THE HIGH COURT
			1995  No. 2828p 
BETWEEN
BRIGID HAYES
			PLAINTIFF
AND
MICHAEL CALLANAN
			DEFENDANT

JUDGMENT of Mr Justice Smith delivered the 25th day of March 1999.

	On the 12th day of June, 1993 the Plaintiff herein Brigid Hayes was driving her husband's motor car from her home in County Clare to Athenry in the County of Galway.  In front of her was a tractor driven by the Defendant Michael Callanan going in the same direction.  When she first saw the tractor it was travelling on its correct side of the road.  The Plaintiff was travelling at 35 mph and as she caught up with the tractor she put on her right indicator, checked her rear mirror and then proceeded to overtake.  At the same time the tractor without any warning to her pulled across the road to its right.  The Plaintiff braked presumably swerved to her left because she collided with the left rear wheel of the tractor and then she collided with a wall.  
	On the 15th June, 1993 the Plaintiff's Solicitors Philip J Culhane & Company of 4 Mallow Street, Limerick wrote the following letter to the Defendant Michael Callanan.

	"Dear Sir
	We have been consulted by Mrs Brigid Hayes of Cappakea, O'Briens Bridge, County Clare in relation to a road traffic accident which occurred on Saturday 12th June outside Gort.  
	We are instructed that due to the negligence of you, yourself and your agent in the driving care, management and control of your tractor a collision occurred with our client's motor vehicle which was a Toyota Corolla, registration no. 
	91 L 436, as a result of which our client's vehicle was extensively damaged and our client sustained personal injury. 
	Accordingly, would you please let us hear from you or your insurer's within the next ten days accepting full liability in the matter and undertaking to compensate our client for the loss and damage sustained by her.  Failing hearing from within the next ten days we will institute legal proceedings against you without further notice.
	We confirm that our client's motor vehicle is available for inspection at O'Mara's Motors, Ennis Road, Limerick and we note that your insurers have already inspected the motor vehicle.  We would suggest that you contact your insurers immediately with full details in the matter and have them contact us as soon as possible.
	Yours sincerely

	PHILIP J CULHANE & COMPANY"

	This letter in due course was handed by Mr Callanan to his Solicitor Mr Justin Sadler of Crow Street, Gort, Co Galway who in turn forwarded the copy of that letter to the Defendant's insurers namely the FBD Insurance plc.
	This letter of 15th June, 1993 put the Defendant and his insurers on notice that the Plaintiff had suffered personal injuries in the accident.
	Without undue delay the Plaintiff's Solicitors commenced proceedings in the District Court by way of a civil process to recover damages in respect of the cost of repairs to the car depreciation, loss of use and travelling expenses.
	The matter came before the District Court in Gort on the 8th December, 1993.  The case was contested by the Defendant and his insurers.  The Defendant was represented by Mr Justice Sadler, Solicitor.  Witnesses called on behalf of the Plaintiff were the Plaintiff herself, Mr Michael McGrath and Guard McDonagh.  The Defendant gave evidence on his own behalf and he called one witness namely Mrs Forde.  
	The judge of the District Court found in favour of the Plaintiff and assessed her damages at £2,449 and awarded costs.  There was no finding of contributory negligence against the Plaintiff.  
	Mr Justin Sadler, Solicitor on the same date made a memorandum as to what transpired in Court.  He forwarded a copy of that memorandum to the Defendant's insurers namely the FBD Insurance plc.  
	Following the receipt of that memorandum Mr Kevin Larkin from the claims department with the Defendant's insurers spoke on the telephone with Mr Sadler on the 13th December, 1993 in relation to the outcome of the case and the prospects of appeal.  They decided against an appeal because, the Defendant himself had not made any approach to Mr Sadler in relation to an appeal, and both Mr Sadler and Mr Larkin considered that it would not be good economics to appeal having regard to the amount of the decree.  
	At that stage neither Mr Larkin or Mr Sadler adverted to the fact that there might be a future claim for personal injuries, loss and damage.  Mr Kevin Larkin stated in evidence that if he had known then that there would be a large claim for damages for personal injuries that he would have appealed the District Court finding to the Circuit Court.
	On 4th January, 1994 the Defendant's Solicitor Mr Sadler sent to the Plaintiff's Solicitors a cheque in respect of the damages and costs as per the order of the District Court on 8th December, 1993.  
	The Plaintiff's Solicitors by letter dated 5th January, 1994 acknowledged receipt of that cheque for damages and costs and indicated to the Defendant's Solicitor that High Court proceedings for personal injuries would be commenced. 
	Mr Sadler was surprised by the contents of that letter as he thought that all aspects of the case had been disposed of in the one set of proceedings namely in the claim in the District Court on 8th December, 1993.  Mr Sadler wrote to the FBD Insurance plc for instructions and heard nothing from them.  Mr Sadler received a further letter dated 20th July, 1994 from the Plaintiff's Solicitors which was also forwarded to the Defendant's insurers.  Mr Sadler was then instructed by the insurers to resist the claim as the Plaintiff had her day in Court.  Mr Sadler replied to the Plaintiff's letter of 20th July, 1994 by letter dated 29th October, 1994 as follows

	"Dear Sirs
	We refer to your letter of 20th July, 1994 and we are astonished at the contents. 
	Your client instituted proceedings in the District Court when she sought and recovered damages for loss, damage, inconvenience, annoyance and expense sustained by her in a decree granted by the Court and paid by us on the 4th January, 1994.  Acknowledgement of receipt of that sum is contained in your letter of 5th January, 1994.
	You now indicate your intention to institute proceedings to recover damages for personal injuries.  Under the Rules of Court by statute and by practice a Plaintiff or claimant is entitled to institute only one set of proceedings in respect of an accident such as this for the purpose of recovering damages. 
	Your client's claim has now been discharged in full and any attempt to institute further proceedings will be met with a full defence and you can be certain that an application will be made to the Court to recover any costs incurred by our client in defending any such proceedings.
	We trust that this ends the matter.
	Yours sincerely"
 
	The Plaintiff's Solicitors replied as follows to that letter on 1st March, 1995

	"Dear Sirs
	We refer to your letter of 24th October, 1994 in relation to the above matter.
	We have obtained the advice of Counsel in relation to the matter and this advice confirms our view that we are not in any way prevented from issuing proceedings for damages for personal injuries as a result of the District Court order which was made on the 8th December, 1993.  There is no Rule of Court or statute or practice to the effect that a Plaintiff is entitled to institute only one set of proceedings in respect of an accident for the purpose of recovering damages.  
	The fact of the matter is that our proceedings in the District Court were confined to our client's claim for material damage.  The decree which we obtained in the District Court was solely in respect of material damage.  Accordingly, therefore, we would ask you to indicate whether you have instructions to accept service of High Court proceedings which have been drafted.  If you do not have instructions to accept service of such proceedings we shall serve same directly upon your client.
	Yours faithfully
	PHILIP J CULHANE"

	A Plenary Summons was issued on 19th April, 1995, an appearance was entered on behalf of the Defendant on 26th July, 1995, a Statement of Claim was delivered on behalf of the Plaintiff on 26th January, 1996 and a defence was delivered by the Defendant on 4th October, 1996.
	The defence as delivered by the Defendant pleaded as follows

1.	The Plaintiff is barred by cause of action estoppel from pursuing this claim
2.	The Plaintiff brought proceedings in the District Court and was awarded damages which have been paid.  Accordingly, the Defendant pleads accord and satisfaction.
3.	For the avoidance of doubt the Defendant pleads that if, which is denied, the Plaintiff suffered the alleged or any personal injuries, loss or damage, proceedings in respect of such personal injury should have been brought at the same time as the proceedings for material damage and ought not now to be entertained by this Honourable Court.

	The Plaintiff brought a motion to the High Court and by order of 8th December, 1995 it was ordered that a preliminary issue should be tried before a judge wherein the Defendant shall be the Plaintiff and the Plaintiff the Defendant.  The questions of the trial of such issues to be 

	(a)	Is the Plaintiff's claim barred by cause of action estoppel
	(b)	Is the Defendant entitled to plead accord and satisfaction by reason of the payment of the sum of £2,499 to the Plaintiff on foot of the decree made in the said sum in favour of the Plaintiff herein at Gort District Court on 8th December, 1993 in proceedings entitled
		"The District Court ordinary civil process
		District Court Area Gort  District No. 12
		Between
		Brigid Hayes of Cappakea, O'Brien's Bridge, in the County of Clare
			Plaintiff
		and
		Michael Callanan of Coxtown, Ardrahan in the County of Galway
			Defendant"
	(c)	Can the Plaintiff's claim for damages for personal injuries, loss and damage be entertained in this Honourable Court in circumstances where the Plaintiff has successfully sued in separate proceedings in the District Court for material damage to a motor vehicle arising out of the accident the subject matter of these proceedings. 

	On the hearing of the preliminary issue before me on 10th March, 1999 and the 18th March, 1999 it was submitted by Mr Henry Burke Senior Counsel on behalf of the Defendant that the Plaintiff was estopped from proceeding with these proceedings as the Plaintiff was only entitled to bring one set of proceedings arising out of the accident in which she was involved.  He relied on the case of Talbot -v- Berkshire County Council reported at 1993 4 All ER page 91 as an authority for his submission that the Plaintiff in these proceedings is barred by cause of action estoppel from pursuing a claim which could have been litigated at the same time as proceedings brought by the Plaintiff in December, 1993.
	Mr Burke further submitted that Section 2 of the Civil Liability Act, 1961 states that the word damage includes loss of property, loss of life and personal injury and that the claim in the District Court did in fact cover a claim for personal injuries.
	He further submited that if the Plaintiff succeeds that an injustice will be done to the Defendant's insurers because in December, 1993 they were unaware that a substantial claim for personal injuries would be launched by the Plaintiff against the same Defendant.
	Mr Gerry Tynan, Senior Counsel on behalf of the Plaintiff submitted that the Plaintiff had one cause of action for two rights namely right 1 which was an action for damages for property i.e. the car, and right 2 was and is an action for damages for personal injuries.  
	He submitted that the Plaintiff did not have an opportunity to bring a claim for personal injuries in the District Court in December of 1993 as the value of the claim would be well in excess of the jurisdiction of the District Court which was at that time limited to £5,000.  He further submitted that the first opportunity that the Plaintiff had to bring proceedings for damages for personal injuries are in the present proceedings before this Court.
	He submitted that the law in relation to this matter is as laid down in the case of Brunsten -v- Humphrey  [1884] 14th QB page 151.  The headnote of this report reads as follows
	
	"Damage to goods and injury to the person although they have been occasioned by one and the same wrongful act are infringements of different rights and give rise to distinct causes of action and therefore the recovery in an action of compensation for the damage to the goods is no bar to an action subsequently commenced for injury to the person.
	So held by Brett M.R. and Bowen L.J. Lord Coleridge C.J. dissenting.

	The Plaintiff brought an action in a County Court for damage to his CAB occasioned by the negligence of the Defendant's servant and having recovered the amount claimed afterward brought an action in the High Court of Justice against the Defendant claiming damages for personal injury sustained by the Plaintiff through the same negligence.  
	Held by Brett M.R. and Bowen L.J. Lord Coleridge C.J. dissenting that the action in the High Court was maintainable and was not barred by the previous proceedings in the County Court".

	Mr Tynan further submitted that the legislature considered that there was one cause of action in respect of two rights in that the right of damages for personal injuries is statute barred after the lapse of three years and the right to damages for material damage is statute barred after a lapse of six years and that consequently the Plaintiff is entitled to split an action for damages one for material damages and the other for personal injuries.  
	It seems to me that what I have to decide in this case is whether all issues that could have been dealt with at the same time, should in fact have been dealt with at the same time i.e. in the one set of proceedings.  I must also consider whether the second set of proceedings in the proceedings before me is contrary to public policy and could be regarded as an abuse of the process of the Courts.  
	It seems to me desirable, if possible, that the legal liability of parties to an accident should be litigated upon as soon as possible after the occurrence of the accident.  The advantages of an early trial in relation to liability is that the recollection of events relating to the accident is fresh in people's minds and witnesses are more likely to be available to give evidence in Court.  As time lapses so does one's recollection of events.  One frequently hears in Court witnesses say that their recollection in relation to certain matters is far from clear because of the passage of time.  
	By the same token it seems to me that it is also desirable that Plaintiffs who suffer material damage, in addition to personal injuries, should not have to wait many years before they are compensated for such losses.  Frequently such Plaintiffs have to take out loans to cover the losses arising out of a traffic accident until such time as the matter is litigated in Court. 
	The situation that has arisen in this case from a practical point of view seems to me to be an acceptable way in which to deal with (a) the claim for material damages arising out of the accident, (b) the liability of the parties to the accident and (c) at a later stage the claim for damages for personal injuries.
	The Defendant's insurers make the case that if they had realised that a substantial claim for personal injuries was pending that they almost certainly would have appealed the findings of the District Court Judge and that on appeal there might well have been a finding of contributory negligence against the Plaintiff.
	From the memorandum as prepared by Mr Justin Sadler, Solicitor for the Defendant after the District Court case it seems to me that it is unlikely that there would have been an such finding of contributory negligence against the Plaintiff but that again is only my view of the matter. 
	Personal injury claims for damages cannot be rushed.  They must be allowed to mature so that a proper and accurate prognosis can be made by professional witnesses in the case.
	If I were to rule that the Plaintiff is estopped from bringing these proceedings I consider that a great injustice could be done to the Plaintiff and in so doing I am bearing in mind that of necessity there must be some injustice done to the Defendant's insurers.
	In relation to the questions posed in this case I propose to answer them as follows
	(a)	Is the Plaintiff's claim barred by cause of action estoppel?  Answer - No.
	(b)	Is the Defendant entitled to plead accord and satisfaction by reason of the payment of £2,499 to the Plaintiff on foot of decree made in the said sum in favour of the Plaintiff herein at Gort District Court on 8th December, 1993.  Answer - No.
	(c)	Can the Plaintiff's claim for damages for personal injuries, loss and damage be entertained in this Honourable Court in circumstances in which the Plaintiff has successfully sued in separate proceedings in the District Court for material damage to a motor vehicle arising out of an accident the subject matter of these proceedings.  Answer - Yes.