Mullins v Irish Prison Service

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 24 July 2018
• Neutral Citation: [2018] IEHC 486
• Court: High Court
• Docket Number: [2016 No. 2258 P.]
• Date: 24 July 2018

[2018] IEHC 486

THE HIGH COURT

Binchy J.

[2016 No. 2258 P.]

BETWEEN

ROBERT MULLINS

PLAINTIFF

AND

IRISH PRISON SERVICE

AND

MINISTER FOR JUSTICE AND EQUALITY

AND

IRELAND

DEFENDANTS

Personal injuries – Damages – Statute barred – Defendants seeking the dismissal of the plaintiff's claim on the grounds that it was statute barred – Whether the proceedings were statute barred

Facts: The plaintiff, Mr Mullins, a prison officer employed by the first defendant, Irish Prison Service, claimed damages in respect of personal injuries that he claimed he sustained in the workplace on 8th January, 2013. The plaintiff issued proceedings by way of plenary summons on 11th March, 2016. He subsequently served a statement of claim dated 7th July, 2016, received by the solicitors for the defendants on 11th July, 2016. The defendants issued a notice of motion dated 19th June, 2017 seeking, inter alia, orders dismissing the plaintiff's claim on the grounds that it was statute barred pursuant to the Statute of Limitations Act 1957 and/or pursuant to the Civil Liability Act 1961 or alternatively, the defendants sought a declaration that the plaintiff was not entitled to maintain the proceedings in circumstances where he failed to comply with the provisions of the Personal Injuries Assessment Board Acts 2003 and 2007 and/or the Civil Liability and Courts Act 2004. The motion came before the High Court for hearing on 15th May, 2018. However, on that date the defendants confined their application to an order dismissing the plaintiff's claim on the grounds that it was statute barred.

Held by Binchy J that the plaintiff had the necessary knowledge, or must be deemed to have the necessary knowledge, for the purposes of s. 2 of the Statute of Limitations (Amendment) Act 1991, no later than October, 2013, when he said he was unable to walk because of his discomfort. That being the case, Binchy J held that the proceedings were statute barred at the time of their issue.

Binchy J held that the defendants were entitled to succeed with the application.

Application granted.

JUDGMENT of Mr. Justice Binchy delivered on the 24th day of July, 2018

1 In these proceedings, the plaintiff, who is a prison officer employed by the first named defendant, claims damages in respect of personal injuries that he claims he sustained in the workplace on 8th January, 2013. The plaintiff is a litigant in person and issued these proceedings, not by way of personal injuries summons, but by way of plenary summons which issued on 11th March, 2016. He subsequently served a statement of claim dated 7th July, 2016. It appears to have been received by the solicitors for the defendants on 11th July, 2016. He had previously made an application to the Injuries Board, but the defendants declined to have the claim dealt with by that board and an authorisation to issue proceedings issued on 14th September, 2015.

2 The defendants issued a notice of motion dated 19th June, 2017 seeking, inter alia, orders dismissing the plaintiff's claim on the grounds that it is statute barred pursuant to the Statute of Limitations Act 1957, as amended and/or pursuant to the Civil Liability Act 1961 or alternatively, the defendants seek a declaration that the plaintiff is not entitled to maintain the within proceedings in circumstances where he failed to comply with the provisions of the Personal Injuries Assessment Board Acts 2003 and 2007 and/or the Civil Liability and Courts Act 2004. This motion came before the Court for hearing on 15th May, 2018. However, on that date the defendants did not pursue an application for the declarations referred to above, and confined their application to an order dismissing the plaintiff's claim on the grounds that it is statute barred.

3 Because the plaintiff is a litigant in person, counsel for the defendant suggested that the plaintiff give evidence as to the incident in which he claims to have suffered injury, rather than dealing with the application on the basis of the affidavits filed by the plaintiff in reply to this application, which did not address these issues with sufficient clarity. The plaintiff readily agreed to this suggestion. He gave evidence that on 8th January, 2013, he was involved in a 'control and restraint' incident, during the course of which he and a number of colleagues were required to remove a prisoner to hospital. This required the plaintiff and his colleagues to restrain the prisoner who had lain upon the floor and it was necessary to pick him up, and during the course of this manoeuvre the plaintiff claims that he injured his back. The plaintiff said that he was brought immediately to the surgery in the prison. There he was seen by a nurse, and later in the day attended his own general practitioner who gave him a medical certificate, whereby he was certified unfit for work for ten days.

4 The plaintiff stated that he had previously had back problems and his general practitioner, a Dr. Keegan, considered that he had aggravated his existing condition. This was evidenced by a report from his general practitioner dated 16th July, 2015 in which, under the heading of 'aggravation of pre-existing condition?', she replied 'yes'. She also notes: 'known lumbar disc disease on MRI June 2012. Aggravated January 2013 following incident at work as outlined above'.

5 After the ten day period, the plaintiff went back to work. However, his discomfort persisted and he attended his general practitioner again on numerous occasions. In her report of 16th July, 2015, Dr. Keegan records that the plaintiff had attended with her on nine occasions subsequent to January, 2013 in relation to his back. The plaintiff gave evidence that he took medication and had physiotherapy, but by late October, 2013, his condition had worsened to the point that he could not walk. By this I took him to mean that he had great difficulty in walking, rather than that he literally could not walk at all. He was referred by Dr. Keegan to a Mr. Ashley Poynton in November, 2014. In a short report dated 12th November, 2014, to Dr. Keegan, Mr. Poynton records:-

'Robert has run into trouble with a large disc herniation at L5/S1 on the right side. He is in a lot of pain and his foot has gone numb. His MRI scan shows a large sequestrate L5/S1 disc herniation on the right side. I am going to get him in and perform surgery next week.'

6 In a report dated 4th February, 2015, Mr. Poynton deals both with the plaintiff's pre-accident and post-accident medical condition. In the first two paragraphs of this report he states the following:-

'Mr. Mullins was referred to me initially by his general practitioner in August of 2012. This was for assessment of intermittent back pain and left sided sciatica. When I reviewed him he had evidence of degenerative disc disease at L4/5 and L4/S1 with a central and left sided disc bulge at L5/S1. I recommended at that point an epidural steroid injection. Following the epidural Mr. Mullins did very well, his pain settled down considerably, he began increasing his physical activity and returned to training and lost a considerable amount of weight and was in good condition until he was injured during the course of his occupation in January of 2013.

He described an incident in which he was dealing with a violent and aggressive prisoner and had to restrain this individual and carry the individual out of a holding cell. He injured his back in doing so and immediately after the incident developed back pain and right sided sciatica. The right sided leg pain was a new symptom which he did not experience before. His symptoms persisted and did not respond to treatment. He contacted my office subsequently in October, 2014 complaining of persistent sciatica. An MRI scan at that point showed a large right sided disc protrusion at L5/S1 which was a new finding.'

7 In a report, dated 7th April, 2015, Mr. Poynton again records how the right sided leg pain was a new symptom that the plaintiff had not experienced before and again records that the MRI scan following his attendance with Mr. Poynton in October of 2014 showed a large right sided disc protrusion at L5/S1, 'which was a new finding'.

8 In a report dated 10th July, 2015, Mr. Poynton states:-

'was previously reviewed by me in August, 2012, I had recommended an epidural steroid injection together with core muscle stability exercises to help his pain. Mr. Mullins initially had one full years' relief from this injection. I had not anticipated that surgery would be required. He could, therefore, not have any awareness prior to November that his injury was significant. Neither would he have gained knowledge of the extent of his symptoms until his pain recurred and an MRI was performed'.

9 In cross-examination, the plaintiff accepted that the incident of 8th January, 2013 was a clearly defined incident. He agreed that he completed an accident report form soon afterwards. He agreed that he had hurt himself when lifting the prisoner, and that this was something that he was required to do by his employer in the course of his duties. He said that it was only when he found out how significant the injury was that he decided to issue proceedings. Up until that point, he said, he had thought it was an exacerbation of a pre-existing injury.

10 Counsel for the defendants submits that on the date of the incident about which the plaintiff complains i.e. on 8th January, 2013 he was aware of the following facts:-

(a) That he had sustained an injury at work;

(b) That the injury was significant;

(c) That the injury occurred owing to an action that he was required to take by his employer in the course of his work in respect of which he alleges his employer was negligent;

(d) That he was aware of the identity of the defendant i.e. his employer.

11 All of that being the case, the defendant submits that the plaintiff had, on 8th January, 2013, the knowledge...