The Gazette 1988

GAZETTE

JUNE 1988

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. •

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 —

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(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.

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