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Gallagher v. Minister for Defence [1998] IEHC 32; [1998] 4 IR 457 (25th February, 1998)
THE
HIGH COURT
1993
No. 1511 P
BETWEEN
MICHAEL
GALLAGHER
PLAINTIFF
AND
THE
MINISTER FOR DEFENCE IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS
INTERIM
JUDGMENT of Mr. Justice O' Higgins delivered on the 25th day of
February
1998.
INTERIM
RULING
1. At
the end of the Plaintiff's case in this action Counsel for the Defendants
contended that the claim is Statute Barred and the Court was asked to decide on
this particular issue.
2. Section
3(1) of the Statue of Limitations (Amendment) Act 1991, provides as follows:-
"
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 (whether the duty exists by virtue of a contract or
of
a provision made by or under a statute or independently of any contract or
any
such provision) 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".
3. Section
2, sub-Section 1 of the Statue of Limitations (Amendment) Act, 1991 provides:-
"For
the purposes of any provision of this Act whereby the time within which
an
action in respect of an injury may be brought depends on a persons state
of
knowledge (whether it is the person injured or a personal representative or
dependant
of the person injured) and references to that persons date of
knowledge
or 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".
4. Sub-Section
(2) of Section 2 provides :-
"
For the purposes of this section a persons 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 or which it is reasonable for him to seek".
5. Counsel
for the Defendant argued that the date '
date
of knowledge'
within the meaning of the Act was November of 1989, at which time Lieutenant
Colonel Monaghan, an Army Doctor, told the Plaintiff that he would not be
permitted to play or practice in the band hall or indoors pending examination
by a Specialist. Counsel for the Plaintiff argued that the
'date
of knowledge'
should run from March, 1990, at which time the Plaintiff was examined by such a
Specialist. The action was commenced by Plenary Summons dated the 25th day of
February, 1993.
6. The
evidence establishes the following:-
* That
the Plaintiff had an audiogram in or about the month of November 1989.
* That
at the time of that audiogram the result or real significance of the
audiogram
was not explained to him.
* That
about a month after the audiogram he was sent for by Lieutenant Colonel
Monaghan and told that his hearing was not good and that as a precaution he was
not allowing him to play or practice in the band-room until he was referred to
a Specialist.
* That
the Plaintiff understood that Colonel Monaghan was deferring to the Specialist
view, which had not been yet obtained.
* That
the Plaintiff was
'shattered'
at being restricted in his playing.
* That
the Plaintiff knew that, according to Lieutenant Colonel Monaghan, he had a
noise related hearing problem.
* That
the Plaintiff had not personally experienced any real problem from his hearing
until November, 1989.
* That
in November 1989 Lieutenant Colonel Monaghan told the Plaintiff that he had a
hearing problem and that such problem as he had, might be related to the state
of the band-hall and might be related to playing in the band.
7. In
order to establish that the statute runs against the Plaintiff all of the
following
relevant matters must be established:-
(a) that
he knew that he 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, and
(d) that
he knew the identity of the Defendant.
8. In
my view it is clear that the Plaintiff having talked to Lieutenant Colonel
Monaghan, was aware that there was something wrong with his hearing. He had
been told by the Army Doctor that such was his opinion. This opinion of the
Doctor was based - as the Plaintiff knew - on a hearing test which the
Plaintiff had undergone.
9. What
constitutes 'knowledge' in the context of the Statute of Limitations has been
discussed in the case of
Halford
v. Brookes
1991
IWLR, where in relation to similar provisions in the English Legislation where
Lord Donaldson said at page 443:-
"The
word has to be construed in the context of the purpose of the Section
which
is to determine a period of time within which a Plaintiff can be required
to
start any proceedings.
In
this context 'knowledge' clearly does not mean 'know for certain and beyond
possibility of contradiction'. It does, however, mean know with sufficient
confidence to justify embarking on the preliminaries to the issue of a writ,
such as submitting a claim to the proposed Defendant, taking legal or other
advice
and
collecting evidence. Suspicion, particularly if it is vague and unsupported,
will indeed not be enough, but reasonably belief will normally suffice"
.
10. That
appears to me to be a most reasonable approach.
11. In
the present case, then, if the other requirements, to wit
(i)
knowledge
of the significance of the injury,
(ii)
the
fact that it was wholly or in part attributable to the act on omission of the
Defendant,
and
(iii)
the
identity of the Defendant
were
not in issue, would the Plaintiff be justified in embarking on the
preliminaries to the issue of a writ? In my view, the evidence clearly
supports the contention that he would be so justified.
12. I
am satisfied, therefore, that the Plaintiff knew he had been injured, for the
purpose of establishing his
'date
of knowledge'
as within the meaning of the Statute of Limitations (Amendment) Act, 1991 as of
the month of November of 1989.
13. Having
established that he knew he was injured did the Plaintiff know the injury in
question was
'significant'
in November, 1989?
* The
Plaintiff had not experienced any real problems until told by Lieutenant
Colonel
Monaghan that his hearing was not good.
*
Lieutenant
Colonel Monaghan told the Plaintiff that he was suspending
him
from play indoors
'as
a precaution'
-
and until he saw Mr O'Meara an
E.N.T
Specialist.
* The
Plaintiff knew that Lieutenant Colonel Monaghan was deferring to what
view
Mr O'Meara might form.
* The
Plaintiff was
'shattered'
not because of his injury but because he was
restricted
by order of his superiors as to where he could play.
Taking
those facts into account, I am of the view that the Plaintiff was not aware
that his injury was significant.
14. In
arriving at that view, I have had regard to the judgment of Quirke J. delivered
on the 10th day of June 1997 in
Whitely
v. Minister for Defence and Others
(unreported)
where he considers the meaning of the word
'significant'
in the context of the Statute of Limitations.
15. In
the U.K. Act an injury is
'significant'
if the person whose date of knowledge is in question would
"reasonably
have considered it sufficiently serious to justify his instituting proceedings
for damages against a defendant who did not dispute the liability and was able
to satisfy a judgment".
Quirke J. having considered the position of the Irish legislation said:-
"Accordingly
Section 2 of the 1991 Act expressly avoids any attempt to define what is meant
by a 'significant' injury within the meaning of sub-section 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 be understood to the terms of the definition contained in Section
14(2) of the English Act or to any particular terms. If I am correct and if it
was intended that a broader test should be applied than was contemplated by the
definition contained within Section 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
sub-section 2(2) of the 1991 Act to which I have already referred. That
sub-section introduces a degree of objectivity into the test and potentially
requires the additional consideration of whether or not the 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.
Whilst
the definition contained within Section 14(2) of the English Limitation Act of
1980 is clearly not the appropriate means of defining the word 'significant'
for the purposes of Section 2 of the 1991 Act, it may provide a useful starting
point in applying the broader test which is appropriate for the purposes of the
1991 Act".
16. Even
if the more restrictive test in the U.K. legislation were applicable, I do not
believe the Plaintiff had the required knowledge that the injury was
'significant':
a fortiori, therefore, he did not have the requisite knowledge when applying
the broader criteria set down by Quirke J. in
Whitely
v. Minister for Defence
.
17. Even
if I am wrong in so finding, there is no sufficient evidence of knowledge that
the injury was attributable in 'whole or in part' to the state of the
band-room. All the Plaintiff knew was that - at its highest - the problem
might
be attributable to the band-hall or playing in the band. He would not in my
view have been justified in embarking on the preliminaries to the issue of the
writ.
© 1998 Irish High Court
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