I. THE HISTORICAL DEVELOPMENT OF ENGLISH LIMITATIONS LEGISLATION UP TO 1963
2.1 The first and most important general statute dealing with the limitation of common law actions was the Limitation Act 1623 (Imp).1 It prescribed a range of limitation periods for various classes of actions. In relation to. personal injury actions, a six year limitation period was prescribed for actions founded on tort or contract, subject to a four year period for those alleging trespass to the person.2 The Act operated in conjunction with a large number of general and specific enactments, the latter prescribing special limitation periods for particular actions, for example the Public Authorities Protection Act 1893 (UK) and the Copyright Act 1911 (UK).
2.2 The Limitation Act 1623 (Imp) remained in force with minor amendments until its repeal by the Limitation Act 1939 (UK). That Act embodied the recommendations of the Law Revision Committee (the Wright Committee) for the simplification and codification of existing limitations statutes. Actions founded on tort or contract, including those claiming damages in respect of personal injury, were subject to a six year limitation period,3 but in 19544 the period was reduced to three years in relation to actions for personal injury, on the recommendation of the Departmental Committee on Alternative Remedies (the Monckton Committee). Personal injury actions in England are still governed by a three year limitation period which runs from the date on which the cause of action accrued.5
2.3 A major impetus for subsequent amendments to the limitations legislation arose from the difficulties encountered by victims of latent injury and disease in commencing their actions within the limitation period. In such cases the injury or disease is not discoverable, even at a pathological level, until some time (known as the “latency period”) has elapsed since its inception. The problem is illustrated by Cartledge v E Jopling & Sons, Ltd6 (Cartledge).
2.4 The plaintiff in Cartledge contracted pneumoconiosis while employed by the defendant. Pneumoconiosis is caused by the inhalation of noxious dust and the victim suffers a substantial injury to the lungs many years before any physical symptoms are apparent, and before the damage can be detected by medical diagnosis. The relevant limitation period may therefore have expired before the plaintiff is aware of the inception of the disease.
2.5 The House of Lords nevertheless felt constrained to allow the defendant in Cartledge to rely on the limitation period as an absolute defence to the plaintiff’s claim. It was held that the limitation period ran from the date of “accrual”, that is from the date when the plaintiff suffered damage or injury which could be termed as “real” or not negligible.7 The fact that the plaintiff did not and could not have known that such damage had occurred was considered irrelevant.8
2.6 The English approach can be contrasted with that taken in the United States Supreme Court decision in Urie v Thompson, Trustee9 where the plaintiff contracted silicosis while employed by the defendant. There the Court would not accept the defendant’s “mechanical analysis” of the date of accrual of the cause of action.10 Instead, it was held that a plaintiff is injured “only when the accumulated effects of the deleterious substance manifest themselves”.11 To have done otherwise would have given the plaintiff a “delusive remedy” only and thwarted the legislature’s purpose.12
2.7 The problem of latent injury and disease had been noted by the Wright Committee in its 1936 Report. The Committee argued however that the hardship suffered by such plaintiffs was justified by what it considered to be the primary object of limitations statutes.
[T]hey aim at putting a certain end to litigation..... whether there has been delay or not.13
The Committee accordingly recommended that there be no amendment to the existing system of fixed limitation periods running from the date of accrual. In Cartledge however their Lordships unanimously expressed their concern for victims of latent disease. Unlike the Wright Committee their Lordships did not consider that the resultant hardship was justifiable. Lord Reid, for example, found it
unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury.14
2.8 Following the judgment at first instance in Cartledge, but before the appeal to the House of Lords, the problem of latent injury and disease was referred to the Committee on Limitation of Actions in Cases of Personal Injury (the Edmund Davies Committee). That Committee considered that there may be other analogous cases of “entirely excusable failure to discover that (the plaintiff) has a claim”.15
They called these cases of “concealed causation” and offered the following examples:
- a person suffering from symptoms common to a range of conditions may not realise that he or she is suffering from an invidious disease associated with another’s behaviour, or
- a person may not attribute a disease to a particular cause because there is no sufficiently widespread knowledge of the causal connection between his or her exposure and that disease.16
2.9 The Committee concluded that the number of such cases was small but not negligible and that the resultant hardship was serious enough to warrant a reform of the existing law.17 The Committee was primarily concerned that any reform of the limitation legislation should involve the minimum change possible to the existing law.18 It was anxious not to breach the well-tried principles of the law of limitations any further than the facts showed this to be necessary.19 One solution considered but rejected as impracticable would have confined any extensions of the limitation period to a schedule of particular diseases.20 The Committee also rejected the suggestion that the courts should be given a general and unfettered discretion to extend the limitation period in cases the court considered appropriate. This was said to be too fundamental a change to the existing form of limitation legislation and one to which “practically unanimous” opposition was expressed by those consulted.21
2.10 The Committee’s compromise solution between the desire for certainty and the avoidance of injustice to plaintiffs was the creation of a statutory formula under which the limitation period could be extended according to certain relatively objective criteria.22 If the plaintiff could satisfy the court that he or she did not (and could not reasonably have been expected to) discover the existence of the injury, or the cause to which it was attributable, the plaintiff’s claim was not to be defeated by the expiration of the limitation period.23 The Committee gave no further guidance as to the precise formulation of the criteria.
2.11 The Limitation Act 1963 (UK), the model for the current New South Wales legislation, implemented the Edmund Davies Committee’s recommendations. The fixed three year period for personal injury actions was maintained but would not afford a defence if the plaintiff could show that
material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive)24 of the plaintiff.25
The extension, known as the “discovery rule”, was one to which the plaintiff was entitled as of right on the proof of those criteria. Definitions of key concepts like “material facts”, “decisive character” and “knowledge” were set out in the detailed provisions of the Act.
2.12 The detailed provisions have proved elusive and the legislation has not achieved its goal of certainty tempered with flexibility. Particular criticisms of both the form and substance of the 1963 Act will be discussed in Chapter 3 at paras 3.24-3.26 below.
II. THE CURRENT NEW SOUTH WALES LEGISLATION
2.13 In June 1967 the New South Wales Law Reform Commission received a reference to review the law relating to limitation of actions, which was at that time governed by Imperial Acts, some of which were many centuries old. The current Limitation Act 1969 implemented the Commission’s recommendations.
2.14 The Act provides for a fixed limitation period of six years for actions based on tort or contract including those for personal injury.26 Sections 57 to 61 of the Act allow for the extension of that fixed limitation period according to the discovery rule. Although those sections were based on the relevant parts of the Limitation Act 1963 (UK),27 in New South Wales proof of the statutory criteria does not entitle the plaintiff to an extension as of right, as is the case in England (see para 2.11 above). The criteria are instead preconditions to the court’s exercise of a discretion to extend the limitation period. The Commission determined that the court should have a discretion to refuse to extend and envisaged its exercise in cases where damages were likely to be trivial, where evidence was weak or where a special defence could be proved.28
2.15 Another significant difference between the English and New South Wales legislation is the inclusion in the latter of an ultimate bar beyond which the extension formula cannot operate. Section 51 of the Limitation Act 1969 provides that no action can be commenced more than thirty years from the date of accrual, notwithstanding the presence of factors entitling a plaintiff to an extension. This Commission recommended the provision on the ground that
a statute of limitations ought not to allow an indefinite time for the bringing of actions.29
III. COMPENSATION TO RELATIVES ACTIONS
2.16 The aspect of the existing legislation which prompted the current reference to this Commission concerns claims made under the Compensation to Relatives Act 1897. That Act reversed the position at common law that a person could not recover damages for the loss occasioned by another’s death.30 Such actions can now be brought for the benefit of certain defined relatives of the deceased (including de facto spouses31)
whensoever the death of a person is caused by a wrongful act, neglect or default . . . such as would (if death had not ensued) have entitled the [deceased] to maintain an action and recover damages in respect thereof...32
The person for whose benefit such an action is brought will be referred to hereafter as the applicant.
2.17 Confusion as to the operation of these provisions has arisen because compensation to relatives claims are not entirely analogous to ordinary personal injury claims. They do not involve a mere substitution of the applicant for the injured party. Although not identical to the action which the deceased would have had, compensation to relatives actions are derivative actions in the sense that they depend for their existence on the sufficiency of the claim which the deceased would have had but for his or her death. It is therefore necessary to consider two separate limitation periods which are applicable in a compensation to relatives claim.
- That period of limitation applicable to the deceased’s hypothetical cause of action. The ordinary six year limitation period running from the date of injury is applicable here. If the deceased dies more than six years after the date of injury, without having commenced proceedings, the applicant’s cause of action under the Compensation to Relatives Act 1897 cannot arise.
- That period of limitation applicable to the applicant’s cause of action. Section 19 of the Limitation Act 1969 specifically requires such actions to be brought within six years of the date of death.
2.18 The Limitation Act 1969 allows for an extension according to the discovery rule of only one of these limitation periods: that applicable to the deceased’s hypothetical cause of action.33 The applicant will not be prejudiced by the deceased’s failure to have brought an action in time due to the latter’s ignorance of material and decisive facts. However the applicant’s action must still be brought within six years of the date of death notwithstanding the applicant’s ignorance of the material and decisive facts relating to the cause of action.
FOOTNOTES
1. 21 James I, c16. This was the governing statute in New South Wales until 1969.
2. Limitation Act 1623 (imp) s3.
3. Limitation Act 1939 (UK) s2.
4. Law Reform (Limitation of Actions) Act 1954 (UK).
5. Limitation Act 1980 (UK) s11(4).
6. [1963] AC 758.
7. Id at 772, per Lord Reid; at 774, per Lord Evershed.
8. Id at 772, per Lord Reid; at 778, per Lord Pearce.
9. 337 US 163 (1948).
10. Id at 169, per Rutledge J.
11. Id at 170.
12. Id at 169
13. Law Revision Committee (Wright Committee) Fifth Interim Report (Statutes of Limitation) at 12, para 7.
14. Cartledge v E Jopling & Sons, Ltd [1963] AC 758 at 773, per Lord Reid.
15. Committee on Limitation of Actions in Cases of Personal Injury (Edmund Davies Committee) Report (Cmd 1829, 1962) at 5, para 7.
16. Id at 5-6 , paras 7-9.
17. Id at 8-9, para 16.
18. Id at 9, para 18.
19. Id at 13, para 29.
20. Id at 11-13, paras 20-29.
21. Id at 13, para 31.
22. Id at 14, para 32.
23. Id at 15, para 34.
24. Limitation Act 1963 (UK) s7(5).
25. Id s 1(3).
26. Limitation Act 1969 s14.
27. New South Wales Law Reform Commission Limitation of Actions (LRC 3, 1967) at 131, para 272.
28. Id at 133, para 283.
29. Id at 127, para 241.
30. Baker v Bolton (1808) 1 Camp 493 (170 ER 1033).
31. Compensation to Relatives (De Facto Relationships) Amendment Act 1984.
32. Compensation to Relatives Act 1897 s3(1).
33. Limitation Act 1969 s60(2).
