Limitation of Actions Consultation - Law Commission

when the distinction was swept away in 1954, and, so far as I am aware, has
never subsequently regained any reputable currency. 208
13.149 The position in other jurisdictions is worth noting. A number of Australian States,
and New Zealand had at one time provisions protecting public authorities. 209
These have now been in large part repealed. 210
Similarly, equivalent rules have
been abolished in Canada, 211
or their abolition recommended. 212
As in England
and Wales, a major factor in the decision to repeal the special protection for public
authorities was concern that the injustice to the individual outweighed the
advantages of the provisions to the public authorities. 213
The arguments for and
against such protection for public authorities were reviewed in most detail recently
by the Law Reform Commission of New South Wales. 214
The grounds on which
public authorities argued for the retention of the protection included the following
considerations:
(1) Financial considerations, and the difficulty authorities would face in
preparing their budgets. The Law Reform Commission noted that it was
unfair for plaintiffs to be disadvantaged to assist the budgeting of large
authorities, and pointed to the existence of alternative means of financing
claims, such as insurance.
(2) Difficulty of keeping records. The Law Reform Commission noted that
similar difficulties were faced by many large commercial and industrial
208 Arnold v CEGB [1988] AC 228 at 269.
209 Which, apart from a shorter limitation period, required plaintiffs to give special notice of
their claim to the relevant authority. See for example Limitation Act 1935, s 47A (Western
Australia). See also Crown Suits Act 1947, s 6.
210 See Limitation of Actions Act 1954 s 3 and 2nd Schedule (Tasmania); Law Reform
Limitation of Actions Act 1956, s 4 and Limitation of Actions Act 1974 s 4 and the
schedule thereto (Queensland); Limitation of Actions Act 1955 s 34, and Limitation of
Actions (Notice of Action) Act 1966, s 2 (Victoria); Notice of Actions and Other Privileges
Abolition Act 1977 (New South Wales). The repeal of similar protections for public
authorities and the Crown is being recommended in Western Australia (See Law Reform
Commission of Western Australia, Report on Notice and Limitation of Actions, Project 36 Part
II (1997), paras 10.12, 23.7). See also Limitation Amendment Act 1962, s 3 (New
Zealand).
211 An Act to Amend the Law Respecting Limitation of Actions in Tort (SA) 1966, c 49, s 4
(Alberta); SBC 1975 c 37 s 16, re-enacted in Limitation Act RSBC 1979 s 15 (British
Columbia); SM 1967 c 32 s 3C, now re-enacted in Limitation of Actions Act 1987 s 4
(Manitoba).
212 See Ontario Law Reform Commission, Report on Limitation of Actions (1969), pp 74 - 79,
84 - 90; Newfoundland Law Reform Commission, Working Paper on Limitation of Actions,
NLRC-WP1 (1985), pp 253-263); Law Reform Commission of Saskatchewan, Proposals for
a New Limitation of Actions Act, Report to the Minister of Justice (1989) pp 54 - 57.
213 See for example Report from the Statute Law Revision Committee on Limitation of
Actions (Victoria), Votes and Proceedings (Legislative Assembly, Victoria) 1950-51 (1), 947
clause 4, where the committee expressed themselves to be “more concerned with injustices
to the individual which had occurred and will occur ... than with the disadvantages which
possibly may be experienced by public authorities if the protection is removed”, quoted in
Law Reform Commission New South Wales, Third Report on the Limitation of Actions -
Special Protections, LRC 21 (1975), paras 64, 74.
214 Op cit, paras 72 -123.
372