Discoverable & Eq Extension
Personal Injury
Personal injury actions are subject to special considerations, which are linked to the requirement to refer the case to the Injuries Board in the first instance before taking legal proceedings. Difficult questions can arise where a civil wrong leads to several types of damage.
There may be knock-on, indirect losses or so-called consequential losses, which arise in the future or which develop over time. The courts usually take the approach that cause of action accrues if there is a substantial or real injury.
The general position is that the future loss or the gradual development of loss arising after the initial substantial loss, injury or damage does not give rise to a new cause of action. In some more unusual circumstances, further loss or damage may be interpreted to be a separate loss, such as to give rise to a new claim and involve the accrual of a new cause of action..
Difficult dilemmas can arise for the law, can arise where an injury or loss accrues before the claimant had knowledge of it. The policy of the law requires litigation finality, which sometimes can give rise to injustice.
PI Discoverability Exception
In this context, a “personal injuries” action is one where bodily injury is suffered as a result of negligence, nuisance or breach of duty. A personal injury claim includes any disease or impairment of physical or mental conditions.
2004 reforms changed the time limit for commencement of proceedings in respect of personal injuries to two years from the time that the right to bring the claim “accrues”. This is extended by certain periods while the case is being considered by the Injuries Board.
The Statute of Limitations (Amendment) Act 1991 reversed the effect of the Supreme Court decision in Hegarty v O’Loughran in personal injury cases. That case may still apply outside of personal injury cases.
The Supreme Court had followed earlier House of Lords cases, which were later reversed. Discoverability applies generally in England and Wales by statute. The Irish Supreme Court confirmed that apart from statute, a discoverability test does not apply in negligence or other breach of duty cases.
Date of Knowledge
The 1991 Act introduced a ‘date of knowledge’ test in relation to personal injuries cases. The action may be taken within two years of the date on which the action accrued or the date on which the claimant’s knowledge if the claimant does not know or have the means of knowledge of the claim that it has accrued. The legislation was re-enacted with amendments in 2015.
Claims for 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 2 years, from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.
It does not matter whether the person knew or did not know that, legally, there was negligence, nuisance or a breach of duty. Knowledge of the actual facts or events is what matters.
Other Discoverability
In some common law jurisdictions, the general rule is that a cause of action does not accrue at all until the plaintiff knows or should know that there has been loss or damage. However, in Ireland, the Supreme Court has held that unknown and undiscoverable loss or damage may occur, causing a claim in negligence (and other torts) to accrue so that the cause of action is barred before it is known.
Irish Statute law has reversed the above position in relation to personal injury actions based on negligence or breach of duty.. It remains the position in respect of other types of actions, including claims for financial loss.
According, the Supreme Court held in 2012 that in the case of a loss arising from the alleged mis-selling of financial products, the loss could arise at the very outset due to the faulty nature of the product, even though its consequence did not become apparent until many years later after the limitations period had. Once there is damage or loss beyond that which is negligible, the Supreme Court held that the limitations period would run.
Tort and Contract
In some cases, the circumstances will give rise to a claim for breach of contract and, in tort, typically negligence. The damage itself is an element of the claim with a tort, so it may occur later than the negligent act or omission. Because of this, the tort limitation period is frequently more attractive. Tort also allows a greater degree of recovery than a breach of contract claim.
However, outside of a personal injury claim, the existence of non-discoverable damage will cause the limitation period to commence. If the claim relates to personal injuries, a two-year time limit applies, which is subject to particular discoverability principles.
Personal injuries do not commonly arise in circumstances that constitute a breach of contract only. There will commonly be a concurrent claim in negligence or breach of statutory duty. In some cases, the contract may define the extent of the duty.
Equitable Bar
A person may be denied the right to rely on the Statute of Limitations by the courts of equity. If it would be dishonest or unconscionable for him to do so, the chancery courts have long held, that he may be estopped from relying on the statute.
Estoppel may arise where the defendant through his actions or words, leads the claimant to believe that proceedings would not be necessary and the claimant in reliance has refrained from instituting them. An estoppel may arise, even by correspondence is “without prejudice”.
If the defendant or is his insurers request that claimant to refrain from issuing proceedings while negotiations are on-going, then they may be estopped from raising the statute even where they do not concede liability. There must be a clear and unambiguous representation, which is intended to affect the relationship between the parties.
The general principles of estoppel apply. It must be reasonable for the claimant to rely on the statements or representations. It must be shown that the claimant relied on the representation and acted to his detriment accordingly.
Equitable Relief Extension of Time
By its terms, nothing in the Statute of Limitations Act affects any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise.
If equitable relief is claimed, then, strictly speaking, no time limit applies. However, in practice, equitable remedies are subject to a more rigorous test under the principle of laches. Under this principle, the failure to take action promptly may preclude equitable relief. There is no strict time limit, but it depends on the circumstances. Laches may arise after a number of weeks or months.
The limitations time limits may be extended if certain factors operate. This may arise in respect to concealment, fraud, disability, part payment, or acknowledgement. Principles of estoppel may also apply. Generally, see the sections that deal with these factors.
Extension of Time
The separate principles of concealment, mistake and fraud may, in some cases, relieve the consequences of the absence of a general discoverability exception. The courts may apply the broader principles of equitable fraud to fiduciary relationships, such as those of some confidants and advisors.
Where there is a trustee and beneficiary relationship between the parties, the time limits may be suspended and extended. No period of limitation applies to an action against a trustee or any person claiming through him where the claim is founded on any fraud or fraudulent breach of trust to which the trustee was party or privy, or the claim is to recover trust property or the proceeds thereof still retained by the trustee or previously received by the trustee and converted to his own use.
A “trustee” under the Act does not include a person whose fiduciary relationship arises merely by construction or implication of law and whose fiduciary relationship is not deemed by any rule of law to be that of an express trustee.
There had been suggestions that the result of the above principles, which may bar proceedings in cases where the loss or damage is not at all discoverable, may be contrary to the Constitution and the European Convention on Human Rights guarantees of access to the courts. However, the Supreme Court has nonetheless come down in favour of the principle on a number of occasions.
Latent Defect
Cases involving latent property defects suggest that time runs where there is a manifest defect, even if it has not been brought to the claimant’s attention. This does not, however, equate to a discoverability test.
Difficult questions have arisen, in particular in cases of financial loss caused by negligence. The courts have taken differing views as to the extent to which the loss or damage must be manifest or evident before the cause of action accrues.
It is a general principle that when a loss is suffered arising from a particular act or event, all present, future and contingent losses should be sued for in a single proceeding. Once there is appreciable loss or injury, the claim taken covers all such present, future, and possible losses. All underlying rights arising from the circumstances are converted into the rights that are declared and ordered by the judgement and are thereby extinguished.