Limitation of Actions Consultation - Law Commission

after thirty years after the accrual of the cause of action. 207
Disability will however
override the fifteen year long-stop for a negligence action for latent damage, where
the disability existed at the date the cause of action accrued, though not where the
disability intervened between the date when the damage was suffered and the date
of discoverability. 208
12.140 The principle that those under a disability should be subject to a long-stop has
been accepted (as regards adult disability but not minority) by the New Zealand
Law Commission and the British Columbia Law Reform Commission and (as
regards all disability) in Newfoundland. 209
This approach has also essentially been
favoured by the Law Reform Commission of Western Australia, in recommending
that the ultimate (or long-stop) limitation period should apply to adult disability.
But an important difference is that this is made subject to the court’s discretion to
extend the period. 210
12.141 The fundamentally different approach is to allow the disability to override the
long-stop. The Law Reform Institute of Alberta recommended that (the initial
and) the long-stop limitation period should be extended in the case of disability, 211
and this has been implemented in the Limitations Act 1996, section 5.
12.142 We believe that it is inappropriate for any category of plaintiff to have the benefit
of an unlimited period of time within which to bring proceedings against
defendants. As we have noted, where proceedings are brought after a substantial
interval, serious injustice may be done to the defendants, who may not be able to
defend their claim. 212
Granting unlimited protection to a person under a disability
207 Section 28(4) of the 1980 Act, a long-stop period which in practice only applies to a person
under a disability. The person under a disability is also subject to the limitation period of
thirty years for an action under s 15 of the Nuclear Installations Act 1965 (though as this is
the only limitation period applicable to such actions it is not a “long-stop” properly socalled).
208 This appears to be the effect of s 28A of the 1980 Act, though the drafting of that section is
far from clear. See paras 8.6 - 8.10 above.
209 New Zealand Law Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC
R6 (1988) (though the long-stop limitation period would not apply to infants (para 307)
(see para 10.84 above); Law Reform Commission of British Columbia, Report on the
Ultimate Limitation Period: Limitation Act, Section 8 (1990), pp 36 - 42 and Newfoundland
Limitations Act 1995, s 22 (Newfoundland Law Reform Commission, Working Paper on
Limitation of Actions, NLRC-WP1 (1985), p 323).
210 Report on Limitations and Notice of Actions, Project No 36 - Part II (1997), para 17.64.
211 Limitations, Report No 55 (1989), p 41.
212 As in Tolley v Morris [1979] 1 WLR 205, where the plaintiff was injured in a road traffic
accident as a child. Proceedings were issued within three years of the accident, but
followed by inexcusable delay by the plaintiff, so that the matter was eventually tried over
fifteen years after the accident, when documentary evidence relating to the matter had been
destroyed, and the memories of the available witnesses had seriously deteriorated. The
House of Lords noted that as the plaintiff would be able to issue a fresh writ until such time
as the limitation period had expired, no useful purpose would be served by dismissing the
action for want of prosecution. See also Headford v Bristol and District Health Authority
[1995] PIQR P180, where the delay was around 28 years (discussed at para 8.4 above), and
Turner v WH Malcolm Ltd (1992) 15 BMLR 40, where a claim by the plaintiff in respect of
brain damage suffered in a road traffic accident had not come to trial 12 years after the
accident.
301