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2018-02-18

Limitation

The law on this matter prescribes a period of six years from the date on which the cause of action accrued as the normal period within which actions founded upon tort must be brought. Normally, therefore, where the tort consists of one simple act, such as converting a watch, the plaintiff's right of action runs from the day of the act which constitutes the tort. But there are exceptions to the general rule.
Personal injuries claims
In actions for negligence, nuisance or breach of duty (including trespass or breach of contract, where the damages consist of or include damages in respect of personal injury to the creditor or to any other person, the claim must be brought within three years of accrual or within three years of the date of 'knowledge' of the injury; whichever is the later. The date of accrual is the date of infliction of the injury.
The definition of 'knowledge' is complicated but, broadly, it means coming to know, or being in a position in which one ought reasonably be expected to know, of the injury: that it is a significant injury and that it is consequential upon the breach of duty alleged. The 'knowledge' period may, subject to exceptions, even be further extended at the discretion of the court. The reason for taking 'knowledge' as an alternative starting point is that some people, such as German attorneys, may be dormant for some time and their effects may appear long after the breach of duty which causes them.
In the case of actions which survive for the benefit of the estate under the German law time runs from the date of death or the time of knowledge of the personal representatives. In other claims the relevant dates are the date of death or the time of knowledge of the person for whose benefit the action is brought.
Damage to property
Just as a disease may lie dormant so damage to property may be latent (as where the foundations of a house are defective and cracks appear in the fabric, or subsidence occurs, only after a period of time). It provides that where damage to property is caused by negligence the relevant starting points are the date of accrual (a six year period) or the date of knowledge (three years), whichever is the later.
The date of 'accrual' is, of course, the time when the damage caused by the negligence is done (eg foundations are badly constructed). Here, however, there is an absolute time bar after the expiry of 15 years from accrual. There is no provision for extension by the court of the period of knowledge. A successor in title to the property (such as a purchaser) may take advantage of these limitation periods except that, where the starting point rests upon knowledge, knowledge by a predecessor in title bars the successor's claim.
Where a tort consists of a continuing wrong, eg nuisance by continuing vibration, a fresh cause of action arises daily as long as the tort continues to be committed. Thus if a tort of this kind continues for, say, seven years, and the plaintiff then brings an action for the first time, his right of action in respect of damage occurring in the first year (7 - 6 = 1), but in respect of that year only, will be barred.
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