O'Brien v Keogh

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 28 July 1972
• Docket Number: [1968. No. 215 P.]
• Date: 28 July 1972

O'Brien v. Keogh

THOMAS O'BRIEN, an Infant, suing by his mother and next friend, Mary O'Brien

Plaintiff

and

MICHAEL KEOGH and JOSEPH O'BRIEN

Defendants.

[1968. No. 215 P.]

Supreme Court

Constitution - Statute - Validity - Limitation of actions - Disability - Infant - Infant in custody of parent having lesser period in which to sue than infant not in such custody - Equality before the law - Personal rights - Statute of Limitations, 1957 (No. 6) s. 49, sub-s. 2 (a) (ii) - Constitution of Ireland, 1937, Article 40, ss. 1 and 3.

In regard to actions for damages for negligence where the damages claimed include damages for personal injuries, it is enacted by s. 11, sub-s. 2(b), of the Statute of Limitations, 1957, that (subject to s. 49) an action shall not be brought after three years from the date on which the right of action accrued. Sub-paragraph (i) of sub-s. 2 (a)of s. 49 enacts that where a person is under a disability (including infancy) on the date when such right of action accrued to him then, subject to sub-paragraph (ii), the action may be brought at any time before the expiration of three years from the date when he ceased to be under the disability or died, whichever first occurs. Subparagraph (ii) of the same sub-section states that s. 49 of the Act of 1957 shall not apply unless the plaintiff proves that the person under the disability was not in the custody of a parent when the right of action accrued.

On the 8th September, 1963, the infant plaintiff suffered personal injuries as the result of a collision on that date between the motor car of his father (the second defendant), in which the plaintiff was a passenger, and a motor car belonging to the first defendant. On that date the plaintiff was in the custody of his parents. On the 25th January, 1968, the plaintiff instituted an action in the High Court against the defendants claiming damages for his personal injuries on the ground that each defendant had driven his car negligently on the occasion of the collision. The defendants pleaded that the plaintiff's cause of action was statute-barred and the plaintiff raised the issue of the validity of s. 49, sub-s. 2 (a)(ii), of the Act of 1957 having regard to the provisions of the Constitution. An issue was set down for hearing as a preliminary point of law and, having heard submissions on behalf of the parties and of the Attorney General, it was

Held by O'Keeffe P. that the Act of 1957, in differentiating between adults and infants and between infants in the custody of a parent and those who were not in such custody, was not in conflict with the provisions of Article 40, s. 1, of the Constitution relating to equality before the law; and that the defence founded on the statute must succeed.

On appeal by the plaintiff it was

Held by the Supreme Court, in allowing the appeal, 1, that the terms of s. 49, sub-s. 2(a)(ii), of the Act of 1957 were not in conflict with the provisions relating to equality before the law contained in s. 1 of Article 40 of the Constitution.

2. That the plaintiff's right of action was one of the "personal rights" of a citizen within the meaning of s. 3, sub-s. 1, of Article 40.

Ryan v. The Attorney General [1965] I.R. 294 considered.

Macauley v. Minister for Posts & Telegraphs [1966] I.R. 345approved.

3. That sub-paragraph (ii) of sub-s. 2 (a) of s. 49 was invalid having regard to the provisions of the Constitution because it failed to protect and vindicate the property rights of the plaintiff contrary to the guarantee contained in s. 3, sub-s. 2, of Article 40 of the Constitution; and that the plaintiff's action was not statute-barred.

Trial of point of law.

The plaintiff was born on the 1st September, 1952; he was injured on the 8th September, 1963, when a motor car driven by his father, the second defendant, was in collision with a motor car belonging to the first defendant. At the time of the collision the plaintiff was a passenger in his father's car and was in the custody of his parents. On the 25th January, 1968, the plaintiff by his next friend issued a plenary summons in which he claimed damages for the negligence of the defendants in causing his injuries. The plaintiff delivered a separate statement of his claim against each defendant, and each defendant delivered a separate defence in which he pleaded that the plaintiff's claim was statute-barred by the provisions of s. 49, sub-s. 2(a)(ii), of the Statute of Limitations, 1957.

Section 11, sub-s. 2(b), of the Statute of Limitations, 1957, provides that (subject to s. 49) an action claiming damages for negligence in which the damages claimed include damages in respect of personal injuries shall not be brought after the expiration of three years from the date on which the cause of action accrued.

Section 49, sub-s. 1(a), of the Act of 1957 provides as follows:— "(1) (a) If, on the date when any right of action accrued for which a period of limitation is fixed by this Act, the person to whom it accrued was under a disability, the action may, subject to the subsequent provisions of this section, be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired." Section 48, sub-s. 1, states that for the purposes of the Act of 1957 a person shall be under a disability while he is an infant.

Section 49, sub-s. 2, of the Act of 1957 provides as follows:—

"(2)(a) In the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) 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—

• (i) subsection (1) of this section shall have effect as if for the words 'six years' there were substituted the words 'three years', and

• (ii) this section shall not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent.

(b) For the purposes of paragraph (a) of this subsection, 'parent' in relation to a person under a disability means his father, mother, grandfather, grandmother, stepfather or stepmother, notwithstanding that the relationship is illegitimate or in consequence of adoption under the Adoption Act, 1952 (No. 25 of 1952)."

Sub-section 2(a)(ii) of s. 49 provided an extended limitation period within which a person under a disability, who was not in the custody of a parent, could bring an action claiming damages in respect of personal injuries caused by negligence; the same period is provided by s. 127 of the Succession Act, 1965, without reference to parental custody, for a claim by such person to a share in the estate of a deceased person.

On the 10th March, 1969, the High Court (Murnaghan J.) made an order pursuant to Order 25 directing that the issue based on s. 49, sub-s. 2 (a) (ii), of the Act of 1957 should be set down for trial by a judge without a jury. On that date the issue based on the statute resulted from an allegation by the plaintiff that he had not been in the custody of a parent on the 8th September, 1963, and from an allegation...