Gawley v Corporation of Belfast

JurisdictionIreland
Judgment Date26 November 1907
Date26 November 1907
CourtCourt of Appeal (Ireland)
Gawley
and
Corporation Of Belfast (1).

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1908.

Action for damages for negligence causing personal injury — Death of person injured — Action by widow more than six, but within twelve, months from the date of the accident — Statute of Limitations — Public authority, action against — Lord Campbell's Act (9 & 10 Vict. c. 93) — Public Authorities Protection Act (56 & 57 Vict. c. 61), s. 1(a).

Held (affirming the decision of the King's Bench Division), that, as the action was not brought within six months from the date of the accident, it was barred by section 1 of the public authorities protection act, 1893.

Held, also, that the defendants, in working the tramways under 4 Edw. 7, c. ccxxix, were a public authority within the meaning of the Public Authorities Protection Act, 1893.

On the 13th June, 1906, Bernard Gawley, the husband of the plaintiff, was injured by a collision with an electric tram-car in Belfast. The tramways in Belfast are the property of the defendants. He brought an action for damages for negligence against the defendants, on 30th July, 1906, and laid the venue in Dublin. This action was ripe for trial in Hilary Sittings, 1907, when the defendants, on the 14th January, 1907, moved to change the venue to Belfast. The application was granted, and the action would have been tried at the Belfast Spring Assizes in March, 1907. On the 28th February, 1907, Bernard Gawley died from the effects of the injuries he sustained; and the present action was

brought on the 11th April, 1907, by Catherine Gawley, the widow of Bernard Gawley, on behalf of herself and her three children, to recover damages for the death of her husband, who was a blacksmith, and was the sole support of his wife and children.

In addition to a traverse of the negligence, and a plea of contributory negligence, the defendants pleaded that the matters complained of consisted of an alleged neglect or default in the execution of powers and duties conferred on the defendants as a public authority by the Belfast Corporation (Tramways) Act, 1904, and the action was not commenced within six months after the alleged acts, or neglect, or default complained of, and the plaintiff's cause of action was barred by the Public Authorities Protection Act, 1893.

The plaintiff by her reply joined issue on this defence, and further pleaded that the plaintiff's action was commenced by her less than two months after the death of her said husband, who had instituted in his lifetime at a date less than six months after the negligence of the defendants complained of, and had pending at his death, an action against the defendants for the negligence which caused the injuries in consequence of which he afterwards died on the 28th February, 1907, and the plaintiff objected that the defence pleaded as to the Public Authorities Protection Act was not a good defence in law to the plaintiff's claim.

The defendants on the 17th May, 1907, obtained an order to set down the case for hearing on the points of law raised in the pleadings in lieu of demurrer.

The case was argued in the King's Bench Division before Palles, C.B., and Andrews, J.

On the 18th June, 1907, the Court dismissed the action.

The plaintiff appealed.

D. M. Wilson, K.C., and J. Cusack, for the appellant:—

The order appealed from has dismissed the plaintiff's action with costs, and has necessarily decided that (1) Lord Campbell's Act (9 & 10 Vict. c. 93) has been impliedly repealed by the Public Authorities Protection Act in all cases where the death has been caused by any person acting in execution or intended execution of any Act of Parliament, or of any public duty or authority, and has occurred more than six months after the injuries were inflicted, and (2) that the defendants were not merely as a matter of fact, but as a matter of law, acting in execution or intended execution of the Belfast Corporation (Tramways) Act, 1904, when they inflicted the injuries on Bernard Gawley, from which he died on the 28th February, 1907.

As to the first point, the deceased had, at the date of his death, an action pending for damages for the personal injuries he had sustained, and under the terms of 9 & 10 Vict. c. 93, as amended by 27 & 28 Vict. c. 95, when, and only when, those injuries resulted in his death, and in pecuniary loss to his widow and children, the widow was entitled to bring the present action on behalf of herself and her children. In Williams v. The Mersey Docks and Harbour Board(1), where the injuries were sustained in 1902, and the death took place in 1904, it was held that the widow could not maintain an action under Lord Campbell's Act (9 & 10 Vict. c. 93), as her husband's right of action was, at the time of his death, barred by the Public Authorities Protection Act, and consequently the widow had, under the very terms of Lord Campbell's Act, no right of action in respect of the loss occasioned by her husband's death. It was not decided in that case that the widow could not commence her action under Lord Campbell's Act more than six months after the injuries were inflicted, provided that she commenced it within six months from the death, and that the deceased could, at the time of his death, have maintained an action for his personal injuries. In Markey v. Tolworth Joint Isolation Hospital District Board(2), it was decided that it was sufficient to commence an action under Lord Campbell's Act within six months next after the death. According to the decision appealed from, the widow's right to bring her action was extinguished on the 14th December, 1906, and her cause of action (if any) did not accrue till the 28th February, 1907. Such

a construction of the Public Authorities Protection Act is not necessary, nor could it have been intended. The 9 & 10 Vict. c. 93, is not contained in the Schedule of repealed enactments appended to 56 & 57 Vict. c. 61, which is stated to be merely “An Act to generalize and amend certain statutory provisions for the protection of persons acting in the execution of statutory and other public duties.”

In Seward v. Vera Cruz(1), Lord Selborne says, where there are general words in a later Act capable of reasonable and sensible application, without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed merely by force of such general words. This case also shows that the action under Lord Campbell's Act is a totally new cause of action, and that it arises on the death. The act, neglect, or default mentioned in sect. 1 and sect. 1 (a) of 56 & 57 Vict. c....

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5 cases
  • Appelbe v West Cork Board of Health
    • Ireland
    • Supreme Court (Irish Free State)
    • 15 November 1929
    ...the Supreme Court (Kennedy, C. J. and FitzGibbon, J.; Murnaghan, J, expressing no opinion on the point). Gawley v. Belfast Corporation, [1908] 2 I. R,. 34, followed; British Electric Railway Co., Ltd. v. Gentile,ELR [1914] A. C. 1034, distinguished. Plaintiff brought an action under the Fat......
  • Hayes v County Council of King's County
    • Ireland
    • King's Bench Division (Ireland)
    • 15 May 1917
    ...(2) 22 Q. B. D. 338. (3) [1899] P. 236. (4) [1899] 1 Ch. 1. (5) [1902] 2 Ch. 585. (6) [1904] 2 K. B. 501. (7) [1905] 2 K. B. 1. (8) [1908] 2 I. R. 34. (9) [1905] 1 K. B. (1) [1904] 2 Ch. 449. (2) [1916] 1 A. C. 242. (3) 113 L. T. R. 681. (4) [1915] 1 K. B.417. (1) [1904] 2 Ch. 449. (2) 107 ......
  • Goodisson v Byrne
    • Ireland
    • Supreme Court
    • 31 March 1938
    ...(2) [1905] 2 K. B. I. (3) [1926] I. K. B. 160. (4) 68 J. P. 158. (5) [1932] 2 K. B. 595. (6) [1917] 2 I. R. 73; [1919] 2 I. R. 325. (7) [1908] 2 I. R. 34. (1) [1916] 1 A. C. (1) [1922] 1 K. B. 291. (1) [1919] 2 I. R. 325. (1) [1932] 2 K. B. 595. (1) [1916] 1 A. C. 242. (1) Before Sullivan C......
  • Bridget Walsh v Ballina Urban District Council
    • Ireland
    • Circuit Court
    • 1 January 1921
    ...months after the alleged wrongful act, neglect, or default complained of, and relied on the decision in Gawley v. Belfast Corporation, [1908] 2 I. R. 34. The judge found as a fact that the defendants were negligent:—Held, that the plaintiff was entitled to maintain the action. The plainti......
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