Acts Not Actionable without Special Damage: Section 23

Some wrongs are complete the moment they are done; the law presumes damage. Others give no cause of action until the plaintiff actually suffers a specific injury. It would be unjust for time to run against a claim that does not yet exist. Section 23 of the Limitation Act therefore provides that, for such acts, limitation runs from the time the injury results. This note explains the section, the distinction between torts actionable per se and those requiring special damage, the tort articles of the Schedule, and examples.

1. The Provision

Figure 1: How section 23 operates

• Text, s.23. In a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results from it, the period of limitation is computed from the time when the injury results.
• Rationale. Limitation cannot run before a cause of action exists. Where damage is an essential element of the wrong, the cause of action is complete only when the damage occurs.
• Suits for compensation. The section applies to suits for compensation, not to suits for an injunction or declaration.

2. Actionable Per Se and Special Damage

Figure 2: Which torts need proof of damage

• Actionable per se. Torts such as trespass and libel are actionable without proof of damage. Time runs from the wrongful act, and s.23 has no role.
• Special damage needed. Slander, apart from the categories actionable per se, withdrawal of support causing subsidence, and a private action for public nuisance require proof of specific injury. Time runs from when the injury results.
• Negligence. Damage is the gist of negligence, so a cause of action in negligence arises only when damage is suffered; this follows the same logic.
• Subsidence. Where a neighbour's excavation causes no immediate harm but the land later subsides, time runs from the subsidence, and each fresh subsidence may give a fresh cause of action.

3. The Tort Articles

Figure 3: Selected articles on torts

• Short periods. Many personal torts carry one year: false imprisonment, malicious prosecution, libel and slander. Article 76 itself builds in the s.23 rule for slander not actionable in itself.
• Three years. Obstructing a way or watercourse (Article 85), diverting a watercourse (Article 86), trespass on immovable property (Article 87), and infringing copyright or another exclusive privilege (Article 88)
• Residuary. Torts with no specific article fall under Article 113: three years from when the right to sue accrues, which for a tort requiring damage is when the damage results.

4. Related Sections

• Section 22. If the wrong continues, a fresh period begins at every moment it continues (Topic 19)
• Section 17. If the defendant's fraud conceals the claim, time runs from discovery (Topic 14)
• Section 23. If the act is lawful until damage results, time runs from the damage. The three sections each fix a later starting point for different reasons.

5. Frequently Asked Questions

When does limitation start for slander?

Under Article 76, the period is one year from when the words are spoken. If the words are not actionable in themselves, it runs from when the special damage complained of results, which is the s.23 principle applied to slander.

Does section 23 apply to a suit for an injunction?

No. Section 23 is confined to suits for compensation for an act that gives no cause of action until specific injury results. A suit for an injunction is governed by the article applicable to it, often Article 113.

What is the limitation for a suit for compensation for trespass on land?

Three years from the date of the trespass under Article 87. Trespass is actionable per se, so s.23 does not postpone the start, though a continuing trespass may attract s.22.

6. Related Topics

• Topic 19: Continuing Breaches and Wrongs, Section 22. When the wrong itself continues.
• Topic 28: Schedule, Division I: Suits. The tort articles in context.