Tsiu v Campbell Catering Ltd T/A Aramark Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 28 June 2022 |
| Neutral Citation | [2022] IEHC 391 |
| Court | High Court |
| Docket Number | RECORD NO. 2020/212CA |
[2022] IEHC 391
RECORD NO. 2020/212CA
THE HIGH COURT
Personal injuries – Statute-barred – Estoppel – Plaintiff seeking damages – Whether the plaintiff’s claim was statute-barred
Facts: The plaintiff/appellant, Ms Tsiu, was employed by the defendant, Campbell Catering Ltd, at the Royal Hospital, Donnybrook. The relevant accident giving rise to the proceedings was pleaded to have occurred on 4 December 2013, when a fellow-employee pushed a trolley into the plaintiff from behind, catching the plaintiff’s right ankle and causing her to sustain personal injury, loss, damage, inconvenience and expense. A motion was issued by the plaintiff’s solicitors on 9 June 2020, seeking an order pursuant to Order 34, rule 1 of the Circuit Court Rules (CCR) directing the trial of a preliminary point of law, namely: “Whether the Plaintiff’s claim is statute barred pursuant to section 11 of the Statute of Limitations 1957, as amended by section 3 of the Statute of Limitations (Amendment) Act, as amended by the Personal Injuries Assessment Board Act, 2003, and the Civil Liability and Courts Act 2004.” At paragraph 5 of his affidavit grounding the June 2020 motion, the plaintiff’s solicitor, Mr O’Reilly, averred inter alia that, whilst the CCR do not provide for any pleading by way of a reply to the defence, the response to the plea that the claim was statute-barred was that: “a) the Defendant is estopped from pleading the Statute of Limitations and/or b) the Plaintiff is entitled to rely on the ‘discoverability’ provisions of the Statute of Limitations (Amendment) Act, 1991.” The case came before the High Court in circumstances where Judge Linnane made an order in the Circuit Court, on 19 December 2020, determining that the plaintiff’s claim was statute-barred and should be dismissed.
Held by Heslin J that, having been guided by the principles set out by Geoghegan J in Murphy v Grealish [2009] I.R. 366, it seemed to him that, in objective terms, the conduct and communication by the defendant’s insurer could reasonably be said to have lulled the plaintiff/plaintiff’s solicitor into a sense of security that issuing proceedings within the statutory time-limit was not of importance in the specific case. Heslin J found that there was clear evidence that it was the subjective belief of the plaintiff’s solicitor that there was no Statute of Limitations issue and that he did not believe that issuing an application by the relevant anniversary was an issue of importance. Heslin J was satisfied that the actions of the defendant, via its insurer, were such as to estopp the defendant from relying on the plea that the plaintiff’s claim was ‘statute barred’ and it would be unconscionable to permit reliance on the Statute, in the particular facts and circumstances of the case.
Heslin J held that the parties should correspond with each other regarding the appropriate form of order including as to costs which should be made. Heslin J’s preliminary view was that there were no facts or circumstances which would justify a departure from the ‘normal’ rule that ‘costs’ should ‘follow the event’, the ‘event’ being the plaintiff’s success.
Appeal allowed.
JUDGMENT of Mr. Justice Mark Heslin delivered on the 28 th day of June 2022
. The Plaintiff is described as a catering assistant who was employed by the Defendant at the Royal Hospital, Donnybrook.
. The relevant accident giving rise to the proceedings is pleaded to have occurred on 4 December 2013, when a fellow-employee pushed a trolley into the Plaintiff from behind, catching the Plaintiff's right ankle and causing her to sustain personal injury, loss, damage, inconvenience and expense.
. The relevant Circuit Court Personal Injuries summons was issued on 22 December 2016.
. At para. 1 (iii) of the Defence it is admitted that the Plaintiff was injured on 4 December 2013 in the course of her employment with the Defendant; and the Plaintiff is not required to prove that the incident occurred as a consequence of the negligence and breach of duty of the Defendant, its servants or agents.
. However, by way of preliminary objection, a plea is made with reference to the Statute of Limitations in a Defence delivered on 18 May 2017.
. The Defendant accepts that a ‘Form A’ had to be lodged with the injuries Board within 2 years, namely, by 3 December 2015. In fact, the form was deemed accepted by the injuries Board 5 days late, namely, on 8 December 2015.
. An affidavit of discovery was sworn on behalf of the Plaintiff on 16 September 2019.
. By means of a motion issued on 25 October 2019, the Plaintiff's solicitors sought an order striking out the Defence of the Defendant by reason of their failure to deliver an affidavit of discovery, contrary to an agreement to make voluntary discovery which was reached on about the 31 st of August 2018.
. On 9 January 2020, an affidavit of discovery was sworn on behalf of the Defendant by a Mr Greg Dunphy, claims manager, of Zurich insurance, being the Defendant's Insurers.
. By order made on 13 January 2020 before the relevant County Registrar, the Plaintiff's motion seeking leave to enter judgement was struck out, on consent, with costs to the Plaintiff, to be taxed in default of agreement.
. The motion of significance for present purposes was issued by the Plaintiff's solicitors on 9 June 2020, seeking an order pursuant to Order 34, rule 1 of the Circuit Court Rules (“CCR”) directing the trial of a preliminary point of law, namely:-
“Whether the Plaintiff's claim is statute barred pursuant to section 11 of the Statute of Limitations 1957, as amended by section 3 of the Statute of Limitations (Amendment) Act, as amended by the Personal Injuries Assessment Board Act, 2003, and the Civil Liability and Courts Act 2004.”
. At paragraph 5 of his affidavit grounding the June 2020 motion, the Plaintiff's solicitor, Mr Damien O'Reilly, avers inter-alia that, whilst the CCR do not provide for any pleading by way of a reply to the Defence, the response to the plea that the claim is statute-barred is that:
“a) the Defendant is estopped from pleading the Statute of Limitations and/or
b) the Plaintiff is entitled to rely on the ‘discoverability’ provisions of the Statute of Limitations (Amendment) Act, 1991.”
. The case comes before this Court in circumstances where her Honour Judge Linnane made an order in the Circuit Court, on 19 December 2020, determining that the Plaintiff's claim was statute-barred and should be dismissed.
. The matter proceeded before this court by way of a de novo hearing. It should be noted that the Plaintiff did not seek to rely on the ‘discoverability’ provisions in the Statute of Limitations (Amendment) Act of 1991.
. A second Motion was issued by the Plaintiff, on 26 October 2021, and sought an Order pursuant to Order 61, Rule 8 of the Rules of the Superior Courts permitting reliance on an Affidavit sworn by Mr. Reilly on 22 January 2021. At the outset, Counsel representing both parties agreed that, for the purposes of determining the appeal, this Court could have regard to same and, in these circumstances, it was not necessary for the Court to engage further with that second motion.
. Before proceeding further, I want to thank Mr O'Neill SC for the Plaintiff, and Ms McNally SC for the Defendant, both of whom furnished the Court with detailed written submissions which were of great assistance. Both Counsel also made oral submissions with clarity and skill during the hearing which took place on 3 May 2022 and, again, this greatly assisted the Court. In reaching this decision, I have carefully considered all submissions, both written and oral, and will refer to the principal submissions during this judgment.
. It is fair to say that there was no material disagreement between the parties as to the relevant legal principles. Rather, the disagreement concerned the application of the principles themselves. During the hearing, both sides made reference to various passages of the Supreme Court decision (Geoghegan J.) in Murphy v. Grealish [2009] I.R. 366, which concerned an appeal by the Defendant from an order of this Court (MacMenamin J.) refusing to dismiss a personal injuries action instituted by the Plaintiff. In essence, the Plaintiff's case was that the Defendant had admitted liability and that, thereafter, negotiations proceeded. Given that in Murphy v. Grealish, Mr Justice Geoghegan looked so closely at a range of relevant authorities and identified the principles which emerge, it is useful, at this juncture, to quote paras. [17] to [22] from the learned Judge's decision, as follows:
“[17] Although it is not appropriate to include legal arguments in an affidavit, Mr. Peter Kelly, solicitor of Erne, the firm acting for the appellant, did just that in an affidavit affirmed on the 12 th April 2005. Because what he says is at the heart of the argument I find it useful to quote it as an introduction to my discussion of the law. He says in the middle of paragraph 3 the following:
“It is a daily occurrence that insurance companies admit liability, but I respectfully submit that this does not indicate or mean that proceedings should not be instituted. The law is clear, as laid down by the Supreme Court in Ryan v. Connolly [2001] 2 ILRM 174. The case held that the mere fact that a Defendant had expressly and unambiguously conceded the issue of liability did not necessarily mean that it was reasonable for a Plaintiff to assume that he could defer the institution of proceedings beyond the limitation period. In the absence of a statement from an insurance company from which it was reasonable to infer that, in the event of proceedings not...
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