Tesleem Ojewale v Caroline Kearns and Frank Kearns
| Jurisdiction | Ireland |
| Judge | Ms. Justice Butler |
| Judgment Date | 16 June 2021 |
| Neutral Citation | [2021] IEHC 431 |
| Docket Number | [2020 No. 228 CA.] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 431
[2020 No. 228 CA.]
THE HIGH COURT
JUDGMENT of Ms. Justice Butler delivered on the 16th day of June, 2021
This is the plaintiff's appeal from the decision of the Circuit Court striking out her proceedings as being statute barred on foot of an application brought by the defendants. The factual background to the proceedings is relatively straightforward, the legal issue arising considerably less so. It concerns the running of time against two defendants to personal injury proceedings where the initial application to the Personal Injuries Assessment Board (“PIAB”) did not include both defendants and a supplemental application to include the other under s. 46(3) of the Personal Injuries Assessment Board Act, 2003 was made after the expiration of the basic two-year period for bringing personal injuries proceedings under s. 3(1) of the Statute of Limitations (Amendment) Act, 1991, as amended by s. 7 of the Civil Liability and Courts Act, 2004.
The governing statutory provision, s. 50 of the PIAB Act, 2003 has been amended since the events giving rise to these proceedings by s. 7 of the Personal Injuries Assessment Board (Amendment) Act, 2019. The intention of the amendment appears to have been to remove a perceived anomaly in the statutory scheme identified in the Supreme Court decision of Renehan v. T & S Taverns Ltd [2015] 3 IR 149. The key question on this appeal is whether in the circumstances of the case this plaintiff can also avail of this anomaly.
The proceedings arise out of a road traffic accident which occurred on the 12th February, 2014. The plaintiff's vehicle was stationary when it was struck by a vehicle owned by the second defendant and driven by the first defendant. The first defendant spoke with the plaintiff at the scene and gave him her name and insurance details. The plaintiff subsequently began to experience a soft tissue injury to his neck and back and decided to take proceedings. As is now well understood, a plaintiff intending to bring personal injury proceedings must firstly make an application to PIAB for an assessment of damages under s. 11 of the 2003 Act. The plaintiff made such an application which, for the purposes of this appeal, was accepted by PIAB on 28th April, 2015. That application named only the second defendant and AXA Insurance Ltd as respondents. Under the heading “Accident Details”, the plaintiff identified that the motor vehicle owned by the second defendant was driven by the first defendant. On 21st October, 2015, PIAB issued an authorisation pursuant to s. 14 of the 2003 Act, authorising the plaintiff to bring proceedings against the second defendant and AXA Insurance Ltd. Although AXA is the relevant insurer, there is of course no basis for suing AXA directly in a claim of this nature.
Through his solicitor, the plaintiff made a supplemental application to PIAB under s. 46(3) of the 2003 Act on 20th September, 2016 seeking to have the first defendant, the driver of the vehicle at the time of the collision, named as a respondent. This request was based on her omission having been due to a genuine oversight rather than being due to ignorance of all or any relevant facts. On 25th October, 2016, a further authorisation, this time under s. 46 of the 2003 Act, was issued by PIAB in which the first defendant was named as a respondent. This authorisation bears the same claim number as that issued on 21st October, 2015. The plaintiff then issued proceedings against both defendants before the Dublin Circuit Court on 29th March, 2017.
The initial defence filed on behalf of both defendants on 12th October, 2017 included a plea to the effect that the case was statute barred against the first defendant only. This is presumably because the application to PIAB seeking to name her as a respondent was not made until more than two years after the date of the accident. No substantive step seems to have been taken by either side for some time after the filing of the defence until on 17th September 2019 the defendants issued a motion seeking a series of reliefs. These reliefs were, firstly, to amend the defence to plead the Statute of Limitations 1957 as regards the claim against both defendants; secondly, to have the issue as to whether the plaintiff's claim was statute barred tried as a preliminary issue; and, thirdly, to have the plaintiff's proceedings struck out on the basis that they are statute barred. Ms. Justice Linnane made the first of these orders permitting the defendants to amend their defence on 14th February, 2020. She adjourned the consideration of the other relief and directed the plaintiff's solicitor to set out on affidavit the basis on which it was contended that the plaintiff's claim was not statute barred.
This was done in an affidavit of Mary Trayers dated 5th March, 2020. For understandable reasons due to the manner in which the affidavit was directed, it contains primarily legal arguments. The key averment is contained at para. 5 of the affidavit where, after having referred to the authorisation under s. 46 issued on 25th October, 2016, Ms. Trayers continues:-
“For the avoidance of doubt there was no separate application to the Injuries Board under section 11 of the Act in respect of Caroline Kearns. There was therefore only one application pursuant to section 11 in this claim.”
She then proceeds to exhibit the correspondence relevant to the application under s. 46(3). Reference is then made to the decision of the Supreme Court in Renehan v. T & S Taverns Ltd (above) and, at para. 8, Ms. Trayers submits that:-
“… the effect of the second authorisation is such as to reinvigorate the first authorisation which it amends and to put time on hold in respect of Frank Kearns for a period of six months from 25th October, 2016 which is the date of the second authorisation.”
On 15th December, 2020, Judge Linnane struck out the plaintiff's claim as against both defendants on the ground that it was statute barred pursuant to the Statute of Limitations, 1957–1991 and s. 7 of the Civil Liability and Courts Act, 2004. The plaintiff then appealed that order to the High Court on 18th December, 2020.
The introduction of a requirement that an intending plaintiff in a personal injury action make an application to PIAB for an assessment of damage in their claim and, in the event that such assessment is not accepted by both sides, receive an authorisation from PIAB to sue the proposed defendants had the consequent effect of requiring an amendment to the statutory limitation periods applicable to such claims. This was to ensure that the process envisaged in the 2003 Act could take place without the parties being placed under pressure due to the simultaneous running of a statutory time limit. Further a prospective plaintiff would not lose the benefit of the full limitation period in circumstances where the application to PIAB would necessarily take some time to process. . Consequently, as it was put by O'Donnell J. in Renehan v. T & S Taverns Ltd (above) “provision is made in the Act for a standstill period while an application is considered by the Board and for some time thereafter, which is not reckoned for the purposes of the Statute of Limitations”.
The basic limitation period within which a personal injuries action must be brought is 2 years. This is extended to take account of the PIAB process by s.50 of the 2003 Act which at the time of this application provided:-
“In reckoning any period of time for the purpose of any applicable limitation period in relation to a relevant claim (including any limitation period under the Statute of Limitations, 1957, section 9(2) of the Civil Liability Act 1961, the Statute of Limitations (Amendment) Act, 1991 and an international agreement or convention by which the State is bound), the period beginning on the making of an application under section 11 in relation to the claim and ending 6 months from the date of issue of an authorisation under, as appropriate, section 14, 17, 32, or 36, rules under section 46(3) or section 49 shall be disregarded.”
In effect, not only does the clock stop running whilst the matter is before PIAB, the plaintiff has an additional six months' grace after the authorisation has issued before the running of the limitation period resumes. In the context of the plaintiff's claim against the second defendant, the effect of this, in normal course, would be as follows. The accident occurred on 12th February, 2014 and the plaintiff had two years from that date to submit an application to PIAB. This was done on 28th April, 2015, some fourteen months and sixteen days after the accident. Once the application to PIAB was submitted, the running of the limitation period was frozen until the authorisation in respect of the second defendant issued on 21st October, 2015 and for an additional period of six months (i.e. to 20th April, 2016). Time began to run again on 21st April, 2016. The unexpired portion of the original two-year limitation period was approximately nine months and fifteen days and, consequently, in normal course, the statute would have expired against the second defendant around 5th February, 2017. The proceedings were not issued until 29th March, 2017. It is not disputed that if there were no issue concerning adding the first defendant to the claim and the impact this might have on the running of time, then the proceedings against the second defendant would be statute barred. The defendants contend that in any event that is the effect as the subsequent issuing of an authorisation in respect of the first defendant cannot serve to revive an expired limitation period as against the second defendant. The plaintiff disputes this,...
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Ojewale v Kearns and Another
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