Limitation to bring action and new law

[Precedent2]

Just a general question.

Can a plaintiff rely on the law as it stands in 2018 even though the complaint for which the plaintiff wants to sue occurred in 2012? Say there was no principle on which they want to rely in 2012, but there is now in 2018, can they be advantaged by the development of the law in that time or must they rely on the law as it stood in 2012, only?

Cheers,
P2

 

[Rob Legat - SBPL]

Generally you can't rely on the current version of the law unless it has retrospective effect. There's a default prohibition against that happening, so if a law does have retrospective effect it will usually specifically state that it does. There's a good reason for this position: Imagine you drive on the highway at 100km/h every day in accordance with the posted speed limit. What if tomorrow the speed limit was changed to 80km/h, and the cops came and gave you a speeding ticket for every day that you did 100km/h on it for the last few years?

 

[TKC]

Thank you for your reply Rob, I see where you're coming from and I wasn't aware of 'retrospective effect' but I believe that is statutory in nature. What about the common law?

For instance, if we were to look at Rogers v Whitaker [1992] HCA 58 -- as you might be aware from your law studies -- it stands as authority for a Medical practitioner having a 'duty to warn of possibility of adverse effect of proposed treatment' or put simply it is a duty to give a risk warning for the proposed treatment. Evidently, in 1986 a Medical practitioner was not liable for the harm caused by a highly risky procedure in terms of not having given the patient a risk warning on which the patient could have formed their decision. Essentially, the patient did not argue the Rogers v Whitaker principle for themselves in the way counsel for Mrs Maree Lynette Whitaker did, and so there was no cause-of-action, because it was not necessarily negligence and there was no duty to warn that the procedure was highly risky. End of story.

Fast forward to 1992, the plaintiff is still within the limitation period to bring their civil cause-of-action, and now they have an opportunity to rely on said principle because they were never given such a risk warning in 1986.

Is this possible?

 

[Rob Legat - SBPL]

Yes, that is different, but you would still need to prove that complaint was appropriate at the time the event occurred. If the common law was unresolved or untested at the time, as in there was no 'principle' as you say, then it doesn't mean that there was no principle in place at the time; it just means that it hadn't been realised.

The matter is somewhat different if the common law was resolved, but then subsequently changed.

In either case, you do need to be careful of the limitations legislation which applies in your jurisdiction. The time periods are different for different types of claim. For example, using the Queensland time frames: In most contract cases you have six years from when the cause of action arose in which to take action. There are exceptions, but these are technical and limited. In defamation, you have one year from the date of publication. Personal injury is generally three years, but if the action is due to child sexual abuse there is no time limit.

 

[TKC]

You make a good point Rob -- it brings me back to the idea that the common law is like an onion, in that it has always existed, it's just that it takes time to peel back the layers and as you say realise the principles. The limitations legislation is not really at issue since this was a general question.