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GAZETTE
OCTOBER 1991
The Limitation of Personal Injury and
Death Actions
The Statute of Limitations (Amendment) Act, 1991, has introduced
major reforms of the law of limitations in the case of personal injury
and death actions. In an action for damages for personal injuries
the ordinary period of limitation is now the period of three years
from the date of accrual of the cause of action which is the subject
of the proceedings or the "date of knowledge", within the meaning
of section 2 of the Statute of Limitations (Amendment) Act, 1991,
of the person injured, if later.
In this article,
Dr. John White
of
UCC reviews the law governing the
limitation of personal injury and
death actions in the context of the
recent statutory amendments and
examines the assertion by the
Supreme Court of a jurisdiction, not
only to dismiss a claim for want of
prosecution, but also to dismiss a
claim commenced w i t h in the
period of limitation allowed by
statute and prosecuted with due
diligence, where the Court deter-
mines that the interest of justice
requires it.
Personal injury: the ordinary
period
Section 3 (1) of the Statute of
Limitations (Amendment) Act,
1991, provides for an ordinary
limitation period of three years from
the date of accrual of the cause of
action or the "date of knowledge",
within the meaning of section 2 of
the Act of 1991, if later, in the case
of actions for personal injuries.
1
The subsection provides that:
"An action . . . claiming dam-
ages in respect of personal
injuries to a person caused by
negligence, nuisance or breach
of duty (whether the duty exists
by virtue of a contract or of a
provision made by or under a
statute or independently of any
contract or any such provision)
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."
by
Dr. John P.M. White
Lecturer in Law,
University College, Cork
Under the Statute of Limitations,
1957, the limitation period com-
menced from " t he date on which
the cause of action accrued".
2
In
Hegarty
-v- O'Loughran
3
the
Supreme Court declined to
interpret this provision as meaning
the date when the plaintiff knew, or
as a reasonable person ought to
have known, t hat she had
sustained the damage in issue as a
result of the defendant's conduct,
whichever first occured. On the
contrary, the Court held that for the
purposes of the Act of 1957 a
cause of action for personal injuries
accrued when the plaintiff had
sustained "a provable personal
injury capable of a t t r ac t i ng
compensa t i on ," regardless of
whether the plaintiff actually knew
or ought to have known that she
had sustained injury caused by the
defendant's conduct.
4
This meant
that the period of limitation might
well expire on an injured person in
circumstances where that person
had no opportunity of commencing
proceedings in respect of that
injury because the plaintiff was not
aware and could not reasonably
have been expected to be aware of
her injury and its causal connection
with the defendant's conduct. The
manifest injustice of this result has
now been remedied by the 1991
Act which postpones the date of
operation of the limitation period
until the "date of knowledge" as
defined in section 2 of that Act - a
criterion which must be considered
in detail below; but it should be
observed first that section 7 of the
Act of 1991 provides that
the
provisions of the Act of 1991
"apply to all causes of action
whether accruing before or after its
passing
and to
proceedings
pending at its passing."
Therefore,
the benefits of the Act are afforded
not only to persons injured after its
commencement but to any person,
whether or not he has already
instituted proceedings, who comes
within its terms.
The "date of knowledge"
Section 2 of the Act of 1991, which
defines the "date of knowledge"
for the purposes of the Act, de-
serves to be quoted in full. Section
2 provides that:
"(1) 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 de-
pendant 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 attri-
butable in whole or in part to
the act or omission which is
alleged to constitute negli-
gence, nuisance or breach of
duty,
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