Limitation of Actions Consultation - Law Commission

is the subject of some controversy. 28
Ultimately, it will be up to the courts to
determine, whether to accept evidence of repressed memory, how much weight to
give it and whether it must be corroborated. However, a defendant facing a false
memory may have substantial difficulty in producing evidence to counter it,
particularly where the plaintiff brings proceedings several years, or decades, after
the events in question.
13.23 We note that the Law Reform Commission of Western Australia commented with
respect to the proposal that in certain circumstances there should be no limitation
period for claims by sexual abuse victims that, “the arguments advanced in favour
of such a provision are in essence the same arguments as those put forward in KM
v HM to support the view that the limitation period should not begin to run until
the discoverability requirement is satisfied. In most cases, the plaintiff’s right to sue
will be preserved by the discoverability period...”. 29
We agree. Courts in the
United States have also generally applied limitation periods to claims by sexual
abuse victims on the basis that they start to run when the cause of action becomes
discoverable. 30
13.24 Further support for applying a limitation period to claims by victims of child sex
abuse can be found in the decision of the European Court of Human Rights in
Stubbings v United Kingdom. 31
Here the Court held that the result in Stubbings v
Webb did not breach the European Convention on Human Rights. In particular,
the limitation period of six years from the age of majority was not unduly short
and the limitation rules were proportionate to the aim of securing finality and legal
certainty, protecting defendants from stale claims, and preventing the injustice
which might arise if the court was required to decide upon events which took
place in the distant past on the basis of unreliable evidence. 32
28 It has been suggested that such memories may be the result of suggestions made in therapy.
Monica L Hayes, “The Necessity of Memory Experts for the Defence in Prosecutions for
Child Sexual Abuse Based Upon Repressed Memories” (1994) 32 American Crim L Rev
69; Julie Schwartz Silberg, “Memory Repression: Should it Toll the Statutory Limitations
Period in Child Sexual Abuse Cases?” (1993) 39 Wayne L Rev 1589; Gary M Ernsdorff &
Elizabeth F Loftus, “Let Sleeping Memories Lie? Words of Caution About Tolling the
Statute of Limitations in Cases of Memory Repression” (1993) 84 Jnl of Criminal Law and
Criminology 129.
29 Law Reform Commission of Western Australia, Report on Limitation and Notice of Actions,
Project No 36 - Part II (1997), para 9.44
30 See paras 10.118 - 10.122 above. Courts in some jurisdictions in the United States have
also considered whether factors other than the lack of discoverability should postpone the
start of the limitation period (see para 10.121 above).
31 (1997) 23 EHRR 213.
32 The Personal and Medical Injuries Law Letter criticises as unconvincing the European
Court of Human Right’s reasoning, in respect of Article 14, to the effect that “it may be
more readily apparent to victims of deliberate wrongdoing that they have a cause of action”
((1997) 23 EHRR 213, 239). The Personal and Medical Injuries Law Letter notes “the
very point of the criticism made is that the ongoing, and possibly insidious, nature of sexual
abuse or psychological abuse of any kind is its capacity to cloud judgment as to what is
ordinary, and what is actionable. In this respect the European Court of Human Rights
appears simply to be compounding the error of humanity committed by the House of
Lords in the final domestic appeal”. See P&MILL 1997, 13(1) pp 7 - 8. The decision has
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