Limitation of Actions Consultation - Law Commission

action, no loss can have occurred until he or she is adjudged liable or reaches
settlement. In some cases the defendant may be able to argue that he or she was
not aware of the identity of the contributor until some time after being found liable
to the plaintiff in the main action, which may delay the start of the limitation
period. However, in the majority of cases, a defendant who becomes aware of
potential liability can be expected, from that point, to investigate how to limit that
liability and who else is to blame. 115
In consequence changing the starting point
from the date of judgment or settlement to the “date of discoverability” may not
have much impact in practice. The same can be said of extending the period from
two to three years.
13.86 Some circumstances could potentially give rise to a chain of contribution actions
arising out of the same facts, as for example where an injury has been caused by
faulty machinery. An initial action by the injured victim against the operator of the
machinery may be followed by a contribution action by the operator against the
seller of the machinery, who in turn may sue the manufacturer, who may have an
action against the firm which made one of the component parts. Under the
current law - and, unless modified, under our core regime - a fresh limitation
period would be triggered with each new contribution judgment or settlement.
This could lead to contribution claims being decided many years after the events
which gave rise to the main liability.
13.87 To overcome this problem of a chain of contribution actions, it has been suggested
that there should be a single limitation period applicable to all contribution actions
arising out of the same facts. 116
Cast in terms of our core regime, this is in effect a
call for a modification of the long-stop.
13.88 The initial query in applying our core long-stop proposals is the appropriate date
at which the long-stop would start to run. The relevant liability of “the defendant”
is the liability of the contributor to make contribution to his or her co-obligor and
this is triggered not so much by an act or omission of the contributor as by the
judgment or settlement giving rise to the contribution action. The appropriate
starting date for the long-stop in this context - analogous to the act or omission of
the defendant giving rise to the claim in actions in tort or contract - would
therefore be the date of the judgment or settlement giving rise to the contribution
action.
13.89 But such a long stop would not overcome the chain of contribution problem
because a fresh long-stop would arise with every new judgment or settlement.
The modification required, therefore, would be for the long-stop to be a single
115 As the Alberta Law Reform Institute noted “When any tortfeasor is made a defendant in a
civil proceeding which originated in a tort claim, it is in his interest to make all reasonable
efforts to discover all other tortfeasors liable for the damages, to join them in the
proceeding, and to bring claims for contribution as soon as possible”. See Limitations,
Report for Discussion No 4 (1986), para 2.21. The Law Reform Committee noted that “it
is rarely necessary to invoke section 4(2) of the 1963 Act [the predecessor of s 10 of the
1980 Act], because well-advised plaintiffs in practice sue all likely defendants, and if one
only is sued, he is quick to suggest that others are really to blame”. See Twenty-First Report
(Final Report on Limitation of Actions) (1977) Cmnd 6923, para 3.34.
116 Construction Industry Board: Consultation Report from Working Group 10 on the Reform of
Liability Law: 19 April 1995, para 39.
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