THE SUPREME COURT

Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Lynch J.
181/98

BETWEEN:

JAMES BOLGER
Plaintiff/Respondent
and

GABRIEL O’BRIEN, CRANE HIRE LIMITED
AND READYMIX (MANUFACTURING) LIMITED
Defendants/Appellants

Judgment delivered on the 16th day of March 1999 by Hamilton C.J. [Nem. Diss.]

This is an appeal brought by the above named Defendants/Appellants (hereinafter referred to as the Appellants) against the judgment of the High Court (McGuinness J.) and the order made in pursuance thereof on the 24th day of April 1998 whereby it was ordered that the Plaintiff’s claim was not statute barred pursuant to the provisions of the Statutes of Limitations 1957 and 1991.

(2)

The matter had come before the High Court in the following circumstances:-

(a) the above named Plaintiff, James Bolger, of 4 Barrack Street, Ballymore Eustace in the County of Kildare (hereinafter referred to as the Respondent) suffered personal injuries as a result of an accident which occurred in or about the 22nd day of March 1990 and which he alleges were caused by the negligence and breach of duty of the Appellants, their servants or agents;

(b) on the 27th day of October 1993 a plenary summons was issued on behalf of the Appellant claiming damages for such personal injuries, loss and damage against the Appellants herein;

(c) on the 13th day of September 1994 a statement of claim was delivered on behalf of the Respondent;

(d) on the 16th day of November 1994 a defence was delivered on behalf of the Appellants;

(e) in the said defence the Appellants pleaded at paragraph I thereof that:-

“the Plaintiff’s claim is statute barred pursuant to the provisions of the Statute of Limitations Act, 1957.”

(f) in the reply delivered on the 25th day of March 1996 on behalf of the Respondent, it was pleaded as follows:-

(3)

“Paragraph 2. The Defendant’s claim in not barred by reason of the provisions of the Statute of Limitations Act, 1957 and by the Statute of Limitations (Amendment) Act, 1991.”

(g) the said reply contained the following further provision that:-

“the Plaintiff will further rely upon correspondence between the Plaintiff’s solicitor and the Defendant’s insurers, the Insurance Corporation of Ireland, to defeat the Defendant’s defence of the Statute of Limitations.”

The learned trial judge ruled against the Respondent on this issue and this Court is not concerned with such plea as the finding of the learned trial judge in this regard has not been appealed.

(h) By order dated the 20th day of January 1977 made by the President of the High Court, it was ordered that without further pleadings a preliminary issue be tried before a judge without a jury wherein the Defendants shall be Plaintiffs and the Plaintiff shall be Defendant the question at the trial of such issue to be whether or not the Plaintiff’s claim is statute barred pursuant to the provisions of the Statute of Limitations 1957.

(4)

The relevant provisions of the Statute of Limitations 1957 and of the Statute of Limitations (Amendment) Act, 1991 (hereinafter referred to as the 1991 Act) are as follows:-

Section 11(2)(b) of the 1957 Act provided as follows:-

“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.”

This was amended by Section 3(2) of the 1991 Act which provided as follows:-

“Section 11(2) of the Principal Act is hereby amended by the substitution of the following paragraph for paragraphs (a) and (b):

‘(a) Subject to paragraph (c) of this subsection and to section 3(1) of the Statute of Limitations (Amendment) Act, 1991, an action founded on tort shall not be

(5)

brought after the expiration of six years from the date on which the cause of action accrued.’

Section 3(1) of the Statute of Limitations (Amendment) Act, 1991 provides that:-

“An action, other than one to which Section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty     shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”

This subsection introduced a new factor in determining the period within which an action in respect of an injury may be brought viz. “the date of knowledge of the person injured”.

The facts relevant to the date of knowledge of an injured person are set forth in Section 2 of the 1991 Act, which provides that:-

(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought

(6)

depends on a person’s date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that 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) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

(d) the identity of the defendant, and

(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(7)

(2) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts observable or ascertainable by him, or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.

(3) Notwithstanding subsection (2) of this section -

(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate to act on) that advice; and

(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.

It is clear from the foregoing provisions that Sections 2 and 3 of the 1991 Act brought about a fundamental change in the law with regard to the limitation of actions in respect of personal injuries by the introduction of the fact of ‘the date of knowledge of the person injured’ being a date from which the period of

(8)

limitation on the bringing of actions for personal injuries ran. Were it not for these provisions, the Respondent’s claim would have been statute barred by virtue of the provisions of Section 1 l(2)(b) of the 1957 Act.

However the Respondent claimed that he commenced proceedings against the Appellants within the period of three years from his ‘date of knowledge’ within the meaning of Section 2(1) of the 1991 Act and this was the real issue for determination by the learned trial judge.

As appears from the judgment of the learned trial judge the Respondent, in the course of the proceedings before her relied on the provisions of Section 2(1)(b) of the 1991 Act, and the date upon which he first had knowledge that the injury sustained by him was significant.

In determining ‘the date of knowledge’ of the Respondent of the significance of the injuries sustained by him, the learned trial judge accepted that “the test to be applied should be primarily subjective” and “the Court should take into account the state of mind of the particular plaintiff having regard to his particular circumstances at the time.”

She stated:-

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“As I have indicated, I believe the appropriate test to be primarily subjective because it must be qualified to a certain extent by the provisions of Section 2.2 of the 1991 Act to which I have already referred. That subsection introduces a degree of objectivity into the test and potentially requires the additional consideration of whether or not a particular plaintiff at the particular time ought reasonably to have sought medical or other expert advice having regard to the symptoms from which he was suffering and the other circumstances in which he then found himself.”

In applying this test she stated that she accepted this statement of the law contained in the judgment of Quirke J. in Whitely .v. Minister for Defence which is now reported in [1997] 2 ILRM 416.

In the course of his judgment in that case, Quirke J. stated:-

“Accordingly s 2 of the 1991 Act expressly avoids any attempt to define what is meant by a ‘significant’ injury within the meaning of s 2(1)(b) of the Act and I take the view that by excluding any definition it was the intention of the legislature to avoid confining the sense in which the word ‘significant’ ought to

(10)

be understood to the terms of the definition contained in s. 14(2) of the English Act or to any particular terms. If I am correct and fit was intended that a broader test should be applied than was contemplated by the definition contained within s. 14(2) of the English Act, then it would seem to follow that the test to be applied should be primarily subjective and that the court should take into account the state of mind of the particular plaintiff at the particular time having regard to his particular circumstances at that time.

As I have indicated, I believe the appropriate test to be primarily subjective because it must be qualified to a certain extent by the provisions of s.2(2) of the 1991 Act to which I have already referred. That subsection introduces a degree of objectivity into the test and potentially requires the additional consideration of whether or not the particular plaint if at the particular time ought reasonably to have sought medical or other expert advice having regard to the symptoms from which he was suffering and the other circumstances in which he then found himself.”

(11)

With regard to the facts in this case the learned trial judge stated at pages 3 and 4 of her judgment that:-

“I have heard the evidence of the plaintiff and that of his wife. The plaintiff says that although he was of course aware that he was injured at the time of the accident, he felt that from the first couple of weeks onwards he was making good progress to recovery and that he did not realise that he had a significant back injury stemming from the accident until he returned to his doctor in the hospital at Naas and was X-rayed and re-examined in October 1992. As soon as he had the results of the examination and had been told by the doctor that he was in bad trouble as far as his back was concerned, he promptly consulted his solicitor. It is notable that in his Statement of Claim in the particulars of injury he relies on the back injury and not to any extent on the concussion, cuts and bruises which he suffered at the immediate time of the accident.”

and at page 6 she stated that:-

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“I must look at the facts of this case in the context of those definitions. My impression of the plaintiff and of his wife is that they are truthful witnesses. My impression of the plaintiff is that he is the sort of man who perhaps puts to one side the injuries that he is suffering and has made up his mind that he is getting better, as it were, even though he has continued to suffer difficulties. Both the plaintiff and his wife state  - and I believe them  - that they are the type of people who do not rush to make claims against people through the courts. I have to say that it is unusual and somewhat refreshing to find people who are not minded to rush into court with claims at the drop of a hat, as it were.

I accept from his evidence that although he knew he was injured, he was not aware of the significance of his back injury until he was further examined and further informed by his doctor at the Naas Hospital in October 1992.

Mr. Reidy has stressed in his submissions that as well as his concussion and so on, which he suffered at the time of the accident, that he suffered an undisplaced fracture of his sacrum. I have to look at that in the light of the plaintiff’s own knowledge at the time. And it seemed to me that his own evidence of what he knew at the time of that was extremely vague. Also it should be

(13)

taken into account that in the report of Mr. McElwain, the orthopaedic surgeon, which was handed into me he states in regard to the back that:

‘He had extensive bruising in his back and his buttock. He had a lot of tenderness in his left sacrum. I reviewed his X-rays and I thought that he had an undisplaced fracture of his left sacrum.’

It seems to me that report leaves it very much open to doubt as to whether Mr. McElwain at the time in 1990 was certain that the undisplaced fracture was in fact there rather than saying: ‘he had an undisplaced fracture,’ he says: ‘I thought he had an undisplaced fracture.’

And it is not until his re-examination in a repeat X-ray on 24th October 1992 that he goes on in his opinion to say:

‘This man sustained an undisplaced fracture of his sacrum. Given the somewhat uncertain nature of this medical report, I think that one can take into account the objective terms of Section 2.2 to see that the full significance of Mr. Bolger ‘s injuries were not brought home to him and he did not understand them until in or about October 1992. The test is a subjective one. And I feel that subjectively he was not aware of it.”

(14)

On that basis the learned trial judge held that the Respondent herein was not barred from pursuing his claim against the Appellants herein by virtue of the provisions of Section 3 of the 1991 Act.

Against such judgment and order the Appellants have appealed to this Court on the grounds that:-

(a) the judgment was against the weight of the evidence;

(b) the learned trial judge erred in law and in fact in holding that the Respondent’s case was not defeated by the Statute of Limitations;

(c) the learned trial judge did not have sufficient regard to the severity of the Plaintiffs injuries and his probable state of knowledge as a result.

Appeal

At the hearing of the appeal herein Counsel on behalf of both parties accepted that the test set forth in the judgment of Quirke J. in Whitely’s case and accepted by the learned trial judge was the correct test to be applied in ascertaining when the Respondent first had knowledge of the fact that the injury sustained by him as a result of the accident “was significant” viz, that the test was primarily a subjective test but included an objective element as, by

(15)

virtue of Section 2(2) of the 1991 Act, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire 

(a) from facts observable or ascertainable by him, or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.

It was submitted however on behalf of the Appellants that the learned trial judge erred in her application of these principles to the circumstances and facts of this case and that it was not open to the learned trial judge to find on the basis of the evidence in this case that the full significance of the Respondent’s injuries were not brought home to him and that he did not understand them until in or about October, 1992.

He submitted that from the beginning the Respondent knew that he had suffered a significant injury and relied in particular on the following extract from his cross-examination of the Respondent as contained in replies to questions 138 to 144 of the transcript of the proceedings -

“138.  Q.  Therefore, we may take it from that that this accident had the following effects on you: First of all it rendered you unconscious?
A.  Yes.

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139.  Q.  Secondly, it caused bruising of your body to a very extensive nature?
A.  Yes.

140.  Q  Thirdly, it caused lacerations and cuts all over your face?
A.  Correct.

141.  Q.  Fourthly, it required you to go to physiotherapy for a period of up to three or four weeks, is that right?
A.  Yes.

142.  Q.  Fifthly, you were told by Mr. McElwain that it had caused an undisplaced fracture of your sacrum, a bone in the bottom of your back?
A.  Possibly. I cannot remember at what stage he told me that to be honest.

143.  Q  Sixthly, it caused you to go on a regular basis to Dr.O'Brien?
A.  Yes.

144.  Q  Seventhly, when you went back to work you were not able for the manual work. It had to be done by your son?
A.  Yes.”

The uncontested evidence clearly established that the Respondent suffered a significant injury on the 22nd March 1990; that the Respondent was aware of the injuries sustained by him viz, concussion, shock, cuts and bruises and an undisplaced fracture of his left sacrum; that he was obliged to undergo a course of physiotherapy; that he was unable to return to work for a period of

(17)

three months; that after return he was unable to perform manual work and only engaged in supervisory work.

The learned trial judge had held that the full significance of the Respondent’s injuries were not brought home to him and that he did not understand them until in or about October 1992 but that is not the test.

The test is when he knew or ought reasonably have known ‘from facts observable or ascertainable by him’ that he had suffered a significant injury.

The learned trial judge does not in the course of her judgment appear to have had adequate regard to the evidence of the injuries sustained by the Respondent and his knowledge thereof at the time of and immediately subsequent to the date thereof.

By any standards, subjective or objective, the Respondent had suffered a significant injury and he must have been so aware certainly from the time of his return to work and his realisation that he was not fit for manual work.

(18)

The fact that the Respondent did not realise the full significance of the effect of such injury is not of relevance once it is established that he knew that the injury was significant.

The learned trial judge concluded her judgment as follows:-

“To conclude - on the balance of probabilities I accept that the Plaintiff comes within Section 2 of the 1991 Act and therefore is not barred from pursuing his proceedings. As I have said, the delay was fairly short and in a general way does not unduly prejudice the Defendants in defending the action.”

The reference to the delay being short and to the absence of prejudice to the Defendants introduces factors which are wholly irrelevant to the issue in this case. Such factors are relevant where the court has a discretion for example whether to extend time under the provisions of the Rules of the Superior Courts: whether to dismiss for want of prosecution: whether or not to renew a summons or to dismiss a claim for gross delay such that a trial would be unfair to the Defendant even though not barred by statutes of limitation. The issue in this case is whether or not the Plaintiff’s claim is barred by the Statutes of Limitation 1957 and 1991. If the Plaintiff’s claim is not so barred then he may proceed with his claim: if the Plaintiff’s claim is so barred then

(19)

the action must be dismissed and the question of prejudice or absence of prejudice to the Defendants or the shortness of the time by which the limitation period has expired is irrelevant.

For these reasons I would allow the appeal and hold that the Respondent’s claim (plaintiff) made in these proceedings is statute-barred by virtue of the provisions of Section 3(1) of the 1991 Act.