Limitation of Actions Consultation - Law Commission

In practice a right of action against his parent would be a poor substitute
for the child’s own claim for damages against the original tortfeasor. 193
Similarly, where the plaintiff’s disability stems from mental disability, there does
not appear to be any person or body under a duty to bring proceedings on the
plaintiff’s behalf.
12.130 The above reasons, and in particular the fact that the parent or guardian cannot be
relied upon to bring an action on behalf of their child, have also led to provisions
similar to section 22(d) being repealed, or their repeal being recommended, in
most of those common law jurisdictions which have enacted them. 194
As noted by
the Law Reform Commission of British Columbia,
We would be loath to see the way open for a parent to seriously impair the
rights of a child because he, for any one of a variety of reasons, might be
unwilling to prosecute an action on behalf of that child. 195
12.131 The introduction of a rule similar to section 22(d) has however been considered by
the Newfoundland Law Reform Commission. The Newfoundland Law Reform
Commission 196
recommended that no extension should be given where:
(a) an infant is in the custody of a parent or guardian; or
(b) the affairs of a person of unsound mind are being administered by a
committee or the Public Trustee
except where an action is being brought by the infant against such parent
or guardian or by the person who was of unsound mind (or on his behalf if
he is still of unsound mind) against such committee or the Public
Trustee. 197
193 Ibid, para 108. The Law Reform Committee was also concerned that “such a change in the
law would raise issues far beyond our terms of reference”.
194 Victoria in 1983, Ireland in 1991, New Zealand in 1963 (though the New Zealand Law
Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988),
recommended that with regard to incapacity (other than infancy) the plaintiff should have
to prove such incapacity, and that “if the claimant had someone else managing his or her
affairs, this criterion might not be satisfied” (para 258)). See further Law Reform
Commission of Western Australia, Report on Limitations and Notice of Actions, Project No 36
- Part II (1997), paras 17.49 - 50.
195 See Report on Limitations, Part 2 - General, LRC 15 (1974) p 70, a view endorsed by the Law
Reform Commission of Saskatchewan, Proposals for a New Limitation of Actions Act, Report to
the Minister of Justice (1989) p 35.
196 Which added a recommendation that a limitation period should run against a person under
a disability in the custody of a parent or guardian or whose affairs are being administered by
a committee or the public trustee following public consultation: such a recommendation
was not contained in its first Working Paper. See Newfoundland Law Reform Commission,
Working Paper on Limitation of Actions, NLRC-WP1 (Supplement) (1986), pp 4 - 11; Report
on Limitation of Actions NLRC-R1 (1986), Chapter VII, para 5.
197 See Report on Limitation of Actions, NLRC-R1 (1986), Chapter VII, para 5.
298