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 to speak in support of the third reading of the Limitation Bill. I agree with just about everything that the Attorney-General said in his address. 
Amy Adams 
: This is so boring. Find something to describe. 
Hon DAVID PARKER 
: Amy Adams says that this is so boring. 
Amy Adams 
: No you’re agreeing that everything is so boring I’m afraid. 
Hon DAVID PARKER 
: Oh I am being boring. 
Amy Adams 
: Yes. 
Hon DAVID PARKER 
: Well Amy Adams’ contributions have been riveting tonight have they not? 
I will recount the policy balance that Limitation Acts try to achieve. They try to balance the rights of injured parties to pursue through the courts those who have caused them injury in order to get redress for the injury that they have suffered through the wrongful actions of a wrongful party. We want to empower people to do that. We want to encourage them to use court processes rather than gangs or fisticuffs because we live in a civil society. But we want to make sure that if they have rights they exercise them promptly. The reason for that is that the longer one leaves it the greater the chance of injustice. Memories fade witnesses die and documents are lost. In addition there is the need to let people even the wrongdoer get on with their lives eventually and not have the sword of Damocles hanging over their heads for ever. 
We balance those rights by saying that if people have rights they generally have to exercise them within 6 years. But we make some exceptions. We make an exception if people do not know enough to know that someone has wronged them or do not know who it was who wronged them. So we have an exception that says that if a person does not know enough within that 6-year period he or she will be given another 3 years. If a person has late knowledge that person will be given another 3 years. But even that has to come to an end sometime so we have a longstop period of 15 years. That is essentially what this bill does. It has a number of exceptions because there are exceptions to be made to those general rules. 
The exception that the Attorney-General has raised in respect of sexually abused or abused young people is a case in point. A young person could be abused within his or her family at a very young age could still be under the care and control of the very people who abused that young person and could have no effective way of bringing an action partly because the young person is not of a contractual age and does not know how to go to a lawyer and partly because he or she may still be living at home. We do not want those people to lose their rights. They should have some prolonged period in which to exercise their rights because that is fair and so we have an exception for them. 
There was another exception that the Attorney-General agreed to following some overseas precedents including precedents from Canada. A person might have a process injury such as asbestosis or some other workplace injury that takes a long time to arise and there should be an exception in respect of that person. The logic around that provision was slightly confused at one stage as a consequence of accident compensation. People thought that if process injuries were covered by accident compensation then the Government would not need to provide for them under the Limitation Act. But that logic was not quite right. The accident compensation scheme speaks with its own voice. If someone has an accident compensation remedy it is covered by accident compensation and he or she does not have the right to a non - accident compensation claim. The accident compensation claim trumps that and says that those people do not have any residual tortious right. But there are cases that may fall outside accident compensation cover either because of the current rules covering accident compensation or because those rules may change in the future. So it is important that the Limitation Bill provides for gradual process injuries in the event that they are not covered by accident compensation. So that is another exception. 
The general rule in respect of the limitation period should also apply by analogy to equitable claims. Equitable claims are not claims under statute or under common law; they arise using the equitable jurisdiction of the courts. None the less the courts apply periods that are limitation periods by analogy to equitable claims. They apply similar rules to those that apply to common law claims. An amendment was made at the Justice and Electoral Committee to make sure that that is carried forward under this legislation. 
I do not want to give the impression that there will no longer be disputes about whether an action is within time. Although this legislation does simplify things somewhat and attempts to minimise the number of disputes and the injustice that can result from them we will still have disputes about when people had sufficient knowledge so as to be properly informed of their rights and were therefore obliged to bring their cause of action before the courts if they wanted to pursue it. There will be claimants who say they did not have enough knowledge when the other party to the claim will say that that the claimant did know enough and sat on their rights for too long lost their rights and can no longer sue the other party. There will still be disputes as to when people did or did not have sufficient knowledge to trigger the 6-year limitation period or indeed the 3-year late knowledge period. Not all disputes will be avoided and perhaps speaking as a lawyer that is a good thing. 
Amy Adams 
: Ha ha! 
Hon DAVID PARKER 
: Amy Adams liked that. She is a lawyer too. 
The one area where I remain a little disappointed is in respect of the inconsistency that we have for Building Act claims compared with non - Building Act claims. The general 15-year longstop period is not being applied to Building Act cases and the 10-year longstop period is being left as it currently is. There is a genuine and fair debate as to whether the longstop period should be 10 years or 15 years. Indeed the Law Commission initially recommended a 10-year longstop period for everything. It modified its position in its subsequent report and said it should be 15 years. But we have this exception introduced for Building Act cases that says it should be only 10 years. I still am not convinced as to the logic that lies behind that. I think it is a pity that that was not cleared up in this bill because we had the opportunity to fix it up now. 
There will of course be pressure from the building industry to keep it at 10 years. It is in the industry’s self-interest to have a shorter period because it limits its liability. But I am not convinced that it is right. I think that if we have a 15-year longstop liability period for other breaches of contract or tortious claims I cannot see why it should be different for Building Act claims. I again make the point that this is not of any import in respect of the current leaky home problems in Auckland because this new bill applies only to wrongs if you like or causes of action that accrue from the date after the passage of this bill rather than things that have already happened before that date. But none the less that principle should have been consistent in my view for buildings as well as for other claims. 
Perhaps the most valuable asset that most people own is their house. If they lose a substantial portion of the value of their house because of a latent defect they do not know about which does not become apparent for more than 10 years—and that does not happen often but it does happen sometimes; foundations might fail after a period of time because they were not appropriately taken down to hard fill—then under this legislation they will have only 10 years to pursue their claim because of the longstop liability under the Building Act. That is unchanged. However if it were a claim in contract and a claim for something less serious that did not involve their biggest asset they would have 15 years to pursue it. I am not convinced of the logic of that and I am not convinced that the complexity of Building Act cases is so different because of the multiplicity of parties. I agree that it is a relevant factor but there is already a built-in protection whereby it is for plaintiffs to prove their cases on the balance of probabilities. If they do not do so because the effluxion of time means that they are not able to bring to the court sufficiently good evidence to prove their case then they lose. So the other parties to that litigation have that level of protection in any event. 
Having said all of that I say that the Labour Party thinks this is a good bill. I thank the Attorney-General for the consideration he showed for some of the issues that Labour raised in respect of gradual process injuries and I commend the bill to the House.