Hegarty v O'Loughran

JurisdictionIreland
CourtSupreme Court
Judgment Date08 February 1990
Date08 February 1990
Docket Number[1987 Nos. 215 & 295]
Hegarty v. O'Loughran
Anna Hegarty
Plaintiff
and
Francis O'Loughran and Gerald Edwards
Defendants
[1987 Nos. 215 & 295]

Supreme Court

Limitation of actions - Negligence - Personal injury - Surgery performed on the plaintiff by each of the defendants - Action instituted after the expiry of three years from the dates of surgery - Whether action statute barred - Date on which cause of action accrued - Whether date on which act causing injury committed or date of discoverability of injury - Public Authorities Protection Act, 1893 (56 & 57 Vict., c. 61), s. 1 (a) - Statute of Limitations, 1957 (No. 6), s. 11, sub-s. 2 (b), s. 71.

Constitution - Statutory interpretation - Presumption of constitutionality - Whether applicable where only one possible interpretation of statute.

Statutory interpretation - Concession by defendant as to meaning of term in statute - Whether such concession can be accepted by court.

Section 11, sub-s. 2 (b) of the Statute of Limitations, 1957 ("the Act of 1957") provides that an action in tort for damages for personal injury shall be brought within three years from the date of the accrual of the cause of action.

The plaintiff underwent surgery to her nose performed by the first defendant in 1973. Because this surgery was unsuccessful, in 1974 the second defendant performed a remedial operation which subsequently began to deteriorate by 1976.

Proceedings were instituted against both defendants in 1982 claiming damages for personal injury caused by medical negligence. The defendants denied negligence and further pleaded that the claim was statute barred by virtue of the provisions of s. 11, sub-s. 2 (b) of the Act of 1957.

The High Court (Barron J.) determined that the date on which the cause of action accrued was the date on which the act causing the injury was committed and that, therefore, the plaintiff's claim was statute barred (reported at [1987] I.R. 135). The plaintiff appealed to the Supreme Court and argued, inter alia, that the Court should adopt an interpretation of s. 11, sub-s. 2 (b) consistent with the provisions of the Constitution of Ireland, 1937, and that an interpretation of "accrual of the cause of action" such that the date of accrual could arise before the plaintiff was aware of the existence of the cause of action failed to vindicate the plaintiff's constitutional right to litigate. For the purposes of the appeal the defendants were prepared to concede that the cause of action accrued as soon as the personal injury caused by the previous wrong manifested itself.

Held by the Supreme Court (Finlay C.J., Walsh, Griffin, Hederman and McCarthy JJ.) in dismissing the plaintiff's appeal, 1, that the cause of action accrued at the time when provable personal injury capable of attracting compensation occurred to the plaintiff which was the completion of the tort alleged to have been committed against her.

Cartledge v. E.F. Jopling & Sons [1963] A.C. 758 approved; Urie v. Thompson (1949) 337 U.S. 163 and U.S. v. Kubrick (1979) 444 U.S. 111 considered.

2. That the tort of negligence was not complete until damage had been caused by the defendants' wrongful act.

Carroll v. Kildare County Council [1950] I.R. 258 distinguished.

3. That, since the provisions of s. 71 of the Act of 1957 provided that, in the case of fraud, time did not begin to run against a plaintiff until the fraud was discovered or could, with reasonable diligence, have been discovered, by implication in cases where there was no allegation of fraud time began to run whether or not the damage could have been discovered.

Cartledge v. E.F. Jopling & Sons [1963] A.C. 758 followed.

4. That the presumption in favour of a constitutionally valid construction of a statute only applied where there were two or more possible interpretations of a statute and the provisions of s. 11, sub-s. 2 (b) were so clear that only one interpretation was open to the Court.

Morgan v. Park Developments [1983] I.L.R.M. 156 overruled.

5. That it was not unconstitutional for the legislature to set a time limit (even if such limit was absolute) within which a particular action had to be brought as such limit represented a balance between the plaintiff's right to litigate and the defendant's interest in certainty in relation to potential liability.

Quaere: Whether the time limit set in s. 11, sub-s. 2 (b) is unconstitutional.

6. That, on the facts, the plaintiff's cause of action against the first defendant accrued in 1974 and against the second defendant in 1976 and, accordingly, both claims were statute barred pursuant to the provisions of s. 11, sub-s. 2 (b) of the Act of 1957.

Per McCarthy J. In a case of statutory interpretation it was not appropriate for the Court to accept a concession from the defendant as to the meaning of the section at issue.

Cases mentioned in this report:—

Cahill v. Sutton [1980] I.R. 269.

Carroll v. Kildare County Council [1950] I.R. 258.

Cartledge v. E.F. Jopling & Sons [1963] A.C. 758; [1963] 2 W.L.R. 210; [1963] 1 All E.R. 341; [1963] 1 Lloyds Rep. 1; (1963) 107 S.J. 73.

Central Asbestos Co. v. Dodd [1973] A.C. 518; [1972] 3 W.L.R. 333; [1972] 2 All E.R. 1135; [1972] 2 Lloyds Rep. 413; (1972) 116 S.J. 584.

East Donegal Co-Operative Livestock Mart. v. The Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Grehan v. Medical Incorporated [1986] I.R. 528; [1986] I.L.R.M. 627.

McDonald v. Bord na gCon [1964] I.R. 350; (1962) 100 I.L.T.R. 11.

Morgan v. Park Developments [1983] I.L.R.M. 156.

Moynihan v. Greensmyth [1977] I.R. 55.

Pirelli General Cable Works v. Faber [1983] 2 A.C. 1; [1983] 2 W.L.R. 6; [1983] 1 All E.R. 65; (1983) 127 S.J. 16.

Quinton v. U.S. (1962) 304 F2d. 234.

Read v. Brown (1888) 22 Q.B.D. 128; 58 L.J.Q.B. 120; 60 L.T. 250; 37 W.R. 131.

Sparham-Souter v. Town and Country Developments (Essex) Ltd. [1976] Q.B. 858; [1976] 2 W.L.R. 493; [1976] 2 All E.R. 65; (1976) 102 S.J. 216.

U.S. v. Kubrick (1979) 444 U.S. 111; 62 L. Ed. 2nd. 259; 100 S.Ct. 352.

Urie v. Thompson (1949) 337 U.S. 163; 93 L. Ed. 1282; 69 S. Ct. 1018.

Appeal from the High Court.

By plenary summons issued on the 19th October, 1982, the plaintiff commenced proceedings claiming damages against each of the defendants for medical negligence. The defendants in their defences pleaded, inter alia, that the plaintiff's claim was statute barred by virtue of the provisions of s. 11, sub-s. 2 (b) of the Statute of Limitations, 1957. This issue was tried as a preliminary issue of law by the High Court (Barron J.) on the 6th February, 1987, and it was determined that the date on which the plaintiff's cause of action accrued was the date the act causing the injury was committed and, therefore, that the plaintiff's claim was statute barred (see [1987] I.R. 135).

By notice of motion dated the 2nd May, 1987, the plaintiff appealed to the Supreme Court against the judgement and order of the High Court. The defendants cross appealed by notice dated the 3rd July, 1987.

The facts are summarised in the headnote and are set out in full in the judgments infra.

The provisions of s. 11, sub-s. 2 (b) and s. 71 of the Statute of Limitations, 1957 and of s. 1 (a) of the Public Authorities Protection Act, 1893, are set out in full in the judgment of Finlay C.J., infra.

The appeal was heard by the Supreme Court (Finlay C.J., Walsh, Griffin, Hederman and McCarthy JJ.) on the 2nd November, 1989.

Cur. adv. vult.

Finlay C.J.

This is an appeal brought by the plaintiff and a cross-appeal brought by the defendants against an order of the High Court made by Barron J. on the 27th May, 1987, upon the hearing by him of an issue on oral evidence concerning the question as to whether the plaintiff's claim was statute barred by virtue of the provisions of s. 11, sub-s. 2 (b) of the Statute of Limitations, 1957, in which order the learned trial judge declared that the plaintiff's claim was barred against both defendants by the said sub-section.

The plaintiff's claim

The plaintiff instituted proceedings by a plenary summons issued on the 19th October, 1982. Her claim is that the first defendant, in or about the year 1973, performed a septal resection upon her as treatment for trouble with an airway blockage in her nose and that he did so negligently, causing the septal resection to collapse following the operation. As against the second defendant the plaintiff's claim was that the second defendant performed an operation in or about the year 1974 to remedy the situation arising from the first operation, consisting of a silastic bridge inlay upon the plaintiff. The plaintiff alleges that the inlay was initially successful and improved the plaintiff's appearance but subsequently the same deteriorated and claims that that deterioration was caused by the negligence of the second defendant. The plaintiff alleges that she suffered great pain and suffered injury and was deformed and has incurred losses and expenses.

The defendants in addition to a claim that the plaintiff's claim was barred by virtue of the provisions of s. 11, sub-s. 2 (b) of the Statute of Limitations, 1957, denied the negligence alleged against them, and also denied that the plaintiff had suffered any loss or damage.

Statutory provision

Section 11, sub-s. 2 (b) of the Statute of Limitations, 1957, reads as follows:—

"An action claiming damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued."

It is, of course, clear that this sub-section applies to the plaintiff's claim in this case.

Decision of the High Court

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