The Gazette 1991

OCTOBER 1991

GAZETTE

The Limitation of Personal Injury and Death Actions

operation of the limitation period until the "date of knowledge" as defined in section 2 of that Act - a criterion which must be considered in detail below; but it should be observed first that section 7 of the Act of 1991 provides that the provisions of the Act of 1991 "apply to all causes of action whether accruing before or after its passing and to proceedings pending at its passing." Therefore, the benefits of the Act are afforded not only to persons injured after its commencement but to any person, whether or not he has already instituted proceedings, who comes within its terms. The "date of knowledge" Section 2 of the Act of 1991, which defines the "date of knowledge" for the purposes of the Act, de- serves to be quoted in full. Section 2 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 depends on a person's date of knowledge (whether he is the person injured or a personal representative or de- pendant 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 attri- butable in whole or in part to the act or omission which is alleged to constitute negli- gence, nuisance or breach of duty, 307

The Statute of Limitations (Amendment) Act, 1991, has introduced major reforms of the law of limitations in the case of personal injury and death actions. In an action for damages for personal injuries the ordinary period of limitation is now the period of three years from the date of accrual of the cause of action which is the subject of the proceedings or the "date of knowledge", within the meaning of section 2 of the Statute of Limitations (Amendment) Act, 1991, of the person injured, if later.

In this article, Dr. John White of UCC reviews the law governing the limitation of personal injury and death actions in the context of the recent statutory amendments and examines the assertion by the Supreme Court of a jurisdiction, not only to dismiss a claim for want of prosecution, but also to dismiss a claim commenced w i t h in the period of limitation allowed by statute and prosecuted with due diligence, where the Court deter- mines that the interest of justice requires it. Section 3 (1) of the Statute of Limitations (Amendment) Act, 1991, provides for an ordinary limitation period of three years from the date of accrual of the cause of action or the "date of knowledge", within the meaning of section 2 of the Act of 1991, if later, in the case of actions for personal injuries. 1 The subsection provides that: "An action . . . claiming dam- ages 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." Personal injury: the ordinary period

by Dr. John P.M. White Lecturer in Law, University College, Cork

Under the Statute of Limitations, 1957, the limitation period com- menced from " t he date on which the cause of action accrued". 2 In Hegarty -v- O'Loughran 3 the Supreme Court declined to interpret this provision as meaning the date when the plaintiff knew, or as a reasonable person ought to have known, t hat she had sustained the damage in issue as a result of the defendant's conduct, whichever first occured. On the contrary, the Court held that for the purposes of the Act of 1957 a cause of action for personal injuries accrued when the plaintiff had sustained "a provable personal injury capable of a t t r ac t i ng compensa t i on ," regardless of whether the plaintiff actually knew or ought to have known that she had sustained injury caused by the defendant's conduct. 4 This meant that the period of limitation might well expire on an injured person in circumstances where that person had no opportunity of commencing proceedings in respect of that injury because the plaintiff was not aware and could not reasonably have been expected to be aware of her injury and its causal connection with the defendant's conduct. The manifest injustice of this result has now been remedied by the 1991 Act which postpones the date of