367 / 822
GAZETTE
JUNE 1988
time not run until the Plaintiff
becomes aware of the Defendants
identity? However, in the end it
was the view of the Commission
t h a t t hese r e s e r v a t i ons and
possible criticisms wou ld not
outweigh the benefit of a dis-
c o v e r a b i l i ty rule. Then t he
Commission went on to consider
t he neces sa ry e l eme n ts
of
knowledge for such a discover-
ability test and felt that any such
test must contain an objective
element o t he rwi se a premium
would be put on indolence and
carelessness.
The Law Reform Commission in
its Report includes a draft Bill
s e t t i ng
out
its
p r opo s ed
amendments to the Statute of
L i m i t a t i o n s.
Mr.
George
Birmingham T.D. has introduced a
private member's bill entitled " A n
Act to amend the Statute of
Limitations, 1957 and the Civil
Liabilities Act, 1961, by providing
new periods of limitation in respect
of actions for certain personal
i n j u r i es
and o t her
ma t t e rs
c o n n e c t ed
t h e r e w i t h " .
Mr.
Birmingham's Bill follows in general
the scheme set out by the Law
Reform Commission. There would
appear, however, to be one minor
typographical error in Section 2 of
the Bill which states:
Section 2: —
" An action claiming damages
for negligence, nuisance or
breach of duty (whether the
du ty exists by virtue of a
contract or of a provision made
by or under a S t a t u te or
independently of any contract or
any such provision), where the
damages claimed by the Plaintiff
for the negligence, nuisance or
breach of duty consists of or
includes damages in respect of
personal injuries to any person,
shall not be brought from the
date on which the cause of
action accrued or the date of
know l edge (if later) of the
person injured."
As stated, there appears to be a
typograpical error in this definition
in that for the section to make
sense the following words should
be added "after the expiration of
three years", immediately after the
words "shall not be brought". The
Bill also adopts the rather full
definition of knowledge as set out
by the Law Reform Commission
d r a f t Bill. Se c t i on 4 of Mr.
Birmingham's Bill states as follows:
Section 4(1):
"References to a 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) t h at t he injury was
attributable either in whole or
in part to the act or omission
which is alleged to constitute
neg l i gence, nu i sance or
breach of duty;
(d) t he i den t i ty of t he
Defendant; and
(e) if it is alleged that the act
or omission was that of a
person, the additional facts
supporting the bringing of an
action against the Defendant;
and acknowledge that any acts
or omissions did not, as a matter
of law, involve negligence,
nuisance or breach of duty is
irrelevant.
4(2):
For the purposes of this
section an injury is significant if
the person who se date of
knowledge is in question would
reasonably have considered it
sufficiently serious to justify his
i n s t i t u t i ng p r o c eed i ngs for
damages against a Defendant
who did not dispute liability and
was able to satisfy a judgment.
4(3):
For the purposes of this section,
a person's knowledge includes
know l edge wh i ch he mi ght
reasonably have been expected
to acquire — (a) from facts
available or ascertainable by him;
or (b) from facts ascertainable by
him w i th the help of medical or
other appropriate expert advice
which is reasonable for him to
seek;
but a person shall not be fixed
under this sub-section w i th
knowledge —
(i) of a fact ascertainable only
wi th the help of expert advice
so long as he has taken all
reasonable steps to obtain
(and, where appropriate, to
act on) that advice;
(ii) of a fact that he had failed
to acquire as a result of the
injury.
Further support for a date of dis-
coverability rule can be seen in
Chapter 3 of James Brady and
Anthony Kerr's book
The Limitation
of
Actions
in
the
Republic
of
Ireland.
There they often suggest
an approach along the lines of
Judge Carroll in
Morgan.
In conclusion, it is to be hoped
that this private member's Bill does
not go the same road as many a
previous private member's Bill, i.e.
merely gathering dust on the
shelves of the Oireachtas. Legis-
lative intervention is necessary in
this area considering the confusion
that already exists. Let us hope that
it is not long in coming as it is
already now eight years since
Henchy J.'s comments in
Cahill
-v- Sutton
119801 I.R. at 269.
•
C O M P A NY
S ECRE T AR I AL
CONSU L T ANT
PETER H. QUINLAN
MBA, AITA
OFFERS
A
COMPLETE
COMPANY SERVICE
Advice on Corporate Procedures
Drafting of Resolutions and Minutes
Arrangement of Company Meetings
Searches and Updates of
Company Records
Filing Returns and Other Compliance
67 LANSDOWNE ROAD
DUBLIN 4
Tel.: (01) 684245
Agricultural Consultant
Services include
Damage and Loss Assessment,
C.P.0.'s, Insurance Claims,
Professional Evidence in Courts
T. P. Curran,
M.Agr.Sc.
20, Lakelands, Naas, Co. Kildare
Tel: (045) 66941
131