McFadden v Neuhold
| Jurisdiction | Ireland |
| Judge | Mr. Justice Bernard J. Barton |
| Judgment Date | 07 April 2017 |
| Neutral Citation | [2017] IEHC 240 |
| Docket Number | [2014 No. 132 P] |
| Court | High Court |
| Date | 07 April 2017 |
[2017] IEHC 240
Barton J.
[2014 No. 132 P]
THE HIGH COURT
Tort – Damages & Restitution – Road Traffic Accident – Statute of Limitations Acts 1957 and 1991 – S.7 of the Civil Liability and Courts Act 2004 – Delay – Personal Injuries Assessment Board Act, 2003
Facts: The preliminary issue in the present proceedings was whether the plaintiff's claim was statute barred. The plaintiff took the plea of estoppel against the defendant. The plaintiff claimed that she had waited for the defendant to make a statement that liability would not be an issue in the claim, but the plaintiff did not make an application to the Personal Injuries Assessment Board (PIAB) within the stipulated time limit.
Mr. Justice Bernard J. Barton held that the plaintiff had failed to discharge the onus in relation to the plea of estoppel. The Court held that the defendant could rely on the plea that the present claim was statute barred. The Court found that the cause of action had accrued on the date of accident and it was within the knowledge of the plaintiff and her solicitor that they had to make an application to the PIAB within the specified time limit. The Court held that the failure to obtain clarity in relation to the liability from the defendant would not be a ground for excusing the delay in making the relevant application.
These proceedings arise as a result of a road traffic accident which occurred on 21st September, 2011, on the Business Park Road, Letterkenny, Co. Donegal and which involved a collision between two vehicles, one driven by the Plaintiff and the other by the Defendant.
A full Defence has been delivered to the Plaintiff's claim containing a plea that the proceedings are statute barred to which a Reply has been delivered pleading that the Defendant is estopped from relying on the Statute on grounds which are particularised.
On the face of it the proceedings are statute barred. It is accepted that an application in respect of the claim was not made to the Injuries Board (the Board) within 2 years from the date of the accrual of the cause of action as provided for by the Statute of Limitations Acts 1957 and 1991, (the Statute) as amended by s.7 of the Civil Liability and Courts Act 2004 (the Act of 2004).
The parties agreed that this aspect of the case should be tried as a preliminary issue and as to that have delivered pleadings from which it is apparent that the reasons and most probable explanation for the failure to make the application to the Board in time are fundamental to the resolution of the issue under consideration.
At the outset the Court is satisfied on all of the evidence that this is not a case where the Plaintiff or her solicitor were unaware of the limitation period or where the limitation expiry date was overlooked, quite the contrary, the approach of the limitation expiry date was appreciated which begs a number of core questions relevant to the issue:
(i) Why then was the application not made in time?
(ii) To what extent, if at all, was the failure to make the application attributable to the words and conduct of the Defendant's representative, Liberty Insurance (Liberty)?
(iii) Were there other factors, including those attributable to persons unconnected with the Defendant or for whom the Defendant is not legally responsible which explain what happened and why?
What emerges from the evidence is that information which the solicitor received (a) from the Plaintiff when she consulted him, (b) from the Board when he enquired as to whether an application, if made, would be accepted and processed and (c) the content of a letter dated 22nd July, 2013, sent by Liberty in response to the solicitor's letter of July 16th calling for an admission of liability, unquestionably influenced his decision making and contributed to the state of affairs which has given rise to these proceedings. To achieve a comprehensive understanding of these matters it is considered necessary that they be placed in the factual context from which they arise.
Background.
The accident circumstances were investigated by Garda Conor Molloy and by Michael Bond, Regional Claims Manager (RCM) of the Defendant's road traffic insurer Quinn, subsequently Liberty. On the day following the accident, Mr. Bond contacted and introduced himself to the Plaintiff. At his request she gave a signed statement concerning the accident circumstances and the injuries which she had sustained.
Mr Bond also spoke to the investigating police officer; he expressed the view that the Defendant was responsible for the accident. Having completed his investigations a report was prepared for Liberty in which Mr Bond expressed the opinion that as the Defendant had executed a right hand turn across path of the Plaintiff's oncoming car she would be found liable for the accident, a view which he also communicated to her.
Three claims arose; one for material damage to the car, one for personal injury suffered by a passenger, Mr. Samuel McFadden, the Plaintiff's father, and, finally, the Plaintiff's claim. The material damage and passenger claims were settled directly with Mr. Bond who also tried, unsuccessfully, to settle the Plaintiff's claim. At the conclusion of direct negotiations between them he advised the Plaintiff that Liberty were not going to pay any more than €20,000 plus expenses, a sum which she felt was insufficient; he also advised that she should consult a solicitor, advice which she took.
There was some controversy between the parties as to whether an offer as such was made and whether or not there was more than one conversation in which a settlement sum was actually mentioned. Either way the Plaintiff made an appointment to see her solicitor whom she first consulted on the 23rd May, 2013. His understanding of the information received was that an offer of €20,000 plus expenses had been made to settle the claim. Subsequently, he made an undated memorandum for the file in those terms which was made available to the Court. The evidence of the Plaintiff and her solicitor was that advice was neither sought nor given in relation to the sufficiency of the offer.
The Plaintiff is not under any legal disability nor is there a date of knowledge issue; she was aware that she suffered injuries and that the car which she was driving at the time had been damaged; accordingly, her cause of action accrued on the date of the accident.
Having regard to s.7 of the Act of 2004 and the provisions of the Personal Injuries Assessment Board Act, 2003 (the PIAB Act), it follows that an application had to be made to the Injuries Board (the Board) in respect the claim by not later than the 20th of September 2013 if the running of time was to be stopped.
When the Plaintiff first consulted her solicitor on 23rd May; he gave her advice concerning the limitation period and requested that she furnish him with certain information so that he could process the claim, though he did not consider himself instructed until 12th July when he next met with the Plaintiff.
Following that consultation he wrote a number of letters to the Plaintiff, each dated the 15th July. He also wrote a letter to the Defendant on the 16th July, which was copied to Liberty, in which, significantly with regard to the issue, he called for an admission of liability.
Liberty replied by letter dated 22nd July in which it was stated that ‘…we are currently investigating this incident, however, should liability not be an issue we would encourage you to agree a settlement timeframe and costs with our Regional Claims Manager at the stage of initial contact. In the event that these terms are not agreeable, kindly confirm by return and Liberty Insurance will be happy to allow this case to proceed and be assessed by the Injuries Board’.
That letter also requested certain personal details in relation to the Plaintiff such as her full name, address, date of birth, PPS number, injuries sustained and the identity of her medical attendants; in conclusion it was stated that ‘Our Regional Claims Manager, Michael, will be in contact with you in the next few days.’
Mr. Bond's evidence was that he followed up on the letter by calling the solicitor's office and leaving a message with a secretary but to which there was no response; the solicitor gave evidence that he was unaware of the contact. Either way it is clear that apart from sending a letter, dated 29th July, furnishing the Plaintiff's personal particulars which had been sought no further contact was made between the solicitor and Liberty until the following November, by which time the limitation period had expired.
A number of matters arise from the letter of the 22nd July which are of potential significance in the context of the issue under consideration which are as follows:
(i) the invitation to agree a settlement timeframe and costs went unanswered,
(ii) no clarification was sought in relation to the issue of liability, which had not been conceded, and,
(iii) when nothing was heard from Mr Bond, the solicitor did not communicate with him despite having his contact details, which included his personal mobile number.
Instead, the solicitor wrote two letters on the 13th August, one to a Garda Inspector in Letterkenny looking for a Garda abstract together with any statements and the other to Dr. McFadden, the Plaintiff's GP, looking for a medical report. These were followed by a letter dated 19th August sent to another physician whom the Plaintiff had attended, Dr Khavia, also seeking a medical report receipt of which was acknowledged by letter dated 24th September, 2013.
On 11th October, 2013, the solicitor made an application for...
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Tsiu v Campbell Catering Ltd T/A Aramark Ireland
...in Doran v. Thompson or in Ryan v. Connolly. Nor was liability admitted in the more recent decision of Barton J. in McFadden v. Neuhold [2017] IEHC 240, being a decision upon which the Defendant placed considerable reliance. In that case, the relevant Insurer indicated that they were invest......