Bolger v O'Brian
| Jurisdiction | Ireland |
| Judge | Hamilton C.J. |
| Judgment Date | 16 March 1999 |
| Neutral Citation | [1999] IESC 37 |
| Docket Number | [S.C. No. 181 of 1998] |
| Court | Supreme Court |
[1999] IESC 37
THE SUPREME COURT
Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Lynch J.
BETWEEN:
and
Citations:
STATUTE OF LIMITATIONS 1957 S11(2)(b)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(2)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(1)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(2)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(3)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(b)
WHITELY V MIN FOR DEFENCE 1997 2 ILRM 416
Synopsis
Practice and Procedure
Statutory limitation period; statutory interpretation; date of knowledge in respect of personal injury claims; plaintiff knew of injury but not significance of injury; trial judge held personal injury claim was not statute barred; whether claim statute barred; Statute of Limitations Acts, 1957–1991.
Held: Appeal allowed.
Bolger v. O'Brien - Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J., Lynch J. - 16/03/1999 - [1999] 2 IR 431 - [1999] 2 ILRM 372
While the trial judge had held that the full significance of the respondent's injuries were not brought home to him and that he did not understanding them until in or about October 1992, that was not the test in establishing whether the respondent's claim for damages for personal injuries was statute barred. The test was when he knew or ought reasonably have known from facts observable or ascertainable by him that he had suffered a significant injury. The trial judge did not appear to have had adequate regard to the evidence of the injuries sustained by the respondent, his knowledge of them at the time of and immediately subsequent to that date. The fact that the respondent did not realise the full significance of the effect of such injury was not of relevance once it was established that he knew that the injury was significant. The respondent's claim was statute barred by virtue of the provisions of section 3(1) of the Statute of Limitations (Amendment) Act 1991. The Supreme Court so held in granting the relief sought.
Judgment delivered on the 16th day of March 1999 by Hamilton C.J.
This is an appeal brought by the above named Defendants/Appellants (hereinafter referred to as the Appellants) against the judgment of the High Court (McGuinness J.) and the order made in pursuance thereof on the 24th day of April 1998 whereby it was ordered that the Plaintiff's claim was not statute barred pursuant to the provisions of the Statutes of Limitations 1957 and 1991.
The matter had come before the High Court in the following circumstances:-
(a) the above named Plaintiff, James Bolger, of 4 Barrack Street, Ballymore Eustace in the County of Kildare (hereinafter referred to as the Respondent) suffered personal injuries as a result of an accident which occurred in or about the 22nd day of March 1990 and which he alleges were caused by the negligence and breach of duty of the Appellants, their servants or agents;
(b) on the 27th day of October 1993 a plenary summons was issued on behalf of the Appellant claiming damages for such personal injuries, loss and damage against the Appellants herein;
(c) on the 13th day of September 1994 a statement of claim was delivered on behalf of the Respondent;
(d) on the 16th day of November 1994 a defence was delivered on behalf of the Appellants;
(e) in the said defence the Appellants pleaded at paragraph 1 thereof that:-
"the Plaintiff's claim is statute barred pursuant to the provisions of the Statute of Limitations Act, 1957."
(f) in the reply delivered on the 25th day of March 1996 on behalf of the Respondent, it was pleaded as follows:-
"Paragraph 2. The Defendant's claim in not barred by reason of the provisions of the Statute of Limitations Act, 1957and by the Statute of Limitations (Amendment) Act, 1991."
(g) the said reply contained the following further provision that:-
"the Plaintiff will further rely upon correspondence between the Plaintiff's solicitor and the Defendant's insurers, the Insurance Corporation of Ireland, to defeat the Defendant's defence of the Statute of Limitations."
The learned trial judge ruled against the Respondent on this issue and this Court is not concerned with such plea as the finding of the learned trial judge in this regard has not been appealed.
(h) By order dated the 20th day of January 1977 made by the President of the High Court, it was ordered that without further pleadings a preliminary issue be tried before a judge without a jury wherein the Defendants shall be Plaintiffs and the Plaintiff shall be Defendant the question at the trial of such issue to be whether or not the Plaintiff's claim is statute barred pursuant to the provisions of the Statute of Limitations 1957.
The relevant provisions of the Statute of Limitations 1957 and of the Statute of Limitations (Amendment) Act, 1991(hereinafter referred to as the 1991 Act) are as follows:-
Section 11(2)(b) of the 1957 Act provided as follows:-
"An action claiming damages for negligence, nuisance or breach of duty ........... where the damages claimed by the Plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued."
This was amended by Section 3(2) of the 1991 Act which provided as follows:-
"Section 11(2) of the Principal Act is hereby amended by the substitution of the following paragraph for paragraphs (a) and (b):"
" (a) Subject to paragraph (c) of this subsection and to section 3(1) of the Statute of Limitations (Amendment) Act, 1991, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued."
Section 3(1) of the Statute of Limitations (Amendment) Act, 1991provides that:-
"An action, other than one to which Section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty ......... shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured."
This subsection introduced a new factor in determining the period within which an action in respect of an injury may be brought viz. "the date of knowledge of the person injured".
The facts relevant to the date of knowledge of an injured person are set forth in Section 2 of the 1991 Act, which provides that:-
(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:
(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
(d) the identity of the defendant, and
(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire -
(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
(3) Notwithstanding subsection (2) of this section -
(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate to act on) that advice; and
(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury."
It is clear from the foregoing provisions that Sections 2 and 3 of the 1991 Act brought about a fundamental change in the law with regard to the limitation of actions in respect of personal injuries by the introduction of the fact of " the date of knowledge of the person injured" being a date from which the period of limitation on the bringing of actions for personal injuries ran. Were it not for these provisions, the Respondent's claim would have been statute barred by virtue of the provisions of Section 11(2)(b) of the 1957 Act.
However the Respondent claimed that he commenced proceedings against the Appellants within the period of three years from his " date of knowledge" within the meaning of Section 2(1) of the 1991 Act and this was the real issue for determination by the learned trial judge.
As appears from the judgment of the learned trial judge the Respondent, in the course of the proceedings before her relied on the provisions of Section 2(1)(b) of the 1991 Act, and the date upon which he first had knowledge that the injury sustained by him was significant.
In determining " the date of knowledge" of the Respondent of...
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