366 / 822
GAZETTE
JUNE 1988
negligence including those involved
in personal injuries, though it would
seem to me that there should not
be an unlimited period based upon
discoverability."
Be that as it may, however,
Barron J. felt that the historical
approach to establishing the
accrual of a cause of action for
damages for negligence has been
regarded as occurring when the act
causing the damage is committed.
For this proposition, Barron J. cites
the Supreme Court authority of
Carroll -v- KUdare Co. Council
[ 1 9 5 0 ] I.R. 2 5 8 . That case
involved an action by a house
owner the foundation of whose
property was damaged during the
laying of a new road. The damage
was caused initially by the passing
of a steam roller back and forth
during the laying of the road.
Un f o r t u n a t e l y,
t he
c r ac ks
indicating such damage did not
appear until outside the period of
limitation, as it then was. That
period was laid down in S. 1 of the
Public Authorities Protection Act,
1 893, which states:
S. 1 (a) The action, prosecution, or
proceedings shall not lie or be
instituted unless it is commenced
within six months after the act,
neglect, or default, or in case of
continuance of injury or damage,
within six months next after the
ceasing t he r eo f ."
This particular Section has had
considerable problems in inter-
pretation as can be seen in the
judgments of the Supreme Court.
The Supreme Court itself disagreed
wi th a 3 —2 decision. The majority
followed the interpretation given
the section by Halsbury L. C. in
Carey -v- Metropolitan Borough of
Bermondsey
67 J.P. 447, stating
that time runs from the date of
damage. The
Carey
case and
subsequent
cases
involved
considerable legal argument on
why the parliament had included it
(continuance of injury or damage).
Black J. in the
Carroll
case felt,
however, contrary to the majority's
interpretation of S. 1, that Halsbury
L. C. was not laying down a
general date of damage principle
but was merely deciding the case
on the facts of the instant case.
Whatever view is taken of the
Carroll
decision both it and the
Carey
case are based on a statute
enacted prior to the adoption of the
1937 Cons t i t u t i on. Thus t he
statute does not benefit from the
presumption of constitutionality;
see Budd J. in
Educational Co. -v-
Fitzpatrick (No. 2)
[1961] I.R. 345.
The consequences of this are
obvious as can be seen from the
frustration of Lord Reid who felt,
but for the statute, the basic
principles of common law would
insist on a date of discoverability rule.
Barron J., given that the cons-
t i t u t i ona l i ty of S.11 was not
pleaded, felt bound, however, by
the
Carroll
case, but did add the
caveat
t ha t, should such an
approach be adopted, S.11 might
not weather the storm.
The Law Reform Commission
Report
The Law Reform Commission has
recently reviewed this area of the
law and published a report entitled
The Statute of Limitations; Claims
in Respect of Latent
Personal
injuries
(LRC 21, 1987). A detailed
analysis of this report is beyond the
scope of the present article. Suffice
it to say that, having reviewed the
present law in Ireland, the Com-
mission then went into a detailed
analysis of the position in other
common law jurisdictions (England,
Australia, Canada and the United
States). In ch. 4 of the report, the
Comm i s s i on put f o r wa rd its
proposals for reform. Having gone
through the options of (a) no time
limits; (b) limitation based on the
period in which the injury was sus-
tained; (c) a longer limitation period;
(d) a shorter limitation provision
supplemented by judicial discretion
to extend the period, and (e) a dis-
coverability test. The Commission
came down heavily in favour of the
latter and went so far as to say that
"We therefore recommend that the
discoverability test should be
i nco r po r a t ed exp l i c i t ly in the
legislative provisions".
Dealing with the first option, i.e.
no time limit, the Commission felt
that the balance of the argument
lay against the removal of all time
limits. The Commission felt that
some form of time limit would
provide a useful incentive to the
Plaintiffs to take proceedings
within a reasonable time. In dealing
w i t h t he second op t i on, i.e.
limitation based on the period of
years since t he injury was
sustained, the Commission re-
jected this option on the grounds
that the Plaintiffs would in certain
circumstances lose their right to
litigate even before they could
reasonably have become aware of
their right. Dealing with the third
option, i.e. a longer limitation
period, the Commission felt that
there were t wo reasons why this
option should not be adopted: (a)
the same problem as exists with
the present three year limitation
period will arise in the longer
limitation period: individuals could
lose their right of action before they
realise there is a cause of action,
and (b) all the problems of poor
quality of evidence arise the longer
the limitation period is extended.
The fourth option, i.e. a short
limitation period supplemented by
broad judicial discretion to extend
the period was rejected by the
Commission on a number of
grounds. The first of these grounds
and most obvious is that it would
introduce great uncertainty into the
law. No potential Defendant could
ever "close the books on potential
liability". The second objection is
that of the inevitable price of
judicial discretion, i.e. that the dis-
cretion will tend to be exercised
differently from Judge to Judge.
This will lead to differing outcomes
which are impossible to reconcile.
The Commission accepted that
the best solution is that provided by
a limitation period which runs from
the time the Plaintiff could possibly
have discovered his injury rather
than when he sustained it. They
took on board the comments of
Carroll J. in
Morgan -v- Park
Developments Limited
at p.156 i.e.
"whatever hardship there may be
to a Defendant in dealing with a
claim years afterwards, it must be
less than the hardship to a Plaintiff
whose action is barred before he
knows he has one".
The second argument in favour
of this date of discoverability test
is that it centres on a largely factual
ques t i on a l t hough u l t ima t e ly
depending on the Court's judgment
as to whether the facts render the
injury reasonably capable of being
d i scove r ed. The Comm i s s i on
realised that such a test is not
without problems. The question
arises: should the test embrace
cases where the Plaintiff was at all
times aware of his injury but had
not discovered its legal implications
for years? Should it extend to cover
or cater for that ignorance as the
result of bad legal advice? Should
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