362 / 822
GAZETTE
JUNE 1988
Laws of England, 2nd ed. Vol. 20,
1 936, at p. 504 of the judgment: —
" A cause of action cannot ac-
crue unless there be a person in
existence capable of suing and
another person in existence who
can be sued ."
Coming to her conclusion on the
date of discoverability rule, Carroll
J. also referred to the then recent
House of Lords case of Pirelli. In
that case the House of Lords held,
applying
Cart ledge -v- E. J opting
and Sons Ltd.
[1963] A.C. 758 that
the accrual of a right of action, in
actions for negligence in the
construction or design of buildings
was the date the damage came into
existence and not the date when
the damage was discovered or
could, w i th reasonable diligence
have been discovered. Lord Fraser
in
Pirelli
placed cons i de r ab le
emphasis on the
Cart/edge
case.
The
Cartiedge
case
i t se lf
concerned a condition known as
silicosis i.e. the prolonged inhalation
of silicone leading to the eventual
destruction of the lung. Before
examining this case, it should be
noted that one of the main reasons
Lord Fraser found against the date
of discoverability rule was the fact
that the English Parliament had,
after
Cartiedge,
changed the law in
relation to the running of time in the
case of personal injuries. At p.10 of
his judgment Lord Fraser stated
that the 1963 Limitations Act
extends the time limit for the
raising of actions for damages
where actual facts of a decisive
c ha r a c t er we re ou t s i de t he
knowledge of the Plaintiff until
after the action would normally
have been time barred. He goes on
to state " I t must, therefore, be
taken that Parliament deliberately
left the law unchanged so far as
actions for damages of other sorts
are concerned". As a result he
found himself bound by statute and
reluctantly overruled
Sparham-
Souter.
Coming to this conclusion,
Lord Fraser was less than happy as
can be seen from the following
extract at p.14 of the report: —
" I am respectfully in agreement
w i th Lord Reid's view, expressed
in
Cartiedge
-v-
Jopling and Sons
Ltd.
[1963] A.C. 758, that such
a result appears to be un-
reasonable and con t r a ry to
principle, but I think the law is
now so firmly established that
only Parliament can alter it.
Postponement of the accrual of
the cause of action until the date
of discoverability may involve
the investigation of acts many
years after their occurrence, see
for example
Dennis -v- Cham-
wood Borough Council
11982] 3
W.L.R. 1064 w i t h possible
unfairness to the Defendants,
unless a final long stop date is
prescribed, as in S.6 and S.7 of
the Prescription on Limitation
(Scotland) Act, 1980. If there is
a question of altering this branch
of the law, this is in my opinion,
a clear case where any alteration
should be made by legislation,
not by judicial decision, because
this is, in the words of Lord
S i mon
of
Gl a i sda le
in
Milinangous
-v- George Frank
(Textiles) Ltd.
[1976] A.C.443 at
p.480:— 'A decision wh i ch
demands a wider range of
review than is available to the
courts following our traditional
and valuable adversarial system
— the sort of review composed
by an interdepartmental com-
mittee'. I expect the parliament
will soon take action to remedy
the unsatisfactory state of the
law on this subject."
As Carroll J. correctly pointed
out, such an abdication of respon-
sibility is not open to the Irish
judiciary entrusted as it is w i th
ensuring the protection of Cons-
titutional rights.
There has been considerable
debate as to whether or not a right
to litigate is a property right within
the meaning of Article 40.3.2 or
whether it involves the property
rights guaranteed by Article 43 of
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the Constitution. For discussion on
the matter see the judgment of
O'Higgins C. J. in
Moynihan -v-
Greensmyth
[1977] I.R. 55 and also
the judgment of Finlay P. in
Cahill
-v- Sutton
[1980] I.R. 271
et seq.
In any event regardless of wh i ch
article is involved it is clear that the
Constitution guarantees the right of
access to the courts. This has been
established in a number of cases,
in particular,
Macauiey -v- Minister
for Posts and Telegraphs
[1966] I.R.
345, where Kenny J. held that one
of the personal rights guaranteed
by Article 40.3 of the Constitution
was the right of access to the
courts. Costello J. reiterated this in
t he
State
(McEldowney)
-v-
Ke/iiher
[ 1982] ILRM 568. This
must be a meaningful access. As
such it is submitted that the only
possible approach to pass the test
of constitutionality is a date of dis-
coverability rule. Carroll J. held
such in
Morgan
when, having
quoted Lord Pearce and Reid in
Cartiedge,
she states at p.160 of
the report:-
" I t seems to me that no law
wh i ch could be described as
'harsh and absurd' or wh i ch the
courts could say was unreason-
able and unjustifiable in principle
could also be constitutional."
Further support for a holding of
unconstitutionality in the event of
S.11 allowing only a date of damage
interpretation is to be found in the
judgment of Henchy J. in the
decision in
Cahill-v- Sutton
[1980]
I.R. 269.
That case concerned the injuries
suffered by the Plaintiff as a result
of her gynaecologist prescribing a
course of drugs for her at such
levels as to cause her severe injury.
The case is a l ead i ng case
governing the principle of when a
Plaintiff has the
locus standi
to
bring an action. In the instant case,
the Plaintiff was found wanting in
personal
locus standi
(see p.285 of
the judgment). Henchy J. however
went on to state at p.287:
" I n the result, it is not possible
to uphold the conclusion of the
President of the High Court w i th
regard to the failure of the
Plaintiff's claim that S.11 (2)(b)
of the Act of 1957 is uncons-
titutional; that is due solely to
the fact that the Plaintiff will
lack the necessary competence
to make that claim . . . While in
the circumstances of this case
126