Moynihan v Greensmyth

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 17 June 1977
• Docket Number: [1969 No. 2136 P]
• Date: 17 June 1977

High Court

Supreme Court

[1969 No. 2136 P]

Moynihan v. Greensmyth

Cecelia Moynihan

Plaintiff

and

Richard Greensmyth, Defendant

Constitution - Statute - Validity -Limitation of actions - Disability - Infant plaintiff - Negligence of deceased motorist - Survival of cause of action - Plaintiff's claim barred - Personal rights - Civil Liability Act, 1961 (No. 41), ss. 8 9 - Constitution of Ireland, 1937, Article 40.

Trial of point of law.

The plaintiff (née Cecelia O'Shea on the 16th April, 1950) was injured on the 6th August, 1966, when a motor car in which she was a passenger collided with a bridge near Glenflesk in the county of Kerry. William Greensmyth was the driver of the car and he was killed in the accident. which was caused by his negligence. On the 5th August, 1969, the plaintiff (suing by her next friend, Christopher O'Brien) issued a plenary summons in the High Court and claimed damages in respect of her injuries from the defendant in his capacity as personal representative of William Greensmyth, deceased. The plaintiff attained her majority on the 16th April, 1971, and on the 12th February, 1972, she married Denis Joseph Moynihan and she then prosecuted her claim as an adult and in her married name.

On the 7th July, 1975, the High Court (Doyle J.) directed that the issue relating to the validity of s. 9 of the Civil Liability Act, 1961, was to be tried by a judge without a jury before the hearing of the substantive claim in the action.

Section 8 of the Civil Liability Act, 1961, provides:—

"(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.

(2) Where damage has been suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of subsection (1) of this section, to have been subsisting against him before his death such cause of action in respect of that act as would have subsisted if he had died after the damage was suffered."

Section 9 of the said Act of 1961 provides:—

"(1) In this section 'the relevant period' means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.

(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either—

• (a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or

• (b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires."

Section 11, sub-s. 2(b), of the Statute of Limitations, 1957, provides that (subject to s. 49) an action claiming damages for negligence in which the damages claimed include damages in respect of personal injuries shall not be brought after the expiration of three years from the date on which the cause of action accrued. Section 49 of the Statute of 1957 provides1that where the right of action in such circumstances has accrued to a person under disability (including infancy), he may bring his action before the expiration of three years from the date when he ceased to be under the disability; it was this period of limitation which was replaced, so far as the plaintiff was concerned, by the provisions (supra) of s. 9 of the Act of 1961.

Section 3 of Article 40 of the Constitution of Ireland, 1937, provides:—

"1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 12th May, 1977.

In regard to actions for damages for negligence where the damages claimed include damages for personal injuries, it is enacted by s. 11, sub-s. 2(b) of the Statute of Limitations, 1957, that (subject to s. 49) an action shall not be brought after three years from the date on which the right of action accrued. Sub-paragraph (i) of sub-s. 2(a) of s. 49 enacts that where a person is under a disability (including infancy) on the date when such right of action accrued to him, the action may be brought at any time before the expiration of three years from the date when he ceased to be under the disability or died, whichever first occurs.

Section 9, sub-s. 2, of the Civil Liability Act, 1961, provides, inter alia, that no proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either (a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or (b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.

On the 6th August, 1966, a motor car driven by W.G. collided with part of a bridge at the side of the road on which it was travelling, and W.G. was killed. The plaintiff, then aged 16 years, was a passenger in the car and was injured in the accident, which was caused by the negligence of W.G. On the 5th August, 1969, the plaintiff (suing by her next friend) instituted an action in the High Court and claimed damages from the defendant in his capacity as personal representative of W.G. The defendant pleaded that the plaintiff's claim was barred by s. 9 of the Act of 1961, to which the plaintiff replied that s. 9 of that Act was invalid having regard to the provisions of Article 40, s. 3, of the Constitution. At the trial of the point of law. thus raised it was

Held by Murnaghan J. that the provisions of s. 9, sub-s. 2 of the Civil Liability Act, 1961, which barred the plaintiff's claim on the ground that her proceedings had not been commenced within the period of two years after the death of W.G., were not an "unjust attack" on the plaintiff's property rights and did not constitute"injustice done" within the meaning of sub-s. 2 of s. 3 of Article 40 of the Constitution.

2. That such provisions were not invalid having regard to the provisions of the Constitution and that, accordingly, the plaintiff's claim was statute barred.

On appeal by the plaintiff it was

Held by the Supreme Court, in disallowing the appeal, that, assuming that the plaintiff's right to sue for damages resulting from the negligence of W.G. was a property right within the meaning of sub-s. 2 of s. 3 of Article 40 of the Constitution, in view of the State's other duty to citizens interested in the early completion of the administration of the estates of deceased persons it had not been shown that there was a failure to protect from unjust attack and, in the case of injustice done, to vindicate the property rights of the plaintiff.

O'Brien v. Keogh [1972] I.R. 144 mentioned.

Cur. adv. vult.

Murnaghan J. 12th July, 1976

This issue relates to s. 9 of the Civil Liability Act, 1961, and in particular to sub-s. 2(b) thereof. These proceedings were commenced in the name of Celia O'Shea, an infant suing by Christopher O'Brien her next friend, against Richard Greensmyth as the personal representative of

William Greensmyth, deceased, by the issue of a plenary summons on the 5th August, 1969, in respect of injuries alleged to have been sustained by the infant plaintiff in an accident which was stated in the statement of claim (delivered on the 1st May, 1974) to have taken place on the 6th August, 1966.

At paragraph 1 of the defence (delivered on the 15th October, 1974) the defendant pleaded:— "The plaintiff's claim is statute barred by virtue of the provisions2 of s. 9 Civil Liability Act, 1961, proceedings not having been commenced within two years of the death of William Greensmyth deceased." In paragraph 2 of the reply it was pleaded:— "The plaintiff's claim is not barred by virtue of the provisions of s. 9 of the Civil Liability Act, 1961, or otherwise. The said section in so far as it purports to affect the rights of infants is invalid having regard to the provisions of the Constitution because it fails to protect and vindicate the guarantee contained in Article 40, s. 3, of the Constitution."

On the 7th July, 1975, Mr. Justice Doyle ordered:—"That the issue raised by the defendant in his defence as to whether or not the plaintiff's claim in the above entitled action is statute barred by virtue of the provisions of s. 9 of the Civil Liability Act, 1961, should be tried by a judge sitting without a jury prior to the substantive action in respect of which these proceedings have been taken." When the issue was opened before me it was proposed by Mr. Egan for the plaintiff and adopted by Mr. Liston for the defendant and by Mr. Lardner for the Attorney General (on whom notice of the trial of the issue had been served) that instead I should try the following issue:—

"Whether or not section 9 of the Civil Liability Act, 1961, is repugnant to Article 40, s. 3, sub-s. 2, of the Constitution in so far as it fails to protect and vindicate the property rights of the plaintiff contrary to the guarantee contained in the said Article and whether or not the plaintiff's action is statute barred."

The trial of the latter issue proceeded on the following admitted facts:—

• 1. That the plaintiff was an infant at the date of the accident and also on the date of the issue of the said plenary summons, and has since come of age and has got...