Limitation of Actions Consultation - Law Commission

consequences, or has been led to believe that the abuse is entirely their own fault, 43
it may well be “reasonable” for that plaintiff to have failed to appreciate the causal
link between the action of the abuser and the harm they have suffered until they
have received some form of therapy, irrespective of the state of public opinion. In
short, the reasonableness of the plaintiff’s conduct will be assessed by reference to
what the plaintiff has experienced.
13.33 Another example of how a discoverability test can operate can be seen in the
Supreme Court of Canada’s decision in KM v HM. 44
In this case the appellant
was a victim of incest between the ages of 8 and 17. The abuse ceased when she
left home in 1974. She had tried to tell her mother of the abuse when she was 11
and later she told her husband. This was not a case of the victim having no
recollection at all, she knew she had been assaulted and she knew that incest was
wrong. She suffered psychological problems but it was not until 1984 that she
discovered, through therapy, that these problems were caused by the abuse. 45
She
commenced an action in 1985. The Supreme Court held that the cause of action
did not accrue, and therefore the limitation period did not start to run, until the
victim could reasonably discover her cause of action in the sense of having a
substantial awareness of the harm, its likely cause and who was responsible for it. 46
Mere knowledge of the assault without knowledge of the psychological problems
caused by them is not enough. The victim must make the connection between the
assault, the damage and who is responsible. Although the Court phrased the result
in terms of the time of accrual, the result in the case shows how a discoverability
test can lead to a just result.
(ii) The long-stop
13.34 Under our core regime, claims by victims of sexual abuse, being claims for
personal injury, would be subject to a long-stop limitation period of 30 years
running from the date of the act or omission giving rise to the claim. The length
of this long-stop period means that it is unlikely that many victims of sexual abuse
would find their claims barred by it. 47
13.35 It may be asked why it is necessary to subject claims by victims of sexual abuse to
any long-stop limitation period. We suggest elsewhere that it is preferable and in
keeping with the modern development of limitation law to have a long-stop
43 Two of the strategies highlighted by J Mosher as methods developed by child abuse
survivors to survive the abuse. See “Challenging limitation periods: civil claims by adult
survivors of incest.” (1994) 44 U of Toronto LJ 169. In New Zealand, it has been held that
deceit by the defendant as to the nature of the acts carried out amount to “fraud” sufficient
to postpone the running of the limitation period. See para 10.81 above.
44 (1992) 96 DLR (4th) 289. See also paras 10.98 and 13.21 above.
45 In evidence it was suggested that she had made an intellectual connection between the
abuse and the injury but not an emotional one and therefore she was unable to assess her
situation rationally: (1992) 96 DLR (4th) 289, 296.
46 (1992) 96 DLR (4th) 289, 305, 312. See also Gray v Reeves (1992) 89 DLR (4th) 315; S v
G [1995] 3 NZLR 681 and Evans v Eckelman 265 Cal Rptr (3rd) 605 (1990).
47 Neither the plaintiff in Stubbings v Webb [1993] AC 498 nor the plaintiff in S v W [1995] 1
FLR 862 would have been time-barred by such a limitation period.
334