Supreme Court of Ireland Decisions

1. This is an appeal brought by the plaintiff and a cross-appeal brought by the defendants against an order of the High Court made by Barron J. on the 27th May, 1987, upon the hearing by him of an issue on oral evidence concerning the question as to whether the plaintiff’s claim was statute barred by virtue of the provisions of s. 11, sub-s. 2 (b) of the Statute of Limitations, 1957, in which order the learned trial judge declared that the plaintiff’s claim was barred against both defendants by the said sub-section.

2. The plaintiff instituted proceedings by a plenary summons issued on the 19th October, 1982. Her claim is that the first defendant, in or about the year 1973, performed a septal resection upon her as treatment for trouble with an airway blockage in her nose and that he did so negligently, causing the septal resection to collapse following the operation. As against the second defendant the plaintiff’s claim was that the second defendant performed an operation in or about the year 1974 to remedy the situation arising from the first operation, consisting of a silastic bridge inlay upon the plaintiff. The plaintiff alleges that the inlay was initially successful and improved the plaintiff’s appearance but subsequently the same deteriorated and claims that that deterioration was caused by the negligence of the second defendant. The plaintiff alleges that she suffered great pain and suffered injury and was deformed and has incurred losses and expenses.

3. The defendants in addition to a claim that the plaintiff’s claim was barred by virtue of the provisions of s. 11, sub-s. 2 (b) of the Statute of Limitations, 1957, denied the negligence alleged against them, and also denied that the plaintiff had suffered any loss or damage.

4. Section 11, sub-s. 2 (b) of the Statute of Limitations, 1957, reads as follows:-

5. It is, of course, clear that this sub-section applies to the plaintiff’s claim in this case.

6. In a reserved judgment (reported at [1987] I.R. 135) Barron J. concluded that having regard to the decision of the former Supreme Court in Carroll v. Kildare County Council [1950] I.R. 258, the cause of action must be taken to have accrued within the meaning of the sub-section when the act causing the damage was committed, and that accordingly the cause of action, if it existed against the first defendant would have accrued in 1973, and the cause of action against the second defendant would have accrued in 1974.

7. In the course of that judgment the learned trial judge identified the two submissions made to him as being, on behalf of the defendants, that the cause of action accrued when each operation was performed; and, on behalf of the plaintiff, that the cause of action accrued when a reasonable man exercising reasonable diligence with regard to his own affairs could have discovered the manifestation of the damage. He noted that he was referred to the decision of Carroll J. in the High Court in Morgan v. Park Developments [1983] I.L.R.M. 156 that whilst in the course of the argument before him reference was made to submissions in other cases that the provisions of s. 11, sub-s. 2 (b) of the Act of 1957 were invalid having regard to the provisions of the Constitution, no such issue arose before him either on the pleadings or in argument.

8. With regard to the facts the learned trial judge indicated that had he taken the view that discoverability was the test as to the date of the accrual of a cause of action that the claim against the first defendant would still be barred by the sub-section, since time would have begun to run, at latest, when the plaintiff was advised to have the remedial operation by the second defendant.

9. With regard to the position of the second defendant, in the event of that being the legal position he stated as follows:-

10. Although in the preceding portion of the judgment, dealing with the submission made on behalf of the plaintiff, the learned trial judge has referred to what might be described as the reasonable discoverability of the manifestation of damage, the portion of his judgment which I have just quoted, and which is the only portion which would bring either of the plaintiff’s claims within the time limited if the legal position were otherwise than the learned trial judge has found it to be, would seem to be directed towards a finding on the facts of the time at which the plaintiff not only discovered the manifestation of her damage, but also discovered or could reasonably have discovered the existence of a possible or probable cause of action.

11. Having regard to the particular finding of fact made by the learned trial judge to which I have referred, three possible alternative constructions of the subsection were debated in argument before this Court. The first was a construction whereby the cause of action would be deemed to have accrued when the wrongful act was committed. The second was that the cause of action would be deemed to have accrued at the time when, a wrongful act having been committed, it was followed by damage which, it was submitted on behalf of the defendants, in the case of personal injury, was the time when that personal injury manifested itself.

12. The third interpretation was that for which the plaintiff necessarily contended, namely, that the cause of action only accrued when the injured party not only had suffered the committing of a wrongful act but had also suffered damage and could, by the exercise of reasonable diligence, in addition have discovered that such damage was caused by the wrongful act complained of.

13. I am satisfied that the principles laid down by the former Supreme Court in this case do not apply to the interpretation of s. 11, sub-s. 2 (b) of the Limitation Act, 1957, and as I understood the defendants’ argument they did not seriously contend that they did.

14. The time limitation in issue in Carroll v. Kildare County Council [1950] I.R. 258 was that provided by s. 1, para. (a) of the Public Authorities Protection Act, 1893, which reads as follows:-

15. What the essential time created by this limitation sub-section was, in the first instance, was a specific and express provision that time commenced to run at the time when the act, neglect or default complained of occurred and, secondly, an alternative saver or qualification that where there was a continuance of injury or damage that the time commenced at the time when the continued injury or damage ceased. A consideration of the arguments and judgments in that case clearly indicate that the real issue before the court was whether on the particular facts there was a continuance of injury or damage within the meaning of the sub-section.

16. Leaving aside any doubt one might entertain as to the correctness of the decision in Carroll v. Kildare County Council [1950] I.R. 258 in respect of the facts which were in issue in that case, I am satisfied that it does not apply to the provisions of s. 11, sub-s. 2 (b) of the Act of 1957 which introduce a wholly different concept for the commencement of the running of the time limit, namely, the accrual of a cause of action.

17. A tort is not completed until such time as damage has been caused by a wrong, a wrong which does not cause damage not being actionable in the context with which we are dealing. It must necessarily follow that a cause of action in tort has not accrued until at least such time as the two necessary component parts of the tort have occurred, namely, the wrong and the damage. The “time of the act, neglect or default complained of” cannot, therefore, be equated with “the date on which the cause of action accrued.” It is, therefore, necessary to consider what is the proper interpretation of this latter phrase which is contained in s. 11, sub-s. 2 (b) of the Act of 1957.

18. The main contention made on behalf of the defendants on this issue was a relatively simple one, namely, that the meaning of “the accrual of a cause of action in tort, breach of duty or breach of contract” was well and clearly established by the common law at the time of the passing of the Act of 1957, and that this Court should not otherwise construe the sub-section unless there were compelling reasons so to do and that there are no such compelling reasons.

19. In particular, the defendants relied upon the decision of the Court of Appeal in Read v. Brown (1888) 22 QBD 128. That case concerned the regional jurisdiction of the Mayor’s Court in London which depended upon establishing that a cause of action was one which was arising wholly or in part within the City of London or the liberties thereof. Lord Esher M.R., in delivering what was in effect the unanimous judgment of the Appeal Court, stated as follows at p. 131:-

20. “What is the real meaning of the phrase “a cause of action arising in the City?” It has been defined in Cooke v. Gill Law Rep. 8 C.P. 107 to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

21. The defendants submit that applying the reasoning contained in this judgment to an action for tort, breach of duty or breach of contract causing personal injuries, the essential facts which a plaintiff would have to prove in order to succeed in obtaining judgment would be, firstly, the wrong, and secondly, the existence of a personal injury caused by that wrong. The contention is that as soon as there has occurred to the plaintiff in such an action a manifestation of personal injury which was caused by a wrong previously committed, a cause of action has come into being. That, it is said, is the time when the cause of action has accrued.

22. The plaintiff contends that, although she does not challenge the constitutional validity of the sub-section, since it is contained in a post-constitutional statute the Court should, if possible, construe it in a manner which would give to it a constitutionally acceptable effect.

23. To interpret “the accrual of a cause of action” as being earlier than the time when a person ought to have been aware of the existence of the cause of action is, it is submitted, harsh and unjust and fails adequately to protect the constitutional right of the plaintiff to litigate. Reliance is placed upon the decision of Carroll J. in Morgan v. Park Developments [1983] I.L.R.M. 156 and the authorities therein cited with approval.

24. In that case, which was a claim for damages for negligence in the construction of the foundations of a house which caused a major structural failure in a wall, the learned trial judge held that two possible interpretations of s. 11, sub-s. 2 (a) of the Act of 1957 which provides a time limit from the “date of the accrual of the cause of action” were open. Having so concluded, she decided that having regard to the presumption of constitutional validity applying to the section, her duty was to construe it in the manner causing less hardship and that, she decided, was that the cause of action had only accrued when the defect in the house was discovered or should have been discovered.

25. On the facts proved in that case, the damage caused by the defect had been manifest long before the defect was discovered. The decision, in effect, therefore, postpones the accrual of the cause of action beyond the manifestation of the damage to the discovery of the causation, when this was later.

26. Reference is made in that decision to the case of Cartledge v. E.F. Jopling & Sons [1963] A.C. 758 which contains some of the most trenchant criticisms of the situation where an individual suffering personal injury by reason of a tort may, by the limitation of time applicable to his case, have lost his cause of action before he realises, or ought to have realised, that he has it.

27. The decision of the court in Cartledge v. E.F. Jopling & Son [1963] A.C. 758 was that s. 26 of the English Limitation Act of 1939, which provided special provisions where fraud or mistake was involved, made it impossible to construe s. 2 of the Act, which provided a time limit from the time “the cause of action accrued”, otherwise than as providing a time limit from the infliction of the injury, irrespective of whether the person injured was or was not aware of that injury.

28. The view of the court in that case was summarised by Evershed M.R. who, at p. 774 of the report stated:-

29. Carroll J. in the course of her judgment in Morgan v. Park Developments [1983] I.L.R.M. 156 dealing with the decision in Cartledge v. E.F. Jopling & Son [1963] A.C. 758 and the decision in Pirelli General Cables Ltd. v. Faber [1983] 2 A.C. 1 which followed that case, pointed out that the position in our law was different from that in the law of England by reason of our Constitution and the existence of a presumption of constitutional validity in the construction of the statutes of the Oireachtas. This distinction is correctly identified but becomes relevant only if there are two or more alternative constructions of the statutory provisions open.

30. After careful consideration, I find that I must disagree with Carroll J. in the conclusion reached by her in Morgan v. Park Developments [1983] I.L.R.M. 156 that two or more alternative constructions of s. 11, sub-s. 2(a) of the Act of 1957 are open, and if I reach that conclusion I must also find it impossible to conclude that two alternative constructions of the provisions of s. 11, sub-s. 2 (b) of that Act are open.

31. Section 71 of the Act of 1957 provides as follows:-

32. If the true meaning of the date at which the cause of action accrued were, as is contended, the date at which the plaintiff discovered or ought to have discovered that he had a cause of action, then s. 71 would be an entirely superfluous section.

33. Similar considerations would appear to apply to the provisions of s. 48 of the Act of 1957 dealing with disability, certainly in so far as such disability consists of unsoundness of mind. The extent and nature of the provisions of the English Limitation Act of 1963, noted by Henchy J. in his judgment in Cahill v. Sutton [1980] I.R. 269 at p. 280, which introduced into English law a discoverability context in the limitation of actions and the recommendations of the Law Reform Commission in this country with a like objective, strongly support the conclusion that to interpret this sub-section as being based on discoverability, though possibly very desirable, would be to legislate.

34. As I have already indicated, no challenge is made in these proceedings to the constitutional validity of this sub-section. I do not accept that to construe it as meaning that the time limit commenced when provable personal injury, capable of attracting monetary compensation occurred, is necessarily to construe it as a constitutionally flawed provision.

35. In legislation creating a time limit for the commencement of actions, the time provided for any particular type of action; the absolute or qualified nature of the limit; whether the court is vested with a discretion in certain cases in the interests of justice; and the special instances, if any, in which exceptions from the general time limit are provided, are, with others, all matters in the formulation of which the legislature must seek to balance between, on the one hand, the desirability of enabling persons with causes of action to litigate them, and on the other hand, the desirability of finality and certainty in the potential liability which citizens may incur into the future.

36. It is quite clear that what is sometimes classified as the harshness and injustice of a person failing to bring a cause of actions to trial by reason of exceeding a time limit not due to his or her own particular fault, may well be counterbalanced by the harshness and injustice of a defendant called upon to defend himself at a time when by the passage of years his recollection, the availability of his witnesses and even documentary evidence relevant to a claim in tort or contract have disappeared.

37. If and when a challenge is made to the constitutional validity of this subsection by a person adversely affected by it, and the matter is fully argued on the facts established in a particular case, it will be necessary for the courts to make a decision upon it. Until that time, however, I would reserve my view on the question of its constitutional validity other than to presume it constitutional, as I must do.

38. I would, therefore, conclude that the proper construction of this sub-section is that contended for on behalf of the defendants and that it is that the time limit commenced to run at the time when a provable personal injury, capable of attracting compensation, occurred to the plaintiff which was the completion of the tort alleged to be committed against her.

39. Barron J. has found as a fact that “the plaintiff was dissatisfied with the operation by the year 1976”. In the context of his judgment and the other findings in it and of the evidence upon which it was based, it is quite clear, firstly, that this is a reference to the second operation carried out by the second defendant and, secondly, that the dissatisfaction there mentioned was the commencement of what is alleged to be the collapse of the nose notwithstanding that operation. In these circumstances, it seems clear that applying the appropriate legal test, not only, as has already been found by the learned trial judge, was the claim against the first defendant clearly out of time but the claim against the second defendant was also out of time. The proceedings were not commenced until 1982, and that would appear to be upwards of five to six years after the time limit had expired.

40. I, therefore, agree with the decision of the learned trial judge, though for somewhat different reasons, and would dismiss this appeal.

41. I agree with the judgment of the Chief Justice.

42. I agree with the judgment delivered by the Chief Justice. However, as the question in issue on this appeal is of general importance, I should like to add a few observations.

43. Statutes of limitation are to be found in all common law countries and in most other systems of jurisprudence. The main purpose of such statutes would appear to be to protect potential defendants against stale claims since it would be unjust to such persons if they were not put on notice of a potential claim within a specified period. The respective periods of limitation fixed for various causes of action represent the balance struck by the legislature between the rights of the plaintiff to bring an action and the rights of the defendant to be protected from such stale claims. When, therefore, the prescribed period has expired, the potential defendant should be entitled to assume that he is no longer at risk from the particular stale claim and to order his affairs accordingly.

44. The earliest statute in Ireland imposing periods of limitation for (inter alia) actions of tort was the Irish statute of 1634 (10 Car 1 sess. 2, c. 6. Ir). An earlier English Act (the Limitation Act, 1623) did not apply to Ireland, but both statutes contained substantially similar provisions. These included provisions that actions upon the case (other than for slander) must be commenced within 6 years next after the cause of such actions. Actions upon the case included actions for negligence, and the gist of such actions was the consequential damage. These provisions of the Statute of 1634 were repealed by the Common Law Procedure (Ireland) Act, 1853, and replaced by s. 20 of that Act, which again provided a six year period of limitation for actions on the case. The provisions of s.20 continued in force until they were repealed by the Statute of Limitations, 1957.

45. For the purpose of this appeal, the relevant section of the Act of 1957 is s. 11, sub-section 2 (b). Under that sub-section an action claiming damages for negligence, nuisance or breach of duty, where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued. The period of limitation therefore begins to run from the date on which the cause of action accrued, i.e. when a complete and available cause of action first comes into existence. When a wrongful act is actionable per se without proof of damage, as in, for example, libel, assault, or trespass to land or goods, the statute runs from the time at which the act was committed. However, when the wrong is not actionable without actual damage, as in the case of negligence, the cause of action is not complete and the period of limitation cannot begin to run until that damage happens or occurs. In personal injury cases the time at which the wrongful act is committed and the time at which the damage occurs will very frequently coincide. For example, where a person involved in a motor accident, or an employee who falls from a scaffold or becomes entangled in a machine in a factory, sustains injuries such as fractured limbs, head injuries, severe lacerations, extensive bruising and the like, it will be apparent that damage has been caused to such person by the wrongful act at the time of its commission, and time will begin to run from that date.

46. There have, however, been many cases in which persons involved in violent accidents have escaped apparently unscathed, or at worst with only such trivial injuries as would not warrant an award of compensation. Nevertheless several months, or even years, later such persons have become gravely ill from a condition which was attributable to the particular accident. Likewise, there have been instances in which persons involved in trivial accidents, in which they sustained no apparent injury, later exhibited symptoms of serious injury such as brain damage. Again, there have been cases in which a foreign body was negligently left in a patient after an operation, and the patient had been totally oblivious of its presence for a considerable time before suffering any ill-effects from it. In cases such as these, if time were to run from the date of the occurrence of the wrongful act, the period of limitation of three years might very well expire before there is any manifestation of the damage suffered in consequence of the wrongful act. However, in s. 11, sub-s. 2 (b) of the Act of 1957, time is not expressed to run from the date of the occurrence of the wrongful act and should not in my view be interpreted as if it was. The relevant date under the subsection is the date on which the cause of action accrues. Until and unless the plaintiff is in a position to establish by evidence that damage has been caused to him, his cause of action is not complete and the period of limitation fixed by that sub-section does not commence to run.

47. I entirely agree with the Chief Justice that the proper construction of the subsection is that time does not begin to run until a provable personal injury, capable of attracting compensation, occurred to the plaintiff. In the instant case, as the learned trial judge has found that the plaintiff was dissatisfied with the corrective operation performed by the second defendant by the year 1976, and did not commence proceedings until 1982, her claim against both defendants is clearly barred by s. 11, sub-s. 2 (b) of the Act of 1957 and the learned trial judge was correct in dismissing the action. I would accordingly dismiss this appeal.

48. I agree with the judgment of the Chief Justice.

49. I share the view of the learned trial judge (Barron J.) that the date on which the cause of action accrued was, in respect of the claim against each of the defendants, the date upon which, in each case, the act causing the damage was committed. I agree with the Chief Justice that the principles laid down by the former Supreme Court in Carroll v. Kildare County Council [1950] I.R. 258, do not apply to the interpretation of s. 11, sub-s. 2 (b) of the Statute of Limitations, 1957.

50. Section 1 of the Act of 1963 was a direct reaction of the legislature to the decision of the House of Lords in Cartledge v. E.F. Jopling & Sons [1963] A.C. 758. Lord Reid said at p. 771:-

51. Section 71 of the Act of 1957 corresponds with s. 26 of the British Act of 1939. I find the reasoning of Lord Reid to be wholly convincing. I recognise the force of what was said by Carroll J., in Morgan v. Park Developments [1983] I.L.R.M. 156 based upon the constitutional presumption attaching to all legislation enacted after the Constitution came into force. I wholly agree with the trenchant criticism by Lord Reid and his colleagues of the harsh and unjust consequence that follows from this statutory interpretation. I accept that where two constructions or interpretations of the statutory provision are open, the courts must adopt that which is not in conflict with the Constitution. This presupposes that two interpretations are open. In my opinion, the words of s. 11, sub-s. 2(b), are so clear as not to admit of any interpretation save that expressed in Cartledge v. E.F. Jopling & Sons [1963] A.C. 758.

52. The argument for the defendants concedes a somewhat broader interpretation, as detailed in the judgment of the Chief Justice: that as soon as there has occurred to the plaintiff in such an action a manifestation of personal injury which was caused by a wrong previously committed that a cause of action has come into being. It would be sufficient to determine this appeal in the defendants’ favour if the sub-section were to be so construed, without the stricter interpretation upheld in Cartledge v. E.F. Jopling & Sons [1963] A.C. 758. Ordinarily, one might be content to accept a defendant’s concession for the purpose of determining an appeal, but where this involves the construction of a statute which must affect the fortunes of many others, such a concession should not be accepted unless one is satisfied that it is correct. I am not so satisfied.

53. Some wrongs, such as assault or libel, of themselves constitute the cause of action and, consequently, the cause of action accrues from the moment of the commission of the wrong. Others are actionable only on proof of damage, in which case the cause of action does not accrue until some damage actually occurs. But the occurrence of damage and the manifestation of damage do not, necessarily, coincide. This is such a case. There must be many others in the whole area of personal injuries or, more especially, where such injuries result from medical treatment.

54. In my opinion, the case of Read v. Brown (1888) 22 QBD 128 does not support the “manifestation” argument. It supports the proposition that there may be more than one ingredient to a cause of action but not that the existence or accrual of a cause of action depends upon the plaintiff’s awareness of the existence of such ingredient. The use of the term “accrual of a cause of action” goes back at least to the Limitation Act, 1623. In actions for damages for personal injuries the interpretation upheld in Cartledge was sought to be remedied in the Act of 1963 subsequently described by Lord Reid in Central Asbestos Co. v. Dodd [1973] A.C. 518 at p. 529 as having:-

55. The general law in England, as stated in the Limitation Act of 1939, remained unchanged. In Sparham-Souter v. Town & Country Developments (Essex) Ltd. [1976] Q.B. 858 the Court of Appeal laid down that the cause of action would only arise when the plaintiff suffers damage and that that happens when he discovers, or ought with reasonable diligence to have discovered, damage to the building. In Pirelli General Cable Words v. Faber [1983] 2 A.C. 1 the House of Lords, applying Cartledge v. E.F. Jopling & Sons [1963] A.C. 758, held that a cause of action in tort for negligence in the design or workmanship of a building accrued at the date when physical damage occurred to the building, whether or not the damage could have been discovered with reasonable diligence at that date. Sparham-Souter v. Town & Country Developments (Essex) Ltd. [1976] Q.B. 858 was overruled but, more importantly for the purpose of the instant appeal, the alleged distinction to be drawn between damage to property and personal injuries was held to be unfounded, quoting Lord Pearce in Cartledge v. E.F. Jopling & Sons [1963] A.C. 758 where he said at p. 778:-

56. It would seem, accordingly, that so far as the authorities cited to this Court are concerned, the law on this side of the Atlantic favours the narrow construction. Included in the most helpful purpose bound book of authorities provided by the plaintiff’s solicitors are two reports of decisions of the United States Supreme Court (United States v. Kubrick (1979) 444 U.S. 111 and Urie v. Thompson (1949) 337 U.S. 163) and two articles from learned journals ((1982) 68 Virginia Law Review 615 and (1980) 43 University of Pittsburgh Law Review 501) .

57. The policies behind statutes of limitations have been identified by courts and commentators.

58. I am not convinced of the latter circumstance within this jurisdiction. In his dissenting opinion, with which Brennan and Marshall JJ. joined, Stevens J., said at pp. 125-127:-

59. Stevens J. noted that the Second Restatement of Torts said:-

60. The Court has not been referred to any other decisions of common law jurisdictions. Indeed, the more one peruses the outpourings, both judicial and academic, on the topic, the clearer it is that one must revert to first principles. The fundamental principle is that words in a statute must be given their ordinary meaning and, for myself, I am unable to conclude that a cause of action accrues on the date of discovery of its existence rather than on the date on which, if it had been discovered, proceedings could lawfully have been instituted. I recognise the unfairness, the harshness, the obscurantism that underlies this rule, but it is there and will remain there unless qualified by the legislature or invalidated root and branch by this Court. It may be that special provision ought to be made to deal with medical malpractice cases. I have sought to identify some of the arguments in favour of doing so, but that is for the legislature, which might consider it appropriate to provide a saving clause based upon whether or not the court considers in all the circumstances that it is reasonable to extend the time. If the discovery principle is to be applied I see no logical reason why it should not extend to discovery of actionable cause. I reject either construction as being inconsistent with the wording of the statute.

61. I have already referred to the comments by United States judges on one special circumstance attaching to medical negligence cases. The patient, who is the potential plaintiff, is likely to continue as a patient of the doctor against whom the action may lie. This factor makes it most unlikely that the patient will appreciate the relationship, if any, between treatment and the now discovered condition, or, if the patient does so consider, the doctor will, quite bona fide, seek to allay any such suspicion. Experience does not encourage belief that other medical practitioners in Ireland will be prepared to point the finger of blame.

62. In its report on the Statute of Limitations: Claims in respect of latent personal injuries (1987) the Law Reform Commission recommended that the discoverability test should be incorporated explicitly in legislative provisions and further that time should begin to run only where the plaintiff becomes or ought to become aware that the injury is attributable, in at least some degree, to the conduct of another. I share these views but I recognise that such legislative provision would increase the spread of a different harm to society. The increase in the number of medical malpractice suits has, it is said, led to the practice of defensive medicine, which has patient/practitioner, social and economic effects. The case for a no-fault system of compensation for those who suffer injury as a result of medical treatment seems so strong as to be virtually unanswerable. That also is a matter for the legislature.

63. I would dismiss this appeal.