Limitation of Actions Consultation - Law Commission

inconsistent with the approach taken in Cartledge v E Jopling & Sons Ltd. 56
It is
submitted that the proper rule is that only damage suffered within the limitation
period can be recovered, and that it is a question of fact in each case to decide how
much of the damage was suffered within that time. 57
3.28 Personal injury cases involving continuing torts are most likely to be employers’
liability cases concerning failure to provide proper safe systems of work. 58
The
question as to how the law of limitations affects the quantum of damages must
here take account of the fact that the limitation period for personal injury
effectively runs from the plaintiff’s date of knowledge (rather than from accrual of
the cause of action). We examine below the limitation regime for personal injury. 59
But it is convenient to illustrate here how that regime affects the quantum of
damages for a continuing tort. Say, for example, a plaintiff working on grinding
wheels is exposed to excessive vibration through his employer’s failure to use a safe
working system between the years 1981 to 1990. In consequence he suffers
gradually increasing circulation problems characteristic of ‘vibration induced
white-finger’. He discovers in 1985 that his condition is due to work, but only
issues proceedings against his employer in 1990. He has a fresh cause of action
against his employer accruing each day the employer is in breach of his duty.
Under section 11 of the 1980 Act, he is time-barred (subject to a court exercising
its discretion to disapply the limitation period under section 33) as respects those
causes of action of which he had knowledge over three years before initiating
proceedings. Subject to the court exercising its discretion under section 33,
therefore, he will not be able to recover damages for any injury suffered before
1987. Had he only discovered the cause of his condition in 1988 (and had that
been the earliest date at which he ought to have had the relevant knowledge) he
would have been able to recover for the totality of his injury.
(2) Personal Injuries
3.29 Section 11 of the 1980 Act lays down that in actions for personal injury, the
limitation period is three years from the later of the date when the cause of action
accrued and the plaintiff’s date of knowledge as defined in section 14. The accrual
of the cause of action for torts actionable on proof of damage has already been
dealt with. 60
In this section we first discuss what actions fall within section 11 and,
then, the law in respect to the plaintiff’s date of knowledge. We note in passing that
56
[1963] AC 758 (HL), affirming [1962] 1 QB 189 (CA), where Pearson LJ said at 207: “In a
case where there is a continuing breach of duty by the defendant continually causing
damage to the plaintiff there is a fresh cause of action arising every day, and if the breach
and resulting damage have continued for more than the period of limitation, the Limitation
Act, if relied upon by the defendant, will bar the plaintiff’s action for the damage occurring
before the critical date but not for the damage occurring after it”. Note also the approach to
apportionment taken in Thompson v Smith Shiprepairers (North Shields) [1984] QB 405, 437
- 444.
57 Hardy v Ryle (1829) 9 B & C 603, 109 ER 224.
58 See, eg, Berry v Stone Manganese & Marine Ltd [1972] 1 Lloyd’s Rep 182.
59 See paras 3.29 - 3.80 below.
60 See para 3.13 - 3.28. For personal injury actions for breach of contract or torts actionable
per se the cause of action could accrue before the injury, that is, at the date of the breach of
contract or the wrongful conduct. But such personal injury actions will be rare.
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