The Gazette 1991

OCTOBER 1991

GAZETTE

Special period for disability An extension of the ordinary limitation period in personal injury and wrongful death actions is allowed to persons "under a disability." Section 48 of the Statute of Limitations, 1957, provides that a person shall be deemed to be "under a disability" while he is an infant or person of unsound mind or a convict subject to the operation of the Forfeiture Act, 1870, in whose case no administrator or curator has been appointed under the latter Act. A person is conclusively deemed to be of "unsound mind" while he is detained in pursuance of any enact- ment authorising the detention of persons of unsound mind or criminal lunatics; 16 but the de- finition of "person of unsound mind" in this context is not limited to persons so detained 19 and in Kirby -v- Leather 20 the Court of Appeal held a person to be of "unsound mind" when incapable, by reason of mental illness, of managing his affairs in relation to the accident as a reasonable person would do. Section 5(1) of the Act of 1991 provides that where, in the case of personal injury claims and claims for wrongful death under Part IV of the Civil Liability Act, 1961, " t he person having the right to bring the action was under a disability either at the time when that right accrued to him or at the date of his knowledge, the action may be

representatives of the victims's estate and their "dates of know- ledge" are different, the earliest date is the one which is relevant for the purpose of determining the commencement of the period of limitation. 13 Section 48 (6) of the Civil Liability Act, 1961, js repealed 14 and the period of limitation of three years from the date of the death specified by that provision in the case of wrongful death actions under Part IV of that Act is extended by section 6 of the Act of 1991. The new period of limitation is the period of three years from the date of the death or the "date of knowledge" of the person for whose benefit the action is brought, whichever is the later. 15 In other words, want of "know- ledge" on the part of a dependant concerning the injury wh i ch occasioned the death of the de- ceased postpones the operation of the limitation period. Where there are a number of dependants for whose benefit the wrongful death action is brought, this limitation period applies in respect of the claim of each so that the claim of one may be barred while the claim of another or others who acquired "knowledge" concerning the injury which occasioned the death only later are allowed to succeed. 16 However, a dependant's claim will Wrongful death: the ordinary period

ity or the date of death of the person under the disability, whichever first occurs, applies. 21 This special period of limitation does not apply, however, in the case of a cause of action "... in the case of such persons', a special period of limitation of three years from the date of termination of the disability on the date of death of the person under the disability, whichever first occurs, applies." which is vested in a person not under a disability and is then trans- mitted to a person under a dis- ability. 22 Moreover, where a cause of action accrues to a person under a disability and that person dies while still under a disability with the result that his/her cause of action is transmitted to another person under a disability, no further extension of time is allowed by reason of the disability of the second person. 23 Dismissal for want of pro- secution or for fairness Order 27, r. 1, R.S.C., 1986, provides that: "If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the court to dismiss the action, with costs, for want of prosecution; and on the hearing of such application the Court may order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just." In Rainsford -v- Corporation of Limerick 24 Finlay, P., in the High Court, considered whether an order of the Master of the High Court extending the time within which the plaintiff might deliver a state- ment of claim ought to be set aside and the action dismissed for want of prosecution in circumstances where the plaintiff's accident had

" . . want of 'knowledge' on the part of a dependant concerning the injury which occasioned the death of the deceased postpones the operation of the limitation period."

brought at any time before the expiration of three years from the date when he ceased to be under a disability or died, whichever event first occurred, "notwithstanding, in the case of personal injury actions, that the period specified in section 3 of the Act of 1991, i.e., the 'ordinary period of limitation,' has expired. In other words, in the case of such persons, a special period of limitation of three years from the date of termination of the disabil-

not be barred, notwithstanding the expiry of this limitation period in respect of his/her claim, if that dependant could, were s/he the sole dependant, rely upon some further ground for defeating the operation of such period of limita- tion whether by reason of an exten- sion of time afforded to persons under a disability under section 5 of the Act of 1991 or an agreement between the parties not to raise the defence or otherwise. 17

309