O'Brien v Manufacturing Engineering Company Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1974
• Docket Number: [1966. No. 601 P.]
• Date: 01 January 1974

Supreme Court

[1966. No. 601 P.]

O'Brien v. Manufacturing Engineering Co. Ltd.

GERALD O'BRIEN

Plaintiff

and

MANUFACTURING ENGINEERING COMPANY LIMITED

Defendant.

Constitution - Statute - Validity - Workman - Accident causing injuries - Statutory right to compensation - Statute preserving right of action at common law - Alternative remedies - Exercise of option - Limitation of actions - Reduced period allowed for common-law action - Equality before the law - Personal rights - Workmen's Compensation Act, 1934 (No. 9),s. 60 - Workmen's Compensation (Amendment) Act, 1953 (No.25), s. 6 - Constitution of Ireland, 1937, Articles 40, 45, 50.

Plenary Summons.

On the 12th December, 1963, the plaintiff was injured in an accident which occurred while he was employed by the defendants as a fitter-welder at their premises at Richmond Road in the City of Dublin. On the 7th March, 1966, the plaintiff issued a plenary summons in the High Court claiming damages for the personal injuries suffered by him in the accident and which had been caused, he claimed, by the negligence and breach of statutory duty of the defendants. The plaintiff delivered a statement of his claim on the 21st December, 1967, and the defendants delivered a defence on the 2nd January, 1968. At paragraph 6 of their defence the defendants pleaded that the plaintiff, during the four weeks in which he was incapacitated, had claimed from the defendants and had been paid by them each week the sum of £4.10.0d. as compensation pursuant to the provisions of the Workmen's Compensation Acts, 1934-1955, and that the plaintiff's action was not maintainable as it had not been commenced within the time limit specified in s. 60 of the Workmen's Compensation Act, 1934, as amended by s. 6, sub-s. 1, of the Workmen's Compensation (Amendment) Act, 1953.

On the 20th May, 1968, the plaintiff delivered a reply in which he pleaded that, if his action had not been brought within the time allowed, the provisions of the Acts of 1934 and 1953 were null and void because they were repugnant to the Constitution. On the 7th March, 1969, the High Court (Murnaghan J.) ordered, by consent of the parties, that the following two issues be tried before a judge without a jury:—

"1. Whether the proceedings herein are not maintainable against the defendants as not having been commenced within the time limited for commencing the same by section 60 of the Workmen's Compensation Act, 1934, as amended by section 6 (1) (a)of the Workmen's Compensation Act, 1953.

2. Whether the provisions of section 60 of the Workmen's Compensation Act, 1934, as amended by section 6 (1) (a) of the Workmen's Compensation Act, 1953, or alternatively the said Acts and each of them are null and void and of no effect in that they and the enactment thereof are and were repugnant to the Constitution, in particular to Articles 15, 4, 1; 15, 4, 2; and 40, 1, thereof."

Sub-sections 1, 2 and 6 of s. 60 of the Workmen's Compensation Act, 1934, provided as follows:—

"(1) Where an injury to a workman is caused by the personal negligence or wilful act of his employer or of some person for whose act or default such employer is liable, nothing in this Act shall affect any civil liability of such employer, but in that ease such workman may, at his option, either claim compensation under this Act, or take proceedings independently of this Act.

(2) Nothing in the foregoing sub-section shall be construed to make an employer liable to pay compensation for injury to a workman by accident arising out of and in the course of his employment both independently of and also under this Act, or to make an employer liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid."

"(6) In a case to which this section applies —

• (a) acceptance by the workman of compensation under this Act, or of any payment purporting to be by way of compensation thereunder, or of any sum paid under an agreement duly registered under Part VI of this Act, shall not prevent the workman from maintaining proceedings independently of this Act, provided that the proceedings are instituted within twelve months from the occurrence of the accident, or, if the workman satisfies the Court in which the proceedings are instituted that there were substantial grounds for his not having instituted the proceedings within the said twelve months, within twenty-four months from the occurrence of the accident, and

• (b) if the proceedings are so instituted and it is determined therein, or on appeal, that the injury is one for which the employer is liable in the proceedings, the Court in which the proceedings are heard, or if the determination is the determination (on appeal by either party) of an appellate tribunal, then such appellate tribunal, shall deduct from the damages, costs and expenses any such compensation, payment or sum which the workman has received and, where there have been proceedings for the recovery of compensation under this Act, any costs and expenses therein of the employer and any costs and expenses therein of the workman which have been borne by the employer."

Sub-section 6 was added to s. 60 of the Act of 1934 by the provisions of s. 6, sub-s. 1, of the Workmen's Compensation (Amendment) Act, 1953.

The Workmen's Compensation Acts, 1934-1955, and Part V of the Civil Liability Act, 1961, were repealed (subject to a proviso) by s. 40 of the Social Welfare (Occupational Injuries) Act, 1966.

The first issue was tried before Pringle J. on the 15th and 16th May, 1969, when judgment was reserved. Judgment on this issue was delivered by Pringle J. on the 27th June. Having reviewed the authorities, the trial judge came to the conclusion on the evidence that the plaintiff knew that the payments which he had received from the defendants were compensation under the Workmen's Compensation Acts, and the trial judge held as a fact that the plaintiff had been paid and had accepted compensation under those Acts as such. The trial judge held that the plaintiff had not exercised the option mentioned in s. 60, sub-s. 1, of the Act of 1934 as the trial judge was not satisfied that the plaintiff had ever known that he had alternative claims. The trial judge held that the plaintiff's claim was barred by s. 60 of the Act of 1934, assuming that section to be in accordance with the Constitution.

The second issue was tried before Pringle J. on the 3rd and 4th July, 1969. The plaintiff gave notice to the Attorney General pursuant to Order 60 of the Rules of the Superior Courts. Counsel for the Attorney General did not attend during the hearing of the first issue but attended during the hearing of the second issue.

The preamble to the sections contained in Article 45 of the Constitution states:— "The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution."

The defendant appealed to the Supreme Court from the judgments of Pringle J. and the order made pursuant to those judgments.

Article 40, s. 1, of the Constitution provides:— "1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

Article 40, s. 3, of the Constitution provides:—

"1 The State guarantees in its laws to respect, and, as tar as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

Sub-section 6 of s. 60 of the Act of 193471 was added to that section by s. 6, sub-s. 1, of the Act of 1953. Such addition having been effected after the Constitution came into force, the decision of the Supreme Court upon the validity of s. 6, sub-s. 1, of the Act of 1953 having regard

to the provisions of the Constitution was delivered by one of the judges of the Supreme Court (Walsh J.) in accordance with Article 34, s. 4, sub-s. 5, of the Constitution.72

The Workmen's Compensation Act, 1934, made an employer liable to pay certain weekly sums of money to his workman if the latter suffered personal injuries by an accident arising out of and in the course of his employment, and if an order to that effect was made under the Act. Sub-section 1 of s. 60 of the Act of 1934 provided that nothing in the Act should affect any civil liability of the employer where an injury to his workman was caused by the negligence of the employer but that, in that case, the workman at his option might either claim compensation under the Act of 1934 or institute an action independently of that Act. Sub-section 2 of s. 60 enacted that nothing in sub-s. 1 should be construed to make an employer liable to pay compensation both independently of and also under the Act of 1934. Sub-section 6 of s. 60 provided that the acceptance by a workman of payments made in accordance with the Act of 1934 should not prevent the workman from maintaining an action at common law provided that the action was instituted within 12 months from the date of the accident or, if there were substantial grounds for not having brought such action within that period, within 24 months from the date of the accident. Apart from the Act of 1934, an action claiming damages for personal injuries resulting from negligence was barred under the Statute of Limitations, 1957, after three years from the date when the cause of action accrued. Sub-section 6 had been added to s. 60 of the Act of 1934 by s. 6, sub-s. 1, of the Workmen's Compensation (Amendment) Act...