Limitation of Actions Consultation - Law Commission

a form of “disability” sufficient to delay the start of the limitation period. 161
In
many cases, victims of sexual abuse have been diagnosed as suffering from posttraumatic
stress disorder. 162
It has also been suggested that there is a “post-incest
syndrome” or “accommodation syndrome”, and that those suffering from this
syndrome will “persistently avoid any situation, such as initiating a lawsuit, that is
likely to force them to recall and, therefore, to re-experience the traumas”. 163
Even
if those syndromes counted as “mental disorders” for the purposes of the Mental
Health Act 1983, it is unlikely that such plaintiffs would be regarded as incapable
thereby of managing their affairs.
12.119 The following definitions of adult disability have been proposed (and in some cases
enacted) in other common law jurisdictions for the purpose of extending limitation
periods:
(1) People who are unable by reason of mental disorder, intellectual handicap
or other mental disability to make reasonable judgments in respect of their
affairs (Western Australia Law Reform Commission). 164
161 The Ontario Limitations Consultation Group noted in their report that one of the
consequences of sexual abuse was to render the victims psychologically incapable of taking
proceedings against the abuser:
[I]t is now recognised that in some circumstances the sexual assault will render the
victim incapable of considering legal proceedings until many years after the event.
These circumstances typically involve victims who were in a relationship of trust and
dependency. Incest is a prime example, but recent experience reveals that other sexual
abuses in relationships of trust have similar effects. A number of factors combine in
these situations to render the victim incapable of initiating legal proceedings against
the perpetrator: the nature of the act (personal violation), the perpetrator’s position of
power over the victim and the abuse of that position act effectively to silence the
victim. Moreover, until recently, many victims of sexual assault were subject to social
disapproval based on the perception that they were somehow to blame. In these
circumstances, it is not uncommon for such a victim to cope with the violation by
dissociating from the assaultive events, so that they are forgotten altogether or their
emotional significance is denied. Many years of therapy may be required before the
victim is able to confront the assailant. Where a victim was also physically, mentally or
psychologically disabled at the time of the assault, another incapacitating factor is
added to those above. (Ontario Limitations Act Consultations Group,
Recommendations for a New Limitations Act, Report of the Limitations Act Consultations
Group (1991), p 20).
162 See J Mosher, “Challenging Limitation Periods: Civil Claims by Adult Survivors of Incest”
(1994) 44 UTLJ 169, 179; G Hood, “The Statute of Limitations Barrier in Civil Suits
brought by Adult Survivors of Child Sexual Abuse: A Simple Solution” (1994) UILR 417
at 423; ACL Mullis, “Compounding the Abuse? The House of Lords, Childhood Sexual
Abuse and Limitation Periods” [1997] Med LR 22.
163 See KM v HM (1992) 96 DLR (4th) 289, 306 (Can Sup Ct) per La Forest J. This is
controversial. J Mosher noted that “Despite the Court’s claim that there exists a consensus
in the medical community, post-incest syndrome is not even mentioned in a number of
recent articles on incest syndrome. To the contrary, a recent review article concludes that
‘the evidence available does not yet justify the designation of a post-sexual abuse
syndrome’. It is not a recognised psychiatric disorder, nor, apparently, is it a term used by
experts in the field.” Op cit at 214 (Footnotes omitted).
164 Report on Limitations and Notice of Actions, Project No 36, Part II (1997), para 17.64. The
current definition of disability in Western Australia is derived from the English Real
Property Limitation Acts of 1833 and 1874. See para 10.62, n 179 above. For details of
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