John Lawlor v Carroll System Buildings (1970) Ltd

 
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[2014] IEHC 579

THE HIGH COURT

[No. 6526 P./2013]
Lawlor v Carroll System Buildings (1970) Ltd
No Redaction Needed

BETWEEN

JOHN LAWLOR
PLAINTIFF

AND

CARROLL SYSTEM BUILDINGS (1970) LIMITED
DEFENDANT

2013/6526P - Herbert - High - 27/11/2014 - 2014 31 8909 2014 IEHC 579

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 1993 3 IR 421 1992 ILRM 609 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

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JUDGMENT of M. Justice Herbert delivered the 27th day of November 2014

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1. Section 26 of the Civil Liability and Courts Act 2004, provides that:-

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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 -

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(a) is false or misleading, in any material respect, and

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(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.

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(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that -

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(a) is false or misleading in any material respect, and

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(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.

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(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.

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(4) This section applies to personal injuries actions -

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(a) brought on or after the commencement of this section, and

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(b) pending on the date of such commencement."

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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:-

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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 -

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(a) is false or misleading in any material respect, and

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(b) he or she knows to be false or misleading."

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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:-

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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

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(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."

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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 [2011] IESC 44 and Goodwin v. Bus Eacute;ireann [2012] IESC 9.

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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:-

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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:-

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(i) when it occurred;

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(ii) details of the symptoms;

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(iii) the treatment received;

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(iv) the names and addresses of all medical practitioners from whom treatment was sought."

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6. The answer given in replies dated the 22 nd October, 2012, was "No".

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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."

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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."

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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:-

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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.

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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 the Plaintiff's claim is statute barred are live issues in dispute between the parties and that the Defendant ought to be permitted to amend its Defence to raise it at the trial of the action."

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10. In the course of his examination-in-chief by senior counsel for the plaintiff, Dr. John Curtin who had been the plaintiff's doctor since 1984 and who gave evidence in the case for the plaintiff, referred to the plaintiff's medical records and stated that he had been told by Dr. Carmel Condon, who was a locum tenens in his practice at that time, that on the 23 rd August, 1999, she had formed the impression that he was suffering from exercise induced asthma and had advised the plaintiff to use an inhaler. The relevant portion of the entry in the medical record is:-

"Adv. Re inhaler"

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imp. exercise induced asthma - (word indecipherable) from C.C."

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11. It was submitted by senior counsel for the defendants that this was clear evidence that the plaintiff must have been fully aware that he had a very relevant "disease, illness, sickness or complaint", on the 23 ...

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