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GAZETTE
JUNE 1988
the Court is unable to rule on the
validity of the claims made against
the constitutionality of S. 11 (2)(b)
of the Act of 1 957, it is proper to
point out that the justice and
fairness of a t t ach i ng to t hat
subsection a saver such as was
inserted by the British parliament in
S.1 of the Limitations Act, 1963,
are so obvious that the enactment
by our parliament of a similar
provision would merit urgent con-
sideration."
In
Norris -v- A. G.
[ 1984] I.R. 36
at p . 89 McCa r t hy J. in t he
Supreme Court in the course of a
dissenting judgment stated that it
was "fair to infer that the Court (in
Cahill
-v- Sutton)
i n c l i n ed t o t h e
view that the relevant subsection
of section 11 of the Act of 1957
was constitutionally invalid."
Fu r t her
s u p p o rt
for
t he
contention that, in the absence of
a date of discoverability rule, S. 11
(2)(b) would be held constitu-
tionally invalid comes from the very
case on which Lord Fraser in
Pirelli
placed so much emphasis, namely
the
Cartledge
case. That case
concerned the damage caused to
the lungs of an individual who was
susceptible to pneumoconiosis and
who inhaled noxious dust over a
period of years as a result of his
work. Lord Reid, at p.772, quoted
by Lord Fraser in
Pirelli,
stated as
follows:
" I t appea rs to me to be
unreasonable and unjustifiable in
principle that a cause of action
would be held to accrue before
it is possible to discover an
injury, and, therefore, before it
is possible to raise any action. If
this were a matter governed by
Common Law I would hold that
a cause of action ought not to be
held to accrue until either the
injured person has discovered
the injury or it would be possible
for him to discover it if he took
such steps as would be reason-
able in the circumstances. The
Common Law ought never to
produce a wholly unreasonable
r esu l t, nor ought e x i s t i ng
authorities to be read so literally
as to produce such a result in cir-
cumstances never contemplated
when they were decided."
Lord Pearce in the same case
was of a similar view when he said
that the argument of Counsel for
the Plaintiff — " wo u ld produce a
result according w i th common
sense and wo u ld avo id the
harshness and absurdity of a
limitation that in many cases must
bar the Plaintiff's cause of action
before he ought to have known
that he has one ".
Both Law Lords felt bound by
statute, a situation remedied soon
afterwards by the 1963 English
Statute of Limitations. However, if,
as Lord Reid stated, the Common
Law would insist on a date of dis-
c o v e r ab i l i ty
rule, t he
Irish
Constitution would demand it.
An American case directly in
po i nt is t h at of
William T. Urie -v-
Guy A. Thompson
( 1 9 4 9) 3 3 7
U.S. 163. This is a case wi th facts
quite similar to that of
Cartledge.
Here the Plaintiff worked for a
considerable number of years and
due to his work inhaled silicone
particles which led to a condition
known as silicosis whereby his
lungs were badly damaged. The
onset of such an industrial disease
is undiscoverable during its early
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