The Gazette 1988

GAZETTE

JUNE 1988

the Court is unable to rule on the validity of the claims made against the constitutionality of S. 11 (2)(b) of the Act of 1 957, it is proper to point out that the justice and fairness of a t t ach i ng to t hat subsection a saver such as was inserted by the British parliament in S.1 of the Limitations Act, 1963, are so obvious that the enactment by our parliament of a similar provision would merit urgent con- sideration." In Norris -v- A. G. [ 1984] I.R. 36 at p . 89 McCa r t hy J. in t he Supreme Court in the course of a dissenting judgment stated that it was "fair to infer that the Court (in Cahill -v- Sutton) i n c l i n ed t o t h e view that the relevant subsection of section 11 of the Act of 1957 was constitutionally invalid." Fu r t her s u p p o rt for t he contention that, in the absence of a date of discoverability rule, S. 11 (2)(b) would be held constitu- tionally invalid comes from the very case on which Lord Fraser in Pirelli placed so much emphasis, namely the Cartledge case. That case concerned the damage caused to

the lungs of an individual who was susceptible to pneumoconiosis and who inhaled noxious dust over a period of years as a result of his work. Lord Reid, at p.772, quoted by Lord Fraser in Pirelli, stated as follows: " I t appea rs to me to be unreasonable and unjustifiable in principle that a cause of action would be held to accrue before it is possible to discover an injury, and, therefore, before it is possible to raise any action. If this were a matter governed by Common Law I would hold that a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as would be reason- able in the circumstances. The Common Law ought never to produce a wholly unreasonable r esu l t, nor ought e x i s t i ng authorities to be read so literally as to produce such a result in cir- cumstances never contemplated when they were decided." Lord Pearce in the same case

was of a similar view when he said that the argument of Counsel for the Plaintiff — " wo u ld produce a result according w i th common sense and wo u ld avo id the harshness and absurdity of a limitation that in many cases must bar the Plaintiff's cause of action before he ought to have known that he has one ". Both Law Lords felt bound by statute, a situation remedied soon afterwards by the 1963 English Statute of Limitations. However, if, as Lord Reid stated, the Common Law would insist on a date of dis- c o v e r ab i l i ty rule, t he Irish Constitution would demand it. An American case directly in po i nt is t h at of William T. Urie -v- Guy A. Thompson ( 1 9 4 9) 3 3 7 U.S. 163. This is a case wi th facts quite similar to that of Cartledge. Here the Plaintiff worked for a considerable number of years and due to his work inhaled silicone particles which led to a condition known as silicosis whereby his lungs were badly damaged. The onset of such an industrial disease is undiscoverable during its early

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