The Gazette 1988

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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