Guerin v Guerin

JurisdictionIreland
JudgeMr. Justice Costello
Judgment Date01 January 1993
Neutral Citation1992 WJSC-HC 3697
Docket Number10004P/1984,[1984 No. 10004P]
CourtHigh Court
Date01 January 1993
GUERIN v. GUERIN

BETWEEN:

PETER GUERIN
Plaintiff

and

GERARD GUERIN AND EAMON McGRATH
Defendants

1992 WJSC-HC 3697

10004P/1984

THE HIGH COURT

Synopsis:

ACTION

Disposal

Defence - Prejudice - Time lapse - Infant - Accident - Injuries - Defendant sued 20 years later - Motion to dismiss claim - Motion determined 28 years after accident - Use of motor car - Consent of owner - Consent inferred from conduct of owner - Road Traffic Act, 1961, s. 118 - (1984/10004 P - Costello J. - 31/7/92)

|Guerin v. Guerin|

AGENCY

Creation

Principal - Conduct - Inferences - Motor car - Car left by owner with father - Permission of owner for use of car by named neighbour - Father permitting car to be used by daughter's fiance - Child injured in accident - Whether fiance driving car with consent of owner - (1984/10004 P - Costello J. - 31/7/92)

|Guerin v. Guerin|

DELAY

Action

Trial - Commencement - Accident - Infant - Injuries - Summons issued 20 years after accident - Motion to dismiss action - Motion determined 28 years after accident - (1984/10004 P - Costello J. - 31/7/92) - [1992] 2 I.R. 287 - [1993] ILRM 243

|Guerin v. Guerin|

HIGH COURT

Jurisdiction

Action - Dismissal - Trial - Commencement - Time lapse - Accident - Infant - Injuries - Summons issued 20 years after accident - Motion to dismiss action - Motion determined 28 years after accident - (1984/10004 P - Costello J. - 31/7/92) [1992] 2 I.R. 287

|Guerin v. Guerin|

PRACTICE

Action

Dismissal - High Court - Jurisdiction - Trial - Commencement - Time lapse - Accident - Infant - Injuries - Summons issued 20 years after accident - Motion to dismiss action - Motion deter mined 28 years after accident - (1984/10004 P - Costello J. - 31/7/92) - [1992] 2 I.R. 287 - [1993] ILRM 243

|Guerin v. Guerin|

Citations:

RAINSFORD V LIMERICK CORPORATION 1984 IR 153

O DOMHNAILL V MERRICK 1984 IR 151

SWEENEY V HORAN'S (TRALEE) LTD 1987 ILRM 240

TOAL V DUIGNAN & ORS 1991 ILRM 135

1

Judgment of Mr. Justice CostelloDelivered the 31July 1992

Introduction
2

On the 2nd August 1964 Peter Guerin, the plaintiff, was then a young boy of four living with his parents in a rural part of County Tipperary. His elder sister had recently returned from the United States where she had met and had become unofficially engaged to a young man called Eamon McGrath. On that day Mr. McGrath (named in these proceedings as the second named defendant) was staying with the Guerins. At the suggestion of Peter's father he drove a car owned by Peter's elder brother, Gerard (the first named defendant) to collect the family allowances from a post office about a mile and a half away. The journey became something of a family outing, as Peter and three other of the Guerins accompanied Mr. McGrath in the car. Unfortunately, it ended in disaster as Mr. McGrath crashed the car into a ditch on the way home and Peter suffered very serious head injuries.

3

These proceedings were not instituted until 1984 and since then have not been prosecuted with any great dispatch. The claim is that Mr. McGrath (who subsequently married the plaintiff's sister) drove negligently and is personally liable, whilst Gerard Guerin is vicariously liable as Mr. McGrath was driving with his implied consent. The defendants filed separate defences denying liability. On the application of Gerard Guerin it was ordered that two issues be tried as preliminary issues (a) as to whether because of the plaintiff's delay his claim should be stayed and (b) as to whether EamonMcGrath was Gerard Guerin's servant or agent when driving his car at the time of the accident.

The Law
4

There is no statutory bar on the institutions of these proceedings - what falls for consideration is whether in the exercise of its inherent jurisdiction to ensure that justice is done the court should stay this action. The applicable principles have been formulated by the then President of the High Court, Mr. Justice Finlay, in a judgment delivered on the 31 July 1979 in Rainsford .v. Corporation of Limerickquoted in 1984 I.R. Page 153, as follows:

5

(1) Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and, even if inordinate, whether it has been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie on the party seeking a dismiss and opposing a continuance of theproceedings.

6

(2) Where a delay has not been both inordinate and inexcusable, it would appear that there are no real grounds for dismissing theproceedings.

7

(3) Even where the delay has been both inordinate and inexcusable the court must further proceed to exercise a judgment on whether in its discretion on the factsthe balance of justice is in favour of, or against, the proceeding of the case. Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution may be an ingredient in the exercise of the court of itsdiscretion.

8

(4) Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay is material to the exercise of the court's discretion.

9

Examples of the application of these principles are to be found in O'Domhnaill .v. Merrick (1984) I.R. 151, Sweeney .v. Horan's (Tralee) Ltd. (1987) I.L.R.M. 240, Toal .v. Duignan andOthers (1991) I.L.R.M. at page 135 and at page 140.

Findings of Fact
10

I have heard evidence from Paul Guerin who was a young boy of twelve on the day of the accident...

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