2. Pre-Action Considerations: Limitation

Question 1

What is the limitation period for breach of contract and most claims in tort?

Answer 1

Six years

Question 2

What is the limitation period for personal injury and fatal accident claims?

Answer 2

Three years of the latest of:
a. the date the cause of action accrued
b. the date of knowledge of the person injured.

Question 3

What is the limitation period for defamation claims?

Answer 3

One year

Question 4

What is the limitation period for unfair dismissal claims?

Answer 4

Three months

Question 5

What is the long stop limitation for latent defects?

Answer 5

Fifteen years latest tortious act long-stop
AND later of
a. 6 years from the cause of action OR
b. 3 years from requisite knowledge or right to bring claim

Question 6

In a tort action where the claimant’s injury is not apparent, when does the limitation period begin running?

Answer 6

When the claimant first gains knowledge that they have a claim

Question 7

In a tort action, when is the date of knowledge considered to be?

Answer 7

The point at which the claimant had sufficient knowledge of all the facts to commence investigations into the potential claim against the defendant

Question 8

In a tort action, the date of knowledge does not occur until the claimant has knowledge of what four things?

Answer 8

1. That the injury is significant
2. That it is attributable in whole or part to the act or omission alleged
3. Knowledge of the defendant
4. Identity of any other actors if it is they who did the conduct, not D (e.g. hospital/doctor situation)

Question 9

In a tort action, in addition to knowing they have an injury, what must a claimant know?

Answer 9

Causation, i.e. that the injury arose from a negligent act or omission of an identified defendant

Question 10

In a tort action, what are the two options for the limitation period if the injured party dies within three years of the accrual date?

Answer 10

Three years from:

1. Date of death, or
2. Date of knowledge of the deceased’s personal representative

Question 11

What is the effect of a claim being outside the limitation period?

Answer 11

The defendant will have a full defence.

Question 12

What is the limitation period for an action to enforce a judgment?

Answer 12

6 years from when the judgment became enforceable, nor can interest be recovered after that period.

Question 13

What is the effect of the injured party dying on the limitation period in tort?

Answer 13

Where a limitation is six years, it reduces it from six years from the date of accrual to three years from the date of death

Question 14

In a contract action, when does the limitation period begin running?

Answer 14

On the date of breach

Question 15

What is a latent defect?

Answer 15

A defect in property caused by fault in design, materials, or workmanship that existed at the time construction was completed but was not apparent at that time

Question 16

Where there is a latent defect, what limitation period is available in addition to the general rule of six years from the date of accrual?

Answer 16

Three years from the earliest date on which the claimant knew or ought reasonably to have known material facts necessary to bring an action

Question 17

What is the longstop limitation period for latent defects, after which no actions can be brought?

Answer 17

Fifteen years from accrual, which is usually completion of the project

Question 18

Procedurally, when does time begin to run relative to the date the cause of action accrues?

Answer 18

The day after the date of accrual

Question 19

Is it possible to add a new party to proceedings after the limitation period has expired?

Answer 19

No, unless an application to disapply the limitation period is made to the court

Question 20

When does the limitation period begin to run where a claimant is a minor?

Answer 20

On their 18th birthday

Question 21

If a claimant has capacity at the time of accrual and subsequently loses capacity, is the clock paused?

Answer 21

No

This is because if the claimant has ever had capacity at any time since the accident then the limitation period has started running. Once the limitation period starts running it does not stop.