Whitely v Minister for Defence

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1995 No.
• Court: High Court

High Court

[1995 No. 7190P]

Whitely v. Minister for Defence

Edward Whitely

Plaintiff

and

The Minister for Defence, Ireland and The Attorney General

Defendants

Cases mentioned in this report:-

Knipe v. British Railways Board [1972] 1 Q.B. 361; [1972] 2 W.L.R. 127; [1972] 1 All E.R. 673; [1972] 1 Lloyd's Rep. 122, C.A.

McCafferty v. Metropolitan Police Receiver [1977] 1 W.L.R. 1073; [1977] 2 All E.R. 756; [1977] I.C.R. 799.

Miller v. London Electrical [1976] 2 Lloyds Rep. 284, C.A.

Tort - Negligence - Employer - Personal Injuries - Hearing loss and tinnitus - Plaintiff exposed to noise of gunfire while member of defence forces - Whether defendants negligent in not providing hearing protection - Whether plaintiff suffered hearing loss and tinnitus as a result.

Statute - Interpretation - Intention of legislature - Meaning of phrase"date of knowledge" - Interpretation of word "significant" - Whether word "significant" confined to any particular terms - Whether subjective or objective test should be applied in determining when plaintiff knew injury was "significant" - Whether court should take into account circumstances and state of mind of particular plaintiff at particular time - Statute of Limitations (Amendment) Act, 1991 (No. 18), ss. 2(1), (2) and 3(1).

Limitation of action - Personal injuries - Delay of 17 years between injury to plaintiff and institution of proceedings - "Date of knowledge" of plaintiff contingent on when he knew injury was"significant" - Whether subjective or objective standard to be applied - Whether court should take into account circumstances and state of mind of particular plaintiff at particular time - Whether circumstances existed which interfered with the plaintiff's capacity to understand the nature and extent of his injury - Whether plaintiff knew or ought reasonably to have known from facts observable or ascertainable by him that he had sustained injury which was significant - Statute of Limitations, 1957 (No. 6) - Statute of Limitations (Amendment) Act, 1991 (No. 18), ss. 2(1), (2) and 3(1).

Plenary summons.

The facts have been summarised in the headnote and are set out in the judgment of Quirke J., infra.

By plenary summons issued on the 15th September, 1995, the plaintiff claimed, inter alia, damages for personal injuries, loss and damage suffered by him as a consequence of the negligence, breach of duty and breach of statutory duty of the defendants.

In their defence, the defendants pleaded, inter alia, that the plaintiff's claim was statute barred pursuant to the provisions of the Statute of Limitations, 1957 and the Statute of Limitations (Amendment) Act, 1991.

The action was heard by the High Court (Quirke J.) on the 30th May and the 3rd July, 1997.

Section 2(1) of the Statute of Limitations (Amendment) Act, 1991, provides:-

"For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:-

• (a) that the person alleged to have been injured had been injured,

• (b) that the injury in question was significant,

• (c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

• (d) the identity of the defendant, and

• (e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

Section 2 (2) of the Act of 1991 provides:-

"For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

• (a) from facts observable or ascertainable by him, or

• (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek."

Section 3 (1) of the Act of 1991 provides, inter alia:-

"An action . . . claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty . . . shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured."

The plaintiff served in the army between 1957 and 1978, during which time he was exposed to the noise of several hundred rounds of ammunition for between 20 and 30 days each year. The plaintiff claimed that by reason of the negligence and breach of duty of the defendants, he sustained serious personal injury, involving hearing loss and tinnitus.

On the 15th September, 1995, the plaintiff instituted proceedings. The defendants pleaded that the plaintiff's claim was statute barred. The plaintiff relied on the Statute of Limitations (Amendment) Act, 1991, claiming that he brought his action against the defendants within the period of three years from his"date of knowledge" within the meaning of s. 2 of the Act of 1991. In particular, the plaintiff submitted that he first had knowledge of the fact that his injury was "significant" in 1993, and that proceedings were instituted on his behalf in September, 1995. The plaintiff conceded that he had knowledge of the following facts relevant to determining his "date of knowledge" under s. 2(1) of the Act of 1991 more than 15 years prior to the institution of proceedings: that he had been injured, that the injury was attributable in whole or in part to the defendants' negligence and breach of duty, the identity of the defendants, and that he was not alleging negligence or breach of duty on the part of any person other than the defendants.

The defendants conceded that while the plaintiff was a member of the army, they were guilty of negligence and breach of duty towards him in failing to provide him with any hearing protection, training or instruction, in order to prevent damage to his hearing. The defendants claimed that the plaintiff's claim was barred by s. 3(1) of the Act of 1991.

Held by the High Court (Quirke J.), in dismissing the plaintiff's claim, 1, that it was the intention of the legislature to avoid confining the sense in which the word "significant" in s. 2(1)(b) of the Act of 1991 ought to be understood to any particular terms.

McCafferty v. Metropolitan Police Receiver [1977] 1 W.L.R. 1073; Miller v. London Electrical[1976] 2 Lloyds Rep. 284; Knipe v. British Railways Board[1972] 1 Q.B. 361 distinguished.

2. That the test to be applied in determining when the plaintiff knew the injury was "significant" was primarily subjective and the court should take into account the state of mind of the particular plaintiff at the particular time, having regard to his particular circumstances at that time.

3. That s. 2(2) of the Act of 1991 introduced a degree of objectivity into the test and potentially required the additional consideration of whether or not the particular plaintiff at the particular time ought reasonably to have sought medical or other expert advice, having regard to the symptoms from which he was then suffering and the other circumstances in which he then found himself.

4. That no particular circumstances existed between 1978 and 1993, which would have interfered with the plaintiff's capacity to understand the nature and extent of his injury. Applying the subjective test, the plaintiff must have known during that period that his injury was "significant" within the meaning of the Act of 1991.

5. That applying the more objective...