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GAZETTE
JUNE 1988
The Date of Discoverability
Rule and S.11 of the 1957
Statute of Limitations
Martin Hayden
by
Ma r t in Hayden
Barr ister-at- Law
" T i me is a test of trouble but not a remedy", wr o te Emily
Dickinson. Lawyers can go further, " T ime can extinguish the
remedy". S.11 (2)(b) of the Statute of Limitations, 1957,
provides as f o l l ows:
An ac t i on c l a imi ng damages for negligence, nuisance or
breach of duty . . . where the damages claimed by the plaintiff
for negligence, nuisance or breach of duty consist of or
include damages in respect of personal injuries to any person,
shall not be brought after the expiration of three years f r om
the date on wh i ch the cause of ac t i on accrued."
The problem with this section
stems from the various inter-
pretations given to the date " on
wh i ch the cause of ac t i on
accrued". Various traditional inter-
pretations have arrived at different
conclusions and the present article
attempts to review the state of the
law as it stands today and makes
reference also to the Law Reform
Commi s s i on 's Report on the
Statute of Limitations,
Claims in
Respect of Latent Personal Injuries
LRC 21 of 1987, and also refers to
the recent private member's Bill on
the Statute of Limitations intro-
duced by Mr. George Birmingham.
It is the writer's view that the only
constitutionally valid interpretation
of S.11 must be one which includes
a date of discoverability rule.
There are at present what would
appear to be t wo conflicting High
Court decisions on the matter.
Morgan -v- Park
Developments
[1983] ILRM 156 and
Anna Hegarty
-v- Francis O'Loughran and Gerald
£. Edwards
[1987] ILRM 603.
The facts of Morgan are quite
s t r a i gh t f o rwa r d. The Plaintiffs
purchased the house from the
Defendant building contractor in
1962. Shortly after moving in
cracks appeared wh i ch were
notified to the Defendants. The
Defendants repaired these. A
further larger crack appeared sub-
sequently and the Defendants
repaired this in 1965. About this
time, the Plaintiffs were told by the
Defendant's agent that the cracks
were merely as a result of the
house settling and that this would
take some years. In 1975 the
Plaintiffs had an extension built. At
t h is
stage, t he
con t r ac t or
attempted unsuccessfully to repair
the crack. In 1979, the Plaintiffs
consulted an architect who told
them that the house had a major
s t r uc t u r al f au lt in t hat t he
foundations were insufficient.
Remedial work was necessitated;
underpinning of the foundations
had to be carried out. Proceedings
were issued in 1980. The statute
was pleaded against the Plaintiff.
For the Plaintiff, it was submitted
that the date of accrual was when
the damage was discovered and
that this was postponed by reason
of t he De f endan t 's agen t 's
representations.
Carroll J. held that the date of
accrual was when the remedial
work was completed in 1965. In
other words, she applied a date of
discoverability rule. In coming to
this conclusion, Carroll J. examined
a number of English cases and
specifically followed the approach
of the Court of Appeal in
Sparham-
Souter -v- Town and
County
Developments
(Essex) Ltd. and
Another
[1976] 2 W.L.R. 493. An
interesting point about this is that
Sparham was overruled by a
reluctant House of Lords in
Pirelli
General Cable Works Ltd. -v- Oscar
Faber and Partners
[1983] 2 W.L.R.
6, a case which will be dealt with
later. Sparham itself involved an
action against a public authority for
negligence and breach of duty in
failing to ensure that the plans and
foundations complied with the
relevant bye-laws. Cracks had
appeared in the brickwork. The
authority claimed,
inter alia
, that
the cause of action was statute
barred.
Lord Denning in that case stated
at p.497 that "A cause of action
accrues not at the date of the
negligent act or omission but at the
date of damage sustained by the
Plaintiff". He went on to quote
Vaughan Williams L. J. in
Thompson -v- Lord
Clanmorris
[1900] 1 Ch. 718, where the latter
stated "A statute of limitations
cannot begin to run unless there
are t wo things present — a party
capable of suing and a party
capable of being sued". Carroll J.
expressly referred to this statement
in Morgan and in fact she stated
that there cannot be a party
capable of suing unless he knows
or should know that he has
suffered damage. Denning M. R.
went on to state that " I t would be
most unjust that time should run
against the Plaintiff when there is
no possibility of bringing an action
to enforce it". Lord Roskill agreed
with Denning M. R.'s approach con-
cerning the existence of a person
capable of suing and another
person capable of being sued. In
fact he quoted from Halsbury's
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