Limitation of Actions Consultation - Law Commission

enacted in the Latent Damage Act 1986 (LDA 1986), which added sections 14A
and 14B to the Limitation Act 1980. Section 3 of the LDA 1986 stands on its own.
3.88 In general terms, the LDA 1986 overlays the normal tort period of six years from
accrual of the cause of action with a three year period running from
discoverability, and subject to an overall long-stop of 15 years from the negligent
act or omission. In contrast to the regime for personal injuries and death there is
no judicial discretion to disapply the time limits.
(a) The scope of the Latent Damage Act 1986
3.89 Section 14A of the 1980 Act applies to any action for damages for negligence,
other than one to which section 11 or section 12 of the 1980 Act applies, that is,
an action for personal injuries or death. A number of points need to be made
about this definition. First, section 14A has no application to an action based on
contract. This was established in Iron Trades Mutual Insurance and others v J K
Buckenham. 193
Section 14A speaks only of “negligence”; this may be contrasted
with section 11 of the 1980 Act which creates a similar regime for personal
injuries, but which speaks of “negligence, nuisance or breach of duty”. The
plaintiffs in the J K Buckenham case were driven to contend that the omission of
any reference to breach of duty was an oversight on the part of the draftsman, but
this argument was rejected. The same conclusion was reached in Islander Trucking
Ltd v Hogg Robinson & Gardner Mountain (Marine) Ltd. 194
These decisions were
approved by the Court of Appeal in Société Commerciale de Reassurance v ERAS
International Ltd. 195
The reasoning behind these decisions is convincing, even
though the result is that a plaintiff who derives rights against the defendant from
contract is unable to rely on the LDA 1986. It is far from clear that there is any
justification in principle for the differing treatment of contract claims and tort
claims.
3.90 The fact that the 1986 Act does not extend to contract is of less importance since
the decision of the House of Lords in Henderson v Merrett Syndicates Ltd 196
which
authoritatively confirmed that there can be concurrent actions in contract and tort
arising out of the same facts. This means that a victim of a negligent breach of
contract can always, or almost always, bring an action in the tort of negligence
(and hence claim the benefit of the Latent Damage Act). But this, of course, does
not obviate the possibility of injustice where latent damage has been caused by the
breach of a strict contractual (or even tortious) duty.
3.91 It would seem that the LDA 1986 is not available to a plaintiff whose action is
based on nuisance. Negligence and nuisance have a substantial overlap but there
may still be cases where the action must be framed in nuisance because the
plaintiff cannot otherwise show the necessary breach of duty. In such a case it
would seem that section 14A has no application.
193 [1990] 1 All ER 808.
194 [1990] 1 All ER 826, per Evans J.
195 [1992] 2 All ER 82.
196 [1995] 2 AC 145.
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