Doran v Thompson Ltd

• Jurisdiction: Ireland
• Judge: Costello J.
• Judgment Date: 15 June 1977
• Neutral Citation: 1977 WJSC-HC 1
• Court: High Court
• Date: 15 June 1977

1977 WJSC-HC 1

THE HIGH COURT

No. 784P 1976

DORAN v. THOMAS THOMPSON

BETWEEN

KEVIN DORAN

Plaintiff

and

THOMAS THOMPSON AND SONS LTD.

Defendants

Costello J

1 15th June 1977 The Plaintiff is a steel erector. He was injured in an accident whilst employed by the Defendants on the 20th July 1972. The Plenary Summons in these proceedings was issued on the 18th February 1976, well outside the three-year limitation period provided for by section II (2)(b) of the statute of Limitations, 1957. After the filing of the Statement of Claim a Defence was delivered in which in paragraph I it was pleaded that the claim was barred by virtue of the provisions of the 1957 Act. In his Reply of the 18th June 1976 the Plaintiff raised a number of pleas which I will examine in greater detail later. In effect he challenged the right of the Defendants to plead the Statute. By Order of the High Court of the 14th February 1977 it was ordered that the issue of law raised by the Defendants be set down for trial before the action before a Judge sitting without a Jury. Pursuant to that order the issue was tried before me on 26th May last.

2 The facts in this case are not really in dispute; the inferences to be drawn from the facts and the legal consequences which flow from them most certainly are. As I have said, the Plaintiff was injured in an accident on the 20th July 1972. He was not in hospital for very long but was apparently incapacitated by an injury to his back and hip which meant that he was out of work for some considerable time. He did not consult a solicitor until the month of October 1973, when he called in to see Mr. McCarthy a cleric in the office of Messrs. C.J. Louth and Son of Ferrybank, Arklow, Co. Wicklow. The exact date of this first visit is not material, but shortly after it Mr. McCarthy, who had kept an undated attendance on the interview, sent a letter dated the 3lst October 1973 to the Defendants alleging that the accident was due to their failure to provide a safe system of work and requesting proposals "to compensate our client for the loss and damaged he has sustained". The Defendants passed this letter to their insurers (the National Employers Mutual General Insurance Association Limited) and thereafter correspondence took place between the Plaintiff's solicitors and the insurers. Such verbal communications as occurred (and they were very limited)took place between Mr. Louth the principal in the firm of Messrs. C.J. Louth and Son) and a representative of the insurance company. Mr. Louth thought they were with a Mr. Graham, the Claims Superintendent whose signature appears on the company's letters, but apparently they were with a Mr. Barbour another official in the Claims Department.

3 The first letter from the insurance company in reply to the letter of 31st October 1973 was dated the 18th December 1973. In the course of it the following paragraph appears:

"We are investigating the circumstances of the accident to which you refer; in the meantime as it occurs to us that your client may by now have effected a full and complete recovery from his injuries an open letter from you stating recovery to be a fact will obviate the necessity for a medical examination; on the other hand, if he has not recovered, we presume you will extend to us facilities for examination by our medical officer in consultation with his medical attendant and if you will advise us the name and address of the latter, we will be in a position to make the necessary arrangements."

4 The Plaintiff had not fully recovered, and thereafter correspondence took place and phone calls were made for the purpose of enabling the insurance company to have the Plaintiff medically examined. In the event, this did not take place until 29th July 1975. The delay occurred in the following circumstances.

5 On the 3rd January 1974 Mr. Louth wrote pointing out that there was no objection to a medical examination and giving the company the name of the Plaintiff's local doctor. On the 7th January the company explained that it wanted the examination to be carried out by a Dublin surgeon and asked that a surgeon be nominated to attend with the company's nominee. On the 8th January Mr. Louth suggested the name of Surgeon Gallagher (who had in fact examined the Plaintiff in Dublin after the accident) and added "we ... await hearing further from you as soon as you have made the necessary appointment". A considerable time elapsed before Mr. Louth heard again from the company. In evidence he said that sometime towards the end of 1974 which he thought was towards the end of October of that year, he received a telephone call from, it would appear, Mr. Barbour who informed him that Surgeon Gallagher could not attend the examination. Neither in this call, nor in the one held subsequently, nor in any of the letters which the Company wrote from that date was any reference made to the investigation which the Company had said they would initiate in to the circumstances of the accident. Following the call, the Company wrote on the 29th January 1976, confirming the telephone conversation and referring to the fact that Mr. Louth was to have ascertained who would act in place and of Surgeon Gallagher and was to have advised the company. On receipt of the letter Mr. Louth telephoned Dr. Monaghan, the Plaintiff's local doctor, and as a result of his suggestion wrote on the 30th January to the company suggesting that Surgeon Sheehan could attend the consultation with Surgeon Robinson the insurer's nominee). The company replied on the 3rd February stating that they had asked Surgeon Robinson to contact Surgeon Sheehan. This arrangement also ran in to difficulties. Mr. Louth said in evidence that sometime between mid-February and the 28th May (when he wrote again to the company) he was informed by phone (presumably by Mr. Barbour) that Mr. Sheehan could not attend the consultation. Having considered a suggestion which it would appear had emanated from the Company he decided to consent to the idea of Mr. Robinson examining the Plaintiff without the attendance of a doctor acting on the Plaintiff's behalf and wrote to this effect on the 28th May 1975, but adding the proviso that a copy of Mr. Robinson's report should he made available to his firm. The company got in touch with Mr. Robinson who gave evidence to the effect that on the 3rd June 1975 he fixed an appointment for the following 29th July. The company advised Mr. Louth of this arrangement by letter of the 10th June. In reply Mr. Louth, by letter of the 11th June asked for confirmation that Mr. Robinson's report would be made available to him - confirmation which was forthcoming by letter of the 16th June. At this point of time therefore the factual situation was that a) the three-year period provided by section II 2)(b)of the 1957 Act was due to expire on the 20th July 1973; b)an arrangement for a medical examination had been made which was to take place after the expiration of the statutory period; (c)the Defendant's insurers had agreed prior to the expiration of the statutory period to make available to the Plaintiff's solicitors the report which they would receive on the Plaintiff's condition at a time after the statutory period had expired.

6 The long-delayed medical examination took place on the 29th July 1975. Two months later, on the 29th September, a copy of Mr. Robinson's report as promised was sent to Mr. Louth. It was followed by a letter of the 3rd October in which Mr. Graham wrote;

"With reference to previous correspondence concerning this accident which occurred on the 20th July 1972, we would be grateful if you would let us know if proceedings have been issued and if so, the date of issue".

7 Mr. Louth replied on the 4th November. Having dealt with a suggestion that his client had recovered from the accident, he ended by saying,

"In view of the negotiations which have been going on with you we have not yet instituted proceedings in this case and we trust that it may be possible to have the claim settled without the necessity of doing so".

8 The company wrote on the 6th stating that they were filing their papers; Mr. Louth replied on the same day asking the company to nominate a solicitor to accept service of proceedings; the company replied on the 27th stating that they were not altogether clear as to why proceedings were intended "as we understand that such proceedings are now statute-barred". A Plenary Summons was issued on the 18th February 1976 nearly seven months after the three-year limitation period had expired and thereafter certain further correspondence ensued between the solicitors for the parties to which it is not necessary for me to refer. The Defence which was ultimately filed, contained two paragraphs; the first pleaded a bar based on the Statute of Limitations; the second contained a denial that the Plaintiff had suffered the alleged or any personal injuries loss or damage. It is to be noted that it contained no denial that the Defendants were negligent.

9 The oral evidence given at the hearing was short. The principle witness on the Plaintiff's behalf was Mr. Louth. Mr. Louth is a man of mature years. He is, I would estimate, an experienced solicitor. His evidence was brief, candid and straightforward. He confirmed that at no time during his discussions with the company's representatives was the question of liability raised. When asked why he had not instituted proceedings he explained that as far as he was concerned the case was a clear one; that the question of issuing proceedings did not enter in to his mind when he was negotiating with the company; that his object in communicating with the company was to facilitate them; that he was confident that he would have negotiations with the company after the medical report was sent to him; that he was confident that the case would be settled without the necessity of...