The Gazette 1988

GAZETTE

JUNE 1988

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

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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