An overview to Bar of Limitation on Torts

blog.ipleaders.in/bar-of-limitation-on-torts/

September 21, 2019

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This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater
Noida. The author, in this article, has discussed the concept of Bar of Limitations on
Torts.

Introduction
In Ireland, the law of limitations is governed by the Statute of Limitations,1957 as
amended by the Statute of Limitations (Amendment) Act, 1991 and the Statute of
Limitations (Amendment), 2000. In summary, it provides that if proceedings are
initiated after the expiry of the statutory limitation period specified for the claim in
question, the defendant may raise the defense that the proceedings are ‘statute-
barred’, thus precluding any discussion of the merits of the claim.

Limitation of Action
Both the claim for a contract and the claim for tort are subject to their own limitation
period rule. In most concurrent cases, it appears that because of the longer limitation
period, the plaintiff prefers tort claim to contract claim. It is therefore important to
explore the different limitation period rules that apply either to tort claims or to
contract claims in order to find the answer to the question as to whether the courts
allow the complainant to rely on tort claims due to the longer limitation period.

If the complainant fails to bring the lawsuit within the required period of time, the
statute of limitations will generally bar his claim and dismiss it. The court enforces the
limitation period agreed by the parties although, if such a period is reasonable, it is
shorter than the period specified by the applicable statute of limitations. However,
because this is contrary to public policy, the agreed period that is longer than the
legislative limitation period is held void.

Effects of Expiry of Limitation Periods

The effects of the limitation periods are rather procedural than substantive in that
they bar a remedy and does not extinguish the claim itself. Sir John Donaldson MR
stated:

In Ronex Properties v. John Laing Construction [1983] QB 393, 404, ‘it is trite law
that the English Limitation Acts bar the remedy and not the right, and furthermore,
that they do not even have this effect unless and until pleaded’.

Exceptionally, rights can be extinguished by themselves. For example, conversion

rights are extinguished by lapse of time (Section 3 of the Limitation Act,1980) and
rights under the Consumer Protection Act, 1987 are barred by the ten-year-long stop
(Section 11A(3) of the Limitation Act,1980).

The Primary Limitation Period in Tort

The current limitation periods can be found primarily in the Limitation Act,1980 (as
amended by the Latent Damage Act,1986 and the Consumer Protection Act,1987).

The basic principle is that tort actions are subject to a six-year limitation period from
the date on which the cause of action was accrued (section 2). However, there are a
few important exceptions:

The relevant period is three years in actions in tort for damages for personal injury.
This begins either from the date on which the cause of action has accrued or from
the date on which the injured person first became aware of his injury (Section 11 and
14).

In the case of latent damage to property considered below (Section 14A, 14B), a
discoverability test is provided.

The normal limitation period for claims pursuant to the Consumer Protection Act 1987
is three years (Section 11A), whether for personal injuries or other forms of damage
pursuant to the Act.

Also, three years is the limitation period for defamation claims (Section 57
Administration of Justice Act, 1985).
The Accrual of the Cause of Action
The limitation period begins to run from the date on which the cause of action of the
claimant accrued. In torts actionable per se (such as battery or conversion) the
claimant normally becomes aware of the act of interference that constitutes the tort.

In torts requiring damage, when the damage is first sustained, the cause of the action
accumulates, regardless of the knowledge of the claimant. Although the damage may
increase in scale and extent over time, the cause of action increases when the
damage first begins to occur and no new cause of action will occur unless a fresh
causative factor is involved or another type of damage is sustained.

Statute of Limitation under U.S. Law

Overall, the breach of contract cause of action is likely to have a different limitation
period compared to the claim of tort. The determination of the limitation period will
influence the characterization of the cause of action between contract and tort. There
are different limitations statutes, both federal and state, that have limited different
time periods in both contract and tort caused by actions.

In Hutchinson v. Smith, 417 So. 2d 926 (Miss. 1982), the court acknowledged that
where the complainant has more than one legal remedy (both in contract and tort),
he may choose to seek a remedy which would be more beneficial in view of the
applicable limitation period. Therefore, pleading by the plaintiff and the form of action
may dictate the applicable limitation period.
As appeared in the legal malpractice actions, some courts have applied the tort
statute of limitations to the legal malpractice actions when the complaint of the
plaintiff sounds in tort, although the claim may be brought in the contract.

Normally, the issue of the limitation period to be determined by the court is the issue
of the starting date of the limitation period. This is because the statutes often state
that when the cause of action of the plaintiff accumulates the period begins to run.
The court has to determine at what point of accrual, to begin with, is interpreted by
the court, in the case where the wrongdoing and the resulting injury are not
simultaneous. In doing so, the court will consider the distinct rules amongst “(1) the
occurrence of legal violation (the occurrence rule), (2) the resulting damage (the
damage rule), and (3) the awareness of the resulting harm and its causation (the
discovery rule).” Especially if the discovery rule is applied to the action, the shorter
limitation period may not be barred. In contrast, due to the earlier date applied by the
occurrence rule, the longer period may be time-barred.

The Statute of Limitation for Tort Claim

The time limit for claiming tort varies from one state to another. In the event of
negligence, the complainant is often required to initiate the claim within two or three
years from the date on which the cause of action accrues.

With regard to the cause of action in tort, the commencement of the limitation period
relies on the occurrence of the harm. Some courts recognized the rule of damage
requiring the actual damages as the essential elements of a cause of action for
negligence. In other words, in order to maintain the claim, all the elements are
necessary for the cause of action, such as the tort of a legal malpractice claim, must
occur. Traditionally, the cause of action of tort increases when damages occur.
Furthermore, the concept of continuing wrong may postpone the accrual time of the
cause of action in tort, whereas this concept does not apply to action for breach of
contract. These may explain why the tortious action limited time may expire later than
the contractual claim. However, if the claim of the plaintiff involves intentional tort, the
limitation period begins to run on the date of the wrong act because the damage is
not the essential element of the actions. It is noteworthy that the discovery rule is
also adopted in order to determine the beginning point of the limitation period in the
event of claims for latent injury and action in the tort of medical malpractice as well
as legal malpractice.

The characterization of the claim has affected the right of the complainant to be
relieved in relation to time limitations, especially in the concurrent claim. The court
sometimes held that the action sounds tortious by looking at the gravamen’s action
even though the plaintiff makes an attempt to allege breach contract to get benefit
from the longer limitation period. However, the court also considered the nature of
the contractual obligation to apply limitations to the action claiming damage caused
by the negligent failure of the defendant to perform duties arising from a contract.
Statute of Limitations under English Law
The Limitation Act 1980 governs the question as to whether the cause of action of
the complainant is barred by the limitation period. If the plaintiff does not commence
his claim for the right to remedy within a fixed period of time, the action is barred. In
such a situation, the complainant has the burden of proving that within the limitation
period his claim is asserted.

The Statute of Limitations for Tort

It is provided that “An action based on tort shall not be brought after the expiration of
six years from the date on which the cause of action accrued”. Whereas the cause of
action accrues on the date of the wrongful act of the defendant in the case of tort
actionable per se, in the case of negligence which can only be brought on the basis
of proof of damage, the cause of action accrues at the time the damage actually
occurs.

In addition, the three-year period is the special time limit for personal injury actions.
The rule states that the three-year period applies to

“any action for damages for negligence, nuisance or breach of duty (whether the duty
exists by virtue of a contract or of provision made by or under a statute or
independently of any contract or any such provision) where the damages claimed by
the plaintiff for the negligence, nuisance or breach of duty consist of or include
damages in respect of personal injuries to the plaintiff or any other person.”

The three-year period begins to run from “(a) the date on which the cause of action
accrued; or (b) the date of the injured person’s knowledge (if later).

In the event of negligence causing any form of latent damage to be recovered, the
action shall not be brought after either six years from the date on which the action
arises or three years from the date on which the complainant had the knowledge of
certain facts required to bring an action for damages if this period later expires.
Importantly, only tort claims are covered by the latent damage provisions contained
in section 14A of the Limitation Act, 1980.

Actions in Tort

Torts Actionable Per Se and Torts Actionable on Proof of

Damage
11(2) of the Statute of Limitations, 1957, states that an action based on tort shall not
be brought after the expiry of six years from the date on which the cause of the
action accrued.198 For tort actionable on the basis of proof of damage, such as
negligence, the cause of the action shall arise if the wrongful act of the defendant
causes damage. For tort actionable per se, such as trespass, false imprisonment,
and libel, the cause of action will arise when the wrongful act is committed. The
distinction between torts actionable per se and those enforceable on the basis of
evidence of damage is a relic of the historical development of the law of tort and can
be explained by reference to the following underlying policy: torts actionable per se
involve prima facie wrongful conduct, the harm of which is usually immediately
apparent, and as the act was deemed to be such as to arose violent resentment, it
was in the interests of public security to provide an instant remedy. For example, in
trespass, when there is a direct physical act that interferes with the possession of the
plaintiff, the cause of action accrues.

Conclusion
In conclusion, the plaintiff has a longer limitation period to commence his claim in
certain types of tort claim. This may be because there’s a longer statutory limit. Or it
might be because the cause of action in tort occurs later than that of contractual
action. Or it may be due to the application of the latent damage limitation period. As
can be seen, the complainants choose to rely on the tort claim in most concurrent
cases when the contractual claim is barred by limitation statutes.

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