Mc Guinness -v- The Marine Institute & Anor, [2009] IEHC 177 (2009)

Docket Number:2007 529 P
Party Name:Mc Guinness, The Marine Institute & Anor
Judge:Dunne J.
 
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THE HIGH COURT2007 529 PBETWEENEDGAR McGUINNESSPlaintiffandTHE MARINE INSTITUTE AND CARA ROWDEN DEFENDANTSJUDGMENT of Ms. Justice Dunne delivered on the 9th day of March 2009The plaintiff is a Fisheries Assessment Technician employed by the first named defendant. On the 4th October, 2004, he was on board a motorised fishing vessel, the "Catherine R", owned by the second named defendant, when he was injured at sea off the Irish coast, having been struck by a number of boxes of ray on board the vessel.It would be helpful to set out a timeline in relation to these proceedings at this stage.Letters of claim to the defendants 27th April, 2006.PIAB Form A forwarded to PIAB 8th May, 2006.PIAB acknowledges receipt of Form A for the purposes of s. 50 of the Personal Injuries Assessment Board Act 2003, ("PIAB Act") 9th May, 2006.PIAB writes to second named defendant putting her on notice of the plaintiff's claim and notifying her that she has 90 days within which to state whether she is consenting to an assessment of the claim or not 29th May, 2006.PIAB sends reminder to second named defendant of the 90 day period within which to consent to an assessment 7th July, 2006.Solicitors for second named defendant acknowledge to the plaintiff's solicitors that they are aware of a claim made to PIAB 12th July, 2006.Letter from PIAB to second named defendant noting that there has been no response to earlier correspondence 23rd October, 2006.Letter from PIAB to plaintiff's solicitor informing them pursuant to s. 17 of PIAB Act that it would not be appropriate to assess claim and confirming that the time to take legal action will remain on hold for a further six months and attaching authorisation 23rd October, 2006.Personal Injuries summons issued 25th January, 2007.Appearance entered by second named defendant 20th February, 2007, solicitors for second named defendant inform plaintiff's solicitors there may be an issue pursuant to s. 46 of the Civil Liability Act 1961, ("the 1961 Act") as to whether the plaintiff's claim is statute barred or not 16th February, 2007.Defence of second named defendant pleading, inter alia, that claim is statute barred by virtue of the provisions of s. 46(2) of the Civil Liability Act 1961, 18th September, 2007.The ApplicationFollowing the delivery of the defence herein a notice of motion was issued on the 7th November, 2007, seeking "an order dismissing the plaintiff's action on the grounds that it is statute barred by virtue of the provisions of s. 46(2) of the Civil Liability Act 1961". That application was grounded on an affidavit of Finola Cronin sworn herein on the 5th November, 2007. That is a short affidavit which set out the provisions of s. 46(2) of the 1961 Act, and stated that "for the plaintiff's action not to be statute barred the personal injuries summons has had to be instituted by the 4th October, 2006".A replying affidavit was sworn herein on behalf of the plaintiff by Máirín McCartney on the 9th April, 2008. That affidavit deals with a number of factual matters which relate to the prosecution of this case. She outlined the steps taken as set out above in the timeline. Around the 23rd October, 2006, PIAB wrote to the plaintiff's solicitors notifying them that as of that date, no response had been received from the second named defendant. That letter enclosed an authorisation pursuant to s. 17 of the PIAB Act 2003. The letter added:"The time allowed under the law for the claimant to take legal action in connection with this claim was put on hold from the time PIAB received the completed application on 09/05/2006 and will remain on hold for a further six months from the date of attached authorisation."Ms. McCartney then made the following observation at para. 8 of her affidavit:-"The legislature inadvertently omitted s. 46(2) of the Civil Liability Act 1961, from the provisions of s. 50 of the Personal Injuries Assessment Board Act 2003. This inadvertence allowed the statutory period of time to continue running against the plaintiff contrary to what is stated by the Personal Injuries Assessment Board in its letter of 23rd October, 2006."The averment as to the inadvertence of the legislature is a somewhat unusual averment to find in an affidavit. Ms. McCartney then dealt with a number of issues which are more properly the subject matter of legal submissions. For that reason I propose to consider them in that context.The LawI now propose to set out the provisions of s. 46 insofar as they may be relevant to this application."S. 46(1)(a) Where, by the fault of two or more vessels, damage is caused to one or more of those vessels or to another vessel or to the cargo of any of those vessels or any property on board, and an action is brought for such vessel, the liability of each vessel in respect of such damage shall be in proportion to the degree in which such vessel was in fault and accordingly there shall be no right of contribution in respect of such apportioned liability: provided that - (i) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally among the vessels in fault;(ii) nothing in this subsection shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law.(b) For the purposes of paragraph (a) of this subsection the liability of a vessel for damage shall mean the liability of those responsible for the proper navigation and management of the vessel.(c) Paragraph (a) of this subsection shall not apply to a claim for loss of life or personal injuries. 2. Where, by the sole or concurrent fault of a vessel damage is caused to that or another vessel or to the cargo or any property on board either vessel, or loss of life or personal injury is suffered, by any person on board either vessel, then, subject to subsection (3) of this section, no action shall be maintainable to enforce a claim for...

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