Renehan v T & S Taverns Ltd t/a Red Cow Inn

• Jurisdiction: Ireland
• Judge: O”Donnell J.
• Judgment Date: 21 January 2015
• Neutral Citation: [2015] IESC 8
• Docket Number: [S.C. No. 266 of 2011],Appeal No: 266/2011
• Court: Supreme Court
• Date: 21 January 2015

[2015] IESC 8

THE SUPREME COURT

Murray J., O”Donnell J., McKechnie J.

Appeal No: 266/2011

Between:

Robert Renehan

Plaintiff/Respondent

And

T & S Taverns Limited t/a Red Cow Inn

Defendant/Appellant

Tort – Personal injury – Road accident – Respondent struck by car whilst working at licensed premises – Claim against licensee for damages – Limitation period for claim – Personal Injuries Assessment Board Act 2003

Facts: The respondent had been working as a security officer at licensed premises, and had been struck by a vehicle which had mounted the pavement. He began a claim for personal injuries, alleging negligence on the part of the appellant licensee. The question arose whether the claim was statute barred under the Statute of Limitations, which had been held not to be the case by the High Court. This decision was sought to be appealed.

O'Donnell J, the other Justices concurring, stated that there had been uncertainty about whom was the correct entity to lay proceedings against, which had led to procedural complexity. On this basis, the proceedings had been issued more than two years after the date of the accident. The appellant contended the claim was statute barred. Commenting generally on the papers before the Court, O”Donnell J stated that any affidavits submitted should be drafted clearly and fairly in order to minimise the risk of a case being decided on incomplete facts or arguments. Re Downes [2006] NIQB 77 applied.

Having considered the instant matter specifically in relation to s 50 of the Personal Injuries Assessment Board Act 2003, the Court was satisfied that the proceedings were issued well before the expiry of the statutory period to do so. The appeal would therefore be dismissed.

O”Donnell J.

1 Judgment of the Court delivered the 21st of January 2015 by O”Donnell J.

2 1 The plaintiff claims that on the 14th of July 2007 while working as a security officer at the Red Cow Inn complex on the Naas Road in Dublin, and more specifically at a night club being run on the premises and known as Club Diva, he was injured when a car driven by a person unknown to the plaintiff, but subsequently identified as a Christopher Dunne, drove though a number of bollards, mounted the footpath and struck the plaintiff. On the 18th of May 2010 he commenced proceedings claiming damages for personal injuries against the defendant, which is the licensee of the premises. It is no part of this appeal to speculate as to why the plaintiff did not seek to proceed against the driver of the motor car, or to make any observations as to the strength or weakness of the plaintiff”s case against the defendant. The only issue at this point, is whether this case against this defendant, whatever its prospects of success, is barred by the provisions of the Statute of Limitations. It is of some importance to observe that the plaintiff”s claim against the defendant arises out of the manner in which the night club was run and organised, and in particular an allegation that a short time previously, a similar incident occurred and no proper or adequate preventative steps had been taken to ensure that such an incident did not occur again. The plaintiff was not employed by the defendant or on the premises at the time and accordingly, the claim does not appear to me to be one based on either employers or occupiers liability, but rather is for negligence in the management of the business of the night club.

3 2 The chronology of the development of this case is somewhat complicated but nevertheless important. Under the provisions of s. 7 of the Civil Liability and Courts Act 2004, a personal injuries claim must be brought within a two year period of the accrual of a cause of action, subject to certain statutory exceptions and qualifications of which s. 50 of the Personal Injuries Assessment Board Act 2003 (‘the 2003 Act’ or ‘the Act’) is important for present purposes. It will be necessary to consider the terms of s. 50 in greater detail later, but for present purposes it is enough to note that s. 50 disapplies the Statute of Limitations for the period during which a claim is being considered by the Personal Injuries Assessment Board (‘PIAB’ or ‘the Board’), and for a period of six months thereafter. On the 8th of May 2009 and accordingly only just less than two months before the expiry of the basic two year period, reckoned from the date of the incident, the plaintiff instructed solicitors to commence proceedings. On the 12th of May 2009 the plaintiff”s solicitors instructed a search agency to carry out a search as to ‘whom the registered owners of Club Diva are’. That agency responded on the 14th May that a business name search disclosed a business name, ‘Club Diva’, with a registered office at the Red Cow, Naas Road, Dublin 22 which was owned by Thomas Moran. Thomas Moran”s address was also provided. On the 15th of June 2009 letters were written to Mr Moran and copied to PIAB.

4 3 On the 30th of June 2009 the application to PIAB was finalised and noted as completed on the 1st of July 2009. At this point there were 3 days of the original two year limitation period remaining, but as touched on above, the effect of an application to PIAB is to stop time running and suspend for a statutorily defined period the operation of the Statute of limitations (at least as against the proposed defendant). The application form is exhibited in the affidavits exchanged in these proceedings. The application was notified to Mr Moran by the Board pursuant to the statutory procedures under which that body is established. The respondent was identified in the form as ‘Thomas Moran Trading as Club Diva, Red Cow, Naas Road, Dublin 22’ (commas added). On the 9th of October 2009 the Board received an email from a Mr Peter Haran entitled ‘Re: Robert Renehan - v - Morans Hotel/Club Diva’. The email stated ‘On behalf of Moran Hotels we confirm that we decline to an assessment in this case’. In his affidavit grounding the application for the trial of a preliminary issue, Mr Moran states simply that ‘On the 9th October 2009 the Injuries Board was notified that Moran”s Hotel/Club Diva declined to an assessment in the case’. No explanation is given as to the identity or authority of Mr Haran or his relationship to the various entities and individuals involved in this case. It is apparent that the email takes no issue with the identity of the proposed defendant. The letter of claim and notice of application was directed towards Mr Moran personally but the email is on behalf of Moran”s Hotel/Club Diva and confirms that ‘Moran Hotels’ declines assessment. Accordingly, on the 14th of October 2009 an authorisation under s. 14 of the 2003 Act was issued to the claimant Robert Renehan identifying the name of the respondent as ‘Thomas Moran Trading as Club Diva’ and authorising Robert Renehan to bring proceedings in respect of his relevant claim. The authorisation was sent under a covering letter which was addressed to Garwyn Ireland Limited (‘Garwyn”s’), a firm of loss adjusters who, it appears, must have been in contact with the Board on behalf of Mr Moran, Club Diva and/or Moran”s Hotels. The letter from the Board stated, correctly, that:

‘The time allowed under the law for Mr. Renehan to take legal action in connection with this claim was put on hold from the time the claim was acknowledged as complete by the Board on 01/07/2009 and will remain on hold for a further six months from the date of the Authorisation, a copy of which is attached’.

5 I will refer to this authorisation hereafter as ‘the first authorisation’ for clarity. In the simplest terms, the position now was that if proceedings were commenced against Thomas Moran trading as Club Diva, before the 26th April 2010 (6 months from the date of authorisation plus the period left to run as of the date of application) the proceedings would have been within time. However before proceedings were initiated, matters became much more complex.

6 4 On the 20th of October 2009 Garwyn”s wrote to the solicitors for the plaintiff now identifying their client as ‘Red Cow Inn’. That letter, which was written by a Mr Ruairí McMullin, confirmed that the liability adjusters acted for the ‘proprietors of Club Diva’ and suggesting that liability lay with the driver of the motor car. The letter also asked that if the plaintiff”s solicitors maintained that Garwyn”s ‘client’ was in any way negligent in relation to the incident that full particulars of negligence should be forwarded. The letter does not suggest however that the title of the proposed defendant is incorrect. Nevertheless in response to this letter the solicitors for the plaintiff sent a fax to the loss adjusters asking them to confirm the correct title of the defendant. No reply was received to this letter. The solicitor for the plaintiff has sworn that he had spoken subsequently to Mr McMullin in Garwyn”s. The solicitor said that they discussed the case at some length but there was no discussion in that conversation about the identity of the defendant or indeed any suggestion that there was any difficulty in that regard. On the 3rd of December 2009 a reminder was sent by the solicitor asking for a response as a matter of urgency to allow progress to be made in the matter. This letter was replied to by letter of the 7th of December 2009 from Garwyn”s signed by Mr McMullin which now stated ‘[p]lease note that Thomas Moran is not the owner of the Red Cow Inn. The Red Cow Inn is owned by T & S Tavern Limited and you may name T & S Taverns on any proceedings you may issue in this case’. The letter also stated that any proceedings would be defended in full, that counsel”s advice had been received and that counsel was confident that the defendant had no case to answer and suggesting that liability lay with the driver of the...