Cahill v Sutton

JudgeHenchy J.,O'HIGGINS C.J.
Judgment Date09 July 1980
Neutral Citation1980 WJSC-SC 694
CourtSupreme Court
Docket Number[1972 No. 1516 P]
Date09 July 1980

1980 WJSC-SC 694

O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.




JUDGMENT delivered the 9th day of July 1980by O'HIGGINS C.J.


The relevant facts which form the background to these proceedings are fully set out in the Judgment which Mr. Justice Henchy is about to deliver. I do not, therefore, propose to set out these facts in any detail. It is, I think, sufficient to say that the Plaintiff's appeal first came before this Court as an appeal against the ruling by the President of the High Court on a preliminary issue raised on the pleadings in the Plaintiff's action against the Defendant. This ruling was to the effect that Section 11(2)(b) of the Statute of Limitations 1957 was not invalid having regard to the provisions of the Constitution. This Section had been raised as a defence to the Plaintiff's action on the basis that she had not commenced her action within the time permitted by the Section. In reply the Plaintiffcontended that the subsection was invalid having regard to the provisions of the Constitution and a preliminary question was, on this account, raised before the President. Both before the President and in this Court the case made for the alleged invalidity of the subsection rested on the absence of any saver to the time bar therein imposed, for a situation in which the would-be Plaintiff did not know and could not possibly have known of the accrual of the right of action within the permitted period. It transpire however, on an examination of the facts of this case that the Plaintiff, at all material times, was aware of her rights and of the alleged wrong of the Defendant and could, had she chosen to do so, have initiated this action within the time permitted by the subsection. It followed, therefore, that even if the subsection had been so framed as to incorporate the suggested saver, this would have availed the Plaintiff nothing. In the result the alleged invalidity of the subsection infringed no right of the Plaintiff nor caused her any prejudice. For this reason this Court felt bound to consider in thefirstinstance, whether the Plaintiff had, in the circumstances, a sufficient standing to raise this question of the validity of the subsection. I am satisfied that she had not and in this respect I fully agree and endorse the Judgment about to be delivered by Mr. Justice Henchy.


This Court's jurisdiction, and that of the High Court, to decide questions concerning the validity of laws passed by the Oireachtas is essential to the preservation and proper functioning of the Constitution itself. Without the exercise of such a jurisdiction, Constitutional checks and balances would cease to operate and those rights and liberties which are both the heritage and the mark of free men would be endangered. The jurisdiction should, however, be exercised for the purpose for which it was conferred - in protection of the Constitution and of the rights and liberties thereby conferred. Where the person who questions the validity of a law can point to no right of his which has by reason of the alleged invalidity, been broken endangered or threatened, then, if nothing more can be advanced, the Courts should notentertain a question so raised. To do so would be to make of the Courts the happy hunting ground of the busy- body and the crank. Worse still, it would result in a jurisdiction which ought to be prized as the citizens shield and protection, becoming debased and devalued. This is not to say, however, that if those whose rights are affected cannot act or speak for themselves the Courts should refuse to hear one who seeks to speak or act for them, even if his own rights are not affected. Such exceptional cases, hopefully rare, must, of course, be entertained.


I agree that this Court should make the Order suggested by Mr. JusticeHenchy.


Judgment of Henchy J.delivered on the 9th July 1980 [nem Diss]


Dr. Reginald G. Sutton was a consultant gynaecologist practising in Cork. In March 1968 the plaintiff consulted him for diagnosis and treatment of a gynaecological complaint. Having given her a medical examination, he prescribed certain tablets. She says she was told to take eight of those tablets a day. Her complaint is that immediately after commencing that course of treatment, she began to suffer illness and disability. She still complains of illness and disability. In her view it is all due to the course of tablets prescribed by Dr.Sutton.


In 1972, four years after she first began to sufferthe ill-effects complained of, the plaintiff instituted the present proceedings against Dr. Sutton in the High Court. In those proceedings she claimed damages for negligence and breach of contract. The gist of the claim as pleaded was that in breach of his obligation, both under contract and in tort, to use due professional knowledge, skill and care, Dr. Sutton inexpertly and negligently prescribed incorrect and harmful medication. It is alleged that he prescribed the wrong tablets, that the dosage of eight tablets a day was excessive and harmful, and that Dr. Sutton failed to take the necessary corrective or curative action to counteract the damage, caused by those drugs.


The defence, which was delivered in January 1973, as well as denying any lack of professional skill or care on the part of Dr. Sutton, or that the alleged ill-health or incapacity resulted from the prescribed medication, pleaded that the plaintiffs claim is barred by s. 11(2)(b) of the Statute of Limitations, 1957.


Pursuant to a notice of motion served by Dr. Sutton,the matter came before Gannon J. in the High Court in October 1974, when he ordered that certain issues preliminary to the trial of the action should be determined by a Judge sitting without a jury. Amongst those issues were whether the claim lay in contract or in tort and whether it was barred by s. 11(2)(b) of the Statute of Limitations, 1957. The trial of those issues came before Hamilton J. in February 1975 when, the plaintiff having waived her claim in tort, it was ruled that the action, being now one in contract, was barred by s. 11(2)(b).


The plaintiff then appealed to this Court against the ruling that the action was statute barred. When the appeal came before this Court in January 1976, counsel for the plaintiff having applied for liberty to raise the question of the constitutionality of s. 11(2)(b), the Court gave liberty to the plaintiff to amend her Reply by pleading the constitutional issue and to serve notice on the Attorney General in accordance with O. 60, r. 1, of the Rules of the Superior Courts. The order of Gannon J.directing the preliminary issues to be tried was amended "by adding the constitutional issue; and the trial of that issue was remitted to the High Court. The hearing of the appeal was adjourned pending the determination of that issue.


The issue as to whether s. 11(2)(b) of the Statute of Limitations, 1957 is unconstitutional came before Finlay P. in January 1976. S. 11(2)(b) provides as follows:

"An action claiming 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, shall not be brought after the expiration of three years from the date on which the cause of actionaccrued."


In the present case, as is agreed, since the plaintiff has abandoned the claim in tort, the claim now is for damages for personal injuries to the plaintiff arising from an alleged breach of a contractual duty. S.11(2)(b) imposes an absolute bar on the bringing of such an action after the expiration of three years from the date when the cause of action accrued. The plaintiff's cause of action accrued in 1968. Although she became aware in 1968 of the breach of contract which is now the basis of her claim, the action was not brought until 1972, which was some four years after the cause of action accrued. S. 11(2)(b) therefore clearly bars the plaintiff's claim. So much is common ground.


The case made before Finlay P. that s.ll(2)(b) is unconstitutional was based on two submissions. Firstly, it was submitted that the imposition of this time limit was a failure by the State to carry into effect the guarantee given in Art. 40, s. 3, subs. 1, of the Constitution, in its laws to respect and, as far as practicable, by its laws to defend and vindicate thepersonal rights of the citizen. Secondly, it was submitted that this time limit amounted to a failure by the State to observe the duty cast on it by Art. 40, s. 3, subs. 2, by its laws to protect as best it may from unjust attack and, in the case of injustice done, to vindicate the life, person, good name, and property rights of every citizen. The President rejected both submissions and ruled that the challenge to the constitutionality of s. 11(2)(b) failed.


The appeal now before this Court is limited to a submission on behalf of the plaintiff that the President's ruling on the issue of constitutionality was incorrect. In the course of the hearing of the appeal the question arose as to whether the plaintiff had locusstandi such as would make it competent for her to seek a ruling that s. 11(2)(b) is unconstitutional. To show how that question becomes pertinent, it is necessary to state with more particularity the complaint that is made on behalf of the plaintiff against the constitutionality of s. ll(2)(b).


S. 11(2)(b) is in terms an absolute bar on the bringing of an action such as this save within three years after the accrual of the cause of action. Whereas Fart III of the Statute of Limitations, 1957, provides for an extension of the...

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