Duignan v R F. Fry (Associates) Ltd

• Jurisdiction: Ireland
• Judgment Date: 17 December 1971
• Docket Number: [1967. No. 2478 P.]
• Date: 17 December 1971
• Court: Supreme Court

Supreme Court

[1967. No. 2478 P.]

Duignan v. R. F. Fry (Associates) Ltd.

JAMES DUIGNAN

Plaintiff

and

R. F. FRY (ASSOCIATES) LIMITED

Defendants.

Limitation of actions - Workman - Common-law action - Workman's action commenced after expiration of time limit - Extension of time limit permissible if workman satisfied court that there were substantial grounds for his not having instituted the action within the period allowed - Whether workman to be identified with inactivity of his solicitor - Statute - Interpretation - Workmen's Compensation Act, 1934 (No. 9), s. 60.

Appeal from the High Court.

The facts appear in the judgments, post. Section 31 of the Workmen's Compensation Act, 1934, provided1 a time limit for the commencement by a workman of proceedings for the recovery of compensation under the terms of that Act. Section 60, sub-s. 1, of the Act of 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 case such workman may, at his option, either claim compensation under this Act, or take proceedings independently of this Act." Section 60 of the Act of 1934 was amended2 in 1953 by the insertion of sub-s. 6 which provided a time limit for the commencement of a workman's common-law action against his employer where the workman had already accepted compensation under the Act of 1934. The Act of 1934 was repealed by the Social Welfare (Occupational Injuries) Act, 1966.

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court.

Section 60, sub-s. 1, of the Workmen's Compensation Act, 1934, provided that where injury to a workman was caused by the negligence of his employer nothing in the Act should affect the civil liability of the employer, but that in such case the workman might, at his option, either claim compensation under the Act or take proceedings against his employer independently of the Act. In 1953 an amending Act added another sub-section to s. 60 of the Act of 1934. The new sub-section enacted that acceptance by a workman of compensation under the Act of 1934 should not prevent the workman from taking an action against his employer independently of the Act of 1934, provided that he did so within 12 months from the date of the accident in which he had been injured or, if the workman satisfied the court that there were "substantial grounds for his not having instituted the proceedings" within such 12 months, within 24 months from the date of the accident. At the trial of an issue in the High Court to determine whether the plaintiff's action was statute barred because it had been instituted 21 months after the date of his accident, it was

Held by Murnaghan J. that, as a result of the nature of his solicitor's failure to take the proper steps, the plaintiff had failed to satisfy the court that there were substantial grounds for the fact that the action had not been instituted within 12 months from the date of the plaintiff's accident.

On appeal by the plaintiff it was

Held by the Supreme Court (Walsh, Budd and McLoughlin JJ.), in allowing the appeal, 1, that the plaintiff had failed to establish substantial grounds if the issue had to be decided upon an examination of the conduct of his solicitor.

2. That the sub-section required that the issue should be decided upon an examination of the conduct of the plaintiff and that he, having taken reasonable care to prosecute his claim and having relied upon the reassurances of his solicitor, had established substantial grounds for the fact that he had not instituted his action within 12 months from the date of his accident.

Murnaghan J. :—

The issue which I have to decide arises out of an action entitledJames Duignan v. R. F. Fry (Associates) Ltd., sometimes trading as R. F. Fry (International) Ltd. The summons was issued on the 20th October, 1967. In the summons the defendants were stated as having a registered office at Silvermines, Nenagh, County Tipperary. That summons was issued by Messrs. John McGrath & Son, solicitors. The statement of claim was delivered on the 5th November, 1968. Prior to that, on the 2nd October, 1968, a notice of change of solicitor had been given. On the 2nd October, 1968, John McGrath & Son disappeared from the record of this case.

The defence was delivered on the 3rd March, 1969, and in paragraph 1 it is pleaded that:—"The claim (if any) of the plaintiff herein is barred and not maintainable by virtue of the provisions of section 60 of the Workmen's Compensation Act, 1934, as amended by section 6 of the Workmen's Compensation (Amendment) Act, 1953." The plaintiff's reply was delivered on the 12th May, 1969, and he pleaded in paragraph 3 that:—"If the various or any of the Acts and sections referred to at paragraph 1 of the defence are applicable (which is not admitted) the plaintiff will submit that there were substantial grounds for his not having instituted the proceedings herein within twelve months of the 13th day of January 1966 within the meaning of section 6 of the Workmen's Compensation (Amendment) Act 1953." Paragraph 4 of the plaintiff's reply is as follows:—"Alternatively, the said sections of the said Acts referred to in paragraph 1 of the defence are repugnant to the Constitution, and particularly to Article 40, sections 1 and 3 thereof, and are invalid." After the accident which is the subject matter of

the proceedings, the plaintiff was paid, and he accepted, workmen's compensation.

On the 21st July, 1969, it was ordered by consent that, without further pleadings, an issue should be tried before the trial of the action as to whether or not the claim of the plaintiff in the said action was barred and not maintainable by virtue of the provisions of s. 60 of the Act of 1934 as amended by s. 6 of the Act of 1953. No issue was directed on the question which arose on paragraph 4 of the reply. Consequently I am not directing my mind to any question of the repugnance, or alleged repugnance, of the sections having regard to the Constitution. Before the trial of this issue the Master ordered that the evidence of John McGrath be taken on commission; he carried on the profession of a solicitor under the name or title of "John McGrath & Son". The issue which has to be tried is whether or not the plaintiff's claim is statute barred.

I have heard evidence, adduced on behalf of the plaintiff, from Dr. Maurice Ahern whose testimony covered his attendance on John McGrath at intervals from the 11th March, 1966. Based on the evidence of Dr. Ahern, I admitted the record of the evidence of the said John McGrath given on commission but I regret that I did not have the opportunity of seeing him or hearing his evidence. The other witnesses for the plaintiff were James Duignan, Edmond McGrath who is a solicitor and a son of the said John McGrath, Brother Brendan Duignan who is a brother of the plaintiff, and Denis Peart who is a solicitor and the town agent for the said John McGrath. The defendants' witness was Francis Doyle who is an official of the Companies Office.

The accident to the plaintiff occurred on the 13th January, 1966. The plenary summons was not issued until the 20th October, 1967. In the circumstances the question arises as to whether there were substantial grounds for the plaintiff not having issued proceedings within twelve months from the occurrence of the accident.

The evidence called on behalf of the plaintiff, which I am prepared to accept, establishes:—

• 1. That the plaintiff's wife towards the end of February, 1966, consulted John McGrath, solicitor.

• 2. That about a week later John McGrath saw the plaintiff in Nenagh Hospital, when the plaintiff stated that he had been injured when working in a mine at Silvermines and that his employers were Messrs. Fry International Ltd.

• 3. Edmond McGrath saw the plaintiff in hospital on the 16th March when he obtained full particulars, including the name of the plaintiff's employers as Fry (International), part of the Fry Associates organisation with a registered office at 220 Wellington Street, East Aurora, Ontario, Canada. Edmond McGrath made a very full attendance of his interview with the plaintiff of about three pages.

• 4. Edmond McGrath considered there was some difficulty as to who was the defendant, and also as to whether the proper defendant was about to leave the jurisdiction. I consider that with the information then available to the said Edmond McGrath he was unnecessarily apprehensive.

• 5. By letter dated the 1st April, 1966, to Messrs. John McGrath & Son the Northern and Employers Group asked the addressee to "note our interest in this matter".

• 6. By letter dated the 20th April, 1966, to Messrs. John McGrath & Son, the firm of Messrs. McCann, FitzGerald, Roche and Dudley acknowledged that they were the solicitors for Fry (International) Ltd.

• 7. By letter dated the 4th May, 1966, to Messrs. John McGrath & Son the Northern and Employers Group stated that they had"instructed Mr. J. C. Fagan, Solicitor, of 57/58 Parnell Square W. Dublin 1 to accept service of proceedings".

• 8. No step was taken by John McGrath, or by Edmond McGrath on his...