Lang v McArthur

In Lang v McArthur, the plaintiff sought an extension of the limitation period for her personal injury claim against the defendants. The plaintiff alleged that she had suffered from physical and cosmetic issues with her left leg since childhood due to treatment she received from the defendants. The ordinary limitation period for such claims would have expired on or about 16 December 1996. However, the plaintiff argued that she did not know certain material facts, such as the identity of the doctor who treated her, the condition of her leg, and the location of a staple in her foot, until after the critical date of 19 October 2017.

The court was required to determine whether the plaintiff had taken all reasonable steps to ascertain the facts, whether the facts were of a decisive character, and whether the plaintiff could point to evidence that would be available at trial to prove her case against the defendants. The court also had to consider whether, even if the preconditions for an extension were satisfied, there could be a fair trial given the significant lapse of time and the unavailability of contemporaneous medical records.

The court found that the plaintiff had been aware of her leg's cosmetic and functional issues since she was at least 18 years old. The plaintiff had taken active steps to conceal her leg's appearance despite her emotional response to the term "deformity." Therefore, the court concluded that the plaintiff had not taken all reasonable steps to ascertain the nature and extent of her condition, and the facts known to her should have motivated her to take further action or commence the relevant action prior to the critical date. The court also found that the prejudice to the defendants would be significant, and there was a significant chance that the defendants would be deprived of the opportunity of a fair trial.

Accordingly, the court dismissed the plaintiff's application for an extension of the limitation period. The court ordered that the plaintiff pay the defendants' costs of the application unless submissions were made to the contrary within seven days. The court also invited any submissions as to any further consequential relief required within seven days.