Rainsford v Limerick Corporation

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 01 January 1995
• Neutral Citation: 1981 WJSC-HC 1121
• Docket Number: No. 2229 P. 1973
• Court: High Court
• Date: 01 January 1995

RAINSFORD v. LIMERICK CORPORATION.

MARTIN RAINSFORD

Plaintiff

.v.

THE MAYOR ALDERMEN AND BURGESSES OF THE CITY OF LIMERICK

Defendants

1981 WJSC-HC 1121

No. 2229 P. 1973

THE HIGH COURT

1 Judgment delivered the 31st day of July 1979 Finlay P.

2 This is an application by way of appeal to set aside an order of the Master of the High Court made on the 2nd of March 1979 extending the time for delivery and filing of a statement of claim in these proceedings for a period of seven days from that date. Before the Master of the High Court on the 2nd of March 1979 was also a counter application by the defendants for an order dismissing the plaintiff's action for want of prosecution and although the Master did not make any formal order on that application the present appeal by the defendants in effect asks not only that the order extending the time for the filing of the statement of claim be set aside but that also that an order be made in lieu thereof dismissing the action for want of prosecution. This action is a claim by the plaintiff for damages for personal injuries alleged by him to have been caused by the negligence of the defendants and arises out of an accident which occurred on the 14th of May 1971 when a vehicle being driven by the plaintiff collided with a heap of stones, rubble and tar barrels which it is alleged were placed on the road way in the city of Limerick by the defendants their servants or agents. It was agreed by Counsel before me though the matter is not dealt with in great detail upon the affidavits that as a result of this accident the plaintiff who is now approximately 47 years of age, and a publican by trade, has been rendered an extensively disabled wheelchair patient for the rest of his life.

3 The facts deposed to on the affidavits surrounding the proceedings which followed upon the happening of the accident may thus be summarised.

4 The plaintiff consulted his present solicitors with regard to the accident in the month of May 1971 and the scene of the accident was then surveyed on his behalf by an engineer in the same month. A statement from an independent witness to the accident was obtained by the solicitors in July 1971 and on the 20th of August 1971 a letter was written to the defendants alleging that the accident had occurred as a result of the defendants' negligence and intimating an intention on the part of the plaintiff to institute proceedings for his injuries, loss and damage. This letter was apparently simply acknowledged by the defendants.

5 The accident had been investigated by the Garda Siochana and there was a delay on their part in supplying a report to the solicitors for the plaintiff which did not become available until May 1972. In the same month the present solicitors for the defendants were nominated to act for them in the claim.

6 The Solicitors for the plaintiff had consulted Senior Counsel by this time and in July of 1972 he gave directions that enquiries should be made from the defendants whether the works consisting of the alleged obstruction on the road had been carried out by the defendants servants or agents themselves, or whether they had been carried out by an independent contractor employed by the defendants or whether they had been carried out with the permission of the defendants by the owner or occupier of adjoining lands. These enquiries were then made by letter to the Defendants. These were undoubtedly proper enquiries to be made and necessary to ascertain before the appropriate proceedings could be instituted. When the solicitors for the defendants sought a medical examination of the plaintiff in October 1972 they did not reply to the queries which had been submitted to them in July 1972 though they did not dispute their willingness to reply to them. A number of reminders were then sent by the solicitors for the plaintiff. The information necessary was obtained in July of 1973. Upon the receipt of this information the papers were resubmitted to Senior Counsel and as a result of his opinion a plenary summons was drafted and issued on the 20th of August 1973. Service of this summons was accepted by the solicitors for the defendants in the same month.

7 The plaintiff's medical condition as a result of the accident was I am satisfied not only one of considerable gravity but also one of considerable complexity and enquires were made during the end of 1973 and into the beginning of 1974 with regard to his precise medical prognosis and with regard to the items of his damage and loss which were undoubtedly also complicated. During 1974 the solicitors for the defendants both by telephone and in writing sought facilities for a series of medical examinations and these were eventually arranged though the arrangement of them was more complicated than the normal case due to the fact that the appropriate method whereby they should be carried out was that the plaintiff should travel from Limerick and spend a period of a day or more in the Medical Rehabilitation Centre in Dun Laoghaire for the purpose of having the medical examinations carried out. These medical examinations appear to have occurred towards the letter half of 1974.

8 Up to this time the plaintiff's case had been dealt with by an assistant solicitor in the firm who he had consulted and that assistant solicitor appears to have left the firm before the end of 1974. I am satisfied on the evidence that the case then came to be handled by the senior partner in the firm who was at that time suffering from periodic illness though carrying on to some extent his practice and who eventually died in the year 1978. From the beginning of 1975 until the middle of 1976 there does not appear to have been any correspondence between the parties in the case nor is there any evidence of any particular activity on the part of the solicitor then handling the plaintiff's case. On the 22nd of July 1976 the solicitor for the defendants wrote a letter to the solicitor for the plaintiff partly of a personal nature reminding him of what he described as an old outstanding case setting out his attitude and the result of his investigation of the accident including a strong denial of certain allegations of negligence and a contention that he had a good chance of successfully defending the action on behalf of the defendants but suggesting that it might be possible having regard to the undoubted severity of the plaintiff's injuries that the matter could be compromised. To that letter there does not appear to have been any immediate reply, other than a suggestion that the discussion be postponed until after the vacation when the solicitor then acting on behalf of the plaintiff would have returned to his office.

9 It would appear that a statement of claim had been drafted by junior Counsel and returned by him with a direction that it be settled by Senior Counsel in February of 1975 but the solicitor then acting for the plaintiff had by that time become seriously ill and apparently did not take any action with regard to that from that time onwards. There does not appear to have been anything done in the case by the plaintiff between late 1976 and November 1977 when a notice of motion of intention to proceed was served in accordance with the rules. That having been done and the Senior Counsel who had originally advised on the matter having ceased practice at the Bar the papers were sent to Senior Counsel in November 1977 for his advice and to settle the statement of claim. This was returned settled in March 1978. In July 1978 the solicitors for the plaintiff wrote to the solicitors for the defendant asking for consent to the late filing of a statement of claim. There was no reply to that and after certain reminders eventually the solicitor for the defendants in November 1978 informed the...