Murphy v Grealish, [2006] IEHC 22 (2006)

Docket Number:2003 7297P
Judge:Mac Menamin J.
 
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THE HIGH COURT[2003 No. 7297 P]BETWEENDAVID MURPHYPLAINTIFFAND

MICHAEL GREALISHDEFENDANTJUDGMENT of Mr. Justice John MacMenamin dated the 11th of January 2006.

By notice of motion dated 2nd day of March, 2005 the defendant seeks the following relief in the above entitled proceedings

(a) an order dismissing the plaintiff's proceedings herein pursuant to the provisions of s. 11(1)(2) of the Statute of Limitations Act 1957 as amended by s. 3(1)(2) of the Statute of Limitations Act 1991;

(b) further or in the alternative an order directing the trial of a preliminary issue namely whether the proceedings herein are statute barred pursuant to the provisions of s. 11(1)(2) of the Statute of Limitations Act 1957 as amended by s. 3(1)(2) of the Statute of Limitations Amendment Act 1991.

Background

A number of matters are not in dispute.

1. The plaintiff was born on 2nd November, 1963. He is a cab driver and resides in County Galway. He was involved in an accident on 12th May, 2000 when he was sitting in his car which was stationary on the public highway at or near the Great Southern Hotel at Eyre Square in the city of Galway. The defendant's car was driven into the rear of the plaintiff's stationary car as a result of which he sustained significant injuries to his neck and back.

Thereafter significant correspondence took place between the plaintiff's solicitors (O'Dea and Company), the defendant's insurers (Quinn Direct Insurance) and the solicitors who thereafter came on record for the defendant, Erne Solicitors.

2. It will be necessary to deal with this correspondence in some detail in order to arrive at a complete understanding as to the respective understandings of the parties regarding what occurred. While some of that correspondence was headed "without prejudice", the defendant's counsel, Mr. Paul Henry O'Neill BL has quite properly indicated at the hearing of this motion that no reliance will be placed upon any contention of privilege.

3. Insofar as documentary evidence is available to this court therefore, the first letter in sequence appears to be one of the 1st of August, 2000 from Quinn Direct addressed to the plaintiff personally. It is headed "without prejudice" and states "Dear Mr. Murphy we write to advise that an independent motor assessor has agreed repairs on your vehicle at IR £1,849.53. Please complete the enclosed acceptance form and return it to us. On receipt of same we will issue a cheque in the amount of IR £1,849.53 in your favour in full and final settlement of this claim.

We trust this meets with your approval. We look forward to your early reply.

Yours faithfully

Deborah O'Reilly

Claims Department."

4. Thereafter Messrs O'Dea and Company respond on behalf of the plaintiff. By letter of 17th August, 2000 they state:

"Dear Sirs

We confirm we act on behalf of Mr. Murphy. We refer to your letter of 1st inst. You might confirm that the figures were agreed with McCormack Car Sales Limited.

Our client suffered personal injuries in relation to the accident. You might confirm that you are prepared to deal with the material damage at this stage.

Yours faithfully

O'Dea and Company".

5. By letter of 31st August, 2000 Quinn Direct respond to O'Dea and Company. This letter which was again headed "without prejudice" stated:

"Dear Sirs

We confirm receipt of your letter to our insurer dated 17th August, 2000 the contents of which have been noted. We have received the completed Accident Report Form from our insurer and we are satisfied that liability will not be an issue.

We advise that is not the policy of this company to deal with claims on a "piece-meal basis", therefore we will not be in a position to settle the material damage claim, separately from a claim for personal injury. However if your client can prove that he is not the registered owner of the vehicle we will be in a position to deal with the material damage.

Please outline in detail the nature and extent of the injury sustained by your client, along with the name and address of his attending G.P. and consultants, so that we may arrange our own medical examination, if necessary. Please also advise your client's age, occupation, marital status and VAT status and confirm if he was wearing a seat belt at the time of the incident.

We await your reply."

6. Matters rested thus in correspondence until 18th June, 2001, when Quinn Direct contacted O'Dea and Company. By letter of that date they stated:

"Dear Sirs

We refer to the above and to previous correspondence.

Please could you confirm if your client is still pursuing his injury claim and if so we would appreciate if you could outline in detail the nature and extent of his injuries and his medical attendance.

We await your early reply."

To this letter Messrs O'Dea and Company responded on 5th July, 2001 indicating that "Our client is pursuing a claim in relation to the matter. We have Circuit Court proceedings drafted and same will be served presently."7. By letter of 22nd October and 9th November, 2001 Quinn Direct again contacted the plaintiff's solicitors indicating that to date they have not received any indication of the nature and extent of the plaintiff's injuries, that no further correspondence had been received since the letter of 1st July, 2001, and that if no further contact took place that Quinn Direct would be closing their file in the matter as they will not be in a position to proceed. A letter, which is not exhibited of 8th November appears to have been sent from O'Dea and Company. On 13th November Quinn Direct respond to the following effect:

"Dear Sirs

We write further to your letter of 8th November last.

You still have not provided the names and addresses of your client's G.P. and consultants.

This was first requested in our letter to you of 31 August, 2000.

We await details of the same within the next seven days."

In response to that letter O'Dea and Company state on 20th November, 2001:"We refer to yours of 13th inst. Our client is at present awaiting an orthopaedic examination. Upon receipt of the results we shall revert to you." On the following day a further letter was sent by O'Dea and Company to Quinn Direct indicating the identity of the plaintiff's medical advisors. On 5th December, 2002 a further letter was sent by Hugh McGrath Regional Claims Manager of Quinn Direct to the plaintiff's solicitor. This letter comes within a different category to those of the 1st August, 2000 and 31st August. The former two letters were both headed without prejudice. For that reason the defendant indicates they were not exhibited in the grounding affidavit sworn in this application. However the latter letter of 5th December, 2002 was not exhibited either. The reason for such omission is stated to be that such letter was sent by Mr. McGrath Regional Claims Manager of Quinn Direct from his home although it is on company notepaper. For this reason the defendants state they were unaware of its existence until this application was made and the letter was referred to by the plaintiff's solicitors. The letter of 5th December, 2002 is not headed "without prejudice". It is addressed to Donal Downes Solicitor of O'Dea and Company Solicitors acting on behalf of the plaintiff Mr. McGrath states:"Dear Donal

I refer to the above matter and to previous correspondence concerning same.

Could you let me know as soon as possible if:

You would be prepared to share medicals with Quinn-direct in this case and if you are prepared to discuss settlement of the claim. Liability is not an issue.

Trusting to hear from you at your earliest convenience." 8. By letter of 5th February, 2003 the plaintiff's solicitor informed Mr. McGrath of Quinn Direct insurance that the plaintiff's x-rays were being reviewed by an orthopaedic surgeon at an appointment for March of that year. It was presumed that that surgeon would give an addendum to his report confirming his findings. The plaintiff's solicitor indicated "we will have no difficulty in sharing this". It will be opportune to recollect at this point that the date of the accident was 12th May, 2000. Therefore all subsequent correspondence took place outside the three year limitation period.

The report from the consultant orthopaedic surgeon was dated 21st May, 2003. This report of Mr. Michael Gilmore FRCS is exhibited in the course of the proceedings.

9. Mr. Gilmore points out that a scan taken at the MRI centre Bon Secour Hospital on 13th May, 2003 showed degenerative change at T6/7, T7/8, and T9/10. It went on to state: "at the T7/8 level there is a moderate disc protrusion which does indent (sic) the thecal sac and thoracic spinal cord but there is no evidence of any damage to the spinal cord itself and nor is there any evidence of nerve root compression. Likewise there is a smaller disc protrusion at the C6/7 level which again does indent the thecal sac." Mr. Gilmore's opinion was that the plaintiff continued to have disability with his back as a result of the injury sustained "now three years ago". The MRI scan showed a problem at the thoracic spine which would account for this ongoing disability but he did not consider that any surgical intervention was indicated. Indeed his view was that the only treatment that may be justified was a localised injection in the tender area in his back and it was for the plaintiff himself to decide when this should be done. He concluded that the plaintiff would have an ongoing disability in his back as a result of the injury which has led to the degeneration and bulging of these discs.

10. While this report from Mr. Gilmore is dated 21st May, 2003 it clearly had not been received by O'Dea and Company by 26th May. This may be inferred from their letter of 26th May, 2003 addressed to Mr. Hugh McGrath the Regional Manager which stated:"Dear Hugh

The plaintiff had his MRI scan on Tuesday 13th May, 2003 but we imagine it is a couple of weeks before Mr. Gilmore gets to read it. He missed a previous appointment." Thereafter...

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