on Limitation of Actions,
NLRC-WP1 (1985) p 323 and see Newfoundland Limitations Act 1995, s 22. It should be
noted that, under the proposals of the Newfoundland Law Reform Commission, though the
limitation period running from the date of the damage suffered by the plaintiff will be
extended as of right where the plaintiff does not know he has a cause of action, it will not be
extended for more than ten years from the date of the act or omission on which the claim is
based. In effect this is a shorter long-stop period. Ibid, p 204. See also Newfoundland
Limitations Act 1995, s 14(3).
140 New Zealand Law Reform Commission, Model Limitations Bill, 1988 s 5 (except in cases
of fraudulent breach of trust by a trustee, or where there has been deliberate concealment
by the defendant, or where the act or omission occurs where the plaintiff is an infant); Law
Reform Commission of Western Australia, Report on Limitation and Notice of Actions, Project
No 36 Part II (1997) paras 7.30 and 7.54; and Alberta Law Reform Institute, Model
Limitations Act 1989, s 3(1) and s 3(3). (This was reduced to 10 years by the Limitations
Act c L-15.1, passed by the Alberta Provincial Legislature in May 1996, but not yet in
force). But it should be noted that the Law Reform Commission of Western Australia also
recommends that the court should have a discretion to override the long-stop limitation
period in exceptional cases (see para 7.55).
141 Extended to 30 years from that date in the case of fraud, fraudulent breach of trust and
cases of deliberate concealment by the defendant. Law Reform Commission of British
Columbia, Report on the Ultimate Limitation Period: Limitation Act, Section 8 (1990), pp 67 -
68. See also Alberta Limitations Act 1996, c L-15.1, s 3(1)(b): see n 140 above. See
further paras 12.146 - 12.154 below and para 10.100 above.
142 See paras 12.187 - 12.196 below.
286