The Gazette 1973

Robinson appeared for the student, said that there was a large number of students affected by the dispute. A number of them were in the same position as Mr. Murphy, and the same terms of settlement applied. There was a number of other students whom the col- lege had specific complaints against. These would be heard by a board presided over by a member of the Bar. Mr. Justice Pringle made no order as to costs. [Murphy v. National College of Art—Pringle J.—un- reported—5 June 1973.] Section 49 2(a) of Statute of Limitations is unconstitu- tional inasmuch as it infringes Article 40(3) of the Constitution. The infant plaintiff boy, who was 11 years old at the time, was injured in a motor accident in Septem- ber 1963; he was a passenger in a motor car, the property of his father, the second defendant, when another motor car, the property of the first named defendant, collided with it in Co. Tipperary. The present proceedings, in which the boy claimed damages for personal injuries through his mother, were not issued until 25 January 1968, i.e. more than three years after the accrual of the plaintiff's right of action. Each defendant accordingly pleaded that the infant plaintiff's claim was barred by the Statute of Limita- tions. Murnaghan J., by order of 10 March 1969 set down for trial that this question should be determined as a preliminary issue without further pleadings before a Judge alone. Meanwhile the infant plaintiff challenged the constitutionality of Section 49(2) (a) (ii) of the Statute of Limitations and the matter was argued before O'Keeffe P., who, having delivered a reserved judgment on 9 July 1970, rejected the plaintiff's con- tention. Under Section 49(1) (a), a person under dis- ability at the date of the accrual of his right of action is normally given six years from the cesser of his dis- ability within which to bring his action, but there follow a number of limitations on this general ex- tension. Section 49(2) (a) of the Act relates speci- ficially the actions for damages for personal injuries, negligence, nuisance or breach of duty. Sub-Paragraph (1) of Section 49(2) (a) reduces the period of limitation in such cases from six years to three years. The impugned Sub-Paragraph (ii) of Section 49(2) (a) reads as follows : "This section shall not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent." The word "parent" is then defined as—father, mother, grandfather, grandmother, stepfather or stepmother—and applies equally to an illegitimate or to an adopted child. It was first contended that the impugned Section 49(2) (a) (ii) was repugnant to Article 40(1) of the Constitution, which provides that "All citizens shall, as human persons, be held equal before the law". It was contended that the Act differentiated unfairly between infants under disability in the custody of a parent who are allowed the same limited limitation as an adult, and those infants under disability not in custody of a parent, who can wait until their infancy ceases, when the limitation for adults begins to run. The Court held unanimously that the principle of equality before the law enunciated in Art. 40(1) of the Constitution was not infringed by the impugned paragraph, as the pur- pose of the provision would appear to attempt to esta-

blish equality between the two groups. A diversity of arrangement does not efiect discrimination between citizens in their legal rights, for the legal rights are identical in the same circumstances. O'Keeffe P. was upheld on this point, in so far as he had decided that it was not unequal, to differentiate as between parti- cular classes of infants. On the other hand, it was contended that the im- pugned sub-section was repugnant to Article 40(3) of the Constitution particularly Sub-section 2, by which the State undertook by its laws to protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and pro- perty rights of every citizen. It was contended that the right to sue for persopal injuries is a chose-in-action and is accordingly a "property right" under this sub- section. The limitation of "parental custody" means custody at the time when the right of action accrues, and thus the limitation period accrues immediately a child is injured as a result of the negligence of a parent. The broad division between infants in "parental cus- tody" and infants not in such custody is not calculated to consider the question that infant's rights should be given reasonable protection. The infant appellant has a locus standi to challenge the constitutional propriety of the inpugned sub-section (1) because the parent, to whom the infant might reasonably look for protection, is permitted to raise the Statute against the infant—and (2) because, if a question of the constitutionality of a statute is raised, it is the duty of the Court to consider the full scope of the statutory provision. It is clear that Section 49(2) (a) (ii) of the Statute of Limita- tions 1957 fails to match up to the guarantee contained in Article 40(3) of the Constitution; accordingly the Court will declare this paragraph to be invalid. On this point O'Keeffe P. was reversed. [Thomas O'Brien, an Infant v. Michael Keogh and Joseph O'Brien—Full Supreme Court per O Dalaigh C.J.—unreported—28 July 1972.] Plaintiff's declaration that contract for sale had been rescinded refused, as they had not made tide in accordance with the contract. By a written contract of 20 April 1972, in which the plaintiffs adopted the printed form of the Law Society, they agreed to sell three lots of land at Sandymount, Dublin. The purchase price of lot 1 was £50,000, for which a deposit of £10,000 was paid. The purchase price of lot 2 was £40,000, and of lot 3—£60,000. The three lots were held by the plaintiffs under a lease of 31 July 1970 for 10 years at a rent of £1 per annum. Clause 3 of the printed general conditions related to completion on the closing date and to pay- ment of interest by the purchaser if this was not done, giving the vendor an option of taking rent and profits instead of interest. No closing date was specified, but clause 6 of the special conditions provided that the purchase of lot* 1 was to be completed before 30 June 1972 when the balance of £40,000 was to be paid. On the other hand the closing date for lot 2 was postponed to 30 June 1973, and that for lot 3 to 30 June 1974. The interest payable was to be 12£%. A further clause provided that, if the purchase of lot 1 were not com- pleted on 30 June 1972, the Vendor would be entitled to rescind the contract for the sale of the whole pro- perty comprising the three lots forthwith in which event the deposit would be forfeited. For all purposes, time was to be deemed of the essence of the contract. The time for delivering requisitions was extended by

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