Strick v Tracey
| Jurisdiction | Ireland |
| Judge | O'Hanlon J. |
| Judgment Date | 10 June 1993 |
| Neutral Citation | 1993 WJSC-HC 2695 |
| Docket Number | No. 62P/1989 |
| Court | High Court |
| Date | 10 June 1993 |
BETWEEN
AND
AND
1993 WJSC-HC 2695
THE HIGH COURT
Words & Phrases:
CF
Subject Headings:
LIMITATION OF ACTIONS: cause of action
PRACTICE: parties
Judgment delivered the 10th day of June, 1993, by O'Hanlon J.
In these proceedings the original action brought by Michael Strick as Plaintiff has been settled and there merely remains for decision the Counterclaim brought by Renée (otherwise Catherine) Tracey against Michael Strick, The Minister for Finance, Ireland and the Attorney General.
The Minister for Finance was not a party to the original proceedings and was joined as a co-Defendant in the Counterclaim by reason of the fact that the action is based on a traffic accident in which a motor vehicle belonging to the State was involved and the Plaintiff in the Counterclaim claims that she suffered injury and loss by reason of negligent driving of the said vehicle. If this is established it gives rise to a cause of action against the Minister in accordance with the provisions of sec. 116 of the Road Traffic Act, 1961.
The accident on which the claim is based happened on the 2nd February, 1988, when a fire tender, the propety of the State, which was being driven at the time by Michael Strick, a member of the Irish Army, was in collision with a car driven by Mrs. Tracey at the junction of Belgard Road and the Tallaght By-Pass. Mr. Strick's claim for damages was initiated by Plenary Summons dated the 4th January, 1989, and the original Defence filed on behalf of Mrs. Tracey did not contain a Counterclaim. However, leave to amend her Defence was granted by Barron J. on the 30th November, 1992, and at that stage a Counterclaim was included in the amended Defence delivered the 2nd day of December, 1992, and the Minister for Finance was then joined as a party to the proceedings for the first time.
The Defence to the Counterclaim filed on behalf of the Minister for Finance and the driver, Michael Strick, contains a plea that Mrs. Tracey's claim is statute-barred by reason of the fact that the alleged cause of action did not arise within three years before the delivery of the said Counterclaim.
The Statute of Limitations 1957, sec. 6 provides as follows:
6.- For the purposes of this Act, any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded.
Order 21, Rule 10, of the Rules of the Superior Courts permits a Defendant by his defence to set up a Counterclaim which raises questions between himself and the Plaintiff a long with any other persons. Rule 11 provides that where any such person as in rule 10 mentioned is not a party to the action, he shall be summoned to appear by being served with a copy of the defence, and such person must then appear thereto as if he had been served with a summons to appear in an action (0. 21, r.12), and may deliver a reply within the time within which he might deliver a defence if it were a statement of claim (0. 21, r.13).
It may seem inequitable that a claim against a party who was not a part to the original proceedings, and perhaps knew nothing about them, should, if it is introduced by way of Counterclaim in proceedings to which he was never previously a party, be regarded for the purposes of the Statute of Limitations as having been commenced on the same date as the action in which the Counterclaim is pleaded. However, in the absence of any authority to the contrary, I feel bound to give the words of the Statute their plain meaning and accordingly this disposes of the plea entered by two of the Defendants to the Counterclaim that the Plaintiff's claim against them is barred by the operation of the Statute.
The facts of the case may be summarised as follows. Mrs. Tracey was driving the main Tallaght By-Pass highway towards the City at about 10 a.m. on the 2nd February, 1988, and approaching a junction controlled by trafffic lights where Belgard Road on her left linked up with the said main highway. The lights were in her favour as she approached. Simultaneously, a Civil Defence fire tender which was doing duty by reason of a strike in the ordinary fire services was driving up Belgard Road, preceded by a Garda patrol car driven by Garda Kelly, intending to turn right towards Jobstown where a fire had broken out in a local school.
Garda Kelly, who was alone in his patrol car, was able to attract the attention of drivers approaching a long the main highway, and proceeded to make his way across the road against the lights and to halt his car somewhere in the vicinity of the traffic island running down the centre of the highway. At this stage he said that a number of cars in the outer (fast) lane adjoining the traffic island came to a halt although the lights continued green in their favour. The tender, which appears to have come up Belgard Road some considerable distance behind the Garda escort car, followed the Garda car out across the highway. The Plaintiff was taken by surprise and collided with the side of the fire tender. She, at the time was driving in the inner lane.
The Plaintiff in the Counterclaim said she was driving from her home towards town in very bad weather conditions, with very little traffic on the road. She was travelling at about 40 m.p.h. Approaching the Belgard Road junction she saw the Garda car crossing the main road against the...
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