Rohan v Bord na Mona

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 1213
• Docket Number: No. 8486p/1988,[1988 No. 8486 P]
• Court: High Court
• Date: 01 January 1991

1990 WJSC-HC 1213

THE HIGH COURT

No. 8486p/1988

ROHAN v. BORD NA MONA

MICHAEL ROHAN

PLAINTIFF

.v.

BORD NA MONA

DEFENDANT

Citations:

STATUTE OF LIMITATIONS 1957 S48(1)(b)

STATUTE OF LIMITATIONS 1957 S49

KIRBY V LEATHER 1965 2 AER 441

STATUTE OF LIMITATIONS 1957 S49(1)(a)

STATUTE OF LIMITATIONS 1957 S49(2)(a)

Synopsis:

LIMITATION OF ACTIONS

Time limit

Extension - Plaintiff - Disability - Unsound mind - Plaintiff injured by explosion - Alleged liability of defendant - Plaintiff's disability caused by same explosion - Action instituted after expiration of normal limitation period - Plaintiff's claim not statute barred - Statute of Limitations, 1957, ss. 48, 49 - (Barron J. - 10/5/90) - [1991] ILRM 123

|Rohan v. Bord na Mona|

WORDS AND PHRASES

"On the date"

Action - Statute bar - Disability - Unsound mind - Explosion - Claim to damages for negligence causing personal injuries - Disability and personal injuries created at same instant - Plaintiff's action instituted after normal limitation period - Action not statute barred - (Barron J. - 10/5/90)

|Rohan v. Bord na Mona|

1 Judgment of Mr. Justice Barrondelivered the 10th day of May 1990.

2 On 13th February 1985 the Plaintiff received serious head and facial injuries as a result of an explosion which occurred while he was at work in the employment of the Defendant. Solicitors were consulted and a preliminiary letter on his behalf was sent to the Defendant on the 2nd May 1985. An examination of the Plaintiff by a neurologist appointed by the Defendant was arranged and took place in the month of November 1986. In the same month the Plaintiff signed an authority to his Solicitors to hand over the papers to another firm. These Solicitors do not appear to have taken up the papers until 1988. On the 1st August of that year they wrote a letter to the Defendant claiming damages. Proceedings however were not issued until the 8th of September 1988.

3 Pleadings have now been completed. In its defence the Defendant has pleaded that the Plaintiff's cause of action is barred by lapse of time. In the reply, it is pleaded that timehas not run because the Plaintiff was at the time of the accident and continuously since then has been a person of unsound mind within the meaning of Section 48 (1) (b) of the Statute of Limitations 1957. This issue has now been heard by me on oral evidence. Two main questions arise for determination:

4 (1) Whether the Plaintiff became as a result of his injuries on the date of the accident and has since remained a person of unsound mind,and

5 (2) if so, whether his cause of action is nevertheless statutebarred.

6 Evidence was given by Dr. John O'Dwyer a consultant neuroradiologist attached to Beaumont Hospital. He interpreted and explained a CAT scan taken of the Plaintiff's brain on 20th June 1988. This showed abnormalities of the brain. The skull had been fractured in the frontal area and the ventricles of the brain were enlarged. This latter indicated a loss of brain cells and was of such a nature as to indicate serious brain damage, which is irreversible. In the acute phase, there would have been swelling and accumulation of blood and fluid causing the cavities to contract. As the damaged tissue disappeared the cavities expanded to include the area where the damage occurred. In his opinion, the injury which he diagnosed was instantaneous and sustained at the time of the accident. It was not caused by disease. I accept Dr. O'Dwyer's evidence in full. His expertise was not questioned nor did the Defendant call any witness in this specialty.

7 Dr. John Phillips, a consultant neurosurgeon gave evidence on behalf of the Defendant. The Plaintiff had been referred to him by the Plaintiff's surgeon for a secondopinion. He saw him on the 26th February 1985. He was recovering well from a compound fracture of the skull extending through the lining of the brain. When he examined him he was alert and oriented. He did not examine him as to his degree of mental capacity, but he believes that he would have noted any strange behavioural aspects. He saw him again in 1988. He had made a satisfactory physical recovery, but there was evidence of an anxiety state. There was no indication that he was of unsound mind nor incapable of managing his own affairs, but he did accept that there was a degree of organic brain damage.

8 Dealing with the CAT scan Dr. Phillips was of the opinion that successive scans show a changing picture. He said that there was initial damage which then became subject to the body's healing mechanism which might repair cells which had not been totally destroyed and that the full picture could not be ascertained until this process had concluded. It seems to me that if damaged cells can be repaired in this fashion, that the condition of the Plaintiff can only have improved over his condition immediately following the accident. Nevertheless, Dr. Phillips disagrees with the evidence of Dr. O'Dwyer in this regard and insofar as there is a conflict I prefer the evidence of Dr. O'Dwyer.

9 Dr. Liam Hannafy a consultant psychiatrist with the Midland Health Board gave evidence on behalf of the Plaintiff. He examined the Plaintiff on 30th January 1989 and saw him also on 15th March 1990. He was suffering from frontal lobe syndrome. Both frontal lobes showed atrophic changes and damage had occurred also in the medial area of the brain where his two hemispheres meet. With such damage, intellectualimpairment must be expected.

10 He found the Plaintiff apathetic and disinterested. He was told that he had been a lively, extroverted family man, that he was now lacking in judgement and behaved in a silly vacuous manner. In his opinion, he was not capable of managing his affairs or looking after money. His condition would have been caused instantaneously by the accident and would not have been progressive. This condition was static. He was suffering also from a reactive depression which affected him from time to time to a greater or lesser extent. His underlying intellectual capacity was irreversible and static.

11 On cross-examination he did not accept that the finding that the Plaintiff was alert and oriented was inconsistent with his findings. He said that memory loss was static and...