Limitation of Actions Consultation - Law Commission

12.161 The New South Wales Law Reform Commission noted two possible objections to
such a policy; first the complexity of claims for unliquidated damages in contrast
to claims for liquidated damages and the probable lack of a written record and,
second, the greater difficulties which would be involved in deciding whether a
writing amounted to an acknowledgement in unliquidated claims. 247
However,
they did not find either of these objections an insuperable obstacle to making
acknowledgements and part payments effective to restart the limitation period for
claims for unliquidated damages. 248
The Commission was also influenced by the
decision in Lubovsky v Snelling. 249
That case held that an agreement between the
plaintiff and defendant in a personal injuries case that liability in damages to the
plaintiff’s cause of action was “once and for all definitively accepted by the
defendant and his insurers” prevented either the defendant or the insurer raising
any defence which might contest that liability. The Commission regarded this as a
move towards the recognition of acknowledgements in claims for unliquidated
damages.
12.162 Similarly, the Law Reform Commission of Saskatchewan recommended that
acknowledgements and part payments should be generally effective, on the basis
that it is undesirable that reference should have to be made to the category of an
action to decide whether the limitation period is restarted by an acknowledgement
or part payment. 250
Like the New South Wales Law Reform Commission, it was
unconvinced that an extension to unliquidated claims would cause insuperable
difficulties. The New Zealand Law Commission also recommended that
acknowledgements and part payments should be generally effective, subject to a
requirement that the claimant be required to prove reliance on the
acknowledgement or part payment. 251
12.163 On the other hand recommendations against such an extension have been made
by the Ontario Law Reform Commission, Alberta Law Reform Institute and the
Western Australia Law Reform Commission. 252
The Ontario Law Reform
247 Ibid, para 252.
248 The Law Reform Commission noted that “On the first point, while it has a foundation in
ordinary experience, we think that an acknowledgement, likely as it must be to encourage
the claimant to defer taking proceedings, will in general not be given carelessly and, if given
carelessly, should be the occasion of loss to the person giving the acknowledgement rather
than to the claimant. On the second point, while it is indeed frequently a matter of
difficulty to say whether, under the present law, a writing is or is not an acknowledgement,
this difficulty has been significantly reduced by section 23 of the Imperial Act of 1939.”
paras 253 - 254.
249 [1944] KB 44. See para 9.7 above.
250 Law Reform Commission of Saskatchewan, Tentative Proposals for Changes in Limitations
Legislation, Part II: The Limitation of Actions Act (1986) pp 82 - 83; Proposals for a New
Limitation of Actions Act, Report to the Minister of Justice (1989), pp 38 - 41.
251 Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988), paras 268 - 274. See
paras 10.80 and 12.157 above.
252 Ontario Law Reform Commission, Report on Limitation of Actions (1969) p 125, Alberta
Law Reform Institute, Limitations, Report No 55 (1989), p 92 (now enacted in Alberta’s
Limitations Act 1996 c L-15.1. See s 8), Law Reform Commission of Western Australia,
Report on Limitation and Notice of Actions, Project No 36 - Part II (1997), paras 18.36 -
18.41.
309