John Lawlor v Carroll System Buildings (1970) Ltd
 IEHC 579
THE HIGH COURT
CIVIL LIABILITY & COURTS ACT 2004 S26
CIVIL LIABILITY & COURTS ACT 2004 S25
CIVIL LIABILITY & COURTS ACT 2004 S25(1)
CIVIL LIABILITY & COURTS ACT 2004 S25(2)
CIVIL LIABILITY & COURTS ACT 2004 S26(3)
CIVIL LIABILITY & COURTS ACT 2004 S26(5)
AHERN v BUS ÉIREANN UNREP SUPREME 2.12.2011 2011/2/473 2011 IESC 44
GOODWIN v BUS ÉIREANN UNREP SUPREME 23.2.2012 2012/17/4743 2012 IESC 9
CIVIL LIABILITY & COURTS ACT 2004 S14
SAFETY, HEALTH AND WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 21
BEST v WELLCOME FOUNDATION LTD & ORS 1992/5/1422
Civil Liability and Courts Act 2004 – Personal Injuries Action – Evidence – Dishonesty – Statute of Limitations – Negligence – Health and Safety at work – Damages - Costs
2013/6526P - Herbert - High - 27/11/2014 - 2014 31 8909 2014 IEHC 579
Facts: The case under consideration concerned a personal injuries action. It was claimed by the plaintiff that he had been forced to leave work on account of contracting occupational asthma as a result of poor working conditions and the negligence of his employers. The plaintiff had worked for the Defendant between 1991 and 2001 and he alleged that he was exposed to excessive levels of dust throughout that period.
Held by Justice Herbert in light of the available evidence and submissions presented that he would refuse to make an order dismissing the plaintiff”s action on foot of s 25 or s 26 of the Civil Liability and Courts Act 2004. Determining that the only type of dust mask provided by the defendant to the plaintiff was ineffective to provide proper protection against the inhalation of hardwood dust, Justice Herbert further reasoned that the defendant knew or ought reasonably to have known that the employees were dealing with a recognised cause of occupational asthma so that the risk to them from ineffectual dust masks was clearly foreseeable. Consequently, the Court found the defendant guilty of negligence, breach of duty and breach of statutory duty. He did not find the plaintiff guilty of contributory negligence insofar as he wore the type of dust mask provided and that he did not fail to take sufficient care for his own safety or fail to exercise due care and attention. On the balance of probabilities it was, however, found that the plaintiff“s asthma was not caused by any negligence, breach of duty or breach of statutory duty on the part of the defendant. His common asthma was however, exacerbated for a period by the inhalation of hardwood dust due to the negligence, breach of duty and breach of statutory duty of the defendant. Consequently, the plaintiff was awarded general damages in the sum of €35,000 and €1,500 in respect of Special Damages together with appropriate costs.
JUDGMENT of M. Justice Herbert delivered the 27th day of November 2014
1. Section 26 of the Civil Liability and Courts Act 2004, provides that:-
2 "(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that -
(a) is false or misleading, in any material respect, and
(b) he or she knows to be false or misleading, the court shall dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that -
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit, dismiss the plaintiffs action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.
(4) This section applies to personal injuries actions -
(a) brought on or after the commencement of this section, and
(b) pending on the date of such commencement."
2. It was not disputed at the hearing of this action that the provisions of this section and of s. 25 of the Act of 2004, apply to the present personal injuries action. Section 25(1) of the Act makes it an offence to give or dishonestly cause to be given or to adduce or cause to be adduced, evidence in a personal injuries action which is false or misleading in any material respect and, which the person knows to be false or misleading. It further provides at subs. (2) that it shall be an offence:-
2 "(2) If, after the commencement of this section, a person gives, or dishonestly causes to be given, an instruction or information, in relation to a personal injuries action, to a solicitor, or person acting on behalf of a solicitor, or an expert, that -
(a) is false or misleading in any material respect, and
(b) he or she knows to be false or misleading."
3. The term "dishonestly" is given the same definition as in s. 26(3) of the Act. An "expert" for the purpose of the section is defined in subs. (5) as a person who has a special skill or expertise and who:-
a "(a) has been engaged by or on behalf of a plaintiff or defendant in a personal injuries action to give expert evidence in that action, or
(b) for the purposes of or in contemplation of a personal injuries action has been requested to carry out an examination or investigation in relation to any matter for which such special skill or expertise is necessary."
4. There is, however, no provision as in s. 26 of the Act that the court shall dismiss the plaintiff's action by reason of any of the matters specified in s. 25(2). The court was referred to the decisions of the Supreme Court in Ahern v. Bus Eacute;ireann  IESC 44 and Goodwin v. Bus Eacute;ireann  IESC 9.
5. In a request for further and better particulars dated the 12 th September, 2012, the solicitors for the defendant sought the following particulars arising out of the Civil Bill issued on the 19 th May, 2003 and, the replies to particulars dated the 24 th April, 2009:-
2 "11. Please state whether the plaintiff has had any disease, illness, sickness or medical complaint either prior to or subsequent to the onset of the symptoms complained of in the within proceedings and if he has, please state:-
(i) when it occurred;
(ii) details of the symptoms;
(iii) the treatment received;
(iv) the names and addresses of all medical practitioners from whom treatment was sought."
6. The answer given in replies dated the 22 nd October, 2012, was "No".
7. In the Particulars of Personal Injuries endorsed on the Civil Bill it is pleaded that:-
"The Plaintiff was advised by his medical consultant to cease his employment with the Defendant and the Plaintiff continues under review and further particulars of personal injury will be furnished in due course when the same become available."
8. This advice appears in a letter dated the December, 2002, from Neil J. Brennan, Consultant Respiratory Physician, to the plaintiff's solicitors, who had referred the plaintiff to him. In the first paragraph of this letter, Mr. Brennan States:-
"I examined Mr. Lawlor 10.12.2002. He was working in a Joinery for the last twelve years but for the last eighteen months has noticed wheeze and shortness of breath."
9. Therefore the onset of the symptoms occurred first in or about the 10 th June, 2001. The then statutory period of limitations was three years. The Ordinary Civil Bill was issued out of the Circuit Court Office at Kilkenny on the 19 th May, 2003. An application by the defendant to amend its Defence delivered in 2007, was refused by this Court (Cross J.) on the 3 rd June, 2014. This application was grounded on the Affidavit of the defendant's solicitor sworn on the 30 th May, 2014, where it is deposed as follows:-
2 "9. At the time of the delivery of the Defendant's Defence, the delay on the part of the Plaintiff had not been so egregious and unreasonable as to warrant a plea to the effect that he had been guilty of inexcusable and inordinate delay. Having regard to the manner in which the claim has been prosecuted in the intervening period, however, the question of delay and the prejudicial effect thereof has become a real and significant issue between the parties. In the premises, an amendment of the Defence to include a plea that the Plaintiff has been guilty of inordinate and inexcusable delay has become necessary so as to ensure that the real issues in controversy between the parties are addressed and determined at the trial of the action and I pray this Honourable Court to permit the Defendant to amend its defence to include a plea of inordinate and inexcusable delay.
10. In relation to the Statute of Limitations, the medical reports furnished by the Plaintiff record that he developed respiratory difficulties in or around 2001 and that they had largely settled by 2002. He worked for the Defendant between 1991 and 2001 and he alleges that he was exposed to excessive levels of dust throughout this period. The date of the accrual of his cause of action will be a matter for medical evidence. At the time of the delivery of the Defendant's Defence, the Plaintiff's medical records had not been provided to the Defendant's solicitors. Those records have now been furnished and the Defendant is desirous of raising a defence under the Statute of Limitations Act 1957, as amended. In the circumstances of the case, I say that the issue of the date of the accrual of the cause of action and the related question of whether...
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