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GAZETTE
JUNE 1988
and middle stages. It is only when
serious damage begins to show
that the cause can be identified.
The Plaintiff's claim was for
compensation under the Federal
Employer's Liability and Boiler
Inspection Acts. The U.S. Supreme
Court did avert to the concept
behind the Statute of Limitations
and came down heavily in favour
of a date of discoverability rule as
can be seen from the following
extract from the judgment of
Judge Rutledge at p. 169:
" I f Urie were held to be barred
from prosecuting this action
because he must be said, as a
matter of law, to have contracted
silicosis prior to November 25,
1938, it would be clear that the
federal legislation afforded Urie
only a delusive remedy.
It would mean that at some
past moment in time, unknown
and inherently unknowable, even
in retrospect, Urie was charged
w i th knowledge of the slow and
tragic disintegration of his lungs;
under this view Urie's failure to
diagnose, within the applicable
statute of limitations, a disease
whose symptoms had not yet
obtruded on his consciousness,
would constitute a waiver of his
right to compensation at the
ultimate day of discovery and
disability . . .
We do not think the humane
legislative plan intended such
c on s equen c es to a t t r a ct a
blameless ignorance nor do we
think those consequences can
be reconciled wi th the traditions
of the Statute of Limitations
which conventionally required
the assertion of a claim within a
specified period of notice of the
invasion of the legal rights."
The American case that took on
board the "blameless ignorance"
criterion as set out in
Urie
is that
of
Quinton -v- United States
304.S
2d. 234 (1968). There the case
involved an action under the
Federal Courts Claims Act for
medical malpractice. Torle C. J.
stated that:
" The . . . rule . . . that a cause
of action for malpractice accrues
on the date of the negligent act,
even though the injured patient
is unaware of his plight, has
been subjected to every criticism
over the years. It has also
uniformly been condemned as
an unnecessarily harsh and
"unjust rule of law . . .
Since this . . . rule, so far as
we can d i sce r n, has no
significant redeeming virtue, we
declined to apply it but rather we
think that by far the most
sensible and just rule to be
applied under that section is that
a claim for malpractice accrues
against the Government when
the claimant discovers or w i th
reasonable diligence should have
discovered, the acts constituting
the alleged malpractice."
The final American case to be
considered is that of the Supreme
Court case of the
United States -v-
Kubrick
444 U.S. 111 (1979). In that
case Kubrick had been given an
an t i b i o t i c, Neomy c i n, by t he
Veterans Administration Doctors
w h en t hey we re c o n d u c t i ng
surgery on his right femur. The drug
had been negligently administered
and caused a ringing sensation and
loss of hearing in Kubrick. Although
Kubrick lost his action on the
grounds of being statute barred,
the Court, feeling at the time that
he had sufficient information inside
the limitation period to put a
reasonable person on notice,
nonetheless indicated their view for
the purposes of the Statute of
Limitations. Justice White for the
majority stated on p.122 of the
report:
We are unconvinced, for Statute
of Limitations purposes, that a
plaintiff's ignorance of his legal
rights and his ignorance of the
fact of his injury or its cause
shou ld
receive
i den t i cal
treatment. That he has been
injured in fact may be unknown
or unknowable until the injury
manifests itself; and the facts
about causation may be in the
c o n t r ol
of
t he
pu t a t i ve
defendant, or available to the
plaintiff or at least very difficult
to obtain."
The High Court decision that
would appear to conflict w i th the
American case is the
Hegarty -v-
O'Loughran
case where the facts
were as follows:
The De f endan ts we re bo th
surgeons; the first-named of which
performed an operation on the
Plaintiff's nose in 1973. Soon after
the operation the nasal bridge
collapsed. A remedial operation
was performed in June, 1974, by
the second-named Defendant. The
second ope r a t i on was not a
success and by 1976 the matter
had begun to deteriorate. From then
until 1978 the Plaintiff mentioned
the matter to a Dr. Browne though
not apparently as her doctor. From
1978, the Plaintiff attended Dr.
Browne as her General Practitioner.
She did not go to him for specific
advice about her nose, but did,
when attending him for other
purposes, indicate that her nose
was
c au s i ng
cons i de r ab le
discomfort. His advice was for her
to leave her nose alone.
In 1980 the Plaintiff went to
London. Whilst there her nose
deteriorated even further. She
returned home whereupon she had
a further successful operation.
Proceedings were commenced
against both Defendants by the
issue of a Summons on 19th
December, 1980. The Plaintiff
claimed damages for negligence.
The Defendants in their defence
pleaded
inter alia
that her claim was
statute barred by virtue of S.11
(2)(b) of the 1957 Statute.
T h r o u g h o ut t he j u d gme n t,
Barron J. was at pains to point out
that no question of the uncons-
titutionality of S.11 was raised and
in fact goes so far as to say that at
p.605 of the judgment:
"Suppo rt for this proposition is
to be found in
Morgan -v- Park
Developments [
1983] ILRM 156.
In that case, Carroll J. held that
the date of accrual in an action
for negligence in the building of
a housing estate is the date of
discoverability. I agree that this
should be the law and for the
reasons given. Further, I see no
reason why such a proposition,
if valid, should not apply to all
a c t i ons for damages
for
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