Mulrooney v Shee

JurisdictionIreland
JudgeMr. Justice Robert Eagar
Judgment Date02 December 2019
Neutral Citation[2019] IEHC 822
Date02 December 2019
Docket Number[2017 No. 1407 P]
CourtHigh Court

[2019] IEHC 822

THE HIGH COURT

Robert Eagar

[2017 No. 1407 P]

BETWEEN
PAULINE MULROONEY
PLAINTIFF/APPLICANT
AND
VICTOR SHEE
DEFENDANT/RESPONDENT

Tort – Personal injuries – Alleged assault – Damages – Whether claim statute-barred – Civil Liability and Courts Act, 2004

Facts: The plaintiff alleged the defendant had assaulted her when she was a passenger in her son’s car. Proceedings for damages were issued but struck out as they had not satisfied s 12 of the Personal Injuries Assessment Board Act 2003. A second set of proceedings was then issued, which now came before the High Court.

Held by the Court, that the claim would be struck out as statute barred. The provisions of the Civil Liability and Courts Act, 2004 had not been complied with, and the claim was clearly outside the statutory limitation period.

JUDGMENT of Mr. Justice Robert Eagar delivered on the 2nd day of December, 2019
1

This is a judgement in respect of an application by the defendant as set out on the notice of motion dated 27th November 2017 seeking:

i. An order pursuant to Order 19, rule 28 of the Rules of the Superior Court and/or pursuant to the inherent jurisdiction of the court to strike out the plaintiff's claim on the basis that it is bound to fail by reason of the fact it is manifestly statute barred

ii. Alternatively, an order pursuant to Order 25, rule 1 and/or Order 34, rule 2 of the Rules of the Superior Court setting down the preliminary issue the question to as to whether the plaintiffs claim is statute barred pursuant to the provisions of the Statute of Limitations Act 1957 (as amended).

Facts
2

The proceedings before the court is an action seeking damages in the context of personal injuries that arose out of an alleged assault which took place on the 9th of August 2011. This application is grounded on the affidavit of Dolph McGrath, solicitor. It is noted in the grounding affidavit that a claim was brought before the courts that arose out of the same incident bearing record number 2013 12042 P. This claim was struck out by the High Court on the basis that the plaintiff failed to obtain an authorisation from the Personal Injuries Board prior to the institution of the claim, thus, not satisfying section 12 of the Personal Injuries Assessment Board Act 2003.

3

A Personal Injuries Summons was issued on the 14th of February 2017. The Indorsement of Claim set out the reliefs sought by the plaintiff which are damages for personal injuries including physical and psychological injury arising from the assault on the plaintiff on 9th August 2011 at Main Street Carrick-on-Suir, Tipperary. The facts as set out in the Indorsement of Claim is that the defendant abused the plaintiff verbally, grabbed the plaintiff's left shoulder and hit the plaintiff with his fist into her shoulder while she was a passenger in her son's car. The assault caused bruising and pain in the left shoulder, associated anxiety causing post-traumatic stress disorder and tinnitus.

4

A statement of claim was delivered somewhat curiously on the 16th May 2017 following the entry of an Appearance. The Statement of Claim reiterates the injuries suffered as stated in the Indorsement of Claim. There are two principal reliefs sought in the Statement of Claim:

i. “Damages for physical and psychological injury arising from the assault perpetrated on the plaintiff by the defendant;

ii. Damages for the injuries caused to the plaintiff by the unprovoked attack and assault by the defendant”.

Personal Injury defence was delivered on behalf of the defendant on the 12th October 2017. The defence pleaded:-

i. “These proceedings are statute barred pursuant to the provisions of the Statute of Limitations Act 1957 (as amended) and the defendant will apply to have the claim dismissed prior to or at the commencement of the trial of the action;

ii. These proceedings ought to have been commenced and pursued by way of Personal Injuries Summons alone by virtue of the provisions of section 10 of the Civil Liability and Courts Act 2004 (“the 2004 Act”). The Plaintiff has delivered a Statement of Claim and the Defendant will apply, either prior to or the commencement of the trial of the action, to have the plaintiff's claim dismissed pursuant to section 10(3)(a)(iii) of the 2004 Act;

iii. Further or in the alternative and strictly without prejudice to the foregoing, the plaintiff has failed to comply with the requirements of section 10 (2) of the 2004 Act in his Personal Injuries Summons and the Defendant will apply, either prior or at the commencement of the trial of the action, to have the plaintiffs claim dismissed pursuant to section 10(3)(a)(iii) of the 2004 Act”.

5

In the grounding affidavit of this application, Mr. McGrath states that it is manifest from the pleadings that the plaintiff is seeking damages for personal injuries in the context of this action. Accordingly, a two-year limitation period applies pursuant to the Statute of Limitations Act 1991 as amended. Mrs Mulrooney in her replying affidavit asserts that the present proceedings should not be struck out on the basis that they could be saved by an amendment to the pleadings to include a breach of her right to bodily integrity.

6

The plaintiff made an application to the Injuries Board on the 4th April 2016 in respect of the proceedings before the court. This is four years and seven months after the assault took place on the 9th August 2011. Mr. McGrath contends that the provisions of the Personal Injuries Board 2003 relating to the holding of limitation periods are of no relevance. He concludes that this action is clearly statute barred.

7

The plaintiff states that the suspension of the limitations period by the Board is relevant on the basis that an amendment can save the proceedings from being statute barred. Furthermore, she adds that there was serious delay furnishing a medical report to her by her then medical practitioner, Dr. R Roche-Nagle which then added to the manner in which the Gardaí investigated the allegation which resulted in a decision not to prosecute the defendant by the DPP for the alleged assault. The plaintiff states that the delay was to “assist the defendant and in particular to frustrate any prosecution of the defendant for his assault one me”.

Submissions
8

Counsel for the defendant, Mr. Roberts BL, provided a timeline of the proceedings as follows:-

i. The assault occurred on the 9th August 2011

ii. Previous proceedings involving the same incident were struck out on the basis that she had failed to obtained authorisation from the Personal Injuries Board, thus not satisfying S.12 of the Personal Injuries Board Act 2004.

iii. An application to the Injuries Board was acknowledged as complete on the 4th April 2016.

iv. An authorisation was issued by Personal Injuries Board on the 3rd January 2017.

v. A personal injuries summons was issued on the 14th February 2017 with no affidavit of verification.

vi. On the 9th August 2017, an affidavit of verification was delivered.

vii. On 12th October 2017, a defence was delivered by the defendant including a plea that the proceedings are statute barred pursuant the Statute of Limitations Act 1957 (as amended).

viii. On 28th November 2017, the motion now before the court was issued.

ix. On the 22nd January 2018 this case was adjourned to the long motion list

x. On the 23rd July it was again adjourned.

xi. On 10th December, the case was adjourned and the plaintiff's application was marked as pre-emptory against the plaintiff.

9

He submits that the assault took place on the 9th August 2011 and personal injuries are being sought in this case by way of personal injury summons. Therefore, the relevant limitation period is one of two years and is unquestionably statute barred.

10

Counsel for the plaintiff, Mr. McCoy, BL, submitted that the defendant relies on S.10 (3)(a)(ii) of the Civil Liability and Courts Act 2004 but has not satisfied the burden on him in respect of that defence. He states that Mr. McGrath is critical of the fact that a statement of claim was delivered. However, he does not state anywhere in the affidavit that the defendant suffers prejudice as a result of this. Furthermore, he directs the court to the phraseology utilised in the pleadings. The defendant provides in their defence that there is a defect in the originating motion which is fatal to the claim and should be struck out pursuant to S.10 (3)(a)(ii) of the 2004 Act. He asserts that trespass to the person is essentially what is pleaded. However, assault is explicitly pleaded in the Indorsement of Claim and Statement of Claim. Counsel directed the court to Bullen & Leake & Jacob's Precedents of Pleadings, 13th Ed., 1990 at p. 53 which states:

“If the application of force directly to the person of another is intentional, the plaintiff has cause of action for assault and battery or trespass to the person as it may be described: if such application of force is the result of negligence, the plaintiff's cause of action is for negligence, even though in such a case it may also be called an action for trespass to the person; Letang v Cooper [1965] 1 Q.B. 232 C.A.

He submits that assault and trespass are interchangeable and that the use of assault ought to have indicated that this was a trespass to the person claim. On that note, a six-year limitation period applies. He continued to cite from Bullen & Leake:

“if the act or conduct speaks for itself as being plainly intentional or deliberate, e.g. hitting a person with the fists, it is permissible to omit the word ‘intentional’“.

The indorsement of claim reads:

“the defendant opened the door of the car the plaintiff was sitting in, verbally abused the plaintiff, grabbed the plaintiff's left shoulder and pulled her left arm and hit the plaintiff with his fists into her shoulder causing her bruising, an unprovoked attack which caused physical and...

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