1. This
is the Defendant's application under Order 8, Rule 2 of the Rules of the
Superior Courts, 1986 to set aside an order made by this Court on 25th
November, 1996 wherein it was ordered that the Plaintiff's time within which to
apply for leave to renew the Plenary Summons, which was issued on 2nd March,
1994, should be extended up to and including the date of the order and further
that pursuant to Order 8, Rule 1 the summons should be renewed for a period of
six months from the date of the order.
2. The
basis of the Plaintiff's claim against the Defendant is that on 5th March,
1991, during the course of his employment with the Defendant in the Defendant's
storeroom, the Plaintiff sustained personal injuries as a result of the
negligence, breach of duty and breach of statutory duty of the Defendant, its
servant or agents. The summons was issued on 2nd March, 1994, within a couple
of days of the expiration of the relevant limitation period prescribed by the
Statute of Limitations, 1957.
3. As
is usual, the application to renew the summons was made ex parte. It was
grounded on the affidavit of the Plaintiff's solicitor, Gerard F. O'Donnell,
which was sworn on 11th September, 1996, two and a half years after the summons
had issued. The reason ascribed for failure to serve the summons within the
prescribed time was "the delays incurred in preparing the Plaintiff's case for
Counsel to draft the Statement of Claim". Two explanations were advanced for
the delays. The first was that after the summons was issued it was necessary
to engage an engineer to advise on the question of liability. The engineer
reported on 3rd May, 1994, but the Plaintiff was unhappy to proceed on the
basis of the report. However, following further discussions with the engineer
and the clarification of the engineer's instructions, a revised report issued
on 3rd June, 1995. The second was that there was a difficulty in linking the
Plaintiff's injuries to the accident, which necessitated Mr. O'Donnell
embarking upon correspondence with the Plaintiff's neurosurgeon. When the
medical reports and the revised engineer's report were to hand a consultation
was held with Counsel on 5th January, 1996 and following that consultation the
Plaintiff indicated that he was happy to proceed with the action. Mr.
O'Donnell also averred that, if the plenary summons was not renewed, the
Plaintiff's action would be statute barred.
4. The
sequence of events after 5th March, 1991 has been amplified in the five
affidavits filed on this application, two of which were sworn by the
Defendant's solicitor, Paul G. Horan, on 10th August, 1998 and 20th November,
1998 respectively, two of which were sworn by Mr. O'Donnell, on 5th November,
1998 and 20th November, 1998 respectively and one sworn by the Plaintiff
himself on 19th November, 1998. The most significant fact to emerge from these
affidavits is that the first notification of a claim by the Plaintiff against
it to the Defendant was made in a letter dated 26th March, 1996 from the
Plaintiff's solicitors to the Defendant. In that letter, which was dispatched
more than five years after the accident and more than two years after the
summons was issued, it was erroneously alleged that the accident happened on
5th April, 1991. Although the Defendant has a record of the Plaintiff having
attended the Defendant's occupational health unit on 8th March, 1991 and a
record of his complaint, his referral to the Galvia Hospital for x-ray, the
radiological report of the x-ray, his referral to an orthopaedic surgeon and
the orthopaedic surgeon's report, I am satisfied on the evidence before me that
before 26th March, 1996 there was no intimation to the Defendant that the
Plaintiff's infirmity, a prolapsed cervical disc, was attributable to an
accident at work.
5. In
his affidavit, the Plaintiff averred that it was as a result of a consultation
with his neurosurgeon on 18th September, 1991, just six months after the
accident, that he drew the link between the accident and the condition of his
neck. At that consultation his neurosurgeon informed him that the condition of
his cervical spine was not ascribable to degenerative disease; rather that the
damage would have resulted from a bang of considerable force. The Plaintiff's
explanation for not instituting proceedings at that juncture was that he was
afraid he would jeopardise his position as a storeman with the Defendant.
6. It
also emerged on this application that the Plaintiff is pursuing another claim
against the Defendant arising out of an accident which is alleged to have
occurred in October 1993.
7. On
behalf of the Defendant, Mr. Horan has averred that, in the light of the long
delay in prosecuting the claim and the failure on the part of the Plaintiff to
notify the Defendant of the accident at the time it is alleged to have
occurred, the Defendant would be seriously prejudiced in defending the claim.
In particular, he has averred that it is impossible at this remove to ascertain
precisely the physical condition of the storeroom, which is alleged to have
been responsible for the Plaintiff's injury, or to verify the Plaintiff's
assertion that there were no witnesses of the accident or to assess whether the
injuries of which the Plaintiff complains are accident related.
8. In
two recent decisions, the Supreme Court has held that on its own the fact that
the plaintiff's claim, if made by a fresh summons would be statute barred, is
not a good reason for renewing a summons and has distinguished its earlier
decisions in
Baulk
-v- Irish National Insurance Company Limited
(1969) I.R. 66 and
McCooey
-v- Minister for Finance
(1971) I.R. 159.
9. In
an ex tempore judgment delivered on 21st March, 1997 in
O'Brien
-v- Fahy t/a Greenhills Riding School
,
on an application by a defendant to set aside a summons which had been renewed,
Barrington J. said:-
10. On
the facts of that case - the accident happened on 24th July, 1988, the summons
was not issued until 23rd July, 1991 and the first intimation that proceedings
were contemplated against the Defendant was given on 5th June, 1992
approximately four years after the date of the accident - Barrington J. stated
as follows:-
11. More
recently, in
Roche
-v- Clayton
in which an ex tempore judgment was delivered on 8th May, 1998, O'Flaherty J.
stated as follows:-
12. In
my view, the position of the parties on this application is indistinguishable
from the position of the parties in
O'Brien
-v- Fahy
.
If anything, in this case the balance of justice is more heavily weighted
against the Plaintiff and in favour of the Defendant than was the case in
O'Brien
-v- Fahy,
because in this case a greater period elapsed between the date of the alleged
accident and the first notification to the Defendant that a claim was to be
made. The Plaintiff has not established any good reason for his failure to
serve the summons within the one year period prescribed in Order 8, Rule 1.
His explanation that he feared he would jeopardise his position with the
Defendant if he instituted proceedings rings hollow. In any event, if an
excuse of that nature was countenanced, the time strictures imposed by the
Statute of Limitations, 1957 could easily be set at nought.
13. Finally,
the Plaintiff has complained about the Defendant's delay in bringing the
application to set aside the order dated 25th November, 1996. The Defendant
was undoubtedly excessively tardy in bringing the application. However, that
cannot avail the Plaintiff. In accordance with Order 8, the summons was
renewed on foot of an ex parte application on the basis that the Defendant
would be at liberty before entering an appearance to apply to have the renewal
order set aside. The Defendant has adduced evidence which, had it been before
me on 25th November, 1996, would have prompted me to refuse to renew the
summons.