The Gazette 1988

GAZETTE

JUNE 1988

The Date of Discoverability Rule and S.11 of the 1957 Statute of Limitations

Martin Hayden

" T i me is a test of trouble but not a remedy", wr o te Emily Dickinson. Lawyers can go further, " T ime can extinguish the remedy". S.11 (2)(b) of the Statute of Limitations, 1957, provides as f o l l ows: An ac t i on c l a imi ng damages for negligence, nuisance or breach of duty . . . where the damages claimed by the plaintiff for negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years f r om the date on wh i ch the cause of ac t i on accrued."

of the Court of Appeal in Sparham- Souter -v- Town and County Developments (Essex) Ltd. and Another [1976] 2 W.L.R. 493. An interesting point about this is that Sparham was overruled by a reluctant House of Lords in Pirelli General Cable Works Ltd. -v- Oscar Faber and Partners [1983] 2 W.L.R. 6, a case which will be dealt with later. Sparham itself involved an action against a public authority for negligence and breach of duty in failing to ensure that the plans and foundations complied with the relevant bye-laws. Cracks had appeared in the brickwork. The authority claimed, inter alia , that the cause of action was statute barred. Lord Denning in that case stated at p.497 that "A cause of action accrues not at the date of the negligent act or omission but at the date of damage sustained by the Plaintiff". He went on to quote Vaughan Williams L. J. in Thompson -v- Lord Clanmorris [1900] 1 Ch. 718, where the latter stated "A statute of limitations cannot begin to run unless there are t wo things present — a party capable of suing and a party capable of being sued". Carroll J. expressly referred to this statement in Morgan and in fact she stated that there cannot be a party capable of suing unless he knows or should know that he has suffered damage. Denning M. R. went on to state that " I t would be most unjust that time should run against the Plaintiff when there is no possibility of bringing an action to enforce it". Lord Roskill agreed with Denning M. R.'s approach con- cerning the existence of a person capable of suing and another person capable of being sued. In fact he quoted from Halsbury's

The problem with this section stems from the various inter- pretations given to the date " on wh i ch the cause of ac t i on accrued". Various traditional inter- pretations have arrived at different conclusions and the present article attempts to review the state of the law as it stands today and makes reference also to the Law Reform Commi s s i on 's Report on the Statute of Limitations, Claims in Respect of Latent Personal Injuries LRC 21 of 1987, and also refers to the recent private member's Bill on the Statute of Limitations intro- duced by Mr. George Birmingham. It is the writer's view that the only constitutionally valid interpretation of S.11 must be one which includes a date of discoverability rule. There are at present what would appear to be t wo conflicting High Court decisions on the matter. Morgan -v- Park Developments [1983] ILRM 156 and Anna Hegarty -v- Francis O'Loughran and Gerald £. Edwards [1987] ILRM 603. The facts of Morgan are quite s t r a i gh t f o rwa r d. The Plaintiffs purchased the house from the Defendant building contractor in 1962. Shortly after moving in cracks appeared wh i ch were notified to the Defendants. The Defendants repaired these. A further larger crack appeared sub- sequently and the Defendants repaired this in 1965. About this

by Ma r t in Hayden Barr ister-at- Law

time, the Plaintiffs were told by the Defendant's agent that the cracks were merely as a result of the house settling and that this would take some years. In 1975 the Plaintiffs had an extension built. At t h is stage, t he con t r ac t or attempted unsuccessfully to repair the crack. In 1979, the Plaintiffs consulted an architect who told them that the house had a major s t r uc t u r al f au lt in t hat t he foundations were insufficient. Remedial work was necessitated; underpinning of the foundations had to be carried out. Proceedings were issued in 1980. The statute was pleaded against the Plaintiff. For the Plaintiff, it was submitted that the date of accrual was when the damage was discovered and that this was postponed by reason of t he De f endan t 's agen t 's representations. Carroll J. held that the date of accrual was when the remedial work was completed in 1965. In other words, she applied a date of discoverability rule. In coming to this conclusion, Carroll J. examined a number of English cases and specifically followed the approach

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