Boylan v Motor Distributors Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-HC 1592
• Docket Number: No. 281P/1992
• Court: High Court
• Date: 01 January 1994

BOYLAN v. MOTOR DISTRIBUTORS LTD

BETWEEN

PATRICIA BOYLAN

PLAINTIFF

AND

MOTOR DISTRIBUTORS LIMITED AND DAIMLER BENZ A.G.

DEFENDANTS

1993 WJSC-HC 1592

No. 281P/1992

THE HIGH COURT

Words & Phrases: reasonable steps

CEF

Subject Headings:

LIMITATION OF ACTIONS: cause of action

PROFESSIONS: solicitors

Citations:

STATUTE OF LIMITATIONS 1957 S11(2)(b)

ROAD TRAFFIC ACTS 1961 – 1984

ROAD TRAFFIC (CONSTRUCTION EQUIPMENT & USE OF VEHICLES) REGS 1963 SI 190/1963 ART 34(1)

ROAD TRAFFIC (CONSTRUCTION EQUIPMENT & USE OF VEHICLES) REGS 1963 SI 190/1963 ART 34(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3

STATUTE OF LIMITATIONS 1957 S11(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(1)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S4

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S6

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(c)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(d)

HEGARTY V O'LOUGHRAN & ANOR 1987 IR 135

LAW REFORM COMMISSION REPORT ON THE STATUTE OF LIMITATIONS & LATENT PERSONAL INJURIES 1987

STATUTE OF LIMITATIONS 1939 (UK)

STATUTE OF LIMITATIONS 1963 (UK)

STUTUTE OF LIMITATIONS 1975 (UK)

STATUTE OF LIMITATIONS 1980 (UK)

FOWELL V NATIONAL COAL BOARD 1986 TLR 289

MACGEE ON LIMITATION PERIODS 1990 ED 119 – 121 & 128 – 133

WALFOR V RICHARDS 1976 LLR 526

THOMPSON V BROWN 1981 1 WLR 744

PRESTON & NEWSOM LIMITATION OF ACTIONS 4ED 27

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(3)(a)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(2)(b)

ROAD TRAFFIC (CONSTRUCTION EQUIPMENT & USE OF VEHICLES) REGS 1963 SI 190/1963 ART 34

FIRMAN V ELLIS & ORS 1978 2 AER 851

O DOMHNAILL V MERRICK 1984 IR 151

BOWSTEAD ON AGENCY

IRISH LIFE ASSURANCE CO LTD V DUBLIN LAND SECURITIES LTD 1986 IR 332 1989 IR 253

HALSBURY'S LAWS 4ED V44 PARA 901

KELLY THE IRISH CONSTITUTION ART 34(3)(2)

1 Judgment of Mr. Justice Lynch delivered the 9th day of June 1993

2 In this case the Plaintiff claims damages for personal injuries sustained by her on the 7th of May, 1986 allegedly due to the negligence of the Defendants, Daimler Benz, in the design and manufacture and of the Defendants" Motor Distributors in the distribution of a Mercedes 307 D-type motor van with an alleged defective door closing mechanism.

3 The Plaintiff's action was not commenced until the 14th of January, 1992, some five years and eight months after her injury and the Defendants have pleaded in their joint defence that the Plaintiff's action is barred by virtue of Section 11(2)(b) of the Statute of Limitations 1957. By Order of the High Court made on consent on the 21st day of December, 1992 it was Ordered:-

"That without further pleadings a preliminary issue be tried before a Judge without a jury wherein the Defendants shall be Plaintiff and the Plaintiff Defendant, the question at the trial of such issue to be whether or not the Plaintiff's claim is barred by virtue of Section 11(2)(b) of the Statute of Limitations 1957".

4 The Preliminary Issue came on for hearing before me commencing on Thursday the 25th of March and continuing on Friday the 26th of March and concluding on Tuesday the 30th of March, 1993. I heard the oral evidence of the Plaintiff, of Mr. Peter Johnston, Engineer, of Mr. Brian Morton, the Plaintiff's Solicitor and of Mr. John Rochford, an experienced Litigation Solicitor. I also heard the submissions of Counsel for the Plaintiff and for the Defendants respectively and I reserved my Judgment which I now deliver.

THE FACTS

5 The Plaintiff is a married woman aged 51 years with two children. She resides with her family in Templeogue, Dublin 6W. At all material times she and her husband worked in a family firm called Radiant Plating Limited in Great Strand Street, Dublin 1. A regular customer for whom the family firm did chrome Plating was a company called Sanbra Fyffe Limited of Santry Avenue, Dublin 9.

6 On Wednesday the 7th of May, 1986 a Mercedes 307-D type van, the property of Sanbra Fyffe, arrived at Great Strand Street to deliver goods for plating by Radiant Plating. The Plaintiff assisted the driver as she was accustomed to do in unloading the goods. The driver thereafter went to enter the premises of Radiant Plating leaving the door of the van open. The Plaintiff feared that if the door were left open when nobody was in attendance at the van, other goods in the van might be stolen and so she went to close the door. The Plaintiff had never opened or closed the van door previously. The door in question was the door on the left or passenger side of the van and it opened by sliding backwards along the side of the van, having first moved outwards a few inches from a position flush with the side of the van. To close the door it had to be pushed towards the front of the van and when it would reach the appropriate position it would then move in again flush with the side of the van.

7 The Plaintiff attempted to close the door but it caught against a box or boxes which had been left by the driver of the van too close to the edge of the floor of the van. The Plaintiff pushed the box or boxes further in and again attempted to close the door gripping with her left hand the only handle which was at the rear end of the door and pushing also with her right hand at the back edge of the door. On this occasion the door closed but in doing so the Plaintiff's right ring finger got caught in some way and a piece was amputated from the top joint of the ring finger and her right little finger was also injured.

8 The Plaintiff did not know how exactly her injury had occurred. She thought that it might be that the boxes had somehow snagged the door again but she did not really believe that they could have had anything to do with the accident. The Plaintiff simply did not know how her injury had been caused except that it had been caused in some way or other by the door but she did not notice anything wrong with the door either before or after the accident and she was, of course, greatly shocked by the injury and in no state to observe or examine the door at that stage. I am satisfied on the probabilites that the accident happened in the manner suggested by Mr. Johnson, the engineer, in his report and in his evidence before me which tends to indicate a design fault in the hinge mechanism of the door.

9 The Plaintiff consulted her Solicitor on the 26th of May, 1986 and gave him instructions as to the circumstances of the accident as above set out. On the 27th of May, 1986 the Solicitor wrote a letter to Sanbra Fyffe claiming damages:-

"Due to the negligence, breach of duty and breach of statutory duty of you, your servant or agent, our client suffered a serious hand injury".

10 A High Court action against Sanbra Fyffe was commenced by the issue of a Plenary Summons on the 22nd of January, 1987 Record Number 1987 No. 558P and the Statement of Claim was delivered on the 27th of February, 1987 pleading particulars of negligence as follows:-

11 a "(a) Failed to employ any or any competent helpers in the unloading of the said van;

12 (b) Failed to maintain the said van adequately or at all;

13 (c) The doors of the said van were unsafe and dangerous;

14 (d) Failed to warn the Plaintiff of the nature of the said doors and the danger attached thereto;

15 (e) Providing a van which was dangerous and in particular the doors thereto;

16 (f) The Defendants were also in breach of the Road Traffic Acts and the Regulations and By-laws made thereunder".

17 In reply to a letter for Particulars the Plaintiff pleaded further on the 2nd of July, 1987 as follows:-

"2. The Defendant, its servants or agents were in breach of the Road Traffic Acts 1961to 1984inclusive and the Regulations and By-laws made thereunder on the occasion in question in that they:"

(a) Breached Article 34(1) of the Road Traffic (Construction, Equipment and Use of Vehicles) Regulations of 1963 Part 3 as amended.

(b) Breached Article 34(2) of the above Regulations".

18 The letter then went on to allege negligence in stacking the boxes in the van in such a way as to obstruct the door.

19 The Plaintiff in instructing her Solicitor was not in a position to provide him with a financial retainer. Her Solicitor practices in Firhouse, County Dublin and, so far as litigation is concerned, he acts mainly for Plaintiffs in personal injuries actions who are in the lower income group and he rarely obtains a financial retainer. The Solicitor had hoped that negotiations for a settlement would take place with the Solicitors for Sanbra Fyffe but instead a full defence was filed on behalf of Sanbra Fyffe on the 28th of October, 1987 and there appeared to be no prospect of a compromise. The Defence of Sanbra Fyffe did not suggest any design or other fault in the van or its doors for which they might claim to have no responsibility or alternatively in respect of which they might claim an indemnity against the manufacturers or distributors of the van.

20 A consultation was held with Senior Counsel in December 1987 and Senior Counsel advised that the van should be inspected by an engineer from whom a report should be obtained. On the 21st of December, 1987 the Plaintiff's Solicitor wrote to Sanbra Fyffe's Solicitor for permission to have the van inspected by an engineer. Many telephone calls intervened regarding the proposed inspection in which the identity of the actual van had to be ascertained and other problems ironed out. On the 12th of May, 1988 the Plaintiff's Solicitor wrote to Messrs. Semple Engineers requesting them to inspect the van and report and after further delays and reminders an inspection was ultimately had by Mr. Johnston, engineer, of Messrs, Semple on the 24th of August, 1988. Thereafter, despite reminders from the Solicitor to the engineer, there was delay in receiving the report from the engineer who was keeping a look out for other Similar type vans and who about December,...