Breda Carberry v Harry Mckenna and Another

• Jurisdiction: Ireland
• Judge: MR. JUSTICE FEENEY
• Judgment Date: 23 January 2012
• Neutral Citation: [2012] JILL-IEHC 012301
• Court: High Court
• Date: 23 January 2012

[2012] JILL-IEHC 012301

THE HIGH COURT

4853 P/2007

Carberry (deceased) v McKenna & Motor Insurers Bureau of Ireland (MIBI)

BETWEEN

BREDA CARBERRY AS LEGAL REPRESENTATIVE OF GERRY CARBERRY DECEASED

AND

HARRY McKENNA AND THE MOTOR INSURERS' BUREAU OF IRELAND

RSC O.28 r1

CORR v IBC VEHICLES LTD 2008 1 AC 8842008 2 WLR 499 2008 2 AER 943

CIVIL LIABILITY ACT 1961 S7(1)

CIVIL LIABILITY ACT 1961 S7(2)

CIVIL LIABILITY ACT 1961 S7

DOHERTY v BOWATERS IRISH WALLBOARD MILLS LTD 1968 IR 277

GAMMELL v WILSON & ORS 1982 AC 271981 2 WLR 248 1981 1 AER 578

FATAL ACCIDENTS ACT 1976 (UK)

CIVIL LIABILITY ACT 1961 PART IV

LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934 (UK)

CIVIL LIABILITY ACT 1961 S8

CIVIL LIABILITY ACT 1961 S9

CIVIL LIABILITY ACT 1961 S8(2)

KROPS v IRISH FORESTRY BOARD LTD & RYAN 1995 2 IR 1131995 2 ILRM 290 1995/9/2649

WELDON v NEAL 1887 19 QBD 394

CROKE v WATERFORD CRYSTAL LTD & IRISH PENSIONS TRUST LTD 2005 2 IR 3832005 1 ILRM 321 2004/11/2418 2004 IESC 97

ALLEN v IRISH HOLEMASTERS LTD 2008 1 ILRM 81 2007/3/594 2007 IESC 33

NEWBY v SHARPE 1878 8 CH D 39

SMYTH v TUNNEY & ORS 2009 3 IR 323 2009/53/13412 2009 IESC 5

CIVIL LIABILITY ACT 1961 PART II

FARRELL v COFFEY UNREP DUNNE 4.12.2009 2009/20/5061 2009 IEHC 537

PRACTICE & PROCEDURE

Pleadings

New cause of action - Defeat Statute - Road traffic accident - Defendant deceased - Claim that plaintiff committed suicide as result of road traffic accident - Whether plaintiff's estate entitled to pursue claim that death came about as result of injuries sustained - Whether plaintiff's estate could claim damages for loss of earnings due to "lost years" - Limitation of actions - Fatal injuries claim by family of deceased plaintiff - Whether new and separate fatal injuries claim would be statute barred - Whether amendment of pleadings would prevent defendant relying on defence that proceedings statute barred - Whether court could permit amendment of pleadings to allow claim which would otherwise be statute barred - Jurisdiction - Test to be applied - Whether just to allow amendment - Whether amendment necessary for determining real questions in controversy between parties - Whether plaintiff seeking to rely on same or substantially same facts as originally pleaded - Whether amendment altered nature or essence of claim - Whether injuries necessarily required updating in personal injuries proceedings - Whether applying absolute bar on new causes of action would result in injustice - Whether just and fair to permit amendments - Croke v Waterford Crystal Ltd [2004] IESC 97, [2005] 2 IR 383, Allen v Irish Holemasters Ltd [2007] IESC 33 (Unrep, SC, 27/7/2007) and Smyth v Tunney [2009] IESC 5, [2009] 3 IR 322 applied - Krops v The Irish Forestry Board Ltd [1995] 2 IR 113 followed - Doherty v Bowaters Irish Wallboard Mills Ltd [1968] IR 277, Gammell v Wilson [1982] AC 27 and Weldon v Neal (1887) 19 QBD 394 considered - Farrell v Coffey [2009] IEHC 537 (Unrep, Dunne J, 1/12/2009) distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O28, r1 - Civil Liability Act 1961 (No 41), ss 7, 8 & 9, parts II & IV - Leave to amend granted (2007/4853P - Feeney J - 23/1/2012)

Carberry v McKenna

1 EX TEMPORE JUDGMENT OF MR. JUSTICE FEENEY delivered on the 23rd day of January, 2012

2 The plaintiff brings a motion before this Court seeking, one, an order amending the personal injuries summons dated the 29th of June 2007. The plaintiff relies on Order 28 Rule 1. Further, or in the alternative, the plaintiff claims an order pursuant to the Rules of the Superior Courts extending the time for the delivery of an amended endorsement of claim on behalf of the plaintiff herein. The proposed amended summons was slightly altered from the one exhibited, and the final proposed summons was handed into court at the hearing of the motion and was annexed to the submissions of the plaintiff.

3 Order 28 Rule 1 provides: "The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

4 The facts giving rise to these proceedings are relevant to this application and can be briefly encapsulated in the following outline. On the 2nd of July 2005, the late Gerry Carberry was a passenger in a car driven by Kevin McLoughlin, at Ballyminion, County Longford. An approaching vehicle driven by William McKenna went on to its incorrect side of the road and collided with the vehicle in which Gerry Carberry was travelling. The severe impact resulted in Gerry Carberry suffering severe injuries. William McKenna, the driver of the other car, was killed in the collision. An issue arose as to whether the driving of the late William McKenna was covered by insurance, and proceedings were brought by Gerry Carberry against both Harry McKenna, as legal personal representative of the estate of William McKenna, deceased, and the Motor Insurers Bureau of Ireland. A personal injuries summons was issued, dated the 29th of June 2007. It is that summons which is sought to be amended. After the summons was issued, Gerry Carberry died.

5 The late Gerry Carberry was a married man, who worked as a labourer, who was born on the 19th of June 1967. In the collision, he suffered a head injury and an injury to his left eye, involving the almost total effective loss of sight in that eye. He also fractured his ribs and had an injury to his right leg and ankle. He developed symptoms of a post-traumatic stress disorder, which included aggravation of a pre-accident depression. He also suffered hearing loss and tinnitus. In August 2008, he suffered a visual disturbance in his remaining working eye, namely his right eye.

6 It is indicated that on the 6th of July 2009 Gerry Carberry was brought to the garda barracks in Longford as he had told the gardaí he wanted to drown himself in the Shannon at Termonbarry. Three months later, Gerry Carberry died on the 8th of October 2009 from smoke inhalation, which he suffered in a house fire. It is claimed that evidence establishes that the fire was started deliberately by Gerry Carberry.

7 On the 17th of November 2010, letters of administration intestate to the estate of Gerry Carberry were granted to Breda Carberry, his widow. By order of the 17th of January 2011 Breda Carberry was granted liberty to proceed with these proceedings as legal representative of Gerry Carberry, deceased. It is asserted that if the plaintiff in these proceedings can establish as a matter of fact that the death of Gerry Carberry was by suicide and it came about as a result of the injuries, physical and mental, he suffered in the accident on the 2nd of July 2005, that the plaintiff is legally entitled to pursue a claim for damages arising out of his death, which was caused by injuries and sequelae which he suffered in the accident.

8 The plaintiff, on the authority of the House of Lords in Corr v. IBC Vehicles [2008] 1 AC 884, relies on that authority. Counsel for the defendants has reserved the right to argue that the death of Gerry Carberry was not caused by injuries he received in the accident. There was no dispute on the propositions of law contained in the decision of the House of Lords in Corr v. IBC Vehicles.

9 The amended claims now sought to be pursued are set out in three separate headings. There are three relevant areas of claim, namely, one, a claim by the legal personal representative of Gerry Carberry for special damages incurred during his lifetime; two, a claim by the legal personal representatives of Gerry Carberry on behalf of his estate for the net value of earnings which he would have received from the date of his death to the date upon which he would have reached the age of 65, after due allowance is made for a deduction representing the probable living expenses of Gerry Carberry during those years; and three, a claim on the personal representative's own behalf and on behalf of the other members of the family as defined in law of the late Gerry Carberry, deceased, for damages arising out of his death.

10 The claim under one is a claim for special damages, on the papers before me, totalling slightly less than €155,000, incurred during the lifetime of Gerry Carberry, deceased. That claim includes a claim of €132,600 for loss of earnings from the date of the accident to the date of Gerry Carberry's death. This claim for special damages survives for the benefit of his estate by virtue of section 7 subsection (1) of the Civil Liability Act 1961. Gerry Carberry's claim for general damages does not survive for the benefit of his estate by virtue of the provisions of section 7 subsection (2) of the Civil Liability Act 1961. There is no dispute about the claim at one for the period from the accident to the date of the death of Gerry Carberry.

11 Claim number two is a claim on behalf of the estate for the net loss of earnings during the so-called lost years, that is to the age of 65 from the date of death. The claim as sought to be made is set out in the amended personal injury summons in the following terms: "The plaintiff is legal personal representative of the said Gerry Carberry further claims on behalf of his estate the net value of the earnings he would have received from his employment from the date of his death to the date upon which he would have reached the age of 65 years after deduction of a sum representing his probable personal living expenses during those years."

12 This claim survives for the benefit of the estate of Gerry Carberry, deceased, pursuant to the provisions of section 7 of the Civil Liability Act 1961. The plaintiff, in making this claim, relies upon the...