The Gazette 1993

GAZETTE

MIWH NOVEMBER1993

that an action 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 (emphasis added). More than three years had passed since the date of the accident and the plaintiff relied on "the date of knowledge" arguing that she had no knowledge that her injury was attributable to the defendants, Motor Distributors and Daimler Benz, nor even of their identity until the engineer's report was received by her solicitor around January 18, 1989. It was argued in court that the solicitor for the plaintiff ought to have arranged an inspection of the van by an engineer and obtained a report from the engineer before delivering the statement of claim in the action against Sanbra Fyffe, especially as the plaintiffs instructions as to the precise cause of the accident were vague. Lynch J considered that each case in relation to an engineer's report must be decided on its own facts but a general rule that an engineer's report should be obtained before the delivery of the statement of claim in every case would add quite unnecessarily to the costs in many cases. Indeed, the Judge argued that this was so probably in the majority of cases because most cases were settled at a relatively early stage of the proceedings. The Judge was satisfied from the evidence of the plaintiffs solicitor and on the evidence of an experienced solicitor in litigation that it was reasonable for the plaintiffs solicitor not j to request an inspection of the van and a report thereon by an engineer until directed to do so by Senior Counsel. He was satisfied thereafter the plaintiffs solicitor took all reasonable steps to arrange an inspection of the van by a competent engineer and to obtain a report from such engineer. The Judge held based on the date of relevant knowledge, around January 18, 1989, that the issue of the plenary summons on January 14, 1992 against Motor Distributors and Daimler Benz was not barred by the Statute of Limitations Act, 1957 as amended by the Statute of ! Limitations (Amendment) Act, 1991. •

courteous to all with whom we come in contact and will endeavour to maintain a collegial relationship with our adversaries. 3. We will cooperate with opposing lawyers when scheduling conflicts arise and calendar changes become necessary. We will also agree to opposing lawyers' requests for reasonable extensions of time when the legitimate interests of our clients will not be adversely affected. informed and involved in making the decisions that affect their interests, while, at the same time, avoiding emotional attachment to our clients and their activities which might impair our ability to render objective and independent advice. appropriate cases, that initiating or engaging in settlement discussions is consistent with zealous and effective representation. i 6. We will attempt to resolve matters as expeditiously and economically as | possible. J 7. We will honour all promises or com- mitments, whether oral or in writing, ' and strive to build a reputation for dignity, honesty and integrity. 8. We will not make groundless accusations of impropriety or | attribute bad motives to other lawyers without good cause. 9. We will not engage in discovery practices or any other course of con- duct designed to harass the opposing party or cause needless delay. | 10. We will seek sanction against other I lawyers only when fully justified by the circumstances and necessary to protect a client's lawful interests, and 11. We will not permit business concerns to undermine or corrupt our professional obligations. 12. We will strive to expand our knowledge of the law and to achieve and maintain proficiency in our areas of practice. ! 13. We are aware of the need to preserve I the image of the legal profession in the eyes of the public and will i 5. We will counsel our clients, in I never for mere tactical advantage. 4. We will keep our clients well- |

support programs and activities that educate the public about the law and the legal system.

The Statute of Limitations

The Statute of Limitations, 1957 is often a matter of great concern to litigation lawyers. In Boylan v Motor Distributors Ltd and Daimler Benz A.G., unreported, High Court, June 9, 1993, per Lynch J, the issue of "the date of knowledge" in relation to the limitation period within which an action in respect of personal injury must be brought arose for consideration. The plaintiff had been injured on May 7, 1986, when a Mercedes 307-D type van, the property of Sanbra Fyffe Ltd, arrived to deliver goods at the family firm of the plaintiff. The plaintiff assisted the driver in unloading the goods and in closing the door, the plaintiffs right ring finger got caught in some way and a piece was amputated from the top joint of the ring finger and her little finger was also injured. A High Court action was initiated against Sanbra Fyffe Ltd on January 27, 1987 and shortly thereafter a statement of claim was delivered. Subsequently, in December 1987 a con- sultation was held with Senior Counsel who advised that the van should be inspected by an engineer from whom a report should be obtained. The plaintiffs solicitor wrote to Sanbra Fyffes Ltd's solicitor for permission to have the van inspected by an engineer. Many telephone calls followed regarding the proposed inspection because the identity of the actual van had to be ascertained and other problems sorted out. It took some time for the engineer's report to be compiled because of the difficulty in locating a van of the same type. The engineer's report, dated January 18, 1989, disclosed that the plaintiff had a possible cause of action against the defendants, Motor Distributors Ltd and Daimler Benz, the manufacturers and distributors of the van. No further proceedings were issued at that time. Time passed and the Statute of Limitations (Amendment) Act, 1991 was enacted by the Oireachtas. The 1991 Act applied to all causes of action whether accruing before or after its passing. Section 3( 1) of the 1991 Act provides

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