Devlin v Roche

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 30 April 2002
• Neutral Citation: [2002] IESC 34
• Court: Supreme Court
• Docket Number: [S.C. No. 136 of 2001]
• Date: 30 April 2002

[2002] IESC 34

THE SUPREME COURT

McGuinness J.

Hardiman J.

Geoghegan J.

136/01

DEVLIN v. ROCHE & ORS

BETWEEN/

TERENCE DEVLIN

Plaintiff

and

GERARD ROCHE, THE MINISTER FOR JUSTICE, IRELAND, THE ATTORNEY GENERAL AND DENIS SHEEHAN

Defendants/Appellants

Citations:

STATUTE OF LIMITATIONS ACT 1957 S11(2)(A)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(2)(A)

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

STUBBINGS V WEBB 1993 AC 498

LETANG V COOPER 1964 2 AER 929

LETANG V COOPER 1964 1 AER 669

KRUBER V GRZESIAK 1963 VR 621

FOWLER V LANNING 1959 1 AER 290

LAW REFORM (LIMITATION OF ACTIONS) ACT 1954 (UK)

REPORT OF THE COMMITTEE ON THE LIMITATION OF ACTIONS (TUCKER COMMITTEE) 1949

DONOGHUE V STEVENSON 1932 AC 562

RYLANDS V FLETCHER 1868 LR 3 HL 330

MASON V MASON UNREP SUPREME VICTORIA 23.7.1996

MCMAHON & BINCHY IRISH LAW OF TORTS

Synopsis:

TORT

Damages

Personal injuries - Statute of Limitations - Litigation - Practice and procedure - Preliminary issue - Negligence - Action based upon assault - Whether action statute barred - Statute of Limitations Act, 1957 - (136/2001 - Supreme Court - 30/04/2002) - [2002] 2 IR 360 - [2002] 2 ILRM 192

Devlin v Roche

Facts: The plaintiff sought to pursue a claim for damages against the defendants claiming that he had been unlawfully assaulted by a member of An Garda Síochána. As such the plaintiff's claim by way of negligence was statute barred. Mr. Justice Morris held that the action in so far as it was based upon assault was a separate cause of action and was not subject to the three year limitation period. Accordingly the plaintiff's action was not statute barred. The defendants appealed against the decision.

Held by the Supreme Court (Geoghegan J delivering judgment, Hardiman J and McGuinness J agreeing) in dismissing the appeal. A breach of some general duty not to commit a civil wrong of any sort could not come within the expression "breach of duty" in the statutory provision which clearly had to be interpreted in the context of the words next to it i.e. negligence and nuisance. The judgment was based on the claim being one of intentional trespass.

1 JUDGMENT of Mr. Justice Geoghegan delivered the 30th day of April 2002 [nem diss]

2 This is a personal injury action brought against the defendants in respect of alleged assault and battery by the first and fifth-named defendants being members of the Garda Síochána on the 12th of August, 1991 at or near Wayside Celtic Football Grounds, Stepaside, Co. Dublin. The proceedings were commenced by a plenary summons issued on the 12th of August, 1994. The fifth-named defendant was not a party named in the original plenary summons but became an added party by order of the High Court. In both the original and the amended plenary summons, the plaintiff's claim is expressed to be "for damages to include aggravated damages for assault and battery, negligence, breach of duty and breach of statutory duty on the part of the defendants whereby the plaintiff sustained severe personal injuries, loss and damage." The fifth-named defendant had been added to the proceedings by order of the High Court made the 24th of February, 1997. This defendant delivered a defence on the 23rd of October, 1997 paragraph 1 of which reads as follows:-

"The plaintiff's claim is barred by virtue of the provisions of the Statute of Limitations, 1957, as amended by the Statute of Limitations (Amendment) Act, 1991."

3 By order made on the 27th of April, 1998 in the High Court by Johnson J. it was ordered that a preliminary issue be tried before a judge sitting without a jury wherein the fifth-named defendant should be plaintiff and the plaintiff should be defendant, the question at the trial of such issue to be whether the plaintiff's claim as against the fifth-named defendant was statute barred by virtue of the provisions of the Statute of Limitations, 1957 as amended by the Statute of Limitations (Amendment) Act, 1991.Pleadings were delivered in the separate issue and it came to be tried before the High Court (Morris P.) on the 1st of February, 2001. At the hearing the plaintiff/respondent accepted that in so far as his claim might be based on negligence or breach of statutory duty it was statute barred as his proceedings were not commenced within the three year limitation period. He claimed however that in so far as his action was based on assault and battery the relevant limitation period was six years and that claim was therefore not statute barred.

4 Section 11(2)(a) of the Statute of Limitations 1957 as amended by section 3(2)(a) of the Statute of Limitations (Amendment) Act, 1991provides that "an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued." But section 3(1) provides "an action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by 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) shall not be brought after the expiration of three years from the date on which the cause of action accrued to the knowledge (if later) of the person injured." In effect, therefore the issue which the High Court had to try was whether a personal injury claim based on an allegation of intentional assault was statute barred after three years or only after six years.

5 Morris P. delivered a reserved judgment on the 4th of April, 2001. In his introductory remarks he commented that as far as he was aware this issue had not been decided by the Irish courts although it had been considered on a number of occasions in the English courts. He pointed out that the wording of the relevant part of the English statutes was identical. The learned President held that the plaintiff's claim for damages for assault was not statute barred. The fifth-named defendant has appealed against that decision to this court.

6 As the President correctly observed, the issue has been debated in the English courts in a number of cases but it is now clear from the hearing of this appeal that it has also been considered by the Australian courts in the context of more or less exactly similar legislation. As will become clear, when I review the case law, there is highly respectable judicial opinion on both sides of the issue but the view taken by Morris P. is in accordance with the only decision of the House of Lords on the point namely, Stubbings v. Webb [1993] A.C. 498. The appellate committee consisted of Lord Templeman, Lord Bridge of Harwich, Lord Griffiths, Lord Ackner and Lord Slynn of Hadley and its unanimous opinion was delivered in a speech of Lord Griffiths. But in so deciding, the House of Lords was reversing a strong court of appeal consisting of Sir Nicholas Browne-Wilkinson V-C, Bingham L.J. and Nolan L.J. all future law lords. To some extent the Court of Appeal had felt bound by an earlier decision of the same court in Letang v. Cooper [1964] 2 All E.R. 929 which was itself a strong court comprising Lord Denning M.R., Danckwerts L.J. and Diplock L.J. Bingham L.J. who delivered the judgment of the court in Stubbings made it clear that he agreed with the decision in Letang and elaborated on his reasons for so doing. In two Australian...