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Project 36(II) Final Report THE LAW REFORM COMMISSION OF WESTERN AUSTRALIA Project No 36 Part II Limitation And Notice Of Actions REPORT JANUARY 1997 The Law Reform Commission of Western Australia was established by the Law Reform Commission Act 1972. Commissioners Mr P G Creighton BJuris (Hons) LLB (Hons) (Western Australia) BCL (Oxford) Mr R E Cock LLB (Western Australia) Mr W S Martin QC LLB (Hons) (Western Australia) LLM (London) Officers Executive Officer and Director of Research Dr P R Handford LLB (Hons) (Birmingham) LLM PhD (Cambridge) Research Officers Mr M G Eoylson LLB (Western Australia) Mr A A Head LLB (Western Australia) Staff Mrs S K Elakey Mr L McNamara BA (Murdoch) Miss K L Chamberlain Miss M A Ryan ___________________________________ The Commission's offices are at: 11th Floor, London House 216 St George's Terrace Perth, Western Australia 6000 Telephone (09) 481 3711 Fax: (09) 481 4197 To: HON P G FOSS QC MLC ATTORNEY GENERAL In accordance with the provisions of section 11(3)(b) of the Law Reform Commission Act 1972, I am pleased to present the Commission's report on Limitation and Notice of Actions. P G CREIGHTON Member 14 January 1997 CONTENTS Paragraph ABBREVIATIONS RECOMMENDATIONS PART I: GENERAL CHAPTER 1 - INTRODUCTION 1. Terms of reference 1.1 2. Progress of the reference 1.6 3. Scope of the inquiry (a) The Limitation Act 1935 1.8 (b) The problem of latent injury 1.13 (c) Other current problems 1.15 (d) Limitation provisions in other statutes 1.17 CHAPTER 2 – THE PRESENT LAW 1. The law in Western Australia (a) Introduction 2.1 (b) The old law in England 2.2 (c) Reception of English law in Western Australia 2.6 (d) The Limitation Act 1935 2.7 2. The law elsewhere: an outline 2.11 (a) England 2.12 (b) Australia 2.20 (i) Victoria 2.21 (ii) Queensland 2.24 (iii) Tasmania 2.26 (iv) New South Wales 2.28 (v) Northern Territory 2.32 (vi) Australian Capital Territory 2.33 (vii) South Australia 2.35 (c) New Zealand 2.37 (d) Canada 2.39 3. Defects in the present Western Australian law 2.44 (a) Archaic drafting style 2.45 (b) Use of out of date concepts (i) Section 38(1) 2.46 (ii) Other obsolete concepts 2.55 2 / Contents (c) Conclusion 2.57 PART II: POSSIBLE APPROACHES TO REFORM CHAPTER 3 - INTRODUCTION 1. The Wright Committee Report 3.1 2. The present law 3.5 3. Some alternatives 3.8 4. The Commission's approach 3.10 CHAPTER 4 – THE ACCRUAL RULE 1. Introduction 4.1 2. Fixed periods running from accrual 4.3 3. When a cause of action accrues 4.6 (a) Actions for breach of contract 4.7 (b) Actions based on restitutionary principles 4.9 (c) Actions for breach of trust 4.10 (d) Actions in tort 4.11 (e) Negligence 4.15 (i) Personal injury cases 4.16 (ii) Defective buildings 4.17 (iii) Professional advice 4.22 (iv) Recent developments in other jurisdictions 4.23 4. Some problems (a) Concurrent liability in contract and tort 4.29 (b) Classification problems 4.34 5. Some possible solutions 4.36 (a) Reduction of the number of limitation periods (i) England and Australia 4.37 (ii) Canada 4.41 (b) A "catchall" limitation period 4.44 (c) A single limitation period? 4.48 6. Conclusions (a) Advantages 4.51 (b) Disadvantages 4.52 Contents / 3 CHAPTER 5 - EXTENSION AND LONG STOP PROVISIONS 1. Introduction 5.1 2. Existing extension provisions in Western Australia 5.5 3. Extension provisions in other jurisdictions (a) Introduction 5.9 (b) Waiver or extension of limitation period where damage not discoverable (i) The English Limitation Act 1963 5.11 (ii) New South Wales, Victoria and Queensland 5.14 (iii) Manitoba, South Australia and the Northern Territory 5.16 (iv) Assessment 5.19 (c) Alternative limitation period running from discovery (i) Discoverability plus discretion: the English Limitation Act 1975 5.20 (ii) Scotland and Victoria 5.23 (iii) Discoverability alone: Ireland and Western Australia 5.24 (iv) British Columbia 5.27 (v) England: the Latent Damage Act 1986 5.30 (vi) Assessment 5.32 (d) Knowledge provisions 5.33 (i) The English 1963 definition 5.34 (ii) The English 1975 definition 5.36 (iii) A new definition? 5.39 (e) Court given discretion to extend limitation period (i) The English Limitation Act 1975 5.40 (ii) The Commission's 1982 recommendations 5.41 (iii) Personal injury: Victoria, the Australian Capital Territory, New South Wales, Tasmania 5.42 (iv) Property damage: the Australian Capital Territory 5.44 (v) General provisions: Nova Scotia 5.45 (vi) Trade Practices Act proposal 5.46 (vii) Assessment 5.47 (f) Conclusions (i) Personal injury cases 5.50 (ii) Other cases 5.51 4. Long stop provisions (a) Provisions, existing and proposed 5.59 (b) Utility (i) Is a long stop provision required in personal injury cases? 5.67 4 / Contents (ii) Is a long stop provision required in cases other than those involving personal injury? 5.70 CHAPTER 6 - ALTERNATIVES TO ACCRUAL 1. Discoverability (a) Introduction 6.1 (b) Schemes based on discoverability (i) The Alberta legislation 6.3 (ii) The Ontario proposals 6.4 (iii) The Trade Practices Act 6.5 (c) Analysis of the Alberta scheme 6.6 (i) Introduction 6.7 (ii) Major recommendation 6.10 (iii) The discovery period 6.12 (iv) The ultimate period 6.15 (v) Burden of proof 6.19 (vi) Claims excluded 6.20 (vii) Conclusion 6.22 (d) Discussion (i) Application of the scheme to particular cases 6.23 (ii) Particular problems: a comparison with the accrual rule 6.28 (iii) Consequences of adopting proposals based on the Alberta scheme 6.33 (iv) Advantages 6.34 (v) Disadvantages 6.38 2. Act or omission (a) Introduction 6.47 (b) The New Zealand scheme 6.48 (i) Basic limitation period 6.49 (ii) Extension 6.52 (iii) Long stop 6.53 (c) Other proposals 6.54 (d) Discussion (i) Comparison with accrual 6.58 (ii) Consequences of adopting act or omission as starting point 6.59 (iii) Advantages 6.60 (iv) Disadvantages 6.61 Contents / 5 PART III: A NEW LIMITATION ACT - GENERAL PRINCIPLES CHAPTER 7 - THE COMMISSION'S MAJOR RECOMMENDATIONS 1. The approach of the Commission (a) A uniform approach 7.1 (b) The policy basis of limitation rules 7.5 (c) Retaining the existing accrual rule 7.10 (d) Amending the accrual rule 7.12 (e) An act or omission rule 7.15 (f) A discoverability rule 7.17 2. The Commission's recommended scheme 7.20 (a) A discovery period 7.21 (b) An ultimate period 7.30 (c) A discretion to extend either limitation period 7.35 3. The length of the limitation periods (a) The discovery period 7.49 (b) The ultimate period 7.54 4. Effect of the running of the period (a) The present law 7.56 (b) Possible alternatives (i) All rights extinguished 7.58 (ii) Limitation as a defence 7.62 (iii) A middle way 7.64 (c) The Commission's view 7.65 CHAPTER 8 - CONSEQUENTIAL RECOMMENDATIONS 1. Onus of proof (a) The present law 8.1 (b) The Commission's recommendation 8.5 2. Knowledge of others and the discovery period 8.12 (a) Principal and agent 8.13 (b) Successor owners (i) Introduction 8.16 (ii) The existing law 8.17 (iii) The issue for the Commission 8.21 (iv) Suggested solutions 8.24 6 / Contents (v) The Commission's recommendation 8.30 3. Transitional provisions (a) Introduction 8.32 (b) Existing legislative provisions 8.34 (c) The Commission's recommendations (i) Causes of action which have already accrued 8.37 (ii) Actions already barred by the expiry of the limitation period 8.39 (iii) Pending actions 8.43 (iv) Actions concluded by judgment or settlement 8.46 PART IV: APPLICATION OF THE GENERAL PRINCIPLES: PARTICULAR PLAINTIFFS AND DEFENDANTS CHAPTER 9 - VICTIMS OF CHILD SEXUAL ABUSE 1. Introduction to Part IV 9.1 2. Child sexual abuse: background 9.4 3. Potential causes of action 9.9 4. The present law in Western Australia 9.12 5. The law elsewhere (a) Use of general limitation provisions (i) England 9.13 (ii) Canada 9.17 (iii) New Zealand 9.23 (iv) Other Australian jurisdictions 9.26 (b) Special provisions on sexual abuse 9.32 (i) Ontario 9.33 (ii) Other Canadian provinces 9.40 6. Effect of the Commission's general recommendations 9.41 7. Is there a need for special provisions? 9.43 CHAPTER 10 - PUBLIC AUTHORITIES 1. Introduction 10.1 2. The present law in Western Australia 10.4 3. The law elsewhere 10.11 (a) England 10.12 (b) Australia 10.14 (c) New Zealand and Canada 10.17 4. The Commission's recommendation 10.18 Contents / 7 CHAPTER 11 - PROFESSIONAL PERSONS 1. Introduction 11.1 2. Liability insurance and limitation of liability 11.4 3. The limitation period for professional liability 11.12 4. The position of builders 11.20 PART V: APPLICATION OF THE GENERAL PRINCIPLES: COMMON LAW AND EQUITY CHAPTER 12 - COMMON LAW ACTIONS 1. Introduction to Parts V and VI 12.1 2. Common law actions: contract and quasi-contract (a) Actions in contract 12.5 (b) Actions on a specialty 12.8 (c) Actions in quasi-contract 12.13 (d) Actions for an account 12.14 3. Tort (a) The present position 12.18 (b) General effect of the Commission's recommendations 12.20 (c) Elimination of unnecessary distinctions 12.22 (i) Defamation 12.23 (ii) Trespass to the person 12.27 (iii) Personal injury generally 12.29 (d) Some particular issues 12.33 (i) Application to trespass, conversion and detinue 12.34 (ii) Successive conversions 12.36 4.
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