Parker David: Limitation Bill — Second Reading In Committee Third Reading 
Parker David: Limitation Bill — Second Reading In Committee Third Reading 
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Hon DAVID PARKER (Labour) 
: 
 I rise with some pleasure to talk on the Limitation Bill. This is important legislation that updates the current Limitation Act 1950 which obviously from its title is already 60 years old. I thank the Attorney-General for his careful consideration of the issues in this bill—in particular in relation to gradual process injuries which is an issue that I will come back to. 
The Limitation Bill is important legislation because it tries to balance two interests. On the one hand we have the public interest in enabling people who have been wronged to pursue through the courts a remedy to compensate them for the wrong that has been done to them. We want them to have that right and for it not to taken off them unduly. On the other hand we have an interest in ensuring that the quality of justice is good by making sure that these disputes are resolved in a timely manner before people forget before witnesses die and before documents are lost because those things are important in making a good decision. 
We also have the important public interest in making sure that the sword of Damocles does not for ever hang over the person who did the wrong; people should be able to move on with their lives after a reasonable period of time if the claim that is hanging over them is not pursued. So the general rule is that people have 6 years to take their claim. If they do not take their claim within 6 years then they lose their rights. That 6-year period currently runs from when the cause of action arises but what that means is complex and I do not have time to go into it. 
That test is changed slightly in this legislation but in changing that test we are also introducing a more clear exceptions policy. There are occasions when the normal 6-year rule would be unfair because people through no fault of their own do not know enough of the facts to ascertain that a wrong has been done to them or to know whom they should sue. So there is an exception when there is a lack of knowledge on the part of the injured person that would prevent them from bringing a claim within that 6-year period. The general rule has an exception that can extend that period for a longer period but that longer period is in itself limited by what we call a longstop date beyond which no matter what one’s rights may have been the rights have been lost because too much time has elapsed. That is how we balance those two interests. 
There are a couple of exceptions to that. An important exception to the normal 6-year rule is in respect of minors who have been sexually abused. Obviously they could be abused at age 3 and still be under the care and control of the person who abused them until they leave home many years later. If a 6-year limitation period applied in that case it would be causing an injustice to the children who were abused in their homes and who would have no effective remedy. So that is one of the public policy reasons why we have an exception in respect of sexually abused children. That exception is in the old Limitation Act and is carried forward into this legislation which is a good thing. 
There is another exception that we in the Labour Party are worried about. It relates to gradual process injuries. People might be exposed to asbestos in the workplace and they might not know that they have been exposed to asbestos in the workplace until asbestosis develops a number of years later. If there was a 6-year limitation period well the illness could happen after those 6 years; if there was a 15-year longstop period it could happen even after 15 years so those people would be without a remedy. 
The bill came to the Justice and Electoral Committee without there being an exception in respect of gradual process injuries. One of the justifications for that was that if the injury was work-related or even if it was not work-related but accidental the claimant would have cover under the accident compensation scheme. But when Labour members reflected on that at the select committee we thought: “Who’s to know what future accident compensation rules will be? Who’s to know whether some of these things will or will not be outside the cover of the accident compensation scheme?”. It was notable to us when we looked back at the old 1950 Act that that Act had not been amended by the Accident Compensation Act of 1972. It sat alongside it so that if people had cover under the Accident Compensation Act and it was stated that those people had no rights outside that Act then that was covered in the Accident Compensation Act and not in the Limitation Act. 
It became clear to us that from a principled point of view we needed to do in New Zealand what they had done in Canada which was one of the comparisons we had. We needed to have an exception in respect of process injuries and if those process injuries were long term and they were covered by the accident compensation scheme then that scheme would take care of them and no one would have any other risk because their claims were settled under accident compensation legislation. But if they did not have cover under that legislation then they ought not to lose their rights because of the provisions in the new Limitation Bill. We took that to the Attorney-General and the Attorney-General looked at it. I thank the Attorney-General because I thought he showed wisdom and open-mindedness in being willing to look at that and then in agreeing to that as an exception. 
There is one other issue that I will deal with because although Labour will be backing this bill because it is a good bill I disagree with the Government in respect of having a longstop liability period for non-building claims that is different from the period for building claims. We are saying that we will have a longstop liability period for 15 years except for some of those rare exceptions relating to sexual abuse of minors and gradual process injuries. After that 15 years even if people did not have knowledge to bring their claims earlier they will lose all of their rights. But in respect of building cases we are saying that we are sorry but people will not get the same longstop liability of 15 years; they will get only 10 years. 
The first point I make is that this is irrelevant to the leaky building issues in Auckland because the Limitation Bill that we are considering will apply only to causes of action that arise from the date the bill is passed so it will not apply to those leaky buildings that we already have in Auckland. So the difference between the 10-year and 15-year period in respect of building cases is irrelevant to the problems that we already have in Auckland and elsewhere with leaky buildings. But I see no difference in principle between a building claim a professional negligence claim and a claim where someone acting as my agent could without my knowledge defraud me of some of the money that was due to me the principal from that agent. In that case if an agent is defrauding me I have 15 years to pursue my claim—up to a 15-year longstop period—if knowledge has not been reasonably available to me that would have enabled me to bring my claim earlier. Yet we say in respect of a building claim that we can have only 10 years; I do not understand the logical reason for the difference. A failure in the foundations of a house can happen after 10 years but not be apparent before that and after that 10-year period it will become the problem of the building owner because the longstop liability period will click in at 10 years. 
The justification we were given at the select committee for the difference was that building claims had complexity because multiple parties were involved. We have the architect the engineer the builder and maybe the concrete layer or someone who has put the steel work into the foundations inappropriately so it is true that there are multiple parties. OK that might add a bit more complexity than would be the case in respect of a simple action between a principal and a single agent but there are plenty of cases where there is complexity as to fact and if someone cannot prove a case on the balance of probabilities—in a case of complex facts such as a building case—in that period between 10 and 15 years that person’s case will fail. I cannot see the reason in principle for having a different longstop liability period for people who suffer a failing building. That could be the loss of the most important asset in their lives; the foundation of the house could fail and the house could be largely worthless. 
The other argument we heard was that in Building Act cases we have fading memories. But we have fading memories in all old cases so I do not see a difference in principle there. I am not sure whether it will be in the scope of this bill because that is something I will need to check with the Office of the Clerk but assuming it is within the scope of this bill I will be promoting at the Committee stage an amendment to have the same longstop liability period applying to Building Act cases as to all other cases because I do not see the difference in principle. We can argue that the periods should all be 10 years: that Building Act cases should have a 10-year longstop period and that other cases should too. But we say that they should all be consistent; they should all have either 10 years or 15 years as their longstop period. Thank you.