Discoverable & Eq Extension

Table of Contents

Cases Discoverability

Scanlon v. Ormonde Brick Ltd

, High Court, July 21, 2000
JUDGMENT of Mr. Justice Barr delivered the 21st day of July, 2000.

THE FACTS

1. The history of the relationship between the parties and the facts which have given rise to the dispute between them do not appear to be in significant controversy and are as follows:-

2. The plaintiff is a farmer and resides at Coolbawn, Castlecomer, Co. Kilkenny. For upwards of 100 years until quite recent times coal-mining was carried out in the Castlecomer area where there were several anthracite mines, including one on the plaintiff’s lands which was mined by his ancestors as an adjunct to their farming activities. Most of the mines were underground, including that on the plaintiff’s lands, and the method of extraction adopted was to remove the anthracite leaving pillars of coal at intervals to support the land above which included a covering of shale. In short, after anthracite mining was completed on

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the plaintiff’s lands three products remained which are relevant to this action i.e. the shale; fireclay which was beneath the coal seams and the supporting pillars of coal.

3. The defendant is a limited liability company which is engaged in the business of making bricks. Shale and fireclay are required in that connection. In or about 1989 the defendant was known as Irish Clay Industries Limited. It was then interested in acquiring the plaintiff’s extinct mine as a source of shale and fireclay. It had no interest in the pillars of coal. I accept the plaintiff’s evidence, which was not challenged, that in 1989 the defendant company was an independent commercial entity of modest proportions with limited financial resources. Negotiations took place which led to an agreement in writing between the parties made on 9th March, 1989 under which the plaintiff conveyed to the company the adjoining properties described in folio’s 993F and 5889 of the County Kilkenny Register comprising in all 46 acres or thereabouts which were referred to in the trial as Scanlon 1 and Scanlon 2. The purchase price was £73,000 and in the interest of reducing the cash price, the parties agreed that the plaintiff would reserve to himself any coal deposits, including the pillars exposed in course of the defendant’s shale and fireclay operations i.e. as part of the purchase price the plaintiff would have the benefit of coal (in particular the pillars) as it became available in course of the defendant’s operations. The special conditions which form part of the contract include the following:-

“7. The Purchaser shall fence the boundaries marked X-X: Y-Y and P-P on the map endorsed hereon to the Vendor’s satisfaction in four strands of heavy gauge barbed wire using concrete poles 4”x 4” x 5’ embedded in concrete at 10 feet intervals with appropriate straining posts. In addition along the boundary Y-Y the Purchaser shall provide a screen of trees to the Vendor’s

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satisfaction and a drain on the Purchaser’s side of the boundary properly excavated. The said screen of trees shall provide an adequate screen and shall be put in place within one year of works commencing.
8. The Vendor reserves out of the said lands any coal deposits, pillars or otherwise exposed in the course of the Purchaser’s works and shall have the right to mine and remove any such deposits….”

4. I am satisfied that condition number 7 was intended to provide certain demarcation boundary fencing and a particular screen of trees. It does not limit such obligations as the defendant may have had regarding the protection of the plaintiff’s coal on the site from unauthorised removal by third parties.

5. A pertinent historical note relating to coal-mining at Castlecomer is that over the years a custom developed whereby miners and their families regarded themselves as being entitled to enter the mining areas and remove coal for their own use. The unauthorised removal of anthracite by miners was in some cases more extensive and they engaged in the sale of coal thus obtained. It seems that traditionally the mine owners turned a blind eye to such activities which were never formally sanctioned but were not regarded as pilfering in the strict sense of the term.

6. Subsequent to the making of the foregoing contract the defendant changed it’s name to Ormonde Brick Limited. It also ceased to be an independent enterprise and became part of the Cement-Roadstone group of companies.

7. In or about May, 1990 contractors on behalf of the defendant commenced operations at Scanlon 1 and removed shale then covering approximately 2 acres of ground on the northern side of the land. It was duly taken to the defendant’s brick factory and in

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accordance with the contract pillars of coal were left on site undisturbed. The plaintiff was so advised on behalf of the defendant. In or about the last week of May, 1990 the plaintiff was told by the defendants that the extraction of shale in the area in question had been completed and that he was free to enter the lands and remove coal there in accordance with the contract. The plaintiff engaged a contractor for that purpose who entered the site and removed coal from the area where the shale had been extracted by the defendant. The removal of coal continued for a period of 4 days with the knowledge and approval of the defendant company. In course of that period a substantial amount of coal was removed and brought to the plaintiffs adjoining yard for preparation and bagging with a view to sale which commenced on 7th June, 1990. At that time it was also intimated to the plaintiff on behalf of the defendant that following the removal of shale by its contractors and coal by or on behalf of the plaintiff, it was intended that the defendant’s contractors would then remove fireclay which lay under the original seam of coal.

8. On the 4th day of the coal removal operation the plaintiff was informed by a senior official of the defendant company that no further coal was to be taken from the site. The plaintiff asked for an explanation and was told that the coal was not theirs to give him. Protracted negotiations then took place and it emerged that the root of the difficulty was that there was no statutory mining licence authorising removal of the coal by the plaintiff. Subsequently negotiations also involved the State Mining Board and continued for several years. It is unnecessary to examine the ramifications of that particular problem (which ultimately was resolved) because it is irrelevant to an assessment of the defendant’s obligations to the plaintiff in connection with protecting the coal on its lands in his interest. It does explain the reason for the moratorium on the further removal of coal by the plaintiff from the lands in question until in or about 1997. The practical difficulty which that delay

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brought about was pilfering of coal pillars in Scanlon 1 as they became accessible consequent upon removal by the defendant of shale and fireclay during that period. From commencement of operations by the defendant on the site its practice on completion of the removal of shale from a given area, was to leave a small covering of shale over the coal seam and pillars. This did not provide any significant protection against pilfering. I am satisfied that for years after the defendant excluded the plaintiff from the site and terminated its original authority to enter and remove coal in accordance with the foregoing contract, wholesale pilfering on a commercial scale occurred on Scanlon 1 and the plaintiff was thereby deprived of the practical benefits of the contract in terms of extraction of coal from that area which, in effect, was part of the purchase price of the conveyance of the lands by the plaintiff to the defendant.

9. The plaintiff was excluded from the lands by the defendant in or about the first week of June, 1990. Immediately thereafter trespass on the property commenced by local persons in search of coal. It has not been disputed that removal of coal in an organised commercial way commenced about a week later and was undertaken by teams of men working with tractors and trailers and the necessary equipment to remove coal and coal pillars from the location. Such activity was carried out at all times but particularly at night. The plaintiff complained about what was going on to senior officials in the defendant’s employment. He forwarded to them the names of the persons who were removing the coal but no action was taken to prevent such trespass. The plaintiff also reported the matter to the Garda Síochána but they were also disinclined to take any action in the matter in the light of the longstanding local custom of unofficial removal of coal from mines to which I have referred. The end result is that the plaintiff has suffered substantial financial loss through being deprived of coal which is his property and which is also a readily saleable commodity. It is also not in dispute that in the course of a State Mining Board hearing in 1992 the plaintiff

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complained that he had been prevented by the defendant from working coal on the lands pursuant to the terms of his contract with the company. In response the defendant’s legal advisor assured the Mining Board at the meeting that the defendant was prepared to honour that agreement.

THE ISSUES

10. The first issue I have to consider is the proper interpretation of special condition number 8 in the contract regarding the reservation by the plaintiff of coal deposits on the land. As already stated, the condition is as follows:-

“The Vendor reserves out of the said lands any coal deposits, pillars or otherwise exposed in the course of Purchaser’s works and shall have the right to mine and remove any such deposits.”

11. It has been argued on behalf of the defendant that no liability arises on foot of that condition because the coal pillars were not “exposed” by the defendant in the course of their work and, therefore, a condition precedent to any liability they might have has not arisen. I accept that from the beginning it was the practice of the defendant’s contractor, having removed shale or fireclay from a given area, to leave the coal pillars covered by a thin layer of shale. It seems that the pillars were not, therefore, exposed in the literal sense of that word. I have no doubt that “exposed” in the context of condition number 8 means “made available for removal” i.e. made readily accessible for that purpose. That is how the clause was interpreted and operated by both parties up to the time when the defendant terminated the

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plaintiff’s right of entry to the lands for the purpose of removing the coal because of a perceived difficulty as to it’s ownership and/or the need for a State mining lease/license.

12. I am satisfied that at all material times the plaintiff did in fact “own” the coal deposits in question pursuant to a permission from McGregor and Sons (Ireland) Limited which held a 35 year lease from Wandesford Estate Co. to carry on open cast mining operations in an area of land which included that which is the subject-matter of the plaintiffs contract with the defendant. It is also conceded in the report of the Mining Board dated 14th December, 1992 that the minerals in question were State minerals “privately owned by Wandesford Estate Co.” In the context of the relationship between the plaintiff and the defendant a practical difficulty was that when entering into the contract of 7th March, 1989 neither party adverted to the necessity for obtaining a mining lease/license from the Minister for Energy under the Mineral Developments Acts, 1940 and 1979. I accept the submission made on behalf of the plaintiff that under the Acts although the coal in question falls within the definition of “State Minerals”, it does not alter the ownership thereof. In the light of the foregoing it follows that after completion of the contract the defendant was in possession of the lands containing the coal which was an asset owned by the plaintiff and forming part of the consideration for the contract. In short, the defendants were in possession of property belonging to the plaintiff which he could not legally remove.

13. It seems to me that the relationship between the parties in this case is analogous to that of bailment which may exist independent of contract. What duty did the defendant as bailee owe to the plaintiff as bailor of the coal? It was held by Barron J. in Sheehy -v- Faughnan [1991] ILRM 719 that a bailee owes a duty to a bailor to take reasonable steps to prevent loss to the bailor, and where loss has occurred, the onus of proof is on the bailee to show that it did not occur through lack of reasonable care on his part. See

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also judgment of the Court of Appeal in Houghland -v- R.R. Low (Luxury Coaches) Limited [1962] 2 AER 159 .

14. Applying the judgment of Barron J. in Sheehy -v- Faughnan I am satisfied that in the instant case the defendant had a duty to take reasonable steps to prevent loss to the plaintiff through pilfering of his coal from the defendant’s lands. The coal was inaccessible until the top soil and shale were removed by the defendant pursuant to its operations on the land in connection with the extraction of shale and fireclay. Having removed the shale and top soil from a given area the underlying pillars of anthracite became readily accessible and vulnerable to unauthorised removal as was soon clearly established. I accept the plaintiff’s evidence that organised pilfering on a commercial scale was happening throughout the period of the defendant’s operations and perhaps thereafter in consequence of which Scanlon 1 was in effect stripped of coal and the plaintiff has thereby suffered substantial loss.

15. The fact that large scale pilfering over a protracted period of time without significant let or hindrance by the defendant was happening, even though from the beginning it was made aware of what was going on, itself indicates that reasonable efforts were not made by or on its behalf to protect the plaintiff’s coal. The line taken on behalf of the defendant (vide a letter from their solicitors dated 13th January, 1993) was that they denied having any liability to protect coal from being unlawfully taken by third parties from the lands. However they did not regard themselves as having any obligation to stop the pilferers. It was contended (as was the fact) that the defendant had complied with the fencing requirements set out in clause 7 of the special conditions of the contract and that that was all they were required to do. As already stated, I am satisfied that special condition 7 did not limit their liability in the matter of protecting the coal as contended by their solicitors. It is obvious that such fencing did not and would not protect the lands from coal pilfering and that

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substantially more was required to provide reasonable protection of the plaintiff’s interest. That obligation was all the more obvious and important bearing in mind that, as the defendant was aware, the value of the coal in question was in effect part of the agreed purchase price.

16. Unauthorised access to that part of the contract lands called Scanlon 1 appears to have been through either the adjacent Delaney gates or the defendant’s gates which are shown in the photographs introduced in evidence at the trial numbered 11 and 28 respectively. Although securing the Delaney gates by ensuring that they could not be lifted off their hinges was probably a relatively simple matter, it was not until the mid 1990’s that any steps were taken in that regard. It also emerged in evidence that no action was taken to increase the height of the main gate into Scanlon 1 until after the coal had been removed from that area. Mr. Eddie Power, who is responsible for the defendant’s security arrangements, conceded in evidence that the digging of a trench at the boundary of the Scanlon/Delaney lands would have prevented unauthorised tractors and trailers being brought onto Scanlon 1 which was fundamental to the illegal removal of coal on a commercial scale. The defendant had appropriate machinery on the site to carry out such works but failed to do so. In response to the plaintiff’s contention that an important security measure would have been the provision of such a trench, it was stated on behalf on the defendant that they required to bring a large bulldozer onto Scanlon 1 via the adjacent Delaney lands about six times a year. It seen-is to me that the plaintiff’s contention that a “tracked” vehicle such as the bulldozer could have negotiated the proposed trench is probably correct. Alternatively, the trench could have been filled for a short distance to allow access and then re-excavated or a temporary metal “bridge” could have been used. It also is of interest that there was a substantial disparity between security maintained by the defendant on the other part of the land known as Scanlon 2 about which no explanation was given. Another alternative which was open to the defendant was to

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negotiate with the plaintiff the purchase of his interest in the coal in question thus avoiding the risk of deterioration in their relations with the local wrongdoers. Whatever about financial difficulties which the defendant may have had when the contract was made in 1989, they ceased to apply soon afterwards when the defendant became part of the Cement Roadstone group of companies.

17. The onus is on the defendant to show that it took reasonable care to secure coal on its land at Scanlon 1 for the benefit of the plaintiff in accordance with the contract made on 9th March, 1989. The evidence establishes that in breach of contract and in breach of duty as bailee it failed to do so in consequence of which the plaintiff suffered substantial loss. This finding is borne out by the fact that although the identity of the primary culprits was known to the defendant from the beginning nothing of any significance was done to restrain the wrongdoers or to protect the plaintiff’s interest for several years when it was too late.

18. There is one other issue on liability raised in the defendant’s defence i.e. limitation of damages under the Statute of Limitations, 1957 section 1 l(l)(a) and 2(a) which limits the loss sustained by the plaintiff to that which occurred during the period of six years ending on the date of issue of the plenary summons in the action on 7th August, 1996. The plaintiff has conceded that soon after he was prohibited from continuing the removal of coal from Scanlon 1 in or about the first week of June, 1990 substantial pilfering of coal in commercial proportions commenced and it seems continued up to the crucial date from which damages may be claimed i.e. 7th August, 1990. There is no firm information as to the quantity of coal wrongfully removed during that period of approximately two months, but a significant reduction must be made in that regard from the total value of the plaintiff’s claim.

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DAMAGES

19. I have considered all of the expert evidence and reports regarding the probable residue of coal in Scanlon 1 which was lost through pilferage. I have also taken into account the report of the Department of Industry and Commerce prepared in July, 1964 which was introduced in evidence by the defendant and indicates a remaining residue of coal amounting to about 10% in the general vicinity of Scanlon 1. All in all, it seems to me that it is fair and reasonable to both parties that I should assess the percentage residue of coal in Scanlon 1 at the time when the contract was made in 1989 as being 10% i.e. 862 tonnes of anthracite. I also accept the assessment of the plaintiff’s chartered accountant, Mr. Richard Smyth, that overheads involved in extracting such coal would have been about 8% of gross value. Accordingly, as calculated by Mr. Williams, the plaintiff’s chartered minerals surveyor, the net value of the loss of coal from Scanlon 1 after deduction of 8% overheads is £95,164. I assess the value of pilfered coal at Scanlon 1 during the defendant’s operations there up to 7th August, 1990 at £10,000 – credit should be given also for £10,173 for coal extracted from Scanlon 1 by the plaintiff (see Richard Smyth’s report) – thus reducing the net value of his claim to £74,991. He is also entitled to interest at the court rate on that amount. I shall hear further argument as to the date from which interest should run.

Byrne v Hudson

[2007] I.E.S.C. 53

Judgment delivered on the 15th day of November 2007 by Macken J.

This is an appeal by the third named defendant who was joined in these proceedings, pursuant to an order of the Master of the High Court dated the 26th October 2001. By order of the President of the High Court (then Johnson, J.) made on the 15th December 2003, the High Court directed that a preliminary issue be heard as to whether the proceedings against the third named defendant are time barred by virtue of the provisions of the Statute of Limitations 1957 – 2001. That preliminary issue was heard before the High Court (Butler, J.), and by order dated the 23rd November 2004 the High Court held that the proceedings as against the third named defendant were not so barred. From that judgment and the order made thereon, the third named defendant has appealed to this court.

The High Court Proceedings
The proceedings in this case arise out of a shocking mishap which befell the plaintiff on the 17th July 1997, at a time when he was about 26 years of age. He was visiting a younger friend of his, Alan Hudson, who was then a teenager of about 15, where that friend lived at 84 Windmill Road, Crumlin, Dublin 12. Alan Hudson had recently returned from the United States with his mother, the third named defendant. In the United States he had purchased a paint gun which was subsequently lawfully brought into the State. This paint gun was capable of firing paint balls or pellets and at the time paintballing was a popular past-time. On the evening of the 17th July 1997 during the course of the plaintiff’s visit to Alan Hudson, his brother, Patrick Hudson Junior, arrived a the premises while his mother was absent. He was approximately 30 or 31 years old and no longer lived there. It was the evidence of the third named defendant and of Alan Hudson in the course of the High Court hearing, that Patrick Hudson not only no longer resided in the house, but was no longer welcome to come and go to the house and did not have a key to it. According to the evidence, when he arrived at the premises he entered the house, went up stairs and found the paint gun in Alan Hudson’s bedroom locker, whereupon he opened the window and fired paint balls or pellets, one of which struck the plaintiff injuring him seriously, as a result of which the plaintiff is effectively blind in one eye.

The evidence in the High Court as to the commencement and service of the proceedings against the defendants was to the following effect. For the purposes of identifying the parties, the first named defendant in the proceedings is Patrick Hudson Junior, the middle son of the second and third named defendants and the person referred to above. The second defendant Patrick Hudson Senior is the former husband of the third defendant and at the time of the incident in question resided elsewhere than at 84 Windmill Road, and, although this fact was not known to the plaintiff’s solicitor, but according to the evidence, was known to the plaintiff, he had been separated from the third named defendant.

Some few days after the incident the plaintiff, quite properly, attended his solicitor, Lewis E. Citron & Company. The solicitor having charge of the file in the matter at the time was Mr Eamonn Carney. He now practices independently and he gave evidence in the High Court. The evidence in the High Court was to the effect that Mr Carney had carried out certain inquiries or had inquiries carried out to establish who might be the appropriate defendants in the proceedings apart from Patrick Hudson Junior who allegedly fired the paint gun. Having had enquiries carried out, including inquiries at the Land Registry and in the Rateable Valuation Office, proceedings issued against the first and second named defendants with the issue of a plenary summons in the usual way, followed by the delivery of a Statement of Claim on the 20th November 1998.

Although the particulars of negligence, breach of duty and breach of statutory duty are pleaded against all of the (original) defendants, it is quite clear on the evidence that if the paint gun was fired at the plaintiff, it was fired by the first defendant Patrick Hudson Junior, the evidence being also that he had been charged with a criminal offence in respect of the same. Insofar however as the allegation of breach of duty including breach of statutory duty is concerned the claim is articulated in the following terms:
I Failing to exercise any or any sufficient control over the first defendant.
II Failing to ensure that the premises of which he is owner at Crumlin Road Fuel Depot 84 Windmill Road were reasonably safe for persons using same.
III Failing to ensure the personal safety of the plaintiff, an invitee on the premises.
IV Failing to ensure that no unlawful weapons or ammunition were stored on said premises.
V Failing to ensure that no unlawful weapons or ammunitions were used on the said premises.
VI Allowing the first named defendant to be on the said premises when he knew or ought to have known that he had possession of a dangerous weapon and ammunition therefore.
VII Tolerating the presence of the first named defendant on the said premises when in possession of a dangerous weapon.
VIII Failing to warn persons likely to call at said premises including the plaintiff herein as invitee of the dangers posed by the weaponry and disposition of the first named defendant.
No defence appears to have been delivered by the first named defendant.

A defence was delivered on behalf of the second named defendant in which he denied residing at the premises in question and indicated that he resided in Clondalkin. Further he alleged in his defence that the third named defendant was the person who was at all material times the owner of and in control and supervision of the premises at 84 Windmill Road. That defence was delivered more than 3 years after the events in question.

In his ex tempore judgment delivered on the 23rd November 2004, the High Court judge came to the following conclusions, firstly, that the preliminary issue did not involve any consideration whatsoever as to whether or not the plaintiff in the proceedings has a good cause of action against the third named defendant on the merits, even if that was open to question; secondly, he found that the application to join the plaintiff was outside the time permitted by the Statute of Limitations having regard to the date of the incident, but that by reason of the provisions of the Statute of Limitations (Amendment) Act 1991 the date of knowledge (of the identity of the occupant of the premises) was the relevant factor in the case; thirdly, he found that the plaintiff’s then solicitor Mr Carney, having taken instructions from the plaintiff, directed certain searches to be carried out based on the information given by the plaintiff to him, as a result of which he came to the conclusion that the second defendant Patrick Hudson Senior was the occupier of the premises, that the solicitor had been most diligent and had gone to great trouble in the matter, and that the conclusion which the solicitor reached as to the correct defendant was a reasonable conclusion.

Further the High Court judge found that while the plaintiff’s state of knowledge was somewhat more, because the plaintiff knew, on the evidence tendered by the third defendant, that her marriage to the second defendant had broken up, the plaintiff was entitled to give the essential facts (which did not include the break up of the marriage) to his solicitor and leave it to the solicitor to determine who the legal defendant should be and the plaintiff had done so. The question which arose thereafter was whether or not the solicitor had done enough. The learned High Court judge found, as a matter of fact, that the solicitor had done enough.

Having held as aforesaid the learned High Court judge concluded that the identity of the third defendant as the occupier of the premises, within the meaning of S.2 of the Statute of Limitations (Amendment) Act 1991, became known on or about 20th September 2000. Events which arose after that were, he held. not relevant to the issue to be decided, which was confined entirely to whether or not the plaintiff was entitled to invoke the provisions of the Act of 1991. Having held that he was, the plaintiff therefore had 3 years from the 20th September 2000 within which to issue an amended writ and he had done so.

The Appeal
Essentially the grounds of appeal are six in number and can be briefly described as follows:
That the learned trial judge erred in the following manner:
(a) His finding that the plaintiff’s solicitor had discharged his obligations as a reasonable and prudent solicitor was not supported by the evidence.
(b) In his conclusion that the plaintiff’s solicitor’s reliance on a defective Land Registry search constituted sufficient discharge of his professional duties and obligations to pursue “reasonable inquires and investigations prior to issuing proceedings”.
(c) He wrongly concluded that there was no obligation on the plaintiff’s solicitors to conduct a search on the Folio relating to the property at Windmill Road.
(d) His finding that the plaintiff did not have sufficient knowledge to identify the third named defendant as the occupier of the premises was not supported by the evidence.
(e) He failed to apply an objective test in relation to the plaintiff’s knowledge concerning ownership and occupation of the premises.
(f) He wrongly found that the proceedings against the plaintiff were not statute barred pursuant to the provisions of the Statute of Limitations 1957-2001.
Written submissions were filed on behalf of the third named defendant and also on behalf of the plaintiff and while I have had full regard to these, I do not find it necessary to set out in any significant detail the content of those submissions. Essentially the third defendant seeks to support the various grounds of appeal (a) on the basis of extracts from the evidence adduced during the course of the hearing, in particular certain evidence which was not controverted; and (b) on the basis of the correct application of case law which will be referred to in greater detail below, while counsel for the plaintiff, as respondent considers that the central issue in the case was the reasonableness and extent of the inquiries made by the solicitor for the plaintiff. He contends that the findings of the High Court judge were wholly correct and were based on the evidence tendered by Mr Carney in the course of the High Court proceedings, and upon which the learned High Court judge was entitled to rely.

Conclusion
It is common case that the proceedings issued by the plaintiff against the defendant pursuant to the order of the Master referred to above were served “out of time” that is to say outside the 3 year period ordinarily provided for by the Statute of Limitation Act 1957 in respect of a tort actions claiming damages for personal injuries of the type alleged in these proceedings. However the provisions of that Statute have been amended, and amended in a significant manner, by the provisions of the Statute of Limitations (Amendment) Act 1991 (“the Act of 1991”) and in particular S.2 thereof. This reads as follows:
“2. —(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 dependant 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 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.
(2) For the purposes of this section, a person’s 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 which it is reasonable for him to seek.
(3) Notwithstanding subsection (2) of this section—
( a ) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
( b ) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.”
Given the amendment to the Statute of Limitations 1957 by the provisions of S.2 of the Act of 1991, as set out above, it is appropriate to commence a consideration of the law by seeking to ascertain whether the plaintiff can come within the provisions of S.2(2)(a) of the Act, and whether the learned High Court judge correctly found that he did so. The first “port of call” so to speak in seeking to determine a person’s knowledge for the purposes of S.2(2)(a) is to discover from the evidence adduced in the High Court whether there were facts from which the plaintiff could have “observed” or “ascertained” the identity of the appropriate defendants, in this case the third named defendant.

The uncontroverted evidence in the High Court of both of the third defendant and of Alan Hudson the third defendant’s youngest son and a friend of the plaintiff at the time, was that the plaintiff was fully aware, as is clear from the transcript, that the third defendant occupied the premises because the plaintiff had been a friend of Alan Hudson for some time, he had visited the house where Alan Hudson and the third named defendant lived, Alan Hudson was young at the time, about 15 years of age or so, and was living at home with his mother at 84 Windmill Road. Further it was the uncontroverted evidence of Alan Hudson that the plaintiff had been in the third defendants house on several occasions including on the day before the incident and that he had met the third defendant “a couple of times” before the incident, that he had been in the house reasonably frequently. It was also his uncontroverted evidence that he had disclosed to the plaintiff that his father and mother did not live together, he knew Alan Hudson was living only with his mother, had met his father, and had been with Alan Hudson to his father’s house in Ballymount Cottages on more than one occasion. The unchallenged evidence of Mrs Hudson was that she had also met the plaintiff in her own house and talked to him, that she knew him, although not well, and that he had been in the house a short time before the incident itself.
Further it was the uncontroverted evidence of Mrs Hudson that any correspondence delivered to the house but addressed to the third defendant was given to the third defendant and that when a man came to the house looking for the third defendant (it appears from the line of questioning that this was possibly a summons server) she told him that neither the second nor third defendants lived at 84 Windmill Road and that she informed him where the second and third defendants lived.

The plaintiff did not give evidence in the course of the hearing in the High Court. It appears clear however from the detailed evidence given on behalf of the plaintiff by his solicitor Mr Carney that the plaintiff had made his solicitor aware of the fact that the property was “owned and operated by the Hudsons” as Mr. Carney gave evidence of this, although the solicitor believed presumably from information given by the plaintiff that Patrick Hudson Senior, the second defendant, was the main occupant in that he believed he ran the commercial element of the business.

Mr. Carney gave evidence that there had been difficulty in having the summons served on the first and second defendants and that an order had to be secured for substituted service. That is undoubtedly so, but there was no evidence of the content of the affidavit filed in support of such application, the deponent of which would have had to indicate the steps taken to serve those defendants, and the results of any efforts to serve either of them at the premises in question, which information might have been of assistance to the High Court in determining the issue before it.

It would appear clear from the above evidence that knowledge that the third defendant was the occupier of the premises at 84 Windmill Road whether alone or with others, and information that the second defendant did not reside at those premises was clearly observable or ascertainable by the plaintiff. Indeed it was known to him. But these facts were undoubtedly also observable and ascertainable by him. Without going further, it seems abundantly clear that the knowledge which the plaintiff might reasonably have been expected to acquire within the meaning of S.2(2)(a) of the Act of 1991 existed and was known to him.

It is equally clear that S.2(2) includes a second provision namely that apart from facts which are both observable or ascertainable by a plaintiff, a person’s knowledge will also include knowledge ascertainable by him with the help of another party described in S.2(2)(b) as being “ascertainable by means of help of medical or other appropriate expert advice, reasonable for him to seek”.

In the present case a great deal of time was taken in the High Court in determining the precise steps taken by Mr Carney whom the High Court judge considered to have been extremely diligent in his work, and there was some considerable debate before this court also in respect of this same matter. Mr. O Tuathail, senior counsel, on behalf of the plaintiff invoked the provisions of S.2(3)(a) as a ground upon which the plaintiff, having taken all reasonable steps to obtain expert advice, is not to be fixed with knowledge of an ascertainable fact which is ascertainable only with the help of expert advice where that expert advice, did not disclose the knowledge required. On the other hand Mr Daly senior counsel of behalf of the third defendant, invoked the case of O’Driscoll v Dublin Corporation (unreported, High Court, Geoghegan, J. 3rd July 1998), for the purposes of establishing that information or knowledge acquired by the solicitor is not acquired as an expert, but that where information is acquired as an agent for the plaintiff, this must be imputed to the plaintiff himself. I do not consider it necessary for the purposes of this case to determine whether or not, according to the English cases referred to in O’Driscoll, supra., a solicitor is not to be considered in any circumstances as being an appropriate expert for the purposes of knowledge ascertainable on the part of the plaintiff within the meaning of S.2(2)(a) of the Act of 1991.

It seems to me rather that the appropriate position first to be considered, at least in the present case, is whether or not the fact that the third defendant was an occupier of the premises in question was something ascertainable or observable by the plaintiff. If it was, then the plaintiff is obliged in the usual way to make this information available to the solicitor he employs for the purposes of enabling that solicitor to reach a view or a conclusion as to the correct defendant to be included in any proceedings commenced on behalf of the plaintiff. I am satisfied that on the uncontroverted evidence adduced before the High Court on the hearing of the application the occupancy by the third named defendant was fully known to the plaintiff, and was therefore both observable and ascertainable by him, and that without any difficulty whatsoever. Further I am of the view that since the provisions of Section 2 are, in reality, an exception to the normal provisions concerning the obligation to commence proceedings for relief in respect of a tort causing personal injuries within a three year period, it is correct to apply the provisions of the section literally and not benignly or by an unduly lax interpretation. There is no suggestion in the Act of 1991 that a plaintiff is in some way to be forgiven for failing to furnish to his solicitor all of the facts which are within his direct knowledge, as here, so as to enable his solicitor commence proceedings against the correct defendant. It seems clear that, had the plaintiff done so in the present case, the information to enable the solicitor to do just that would have been freely and readily available within days of the incident occurring. It may well be that in certain cases, the ambit or nature of which it is not necessary to speculate upon, it would be appropriate to rely entirely upon a solicitor in respect of matters to be “ascertainable”, whatever about “observable”, when considering Section 2(2)(a) of the Act. But that is not a position which could apply in the present case.

The evidence being that the facts were not simply observable or ascertainable but actually known to the Plaintiff in sufficient detail to enable his solicitor advise him of the correct defendant(s), it seems to me that while the learned High Court judge found that the instructing solicitor had been both diligent and had carried out substantial searches and had reached an appropriate conclusion on those searches, nevertheless by failing to have regard for the plaintiff’s direct knowledge of the true position as disclosed on the evidence, the learned High Court judge erred in law in his finding that the plaintiff did not have knowledge sufficient to identify the third defendant as an actual occupier of the premises within the normal three year limitation period.

In the circumstances I would allow the appeal, set aside the High Court order and make a declaration that the plaintiff’s cause of action against the third named defendant is time barred by virtue of the provisions of the Statute of Limitations 1957 – 2001. I will also make the consequential order that the third named defendant be dismissed from the proceedings.

Devlin v National Maternity Hospital

[2007] I.E.S.C. 50

Judgment delivered the 14th day of November, 2007 by Denham J.

1. This case arises in the tragic circumstances of the death of a child. The issues relate to a post-mortem, the retention of organs, and nervous shock.

2. This is an appeal from the dismissal by the High Court of the plaintiffs’ claim for damages arising from the negligence, breach of duty, including breach of statutory duty, and/or breach of contract, on the part of the National Maternity Hospital, its servants or agents (hereinafter referred to as ‘the hospital’), by reason of which it was claimed that the plaintiffs sustained serious personal injuries, loss, damage, and/or expense.

3. Counsel on behalf of the hospital applied, on the sixth day of the hearing of the case, for a non-suit, indicating that if it were unsuccessful he would go into evidence. The learned trial judge permitted the application, and having heard the submissions, acceded to the application. Judgment was given on the 1st July, 2004, when both actions were dismissed.

4. An appeal was filed on behalf of the plaintiffs. The Notice of Appeal sets out five grounds of appeal, being that the learned High Court judge:-
(i) Erred in law in his application of the principles set out in Kelly v. Hennessy [1995] 3 IR 253, as recited in Fletcher v. The Commissioner of Public Works, [2003] 2 ILRM 94 in holding that in order to recover compensation the plaintiffs had to suffer a physical or apprehension of a physical injury. Further and/or alternatively he erred in law in applying the principle of Kelly v. Hennessy in this case.
(ii) Erred in law in holding that in order to recover damages for nervous shock and/or a psychiatric injury the plaintiffs had to have suffered and sustained a physical or apprehension of a physical injury.
(iii) Erred in law and in fact, in light of the plaintiffs’ then state of knowledge, in finding that the plaintiffs’ claim against the hospital for the unauthorised carrying out of a port-mortem and the complaints and injuries arising therefrom was statute barred.
(iv) Erred in fact and in law in not distinguishing between having knowledge a post-mortem had taken place and not knowing the infant’s organs had been removed and retained.
(v) Erred in law and in fact in acceding to the hospital’s application for a direction.

5. In addition, the hospital has filed a notice to vary the judgment and order of the High Court. The three grounds in the notice to vary are as follows:-
(i) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in not imputing to the plaintiffs and each of them by virtue of the operation of the provisions of s. 2 (2) of the Statute of Limitations (Amendment) Act, 1991 the knowledge that the plaintiffs expert, Dr. Barson, Consultant Pathologist, had, that organs and tissue had been retained when the expert furnished his report, dated the 23rd day of August, 1991 (and supporting documentation) to the plaintiffs solicitors which clearly demonstrated and/or indicated that organs and tissue had been removed and retained from the plaintiffs’ stillborn infant, Laura.
(ii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in finding that for the purposes of the operation of the Statute of Limitations Acts, 1957 – 1991 that time only commenced to run against the plaintiffs’ on receipt of the letter from the hospital dated 24th March, 2000.
(iii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in failing to hold that the plaintiffs did not establish any personal injury loss and damage arising out of the alleged negligence and breach of duty on the part of the hospital where the first named plaintiff gave evidence to the effect that even if consent had been obtained for the post-mortem the letter dated 24th March, 2000, could have caused same and/or similar personal injury, loss and damage as was allegedly caused by the alleged lack of consent.

6. Direction
Although it is the last ground of appeal, I will consider it first. It was submitted that the High Court erred in acceding to the hospital’s application for a direction.

7. On the application for a direction the High Court applied a test, that is whether, treating the plaintiffs’ case at its highest, the Court would be entitled to arrive at the conclusion that the hospital had a case to meet. The High Court held that it must assume the truth of all factual evidence given on behalf of the plaintiffs, referring to O’Donovan v. Southern Health Board [2001] 3 IR 385. This it then did.

8. The learned High Court judge assumed the following matters:
“… for the purpose of this application I must assume, as I do, firstly that the plaintiffs did not give their consent to a post-mortem examination being carried out on their deceased daughter; secondly, that the plaintiffs did not know that in the course of that post-mortem examination organs would be removed from the deceased and retained by the defendants; thirdly, that the plaintiffs did not actually learn of the fact that the organs had been retained until they received a letter on that behalf dated 24th March, 2000, from Dr. Declan Keane, then Master of the defendant’s hospital; and fourthly, that on learning that the organs of her deceased daughter had been retained by the defendants the first named plaintiff, Bridget Devlin, suffered shock and post-traumatic stress.”

9. I am satisfied that on the application for a direction the High Court applied the correct principles of law. The High Court assumed the truth of the evidence given on behalf of the plaintiffs, and determined the application on that basis. This is the correct approach, and there was no error made in this regard by the learned High Court judge. Consequently, I would dismiss the appeal insofar as it is grounded on the basis of a claim of error of the High Court in acceding to the hospital’s application for a direction.

10. Single Appellant
In considering this appeal, I do so on the basis that it is an appeal by Mrs Bridget Devlin, and not by Mr Terence Devlin. In the High Court counsel for the hospital submitted that, irrespective of how the Court determined the issue of liability between the parties, no cause of action was established on the part of Mr Terence Devlin, in that there was no evidence that he had suffered an injury or damage as a result of the matters in issue. The High Court held:-
“Not only was there no medical evidence to suggest that Mr Devlin suffered an injury as a result of the matters complained of but he himself in the course of his evidence did not say one word which suggested that he personally had suffered an injury. He had a lot to say about how his wife had suffered but nothing about himself. In this regard, I reject the suggestion by Mr McCartan Senior Counsel on his behalf that I should infer from the evidence which I heard that Mr Devlin had suffered distress, as Mr McCartan suggested that Peart J. had approved of in the course of an unreported judgment which he delivered on 11 March of this year in the case of Philip -v- Ryan and the Bon Secours Hospital.
In my view, I cannot manufacture evidence which is not there. Accordingly, I am satisfied that Mr Devlin has not proved any injury or loss as a result of the matters of which he complains; therefore, even if he were to succeed on the liability issue it would be a case of damnum absque injuria. Accordingly, I will accede to Mr Meenan’s application to non-suit Mr Devlin.”

11. These were findings of fact by the High Court. Given the jurisprudence of this Court, for example as stated in Hay v. O’Grady [1992] 1 I.R. 210, I would not interfere in these findings. While no specific grounds of appeal would appear to expressly relate to the issue of Mr Terence Devlin’s appeal, if and insofar as any appeal was lodged on his behalf, I would dismiss it, affirming the decision of the High Court.

12. Statute Barred
I shall consider next the issue as to whether the claim is statute barred. The High Court dealt with this matter under two headings, and I will adopt the same approach. First, there is the submission of a lack of consent to the post-mortem examination; and secondly, the issue of the retention of organs.

13. Post-mortem
On the issue of the lack of consent for the post-mortem, the High Court held:-
“Insofar as the [hospital] carried out the post-mortem examination without the consent of the plaintiffs, which for the purpose of this application I must accept to be a fact, both of the plaintiffs conceded in evidence that they were aware that a post-mortem had been carried out by the [hospital] within a very short time of the event and both expressed shock and anger at learning of that fact. Yet, although the plaintiffs instructed their solicitor with regard to other matters relating to the death of their stillborn child, no complaint was made on their behalf with regard to the alleged unauthorised autopsy carried out by the [hospital] and no proceedings on that behalf were taken by the plaintiffs until the proceedings herein were instituted on 26th July in the year 2002.
Given that the plaintiffs, on their own admission, not only were aware of the fact that the alleged unauthorised post-mortem had taken place, but that they were angered by that fact as far back as May, 1988 and yet made no claim on that behalf until July, 2002, it follows that, on the face of it the plaintiffs’ complaint with regard to carrying out that post-mortem examination without their consent would appear to be statute barred.
However, in the circumstance that there was evidence on behalf of the plaintiff, evidence which for the purpose of this application I must accept as the truth, that a nurse in Holles Street Hospital told Mr. Devlin that, in the case of a stillbirth, it was the standard practice of the hospital to carry out a post-mortem examination, although admittedly that was said after the post-mortem examination on Laura Devlin had taken place. It was submitted by Mr. McCartan on behalf of the plaintiffs that Mr. Devlin was thereby induced into believing that he would have had no choice as to whether or not a post-mortem examination should be carried out and, therefore, the plaintiffs did not know that they had been wronged insofar as the carrying out of the post-mortem was concerned until these proceedings commenced.
Accordingly, it was submitted that the complaint with regard to the alleged unauthorised post-mortem was not statute barred. I cannot accept that. If it is a fact, which I accept for the purpose of this application that it is, that a post-mortem examination was carried out without the plaintiffs’ consent there is no doubt but that they were aware of the fact shortly afterwards and equally there is no doubt that they knew that they had been wronged because they were angry. I have no doubt but that they told their solicitor all about what had happened.
Accordingly, I am not persuaded that there was any justification for the failure to institute proceedings in that behalf within the appropriate statutory time limit. I do not accept that what the nurse said to Mr. Devlin with regard to the standard practice of carrying out a post-mortem on a stillborn could or did have the effect of preventing the statute from running against the plaintiffs.
It follows, in my view, that all complaints by the plaintiffs arising out of the failure of the [hospital] to obtain their consent to a post-mortem examination are indeed statute barred.”
The High Court found, and carefully analysed, the relevant facts on this issue in the above judgment. I am satisfied that no error of the High Court has been established. Accordingly, I would affirm this aspect of the judgment.

14. Retention of Organs
The High Court considered also whether or not the plaintiffs’ claim as to the wrongful retention of organs is statute barred. The learned High Court judge accepted, as he was bound to do for the purpose of the direction being sought, that the plaintiffs were not aware of the fact that the organs had been retained until they received the letter from Dr Keane of 24th March, 2000.

15. The hospital submitted that the plaintiffs had constructive knowledge of that fact pursuant to the law in s.2(2)(b) of the Statute of Limitations (Amendment)Act, 1991. Section 2(2)(b) provides:
“For the purpose of this Section a person’s knowledge includes knowledge which he might reasonably have expected to acquire from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.”

16. On this issue the High Court held as follows:-
“In that regard, Dr. Tony Barson, a consultant pathologist who gave evidence on behalf of the plaintiff, said that in the month of August, 1991 he had seen the autopsy report of 31st May 1988, on the late Laura Devlin which had been prepared by Dr. Kelehan; a report with regard to that post-mortem which he, Dr. Kelehan, had carried out. It was clear from that report that, in the course of that post-mortem examination, organs had been taken from the deceased.
In that regard, while Dr. Barson appeared to say that he conveyed that fact to the plaintiffs’ then solicitor Mr. Lambe, it transpired that he thought that it was evident from the autopsy report that that is what had happened. That is, that the organs had been removed. The fact of the matter was that, in his report to the plaintiffs’ solicitor, he never mentioned that organs had been removed in the course of the post-mortem examination. He himself did not address the subject because it was not something to which he had been asked to address.
Accordingly, while Dr. Barson himself may well have known that organs had been retained, as he appears to have kept this knowledge to himself because at the time he did not think it relevant, I do not think that that knowledge can be imputed to the plaintiffs by virtue of the provisions of Section 2(2)(b) of the 1991 Act because I do not think that, at that time, it would have been reasonable for the plaintiffs to have sought advice from Dr. Barson in that regard.
With regard to Mr. Meenan’s submission that, had the plaintiffs pursued a claim against the [hospital] for carrying out the post-mortem examination, as they allege, without their consent, they would inevitably have discovered that organs had been retained by the [hospital] and therefore as the claim with regard to carrying out the post-mortem without consent is statute barred so also is the claim with regard to the retention of the organs. I do not think that that follows. I would agree that, had the plaintiffs pursued a claim with regard to carrying out the post-mortem examination without consent in 1988, it is probable that they would have then learned about the retention of organs, but they were under no obligation to pursue such a claim at that time and I do not accept that, because they failed to pursue such a claim and allowed it to become statute barred, as I believe it is, thereby depriving themselves of the opportunity to find out that the organs had been retained, that by the same default they also allowed the claim in respect of the retention of organs to become statute barred.

Accordingly, I reject the submission that the plaintiffs’ claims in respect of the retention of organs are statute barred.”

17. I am not persuaded there was any error by the learned High Court judge in his decision on this aspect of the case. Consequently, I would adopt and affirm this finding.

18. Recoverable Loss?
The next issue to be considered is whether there is a recoverable loss on foot of the retention of the organs. As to the cause of action, the High Court held:-
“With regard to the submission that the plaintiff had not identified a recoverable loss is concerned; as I understand the submission, because there was uncontradicted evidence from Dr. Barson and also from Dr. Henry that, in the 1980s, it was an accepted practice that where there was consent to the carrying out of a post-mortem it was implicit that the pathologist had permission to remove and retain organs; it follows that, had the plaintiffs’ consent to the post-mortem in this case been obtained, the position of Mr. and Ms. Devlin would be no different than it actually was. That is, that they would have learnt in the year 2000 that their baby’s organs had been retained with all the consequences that that knowledge involved.

Accordingly, it was submitted by Mr. Meenan that as there would have been no duty on the defendants in 1988 to advise the plaintiffs that organs would be removed in the course of a post-mortem to which they had consented, the fact that they did not consent to that post-mortem, which at present I am obliged to accept, made no difference whatsoever, because with or without consent to the post-mortem they would not have learnt until the year 2000 that organs had been retained. Even if there had been consent to the post-mortem, the defendants were under no duty to advise the plaintiffs that organs would be retained at the post-mortem.

In the absence of such a duty there could be no negligence on the part of the defendants which gave rise to a liability in damages.

However, whatever may have been the practice where consent to a post-mortem was given in the 1980s, I heard no evidence to suggest that there was any practice when a post-mortem was carried out without the consent of the next of kin. On the other hand, it was agreed that consent of the parties to the post-mortem of a stillborn should be obtained before the post-mortem is carried out. I am obliged to accept for the purpose of this application that this consent had not been forthcoming.

Therefore, I must conclude that the [hospital] was not entitled to carry out the post-mortem and it follows, as night follows day, that if they were not so entitled that they were equally not entitled to remove and retain organs. In this regard, the fact that the plaintiffs’ claim against the [hospital] arising from them performing the post-mortem without consent is statute barred does not, in my view, alter the fact that the defendants without consent had no right to carry out the post-mortem examination and to remove and retain organs.

In the absence of such a right, it seems to me that the [hospital] owed to the plaintiffs a duty not to interfere with the remains of the deceased. In my view, it is reasonably foreseeable that, had they done so, as they did, it was probable that the plaintiffs would suffer distress on that account.

Accordingly, if it is a fact that the [hospital] carried out a post-mortem examination on the deceased without the consent of the plaintiffs, I do not accept that the plaintiffs have not established a cause of action.”

Thus, the High Court concluded that it did not accept that the plaintiffs had not established a cause of action.

19. I endorse the analysis of the learned High Court judge. The High Court referred to the accepted practice of the 1980s as to the situation when there had been consent to the post-mortem: that it was implicit that the pathologist had permission to remove or retain organs. This practice, and implicit acceptance, stemmed from Victorian times. Probably with the best of motives parents were not “troubled” with the grim reality of a post-mortem and the need to retain organs and samples of tissue. This practice was exercised with a complete lack of understanding as to the rights of parents in relation to their children, and the retention of organs indefinitely and without consultation.

The position of parents, their rights, and family rights, and the dignity of the child, are now acknowledged. However, this case stems from a time when a paternalistic attitude to parents was endemic in hospitals. In this case the parents did not consent to the removal of their child’s organs at post-mortem, and the court is required to consider the consequences.

20. Nervous Shock
‘Nervous shock’ is a legal term relevant to this case. In Kelly v Hennessy [1995] 3 IR 253 at p. 269 I stated:-
“‘Nervous shock’ is a legal term used to connote a mental as opposed to physical injury to a person. It has been accepted in Irish law that such an injury can be the subject of damages.”

It is the plaintiff’s submission that she suffered nervous shock, or that the law as to nervous shock should be extended to cover her situation. The hospital has submitted that the circumstances in which damages for nervous shock are recoverable do not arise in this case.

21. The relevant facts are that the plaintiff did not learn of the fact that the organs of her baby had been retained until she received a letter dated 24th November, 2000 from Dr Declan Keane, then Master of the hospital. On learning that the organs of her deceased daughter had been retained by the hospital the plaintiff, Bridget Devlin, suffered shock and post traumatic stress, a psychiatric illness.

22. The learned High Court judge considered the common law. He referred
to Kelly v. Hennessy [1995] 3 IR 253, and to the judgment of Hamilton C.J., which set out circumstances under which damages for nervous shock could be recovered. Hamilton C.J., with whom Egan J. agreed, held that in order to recover damages for nervous shock a plaintiff must establish:-
(a) that he or she actually suffered a recognisable psychiatric illness;
(b) that such illness was shock induced;
(c) that the nervous shock was caused by the defendant’s act or omission;
(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;
(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.
The High Court found that ground (a) above was met; that the first named plaintiff suffered a post-traumatic stress, which is a psychiatric illness. Ground (b) was also found to have been met, in that the psychiatric illness was induced by the shock of learning that the organs of her child had been retained. The High Court accepted that ground (c) had been met. As to ground (e) the learned High Court judge was of the opinion that the condition was satisfied.

However, the High Court held that the fourth condition, (d), as set down by Hamilton C.J. had not been met. That condition requires that the nervous shock, sustained by the first named plaintiff, must have been by reason of actual or physical injury to the plaintiff or to a person other than the plaintiff. The High Court pointed out that there was no evidence that the first named plaintiff suffered any physical injury or that any other person suffered a physical injury. Thus the High Court concluded that condition (d) was not satisfied and that therefore the plaintiff was not entitled to recover damages.

23. Counsel for the plaintiffs had submitted in the High Court that the facts in Hennessy were different and that the High Court should have regard to that. The learned High Court judge pointed out that the facts in Fletcher v. The Commissioners of Public Works [2003] 2 ILRM 94 were different also but that this Court found favour with Hennessy. Consequently, the learned High Court judge held that, while most of the conditions set out by Hamilton C.J. were met,
“… it seems to me that the fourth condition laid down by Hamilton C.J. has not been satisfied in this case.”

The High Court held that all the circumstances necessary to establish in order to succeed in an action for damages for nervous shock had not been established by the plaintiffs, and the plaintiffs’ claims were dismissed.

24. Issue
The core issue in this appeal is a matter of law. Did the High Court err in holding that in order to recover damages for ‘nervous shock’ sustained by the first named plaintiff it was necessary that there be actual or apprehended physical injury to the plaintiff or to a person other than the plaintiff? In essence, the query is whether condition (d) as set out by Hamilton C.J. is a requirement of law.

25. The High Court was of the view that Fletcher v. The Commissioners of Public Works [2003] 2 I.L.R.M. p.94 endorsed and supported the analysis of Hamilton C.J. in Hennessy.

26. Well Established Common Law
Damages for ‘nervous shock’ have been recoverable in an Irish court for over 100 years. The early cases related to fright in an accident situation, in which the plaintiff was not physically injured but where he/she feared for the injury of others. Byrne v. Great Southern and Western Railway Company of Ireland (1884) cited at 26 L.R. (Ir)428, and Bell v. Great Northern Railway Company of Ireland (1890) 26 L.R. (Ir) 428 are referred to in McMahon and Binchy, Law of Torts, 3rd ed., (Butterworths 2000) chapter 17.

27. In Byrne v. Southern and Western Railway Company, Court of Appeal, 1884 (discussed in Bell v. GN Railway Company (1890) 26 L.R. (Ir) 428 at p.p.441 to 442) the plaintiff was superintendent of the telegraph office at Limerick Junction. His office was a small building at the end of one of the railway sidings, between it and the office there was a buffer. One day, because the railway points were negligently left open, a train entered the siding and broke down the buffer and the wall of the telegraph office. The plaintiff heard the noise and saw the wall falling, and “he sustained nervous shock which resulted in certain injuries to his health”. The plaintiff received an award of damages. He described that he got no physical injury but that he got a great fright and shock, and that apart from the noise of the crash, he heard the shouts of the clerks saying they were killed.

In Bell the plaintiff herself was in a train when part of it became unhooked and reversed with speed down a hill. The plaintiff suffered severe shock. Her mental health was seriously affected and there was medical evidence that her condition might involve paralysis.

Thus the early cases recognised ‘nervous shock’, an archaic term covering psychiatric illness. These early cases related to situations where the plaintiff, or other persons who were close to the plaintiff, were in danger of physical injury or had been physically injured.
In Bell Palles CB stated:-
“… as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence causes fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be ‘a consequence which, in the ordinary course of things would flow from the’ negligence unless such injury ‘accompany such negligence in point of time’.”

These words could be construed in a broad fashion. Thus, if negligence caused fright, and fright leads to a psychiatric illness, the nexus may be established. However, the words were spoken in a context and that context is very important. The context was an accident – rail or car – and of witnesses to that event or its aftermath. Thus the negligence arises in what may be called ‘aftermath’ cases, where witnesses to an accident, who themselves are not injured, may be caught up in the aftermath of the accident and injured.

28. In Mullaly v. Bus Eireann and Anor [1992] ILRM 722 the plaintiff was exposed to traumatic scenes after a road traffic accident which caused her post traumatic stress disorder. The plaintiff’s husband, together with three of their sons, set off by CIE bus from Limerick to go to watch a soccer match in Midleton. The plaintiff spent the day with her brother and mother in Thurles. She received a message that there had been a serious bus accident involving her family. The bus had overturned, resulting in three deaths and injuries to 49 passengers. The plaintiff went to the Regional Hospital in Limerick where two of her sons were being treated. While there she witnessed some terrifying and appalling scenes. She then continued to Barrington’s Hospital where her husband and a son were hospitalised. Her husband and two of her sons were very seriously injured. Within a week or so it became clear that two of her sons and her husband would recover. One of her sons was very ill for months and had to undergo several operations. The plaintiff spent a great deal of time with him. Ultimately, eight months after the accident, he died. The plaintiff suffered post traumatic stress disorder. It was held that post traumatic stress disorder was covered by the term ‘nervous shock’, that the plaintiff suffered the nervous shock as a consequence of the road traffic accident and its aftermath in the hospitals; that there was a legal nexus between the actions of the defendant causing the accident and its resultant aftermath and her injuries (being the psychiatric illness), and that the plaintiff was entitled to damages. Thus this was a classic ‘aftermath’ case.

29. Kelly v. Hennessy [1995] 3 IR 253 was also an “aftermath” case. In that case the plaintiff claimed, successfully, damages for nervous shock which was caused by the negligence of the defendant in the driving of a motor vehicle on 14th April, 1987, which was involved in a collision as a result of which the plaintiff’s husband and two daughters suffered severe personal injuries. The plaintiff was not involved in the collision but shortly after 9.30 p.m. on the evening was informed by her niece of the fact of the collision and that her husband and two daughters were seriously injured. The trial judge found that the plaintiff went into shock, and that while being brought to hospital to see her husband and two daughters she became ill. She saw her family in hospital. She was traumatised. The post traumatic stress disorder continued up to 1992 and she continued to suffer a depression. On these facts Hamilton C.J. set out five conditions, see para. 22 above, which he applied, and found the plaintiff entitled to recover damages against the defendant for nervous shock.

In that case it had been submitted on behalf of the defendant that the cause was not the immediate traumatisation of the plaintiff but that it occurred over the months after the accident and that the plaintiff was outside the contemplation of the defendant, that Mulally v Bus Eireann was distinguishable. These submissions were not successful, but they illustrate the fact that the common law applying liability in negligence from nervous shock to those exposed to the aftermath of an accident is tightly drawn.

30. Fletcher v. Commissioners of Public Works [2003] 2 ILRM 94 was a case where the facts were of a different nature. It was heard at the same time as four other appeals. As Keane C.J. pointed out, all five cases arose out of what was admitted to be the failure of the defendants, as employers, to take proper precautions for the safety, health and welfare of the plaintiffs, their employees. As a result of that failure, as was conceded by the defendants, the plaintiffs were exposed to significant quantities of asbestos dust in the course of their employment and, as a further consequence, were exposed to the risk of contracting in later life the disease of mesothelioma which, when contracted, is potentially fatal. There was evidence in each case from psychiatrists that the plaintiffs, as a result of their having been informed of that risk, suffered from a recognisable psychiatric disorder. In each case the High Court found that the defendants were liable to pay damages in respect of the psychiatric illness – which decisions were appealed to this Court. In giving judgment Keane C.J. referred to Bell and Byrne, and pointed out that damages were not recoverable for grief or sorrow alone, but nervous shock, even when there was no physical injury or even fear of such injury, was compensatable when caused by the negligence of the defendant.

Keane C.J. stated at p. 105:-
“The circumstances in which damages for nervous shock are recoverable were set out as follows by Hamilton CJ in Kelly –v- Hennessy: [1995] 3 I.R. 263 …:

1. The plaintiff must establish that he or she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness’ and a plaintiff must prove that he or she suffered a recognisable psychiatric illness if he or she is to recover damages for ‘nervous shock’.
2. A plaintiff must establish that his or her reasonable psychiatric illness was ‘shock induced’ …
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission …
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff …
5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.”

Keane C.J. then addressed the issue of whether Fletcher was a nervous shock case. He stated at p.110:-
“The central issue in this case, accordingly, is not whether the defendants ought to have foreseen that the plaintiff would suffer psychiatric injury. It is whether the claim by the plaintiff comes within the category of ‘nervous shock’ cases in which the courts have awarded damages for such psychiatric injury, even in the absence of any physical injury, and, if not, whether the plaintiff was nonetheless entitled to recover damages in respect of the reasonably foreseeable psychiatric illness which was the consequence of his having been negligently exposed to the risk of contracting mesothelioma. That further inquiry is necessary because of the care with which the courts have approached claims for psychiatric illness, unaccompanied by physical injury, arising out of alleged negligence: the reasons for that cautious approach are considered at a later point in this judgment.”

Keane C.J. stated that the circumstances which, when they give rise to a specific psychiatric disorder unaccompanied by physical injury that was the reasonably foreseeable consequence of a breach of duty of the defendant, may lead to a finding of liability, were described by Hamilton C.J. in Kelly v Hennessy, in other words – provided the conditions stated were met.

31. The central issue in this case is whether the claim of the plaintiff comes within the category of ‘nervous shock’ cases in which the courts have awarded damages for psychiatric injury, even in the absence of physical injury, and, if not, whether the plaintiff is nonetheless entitled to recover damages.

32. Grief
Grief and sorrow are not a basis upon which to recover damages. There has to be a proven psychiatric illness. That exists in this case. It is accepted for these proceedings that the first named plaintiff has suffered a psychiatric illness.

33. Event
The common law has evolved by reference to the occurrence of a specific event – a railway or car accident. In Alcock & Ors v. Chief Constable of South Yorkshire Police [1992] 1 AC 310 Lord Ackmer said at p.401:-
“‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”

This statement reflects the common law in Ireland where the ‘aftermath’ cases either relate to the event, or the situation in its immediate aftermath.
34. Current Law
It is clear that the common law was stated by Hamilton C.J. in Kelly v Hennessy, with five conditions, subsequently endorsed by Keane C.J. in Fletcher. On this law the plaintiff is not entitled to succeed because the fourth condition is not met. The learned High Court judge was correct in his identification and application of the law. On this basis the plaintiff is not entitled to succeed and the appeals would be dismissed.

35. Policy
However, counsel for the plaintiff pressed the Court, if it found that the current law did not apply, to extend it on general principles of the law of negligence.

This is a matter of significant general importance. Such a decision could have serious repercussions. In considering the extension of the common law liability for ‘nervous shock’, policy issues arise.

In Fletcher the issue as to whether the law should be extended also arose for consideration. This Court refused to do so. Keane C.J. stated that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by those plaintiffs of damages for psychiatric injury resulting from a fear of contracting a disease because of their negligent exposure to health risks by their employers, where the risk was characterised by their medical advisers as very remote.

Thus there are limits in law to liability for nervous shock. The common law provides illustrations of successful cases where damages for nervous shock were awarded. However, those cases relate to persons perceiving an accident or its immediate aftermath.

This is a tragic case. In essence it arises because of the receipt of bad and sad news in a letter from the hospital. It is a hard case. The parents are entitled to deepest sympathy for their loss. However, the law as it stands does not entitle them to damages and I would not extend the law. Any such development would give rise to uncertainty in the law of liability generally and to potentially unforeseeable repercussions. Consequently I would dismiss this aspect of the appeal also.

36. Conclusion
For the reasons given I would dismiss the appeal and affirm the order of the High Court dismissing the action.

37. This judgment is a decision of law. It should not be read as an endorsement of the practice, now abandoned, of the hospital.

Post-mortems are part of the continuing care of a patient. They inform of the cause of death. This may be of importance to the family at the time and in the future, to any other children they may have, and to the community in general. Post-mortems are also important in assisting research, education, and training of the nursing and medical professions.

The hospital’s practice in relation to post-mortems of children in the 1980s was rooted in times long past. Probably with the best of motives, the policies were paternalistic and inappropriate. While it may have been thought kind not to trouble or disturb the parents, the decision to be made as to a post-mortem and their child’s body is theirs to make. Post-mortems will usually involve the taking of organs, so that identification of the cause of death and the nature of the illness are determined. This information may have been considered too stressful to be given to parents. This was a misunderstanding, by the medical profession, of the rights of the parents.

While parents may choose not to receive full information at the time, they must be given that choice when they are requested to authorise a post-mortem of a child. In the tragic and stressful situation of the death of a child parents may not wish to receive all the information at that time, but they are entitled to receive it specifically in relation to their child then, or later, or to receive it generally from printed information.

In the midst of the dreadful tragedy that is a child’s death, parents and the community should be fully informed of the benefits which flow from the authorisation by parents to permit a post-mortem.

Martin v Irish Express Cargo Ltd

[2007] I.E.H.C. 224

judgment of Ms. Justice Dunne delivered on the 6th day of July 2007
The defendant herein by notice of motion dated the 14th February, 2005 seeks an order dismissing the plaintiff’s proceedings herein pursuant to the provisions of s. 11(1)(2) of the Limitation of Actions Act, 1957 as amended by s. 3(1)(2) of the Statute to Limitations Amendment Act, 1991 or alternatively an order dismissing the proceedings by reason of the inordinate and/or inexcusable delay by the plaintiff in prosecuting the said proceedings and/or that it is in the interest of justice to dismiss the said proceedings.
Background
The plaintiff sought damages for personal injuries, loss and damage, occasioned by reason of the negligence and breach of duty including statutory duty on the part of the defendant, its servants and agents by plenary summons issued on the 19th June, 2002. A statement of claim was delivered on the 18th March, 2003. It appears from the statement of claim that the plaintiff was employed as a general operative by the defendant at its premises, which premises were a factory within the meaning of the provisions of the Safety in Industry Acts, 1955/1980. It is alleged that on or about the 26th/27th April, 1993 the plaintiff in the course of his employment with the defendant was assisting a driver in the loading and unloading of goods at an industrial estate at Jamestown Road, Finglas, Co. Dublin, and that in the course of lifting a machine over a small wall in order to gain access to the factory unit, he suffered injury to his back. It was expressly pleaded at para. 5 of the statement of claim as follows:-
“The plaintiff was not aware of the significance of the injuries sustained by him in the course of the aforesaid incident until he became aware of a diagnosis of a central disc prolapse in L5/S1 area of his back in or about March 2001 in the course of other proceedings against the defendant arising out to an accident which occurred in 1995.”
The defence expressly pleads as follows:-
“1. The plaintiff’s claim herein (if any, which is denied) is statute barred pursuant to the provisions of the Statute of Limitations Act 1957/2000.
2. Further or in the alternative and without prejudice to the foregoing the defendant herein says that the plaintiff has been guilty of prolonged, unconscionable, inordinate and/or inexcusable delay in the commencement and/or prosecution of this action and/or in seeking the relief claimed herein and further has thereby caused the defendant prejudice in the defence of this action and in the circumstances the plaintiff is not entitled to recover any damages for the reliefs sought. The claim herein should be dismissed and is an abuse of process.”
The balance of the defence is a traverse of the plaintiff’s claim and an allegation in respect to negligence and contributory negligence on the part of the plaintiff.
A number of affidavits were sworn in respect of this application. The affidavit of Mary Condell sworn herein on the 21st December, 2005 grounded the application on behalf of the defendant. She is a solicitor in the firm of Porter Morris & Co. who act on behalf of the defendant herein. She pointed out that the proceedings herein were commenced some nine years after the date of the alleged incident. She noted that the plaintiff had commenced other proceedings against the defendant on the 26th January, 1998 in which the plaintiff claimed damages for personal injuries suffered as a result of a different accident which occurred on the 1st June, 1995. Those proceedings were compromised for the sum of £100,000 in May, 2001 together with costs. She noted that a number of medical reports and correspondence which are relevant to the injuries for which the plaintiff now claims damages were obtained by the firm of Corrigan & Corrigan, Solicitors, who then represented the defendant in those proceedings.
It would be useful to refer to passages from the various medical reports and letters from Doctors prepared on behalf of the plaintiff herein which were exhibited in the affidavit of Mary Condell. Mr. Padraic O’Neill, Consultant Neuro-Surgeon wrote to Dr. F.W. Murray by letter dated 26th January, 1995 as follows:-
“For the past eighteen months he has also complained of left sided low back pain. This initially occurred after he had been lifting a heavy machine. He says that it has been more or less constant since then, but is exacerbated by standing.”
In a letter dated the 5th July, 1995 Geraldine O’Leary, a Senior Registrar at the Pain Management Clinic, Mater Hospital, Dublin and addressed to Mr. O’Neill, Consultant Neuro-Surgeon stated of the plaintiff that he:-
“Had an injury at work two years ago and has been complaining of low back pain since that time. He is a truck driver by trade and finds that driving for long periods of time aggravates his symptoms severely. Since last reviewed he has been using a TENS machine and has found that this has helped significantly. However he complains of a persistent soreness across his lower back.”
A medical legal report was prepared by a Dr. John P. Stack, Consultant Radiologist dated the 21st March, 2001 which related to a CT Scan of the plaintiff’s lower three lumbar discs on the 8th February, 1995. The CT Study disclosed a minor posterior disc protrusion at L5/S1. The report concluded:-
“The cross sectional imaging finding indicate the presence of a small posterior disc protrusion, present since February, 1995 which appears to have almost resolved by November, 1997.”
In the other personal injury proceedings issued by the plaintiff as a result of the accident that occurred on the 1st June, 1995, the particulars of personal injury contained in the statement of claim referred to injuries to the right knee and back of the plaintiff. It was further pleaded that an MRI Scan revealed a disc protrusion at the L5/S1 level.
Finally, Mary Condell refers to replies to particulars dated the 10th February, 1999 in which it was disclosed that the plaintiff had sustained a prior injury arising out of an accident which occurred at work in or around May 1993 and that as a result of the injury, the plaintiff had injured his back. It was also indicated in the replies to the notice for particulars that the plaintiff had made a full recovery from the injuries sustained in that accident and that he had received no further treatment since February 1995. Ms. Condell makes the point that it is clear that the plaintiff was aware that he had sustained a significant injury as a result of the accident alleged to have occurred in April 1993, many years prior to the date of issue of these proceedings and more significantly that he was aware of that at the very least as early as 26th January, 1995 when Mr. Padraic O’Neill dealt with the plaintiff’s complaints in the letter addressed to Dr. F.W. Murray.
In a replying affidavit the plaintiff noted Dr. Stack’s report of March, 2001 which indicated a “small disc protrusion at L5/S1” but he deposed to the fact that he only became aware of the contents of that report when he attended a settlement meeting on the 16th May, 2001 in relation to the 1995 accident. This apparently had come to light in a review carried out by Professor Max Ryan who noted the same. He referred to a report of Professor Ryan dated the 1st February, 2001 in which Professor Ryan had examined CT Scans of the plaintiff’s lower lumbar spine made on the 8th February, 1995, 7th July, 1997 and an MRI Scan on the 12th November, 1997. The plaintiff accepted that the examinations showed that the plaintiff‘s disc prolapse pre-dated the accident of the 1st June, 1995.
The plaintiff also referred to a report of Mr. Padraic O’Neill addressed to the plaintiff’s GP on the 15th February, 1995 in which Mr. O’Neill was of the opinion that the CT Scan of the lumbar spine was “essentially unremarkable with again no evidence of disc protrusion or neuro compromise.” A Dr. Breathnach also expressed a view in a medical report dated the 8th February, 1995 in respect of the same CT Scan that it did not identify a disc protrusion. Dr. Breathnach’s report stated:
“The L3/4 and L4/5 disc spaces appear normal. The L5/S1 disc is also normal. No disc protrusion is identified.”
Given the apparent contradictions expressed by the various Doctors and Consultants who had examined the CT Scans, not surprisingly the plaintiff sought further medical advice from Dr. John P. Stack. He confirmed in his report of the 21st March, 2001 previously referred to, that there was a small posterior disc protrusion present since February, 1995. On that basis the plaintiff avers as follows:
“Accordingly, I say and believe that I could not have appreciated the full significance and severity of the earlier injury until March 2001, in that up to that point I had to accept the conclusions of Mr. O’Neill and Dr. Breathnach in relation to the condition of my back, having been referred by my General Practitioner Dr. Fergus Murray to Mr. O’Neill for his opinion after the 1993 accident.”
He went on to comment that:-
“It was my impression at the time that Mr. O’Neill was dismissive of my complaint and did not accept that I had a genuine injury and the same attitude was apparent in a report from Roisin McSullivan to Mr. O’Neill dated the 29th May, 1995 where she stated:
‘On examination I could find absolutely nothing …
I am not terribly impressed about the severity of his symptoms. I wonder is there litigation pending? If so, as you and I well know, that is the only thing that will cure his problem.’”
It is the view of the plaintiff that those opinions were based on the incorrect report from Dr. Breatnach dated the 8th February, 1995 in relation to the plaintiff’s back. In those circumstances the plaintiff deposed that he was in no position to form a genuine assessment as to the significance and severity of the injuries sustained by him in 1993.
The plaintiff accepted that the reference to the disc protrusion at L5/S1 in the pleadings in relation to the later accident was because he assumed that it was due to the 1995 accident. He reiterated that he was unaware of the fact that the disc protrusion in fact related to the 1993 accident as a result of the incorrect report furnished by Dr. Breatnach. He accepted that he had complained of back problems since the accident of 1993, but as a result of the medical advice he had obtained in respect of that injury the extent of his injury was under estimated by his then medical advisors namely Dr. Breatnach, Mr. O’Neill and Dr. McSullivan. Accordingly, it is his contention that he did not become aware of the extent and severity of the 1993 injury until 2001, and had he been in full possession of the facts prior to that date he would have issued proceedings at an earlier stage in respect of the 1993 injury.
Mary Condell swore a replying affidavit on the 31st October, 2006. She made the point that it was clear from the plaintiff’s affidavit that he was aware that he had a significant injury in the immediate aftermath of the accident which is the subject matter of these proceedings. She noted his comments as to the complaints he expressed as to the medical advice that he had received in respect of the symptoms following the 1993 accident and that he reiterated the fact that he did not appreciate the extent and severity of his injury particularly bearing in mind the interpretation placed on the CT Scan and the views expressed by his medical advisors in relation to his complaints, but she went on to note as follows:-
1. “That as of the 26th January, 1995 the plaintiff was complaining of low sided low back pain which had been “more or less constant” since the time of the alleged accident in April, 1993.
2. That the reported left sided low back pain was exacerbated by standing.
3. That as of the 5th July, 1995 the plaintiff was attending the Pain Management Clinic at University College, Dublin and the plaintiff was then complaining of continuing symptoms, including low back pain, which symptoms he complained were aggravated severely by reason of the fact that the plaintiff was a truck driver by trade.
4. That as of the 5th July, 1995 the plaintiff had been using a TENS machine but that, notwithstanding the assistance of same the plaintiff was complaining of persistent soreness across his lower back.
5. That as of the 5th July, 1995 the plaintiff had been advised to see a physiotherapist as soon as possible and the plaintiff was prescribed Diclosenac tablets.
6. That the plaintiff attributed the symptoms referred to above to the alleged accident in 1993 which is the subject matter of the herein proceedings over nine years later.
7. That if the said accident occurred as alleged by the plaintiff then (i) he was aware of same and (ii) was aware of an injury from same.”
She also noted that following that particular accident the plaintiff was on sick leave from work for a week and that this was stated to be by reason of a work related accident.
Finally an affidavit of Deirdre Giblin, the former group head of the Human Resources of the defendant herein, exhibited certain matters in relation to the plaintiff’s personnel records. There were two sick leave certificates dated 23rd January, 1995 and the 30th January, 1995. They were for a total period of two weeks and they recorded that the sick leave related to the accident which is alleged to have occurred in April 1993. The reason for the sick leave certificates was because the plaintiff was required to rest for a week due to neck and back pain. The second certificate dated the 30th January, 1995 was on the basis of a requirement that the plaintiff rest for one week due to “cervical disc”. Finally she exhibited a medical certificate dated the 27th April, 1993 which related to an absence from work for one week by the plaintiff due to an injured back.
The Law
Section 3(1) of the Statute 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.”
Section 2(1) of the Act of 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 person’s date of knowledge (whether he is the person injured or a personal representative or dependant 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 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 this 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.”
Section 2(2) provides:-
“For the purposes of this section, a person’s 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 which it is reasonable for him to seek.”
Submissions
In the course of submissions, reference was made to the decision in the case of Hegarty v. O’Loughran [1991] I.R. 149 in which it was held by the Supreme Court that the cause of action accrued at the time when provable personal injury capable of attracting compensation occurred to the plaintiff which was the completion of the tort alleged to have been committed against her. It was further held that the tort of negligence was not complete until damage had been caused by the defendant’s wrongful act.
Reliance was also placed on the decision in the case of Bolger v. O’Brien [1999] 2 IR 431 in which the Supreme Court considered the meaning of the term “significant injury” as used in the context of s.2 of the 1991 Act. In the course of his judgment at p. 440, Hamilton C.J. commented
“The fact that the plaintiff did not realise the full significance of the effect of such injury is not of relevance once it is established that he knew that the injury was significant.”
Finally reference was made to the decision in Whitely v. Minister for Defence [1998] 4 IR 442. The statement of the law contained in the judgment of Quirke J. in that decision at p. 453 was accepted as setting forth the correct test to be applied in ascertaining when the plaintiff first had knowledge of the fact that the injury sustained by him as a result of the accident “was significant”. See p. 438 of the judgment of Hamilton C.J. where it was noted:-
“That the test was primarily a subjective test but included an objective element as, by virtue of s. 2(2) of the Act of 1991, for the purposes of this section a person’s 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 which it is reasonable for him to seek.”
Counsel for the defendant and the plaintiff were both in agreement that the only issue in this case was whether or not the plaintiff knew that the injury suffered by him in 1993 was a significant injury. On behalf of the defendants it was submitted that having regard to the contents of the various medical reports that the plaintiff was aware of the fact that he had a significant injury as of the 26th January, 1995 and emphasis was placed on the affidavit of Deirdre Giblin in relation to the sick leave certificates obtained by the plaintiff prior to the second accident. Reference was also made to the fact that in the reply to particulars furnished in the proceedings related to the second accident, the plaintiff had referred to the accident the subject of these proceedings; that he had injured his back and that MRI and CAT Scans were performed in relation to that injury. It was also pointed out that an accident report form had been completed in respect of the earlier accident for and on behalf of the defendant. Finally it was noted that the plaintiff had stated in the reply to particulars that he had made a full recovery from the injuries sustained in that accident and had received no further treatment since February, 1995 in respect of that accident.
Counsel on behalf of the plaintiff emphasised that in considering whether or not the plaintiff knew that the injury suffered was a significant injury it had to be borne in mind that the plaintiff had been wrongly advised by one of his Doctor’s namely, Dr. Breatnach, as to the issue of a disc protrusion and that to some extent this had coloured the views of his other medical advisors. It was submitted that as the plaintiff had been clearly misled as to the extent of his injury, that if it could be said that he did not know the extent of the injury he could not know the significance of the injury. Although it was accepted that the injury was a significant injury, counsel emphasised that the plaintiff was not in a position to know the full significance of his back injury. He was aware that he had a back injury but it was clearly more serious than simply a soft tissue injury. Counsel contrasted the facts of the Whitely and Bolger cases referred to above, in which the plaintiffs in those cases only appreciated the significance of their injury when they attended their medical practitioners who informed them of their injuries. In the present case the plaintiff had attended a number of medical practitioners and one of the reports wrongly advised that no disc protrusion was disclosed. Accordingly it was submitted that this is a case in which the plaintiff had sought the appropriate medical advice and was not made aware of the full significance of his injury.
Decision
It is clear from the facts of this case that the plaintiff suffered an injury to his back in the incident that occurred in April 1993. It is clear that he was immediately aware of the fact that he suffered such an injury. In the immediate aftermath he required a week’s sick leave. Subsequently, as is clear from the various medical reports, he complained consistently for a period of time of low back pain. That led to circumstances where he was required to use a TENS machine over a period of time to assist in alleviating the symptoms arising from that injury. Nonetheless he continued to complain of persistent soreness. He completed an accident report form for the defendant in respect of his injuries. It was fairly conceded by counsel on his behalf that he had suffered a significant injury, but counsel argued as indicated above that the plaintiff did not know the full significance of the injury by virtue of the undoubted error in relation to the findings of the scan in which it had been indicated that no disc protrusion was disclosed. In all the circumstances of this case, it seems to me that the evidence has clearly established that the plaintiff suffered a significant injury. He knew he injured his back when lifting heavy machinery. It is undoubtedly the case that he had suffered significant injury and that he was aware of this because he attended a number of Doctors including a Consultant Neuro-Surgeon and a Senior Registrar in the Pain Management Clinic at the Mater Hospital. It is also clear that he was prescribed medication, had been given a TENS machine and was prescribed physiotherapy. Additionally as referred to above there were a number of periods on which he was obliged to take sick leave. I think it is helpful to repeat the words of Hamilton C.J. in the Bolger case referred to above where he stated at p. 439 as follows:-
“The learned trial judge had held that the full significance of the plaintiff’s injuries were not brought home to him and that he did not understand them until in or about October, 1992 but that is not the test.
The test is when he knew or ought reasonably have known ‘from facts observable or ascertainable by him’ that he had suffered a significant injury.
The learned trial judge does not in the course of her judgment appear to have had adequate regard to the evidence of the injuries sustained by the plaintiff and his knowledge thereof at the time of and immediately subsequent to the date thereof.
By any standards, subjective or objective, the plaintiff had suffered a significant injury and he must have been so aware certainly from the time of his return to work and his realisation that he was not fit for manual work.
The fact that the plaintiff did not realise the full significance of the effect of such injury is not of relevance once it is established that he knew that the injury was significant.”
Even accepting as I do that there was a lack of clarity as to the nature of the plaintiff’s injury in that the report of Dr. Breatnach as to disc protrusion was wrong, it cannot be gainsaid in my view that the plaintiff was aware of the fact that he suffered a sugnificant injury. He did consult a number of Doctors in relation to his injuries. It may well be the case that he was not aware of the fact that a disc protrusion had occurred until much later but as is manifestly clear from the decision of Hamilton C.J. in the Bolger case that fact that the plaintiff did not realise the full extent of his injury is irrelevant once it is clear that the plaintiff was aware that he had suffered a significant injury.
In the circumstances, I must conclude that the defendant is entitled to the relief claimed herein.

Murtagh v Minister for Defence

[2008] I.E.H.C. 292

JUDGMENT delivered by Mr. Justice Declan Budd on the 22nd day of July, 2008
Background

The plaintiff was a soldier in the Defence Forces. He was born on 22nd October, 1965. He was aged three when his mother died in an accident and he was brought up by his maternal grandparents in Ballymote, Co. Sligo. Dr. Mary Scully, a local GP, gave evidence about his upbringing and knowing him while he was being brought up by his grandparents for whom she had a high regard. He and his wife Veronica were only eighteen when they married on 16th February, 1984, and later that year in November 1984 at the age of nineteen he joined the Irish Defence Forces and was an employee of the army until he was discharged on 1st March, 1998, as being medically unfit. They started their married life in a local authority house in Sligo town. In May 1986 they had their second child and the plaintiff was posted to Athlone and then Mullingar in preparation for duty in the Lebanon. They wished to move and to buy their own house in Ballymote and in order to fund this purchase, the plaintiff volunteered to serve in the Lebanon. On 11th June, 1986, he was examined by army doctors, being his annual medical, and his fitness rating since his enlistment examination was confirmed as medical category A1. Soldiers going abroad on overseas service have to have further medical examination and he underwent this on 4th September, 1986. This is recorded in his personal medical record book known as an LA30. His fitness category was in the top grade, being A1 which he had previously been given on enlistment in 1984 and this was again confirmed in June 1986. On 22nd October, 1986, on his 21st birthday, he flew out with the 60th battalion to the Lebanon for a six month tour of duty, being his first and only tour abroad. Part of his training was as a mortar man in a weapons company. An element of this training involved his having been subjected to weapons fire, where troops are deployed in trenches and then weapons are fired over them to accustom them to being under gunfire and to give them some “battle inoculation”.

Lebanon at that time had an atmosphere of hostility in that there were several different factions including the Israeli Defence Forces (“IDF”), the South Lebanese Army (“SLA”), Shia Moslems and Hezbollah (armed elements). On 21st August, 1986, almost two months before the arrival of the 60th Battalion, Lieutenant Frank Murphy had been the first Irish soldier killed during UNIFIL service in the Lebanon. This was while he was based at Camp Shamrock. Within days of their arrival at Camp Shamrock the battalion was subjected to hostile fire on a frequent and regular basis. The plaintiff became unwell on 29th November, 1986, and was admitted to the RAP (Regimental Aid Post), a slight misnomer as it was a battalion hospital, at Tibnin. Lt-Col. Collins was the senior doctor who saw the plaintiff and in the LA30 he noted “query petit mal epilepsy attack on 29/11/1986” on pp. 26 and 27 of the LA30. This notation was followed by a medical sign meaning “secondary to exhaustion”. The plaintiff had complained of a problem at the back of his throat and he was given an injection of diazepam, a form of valium, to calm him down. He was kept in overnight and on 30th November he was allowed to return to duty with the proviso that he was not to be on duty with less than two colleagues. The plaintiff’s case is that the significance of this was that the army doctors had or should have realised that the plaintiff was of vulnerable personality and at risk and not coping with pressures of a post traumatic stress variety. Camp Shamrock was the Irish battalion headquarters near Tibnin village, and there was also Camp Shakra and Camp Charlie. Brashit was a company headquarters for the plaintiff’s weapons platoon.

On 6th December 1986 Private William O’Brien from Athlone was killed by gunfire. The troops were all trained in the use of radio transmitters and on 6th December, 1986, the plaintiff was at a checkpoint post 6-21 and he heard that an Irish soldier had been injured. He had heard firing and then was aware of a UNIFIL helicopter arriving. He realised that this meant a serious or fatal injury requiring an airlift to hospital. The plaintiff naturally was stressed by this event. He had trained with and knew William O’Brien.

On 10th January, 1987, Corporal Dermot McLoughlin was killed by a shrapnel round from an IDF tank. The Corporal was from Co. Sligo, as was the plaintiff. According to several of the other NCOs who gave evidence, Dermot McLoughlin had befriended and been supportive and caring of the plaintiff when on occasions the plaintiff had been stricken by fear. The Corporal had looked after him and restored him with a cup of tea, talk and sympathy. While the plaintiff was not physically present at the post at which either of his colleagues was killed, nevertheless he had been at an outpost which was within hearing of the fatal gunfire and of the tank shell explosion and was aware of these incidents as the outposts have radio contact with the company headquarters and, he was aware of the calls for ambulance and helicopter and then learned of these sudden and unexpected deaths of Irish soldiers well known to him. From all that Victor Murtagh said of Cpl McLoughlin, it was clear that he and his colleagues held Dermot McLoughlin in high esteem and Victor Murtagh particularly was grateful to Corporal McLoughlin for his advice, help and encouragement to him in his times of acute anxiety. I mention this because Cpl. McLoughlin’s widow was called as a witness by counsel for the defendants and an issue was made as to whether Vincent Murtagh had been a friend of the late Dermot McLoughlin at all. This issue is one of several points in conflict which the court needs to resolve. There is one aspect of this which I should emphasise at this stage, which is that the evidence of Victor Murtagh and of the Corporal’s fellow NCOs was all in praise of the conduct of Cpl. McLoughlin and, in particular, of his kindness and consideration and help to Victor Murtagh whom he had comforted in his distress when Victor was upset by close firing or by the ferocious electrical storms of the Lebanon in winter. I will return to the issues which arose which upset Mrs. McLoughlin in the hope that since my assessment of her late husband’s role in the Victor Murtagh saga was all entirely to Dermot McLoughlin’s credit, this may help to alleviate any unresolved grief syndrome in respect of her late husband who was clearly a decent and humane man, ready to help his fellow county man in distress, while serving far from home in the Lebanon beset by hostile factions.

It is common case that the 60th Battalion tour of duty was more than stressful and Lt.-Col. Maurice Collins, the senior medical officer, made this clear and often said that this was “a tough battalion”. Clearly the plaintiff and his colleagues particularly in December, 1986 and January, 1987, came under close firing and threats from the faction fighting between the IDF, SLA (the surrogates of the IDF) and Hezbollah and “Armed Elements”. It is significant that a number of the NCOs commented on how stressful this tour had been and one veteran NCO conceded that on his return that he had taken to the drink to cope with his experiences and memories in the Lebanon that winter and that it had taken him quite some time before he managed to escape from using alcohol as a palliative and regain a normal lifestyle.

It is noteworthy that the plaintiff was examined at the RAP at Tibnin in the episode mentioned above when he was brought in on 29th November, 1986, having become distressed and after losing consciousness. He was examined and then kept in overnight and injected with diazepam as a sedative. On the plaintiff’s Overseas Service Report AF667A the senior medical officer, Lt.-Col. Maurice Collins, wrote on 18th April, 1987, just before the plaintiff returned home, “This man is relatively emotionally immature and came under very severe pressure. He is liable to incapacitating anxiety states in such circumstances and should NOT serve o/seas for three years”. The plaintiff had gone to the Lebanon after several medical examinations at the first of which on his enlistment he had been rated as a medical Cat. A1. In the course of this case it has been suggested on behalf of the defendants that the plaintiff suffered from alcoholism, having been drinking from an early age and as having a susceptibility to alcoholism before ever he volunteered to go to the Lebanon. Counsel for the plaintiff cogently made the point that it was hardly likely that the army would risk having an alcoholic mortar man in the weapons company of the battalion and that it seemed highly improbable that the army would risk having such weapons in the hands of an alcoholic on an overseas tour of duty, when such an addiction would involve danger to his fellow soldiers, and when, indeed, the Irish people take such a great pride in the expected and respected high standards of the Irish peace keeping battalions. The significance of the plaintiff’s treatment and recuperation over two days at the end of November is that Lt.-Col. Collins was clearly aware of the plaintiff’s acute state of anxiety and indeed, as a humane and dutiful medical man caring for his patients, he had gone out, as was his practice, in his jeep and checked out soldiers who came under his care with their platoon or company officers. He would have been aware from his discussions with Capt. McEvoy, the plaintiff’s platoon commander, and with Cpl. Gaffney, and Sgt Gerry McCabe as well as CQMS Flanagan, among whom it was well known, that Victor Murtagh was suffering more stress than others and was reacting at times to gunfire and to electrical storms, with thunder and lightning, by uncontrollable shaking and tremulousness. The descriptions of the plaintiff’s incapacitating states of anxiety with him shaking and “being out of it”, meaning incapable and in a state of paralysis with terror, is reminiscent of the condition of a gun-shy dog after a fusillade of shots or the cacophony of noises of explosions at Halloween in Dublin. Several of the NCOs said that the condition of Victor Murtagh was common knowledge in the platoon and the company. Indeed, Capt. McEvoy confirmed that Sgt. McCabe, who was in command of a new outpost 621, for which his weapons platoon had responsibility, made it clear that he would prefer not to have Victor Murtagh among the troops under his command at outpost 621. This was a particularly stressful post as it had been set up on a hillside below an SLA compound which was subjected to attacks by Hezbollah or other factions which onslaughts involved much gunfire. Several of the NCOs mentioned that Victor Murtagh also would enquire as to the state of the weather when going on duty, and they were puzzled by this. However, one of them pointed out that electrical storms in the Lebanon have a spectacular ferocity. Anyone who has seen a dog cowering during thunderstorms at the noises of explosions or indeed who have seen people who are frightened of thunderstorms becoming upset by the electrical discharges, will readily understand why the sounds of guns or the explosions of lightning and thunder may subject some people to terror. The vulnerability of the plaintiff due to his immaturity at only just 21, and his gentle personality and strong reaction to the noise of thunderstorms or firing close to his position, and the effect which such incidents had in causing him acute anxiety states, should all have alerted the officers under whose command he was serving and the army doctors to the fact that Victor Murtagh was particularly susceptible to post traumatic stress.

The phrase “post traumatic stress disorder” came into wide usage in about 1980, but nervous shock, shell shock, and neurasthenia had been known to physicians for centuries. I am indebted to Commandant Gerry Kerr for his thesis on post traumatic stress disorder in combat veterans, and in particular for his noting of the many antique names by which this condition was known such as “soldier’s heart” and “effort syndrome” during the American Civil War. Neurasthenia was described during that time and was attributed to the civil war experience of some veterans. In 1871, DaCosta described the symptomatology of modern day post traumatic disorder (PTSD) in his paper “On Irritable Heart”. The First World War saw the addition of the diagnosis of “shell shock” and “battle fatigue” to the index of psychiatric illnesses. Apparently the term “shell shock” described those veterans of combat, who suffered from a combination of restlessness, irritability, startle reactions, mutism, tremors and other symptoms of anxiety, as well as repetitive battle dreams. Apparently at the time of the Korean War, the first edition of the diagnostic and statistical manual included the condition referred to as “gross stress reaction” in 1952. Comdt. Kerr interestingly points out that when the second edition was published in 1968, a time when there was no war, this disorder was dropped from the manual. He concludes that the recognition of PTSD as an entity in its own right resulted largely from studies carried out on returning veterans of the Vietnam War. The follow up of these veterans coupled with the long acknowledged fact that the battlefield was an area of high risk, psychologically as well as physically, led to the organisation of the many symptoms into a single diagnosis. Anyone who has read the poems of Wilfred Owen and Siegfried Sassoon can be in no doubt as to the reality of soldiers who have literally been scared out of their wits by the appallingness of carnage and inhumanity to which they have been subjected by the ghastliness of war, particularly in sodden, rat-infested trenches of the First World War. Col. Collins mentioned that the thinking on such psychological effects led to recognising the benefit of treatment near the front line. This would be in keeping with the thinking of the French Army doctors during the First World War where they developed such remedial measures for shell shocked troops near the battle zone with of course the advantage of retaining man power near the front line so that those who recover rapidly can take their place again in the firing line. I note the view that PTSD was a nomenclature which gained in use from about 1980, although the symptoms forming the constellation known as PTSD would have been well known for many years before then, such as flashbacks, intrusive recollections, startle reactions, restlessness, agitation, irritability and other symptoms such as evidence of stimuli associated with the trauma and hyper-arousal and perseveration, all belonging to the constellation of symptoms making up PTSD. It became recognised that PTSD carried risks of mobility, mortality, chronicity (being long lasting), increased risks of physical and psychiatric disturbances, and impairment of interpersonal and professional functions. With improved research as a basis for change over the years in the diagnostic criteria for PTSD these advances were reflected in the various editions of the Diagnostic and Statistical Manual of Mental Disorders (DSM III 1980 and DSM III-R 1987 and DSM IV 1994). Diagnostic Criteria DSM III, is of interest in that in 1980 it was suggested that Criterion A consists of a stressor that would evoke significant symptoms of distress in almost everyone. Criterion B required that there be evidence of re-experiencing of the traumatic event. Criterion C necessitated demonstration of reduced responsiveness to or involvement with the outside world. Criterion D dictated the presence since the trauma of at least two of the following hyper-alertness or exaggerated startle response, sleep disturbance, guilt related to survival, memory or concentration impairment, avoidance of activities which arouse recollection of the traumatic events, intensification of symptoms by exposure to events that symbolise or resemble the traumatic event. Specifically, the stressor was not confined to war or its experience and therefore, although combat exposure provided much material for research, the diagnosis was not exclusively confined to military personnel or experiences. I will return to this aspect of the state of knowledge about nervous shock or neurasthenia or PTSD in due course, but I would be very surprised if humane, well educated Irish doctors assiduous in caring for their patients such as Lt Col. Collins and Comdt. Kerr would not have read Shell Shock: The Psychological Impact of War (1998 London) by Wendy Holden giving the history and chronology of knowledge about shell shock. While the book was published in 1998 well after the plaintiff’s 1986/7 anguish in Lebanon it is a mine of information and makes clear that army doctors had to be well aware of PTSD and its constellation of symptoms either by 1986 under the name of PTSD, which was used widely since about 1980, or Nervous Shock, Shell Shock, Neurosis, Neurasthenia or the legion of other names by which the condition of the psyche was known. PTSD, however, has wider connotations than Shell Shock. I am sure that the Army doctors are aware of the works of Jennifer Johnson “How many miles to Babylon?” and of Wilfred Owen’s “Mental Cases”:

“Who are these? Why sit they here in twilight?…
These are men whose minds the Dead have ravished.

Memory fingers in their hair of murders,

Multitudinous murders they once witnessed…

Always they must see these things and hear them,

Batter of guns and shatter of flying muscles,

Carnage incomparable and human squander

Rucked too thick for these men’s extrication.”

“Mental Cases” Wilfred Owen.
In 1917 Wilfred Owen suffered concussion on the Somme. In summer 1917 he was sent to recuperate at Craiglockart War Hospital near Edinburgh where he met Siegfried Sassoon. He later won the MC in France but was killed a week before the Armistice was signed. His work was first collected in 1920 by Sassoon. Doctors in the First World War had never encountered a war on that same scale nor had they ever seen anything like the varying degrees of mental breakdown among soldiers or experienced it in such massive numbers. The symptoms were wildly diverse, from total paralysis and blindness to loss of speech, vivid nightmares, hallucinations and memory loss. Some patients declined eventually into schizophrenia, chronic depression and even suicide. The medical consequences of severe trauma to the moral and mental state on the battlelines were, it seemed, unquantifiable. There was no telling who would be affected or why and the military and medical establishment were caught completely off guard, according to Wendy Holden in “Shell Shock”. These considerations may be a diversion but one that is worthwhile. In the First World War the effect of terror on the minds of servicemen was first recognised as a problem that necessitated serious military-medical diagnosis, not least because the sheer numbers of men affected could not be spared from the frontlines, as the conflict throughout Europe continued to claim countless lives. The long term well-being of those who were stricken was considered very much a secondary issue to the manpower crisis. Thorough analysis of the problem was thought vital only in as much as it could distinguish genuine sufferers from malingerers – those hapless men whose debilitating mental symptoms labelled them as cowards and in some instances led to their execution for cowardice. Holden writes that largely due to the requirements of an efficient war machine to stem the flow of sick men being sent home, the science of military psychiatry was born, designed to reduce men’s moral objection to war and to counteract the dramatic and often fatal effects of combat on the minds of servicemen. Progressing far beyond its early remit, military psychiatry’s extraordinary findings about the workings of the mind have been widely adopted throughout modern psychiatric practice ever since. There has been much progress in military psychiatry’s understanding of the deep effect on the psyche of exposure to extreme anxiety since Shakespeare wrote Lady Percy’s lines in Henry IV Part I. Lady Percy tells Hotspur of his night terrors:-

“In thy faint slumbers I by thee have watched
and heard thee murmur tales of iron wars;…

Thy spirit within thee hath been so at war

and thus hath so bestirr’d thee in thy sleep,

That beads of sweat have stood upon thy brow…

And in thy face strange motions have appear’d,

Such as we see when men restrain their breath…”

In the Seventeenth Century Thirty Years War, stress related disorders were attributed to home sickness, or “Heimweh”. In the American Civil War (1861-5) the Union Army had no label for the condition that could help explain or legitimise the puzzling behaviour of some of its men. No category short of lunacy could account for their symptoms and many were either sent to an asylum for the rest of their natural lives, despatched on the journey home where – left to fend for themselves – they died of hunger or exposure, or were hanged as malingerers. In 1860, William Hammond, a union surgeon who became one of the pioneers of nervous and mental diseases in his age, did his best to fathom the condition he described as “nostalgia” in which veterans continually relived horrible events. He wrote later:-
“The cases were of amazing interest. At that time I had eighty epileptics, and every kind of nerve wound – palsies, choreas, stump disorders. Thousands of pages of notes were taken … massage was used to restore action to limbs in which healing nerve wounds left the muscles palsied or for the rigidity of splinted cases.”
Other soldiers found to have “irritable heart” problems were said to show signs of an increased heartbeat and aroused feelings of alarm triggered by reminders of conflict. He treated all those afflicted by keeping them busy with non stressful work away from the frontline of battle. Hammond complained that many of his patients were too immature; some were just sixteen. “Youths of this age are not developed”, he concluded, “and are not fit to endure the fatigues and deprivations of military life. They soon break down, become sick and are thrown upon the hospitals.” With the First World War looming ever nearer, the medical profession and the military showed scant concerns at the possibility of psychological casualties. As war impended a doctor in the British Medical Journal advocated alcohol as an instant salve for any problems that might arise, while an officer of the 29th Division claimed that the cure for fear was a minute tied to the barbed wire at the front. Wendy Holden writes of Richard Trafford, a veteran who was only fifteen when he first saw service in the trenches, and his belief that it was easy to tell the genuinely afflicted from those who are feigning illness. “The ones that became shell shocked were mentally disarranged, they were not with you half the time, they were in a world of their own, it was like seeing a person in a fit”, he said. “I do not believe there was any of our men cowards. It’s surprising what you will do when you get shell shocked, they were not responsible for their actions. A man does not join the army to fight for his country and then run away.”
This last quotation is apposite because it will be recalled that on 29th November, 1986, the plaintiff’s condition was such that Capt. McEvoy, when the plaintiff became unconscious, decided that he required medical attention and called an ambulance in which the plaintiff was transported in to the RAP in Tibnin. There the description of his convulsive fit at the initial diagnosis was “? petit mal”. However, it would appear that Col. Collins subsequently revised this view and was able to reassure Capt. McEvoy that the soldier did not suffer from epilepsy, which would have obvious repercussions for the man’s qualification to serve in the army for reasons of the safety of himself or his colleagues, if he did indeed suffer from epileptic seizures. Reading these historical accounts of the effect of martial encounters and the ghastly brutality of war and its effect on the human psyche of normal people, it is borne in upon one that there are competing pressures on army doctors. While I have no doubt that the Irish doctors are solicitous in caring with skill and humanity for their patients, nevertheless there is at times a competing impetus to ensure that troops are treated and recover quickly so that they can take up their duties as peacekeepers in outposts where they may be subjected to close fire and the peril of attacks, and at the same time have to fulfil their duties as peacekeepers between warring factions.
The Plaintiff’s Other Cause of Action: Noise Induced Deafness
The plaintiff also sued in a separate cause of action for damages for deafness caused by negligence and breach of duty on the part of the defendants as his employer, by exposing him to excessive explosive noise levels when presumably the provision of muffs and other protection would have prevented this injury. I commend the parties for having agreed that this claim should be settled on admission of liability by the defendants for the agreed sum of €2,650.00 which was based on a 6.01% hearing loss which commutes in to a sum of €2,650.00. This is the award on foot of the claim in respect of deafness and presumably this carries appropriate costs. I have a note that a sum of €2,873.00 has been agreed in respect of doctors fees and travel expenses as special damages and this sum is referable to the second head of claim, namely the failure on the part of the plaintiffs to diagnose and treat in a timely manner the plaintiff’s post traumatic stress and post traumatic stress disorder which became chronic and had devastating effects on the plaintiff’s life and lifestyle and family life after his return from the Lebanon to Ireland.

Ms Veronica Hannin gave strong and convincing evidence that the husband who left her to go on a tour to the Lebanon in 1986, and who returned to her and their family for Christmas 1986 was the same affectionate and loving husband but that the man who returned from the Lebanon on 18th April, 1987 was not the Victor Murtagh whom she had married and who had gone to the Lebanon but this was a man with a changed personality, who was irritable and difficult, particularly with the children. She described his early morning waking and intrusive nightmares and particularly his startle response to the noise of a fire engine siren just after Victor had returned home, when he leaped from the bed and searched frantically for his gun in a thoroughly agitated state, oblivious to his being in the safety of his own home.

This second and separate claim to the deafness is in respect of the defendants’ failure to diagnose and treat the plaintiff, who was suffering from post traumatic stress which, by reason of the symptoms of this, became chronic and afflicted the plaintiff’s existence severely for a number of years and made him vulnerable and susceptible to future relapses into post traumatic stress disorder with its constellation of symptoms.
The Nature of the Plaintiff’s Second Claim
The plaintiff seeks damages for post traumatic stress disorder, claiming that the defendants were negligent in not providing remedial treatment for him following his exposure to stressful incidents. The defendants as the employers of the plaintiff were under a duty to take reasonable care for the health and safety of their employees and to keep abreast of contemporary knowledge in the area of those afflictions to which soldiers were inevitably exposed in the course of duty; and that the defendants had negligently failed to take appropriate care for the health of the plaintiff, in that they had failed to observe the obvious manifestations of post traumatic stress disorder, or else had failed to recognise the significance of the symptoms and had negligently failed to obtain remedial therapy for the plaintiff. It should be emphasised that the plaintiff in these proceedings is not claiming damages for psychiatric injury on the basis that he should not have been exposed to trauma in the Lebanon, or that the army is in some way directly responsible for the events that occurred in the Lebanon. Rather the plaintiff claims that the defendants breached their duty to him by failing, inter alia, to identify and provide treatment for his psychiatric problems after they had arisen, and before they became chronic and then again, once they had become chronic, by failing repeatedly to identify and provide treatment for his psychiatric problems, even after advice and directions from the Chief Medical Officer, Col. Walsh, and after a firm and definitive diagnosis of the plaintiff having indeed contracted chronic post traumatic stress disorder when the army psychiatrist, Capt. Fionnuala Ó Loughlin conclusively diagnosed and confirmed her working opinion of post traumatic stress disorder made in her initial meeting with the plaintiff on 17th November, 1995. This working or preliminary diagnosis was confirmed on 29th February, 1996, when Capt. Ó Loughlin administered the CAPS test to the plaintiff, and by this confirmed her clinical diagnosis from his history and the symptoms which he was manifesting that he had indeed contracted post traumatic stress in the Lebanon, and it had remained undiagnosed and untreated to the affliction of the plaintiff, and the alienation of his wife and six children to the extent that his wife, the friend of his childhood, and the mother of his six children with whom he had lived from the time of their marriage in 1984 to their separation in 1995, found him to be so changed and difficult that she felt she had to leave him.

The plaintiff is not entitled to compensation because in his work in the army in the Lebanon he had been exposed to stress or because he has suffered post traumatic stress in the course of his work as a peacekeeper amid the hostility of the various factions involved in the conflict in the Lebanon. The plaintiff must prove, on the balance of probabilities, that his injury from the post traumatic stress disorder was caused by the fault of his employer in the failure to diagnose and treat and eliminate or reduce the levels of his PTSD. The plaintiff’s strange and out of character behaviour while he was based near Bayt-Yahun and his manifest symptoms should have been noted and his obviously stressed condition brought to the attention of the medical officers as indeed it was, as Capt. McEvoy sent him in to the RAP at Tibnin for medical attention on 29th November, 1986. It is all the more surprising that he did not receive counselling and therapy since he showed clear signs of stress and incipient post traumatic stress disorder in early 1987, and his acute stress reactions were actually noted by the senior medical officer. Despite this awareness of the plaintiff’s immaturity and vulnerability to psychiatric problems and his obviously stressed condition, there was a failure to recognise the obvious perils and the need to treat his symptoms, and as result of this culpable negligence on the part of his superior officers and the medical officers, their failure resulted in his contracting chronic post traumatic stress disorder. On the medical evidence, counsel for the plaintiff submits that the likelihood is that, if the plaintiff had received counselling and therapy when he showed the clear signs of stress and incipient post traumatic stress disorder in early 1987, then his condition would have been relieved, reduced or remedied and he would not have become subject to the long running and persistent post traumatic stress disorder which has so adversely affected him in his working, social, domestic and family life.

Counsel for the plaintiff adopted the phrases of O’Donovan J. in describing the plaintiff’s claim in Knowles v. Minister for Defence delivered on 22nd February, 2002:-

“However, the fact of the matter is that he (the plaintiff) does not complain that the defendants negligently inflicted psychiatric damage on him but rather that, having developed psychological and psychiatric problems which he maintains were manifest and ought to have been recognised as such by the defendants, the defendants negligently failed to initiate appropriate treatment for those problems.” (p. 3 of the unreported judgment).
At p. 2 O’Donovan J. explained that:-
“Accordingly, Mr. Knowles comes before the court seeking damages by way of compensation for the negligent failure of the army to identify and treat the psychological and psychiatric problems which he developed in the year 1978.”
Mr. Knowles was a member of the 1st Irish Battalion serving as part of the United Nations Peacekeeping Force in the Lebanon in the year 1978, when he was exposed to events which gave rise to severe psychological and psychiatric problems which progressed to a condition of chronic post traumatic stress disorder. However, Mr. Knowles failed to prove the essential factors in his case.
Counsel for the plaintiff has helpfully collected together the particulars of negligence and breach of duty and breach of contract alleged by the plaintiffs and I set these out seriatim, albeit they appear in several different documents from the statement of claim to several replies to notices for particulars:-

“1. The defendants failed properly to monitor or treat the plaintiff;
2. The defendants failed properly to examine the plaintiff;

3. The defendants failed properly to counsel the plaintiff;

4. The defendants failed properly to brief the plaintiff prior to engagement in the Lebanon;

5. The defendants failed properly to assess the impact of intrusive trauma on the plaintiff as a vulnerable soldier;

6. The defendants failed to warn the plaintiff of the potential risk of post traumatic stress disorder;

7. The defendants failed to identify the symptoms of post traumatic stress disorder in the plaintiff;

8. The defendants failed to recognise that the plaintiff was displaying symptoms of psychological problems, which required treatment;

9. The defendants failed to recognise the significance of the symptoms that the plaintiff exhibited;

10. The defendants failed to provide remedial therapy for the plaintiff;

11. The defendants delayed in sending the plaintiff for psychiatric assessment, notwithstanding the symptoms he had displayed;

12. The defendants failed properly to provide follow up services for the plaintiff;

13. Insofar as they did participate in his treatment, failed to properly and professionally identify and diagnose his actual condition of post traumatic stress and failed to provide and maintain a proper and full medical history extending back to the incident which gave rise to treatment in the Lebanon to his treating psychiatrists so that they could properly assess and diagnose his condition leading to proper and appropriate treatment;

14. Having treated him for alcohol abuse, apparently successfully, failed to ensure his treating psychiatrists knew and were aware of the traumatic events to which he was exposed during service in the Lebanon giving rise to the necessity to treat him there and his subsequent development of post traumatic stress;

15. Caused, allowed or committed a systemic failure of transmission of information to occur as affected the plaintiff in that there was no system by which the plaintiff’s operational officers and NCOs reported their observations of the plaintiff’s inability to cope and deal with the pressures and trauma to which he was exposed to the medical corps or from one branch of the medical corps to another, and in turn to the treating psychiatrists;

16. Caused, allowed or committed the plaintiff to be treated simplicitor for alcohol abuse without ensuring his treating doctors were aware of the traumatic events which gave rise to his problems while serving in the Lebanon and had a full and complete picture of his medical history so as to give rise as to a suspicion of an underlying cause for his abuse of alcohol so as to enable same to be treated at the earliest opportunity.”

The plaintiff in this case claims that the defendants failed in their duties to him in the respects set out above, particularly at 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16. I will refer to these in due course. Counsel for the plaintiff also claims that the defendants owed him continuing duties. In other words, while he remained in their service in the army, they remained under a continuing obligation to monitor and follow up on his symptoms to see how his known vulnerability to and a propensity for acute anxiety states when under pressure would continue to afflict him and, they also owed him a continuing duty to assess him and provide appropriate therapy or assistance to him in the event that the post traumatic stresses further developed which he had sustained in the various incidents in the Lebanon, which were well known to the senior medical doctors in the Lebanon with the 60th Battalion. Furthermore, they continued to owe him a duty to assess him and provide appropriate therapy or assistance to him while he was a member of the Defence Forces. In short, once they were aware that he suffered from psychological problems, whether of the nature of post traumatic stress disorder or depression or acute anxiety states, they should have specifically informed the army doctors under whose care he would be on his return from the Lebanon. The experienced civilian psychiatrist, Dr. Mary McGuire, said that once the diagnosis had been made that he suffered from acute anxiety states while in the Lebanon and in view of his being in obvious difficulties on his return to Ireland, she would have thought there would be some system of follow up for those who have been deemed to be psychologically unsuitable because of the afflictions which they have undergone in the Lebanon; there would at least be either a referral to the army psychiatrist on the man’s return from the Lebanon before chronic post traumatic stress disorder should get a firm hold on him, or else they should have a system whereby when a soldier who has served in the Lebanon subsequently displays symptoms of post traumatic stress disorder or alcoholism that his LA30 and his CMF file should be copied, and this together with a report of a comprehensive nature from the doctor responsible for him in the army, should be sent to such civilian psychiatrist or other specialist who is treating the patient. It would appear that the lack of exchange of information between the treating psychiatrist in St. Columba’s in Sligo and the army doctor responsible for his well being in Western Command meant that Dr. O’Flynn was given no information whatsoever about the 60th “tough Battalion” in which he had served in the Lebanon and the sort of pressures which he was recorded in his LA30 as having been under, not to mention the acute anxiety states and the knowledge of his extremely significant behaviour when he was cowering terror-stricken in his billet, or when he actually passed out probably from terror when about to go on duty during electric storms. Other incidents were when there was significant gunfire and explosions being exchanged between the hostile factions, particularly, while he was posted to the hotspot at Post 621 when the Hezbollah invaded the compound on top of the hill above manned by the SLA and drove away their vehicles and killed those in command of the compound. A useful history would contain a reference and description of any incidents of a life threatening nature or any killings which were of importance relating to the plaintiff and his symptoms. For example, it would have been imperative that Dr. O’Flynn would be told of the deaths of Pte William O’Brien who had trained with the plaintiff and was in the same company and also that of Corporal Dermot McLoughlin who had befriended and looked after and helped to sustain the plaintiff during what was a very stressful and difficult time for him in the Lebanon.
The plaintiff maintains that the defendants owed a duty of care to him but failed to honour this in the respects set out above. The plaintiff also claims that the defendants owed him such duties on a continuing basis. In other words, while he remained in their service, they remained under a continuing obligation as his employer to monitor him and owed him a continuing duty to assess his needs and to provide appropriate therapy or assistance to him. The plaintiff’s claim is that they failed in those duties for the duration of his service during and from his time in the Lebanon until his eventual discharge in March, 1998.

Accordingly, the present proceedings involve different issues from those which arise in classic cases of “nervous shock”, for example, where someone comes upon the scene of an accident or attends hospital to visit a member of their family in the aftermath of an accident; accordingly, many of the legal issues which would arise in that sort of case do not feature in the present situation.

The factual pattern of this case is also different from cases of stress, bullying or harassment in the workplace. In those cases, the employer is generally alleged to be directly responsible for causing or permitting the harmful conduct to occur (for example through the acts of another employee).

The plaintiff’s submission is that the general legal obligation of the defendants is as stated by O’Higgins C.J. in Dalton v. Frendo (Unreported, Supreme Court, 15th December, 1977). In this case O’Higgins C.J. on behalf of the Supreme Court said that the “duty of an employer towards a servant is to take reasonable care for the servant’s safety in all the circumstances of the case”.

In McHugh v. Minister for Defence, Ireland and the Attorney General, [2001] I.R. 424 at p. 429 it was stated that:-

“The defendants, as employer, are under a duty to take reasonable care for the safety of their employees and must keep abreast with contemporary knowledge in the field of reduction in the effects of potential afflictions to which soldiers are inevitably exposed in the course of duty”.
I have been told by counsel that has been accepted as a correct summary of the obligation of the defendants to a soldier in their service.
Counsel for the plaintiff then submitted that O’Donovan J.’s judgment in Knowles v. Minister for Defence delivered on 22nd February, 2002, is consistent with the McHugh decision in that O’Donovan J. stated that:-

“In this regard, it seems to me that if, while he was a serving soldier in the Lebanon, the plaintiff, for whatever reason, manifested severe psychological or psychiatric problems which ought to have been recognised as such by his superiors and/or by the army medical corps to the extent that it was obvious that he required medical treatment, I think that the army were under an obligation to arrange for such treatment and that their failure to do so would in the event that it could be established that that failure compounded the plaintiff’s problems, amount to negligence in respect of which the plaintiff would be entitled to compensation. However, to that end it would be necessary for the plaintiff to establish that the psychological problems which he manifested were readily recognisable as such.” (Pages 41-42)
Counsel then submitted that this was a more specific statement of the broader principle which had been set out in the McHugh case and this specific statement would be relevant in the context of the issues that had to be determined by O’Donovan J. in Knowles. In fact O’Donovan J. concluded by saying that while he did not doubt the plaintiff Knowles’s honesty, he considered that he was a totally unreliable witness and also was not satisfied that the plaintiff Knowles manifested any such psychiatric problems to the extent that they ought to have been recognised as such by the defendants. Furthermore he came to the conclusion that the implication from the medical records was that the plaintiff’s besetting problem in June 1978 in the Lebanon was home sickness attributable to his loneliness and thus the judge did not think that the defendants could be faulted for the treatment afforded to the plaintiff at that time. Hence that plaintiff’s claim was dismissed. There is a stark contrast between that and the manifestations of PTS by the plaintiff Murtagh and his acute states of anxiety, causing loss of conciousness and inability to speak, which incapacitating conditions were noted by the medical officers and NCOs of the 60th Battillion who were well aware of the plaintiff’s paralysingly nervous condition at times of stress.
In the present case a clear issue arises as to whether or not Lt-Col Goggin did address the officers and NCOs in the 60th Battalion while they were having lectures, talks and briefings in preparation for their departure to the Lebanon in October 1986. An issue arose as to when Lt.-Col. Goggin first addressed the officers and NCOs before their departure to the Lebanon. Earlier in the case, long before Lt-Col Goggin was called, Sgt. Gerry McCabe had given evidence relevant to at least two of the issues which confront the court. The first of these issues in contention is as to when Lt-Col Goggin first addressed the officers and NCOs of the battalion in preparation for departure to the Lebanon. Sgt Gerry McCabe was giving direct evidence having been called by Mr. Smyth, counsel for the plaintiff. In the course of describing some of these briefings, Sgt. McCabe said that there was also a briefing from a Lt-Col and said “I cannot remember his name, he was something of a doctor, what was his title…?” He was asked “what did he talk about?” and he replied “he talked about mental health basically”.

Mr. Smyth: Q. Mental?
A. Your mental state going over there and what you might witness in the event of witnessing a shooting or a killing or an illegal killing or whatever.

Mr. Smyth: Q. Tell my Lord about that, can you remember

what was said about mental health?

The Sgt. confirmed that a briefing had been at St. Columbs’s Camp at Mullingar and he then said that he thought “the Lt-Col’s name might have been Goggin, I think it is”. And he said that the Colonel just gave them a lecture on what to expect. He talked graphically about bodies being blown to pieces and the likes. In the event of an explosion he said “being on a patrol sent to investigate, this will not be a nice scene you are going to see”. He gave graphic talks. It was all during the one talk but there was a break or two in the talk. When he was asked about the mention of mental health, did he mention anything about that? and the Sgt replied “to be quite honest he talked at a level I did not really understand a lot about it”. The Sergeant said:-
“The only incident that stuck with me a lot of years afterwards was that he said he had treated or dealt with a guy somewhere, I do not know where, whereby the guy said every time he smelt aftershave off his hands, he remembered something that happened when recovering a body at some point. I do not even remember what country he was talking about, to be quite honest”.
In answer to a question from Mr. Smyth the Sergeant then said:-
“He talked that if you were sent in to recover bodies, get on with it, this person’s life was over, it was part of the day’s work.”
Sgt. McCabe was clear that this talk had not been prior to his previous trip to the Lebanon but was at Mullingar during the preparation for the 60th Battalion’s departure in 1986. Subsequently when Lt-Col. Goggin (retired) came to give his evidence he described to the court that he had been at a conference in Paris in the spring of 1986, involving a research group of military psychologists at which he had made many useful contacts and was able to keep up to date with current research. In particular, the Americans had been very helpful to him as they were in touch with the Israelis who had recent experience of the psychological effects of armed combat. Col. Goggin’s own evidence was convincing that it was later in 1986 that he had given his talk to the officers and NCOs at Mullingar. Subsequently it was suggested to Lt-Col. Goggin that he was mistaken as to the year and Col. Goggin said that unfortunately when he retired from the army he had left his documents and papers accumulated over the years in an office and that these papers had been cleared out and destroyed. It does seem extraordinary that in an organisation which must depend on record keeping so as not to repeat earlier mistakes and particularly, in such a cutting edge and important study as the psychological effects on soldiers of the damaging mental effects of conflict, that the records of the army psychologist, a former veteran of the Congo expedition, should be simply destroyed. This probably meant the destruction of the material for an interesting book as Col. Goggin according to Niall McEvoy, a later witness and retired captain said that the Colonel was a renowned raconteur and certainly his notes on military psychological matters would have been of great interest. I should add that the former Capt. McEvoy and Lt-Col. Maurice Collins, the senior doctor with the 60th Battalion in 1986/7 both said that they did not attend Col. Goggin’s talk in 1986. Capt. McEvoy agreed that Col. Goggin was a man who was not forgetful but of good memory and, it appears to me that both Capt. McEvoy and Lt-Col. Maurice Collins were part of the battalion in preparation for the tour of duty in the Lebanon, but for various good reasons as busy officers they must have missed this particular talk. I have every confidence that Lt-Col. Goggin’s memory is correct in that he did address the officers and NCOs and I am sure that he would be very likely to remember the first occasion when he carried out such a briefing after his attending the conference in Paris in the spring. There he made good contacts and became friendly with many of the other delegates. I am sure that Lt-Col. Maurice Collins, as the Senior Medical Officer in Western Command had many calls on his time and would not be able to attend all the briefings. I am happy to rely on Lt-Col. Goggin’s positive memory of doing this briefing in the aftermath of the Paris conference, and in this he is supported by Sgt. McCabe who had given his evidence long before Col. Goggin and was able to remember his name after a time and also some graphic snippets of the address, about bodies being blown to pieces and the need if you were sent in to recover bodies, then to get on with it as that person’s life was over and it was part of the day’s work.
Sgt. Gerry McCabe’s evidence is particularly relevant on two other aspects which are contentious. He was asked about training in respect of signals in relation to communications while you are at your outpost or at a checkpoint. He explained that once you were at a post in Lebanon, each post would have communications back to the central post which would be the company headquarters, so all personnel had to be able to use a “77 set” at the time. This was a radio system of communications and all the troops had to be trained to use this radio set. They would be able to make the call from an outpost to a company headquarters. The central communication would be in the company headquarters which for the Weapons Platoon was at Post 6-16 in Brashit. The importance of this piece of information is that the plaintiff said he was at an outpost at the time of the killing of Pte. William O’Brien on 6th December, 1986. His training ensured that Victor Murtagh would have been taught how to use the radio since all the soldiers had to be able to use a “77 set”, and this meant that there was communication between the various outposts and the central communication centre at company headquarters. This ties in with Victor Murtagh’s evidence that on 6th December 1986 there was a commotion of messages on the radio and his awareness of the tank attack at Brashit on 10th January, 1987.

Sgt. McCabe was also able to describe the part of the training which involved a three mile run at 7.00 o’clock in the morning and how, when one got back one would then shower and have breakfast and be on parade by 8.30am. He explained how the weapons platoon would be the smallest. Sgt. McCabe also confirmed that the 7.00am three mile run was obligatory for everyone, unless you could not take part for a reason other than ill health. He confirmed that one man was returned to his unit in Finner over missing a run. The Sergeant confirmed that as an NCO you were there to observe the soldiers’ fitness. He was asked how did he know whether somebody was up to the mark and he responded that as an NCO you were there to observe these things, mainly an NCO trained these men on whatever weapon he was involved in for that day. He explained that if you found a man not doing what he was supposed to be doing, then you would note it and remark this to the platoon Sgt or platoon officer. I mention this episode as indicating that the training period was a time during which the officers and NCOs were able to monitor the suitability of the soldiers for going overseas and also a period in which the officers could assess the soldiers and the NCOs. This was the time in which doubts about a person’s suitability could be expressed and investigated. There was a suggestion that a number of the soldiers from the Sligo area, including Victor Murtagh had been out late one night and had not been ready for the run. No doubt this would have caused scrutiny of the conduct and record of each of the men involved. I had some reservations about this aspect but there was certainly a strong observation made that a Sergeant had been regarded as unsuitable and was not taken overseas on another occasion. My assessment of this aspect was that there had been no serious concerns or any anxiety expressed, if any at all, about Victor Murtagh before he went to the Lebanon in respect of any untoward conduct in respect of the excessive consumption of alcohol.

Sergeant McCabe was asked if he ever had cause to mention Victor Murtagh to Cpt. McEvoy in the context of the training period and in the context of whether a soldier was up of the mark from the point of view of being fit to travel overseas. Sergeant McCabe said that he never did have cause to mention Victor Murtagh to Capt. McEvoy at this training stage which was when the fitness programme included a three mile run at 7.00 am in the morning. Earlier in his evidence in answer to counsel for the plaintiff, Sgt. McCabe said that there was one man who was returned to his unit over missing a run and that that person did not take part then in the trip to the Lebanon. Counsel then asked the Sergeant about the suggestion that Pte. Murtagh had some affection for drink and asked if he knew anything about this before they went to the Lebanon. The Sergeant’s answer was that “he may have been fond of a drink, no more than I was myself nor any of the rest of us, but I was not aware of a drink problem”. Counsel then asked “and if a soldier had a drink problem would that be something that should have come to the attention of an NCO or even an officer while on the preparatory course in Mullingar?” Sergeant McCabe answered this by saying “that was the purpose of phase two of the training, to observe the forms of people” and on being asked if any weakness was there, would it usually be observed during that period? He replied that it might be and then again somebody might still get by, it was possible. He seemed to speak with candour and fairness.

The significance of this evidence given by Sgt. McCabe is that the Sergeant was one of the NCOs who would have known Victor Murtagh well and was a senior NCO in the weapons platoon in C Company. Furthermore it would seem that he had no reservations about Victor Murtagh, particularly in respect of the matter of alcohol, before they went to the Lebanon. While in the Lebanon, he was NCO under the command of Capt. McEvoy who supervised the building of the new post below the SLA compound in the latter part of the tour of duty and it was he who had voiced reservations to Capt. McEvoy about the condition of Victor Murtagh, not in respect of alcohol intake, but because he was suffering from incapacitating agitated states and the shakes. This was at a time when the plaintiff’s vulnerability to stress had produced states of agitation to the extent of loss of consciousness and also seizures which caused both Capt. McEvoy and Lt-Col Collins to have initial fears of the plaintiff having a susceptibility to epilepsy. However it seems that Col. Collins satisfied himself that the plaintiff had suffered acute anxiety stress while under severe pressure and had an immature personality. This presumably was not surprising in view of the fact that he was only just twenty one as he arrived in Lebanon. Colonel Collins said in evidence that he wrote T (the symbol for ‘query’) “acute anxiety state” at the bottom of the page in the LA30 but his recollection was that this was written in respect of the plaintiff having arrived in by ambulance to the RAP Tibnin on the 29th November, and he had been examined and given an intra muscular injection of Diazepam. The note on the medical records is that the patient was aware of his tongue going to the back of his throat and that he had subsequently had loss of consciousness and that this was when he was going on duty. Colonel Collins had noted in his distinctive handwriting:

“? Petit mal epileptic attack
? 2. exhaustion” (which I was told meant secondary to exhaustion).

The note went on to say that on 30th November, 1986, he was discharged to his unit well but with the instructions that:
1. Not to be on duty with less than two others
and underneath this “PLNCDR advised” meaning “platoon commander advised”.

2. Advised to rest and to inform if any further problems

and this was signed by Lt.-Col Maurice Collins on the 30th November, 1986. Again on 2nd December, 1986, it was countersigned at the bottom of the page where medical category A1 appears with Lt-Col. Maurice Collins’ signature and SMO after that written in his handwriting. On the next page of this note against the date 29th November, 1986, there is a further note by Lt-Col. Collins which includes:
“0900 slept well, tongue sore nil else”
below this the Colonel wrote
“rest. Check P (pulse) BP and temp (temperature) 6 hourly”.
Under this the Colonel noted Rohypnol 1 nocte which means he was given the hypnotic Rohypnol at night, this being a sleeping tablet.
At the bottom of this second page there is under an entry for 18th December, 1986, also in the colonel’s handwriting a T symbol which he said meant query “acute anxiety attack”. Lieutenant Colonel Collins related this note by him back to his querying in his own mind his 29th November, 1986 entry – was it really a convulsive episode or was it because a patient had had an acute anxiety attack on 29th November, 1986.

For completeness in respect of this important medical note I should add that in the intervening note for 18th December, 1986, under “notes”, the colonel had written

“Reviewed last night” (meaning 17th December, 1986). Considerable emotional pressures.
Domestic problems.

Going home (holidays) today and hopes to be able to resolve all this Otherwise says trip is “great”.

It would seem from these medical records made at the RAP (Regimental Aid Post) at Camp Shamrock at Tibnin on about both 30th November, 1986, and 18th December, 1986 that the plaintiff was suffering on the 29th November, 1986, from a seizure and loss of consciousness when going on duty about midnight and that this had some resemblance to an epileptic petit mal convulsive attack which episode Col. Collins suspected was secondary to exhaustion.
Subsequently the plaintiff was seen again on the 17th December, 1986, and Col. Collins’ note was written up on 18th December, 1986. At some stage, probably he thought on 18th December 1986, he wrote “acute anxiety attacks” with a query, which is the symbol like a T. This was a very significant entry for several reasons. First, it makes very clear that the senior medical officer at the Battalion headquarters at Camp Shamrock, Tibnin, on reflection felt that the plaintiff was suffering from acute anxiety attacks. He subsequently in the AF667A, signed on the 18th April, 1987, wrote that “This man is relatively emotionally immature and came under very severe pressure. He is liable to incapacitating anxiety states in such circumstances and should NOT serve o/seas for 3 years” and marked him as suitable on physical assessment but unsuitable on psychological assessment. From this it is clear that by the end of the tour in Lebanon the senior medical officer had confirmed his view that the plaintiff was liable to incapacitating anxiety states in circumstances where he came under very severe pressure. This indicates that the medical officers were aware that the plaintiff had come under very severe pressure and also that he was liable to incapacitating anxiety states. In such circumstances it is clear from the expert psychiatric evidence given by Dr. Mary McGuire that this diagnosis of liability to incapacitating anxiety states and the awareness that he had been afflicted by a number of such manifestations of anxiety states while in the Lebanon should have entailed that the plaintiff needed to be and should have been referred for medical and probably particularly psychiatric examination on his return to Ireland. I will give a more detailed description of Dr. McGuire’s evidence in due course.

Certainly it would seem vital that once the medical officers were aware of the plaintiff’s difficulties of this serious nature under pressure in the Lebanon that he should have been referred to the army psychiatrist on his return to Ireland. I appreciate that the senior medical officer is not a psychiatrist but he is a very senior military medical doctor and, as Dr. Mary McGuire pointed out, they as doctors had been aware over centuries of post traumatic stress disorder, although it was not called that widely until about 1980; nevertheless the condition had previously been well known under a string of different names from “neurasthenia” to “shell shock”. By whatever name it was known, the military were well aware that soldiers exposed to gunfire and brutality and fear of death and injury and their mortality were often affected in the mind. The mental hospitals of Europe, during the First World War, were many of them full of those suffering from “shell shock”. As to the pressures on this tour of duty, having listened to Col. Collins and Capt. McEvoy I have no doubt that the troops came under extreme pressures with Hezbollah mounting attacks on the SLA compound, particularly in the vicinity of the outposts being manned by Capt. McEvoy’s weapons platoon, including the plaintiff, both of which outposts were within about a 1000 metres of the SLA compound and the firing of weapons and fighting would have been particularly ferocious when the Hezbollah attacked and stole troop carriers from the SLA compound and drove them down past the Irish Battalion outposts during the period from the end of November to the end of January during which both Pte. William O’Brien and Cpl. McLoughlin were killed, both being well known to the plaintiff. Cpl. McLoughlin had been from Sligo and was particularly supportive and kindly to the plaintiff.
The existence of post traumatic stress disorder in the present case
The plaintiff was diagnosed as suffering from post traumatic stress disorder by the army psychiatrist who was Dr. Capt. Fionnuala O’Loughlin, who saw him in November, 1995. On his return to Ireland in April 1987, the plaintiff’s wife found him to be a man of changed personality. Shortly after his return he had the episode at night of leaping from his bed and searching frantically for his rifle, when he was disturbed by a fire siren in the night. He subsequently resorted to alcohol to try to overcome his problems which resulted in his having at least nine admissions to St. Columba’s Hospital in Sligo, many of which were in respect of excessive taking of alcohol. I should add that the case being made on behalf of the plaintiff is that he should have been examined and treated both in the Lebanon, when he exhibited the acute anxiety states, and on his return to Ireland suffering from post traumatic stress disorder. Unfortunately, while the army would have had his LA30 and his central medical file, very little information, if any, was given to Dr. Fidelma Flynn, the treating Psychiatrist in the psychiatric hospital in Sligo. She was never sent a proper history or file about his experiences in the Lebanon and of course she was dealing with a patient who was repeatedly admitted as an emergency patient in respect of abuse of alcohol. However, eventually her locum Dr. McCarrick and his assistant Dr. Paddy Breslin, despite the lack of information about the stresses in his tour of duty in 1986/7 in the Lebanon, raised the question as to whether the plaintiff was suffering from PTSD, rather than from depression and the results of taking excessive alcohol. On the 2nd June, 1994, Dr. Breslin wrote to Capt. Dr. Kerr:-

“Dear Doctor,
Mr. Murtagh was admitted to our care on 3/5/94 for alcohol detoxification. He has history of previous admission to mental health services dating back to June ’88 for treatment of alcohol abuse and depression. Prior to this admission he admitted to drinking heavily for the three previous weeks. Claimed he was drinking on account of depression and that he felt under stress in the army. Felt very discontented with army life and they were not treating him fairly (Dr. Breslin omitted the “not” but in evidence said this was simply a mistake on his part and his explanation accorded with sense in the context).

He underwent uneventful detox regime and attended AA counselling; he was also commenced on Prozac 20mg mane, which has elicited a beneficial response. He was commenced on Melleril 25mg nocte due to restlessness and agitation in the evening. But his history reveals he is a married man with four children who has lived in Ballymote all his life. He joined the army at a young age and performed duties in the Lebanon in 1986 (approx) – two close friends of his were fatally injured while on duty and Victor claims that this affected him severely. He claims he started to drink heavily on his return from the Lebanon, felt depressed and found it difficult to work in the army. He also claims that he still suffers from insomnia and nightmares associated with service in the Lebanon when his positions were under attack.

Dr. McCarrick feels that he may be suffering a form of post traumatic stress disorder and feels that treatment with his problems may help Victor’s problem. We were made aware of the army having facilities which deal with this problem in Dublin and perhaps Victor might be a candidate for assessment for such treatment. Present meds: Melerill 25mg nocte, Prozac 20mg marne, Librium 5g nocte, reducing dose. We are planning to discharge Victor on 26/94 and will follow him up at the Ballymote OPD.

Thanking you

Yours sincerely

DP Breslin SHO (Senior House Officer)

It is clear that Col. Collins must have seen this letter as he wrote on the foot of it:-
“Dr. Breslin is locum for Dr. Flynn (this is incorrect; Dr. McCarrick, an experienced psychiatrist, was the locum and Dr. Breslin was the SHO).
Capt. Kerr is arranging for review with Dr. Flynn and will discuss proposal to refer to Dublin.

25. this MS memo was signed by Col. Collins.”

Unfortunately neither Dr. Flynn nor her locum Dr. McCarrick nor any of the GPs in Sligo were given a history of the plaintiff’s experiences on tour of duty in the Lebanon in 1986/7. Despite the warning note sounded by Dr. Breslin on behalf of Dr. McCarrick (who was an experienced psychiatrist who had had experience in dealing with casualties of the ‘Desert War’), it was not until 7th November, 1995, that a handwritten letter was sent fromDr Kerr at Finner Camp near Ballyshannon to Dr. Fionnuala O’Loughlin, the army psychiatrist. This letter is significant for its tone and content and so I quote it in full:-
“850416 Pte Murtagh Victor
C Corp 28th Inf Bn

Finner Camp dob 22.10.65

Finner Camp, Ballyshannon, 7th Nov. 95

Dear Fionnuala,

Thanks for seeing this 30 year old married (with four children) but separated soldier who has various psychological and psychiatric illnesses including alcohol abuse going back as far as 1988 at least. He is currently Med. Cat. C. He has several admissions in the past to St. Columba’s Hospital under care of Dr. Fidelma Flynn, psychiatrist with both alcohol abuse and depression. The most recent one being from 17th July to 28th July ’95. I gather that Victor failed to attend for follow up on at least one occasion following his discharge. Victor is currently on S.L. (sick leave) and is on Molipaxin 150mg nocte. He is determined to leave the army but before setting up a new file for the board I would value your opinion and in addition wish to out rule any possibility of Post Traumatic Stress Disorder. Victor apparently mentioned this to Dr. Flynn’s locum in June ’94, but both she (Dr. Flynn) and I never found supporting evidence. By its nature however it is probably better that this issue is clarified before the man is reviewed by Med Board. I intend to inform Dr. Fidelma Flynn of my intention of referring the patient to you (so far today I have failed to contact her) in case she might like to add any further comments/information.

Kind regards

G. Kerr.”

I have underlined the phrase “I would value your opinion and in addition wish to out rule any possibility of Post Traumatic Stress Disorder”. An inference might be drawn from this that Dr. Kerr had misgivings about Dr. McCarrick’s suggestion about the need for a referral and the obtaining of the views of the army psychiatrist. I should also add that Dr. Flynn under cross examination did agree with Counsel for the plaintiff that the hospital notes did include references to several symptoms of PTSD; however the patient was referred to her often as an emergenct admission suffering from too much alcohol and traumatised patients are notoriously and understandably reticent in narrating the terrifying incidents which have afflicted them. Furthermore, there appears to have been no protocol or considered system for ensuring that a copy of the contents of even the LA 30 of a soldier who had served in a tough and terrifying tour in the Lebanon would be sent to the treating doctors in a Psychiatric Hospital being attended frequently by the soldier patient, even though the plaintiff patient had an A1 med category and no psychiatric problems before the experiences in the Lebanon. Dr. F. O’Loughlin moved quickly and on 17th November, 1995, she had interviewed Victor Murtagh and wrote to Capt. Dr. Kerr from St. Bricin’s Military Hospital, Infirmary Road, Dublin 7, date 17/11/95 Re: Pte. Victor Murtagh:-
“Dear Gerry,
Thank you for referring this man. He is a difficult historian and quite reluctant to discuss Leb. incidents. However, I think he may still be suffering residual effects and may in fact have PTSD.

I have asked him to come back on 29th (Wednesday, 11.30 am) to go into things in more detail.

Yours sincerely

F. O’Loughlin.”

Dr. O’Loughlin explained in evidence, she meant by ~”difficult historian” that the plaintiff had difficulty in talking about his experiences particularly in the Lebanon. In evidence she said that in this initial interview she formed a working diagnosis that he did in fact have PTSD still. As for his being a difficult historian and being quite reluctant to discuss Lebanon incidents, there was ample psychiatric evidence given that this is quite a usual feature of patients suffering from PTSD. She interviewed the patient again and on the 29th February, 1996, she confirmed her diagnosis that he was suffering from PTSD. This she confirmed by administering a CAPS test, which was done by her administering the questions in a prepared form and noting the category into which the answers fall. The CAPS test was devised by the National Center for Post Traumatic Stress Disorder in October 1990 and is a clinician-administered PTSD scale.
“Purpose: the CAPS 1 was developed to measure cardinal and hypothesised signs and symptoms of PTSD. This clinician-administered instrument provides a method to evaluate the frequency and intensity of individual symptoms, as well as the impact of the symptoms on social and occupational functioning, the degree of improvement since an earlier rating, the validity of the ratings obtained and the overall intensity of the symptoms. Whenever possible, the CAPS 1 should be used in conjunction with self-report, behavioural, and physiological measures when assessing either baseline or post treatment status.”
“If the patient makes the PTSD diagnostic criteria for the past month, he or she automatically meets the criteria for a lifetime diagnosis. If not, use the “Lifetime Symptom Query” to establish a high-symptom one month period since the trauma for which to re-assess the frequency and intensity of each symptom.”

Section 21 deals with rating validity where the clinician estimates the overall validity of the ratings obtained. Factors that may affect validity include the patient’s co-operativeness and his/her attempts to appear more or less symptomatic than is actually the case. Furthermore, the type and intensity of PTSD symptoms presented, can interfere with the patient’s concentration, attention, or ability to communicate in a coherent fashion. It is significant that Dr. O’Loughlin circled 0 in this rating validity which means that the patient was co-operating and attempting to answer genuinely and not attempting to appear more or less symptomatic than is actually the case. In short, the overall validity of the ratings obtained was excellent, with no reason to suspect invalid responses. At section 22, headed “Global Severity” the interviewer’s judgment is given of the overall severity of the patient’s PTSD symptoms. Dr. O’Loughlin has circled 3, which denotes severe symptoms, limited functioning even with effort.
By letter dated 27th May, 1996, Capt. F.B. O’Loughlin, MB MRCPsych, Psychiatrist, St. Bricins Military Hospital, Dublin 7, confirmed her view in psychiatric report;

“Re: Pte. Murtagh Victor, Unit 28 Bn, Finner, date of birth 22.10.65. Army No. 850416. Pte. Murtagh was referred to the Psychiatric clinic in November 1995, by Capt. G. Kerr.
At that time he was on sick leave C/O depression since April 1995. His sleep was disturbed, and he had early morning wakening; he had become very irritable at home with his wife and children.

He had history of an alcohol problem and depression in 1987.

He was O/S in Lebanon on 1986 with the 60 BN, and described a number of incidents which caused him distress. A friend was killed in an explosion; and a number of colleagues were injured when Tibnin House was blown up; the funeral convoy for his friend came under fire and he and his colleagues had to take cover. He also related many instances of close firing.

He suffers from post traumatic stress disorder with a history of co-morbid alcohol abuse.

He has been on Mollipaxin 150mg since April ’95. I discontinued this in March ’96, prescribed Sertraline 50mg. mane.

I last saw Pte. Murtagh in March, 1996.

He remains depressed; his sleep is poor, and he continued to be quite irritable at home.

I feel the progress in Pte. Murtagh’s case is not good as regards returning to work in the army. He has now been off sick for one year, and I feel it is very unlikely he will return to work.

He was unable to keep his last appointment, but I will arrange a further appointment in the next couple of weeks.

I remain

F. O’Loughlin Capt. MO AMC (Medical Officer, Army Medical Corps.)”

Accordingly, the plaintiff was diagnosed as suffering from post traumatic stress disorder by the Army psychiatrist who is experienced in diagnosing and treating patients with PTSD. I have absolutely no hesitation in accepting the diagnosis made by the Army psychiatrist. In her evidence she made it clear that she reached a working diagnosis at her first meeting with the plaintiff. Of course, with her experience and knowledge of avoidance and reluctance to discuss the traumatising incidents, she would have had the expertise to elicit the story from Victor Murtagh, particularly about the incident of close firing and the capture by Hezbollah of the SLA compound on the hill above the plaintiff’s outpost. In evidence she said that she had reached a working, provisional diagnosis but she was fairly sure of her diagnosis on first meeting him and it was confirmed by the administration of the CAPS test. It is certainly a curious feature of this case that the defendants seem to disown and belittle the evidence given by the then army psychiatrist and the then army psychologist. The overwhelming weight of the evidence in this case is to the effect that the plaintiff did suffer from post traumatic stress disorder which stress came from his experience of stressors in the several episodes in which he succumbed to acute states of anxiety and stress while on duty in the Lebanon. In fact the great weight of the evidence is to the effect that the plaintiff did suffer from post traumatic stress disorder contracted while in the Lebanon.
While I shall set out the defendants’ contentions about the alternatives to a diagnosis of PTSD, it seems to me that this case must differ from some others that involved an issue as to whether there was post traumatic stress, developing into PTSD. In view of the clinical diagnosis by Dr. O’Loughlin, together with result of the CAPS test on 29th February, 1996, when taken with or without the support of several other experienced psychiatrists, including Dr. John Cooney and Dr. Mary McGuire, all saying that the plaintiff did contract post traumatic stress disorder in the Lebanon and I am certain of the correctness of this diagnosis; and also that as time went on without this being treated, the condition became chronic post traumatic stress disorder, with the plaintiff becoming more and more difficult and anxious and tense, and irritable with his wife and children, to the extent that she regarded him as a changed man who came back to her from the Lebanon in April 1987.
The failure to recognise the plaintiff’s symptoms

1. Knowledge of post traumatic stress disorder in 1986
Lieutenant Colonel Goggin gave evidence of talks and briefings that he had begun to give after attending a conference of military psychologists in Paris in the spring of 1986. In 1986 he said that he confined his briefings to talking to the officers and senior NCOs and did not include and would not like to have given the impression of having spoken to private soldiers at that stage in 1986.

Lieutenant Colonel Goggin had taken his primary degree in UCD in philosophy and then did post-graduate work in educational psychology and was awarded his Masters Degree in Educational Psychology in 1988. My understanding is that he had been the Army Psychologist since 1970. Unfortunately, when he retired in 2000, some forty-six years after he had enlisted in 1954, his papers were destroyed, due to a misunderstanding on the part of cleaners.

In the mid 1980s he had been attending military conferences of psychologists and was familiar with the need to raise the awareness of the perils of stress and the need to recognise this.. He started dealing with officers in lectures on courses and then spoke to the body of officers travelling on an overseas contingent, addressing them on stress and the need to develop an empathy for people who had been traumatised, who had been through a difficult period. At that time there was a belief that people who suffered from post traumatic stress disorder, for instance, were of a particular personality profile. In fact psychology, he said, was led down the garden path by that theory, because this was proven to be incorrect by research work. The conclusion of that research done by NATO countries on a worldwide basis was that anybody could develop post traumatic stress disorder provided that person had been subjected to a traumatic insult. He explained that actually firing and killing a person can cause the person who fires and kills to become deeply traumatised, despite the macho appearance and the macho sort of ethos that would be in military organisations. He said that the initial premise for these talks was that it was a consciousness-raising exercise. It was educational in other words that people would be aware of the individual obligation on a person initially to look after his own well-being. Secondly then there was peer support where people should watch and mind out for each other and then, thirdly, leadership came in where commanders should be on the alert for people who have been in traumatic incidents and should be on the look-out for symptoms arising from such incidents. He explained that he had based his talks on the premise that they were educational and his approach had been to stress that it was a leadership problem or a management problem and accordingly he had confined himself to speaking to NCOs and officers. The colonel reiterated this point that in 1986 he confined his address to NCOs and officers and he had not spoken to private soldiers at that stage. He told his audience of officers and NCOs to look out for changes in behaviour, where an outgoing individual suddenly becomes quiet and withdrawn or the opposite where a withdrawn and quiet individual suddenly becomes the camp comedian. He suggested that an introvert becoming an extrovert could be a sign that his change in behaviour would be due to stress. One of the important things was looking for sleep patterns, because people in the billets look out for their comrades and watch how they are reacting at night, whether they are sleeping or showing signs of waking up early in the morning which would be referred to as early morning waking and is a sign of depression. A person with early morning waking would be immediately advised to go and see the medical people as a consequence. At that stage the medical corps accepted that this was an educational matter and that Col. Goggin was not interfering on their “turf”, but rather this was an educational effort where he was trying to raise the consciousness of people to alert them to the dangers of having signs of stress and kind of suppressing it or hiding it and by frank discussions among themselves to ventilate their problems and to validate that a person felt lonely and was entitled to feel lonely and to miss his wife and children particularly, perhaps around birthday time or Christmas when people would become very upset, but they would be trying to hide it. Sergeant McCabe recalled the Colonel addressing the 60th Battalion and was able to describe how the Colonel talked of putting aftershave lotion or Vick on the upper lip and he said that he could remember that, as it had to do with the appalling smell from bodies that had been decayed or decapitated or something of that nature and to prevent the smell upsetting them that they would put Vick on the upper lip or the nostrils to prevent them getting the smell. The Colonel explained that he had established good contacts at the conference with colleagues and so in the future he was able to ring his counterparts in the German Army, or British Army or American Army to get information from them. The Americans were very helpful and they had a strong association with the Israelis and they had up-to-date experience of battle and combat and made that information available to the Americans. Colonel Goggin agreed with Counsel for the defendants that there was nothing abnormal about a soldier feeling under stress in conditions where rockets are going off or guns being fired. It is only when with any particular individual the symptoms, abnormal symptoms, become manifest that you realise there is a problem. Under cross examination Col. Goggin agreed that some soldiers would not necessarily disclose problems they have even among their own peers because they might be prevented from serving overseas again and they would be seen as weak and vulnerable because of this reluctance to talk about their problems. The Colonel said that this was why it was so important to get the peer group working so that they would not lose face by having to confess vulnerability to an NCO and so among themselves they are advised to have candour and to honestly confess their problems to one another. There would be a reluctance as a Private to go to an NCO and say “I have this problem”. In recent times there had been a great improvement in the quality of the Chaplaincy. The Colonel said that the quality in-service provided by the Chaplains in 1986 would be very good.

Colonel Goggin gave one example of an officer who had been staying with a family in Yugoslavia whose home was shelled and the whole family was killed and all he saw afterwards was the young daughter’s shattered doll and the table where they had their breakfast when the shell hit. There had been a coffee pot and a loaf of bread and the officer was utterly traumatised from merely seeing this, because it reminded him of the intimacy of the family having their breakfast. The officer never saw any of the bodies at all, he just saw the pot of coffee, the bottle of milk, a loaf of bread and the child’s doll smashed and that was enough to completely throw him. The Colonel also agreed that a person could be brave through two armed raids where he was fired at and then some quite small incident subsequently could trigger post traumatic stress. Counsel for the defendants asked Col. Goggin was he correct in saying that this briefing was done in this lecture in 1986 and the Colonel replied in the affirmative. He also confirmed that he advised the officers to look out for changes in behaviour. The Colonel replied that immediately these changes were observed it was better to take action on them and this would be where medical professional people would come in. The Colonel said that you should not let changes go for more than a week as that could be very dangerous. He warned that early morning waking would be possibly the most dangerous of all the symptoms because lack of sleep can have a terrible effect. The Colonel said that he would personally intervene to take the ammunition from a person who had suffered a week of early morning waking. He would leave the man with his rifle, but he would take the ammunition from him. In conclusion, Counsel for the plaintiff referred to the entries in the AF667A attached to the LA30 dated 18th April 1987 and entries at p. 198 of Bk. 3, dealing with the entry of 29th November, 1986, where the plaintiff was found to have had (1) a “query petit mal attack subject to anxiety”; (2) on 18th December, 1986, he was found to be suffering from acute anxiety disorder; (3) on 10th January, 1987, Col. Collins found when Cpl. McLoughlin who was a friend of the plaintiff had been killed and this precipitated in the plaintiff a state of ICD300 which is an anxiety state. On 19th April, 1987, there was an entry “no psychiatric problem, but relatively immature and liable to ICD300 – anxiety under pressure – and recommended he should not serve overseas”. On 18th April, 1987, there is an entry, “found the man to be relatively emotionally immature and came under very severe pressure; he is liable to incapacitating anxiety states in such circumstances”. Having referred to those medical notes about Pte. Murtagh at that time, Counsel then asked the Colonel how that would measure up against the kind of stresses that a soldier would be subjected to in service in the Lebanon. The Colonel made clear that he was not a clinical psychologist but this was the kind of stress that he was advising them to look out for and to get professional help to cope with this. The Colonel made it clear that his efforts were directed towards raising awareness of the situation and then it was a matter for the medical doctors from there on.

Lt.-Col. Ollie Barber was one of the last witnesses called by the defence but his contribution is included here as it is germane to a challenge by the defence particularly as to when Col. Goggin gave his talk. Lt.-Col. Barber gave evidence that he had joined the army in 1973 and had gone as second in command of the Reconnaissance Company of the 60th Battalion to Lebanon for the Winter Tour of 1986/7. He had no recollection of the plaintiff who had been in “C” company. In September 1986 the Reconnaissance Company was part of the Battalion which formed up at the McKee Barracks in Kildare. Officers from there attended briefings at the Curragh.

He confirmed that Col. Goggin was correct in that there was a NATO group conference in early 1986 at Paris in the spring. This was the first of the meetings of Research Group 10 which Col. Goggin attended.

Lt.-Col. Barber made clear that Sergeant McCabe, who had given his evidence about his recalling the talk by Col. Goggin at Mullingar before Col. Goggin attended at this court, was a member of the “C” company which was formed up from Western Command in Mullingar, whereas his Reconnaisance Company was based in Kildare and had briefings at the Curragh. He also confirmed four salient matters. First he confirmed that Col. Goggin attended these conferences of military psychologists dealing with the need to become aware of the perils of stress and secondly that the Colonel put this information to good use in the army. Thirdly he said that in 1991 or 1992 the Colonel started the whole process of debriefing and by 1991 when he, Lt.-Col. Barber , attended a conference there were two excellent booklets available on such psychological topics. Fourthly, Lt.-Col. Barber said he had worked with Col. Goggin and never found him to be forgetful.

There seems to be a simple reason why Lt.-Col. Barber, as he now is, can not recall Col. Goggin giving the briefing to officers and NCOs at Mullingar in 1986 after the RSG conference in the spring in Paris. Lt.-Col. Barber was based in Kildare and their briefings were mainly at the Curragh. I accept Col. Goggin’s recollection, corroborated in advance by the recalling by Sgt. McCabe of the talk about PTSD and the need to be practical and to get on with the job when having to cope with corpses.

Dr. Mary McGuire, an experienced Consultant Psychiatrist and the Clinical Director of Roscommon Psychiatric Services in Roscommon County Hospital, was called as a witness. She had interviewed the plaintiff on two occasions, firstly on 4th October, 2005, and then on 24th October, 2006, and had prepared her report on each occasion.

With regard to Dr. McGuire’s evidence, Counsel for the defendant said that there was no objection to Dr. McGuire being led through her report and in fact this was done in respect of both her reports and we also had the benefit of Dr. McGuire’s explanations and comments on the contents. The narrative may be easier to follow if I set out the conclusion to her first report and then the entire of the second report as it is both a useful source of the history and also sets out some of the material which has led to there being a number of contentious issues in this case.

In the conclusion to the first report which was based on an assessment done on 4th October, 2005, Dr. McGuire concluded that

“Mr. Murtagh was a young married man in 1986, when he volunteered to go to the Lebanon. He was deemed to be 100% fit physically and mentally before he was allowed to go. Tragically, his two friends were killed while he was there and he was exposed to intensely frightening situations. During this time he worked long hours and it would appear that his periods of sleep were quite restricted. There is no doubt that he became extremely tense and anxious during this time and that he developed a severe anxiety state. This culminated in admission to hospital and sedation for what appears to be, in hindsight a very severe panic attack. On return to Ireland, Mr. Murtagh outlined symptoms of severe post traumatic stress disorder syndrome, including flashbacks to the incidents, sleep disturbance, searching for his rifle while asleep, increased startle response, increased tremulousness, depressed moods and inability to relax.
To overcome these distressing symptoms he began to depend on alcohol and developed a serious problem with alcohol abuse. Unfortunately all of these problems culminated in the breakdown of his marriage and multiple admissions to the local psychiatric hospital. Mr. Murtagh also lost his job in the army because of these problems and was discharged on medical grounds. At present (October 2005) Mr. Murtagh is leading a very lonely existence in Holland and remains very sad at the loss of his family and his career. Since Mr. Murtagh was a fully fit young man in mind and body when he went to the Lebanon, and because of the clarity with which he describes the symptoms of Post Traumatic Stress Disorder Syndrome so many years later, there is no doubt that his life-threatening experiences in the Lebanon triggered these symptoms and led to his dependence on alcohol. The alcohol abuse and psychological symptoms have led to the disintegration of his life and this is a source of great sadness for Mr. Murtagh.”

Dr McGuire’s second report is dated 16th November, 2006, and has a useful further history and touches on several matters which are related to issues which are in contention in this case. This second report is based on the more recent assessment carried out on 24th October, 2006. It seems to me that it would be useful to set out the entire of Dr. Mary McGuire’s second report which is dated 16th November, 2006.
I should make several points clear at the outset. One of the reasons for setting out this report in full is that it contains the plaintiff’s description of how he recalls certain incidents notably his account of an incident after the “pseudo funeral” at Naquora when he became upset at the sight of the army carrying an empty coffin for the purpose of film footage for the TV cameras. There undoubtedly was a ceremony to honour the late Cpl. McLoughlin, who had befriended and greatly supported the plaintiff according to other NCOs, and so the plaintiff’s upset was understandable. However, while his account of the attack on the bus on the way back after the “funeral” is corroborated by Corporal Gaffney, his shooting back at Israelis is improbable as it is more likely that his gun had been taken from him at Naquora and that he actually stayed on the bus and others did leave the bus and take cover. However it may be that he did stay on the bus for a time and then came out and took cover as Cpl Declan Gaffney recalled him taking cover behind a wall outside the bus. His account of this incident to Dr. McGuire is illustrative of the reality that persons who are under stress, and in his case severe stress, may well unintentionally distort, exaggerate and embroider their story or account of an incident. Throughout this case I have been conscious of his involuntary inventive creativity and have been careful to ensure that his version of events is treated with a degree of scepticism. However, I should add that I am also conscious of the fact that one of the symptoms and effects of a person being under severe stress and then suffering from PTSD is that they do tend at times to exaggerate and to imagine part of their story and to believe in its reality and this is one of the effects and accepted symptoms of PTSD. For many aspects of his description of what occurred in the Lebanon there is nearly always ample corroboration from officers and NCOs, such as for example the accounts of his acute anxiety states causing him to be incapacitated to the point even of losing consciousness and being unable to recall the events afterwards.

Secondly, in her report and discussion of his condition, Dr. McGuire refers to a number of authorities and books which have been published since 1986, as is perfectly reasonable to support her findings. When criticism was made of her using such more recent books and articles, the experienced consultant psychiatrist and clinical director explained and made clear that she was well aware of the distinction between more recent research works and previous standards and practice and made the point that military doctors have known for years about the effects of the condition which became widely known from around 1980 as post traumatic stress disorder.

“Medical Report
Name: Victor Murtagh

Address: Carrigans Upper, Ballymote, Co. Sligo

DOB 22.10.1965

Date of initial assessment 4.10.2005

Date of recent assessment 24.10.2006

Date of incident 1986

Details of incident as per report of 10.10.2005.

Progress report since October ’05: Mr. Murtagh informed me that he continues to work in the construction industry in Holland and keeps himself busy by working five or six days per week. He has overcome his severe alcohol problem and is able to have a few social drinks occasionally now. He does not abuse any drugs. He feels that his life is good now and he is very happy living in Holland. On reflection Mr. Murtagh believes that all his problems commenced in the Lebanon. He arrived there in October 1986 and entered a zone of duty where hostilities were increasing all the time. Tragically, his two close friends and colleagues were killed in combat there in December, 1986 and January 19867, respectively.

It was evident by 29.11.1986 that Mr. Murtagh was highly stressed and suffered some type of seizure where petit mal epilepsy was queried and it was recorded in his army medical notes and this may be secondary to exhaustion. With hindsight this attack may be better described as a severe Panic Attack. Unfortunately, when Mr. Murtagh became very distressed and in his own words “went mad” on the day of his friend’s funeral, he stated that he was incarcerated in a military prison for a few days. He remembers this as an extremely distressing time. He feels that the trigger factor for his outburst was the sight of the army carrying an empty coffin for the purposes of film footage for the TV cameras. He consumed a few drinks at this stage to try to calm himself but “went berserk”. He remembers travelling on a bus on the way back from his friend’s funeral and stated that the Israeli soldiers were shooting at them. When he got off the bus he started shooting back at the Israelis. He remembers an army Chaplain Fr. Murphy crawling over to him and asking him to stop shooting. He stated that he was totally indifferent to danger at this stage and did not care about anything. Following his detention in military prison he stated that he was sent to the most dangerous checkpoints and felt extremely nervous and fearful for his life initially. Gradually indifference overcame him and he did not care about his safety. He stated that he often wished he was shot and even to his day at times wishes that he had been killed at that stage. He remains very sad and full of regret regarding the loss of his wife and family. He is proud of his children and they visit him frequently now. He has a great sense of loss regarding his life as he had always hoped to have “a nice bungalow”, car and dog for his family and he always had dreams about bringing his children fishing. “That will never happen now”.

Mental State Examination on the 24.10.2006: Mr. Murtagh looked much healthier and more vibrant than on his last assessment. His speech was spontaneous and articulate and he could describe his feelings much better. His mood was sad at times throughout the interview. He denied any active suicidal ideation but has intermittent death wishes still. He has no psychotic symptoms and his cognitive state was normal.

Conclusion: Mr. Murtagh was sent to the Lebanon as a 21 year old soldier in 1986. It is apparent that he became extremely anxious in this situation of hostile conflict and had a major panic attack in November 1986. His condition was further exacerbated by the tragic deaths of his colleagues and close friends in an incident in January 1987. Following this it appears that Mr. Murtagh de-compensated and lost control of himself and placed himself in a situation of extreme danger by shooting at Israeli soldiers. He did not receive any treatment at this stage for his acute stress reaction but was imprisoned for a few days. Following this he was sent back on duty into very dangerous situations. His anxiety state reached such a level that he became indifferent and this is a well known consequence of severe anxiety and is referred to as “La belle Indifférence”. Unfortunately Mr. Murtagh began to abuse alcohol because he was using it as a sedative to control his anxiety state and to get some sleep. His anxiety state and his sleep disturbance were directly related to his severe Post Traumatic Stress Disorder Syndrome which had been precipitated by the terrifying incidents in the Lebanon. It is unfortunate that Mr Murtagh was not treated at an early stage when he developed the sypmtoms of Post Traumatic Stress Disorder Syndrome. The vulnerability factors for chronic post traumatic stress disorder syndrome were not recognised. “An individual’s recovery from trauma is facilitated by the availability of positive social supports and the inclination to use them to share the account of the trauma” (Forbes and Roger, 1999). It does not appear that Mr. Murtagh was offered any crisis intervention to help him overcome his feeling of intense grief and panic after his friend’s funeral. Instead he was put into prison. This exacerbated his condition. It appears that no psychological debriefing was offered to Mr. Murtagh. Research now shows that “Bosnia peacekeepers in the debriefed group had lower HADS scores than those in the non-debriefed group and alcohol abuse problems were lessened over time in the debriefed group” (Litz et Al. 2002, Clinical Psychological; Science and Practice, Vol. 9). It is well known that Cognitive Behaviour Therapy for recently traumatised individuals have demonstrated good promising results in preventing the development of chronic psychopathology following trauma.

Unfortunately none of this treatment was afforded to Mr. Murtagh by his employers. He has suffered severe emotional stress, depression, substance abuse and huge personal and social losses in his life because of the severe PTSDS which was triggered by the highly stressful incidents in the Lebanon.

Signed: Dr. Mary McGuire

Consultant Psychiatrist/Clinical Director

Date 16.11.2006.”

In evidence Dr. McGuire used her clinical notes as well as her report, and started by saying that the plaintiff had told her that he arrived in the Lebanon on the his twenty first birthday and was very excited and saw it as an adventure but that about six weeks later the situation became very hostile there and that there were numerous attacks on the Irish battalion by Israelis and others. Counsel for the defendants helpfully said that he had no objection to the witness being led through her report which was before the Court. Dr. McGuire said that the plaintiff named some of the hostile groups but she did not record them. He told her that during his time in the Lebanon he became very anxious to the extent that he suffered a fit on one night and was taken to Camp Shamrock and was given an injection which sedated him for a while. It is clear that this was the incident on 29th November, 1986, when he was brought in by ambulance to the RAP at Camp Shamrock at Tibnin and was kept in under the care of Col. Collins. She said that when he looked back on it now, he thinks that this was a severe panic attack, that various things had happened which made him think that he would lose his life and she had noted that at this stage he became very tearful and said he did not want to talk about them. He said that the worst part about the incidents were that he had to go back on duty after each incident. He said that the fear was so bad he could never relax and felt he was always having to be on alert. He also told her he was on duty for extended periods and got little sleep. He said that he slept with his gun beside him. He said that after his two friends had been killed he became convinced that he would never get home again himself. He became pre-occupied with these thoughts and fear and worry, but he got home in April 1987. He told Dr. McGuire that what his wife complained about when he returned home was that he was always jumping up in his sleep and searching for his rifle and that if there was any loud noise he would jump and shake uncontrollably. He stated that he had frequent vivid flashbacks. After his return he began to drink alcohol excessively to calm his nerves and his drinking went out of control. He said he knew that he became hooked on alcohol and this caused marriage problems. He became depressed and had suicidal ideas on many occasions. He was admitted to St. Columba’s Hospital Sligo, in 1988 and had many admissions after that until 1997. He said he was unsure of the dates of admission, but he felt at this stage in October 2005 that he could control alcohol now.
I should make it clear at this point that from the aspect of the importance of a sensitising incident there is ample corroboration from the evidence of the NCOs, from Capt. McEvoy and from Lt. Col. Collins that the plaintiff was subjected to extremely severe pressures including the deaths of his two colleagues, Pte. William O’Brien in December 1986 and Cpl. Dermot McLoughlin on 10th January, 1987 and the medical officers were well aware that he was suffering from acute anxiety states and noted his condition so that they should have been well aware that he was vulnerable to post traumatic stress disorder and should have realised the need for rest, counselling and therapy to prevent his immaturity and vulnerability allowing his stressed condition from becoming chronic post traumatic stress disorder of a deep seated nature with all the problems of recurrence and relapse.

Dr. McGuire had formed the opinion that the plaintiff had developed symptoms of Post Traumatic Stress Disorder as a result of sensitising incidents. There was certainly corroboration from the NCOs and from Capt. McEvoy and Colonel Collins that this tour of duty was fraught with hostility and with incidents of soldiers coming under close fire and with three Irish soldiers being killed between July 1986, and February 1987. Dr. McGuire helpfully explained some of the symptoms which she gleaned from the plaintiff’s account to her. These included flashbacks, sleep disturbance including early morning wakening, and startle response, which in Mr. Murtagh’s case, meant that he would tremble in nervous agitation and be jumpy. Doctors call this trembling uncontrollably and she described this as very “exaggerated” and explained that this is not voluntary, but is an increased startle reflex, which is involuntary and definitely does not mean that the patient is putting this on voluntarily. The plaintiff had also developed depressed mood and an inability to relax, and he had described to her a continual sense of fear while he was in the Lebanon. The plaintiff told her that he had been deemed one hundred per cent fit before he was going to the Lebanon, and described to her that he had to be hospitalised and medicated there and had been given a Diazepam injection, and because his symptoms had continued on his return home, it is her opinion that his symptoms, flashbacks, sleep disturbance, startle response and anxiety states, depressed mood and inability to relax and his always having a sense of fear, were indicative that these symptoms had been triggered by incidents in the Lebanon and she said that the dependence on alcohol had progressed from there. He had told her that he was using alcohol to calm his nerves, and the alcohol abuse and his psychological symptoms had led to the disintegration of his family life, which was a source of great sadness for him. Dr. McGuire said that when she saw him on 24th October, 2006, he looked much better and was better able to express himself. He was much calmer and more articulate and spontaneous. He was volunteering information and he was better able to describe his feelings about the way he feels now about the loss of his wife and children. He and his wife had been separated for some time. Counsel was able to confirm that while he and his wife had been separated for some time and she was in a new relationship, nevertheless, there was no decree of divorce and so they were still married. Dr. McGuire explained that she regarded the medical records of the admission to the RAP Tibnin, on 29th November, 1986, when they queried petit mal epileptic attack secondary to exhaustion, as significant in that they indicated that he was in a highly stressed condition as a result of intense anxiety and being overwrought, and exhaustion was recorded. She thought “petit mal” was an unusual query as “petit mal” is just an absence or a lapse and is very transient. For example, a transient lapse would be where a person may stop in mid-sentence and then recover a few moments later. It is a transient absence or interruption in the electrical activity of the brain. It may be observed as a pause in speech, or somebody stopping what they are doing for a moment. A definitive diagnosis of this would be by an EEG (Electrco Encephalogram). Dr. McGuire said that the entries with regard to his admission to the RAP at Tibnin, should have flagged the fact that he was becoming very anxious and stressed in his work situation. In the context of combat, if somebody gets acute stress reactions, then this is one of the main indicators for development of post traumatic stress disorder. Dr. McGuire indicated that with hindsight, this attack may be better described as a severe panic attack. This episode and subsequent incidents, as well as admissions to the RAP, because of incapacitating tremulous attacks should have been strong warnings of the likelihood of the development of PTSD.

The plaintiff had described his recollection of the scene at Naquora when he became greatly upset by the sight of the army carrying an empty coffin for the purposes of film footage for TV cameras at the farewell ceremony at UNIFIL headquarters, Camp Naquora, in respect of his colleague and supportive mentor, Cpl. McLoughlin. The plaintiff had given Dr. McGuire a colourful account of the bus coming under fire and how he had got off the bus and had started shooting back at the Israelis and an Army Chaplain crawling over to him and asking him to stop shooting, aspects of which would appear to be figments of his imagination as he had taken drink before getting on the bus, and had been relieved of his gun and may have remained on the bus when there was gunfire and others had dismounted and left the bus in order to take cover. I should add that Corporal Gaffney did say that the plaintiff had left the bus and taken cover. Dr. McGuire explained that research had shown that people who suffer with post traumatic stress disorder, sometimes their memories change over time regarding very stressful incidents. Research had now shown that these people are not lying, but their recall is different in that their memory changes over time, as to their recollection of the event. Research has shown that the more severe an interrogation is, then the less likely the person being interrogated is to recognise his interrogators afterwards. Dr. McGuire made it clear that, taking this inventiveness into her considerations, her conclusion was still firmly that the plaintiff was suffering from post traumatic stress disorder and that he had suffered post traumatic stress disorder since his time in the Lebanon. Dr. McGuire was taken through the entries in the LA30 form for December 1986, in particular from 29th November to 18th December, and in the completion AF667A form for 18th April, 1987, which stated:-

“Completion AF667A, no psy. (Psychiatric problem) but relatively immature personality. Liable to ICD 300 under pressure. Rec. he should not serve OS (overseas) for three years.”
She explained that ICD300 means an anxiety attack. Dr. McGuire was referred to the AF667A document at part 2 on medical suitability where there was medical category in the right hand box, A1, and then in handwriting:-
“This man is relatively emotionally immature and came under very severe pressure. He is liable to incapacitating anxiety states in such circumstances and should not serve overseas for three years.”
Dr. McGuire read all this and said that the fact that he was regarded as relatively emotionally immature and that he came under very severe pressure and that he was liable to incapacitating anxiety states in such circumstances, was significant. These features are main indicators of the probability or possibility of chronic Post Traumatic Stress Disorder, if not treated. Dr. McGuire subsequently expanded on this by saying that any person who has suffered from incapacitating anxiety under stress, should be referred for treatment.
Dr. McGuire was then referred to the proceedings of the Medical Board at Finner Camp on 15th December, 1988:

Form AF332, for the purpose of examining No. 850416 Rank Pte. Surname Murtagh, Christian Name Victor, Unit 28 Inf. BT, age 23, service, four (years).
The following documents are before the Board LA30.

Patient’s condition: complains of nil at present. History of anxiety/depression in Lebanon 1987; depression and alcohol abuse, June 1988.

Indicate documents bearing on disability (if any) LA30.

Examination reveals subject to incapacitating anxiety/depression, under pressure. History; secondary alcohol abuse, June 1988. Well since.

Finding and recommendation. The Board finds that No. 850146, Rank Pte., Name, Murtagh Victor, above mentioned, is suffering from immature personality, subject to anxiety/depression when under pressure, and recommends that the man be reclassified Med. Cat. C. Needs to be closely observed for signs of stress. Not fit for o/seas service.

Signed at Finner Camp, the 13th day of December, 1988

Maurice Collins, Lieutenant Colonel President; Capt. G. Kerr Member Medical Board

Disposal of proceedings DMC/OC 28 Inf. bat/file, which means send to Director, Medical Corps/Officer Commanding 28th Infantry Battalion/File on Colonel Collins’ file.

Dr. McGuire was asked, on the basis of what was recorded there, “incapacitating anxiety/depression under pressure”, was there any particular significance to be attached to that in the context of Mr. Murtagh and his history? She replied that it is apparent that he is decompensating psychologically following his trip to the Lebanon, and as advised by Colonel Collins, he should have been closely observed thereafter. She said that the reference to incapacitating anxiety/depression under pressure was very significant. It means that the man cannot tolerate pressure and that he developed a recognised severe anxiety state and depression when he was under pressure. He should have been checked out and monitored for any signs of development of post traumatic stress disorder, at that stage. This should have happened immediately after he was hospitalised in 1986, and it should have happened when he was on duty in the Lebanon after his hospitalisation and the stress was recognised. His psychological state should have been checked and the reasons and feelings around his incapacitating anxiety should have been explored.
Dr. McGuire was asked about the recommendation that the man be reclassified Med. Cat. C and “needs to be closely observed for signs of stress, Not fit for o/seas service”. She was asked if she was in a position to express any view as to whether observation by non-medical officers would be sufficient or adequate in the circumstances, and she replied “as long as they knew what they were looking for and that they were trained in symptoms and signs of stress and that they could alert the appropriate personnel to the signs of stress”. She explained the prominent signs of stress as being the vulnerability factors which should be identified, being Mr. Murtagh’s young age and the fact that he was away from home, and lacking social support; that he was always tense and could not sleep; and that he had been diagnosed with an anxiety state that was F300 or ICD300, which would be the recognised vulnerability factors. I then said that there was evidence that one of the men who was killed out there was from the same town as the plaintiff and was an older man in his thirties and something of a father figure to the plaintiff, and would that have any effect? Dr. McGuire said that that would be a very significant exit event. Counsel for the defendant pointed out that I had mistaken the evidence. Corporal McLoughlin was from Sligo town, the plaintiff was from Ballymote, and that I had prefaced my question by saying they were from the same town and that was factually incorrect. In fact, the plaintiff had been born and had lived in his early years in Sligo town, but on his mother’s death, had gone to Ballymote to live with his grandparents, and indeed, after his marriage in 1984, he had been living in Sligo town with his wife until they moved to Ballymote in 1986. Counsel correctly said that I had prefaced my question by saying they were from the same town, and that that was factually incorrect. I mentioned that I had the impression at an earlier stage, that he had some connection with Ballymote and I was told that I was wrong. I think I was misled by the uncontradicted statement in para. 6 of the Statement of Claim that in the course of his service with UNIFIL in the Lebanon, a close comrade of the plaintiff, Pte. Dermot McLoughlin, also from Ballymote, County Sligo, was killed; this erroneous passage had not been contradicted and in fact Cpl. McLoughlin was from Sligo town. However, little hangs on this error because there was evidence that the part of the contingent from the Sligo area did associate together, and several witnesses expressly praised Cpl McLoughlin for his care of and support for the plaintiff when he became distressed and incapacitated by his anxieties while on duty at the two outposts manned by the weapons platoon. Certainly, from the evidence of Capt. McEvoy, Sgt Flanagan, and Sgt McCabe and Veronica Murtagh, the plaintiff’s wife, the plaintiff was deeply grateful to the late Dermot McLoughlin and spoke well of him frequently to his wife during his telephone calls to her. In short, any inaccuracy was explicable and of little materiality in the context.

Counsel for the plaintiff asked Dr. McGuire if a referral is made for the purpose of carrying out an assessment as to whether the man was suffering PTSD or not, would a doctor find it valuable or useful to be given sight of the medical records, the LA30 and the CMF documents, and Dr. McGuire replied that they would be very useful. It would be very necessary to see how the man coped under stress in the Lebanon. He then asked her what significance she attached to early diagnosis and treatment of PTSD. She replied that, “present day thinking is that the earlier the diagnosis, the better the outcome, though it is really important to diagnose at a very early stage. It is really important to teach the sufferer about the symptoms and the reactions they are having, because that is very frightening for the person who is suffering from the symptoms”. Counsel for the defendants pointed out that the witness had prefaced her answer by saying “present day thinking” and said that a view now based on present day thinking when assessing retrospectively back twenty-one years, was invalid. I remarked that I had pointed out at the start of the case that time factors and chronology in this case were important. Dr. McGuire responded to the suggestion that it was “wholly invalid and that we were going up the garden path by applying present day thinking retrospectively back twenty-one years” by commenting that present day thinking was that early treatment was helpful; and she added that this was long established by describing how during the First World War the British sent their people home from France to be treated for stress, but the French treated them on site promptly and more immediately, and it was recognised that they had better outcomes in that those treated in the war zone, got back to work much more quickly. She added that as long as soldiers are told that their reactions are normal in the context of the crisis or the tragedy, whatever has happened to them, that it is very therapeutic for people to realise that they are not abnormal. Counsel then asked her if she was in a position to offer a view as to whether there would have been any effect on the plaintiff if he had been treated at an early time in 1986 or 1987? She replied that this may have prevented his use of alcohol to calm his nerves and his subsequent development of such a severe alcohol problem. A delay in diagnosis and treatment meant that the plaintiff had become chronically anxious and was trying to settle his nerves himself by using alcohol. She said that cognitive behavioural therapy was the most popular, meaning usual and helpful treatment for it. This involves identifying the fears and the symptoms and teaching the person how to cope with these and how to relax while experiencing them. Medication, tranquillisers, or antidepressants are necessary at times too. Subsequently, she was asked if, to her professional knowledge, there was any noted difficulty in taking a history from military personnel who may be suffering from Post Traumatic Stress Disorder and she replied that it was an established phenomenon that they do not like to verbalise or vocalise fear because that is seen as a sign of failure on their part. This may be connected to a sense of military background or tradition, and because of peer pressure as well, because they would be seen to be weaker than their comrades. She then added that from the records she had looked at, there was no indication that this was expressed by the plaintiff nor had it been explored with him. Under cross-examination, when it was put to her that he made no complaint to anybody about any of the so-called problems, she replied, “that is my point. He would not express them”. She went on to explain that she wanted to say as (he is) a soldier, it is well known that soldiers do not express their fears. It is better to be seen to have a physical illness than to be seen to be psychologically weak. She was asked if this was from her own personal observation from dealing with soldiers, or from literature on it, and replied that it was both, from her own dealings and experience treating soldiers and also part of the research being done by Dr. Morgan whom she had mentioned earlier on that day. She was asked in the context of the account given to her by the plaintiff about being on a bus and being attacked and shooting back, and on the premise that it was accepted that this was incorrect which is accurate about the unlikeliness of the plaintiff shooting back. She replied that this can be explained by people with post traumatic stress disorder being confused. She said that memories change all the time. She went on to say that the fact is that it is twenty years ago and memory does alter over time, and Mr. Murtagh’s interpretation and recall of the events on that day are obviously at variance with what was being heard in court, but that is due to the way he has seen it and he is recalling. She said that all our memories vary over time and that it is said to be indicative of post traumatic stress disorder that recollections can vary more over time; that the recall of the event changes over time and the more stressful the event, the more it varies. Counsel told her that Sgt. Flanagan had said that one or two mortars had exploded, perhaps half a kilometre ahead of the convoy, which stopped. The plaintiff remained on the bus and other people got out of the bus. When the situation calmed down, they continued their journey. He asked if that sounded like a particularly stressful event and she replied, “it depends on the character and depends on how stressed the plaintiff was before he got on the bus and the state of mind which he was in”. In fairness to the plaintiff I should remark that Corporal Gaffney, who knew the plaintiff well from pre Lebanon tours of duty on the Northern Ireland border did not regard the plaintiff as drunk after the Naquora ceremony, but very upset and he recalled closer firing and that the plaintiff did leave the bus and take cover, although he confirmed that the plaintiff did not have his rifle and could not have been firing back.

Counsel, cross-examining, then suggested the person with PTSD may not recollect accurately by amplifying the event as opposed to inventing detail which never existed. Dr. McGuire replied that she could not cite any research which makes any of those conclusions except that the memory is altered. Counsel suggested that in PTSD, an exaggeration of events is recognised in the literature but not an invention of fact and he cited an article in the American Journal of Psychiatry 1997, p. 170, “Consistency of Memory for Combat – Related Traumatic Events in Veterans of Operation Desert Storm”, Steven M. Southwick, M.D., C. Andrew Morgan III, M.D., Andreas L. Nicolaou, Ph.D., and Dennis S. Charney, M.D. Dr. McGuire said that she was not aware of that piece of research. In fact, the objective of this article in the American Journal of Psychiatry in 1997 is explained in the head note:-

“The nature of traumatic memories is currently the subject of intense scientific investigation. While some researchers have described traumatic memory as fixed and indelible, others have found it to be malleable and subject to substantial alteration. The current study is a prospective investigation of memory for serious combat-related traumatic events in veterans of Operation Desert Storm.
Method: Fifty-nine National Guard reservists from two separate units completed a nineteen-item trauma questionnaire about their combat experiences, one month and two years after their return from the Gulf War. Responses were compared for consistency between the two time points and correlated with levels of symptoms of post traumatic stress disorder (PTSD).

Results: There were many instances of inconsistent recall for events that were objective and highly traumatic in nature. Eighty-eight percent of subjects changed their responses on at least one of the nineteen items, while sixty-one percent changed two or more items. There was a significant positive correlation between score on the Mississippi Scale For Combat-Related Post Traumatic Stress Disorder at two years, and the number of responses on the trauma questionnaire changed from ‘no’ at one month to ‘yes’ at two years.

Conclusions: These findings do not support the position that traumatic memories are fixed or indelible. Further, the data suggest that as PTSD symptoms increase, so does amplification of memory for traumatic events.”

This study raises questions about the accuracy of recall for traumatic events, as well as about the well established, but retrospectively determined relationship between level of exposure to trauma and degree of PTSD symptoms.”

In the article, it was proposed that a high degree of consistency would support the notion that memory for traumatic events is indelible, while inconsistency of responses would favour the opposing position. Consistency of recall has implications for the widely accepted belief that high-level combat exposure is a powerful predictor of subsequent PTSD. If memories of combat are inconsistent over time, then the relationship between PTSD and combat exposure would be a tenuous one. In the discussion on the results, a questionnaire one month after the war, and then two years later, it became clear that fifty-two of fifty-nine National Guard reservists reported changes in memory for personally experienced traumatic events during Operation Desert Storm. One month after the war, forty-six percent of subjects reported one or more traumatic events that they did not recall two years later. Further the 70% of subjects at the two year evaluation recalled traumatic events that they had not reported at one month. These changes in memory were observed for a wide variety of traumatic experiences. Thus in this group of Desert Storm veterans, there were many instances of inconsistent recall for events that were generally objective and highly traumatic in nature. These inconsistencies raised doubts about the reliability of memory for combat. I think this would certainly raise doubts about the view that memories of trauma are fixed or indelible and remain remarkably accurate over the lifetime of the person involved in the traumatic incident.
I have mentioned the findings in this study as they have potential implications for treatment of patients, but also because it would seem that memory for traumatic events frequently changes over time which is a finding that suggests that the search for historical “truth” may be fraught with complexity. Memories described by trauma survivors in the present at times appear to be inconsistent with earlier memories for the same events. Thus efforts by therapists to uncover the real “truth” may be misguided. It may make more psycho-therapeutic sense to work with the patient’s current version of the past since the “real version” may no longer exist. The study shows that changes in memory of such traumatic events can appear regardless of what actually happened. The article does not seem to make a distinction between amplification of the event as opposed to inventing a detail which never existed. It seems to me that Dr. McGuire was correct in refusing the invitation to agree that in PTSD an exaggeration of events is recognised in the literature but not an invention of fact. She was prudent in stating that she could not give any research which makes any of those conclusions except that the memory is altered. The lesson which I take from this is that the findings of this research do not support the position that traumatic memories are fixed or indelible, which certainly has been suggested in some of the sexual assault cases. Further the data suggests that as PTSD symptoms increase, so does amplification of memory for traumatic events. The study does raise questions about the accuracy of recall for traumatic events. Certainly it seems that this is a warning to be careful in forming the view that a person who is suffering from PTSD is trying to mislead the court with unrealistic exaggerations and fictional additions to facts of the traumatic event. In the present case, there is considerable information about various traumatic incidents forthcoming from the officers and NCOs in the plaintiff’s Platoon and Company and there is ample corroboration that this was a “tough battalion”, meaning a tough time was had by all, being the comment of Lt. Col. Collins. Dr McGuire was asked if she had given the plaintiff any treatment and she replied that she had discussed cognitive behaviour therapy with him but he said he was living in Holland and he felt that he was getting his life back in order trying to deal with his problems at that stage. She did not think it was peculiar that he was not going to hospital or to doctors after 1997 because he was controlling his alcoholic intake and he was working and trying to re-establish himself with his family. His focus was on remaining abstinent and working. But this did not detract from the fact that he became very tearful on the first day that she had met him and was obviously still very upset by the incidents in the Lebanon. A discussion then ensued between counsel and Dr. McGuire about the tentative suggestion coming from Dr. McCarrick via his SHO Dr. Paddy Breslin that Dr. McCarrick feels that he (Mr. Murtagh) may be suffering a form of post traumatic stress disorder which counsel pointed out had two qualifications in the use of the word “may” and in “a form of PTSD”. Dr. McCarrick was not saying that he does suffer from post traumatic stress disorder but rather it was something that needed to be checked out. Dr. Breslin went on to mention in his letter to Dr. Kerr, that it was understood that the army psychiatrist had a clinic in Dublin and perhaps a referral would be considered. Neither Dr. McCarrick nor Dr. Breslin had the LA 30 or CMF file as neither these nor a history of the plaintiff’s Lebanon tour was ever sent to St. Columba’s Hospital in Sligo.

Counsel for the defendant told Dr. McGuire that he wanted to make an important point to her, that she had done her diagnosis in 2005, to the effect that the plaintiff was suffering from post traumatic stress disorder, by reference to a diagnostic technique that did not exist until the late 90s, so she was applying retrospectively a new diagnostic technique. She responded that the symptoms are the same and they correspond with the diagnosis of PTSDS. He said that there was a change between ICD9 and ICD10 and she agreed that they had changed the format in that the letter F has been inserted in front of all codes in ICD10. Counsel pointed out to her that the plaintiff’s case is that there was a failure by the army to diagnose him as suffering from post traumatic stress disorder and therefore a failure to treat him. He suggested that in 2005, she diagnosed him as having PTSD by a set of criteria which only came into existence in the late 1990s. She agreed that this was correct and that the plaintiff had left the army at that stage. She pointed out that the man had been diagnosed not just with anxiety but in fact it was severe anxiety and that was flagging the fact that he was decompensating psychologically. She said that her point was that the man’s symptoms started in the Lebanon and continued thereafter and that they should have identified him as being at risk of developing PTSD on the basis of the state of medical knowledge at that time. She had done her MB in 1974/75 and got her membership of the Royal College of Psychiatrists in 1981. She practised psychiatry in the Tyrone and Fermanagh Psychiatric Hospital and then came back to Castlerea in Co. Roscommon and had been based in the County Hospital Roscommon since 1992, after St. Patrick’s Psychiatric Hospital closed and was turned into a prison. She had started training in psychiatry in 1977. She was asked if for the purpose of making her diagnosis in October 2005 she had a checklist to mark off and she replied that she did not but that she did have the CAPS document used by Dr. O’Loughlin and had based her assessment of the plaintiff on the plaintiff’s history and his own description of what he suffered and felt, as well as reports available to her and the CAPS document. The plaintiff had outlined his symptoms to her, which were consistent with the checklist that is available in the PTSD SDS list of symptomatology and she recognised the symptoms as he told them to her. She wrote down his symptoms as he described them to her. She said that mentally she knew they are a part of PTSD SDS, from coming across it frequently and that was the basis of her decision. She said that she had relied on the answers recorded from him in the CAPS document in respect of the overall assessment. Counsel made the point to her that the CAPS was not invented until October 1990 and she responded to this by accepting that, but pointing out that there was a general knowledge and understanding of PTSD for a very long time. When he asked her, if you apply your criteria, what is the first criterion concerning the alleged traumatic event, she replied that the person has experienced or witnessed an incident which is life threatening or very distressing. Dr. McGuire said that (the doctor has to be satisfied) that the person was in a situation of experiencing severe stress because of a life threatening event or danger to himself. She agreed that there was a second leg to this involving intense fear, helplessness or horror and said that was correct and said that Mr. Murtagh had described intense fear. Counsel then referred to appendix at p. 137 of Gillian Kelly’s “Post Traumatic Stress Disorder and the Law” which was reprinted with permission from the Diagnostic And Statistical Manual Of Mental Disorders (4th Ed. 1994), of the American Psychiatric association and reads:-

DSM-iv. Diagnostic criteria for 309.81 post traumatic stress disorder.
A. The person has been exposed to a traumatic event in which both of the following were present:

1. The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
2. The person’s response involves intense fear, helplessness or horror. [Note: in children, this may be expressed instead by disorganised or agitated behaviour.]

B. The traumatic event is persistently experienced in one or more of the following ways:

1. recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions. [Note: in young children, repetitive play may occur in which scenes or aspects of the trauma are expressed.]
2. recurrent distressing dreams of the event. Note: in children there may be frightening dreams without recognisable content.

3. acting or feeling as if the traumatic event were recurring (include a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated). [Note: in young children, trauma-specific enactment may occur.]

4. intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.

Counsel asked Dr. McGuire if she accepted the criterion as set out in para. A1 above about threat of death or serious injury to self or others as being required. She agreed and said that the plaintiff had told her that he was in a situation of intense hostilities and was involved in a life threatening incident where he was held at gun point and was convinced he was about to be killed. Counsel for the defendants said to her that the plaintiff in evidence had never described an incident where he was held at gunpoint and threatened with being killed. (In fact, this was a mistake as the plaintiff did describe such an incident at the Total Station Chekpoint. I deal with this evidence of the plaintiff about incidents of close firing and being pinned down below under Sensitising Stressors where I set out a number of such incidents which were clearly frightening and involving mortal peril which were clearly and credibly described by the plaintiff.) She simply replied by stating that is what he told me and that she had to base her assessment on what the man told her. She said that the deaths of his comrades had a major impact on him. When it was pointed out to her that he says “witnessed or confronted” she replied that he did not tell her he witnessed it but that he “experienced” it and that she knew that it was very traumatic for him anyway to discover that these two men were killed. She explained that he was in the same situation himself as his life was being exposed to the noise and the activities and the moving around, whatever area he was in. It was very immediate for him. She said that she did not know about the distances but psychologically it was a very immediate threat. She would not change her diagnosis because he had described the symptoms which emanated from his perception of whatever had happened in the Lebanon.
Counsel for the defendants objected to lack of notice of the plaintiff being under fire and particularly para. 6 of the Statement of Claim. However the plaintiff’s case has clearly been that as a result of incidents in the Lebanon including episodes in which his colleagues were killed, the plaintiff was traumatised and subsequently there was a failure to treat him which is the gist in the Statement of Claims, Replies to Particulars and also in the Medical Report dated the 27th May 1996 of Dr. O’Loughlin, the army psychiatrist, which should have been well known to the defendants, as submitted by Colm Smyth S.C. for the plaintiff.

The plaintiff had shared a billet with Corporal McLoughlin in Post 6-21 and reacted to the news of his death by losing conciousness that night at Camp Brashit on 10th of January 1987. He came into the RAP at Camp Shamrock where he recalled being given an injection. I accept the plaintiff’s evidence on this and I think the death of Corporal McLoughlin and the incidents on the 10th of January 1987 and pressures at the RAP is consistent with the recollection of various officers and NCOs and ties with the “acute anxiety states causing incapacity” referred to by Colonel Collins.

Counsel for the plaintiff submitted that there was a string of other incidents that resulted in the plaintiff going into a trancelike state and these were referred to in an omnibus fashion in Dr. McGuire’s report when she referred to “various life threatening incidents” which he finds too distressing to talk about and became tearful when he mentioned them. After each incident he had to go back on duty and his anxiety state became so intense he could never relax and that was all consistent with the evidence heard from the plaintiff from CQMS Flanagan and Cpl Gaffney. Dr. McGuire simply again responded in cross examination that “all I can tell you is that the man told me that he was held at gunpoint.” Counsel for the defendants then put to her that Dr. O’Loughlin described him as “an unreliable historian”, meaning reluctant rather than inaccurate or deliberately unwilling. Counsel immediately corrected himself and said “a difficult historian”. Dr. McGuire said that she found him to be a very upset, tearful and distressed historian and he did not wish to recount the incidents which had distressed him. On the second interview day he was much better able to express himself but on the first day he was very anxious. He gave her information about certain things but there were exceptional incidents in the Lebanon that so upset him that he did not wish to discuss them. She added that it was unusual to find a male patient sobbing and crying and that is the way the man was on that day. He told her that he had been shot at and about whatever is in the report but he did not go into specifics, and he was convinced he was going to be killed and that is the important part. This was the thought that preoccupied him in the Lebanon, that he was never going to see home. He also told her further on that he was convinced that he would never get home alive which is the same as being killed. It was suggested to her by Counsel that this was a reasonable feeling for any soldier sent out to combat situations. He asked was there anything unusual about that to which she replied that he was convinced and was thinking about it all the time; he was preoccupied with it and that is the difference. She was sure other soldiers were frightened, but they may not be preoccupied all the time about it. Counsel then suggested to Dr. McGuire that the ICD classification produced by the World Health Organisation says PTSD could not generally be diagnosed unless there is evidence that it arose within six months after a traumatic event of an exceptional severity. Her response to this was that Mr. Murtagh was treated during his stint in the Lebanon following what he told her were traumatic incidents, so he was displaying symptoms of acute stress at that early stage.

Counsel for the plaintiff told the court he had just learned that there was a book of the incidents occurring to this Battalion which he was then informed was called “the Unit History of the 60th Battalion”. This had not been sought up to this point and it occurs to me that if such a book does exist then in future cases the contents of this book may be very useful to all parties once discovered, particularly in reducing length of cases and costs and it may also obviate the need for lengthy inquiry and evidence about numerous incidents taking place in the Lebanon as presumably this Unit History book will contain a description of the incidents and those who were involved.

When Dr. McGuire returned to court after some days she confirmed that her diagnosis had been made on the basis of the plaintiff’s information and his symptoms as described in the medical reports that were made available to her.

She was asked why Dr. Fidelma Flynn, another senior and experienced psychiatrist in the west, had not diagnosed PTSD. Dr. McGuire said that her experience was that one had to do a lot of “fire brigade” work where patients came in who had taken too much alcohol and that one treated the immediate problem and that there might not be an opportunity for the exploration of underlying reasons why a person was in such a state. Also in this particular case it was obvious that Dr Flymm did not have the benefit of the soldier’s log book as to what had happened to him the Lebanon. The army had been aware of his admissions to hospital and indeed Dr. Flynn had written to the medical officer in Finner Camp. It would appear that there is no protocol or system whereby when a soldier goes into a civilian hospital that the LA30 and the CMS file are copied and sent to the treating doctor. Of course there would have to be a check on the contents of the file to preserve patient confidentiality, and the need for the patients’ consent, but these are presumably matters which the army can deal with carefully with all due sensitivity. It would seem very important that treating doctors should have the complete medical history, or as complete as is practical. Dr. McGuire did express the view that the file from St. Columba’s did indicate that there were symptoms referred to in it which did indicate that the plaintiff, who was a soldier and had served overseas in a hostile area, should have been explored further, such as some of the constellation of symptoms making up PTSD. Incidentally, counsel for the defendant referred to Dr. Flynn as being “the primary carer”, whereas much of the thrust of the evidence of Dr. McGuire was that the army doctors in the Lebanon should have realised the vulnerability of the plaintiff and they should have identified the perils for a person of immature personality who was brought in to them on more than one occasion in a state of acute anxiety. Accordingly, they should have realised that he was susceptible to PTSD. Dr. McGuire said the plaintiff had expressed extreme anger with the army on a few occasions in the clinical notes in St. Columba’s and since his expressions were disproportionate to the events, it was surprising that these feelings of anger had not been explored to see why he did feel so badly, but that there was no reference to any such exploration in the notes. For example in September 1990 there had been a note made of his having nightmares and dreams about people being buried alive as well as buzzing in his ears and there was another entry about “nightmares +++” meaning a lot of nightmares. As for the diagnostic criteria, Dr. McGuire said that the plaintiff may well have been diagnosed as ICD300 at the time because he had an acute anxiety state. That does not mean that he was not going to get post traumatic stress disorder thereafter. It does not exclude anything. She had already explained that these are just diagnostic categories for the sake of putting a code on a patient’s illness, it does not mean you can exclude that PTSD may not follow on. Dr. McGuire also made the point that prior to his trip to the Lebanon, there was nothing significant on his sick leave record that would indicate any problems, he had been a good worker and had not been on sick leave noticeably prior to his return from the Lebanon. She felt that psychological counselling would have helped and also some medication, although she did say that the taking of Prozac is often stigmatised by soldiers because they do not wish to be branded as a psychiatric patient. She also made the important point that cognitive behaviour therapy was being used in the mid 1980s and group counselling was regarded as being very beneficial. In fact the plaintiff did attend group counselling in relation to his alcohol problem in Donegal and found this group therapy to be beneficial. It was suggested to Dr. McGuire that if he did not take advice about medication and counselling what could be done for him. To this Dr. McGuire replied that other people can look out for him and his interests such as his employers and his family. Counsel suggested to Dr. McGuire that the plaintiff had made no complaint to anybody in the army about the intrusive thoughts which he was having. She responded to this by pointing out that his sick leave record was telling its own story after he came back from Lebanon. She pointed out that he had been in hospital for detoxification and so the army knew about his problem. At that time in the late 80s it was a very pertinent time for PTSD because in 1987 the MOD in England had had a ruling against it that it no longer had crown immunity from looking after its injured soldiers, the ones who were injured both physically and psychologically. So PTS was a very popular and much discussed topic at that time … It was in every journal, every journal that was available to doctors in the 1980s and 1990s was full of information about PTSD. There were articles in the various journals. It was very topical after the Falklands war, that brought it into focus as did the troubles in Northern Ireland, so that it was something of which people were aware. She made it clear that what she was saying was that anyone would recognise that somebody had been traumatised in a traumatic situation and might have had it checked out further. Counsel for the defendants pointed out that it was said that Dr. Scully had indicated he should have counselling, so obviously she was alerted to it (referring to his psychological condition). Counsel asked why the other GPs did not diagnose PTSD. Dr. McGuire said that the plaintiff saw the other GPs in crisis situations with alcohol problems and he was sent into hospital and because he was admitted for detoxification, that is for a crisis admission. Counsel referred her to the LA30 “on the 26th and 27th where he had been admitted for other injuries”. Dr. McGuire said that this just alerted her to the fact that she wondered why he was not called for an independent medical by his employers and why they were not worrying about why this man was missing so much time from work. In her view he should have been checked out to see what was going on. His sick leave pattern had changed so hugely since his tour in the Lebanon. None of the GPs had picked up on the PTS except Dr. Scully who had referred him on. The sooner PTSD is diagnosed, the easier it is to be treated but, having said that, people are treated successfully regardless of when it is diagnosed. She was asked if he had taken Dr. Scully’s advice would the problem have been cleared up and she replied that it would have helped his problem certainly but she was told that this was in February 1988, and she said that her remark must be qualified by his mental state at the time and apparently he was in the throes of alcohol abuse, very over-alert, his autonomic (nervous system) being on alert because he was not sleeping, while he was having nightmares and was very traumatised. He was self medicating with alcohol at the time to try and relax himself. She pointed out that stopping taking medication was a very common phenomenon as was doubling the dose. When she was asked what could have anyone done for the plaintiff she replied that the first thing is that he should have been given some knowledge around his problems, if he had been educated, if he had been prepared for the onset of symptoms that he would have recognised them and he would not have been so distressed thinking he was abnormal and he would not have been hiding these problems. If there had been a support group in place for him, he could have availed of that and improved very considerably. Dr. McGuire also said in answer to the question about following Dr. Scully’s advice that she did not know the answer as this depended on how unwell he was at that stage; and on being told that he was advised in respect of treatment with Prozac and psychiatric counselling, she said that most PTSD suffers did not find that intervention useful. More helpful were education, discussion with peer groups and employers’ understanding of what was wrong with the employee. She felt that the employer should have checked him out, because why a man with a good work record would now go missing from work? The employer should have checked out what the cause was of the huge change in the plaintiff’s sick leave pattern on his return from the Lebanon. He needed education in respect of his problems and an understanding of them and once he had got the diagnosis from Dr. Fionnuala O’Loughlin then he started to improve by self help because of his understanding of his problems. She made it clear that her opinion was that if somebody is diagnosed with an incapacitating anxiety/depression under pressure and is remaining on as a soldier that it is imperative that he should be referred for assessment and treatment, for his own safety and the safety of his colleagues and the army. She would recommend psychological first aid at once and then the patient would or may need medication for anxiety or depressive symptoms and sleep disturbance and then, thirdly, cognitive behaviour therapy in which one gets the person to remember the details that upset them and have this in mind, so that then one trains them to relax around this and address the feelings they have about the feared situation. She made it clear that there had been a general knowledge of PTSD and remedial treatment for a very long time. From 1980 onwards there had been a lot of measurement tools devised to measure the severity and extent of PTSD, such as the Caps document which had been used by Dr. O’Loughlin. It was further put to Dr. McGuire that ICD300 specifically excluded combat fatigue situations and acute stress reactions and under re-examination she pointed out that, in the context of this case, ICD300 had been used to signify an anxiety state when in fact ICD300 means “neurotic disorders” when not qualified by a further number and so 300 simpliciter means neurotic disorders so it could cover a multitude and “liable to ICD300 under pressure” would be an anomalous term. She carefully made clear that in her view Col. Collins was not using ICD300 in any pedantically precise categorisation excluding acute stress reaction. In re-examination Dr. McGuire was also asked about incidents when the plaintiff gave evidence that he came under close fire while in the Lebanon and she replied that she was sure it had relevance as he became intensely fearful and frightened when he became so anxious in the Lebanon. If his situation was within range of close fire that would have been a trigger factor. Secondly she was asked about the incident in which Sgt. Flanagan gave evidence that the SLA compound on the hill above and near their outpost came under fire from Hezbollah and an order was given called “ground hog” which effectively means that most of the personnel have to get into the bunker. He gave evidence that the plaintiff was not in the bunker and when he went into the billet he found the plaintiff frozen in a crouching posture and unable to move and he had to be physically brought down into the bunker. Dr. McGuire replied that this particular type of paralysis was well documented during the First World War and was a sign of intense terror, so he was plainly terrified at that stage and could not move and the shelling would have been the obvious trigger for this. She was told that Sgt. Flanagan further gave evidence that when he went back into the bunker later when the others had come out, he found the plaintiff there and he had to be brought out because he was described as being in a trance like condition by CQMS Flanagan. She said that this certainly would be relevant to any issue of PTSD and said that it appeared that the plaintiff certainly developed the symptoms of acute stress reaction during that time in the Lebanon, so all those exposures to intense fear would have combined to make him chronically anxious and stressed, and, later she added, also unable to relax. In an incident on 10th January, 1987, when the plaintiff was near the Total petrol station he recounted how he was pinned down by gunfire and had to leave a vehicle and take cover in a civilian house. Dr. McGuire said that was exposure to an intensely frightening situation which would also be a trigger factor. That in fact was on the 10th January, 1987 the day on which Cpl. McLoughlin was killed and the plaintiff described himself as being terrified, after finding out about that. Dr. McGuire agreed that it would have reinforced his terror when he discovered his friend had been killed. She also confirmed that if Dr. Flynn had been made aware of the contents of the LA30 relating to his time in the Lebanon then warning bells would have rung a lot earlier about the diagnosis of simple alcoholism or indeed if she had been told of his excellent work record prior to his going to Lebanon at a time of known hostile faction fighting, then if she had been sent a copy of his medical record while abroad it is more than likely she would have looked for the underlying cause for his problems. Dr. Flynn as an experienced psychiatrist had to be well aware that soldiers returning from war zones frequently bear psychological scars from their experiences of death and serious injury and scenes of unspeakable savagery. I have recited the evidence of Dr. McGuire at some length as she is an experienced and expert psychiatrist having held a post of great responsibility as Consultant Psychiatrist and Clinical Director of Roscommon Psychiatric Services in the Roscommon County Hospital. She has dealt with all sorts of people over the years and among others she has treated soldiers. I accept her measured and careful evidence and she made clear that while PTSD has been made officially recognised under that name since 1980, the same constellation of symptoms which make up PTSD has long been recognised as an affliction to those embroiled in battle and in the valley of the shadow of death. The symptoms have long been recognised and indeed the same symptoms were known under the names of “soldier’s heart” and “effort syndrome” during the American Civil war. Neurasthenia was also described during this period and “war neurosis” was another name during the First World War as well as “shell shock” which is the name of the book by Wendy Holden, which Dr. McGuire had with her. She was aware of how the British sent troops suffering from shell shock back to England for treatment, whereas the French set up treatment centres closer to the front line and managed by earlier treatment to rehabilitate sufferers of shell shock more quickly, thus meeting the army’s requirements for more troops for the front line trenches. One would certainly expect the individually caring and clearly well educated members of the Irish Medical Corps to have read not only the poems of the First World War by Wilfred Owen and Siegfried Sassoon but also the extract from the poem on the statue in St. Stephen’s Green of Tom Kettle, Irish Barrister, and Francis Ledwidge who was killed near Ypres on 31st July, 1917 and, as army doctors one would be confident that they would be well aware of the symptoms of and perils of untreated PTS.

I accept Col. Goggin’s evidence supported by Sgt. Gerry McCabe who gave evidence of having attended the colonel’s briefing about how to cope with grizzly scenes and what to look out for in respect of stress. Colonel Goggin has been in the forefront of developing a policy of raising awareness in the army in respect of the peril of any fatal incidents and stress particularly with regard to troops going overseas. He and Capt. O’Loughlin co-operated in producing leaflets in the years after 1986, but I think that the 60th Battalion was the first group of officers and NCOs whom Col. Goggin addressed and Sgt. McCabe particularly remembered his advice to the effect that when dealing with dead bodies one should get on with the job as part of one’s day’s work and to use Vick or after shave to counter the smell of dead bodies. Writing about 1990 some four years after the 60th Battalion did their preparatory training for their winter tour in the Lebanon, Capt. O’Loughlin wrote;-

“These days we hear a lot of talk about post traumatic stress disorder. This is a disorder which sometimes affects people who have experienced situations which were extremely violent or upsetting. It involves re-experiencing the event persistently in their dreams or thoughts. The experience may be as victim or survivor of a trauma or as a witness to the trauma, such as being present at a tragedy or atrocity or seeing or handling mutilated bodies.”
This was written after 1986 but I accept the evidence of Dr O’Loughlin and Dr McGuire that the symptoms and nature of what was widely known as PTSD from 1980 on had been well recognised by other names such as neurasthenia from long before 1980.
Dr. McGuire confirmed that PTSD was the topic exciting considerable interest because in the early 1980s there had been much discussion in the UK about legislation to remove the crown immunity from suit by members of the armed services who had suffered PTSD while serving in the British Armed Forces.

Both Lt-Col. Maurice Collins and Cmdt. Gerry Kerr were impressive witnesses. I have no doubt that both of them are well read and humane gentlemen. It was clear from their evidence that they both felt that the plaintiff was to blame and had caused difficulty for them by his failure to give them information about his symptoms of PTSD. I expect that both these respected members of the Medical Corps have read not only the poets of the First World War but also the book by Dr. Miriam Moore, PTSD Among Irish Veterans of the UN Peacekeeping Forces which was published in 1995 and Shell Shock by Wendy Holden as well as the article on PTSD by Margaret Banshoos Halla in a Vietnam magazine which Dr. McGuire said was available on the internet. I am grateful for the copy of Post Traumatic Stress Disorder In Combat Veterans by Dr. G.M.M. Kerr MRCGP the dissertation published in February 1998, which is a most interesting overview of the literature with an excellent bibliography which should ensure that the work of Lt-Col Goggin in preparing contingents heading for peace keeping duties overseas will be enhanced in the future. Both Dr. McGuire and Dr. Capt. O’Loughlin gave convincing evidence about the reluctance of soldiers to talk about psychological matters and mental problems and the reticence of those soldiers afflicted by PTSD to recall and narrate the incidents which caused them to be traumatised and accordingly one would have expected military doctors to have taken this well known aversion and understandable reluctance into their considerations as a given factor in dealing with the vital matter of early diagnosis and treatment of the stress in areas where there are likely to be hostilities and gunfire. Anyone who has seen a gun-shy dog during the fusillades of rockets at Halloween will be aware of how animals and humans can be sensitised and can be smitten by uncontrollable shaking and glazed appearance and incapacity mounting to paralysis and trance like appearance. Dr. McGuire cogently made the point that the plaintiff’s LA30 spoke for itself in that the plaintiff had a good work record with remarkably few sick leaves prior to his going to the Lebanon on his twenty first birthday. His wife’s evidence was that he came back a changed man and certainly his subsequent, at least nine admissions to St. Columba’s Hospital in Sligo, are testament to how his life became an ordeal due to the PTSD which was not definitively diagnosed until eventually he was referred to Capt. Dr. O’Loughlin at her clinic at S. Bricin’s, where she at his very first attendance made a working diagnosis of PTSD and wrote that day to this effect to Capt. Kerr. She confirmed this diagnosis by the CAPS test on 29th February, 1996. The LA30 and the central medical file and the entries with regard to the plaintiff both before and during his time in the Lebanon should have given the key to an understanding as to why he went to pieces on his return to Ireland. Regrettably there was no protocol or system under which copies of these documents were sent by the army to civilian doctors treating soldiers. It is elementary that at least a history of the medical records of the soldier during a traumatic tour of duty abroad should clearly under some protocol on the matter have been given to each of the doctors who were treating the plaintiff, including Dr. Fidelma Flynn, the GPs in Ballymote and Dr. O’Loughlin, whom I recall saying that she made her initial working and provisional diagnosis without even having the LA30 or the central medical file documents. Certainly when the plaintiff had a good work record and minimal sick leave in the years before his experiences in Lebanon during a tour notorious for the traumatic experiences, it would seem imperative that the medical history of any such soldier, who subsequently goes on repeated sick leave or has multiple admissions to psychiatric hospitals, should be made available to the treating psychiatrists and other doctors attending the patient.

2. The plaintiff’s condition while he was in the Lebanon
There has been evidence of a number of incidents when the plaintiff was exposed to fire and when his behaviour indicated that he was acting under stress and very unusually:-

1. On 29th November, 1986, the plaintiff was brought by ambulance to RAP Tibnin at Camp Shamrock. It was the chief medical post. A description of what occurred was given by Company Quartermaster Sergeant (CQMS) James Flanagan having thirty years in the army and twenty years as a Sergeant and comes from Co. Leitrim. He enlisted in 1976 and by 1977 he was a Corporal and became a Sergeant about 1988 and has been to Lebanon at least five times and once to Nicosia. Having been Battalion Sergeant Major he became in 2000 CQMS. He knew the plaintiff from Finner Camp and had done duties with him such as twenty-four hour guard duties and weekly patrols on the border. As Operations Sergeant he knew many of the soldiers and knew the plaintiff to see although he would not have been assessing him. In summer 1986 during the two months of a bonding process training together, he got to know the plaintiff much better and he was aware of nothing adverse about the plaintiff’s conduct in that time and he never had any trouble with him during the training. They all had early rising and exercises and a daily routine of a 7.00 am three mile run. The training was based in Mullingar and the 60th Battalion was drawn from different areas of Western Command. On return from the run there would be time for a shower and breakfast before 8.30am. During the rest of the day there would be section duties with mortars or machine guns during that two months training. The plaintiff never came to any adverse attention. All had a medical check before going to Lebanon, the plaintiff’s medical dossier was A1 and he passed both the annual medical and the September pre-Lebanon check. The contingent flew to Lebanon on 22nd October, 1986 on his twenty-first birthday and the CQMS commented that Lebanon was always hostile between October and Christmas. Irish members of UNIFIL had frequently come under fire. The weapons platoon was stationed at Bayt Yahun and both he and the plaintiff were at post 61 between Brashit and Bayt Yahun. In that area they had to deal with SLA (“South Lebanese Army”), Shia Muslims and Hezbollah and there were also LAUI (“Lebanese armed and uniformed by Israelis”) and PLO (“Palestine Liberation Organisation”). Gunfire mostly came from the SLA. The checkpoint at Post 61 came under fire from an SLA position. It was usually machine gun fire. Post 61 was originally a one story house with two portacabins and an elevated tower. The CQMS knew Cpl. McLoughlin and he said that he and the plaintiff got on well and were on one shift on duty together. The CQMS was aware of the plaintiff’s seizure on 29th November, 1986. On that night the plaintiff had been called and left his portacabin billet and came into the house. He was standing choking and there was a piece gone out of a slice of bread. The Sergeant approached him from behind and, as he had been making choking sounds, the sergeant started to lift under his ribcage in the Heimlich manoeuvre while another member fetched the medical orderly, who arrived and checked out the plaintiff. This incident went on for about ten minutes and the plaintiff was lying on the floor and he appeared as if he was having some sort of a fit and not just choking. Subsequently he was taken in to the RAP at Tibnin.

The CQMS and the plaintiff both went home for Christmas. For the two months in that post, both Cpl. McLoughlin and the plaintiff had a very good relationship.

On 6th December, 1986, Pte. William O’Brien was killed outside Camp Brashit. The plaintiff had trained with Pte. O’Brien and was upset.

The CQMS noted that the plaintiff often asked about the weather outside as he came on duty and he was happy to go on duty if the night was clear, but seemed down if there were electrical storms around. He seemed to be afraid of the electrical storms and the Platoon Commander, Capt. McEvoy would have been aware of this. The CQMS felt that before Christmas the plaintiff did not seem to be coping as well as the rest. This was never documented but there was verbal reporting and he said that he would have reported what he had observed about the plaintiff. While there was alcohol available in Lebanon, there was no alcohol in an outpost like Post 61. One could go in to the canteen for stationary and washing and one could then get a drink. All three of them, the plaintiff, Corporal McLoughlin and himself, were home for Christmas and when the CQMS arrived back after the others at Brashit, he found the plaintiff happier. Corporal McLoughlin and he had been detailed to the Company Headquarters at Camp Brashit 6/17C. Corporal McLoughlin was then sent to the CO’s house in Brashit village. The plaintiff and weapons platoon was based in Camp Brashit and the plaintiff would have been “riding shotgun” on supply vehicles – which corroborates the plaintiff’s account of his presence at the Total Station while doing escort duty in a jeep when he was pinned down by gunfire and took cover in the civilian house.

On 10th January, 1987 the CQMS recalled tank fire from an Israeli tank. The shrapnel round from the tank hit the COs house and killed Cpl. McLoughlin. The CQMS gave his evidence on a Friday and on the next Tuesday told the court that he had difficulty over the weekend and had only had three hours sleep as he was mulling over his recollection of his five tours in the Lebanon. The worst of them (meaning from the aspect of hostilities and gunfire) were the 60th and 64th Battalion tours. He said the tour affected him in a big way “we were very glad to get home; I was glad to get out of Lebanon with my life, it was a very bad time and there were not many nights, some of our troops were not under fire”. He became disillusioned with UNIFIL as they had not answered the questions as to why the Irish were being attacked, why the CO’s house was hit by the shrapnel round and why William O’Brien was previously killed at a checkpoint. The CQMS said that he could not enjoy a night’s sleep for a very long time. He found that he could not get over the death of Dermot McLoughlin. He spent a lot of time in the bunker and fear was keeping him awake for hours before he could close his eyes. Even now he could see and hear the firing into the COs house in Brashit village. There was an SLA compound about a mile east of Brashit village, and this SLA compound overlooked Brashit. This was the fourth tour in Lebanon for the CQMS and he had found that he was not getting much sleep; when he did go to sleep then he had nightmares. There was firing from heavy machine guns, mortars, and tank fire and those at the Post had to shelter in the bunker. His nightmares continued for the best part of a year afterwards, and he had problems with nightmares in which the gunfire from the compounds opened up. In his waking hours during the day, he was constantly going back in his mind as to why people were being killed when the Irish were out there to protect people. He recounted how a number of members had gone to Naquora for the commemoration ceremony for Cpl. McLoughlin. He himself had gone to make a phone call home from the UNIFIL headquarters there, and when he went back to draw his rifle, Lt. Murphy, who was in charge of the party, would not give Pte. Murtagh his rifle as he was under the influence of drink. The CQMS said that he knew that the plaintiff was having a problem with the death of Cpl. McLoughlin but a soldier bearing arms could not take a drink and he was punished for that offence.

The CQMS said that everyone had a repatriation medical examination before leaving Lebanon. This was a check for heart and blood pressure and for diseases. There was no examination for stress and no assessment by a Psychologist or Psychiatrist, although Lt.-Col.. Goggin was on one of the trips which the CQMS was on. There was no debriefing by officers or members of the medical corps. To this day, nobody had asked him how he was or how he had got on. In Lebanon, he did not drink anything at the outpost, the only time he drank alcohol there was at the barbeque before they left. He received no counselling on his return and he drank too much and caused a lot of trouble to a lot of people. He was not aware of any of his colleagues having a debriefing or counselling session, on return, and if they had, then he would have known about it. He did not know whether counselling, debriefing or any other kind of help would have helped, but none were offered to him. He said that he did not know why he could not put Lebanon behind him or forget the incidents and he had nightmares and thoughts about the Lebanon during the day. He took to the drink by way of self-medication and had never received any help to this day. He had started going out on his own, whereas before that tour he always went out for a drink with his wife; he became dependent on alcohol. His wife could not stand it any longer and a friend came and spoke to him and brought him to AA and that worked; he has managed to stay off drink for fourteen years now. On return from the Lebanon, he had gone back to the 28th Battalion at Finner as Operations Officer and he did not have much contact with the plaintiff. Under cross-examination, the CQMS said that he did volunteer again and went back with the 64th Battalion in 1988/1989. He had a purpose, which was to find the part of him that he had lost in the Lebanon with the 60th Battalion. He felt that he had left behind himself, far from his wife and children; he had left his personality and his humour behind in the Lebanon. It had been his own idea to go; nobody had given him advice, but his wife had said to go. He had wanted to find himself and he did not find himself. He said that when he came back in 1987, none of his behaviour had led to any charge. He had never voiced his feelings to a doctor or to his Superior Officer. The main reason why he did not speak of such matters was that he was eleven years in the army and had a lot going for him as a Sergeant at thirty-two years of age, and he could go up the ranks and was offered three Officers Courses. If he had disclosed that he had a drink problem, this would have come against him. He had always worked very hard and could always work in the mornings; he had never mentioned the invasive and intrusive thoughts to any doctor. As for the drink problem, he managed to get it under control in about 1993, and he did not let it interfere with his work but it did come to attention and he had been called aside over the smell of drink from him during morning briefings by his Operations Sergeant. It is very much to the CQMS’s credit that, having explained the pressures at Brashit on this tour, over the weekend he thought long and hard again about this whole trip. He recalled that Captain McEvoy was on the post that night when the Hezbollah attacked the SLA compound at Brashit and there was gunfire from the Hezbollah into the compound at Brashit, Bayt Yahun, Hasalhowas, east of Bayt Yahun and Bintjubayl. When the Hezbollah attack was going in, all the SLA compounds and the Israelis opened up fire. It took about half an hour for the Hezbollah to take the Brashit compound which was the SLA position. The SLA Brashit compound received covering fire from other SLA positions. It took twenty minutes for the Hezbollah attack to be victorious and they then used captured vehicles to make their retreat from the compound. At this stage, the SLA fired from their other compound at Bayt Yahun, and moved in armoured vehicles through the Checkpoint 621, firing with their heavy machineguns so that at the Irish post there was fire from Brashit compound towards the Irish position at Bayt Yahun at the Hezbollah and also they had fire from the SLA going up to relieve the SLA in the Brashit compound. Captain McEvoy went to the elevated tower where the radio was to communicate with Company Headquarters in Brashit Camp 6-16 which was still in radio contact. The CQMS received the order “groundhog” meaning that all available people had to go to the bunker. He stated that:

“My job was to make sure all who were meant to be in the bunker were in the bunker. I ran towards the roof of the house; this incident was in December, prior to 18th December 1986. The NCO on the roof with Ptes. Gamble and McKinley, was Cpl Dermot McLoughlin. Pte. Catterson was with Capt. McEvoy in the elevated tower. I brought people off the roof into the bunker; the Captain and Pte. Catterson remained on the elevated tower. I went to the bunker to do a check. On the radio in the bunker I told Captain McEvoy that Pte. Murtagh was missing. Corporal McLoughlin and I went to look for Pte. Murtagh and he was in his room in the pre-fab sleeping accommodation. He was not asleep as there was not much sleep that night. We found him in a crouched position. That was when we grabbed him and ran him to the bunker. We remained in groundhog all night until we got the all clear from Company HQ. Captain McEvoy and I were making breakfast for the troops when we noticed Pte. Murtagh missing again. He had not come out of the bunker. Captain McEvoy and I went in to the bunker where he was sitting in a corner on a bench in a shocked state. The Captain and I tried to communicate with him but he did not seem to know what had taken place the night before. I know that Pte. Murtagh spent time over the next few days in the RAP in Camp Shamrock.”
The CQMS said that initially he had been wrong in his account that the plaintiff was in the sleeping accommodation and not on the roof, as he had first recounted. He had been mistaken; that was another person. “The plaintiff went that way because he had lost it.” The CQMS said that what he meant was that the plaintiff needed to see somebody, as he was in shock on that morning in December 1986, after the attack by Hezbollah on the Brashit compound. The CQMS said that he was told by Captain McEvoy before he went on Christmas leave, that Pte. Murtagh was to go home and get things straightened out or not to bother coming back. Captain McEvoy also told him that he was in charge of the party going home and if Victor Murtagh was not at the airport coming back, then he was not to wait for or look for him. That was Victor’s first time under real fire, meaning artillery and mortar fire, though he had been under rifle and machinegun fire before. It is a frightening experience for everybody and people react differently. Not many like or enjoy it or put their heads up to see what is going on.
The CQMS said that after the commemoration ceremony, the plaintiff’s rifle was taken from him and was handed to himself as Lt. Murphy decided not to let the plaintiff have it for the return trip and the plaintiff was later disciplined. The convoy did come under attack. Shells were fired to the right and ahead of the convoy. The CQMS said:

“We had to stop and get out of the bus and take up positions. The plaintiff stayed on the bus. There had definitely been two explosions, two shells. The plaintiff remained on the bus and he had no gun so he could not have engaged the enemy.”
The plaintiff was always nervous about the weather. In winter in the Lebanon, there are electrical storms with lightning and thunder. His asking the question about the weather brought him to the CQMS’s notice. Several of the posts were closed, including the CO’s house and 617 Charlie. A new post, 642, in Bayt Yahun, was opened below the compound at the top of the hill known as “the hill of the donkey”. When Post 642 was opened, it was on a hillside and he narrated how they were put out in a tented guard room, though an APC came out at night to give them some protection. The CQMS said that he did duties out there with Pte. Murtagh at this new post, 642, and also at Post 646. There would have been a couple more attacks at this stage on the Brashit compound of the SLA. These were not as hectic onslaughts as the previous one.
Under cross-examination, the CQMS said that on the occasion of the choking attack, the plaintiff did not know where he was and he was not communicating coherently. When asked was he alright, he did not respond. After the Hezbollah attack on the SLA compound, the Hezbollah came to the gates of Checkpoint 617 and threatened to blow the house up unless the gates were opened, but the NCOs in 617 were instructed to open the gates and so the Hezbollah drove through the Irish Battalion through all the checkpoints and back to their own area. He thought this was the reason behind and the cause for the SLA firing on the CO’s house at Brashit, despite the UN flag being lit up on the side of the building. Counsel for the defendants pointed out there was no medical record in the LA30 for any dates other than 29th November, 1986, and 18th December, 1986. However, I note that entries were not always entered daily, as for 29th of November and 30th November 1986, and perhaps no entry was made on that day in December 1986 when CQMS Flanagan recalled the plaintiff’s spending further time at the RAP at Camp Shamrock after his being paralysed with fear during the Hezbollah onslaught on the SLA compound.

2. It was at about the time when Pte. O’Brien was killed on 6th December, 1986, that the Hezbollah attacked the SLA compound at Camp Brashit. I have outlined Sgt. Flanagan’s evidence about this. There was firing towards C Company’s position at 621 at Bayt Yahun at which the plaintiff was stationed. It is difficult to put a date on this. It is a pity that the Unit history is not available. Captain McEvoy had received the order “Groundhog” and personnel had to go to the bunker. The CQMS described how he and Cpl. McLoughlin found the plaintiff crouched in his billet and they had to bring him down to the bunker. The next morning, he did not emerge with the others and the CQMS described how he and Captain McEvoy found him in a shocked state in the corner of the bunker. When they tried to communicate with him, the plaintiff did not seem to know what had happened. The CQMS believed that the plaintiff was taken to the RAP Tibnin but there is no record in or about 6th December, 1986, of his being examined at the RAP Tibnin. Captain McEvoy was clearly justifiably concerned about the plaintiff and discussed his condition with Lt Col. Collins and was reassured that the seizure was unlikely to be epileptic.

3. On 10th January, 1987, the day when Cpl. McLoughlin was killed, the plaintiff’s evidence was that he was riding “shotgun” to checkpoints. Near the checkpoint at the Total petrol station, he said that he had had to take cover in a civilian house. There was heavy firing and Cpl. McLoughlin, who was in an upstairs room in the CO’s house, was killed by a shrapnel round from an IDF tank. The plaintiff later learned of his death at Camp Brashit. He was terrified and shaking and passed out unconscious and was brought to the RAP at Camp Shamrock.

The evidence of the CQMS can leave no doubt whatsoever that the plaintiff was subjected to close firing and a series of sensitising incidents where there was a fear and expectation of death, reinforced by the death of William O’Brien and Cpl. McLoughlin. Furthermore, the CQMS’s frank account of how this, his fourth tour of duty in the Lebanon, affected him for several years afterwards is indicative of the severity of pressures which were on the weapons platoon constantly, particularly in December 1986 and January 1987. If this 60th Battalion tour had such an effect on a veteran like the CQMS, what devastation must it have caused to a twenty-one year old of immature personality? The abnormal behaviour of the plaintiff was well known to the NCOs and Captain McEvoy and Lt-Col Collins knew of the plaintiff’s acute anxiety states and must have learned of the terrified behaviour from Captain McEvoy on his visit, when the Captain was reassured by the Colonel that the plaintiff was not suffering from epilepsy. Captain McEvoy was aware of the abnormal and unusual behaviour of the plaintiff in electrical storms and how stricken with terror and incapacitated he was when there was gunfire. It is surprising that on only two of the visits of the plaintiff to the RAP, that there is a written record in the LA30 but it is explicable in circumstances of much hostile fire. It is a pity that the 60th Battalion unit book was not made available as it might well have reduced the length of time taken up on contested incidents in the Lebanon, in a case in which it was the army psychiatrist who made the initial working diagnosis on 17th November, 1995, and communicated her positive diagnosis in her report dated 27th May, 1996, to Cmdt. Gerry Kerr. One would have thought that this positive diagnosis supported by the CAP test results would have galvanised the army medical corps into ensuring that the plaintiff received the best of counselling and therapy, particularly as he came from an army family in that two of his brothers also served in the Defence Forces so communication with his family should have been straightforward even allowing for confidentiality and sensitivity. I expect that consideration has been given to the wise advice of Colonel Walsh about contact with the family of vulnerable soldiers who have been affected adversely while on active service in battle conditions and appropriate protocols put in place to ensure proper and best practice.

4. Corporal Declan Gaffney had been stationed at Finner in Co. Donegal with the 28th Battalion and knew the plaintiff well and worked closely with him. They had been on a border unit together doing lengthy spells of duty and spent a long time together. Corporal Gaffney was the plaintiff’s Corporal and he found the plaintiff to be an able man and a good soldier who was very well liked and a lively, decent man. He described how they went out to the Lebanon together. He was assigned to a different platoon at first, but on several occasions, their paths had crossed and he had seen the plaintiff towards the end of the six months and noted the change in him. He was on the convoy after Corporal McLoughlin’s memorial service at Naquora, and he took photographs. The convoy included a minibus, trucks, jeeps and some armoured personnel carriers. About ten minutes out from Naquora, the convoy came under fire from heavy mortar and artillery up towards the hills. He was in a soft skin jeep. When the convoy came to a halt, they took up position behind walls for some fifteen minutes. He saw the plaintiff who was out of the bus and taking cover behind a wall. He was unarmed. He had been disarmed in Naquora because he was regarded as being under the influence of alcohol. He was affected, in a bad state, nervous, jumpy and edgy. He was not the same Victor; he was frightened and he was talking quickly and rambling a bit. He was asked whether this was from drink and he said that he did not know for sure, but in his opinion, Victor Murtagh was not drunk. The convoy eventually went on and stopped at Camp Shamrock and then at Camp Brashit and he and the plaintiff both dismounted at Brashit. He was then sent to an outpost and did not see Murtagh.

About a week after Cpl. McLoughlin had been killed on 10th January, 1987, earlier in the tour, the Corporal had met Victor Murtagh and he was of nervous disposition. He was one of three Privates under the Corporal’s command and they were at a Checkpoint where there was one private on the roof, and one NCO and two privates at the checkpoint and the privates took it in turns to go up on the roof. In the early hours of the morning, the Corporal got a phone call from the roof to the bunker at the Checkpoint. It was the plaintiff on the phone on the roof. The Corporal went up on to the roof and found the plaintiff distressed. He was visibly shaken and said that he had seen somebody on the roof, which was a large flat roof on top of the Officers Mess. There was nothing to obstruct the view across the flat roof from the machine gun post. At 1.30am, there were lights from the general lighting and there would be security lights on the roof. The incident and report of a sighting was surprising because the Corporal could see nobody there. Subsequently, in April 1987 the Corporal had been at Camp Brashit for the last six or seven weeks of the tour and Victor Murtagh was in the same camp. He said that he noticed the difference in him and, being in charge of him, he had to keep an eye to his welfare. The plaintiff looked pale; he had lost weight, and he was shaking. He had never seen him have shakes before and now he was shaking as if in fear. The Corporal had discussed his condition with the Sergeants and officers but not with Sgt. Flanagan. Everyone knew that Victor had some sort of problem. No steps were taken to help him and he had to do his duty. There were an awful lot of people in the same situation. Corporal McLoughlin was killed on 10th January, 1987. He had been a close and good friend and his death affected everybody in their different ways.

There had been no counselling or debriefing on arrival home, the medical examination was in the Lebanon. They went by convoy to McKee Barracks and then took their bags and went home. The Corporal went back to Finner Camp and he did not see the plaintiff for some years as the plaintiff was on long sick leave. He only recently met Victor Murtagh again, he was shocked. He had lost much weight. He still talked with a nervous twist in his voice and he still shook. His hands and whole body seemed to shake at times when you were having a conversation with him. The Corporal expressed the view that in his opinion, Victor Murtagh was a failed man. He had been a lot heavier, sturdier and stronger when serving with him in the Lebanon. He now speaks normally as he used to do. Corporal Gaffney did not know that the plaintiff had been detoxified. In cross examination he said that in the convoy coming from Naquora after the ceremony, the convoy was attacked and he was very sure of this. The plaintiff had no rifle because he was supposedly drunk. He did not agree with the way in which Victor Murtagh was charged as there was no blood test done. He said he could not understand why he was not charged in the way that people are in drink driving cases and he made the point that there can be use of breathalysers and blood tests. He was adamant that he did not think that the plaintiff was drunk and he explained that you do not volunteer for many things in the army and he had not volunteered to give evidence on his behalf. After the episode at the machine gun post on the roof, the Corporal had put Victor Murtagh on road duty. He did not report the incident as there was no need for that. After the return he did not see the plaintiff for well over a year until June 1988 hospitalisation. It was well over a year since he had seen him last. During their last few weeks in the Lebanon he had been one of the NCOs over the plaintiff and others. The Corporal said that on the occasion in the Lebanon when the plaintiff’s whole body was shaking he had sat him down and given him tea and as the matter was sorted out he made no report at the time nor did he remove his rifle. He did discuss the matter with the NCOs but not with Sgt. Flanagan.

It is quite clear from Cpl. Gaffney’s evidence that both Captain McEvoy and Captain Kilfeather knew about the plaintiff’s difficulties and that at times he was shaking with fear. Both knew that the incapable condition of the plaintiff was being discussed by all ranks. Cpl. Gaffney had known and worked with the plaintiff during 1985/1986 as they were both in Finner Camp and he worked closely with the plaintiff together on a border unit during long stints of duty together. He had no adverse comments to make about the plaintiff and there was no hint of suggestion that the plaintiff had an alcohol problem whatsoever prior to going to the Lebanon. Secondly he was on the convoy from Naquora and confirmed that they had come under fire from heavy mortar and artillery. About ten minutes out from Naquora he saw Victor Murtagh out of the bus and taking cover behind a wall. He was unarmed as the rifle had been taken from him. He did not think the plaintiff was drunk but he was in a bad state of jumpiness or nervous agitation, and he was frightened. He does confirm that the plaintiff did leave the bus for at least part of the fifteen minutes delay and that the convoy had to stop because of heavy explosions on the road ahead.

5. Sergeant McCabe’s account has already been given above as to how on or about the 1st March, 1987, the plaintiff had been transferred under his command to a new exposed position at Post 6/42 which they were setting up. On the plaintiff’s first night there, he reacted to two shots from the SLA compound (probably aimed elsewhere) by shaking. Sergeant McCabe gave him a cup of tea and did not assign him any more night duties. Sergeant McCabe gave evidence that he told Sgt. Doherty that he did not want the plaintiff assigned to him and asked for him to be moved back to the main camp.

3. Knowledge of the plaintiff’s condition in the Lebanon
Evidence was given by several NCOs who served with the plaintiff in the Lebanon to the effect that as CQMS Flanagan put it, “he had lost it, he needed to see or talk to someone, he was in shock”. This was in relation to the plaintiff’s stricken behaviour when the C Company position at 6-21 post was under fire and the order “ground hog” was given and the plaintiff acted as if paralysed with fear.

I suspect that this incident, from the evidence of Captain McEvoy as well, was probably just before several members returned home for Christmas 1986. Captain McEvoy described two episodes in December 1986. The first was on the night of a big electrical storm with thunder and lightning like a fireworks display. The plaintiff was on duty on top of an elevated tower where two soldiers would be posted to observe for unusual activity particularly around the SLA compound and checkpoint. Sgt. Flanagan requested Captain McEvoy to come and they went up and found the plaintiff in a very upset state of anxiety white as a sheet and so incapable that they had to bring him down. He was not only very pale from this big powerful display of nature but was shaking and had tremors in his hands. Captain McEvoy describes how in the kitchen the plaintiff was given tea and the colour eventually came back into his face. Others in the Company had a normal reaction to this first ferocious thunder and lightning storm but Victor Murtagh was very affected. The Captain told Sgt. Flanagan not to put him back up on the tower post. It was the first experience the Captain had had of a person being terrified by noise of thunder. This ties in to evidence of the NCOs that the plaintiff was nervous going on duty and often asked about the weather outside and the inference is clear that the noise of explosions whether from shells, mortars or electrical thunder claps caused the plaintiff to shake uncontrollably.

The second episode the Captain recalled as later but still in December 1986, so it seems it was just before 18th December when the plaintiff was returning ‘home for Christmas’. The plaintiff had been on duty and came into the kitchen and sat down for a cup of tea. He let his cup fall and the Captain recalled him on the floor having a fit, shaking convulsively and grey-faced with a tinge of blue. Captain McEvoy at once contacted Company HQ by radio and by phone to explain that an ambulance was needed. There was a delay for ten minutes in the coming of the ambulance because of protocols with the SLA checkpoint but the plaintiff was then taken with an NCO by ambulance to the RAP at Camp Shamrock and kept there overnight. Captain McEvoy said that he went the next day to the RAP at Tibnin and met Lt.-Col. Collins, the senior doctor, and expressed his concern about Victor Murtagh and his and other soldiers’ safety, especially if it was an epileptic fit. Lt.-Col. Collins reassured him that it was an isolated incident and said one cannot diagnose epilepsy from one event. They kept Victor Murtagh in HQ at Camp Shamrock or at C Coy at Brashit for a time. He then enlarged on his description of Victor Murtagh on the floor with the “shakes”; he had tremors; his arms were shaking. There was concern he would swallow his tongue and an NCO put something in his mouth and held his tongue back. The Captain himself had observed this first episode for seven or eight seconds before he ran out of the room. The plaintiff had “been out of touch” but was becoming conscious and lucid, with colour coming back, when the Captain came back into the room after being out of the room for two or three minutes. He had tried the radio first and then spoke to Captain Andy Kilfeather on the landline to the effect that the need for an ambulance was urgent – as the plaintiff had suffered some sort of fit.

After this second episode Captain McEvoy said he discussed the plaintiff with Captain Kilfeather who said that the plaintiff had domestic problems and was going home for Christmas. At a later stage he said that he and Captain Kilfeather had many conversations and he was given the impression that Victor when home had attended a medical officer at Finner Camp. Captain McEvoy himself had accompanied Dr Captain Leonard to identify the remains of Corporal McLoughlin who was killed on 10th January 1987 and then he returned to Ireland with the remains of Corporal McLoughlin and attended the High Mass with full military honours and the two days of ceremonies.

Captain McEvoy had two and a half weeks leave and then returned to Lebanon at the end of January 1987. Lt.-Col. Collins had allayed his concerns about Victor in respect of epilepsy by saying these were single episodes followed by convalescence. He was briefed on matters by NCOs Flanagan, McCabe and Doherty, who were all exceptional NCOs, to the effect that the situation had calmed down after the very difficult periods in December and January. For the rest of the tour he had no issues with Victor Murtagh. He spoke to him a few times and chatted to him over tea. It was a small post with only 16 men so he had many conversations with him but Victor did not discuss personal or marital matters with him and he thought it was not for him to raise such a topic. From the end of January 1987 the Captain had to take extra care of three soldiers but Victor was not one of them although the Captain had concerns about him and had met him in Letterkenny during the 28 day leave after the April 1987 return. They had a good chat and Victor said he could not settle and the Captain had said they were all going throught the same readjustment. He was pleased that Victor had confided in him. As he became adjutant at Finner, he had more to do and did not see much of Victor. The Captain left the army in April 1996 and had learned from Victor’s brother Sidney at some point that Victor had left the army in 1998.

Under cross-examination Captain McEvoy gave an account of an episode in early December 1986 which seems to have been a third episode. There had been machine-gun and rifle fire and shoulder-launched grenade attacks by Hezbollah on the SLA compound and checkpoint. There had been a ‘ground hog’ order. Sgt. Flanagan and the late Corporal McLoughlin had to fetch Victor Murtagh down to the bunker; he was not on the tower on duty but instead they had found him crouched in a state of anxiety in the billet and took him to the bunker. There was intense fire and Captain McEvoy had launched two red flares to indicate not to fire on the UN Post. The Captain and Private Catterson stayed up on the tower. The rest went into the bunker. This was around midnight and there was a lot of fire and it was “a bit scary” “It was a night we were all shocked including myself.” “That night was very stressful. Everybody was upset and believed their lives were at risk. This was not so much from a premeditated attack but there was always the peril of a stray round or a mortar hitting our post – either Hezbollah or SLA could have hit our post – our safety was not their primary concern. There was a well worn pattern of attack – the Hezbollah would infiltrate near the UN position. Our concern was the peril that misdirected fire would hit us. The terrain was hilly and the mode of attack was through the wadis. It was a very difficult period.”

Captain McEvoy said he was not surprised by Lt.-Col. Collins’ entries in the LA30 about Acute Anxiety States. His own concern about a fit was about the underlying condition as it could be a danger. He said he could not recall if anything was said after the plaintiff’s stay in Camp Brashit which seems to confirm that this was a third episode after which the plaintiff did recuperate for a time at Camp Brashit in December 1986.

In February 1987, Sgt. McCabe was detailed to set up a UN Post 642 on the mountainside to discourage Hezbollah attacks on the SLA compound nearby. Sgt. McCabe would have known the setting up of this post was tricky and could well have indicated to Sgt. Doherty that he would prefer not to have the plaintiff with him but he, Captain McEvoy, did not recall Sgt. McCabe reporting an incident to him involving flares and firing which would be fairly routine or anything about Pte. Murtagh shaking on that occasion.

At the end of his evidence in re-examination Captain McEvoy said he had got the impression that the plaintiff was liable to drink and he sprung the suggestion that some of the Sligo members, including the plaintiff, had been at a nightclub during training at Mullingar and did not appear for a 7am run. Clearly he had not mentioned this to Counsel for the defendants or this would have been elicited in direct evidence with an opportunity for cross-examination. Furthermore it would have been put to the plaintiff. If Captain McEvoy had any such information and concerns about a mortar man in a weapons platoon surely it was his duty to make inquiry in which case he would have found the plaintiff’s LA 30 showed him as A1 medical category and with minimal, if any, absences on sick leave before the Lebanon tour and no mention or indication of drink problems whatsoever until after the mid-January 1987 incident at the UN HQ at Naquora when the plaintiff was upset by Cpl McLoughlin’s death and annoyed and upset by the parading of the empty coffin for the sake of footage for TV cameras.

This remark about drink and another remark thrown in uninvited about the plaintiff being “almost manipulative at times” both came out of the blue and struck a discordant note, being unexpected and unsubstantiated criticisms of Victor Murtagh and completely out of tune with the observations made about the plaintiff by the NCOs Sgts Flanagan and McCabe and Corporal Gaffney whose assessments of him I accept, particularly on the aspect of his not taking of alcohol to excess before his acute states of stress in Lebanon. I also accept that there was the failure to treat him adequately there in Lebanon or on his return to Ireland, both of which Dr McGuire said, in the state of knowledge of PTSD by doctors, and particularly by military doctors, at the time in 1986/7, should have been imperative; it was clear he suffered from several episodes of acute stress even to the point of loss of consciousness and incapacitation, so manifestly warning bells should have been rung about the perils for him of PTSD. In the state of knowledge of PTSD, according to Dr McGuire, whose careful and measured evidence on this aspect I accept, his symptoms were such that not only should he have been listed for observation and if necessary for treatment; but he should have been referred for check-up by the army psychiatrist Dr F O’Loughlin.

From the remarks of Sergeant McCabe it is clear that the plaintiff’s problems were well known in the platoon and company:-

“It was common knowledge in the platoon that the man in question was having problems”
“The members of the platoon knew for quite a while he wasn’t right.”

“He was not able to perform as he should be.”

(Sergeant McCabe, speaking of March 1987).

Lt. Colonel Collins, as he then was, gave evidence that he was informed by Captain McEvoy in the Lebanon that the plaintiff’s rifle had been taken from him at some date after the 16th January 1987 (and therefore distinct from the episode following the memorial service for Corporal McLoughlin). However, since Captain McEvoy did not recall a second incident involving the plaintiff when his rifle was taken from him and since Lt. Colonel Collins said that the Captain was the source of this story, it would be sensible to discount this particular suggestion although not doubting the veracity of either officer.
Furthermore, when the plaintiff was being repatriated to Ireland in April 1987, Lt. Colonel Maurice Collins, the medical officer of the battalion noted on the form AF667A on the 18th April 1987:

“This man is relatively emotionally immature and came under very severe pressure. He is liable to incapacitating anxiety states in such circumstances and should not serve o/seas for 3 years.”
Col Collins initially was concerned at the plaintiff’s fit on 29th November 1986 that it might have epileptic origins. It must have had convulsive type manifestations. This would have been serious for a soldier’s career and I expect Col Collins was glad to be able to reassure Captain McEvoy that he had revised his initial thoughts to acute anxiety states of an incapacitating variety which partially reassured Captain McEvoy. Since Lt.-Col. Collins dutifully had the practice of driving out to visit his patients and to talk to the officers and NCOs, it is more than probable that he learned of the plaintiff’s many manifestations of PTSD, the shakes and “being out of it” and paralysed with fear. Dr McGuire expressed the clear view that the plaintiff should have been noted as vulnerable to PTSD and should have been checked out and if need be referred to Dr O’Loughlin to be examined. Lt.-Col. Collins said he thought that the plaintiff would recover on his return home away from the “tough battalion’s” experiences in Lebanon, meaning tough and traumatic experiences for all involved. When the huge change in the plaintiff’s sick leave record and hospital admissions crossed the desk of the army doctors, with their knowledge of how soldiers use alcohol as medication for symptoms of PTSD, they should have realised that the plaintiff needed to be checked out in respect of those incapacitating anxiety states and they should have referred the plaintiff to the army psychiatrist. The 1988 Medical Board (Lt.-Col. Collins, Captain G. Kerr) had found the plaintiff to have had a “history of anxiety/depression in Lebanon 1987; depression and alcohol abuse June 1988; then ‘Subject to incapacitating anxiety/depression under pressure, History 2o (secondary) alcohol abuse June 88: Well since. Immature personality, subject to anxiety/depression when under pressure”. Further down the recommendation is “Needs to be closely observed for signs of stress”. As time went on despite Col. Walsh’s advice, as Director of the Medical Corps (DMC), that the plaintiff was vulnerable and contact should be made with his family, no such contact was made or supportive help given and the plaintiff became more dependent on alcohol. As Counsel for the plaintiff put it to Lt.-Col. Collins, by 19th June 1992 at the Medical Board at Custume Barracks in Athlone, the history “had been turned around” to “history of chronic alcohol abuse and depression”. Now instead of “needs to be closely observed for signs of stress” and “subject to incapacitating anxiety/depression under pressure with secondary alcohol abuse” the emphasis has changed to “history of Chronic Alcohol Abuse and Chronic Depression” in what appears to be Lt.-Col. Collins’ handwriting on the Proceedings of Medical Board “supplementary” Form.
Despite Dr O’Loughlin’s firm and conclusive diagnosis of PTSD in her letter to Comdt Gerry Kerr on 27th May 1996, very little heed seems to have been given to this direction from the DMC Col. Walsh, and little treatment or advice was given to the plaintiff.

Given this evidence, the defendants failed in their duty to the plaintiff to exercise reasonable care for his safety and welfare. The defendants were obviously on notice that the plaintiff had reacted badly to stressful incidents and suffered from “incapacitating anxiety states.” Dr O’Loughlin and Dr McGuire gave evidence that this was significant in the context of post traumatic stress disorder. There has been consensus that early remedial treatment for PTS and PTSD can prevent the condition from becoming chronic and can at least reduce longevity of symptoms and lessen their effects.

It is clear from the evidence given by the plaintiff’s fellow soldiers and his LA30 and CMF, that from early on in the tour the plaintiff was unwell and not coping with the trauma and pressures to which he was exposed and that the defendants knew or ought to have known both at operational and medical level. This condition was known on his return home after his tour of service (See AF 667A). In the light of the facts known about the plaintiff at both operational and medical level it ought to have been apparent to the defendants and their servants or agents that he was suffering or might suffer from a psychiatric illness which merited investigation, diagnosis and treatment and which would have led to the diagnosis of post traumatic stress for which he should have been treated. There had been no prior history of alcohol abuse or other psychiatric or psychological disorder prior to his tour of the Lebanon with the 60th Battalion. Even from the contents of the plaintiff’s LA30 and CMF (Central Medical File), his medical history changed dramatically during and following his tour of duty in the Lebanon and these documents evidence that he was “decomposing psychologically” and as per Lt. Colonel Collins’ notes he should have been closely observed thereafter.

In the plaintiff’s case prompt diagnosis or advice on the normality of his condition of acute states of stress would have empowered the plaintiff much sooner in all likelihood to understand and cope with the symptoms and to avoid his mystification as to his changed nature and problems and dependence on alcohol as a palliative; his ability to overcome his affliction once Dr. O’Loughlin made the diagnosis of PTSD and explained his condition to him would seem to indicate conclusively that if diagnosis and treatment had been made of the cause of his symptoms earlier then this would have enabled him to set about making his recovery without huge and lasting damage to himself, his working, social and family life.

I remarked above that evidence was given unexpectedly in re-examination by Captain McEvoy as to his belief now about the plaintiff to the effect that the plaintiff was manipulative and he hinted at an alcohol problem prior to their departure on the tour of duty with the 60th Battalion. He was the plaintiff’s platoon Commander and the person who had daily contact with the Company, including the plaintiff, and had the power to decide whether the plaintiff was fit for service overseas with the 60th Battalion or not, after the plaintiff had volunteered for such service. At this time in 1986, the plaintiff had been medically certified as A1 fit, and in those circumstances it is clear that Captain McEvoy made no complaint either to the Medical Corp or to his operational Commanders as to the fitness of the plaintiff. It is scarcely credible that he would permit a soldier under his command in a weapons platoon to travel for duty overseas in the Lebanon where it was known they would encounter hostilities as a matter of probability, in circumstances where he then allegedly knew that the plaintiff was either manipulative and or an alcoholic. It is more probable that if the plaintiff manifested any suspicious signs at that time that the Captain would have observed him closely and inquired from NCOs about him and if not reassured then would have either objected to his service or otherwise vetoed it and have advised that the plaintiff was not a fit person to serve in an environment where hostilities would take place and where he would be in possession for use of loaded and operational weapons. It defies logic that in those circumstances where the safety of the Captain himself and those others who served with him might well be compromised by a soldier who did actually have an alcoholic problem that such a soldier would be permitted to serve abroad with them. In those circumstances, no weight should be attached to the evidence of the very man who had the power to stop him serving in the Lebanon because of alleged alcoholism and who took no step to stop such service or advise his superior officer, and this evidence flies in the teeth of the sworn evidence of all the NCOs who knew the plaintiff well before and during the tour and is inconsistent with the contents of the remarks of Captain McEvoy’s commanding officer, Commandant Smith who made the report on the plaintiff in the AF667A when he assessed him as he returned from the Lebanon in April 1997.

4. Misdiagnosis by the Army Medical Officers and Failure to Observe or Inquire into the Plaintiff’s Symptoms
On the evidence, it appears that Lt. Colonel Collins diagnosed the plaintiff as being of an immature personality type, but believed, despite his own notes about the plaintiff’s acute and incapacitating anxiety states, that when he was removed from the stressful environment of the Lebanon he would revert to normal. It is clear from the evidence this did not occur, and we know from the evidence of Mrs Veronica Murtagh that the plaintiff had ‘waking nightmares’ where he leaped from his bed and frantically searched his house at home for his gun; also that he had become very alert and watchful, would stay awake at night and had trouble sleeping, and had become emotionally detached and was cold and withdrawn. With respect to Lt.-Col. Collins, while he was not a psychiatrist, he was an experienced army doctor and an obviously well read military doctor and aware of the perils of PTSD and his diagnosis of the plaintiff was incorrect, he should have referred the plaintiff for further expert investigation, diagnosis and treatment, particularly as he himself had noted acute and incapacitating anxiety states in an immature and vulnerable 21 year old and he must have known about his patient’s gun-shy shaking and behaviour and his several episodes of becoming paralysed by fear. It would be incredible if he was not aware of these symptoms from seeing manifestations of his incapacitating status of anxiety at the RAP as Tibnin and from talking to the plaintiff’s platoon officer and NCOs on his visits to talk to his patient and to them. No attempt was made to interview Mrs Murtagh at all in pursuit of an accurate medical history to see what was going on, and all medical personnel in the Army knew or ought to have known that the plaintiff’s turning to alcohol abuse was a form of self-medication favoured by soldiers as was evidenced by Dr McGuire and Dr O’Loughlin.

Even when the plaintiff’s admissions to St Columba’s arising from alcohol and depression came to the defendants’ notice, it seems that Lt.-Col. Collins and Cmdt. Kerr, the medical officers for the Western Command, continued to assume that the plaintiff’s problems arose either from (a) his being immature emotionally and/or (b) his being an abuser of alcohol. This assumption on their part was incorrect and it would appear from the evidence that their continuation of that assumption arose from the failure of the Army to have a system in place whereby operational officers and NCOs would be able to communicate their observations of an inability to cope under stress of any member under their command and the plaintiff in particular to the Medical Corps personnel and for the Medical Corps personnel to communicate accurate information and medical history to the patient’s treating doctors. Even after Dr McCarrick’s observations and suggestions of his suspicion of PTSD as affecting the plaintiff, there was no system in place to ensure speedy referral to Dr F. O’Loughlin and then no protocol to ensure an efficient handover of her information and advice for treatment on her move from work as Army psychiatrist in 1996.

Colonel Collins has given evidence of the policy adopted for the treatment of service personnel suffering from alcohol dependency. The policy was that they would be reclassified as Medical Category C until they had been alcohol-free for two years, at which time they might be upgraded. This may well indicate a consciousness on the part of the Army of a problem of alcohol abuse. However, it also indicates a failure to monitor or identify cases of post traumatic stress disorder, which might often be accompanied by alcohol abuse. From the time of the Medical Board of the 15th December 1988 on, the Army’s policy was to treat the plaintiff as an alcoholic and to assume that his depression was secondary to this in the teeth of all the available evidence to suggest otherwise. Thus there was a serious failure in the defendants’ system to provide timely diagnosis and treatment for the plaintiff.

5. The Army’s Failure to Follow up the Plaintiff’s Care and to Monitor him Notwithstanding Colonel Walsh’s Advice in September 1992
Lt Col. Collins (as he then was) wrote to Colonel Walsh, the Director of the Army Medical Corps, on the 16th July 1992 as follows:

“3. Capt Kerr and Dr Flynn of St Conal’s Letterkenny, where Pte. Murtagh has attended an alcohol abuse rehabilitation course, are satisfied that Pte. Murtagh does not suffer from endogenous depression following the domestic crises caused by his drinking and indeed secondary to excessive alcohol ingestion.
4. The appropriate and only treatment deemed necessary at this time is total abstinence from alcohol.”

Colonel Walsh replied to this letter on the 9th September 1992:
“1. Yours of 16 July 1992 refers.
2. The Board recommends that “he be monitored at Unit Level”.No ref to Medical follow up.

3. Dr Flynn’s report to Dr Kerr is dated 11 December 1990. He was admitted to St Bricin’s on 8 January 1991. AF 177 contains no reference to C2H5OH. Could Capt Kerr have alerted St Bricin’s?

4. I would consider this patient as very vulnerable and would advise active medical follow up.

Do local ’28 Bn Medical Records have any indication of contact with his wife or family?”

This letter is of great significance. The Director of the Army Medical Corps queried why the Medical Board had not recommended medical follow-up. He indicated that he considered the patient as being “very vulnerable” and advised “active medical follow up”. He queried whether there had been any contact with his wife or family. This clearly indicated his concerns about the need for contact with his wife or family.
With respect to Lt.-Col. Collins and Cmdt. Kerr, it appears that Col. Walsh’s concerns were not addressed in any serious way which seems extraordinary when the advice is so strong and polite but imperative.

After six months, Lt.-Col. Collins replied by letter of the 16th March 1993: – (My comments are in brackets)

“1. Your letter of 09 Sep 92 associated with Medical Board of 02 Jun 92 refers.
2. I delayed replying to this letter as I felt that the passage of some months and review by a further Medical Board would provide me with a more substantial grounds for my assessment of this patient.

3. Your comments on the recommendation of the Board are noted. The recommendation that Pte Murtagh “be monitored at Coy Level” adverted to the need for management interest and responsibility for a soldier with a history of alcohol abuse. The continued interest and observation by the Bn MO was assumed.” (This ignores Col. Walsh’s “No ref to Medical follow up”. Col. Walsh was forward looking; Lt.-Col. Collins gave retrospective explanations.)

“4. It is regretted that Capt Kerr did not advert to Pte Murtagh’s history of alcohol abuse at the time of his referral to St Bricin’s for a brain scan on Jan 91.

5. At review by Medical Board on 04 Mar 93 I found that Pte Murtagh has now abstained from alcohol for just over one year. He is well and active, feels all his problems have resolved and his domestic circumstances have become harmonious again. He is fit for and performing all regimental duties.

6. Pte Murtagh has a somewhat immature personality – I know him quite well, having served with him in 60 Inf Bn UNIFIL – but he does not suffer from a primary depressive illness. His depressive symptoms were secondary to alcohol abuse and have disappeared since he undertook sobriety.” (This seems to ignore the LA30 entries; and the lack of alcohol problems pre Lebanon and the sick leaves for alcohol since 1988)

“7. The Board felt it appropriate to leave Pte Murtagh in Med Cat ‘C’ notwithstanding his having no apparent illness at present. I am, in general, opposed to upgrading persons with a history of alcohol abuse until they have achieved two (2) years sobriety and I do not think Pte Murtagh has the maturity of personality to withstand the potential stresses of further UN Service. He will continue to be observed and reviewed by MO 28 Inf Bn.

8. CMF/850416 and Proceedings of Medical Boards of 02 Jun 92 and 04 Mar 93 are attached.”

This letter indicates that Lt.-Col. Collins continued to consider the plaintiff as being essentially an alcoholic. He did not adopt and follow Colonel Walsh’s recommendations. Rather than ensuring medical follow-up, as Colonel Walsh advised, it seems that Lt.-Col. Collins envisaged that he would be monitored for signs of alcohol abuse and the the Battalion Medical Officer, Cmdt (then Captain) Kerr would maintain “continued interest and observation”. No attempt was made to contact the plaintiff’s family members. It appears that Colonel Walsh’s letter had no real effect. In fact it was ignored and not acted upon; what was clear to Col. Walsh and put on paper was not acted upon, despite knowledge of the effect of symptoms of PTSD which should have been obvious to persons aware of sensitivity to and perils of chronic PTSD.

6. The Army’s Failure to Inform or Assist the Plaintiff’s Civilian Doctors
The defendants failed to give adequate information to Dr Fidelma Flynn and other civilian doctors who were treating the plaintiff at St Columba’s Psychiatric Hospital in Sligo. Dr Kerr wrongly and incorrectly assumed that the plaintiff had given a full history of events in the Lebanon to Dr Fidelma Flynn at St Columba’s Hospital or that he knew or had the capacity to know and understand the significance of what had happened to him in the Lebanon. He saw no need (and indeed there seems to have been no protocol or systematic requirement) to provide her with documentation or a précis of the information contained on the LA30 or the Central Medical File (or other files) relating to the plaintiff, notwithstanding his own evidence of the importance of an accurate medical history in arriving at a diagnosis. He should have provided a referral note or letter furnishing a proper factual and medical history to Dr Flynn. The initial admission in Sligo was not via Dr Kerr, but once the seriousness of the plaintiff’s condition was known then the system should have ensured that his LA30 (and AF667A information) and more background information was given to Dr Flynn.

The defendants were obliged to provide continuing care to the plaintiff, who remained within their service. If the Army did not directly provide psychiatric care to the plaintiff, they were bound (a) to refer the plaintiff to an appropriate expert for diagnosis and (b) to provide comprehensive relevant information to the plaintiff’s civilian doctors. The army medical corps doctors were in receipt of medical reports from Dr Flynn which contained no reference at all to the condition of which they already knew of “acute anxiety disorder under stress” and this should have alerted them to the fact that Dr Flynn was in complete ignorance of what had occurred to the plaintiff in the Lebanon, particularly his incapacitating anxiety states and symptoms of PTSD and its consequences and relevance to her investigations, diagnosis and treatment of the plaintiff.

The Army delayed in referring the plaintiff for diagnosis until November 1995 and failed to provide complete information to Dr Flynn at any time. Dr Flynn said in evidence that the information in the LA30 and CMF relating to incapacitating anxiety under stress would have been relevant and significant to her. This was also the view of Dr O’Loughlin and Dr McGuire who gave their professional opinion as being that the information would have been relevant to Dr Flynn. If this information about the plaintiff’s condition and abnormal behaviour in respect of incapacitating fear and loss of conciousness in panic attacks had been available to Dr. Flynn, it seems likely that she would have soon realised that PTSD underlay and explained the excessive intake of alcohol as a self administered palliative for undiagnosed and unresolved symptoms of PTSD

7. The Army’s Delay in Acting when Post Traumatic Stress Disorder was Raised in 1994
Even after Dr McCarrick raised the issue of post traumatic stress in 1994, the defendants delayed in referring the plaintiff to Captain O’Loughlin until November 1995. Dr Kerr’s letter of referral is peculiarly worded in that it specifies that the plaintiff was being referred to “outrule” the possibility of post traumatic stress disorder. Dr Kerr admitted that he did not believe that the plaintiff had post traumatic stress disorder. In this reluctance to accept a possible diagnosis and in the delay in referring the plaintiff to the Army’s own specialist, the defendants again failed in their duty to the plaintiff.

There seems to have been a reluctance to admit failure to diagnose correctly PTSD and there was reluctance even after the positive preliminary diagnosis made during the plaintiff’s first consultation, albeit a working diagnosis only, of Dr Fionnuala O’Loughlin in November 1995.

8. The Army’s Failure to Acknowledge the Diagnosis of Post Traumatic Stress Disorder Made in May 1996
Captain O’Loughlin saw the plaintiff promptly upon referral and made a rapid working diagnosis of post traumatic stress disorder when she first saw him on November 17th 1995. She performed the CAPS test on 29th February 1996 which confirmed current and past post traumatic stress disorder. She notified the Army by letter of the 27th May 1996.

It does not appear that the Army took any steps to provide counselling or cognitive behaviour therapy to the plaintiff after this diagnosis was received. The Army were not relieved of their duty to provide appropriate treatment and therapy to him as he was still a soldier in their care as an employee.

It is strange that when Dr Deeny wrote to convene a Medical Board in 1996, having received Captain O’Loughlin’s report of the 27th May 1996, he failed to mention the diagnosis of Post Traumatic Stress Disorder. In the proceedings of the final Medical Board which classed the plaintiff as Category E (below Defence Forces requirements), the Board made no mention of the finding of post traumatic stress disorder. Not even the conclusive report from the army psychiatrist in May 1996 seems to have brought home the realisation that the army had failed to recognise and diagnose the PTSD and the reason for the plaintiff’s drastic change in sickness record and his need for correct diagnosis, support and treatment.

On the evidence in this case, the defendants closed their eyes to warning signs and indicators for post traumatic stress disorder and effectively washed their hands of responsibility once it had been diagnosed. In so doing, they failed in their duties to the plaintiff.
The Legal Recognition Of Liability For Psychiatric Injuries And Damage
As is well known, the Irish courts were alert to the possibility of psychiatric or mental injury as a result of a tort from an early time – indeed when psychiatry was in its infancy. The present case is factually distinct from most of these cases and accordingly the interesting legal principles about such distinctions as “primary” and “secondary” victims and issues of proximity to an accident do not arise for consideration, although the evolution in the law does demonstrate how the Courts have given increased recognition over time to psychiatric injuries.
The “Nervous Shock” Cases
In 1884, the Irish Court of Appeal upheld Palles C.B.’s charge to the jury in Byrne v Great Southern and Western Railway (Unreported, Court of Appeal, February 1884). In that case, the plaintiff was the Superintendent of the Telegraph Office at Limerick Junction. His office was at the end of a railway siding. Railway points were negligently left open and a train entered the siding and broke down the wall of the plaintiff’s office. He suffered no physical harm but suffered, in the language of the time “a nervous shock”. The Common Pleas Division and the Court of Appeal upheld the jury’s award to the plaintiff.

The Exchequer Division of the High Court of Justice followed and applied that decision in Bell v Great Northern Railway Company of Ireland (1890) 26 L.R.Ir.428

In that case, Palles C.B. said (at 442):

“As the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence causes fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be ‘a consequence which, in the ordinary course of things would flow from [negligence, unless such injury] accompany such negligence in point of time.”
The development of the law and the growing recognition of psychiatric injury under the heading of “nervous shock” is described by Gillian Kelly in Chapter 1 of Post Traumatic Stress and the Law. Byrne and Bell were followed in England in Dulieu v White & Sons [1901] 2 KB 669.
In McLoughlin v O’Brian [1983] 1 AC 410, the House of Lords famously permitted a plaintiff to recover damages for psychiatric injury sustained where she attended hospital to see her family members following a very serious road traffic accident as a result of which she suffered depression and a change in personality. As is well known, the members of the House of Lords adopted different approaches to the criteria to be applied in deciding whether or not liability should be imposed. Lord Bridge adopted a more simple test of foreseeability, while Lord Wilberforce imposed an additional test of proximity limited in a number of respects.

In the Australian Federal High Court case of Jaensch v Coffey [1984] 155 C.L.R. 549, the plaintiff went to the hospital following a serious road traffic accident involving her husband. She witnessed the severity of his injuries, and was informed of the seriousness of his condition. She developed a post traumatic stress disorder as the result of what she saw and was told. The High Court of Australia held that she was entitled to recover, her injuries being reasonably foreseeable and sufficiently proximate to the accident.

In Ireland, in Mullally v Bus Éireann [1992] I.L.R.M. 722, the plaintiff’s family were seriously injured (one son ultimately dying) following an accident arising from the defendant’s negligence. The plaintiff was elsewhere at the time of the accident, but travelled to Limerick Hospital on learning of the accident, where she witnessed the very serious injuries of her family. Denham J. stated at p. 724 that the hospital “looked like a hospital out of a war film, like a field hospital”. Within two days of the accident, the plaintiff’s personality had changed and she had since been numb, emotionally detached from her family and had lost her zest for life. The plaintiff had suffered what Denham J. described at p. 727 as “painful recollections, flashbacks”, noting that “she finds them extremely painful and she is unable to talk about them”. Denham J. stated that “These recollections are in her subconscious all the time but she tries to keep them under control”.

Denham J. found that the plaintiff had symptoms consistent with post traumatic stress disorder, and had regard to the criteria in the DSM III guide. Denham J. held that she should apply the ordinary criteria of reasonable foreseeability to the facts and found it to be reasonably foreseeable that a mother, exposed to the experience that the plaintiff had suffered, would break down and suffer illness as the plaintiff had. The old term “nervous shock” included post traumatic stress disorder. Denham J. referred with approval to the Byrne and Bell cases. I note that PTSD was accorded a diagnostic heading in 1980 by the American Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders (DSM III). Thus by 1980 PTSD was a term in usage for a constellation of symptoms already well known particularly to military doctors.

In Kelly v Hennessy [1995] 3 IR 253, members of the plaintiff’s family had been left permanently brain-damaged as a result of a collision with the defendant’s vehicle. The plaintiff was not at the scene, but was informed of the accident by telephone and was driven to the hospital by neighbours. She witnessed her family in the hospital, each of whom was in “an appalling condition”. The trial judge made the following further findings of fact:

1. the plaintiff had from that time led “a traumatised existence”,
2. the plaintiff had suffered immediate nervous shock resulting in vomiting on receiving the telephone call concerning the accident and that this conditiion was gravely aggravated by the scenes she immediately thereafter witnessed in the hospital,

3. the post traumatic stress disorder continued up to 1992 (some five years after the accident) at the earliest and plaintiff continued to suffer a serious depression,

4. the learned High Court Judge was not satisfied, having regard to all the evidence, that the plaintiff would ever fully recover from what he perceived to be a clear psychiatric illness.

The High Court Judge held that the plaintiff’s injuries were the reasonably foreseeable consequences of the defendant’s negligence and held in the plaintiff’s favour. The defendant appealed the decision, accepting on the appeal that the plaintiff was suffering from post traumatic stress disorder and depression, but disputing causation and the existence of a duty of care in favour of the plaintiff. The defendant argued that the plaintiff’s disorders had been caused by the strain of caring for her family rather than through shock as a result of the accident. Finlay C.J., with whom Egan J. agreed, held that the plaintiff’s psychiatric illness was caused by learning of the accident over the telephone and from what she saw in the hospital. It was also a reasonably foreseeable consequence of the defendant’s negligence. Denham J. agreed in a separate judgment.
In Curran v Cadbury (Ireland) Ltd. [2000] 2 I.L.R.M. 343, the plaintiff suffered a psychiatric injury in circumstances where she had turned on a machine in a factory unaware that a fitter was working inside it. She became convinced that the fitter had been killed or seriously injured. In fact, this was not the case. The machine had been stopped without warning, and the plaintiff had turned it on according to normal practice. Judge Bryan McMahon applied the principles set down by the Supreme Court in Kelly v Hennessy. He declined to follow the decision of the House of Lords in White v Chief Constable of South Yorkshire [1998] 3 WLR 1509. He cast doubt on the appropriateness in Irish law of a distinction between “primary” and “secondary” victims and also doubted whether policy was a material consideration in Irish law so as to limit the scope of persons who would be entitled to recover damages for psychiatric injury.

Judge McMahon said ([2000] 2I.L.R.M. 343, at 349):

“Moreover, the plaintiff in addition to being a neighbour in the Atkinian sense, was also the defendant’s employee in this case, and this legal relationship also imposes some obligations (tortious and contractual) on the defendant as employer. The duty of the employer towards his employee is not confined to protecting the employee from physical injury only; it also extends to protecting the employee from non-physical injury such as psychiatric illness or the mental illness that might result from negligence or from harassment or bullying in the workplace.”
Judge McMahon held that the plaintiff was entitled to succeed on the general principles laid down in Kelly v Hennessy and on her claim of breach of statutory duty. Accordingly, he did not need to address the issue of the employer’s common law duty to the plaintiff. He did make the following obiter comment:
“I do not propose to address the question of whether there is a general duty on an employer to take reasonable care to prevent the employee suffering psychiatric illness because of the conditions of employment. As already mentioned, the House of Lords has considered the matter recently in the White case, where it held that there was no such general duty on the employer. The judgment is controversial and I would content myself with the remark that there must be a duty in this respect in some circumstances at least, even if a blanket duty in all circumstances is rejected. Were I pushed to make a decision, I would be inclined to the view that the plaintiff in the present case, and in the factual situation we are considering, was owed such a duty by her employer. White’s case can be distinguished in so far as the policemen there were not participants or directly involved in the incident, and arguably were comparable to by-standers and spectators. In no way, however, could Mrs Curran in the present case be so described.” ([2000] 2 I.L.R.M. 343 at 359)
Judge McMahon held that the plaintiff had suffered an injury which was reasonably foreseeable in the circumstances and that there were no policy reasons why the plaintiff should be denied recovery.
It will be noted that Judge McMahon queried the decision in White v Chief Constable of South Yorkshire [1998] 3 WLR 1509, in which the House of Lords denied recovery to policemen who had suffered post traumatic stress disorder by assimilating their position as employees to that of plaintiffs who did not have the employee-employer relationship to the wrongdoer. The House of Lords therefore applied the tests it had set out in the Alcock v Chief Constable of South Yorkshire [1992] 1A.C. 310 case.
Cases of Psychiatric Illness Inflicted by an Employer through Breach of Duty to an Employee
It should also be noted that in recent years the Courts have had to consider claims by employees in relation to psychiatric injuries caused by stress or bullying in the workplace. The factual pattern of those cases again tends to be different from that of the present case, because in those cases the plaintiff complains that the defendant employer caused the stress which caused the psychiatric injury, and that the employer is responsible for that reason. Only some of those decisions will be noted here briefly. However, it may be noted that McHugh v. Minister for Defence [2001] I.R. 424 has been referred to by the Courts in this context as a relevant precedent.

In this context, in Maher v Jabil Global Services Ltd. [2005] 16 E.L.R. 233, Clarke J. quoted with approval (at 246) from the judgment of Lavan J. in Quigley v Complex Tooling and Moulding (Unreported High Court, Lavan J., 9 March 2005) to the effect that:

“The fundamental question is whether the defendant fell below the standard to be properly expected of a reasonable and prudent employer.”
Clarke J. continued:
“It is thus clear that at the level of principle there is no distinction to be made in the assessment of the liability of an employer in cases where an employee claims that as a result of negligence he suffered, on the one hand, physical injury or, on the other hand, mental injury.”
In the context of a claim for damages arising from a psychiatric injury which was the result of stress in the workplace, Clarke J., in accordance with other authorities, posed three questions:
“(a) has the plaintiff suffered an injury to his or her health as opposed to what might be described as ordinary occupational stress;
(b) if so is that injury attributable to the workplace; and

(c) if so was the harm suffered to the particular employee concerned reasonably foreseeable in all the circumstances.” ([2005] 16 E.L.R. 233, 247).

In that case, Clarke J. held that the risk of psychological harm to the plaintiff was not reasonably foreseeable, and accordingly that portion of the plaintiff’s claim was dismissed. By contrast it seems elementary that an employer such as the Army owes a duty of care to its employees in the circumstances that, as is likely, they are exposed to stress and trauma, danger of death, close firing, deaths of colleagues and realisation of one’s own mortality which can all cause post traumatic stress with the peril of becoming subject to chronic PTSD if this syndrome is not diagnosed and not treated.
In Pickering v Microsoft Ireland Operations Ltd [2006] 17 E.L.R. 65, Esmond Smyth J. quoted from the decision in Maher and commented:

“Clarke J. simply stated that in both situations “the practical way in which the assessment of the duty of care which an employer owes may … differ”. These authorities are indicative of the general understanding of the duty of care owed by an employer to his employee as described, for example, by O’Higgins C.J. in Dalton v Frendo, unreported, Supreme Court, December 15 1977. In that case the learned judge said that the “duty of an employer towards a servant is to take reasonable care for the servant’s safety in all the circumstances of the case”. As McGuinness J. later held in Bradley v An Post [1998] 2 I.L.R.M. 1 an employer discharges that duty to an employee ‘[i]f he does what a reasonable and prudent employer would have done in the circumstances”’.
Esmond Smyth J. carried out a wide-ranging review of the authorities in which an employee had recovered damages for psychiatric injury from his employer, including McHugh v Minister for Defence (see [2006] E.L.R. 65, 115-6) and ultimately granted the plaintiff an award of damages in respect of the psychological injuries that she had suffered as a result of her employer’s breach of contract.
In conclusion, it is obvious that the defendants their servants or agents failed in their duty of care to the plaintiff in all the circumstances, not by his exposure to danger and traumatic incidents including close firing, explosions and the death of colleagues but in their failure to take appropriate care for the health of the plaintiff, and in failing to observe and recognise the warning signs of PTS in the panic stricken, incapacitating states of the plaintiff in Lebanon and the failure to recognise the significant symptoms of PTSD manifested by the plaintiff and negligently failed to refer the plaintiff to the army psychiatrist and failed to obtain remedial therapy and treatment for the plaintiff.
Claim of Statute Bar
Near the end of the Defence two paragraphs appear:-

“9. Without prejudice to the foregoing, the plaintiff’s claim herein is barred by virtue of the operation of Section 11 of the Statute of Limitation 1957, as amended by Section 3(1) of the Statute of Limitations (Amendment) Act 1991.
10. In the premises and without prejudice to the foregoing, the defendants plead that they are prejudiced by the inordinate and inexcusable delay of the plaintiff in bringing these proceedings.”

While I was conscious of the existence of these paragraphs, on “the run of the case”, I felt that these were not live issues as the nature of the plaintiff’s claim was that the defendants had failed in their duty to the plaintiff to identify and provide treatment for his psychiatric problems during his tour of duty as a soldier in the Lebanon where his problems with incapacitating anxiety states were manifest and well known to the NCOs, his officers and the army medical doctors who treated him with tranquillising injections of diazepam. Due to his immaturity and vulnerability, his susceptibility not just to stress but also to PTSD should have been recognised by the defendants through their NCOs, officers and medical doctors but the defendants failed to treat or monitor the plaintiff and failed to provide remedial therapy for the plaintiff. Dr Paddy Breslin, who was acting as Senior House Officer to the late Dr McCarrick, the experienced locum psychiatrist doing duty in 1994 for Dr Fidelma Flynn, consultant psychiatrist, in St Columba’s Hospital in Sligo, gave evidence that on 31st May 1994, he had made a note that he had spoken with a social welfare officer who informed him that he had been talking with Captain Kerr, Finner Camp, and also Dr McCarrick regarding possible assessment for treatment of PTSD. There is a psychiatrist attached to the army hospital, St Bricin’s in Dublin, who has set up a programme for treatment of these patients. This would be arranged on an outpatient basis. On 14th June 1994, Dr Breslin made another note about Victor Murtagh at the Ballymote OPD which included “to contact army doctor about army psychiatric course for PTSD”. This was the background to Dr Breslin writing on behalf of Dr McCarrick to Dr Gerry Kerr on 2nd June 1994 at Finner:
“Dr McCarrick feels that he may be suffering a form of post traumatic stress disorder and feels that treatment with the problem may help Victor’s problem. We were made aware of the Army having facilities which deal with this problem in Dublin and perhaps Victor might be a candidate for assessment for such treatment.”
Lt.-Col. Collins was made aware of this letter as he wrote on it as an addendum:
“Dr Breslin is locum for Dr Flynn. Capt. Kerr is arranging for review with Dr. Flynn and will discuss proposal to refer to Dublin.” (In fact Dr. Breslin was SHO to Dr. McCarrick who was locum to Dr. Flynn).
On 16th March 1993, Lt.-Col. Collins had written a memo to DMC (Director Medical Corps) which included at para. 6:
“Pte Murtagh has a somewhat immature personality – I know him quite well, having served with him in 60th Inf Bn UNIFIL – but he does not suffer from a primary depressive illness. His depressive symptoms were secondary to alcohol abuse and have disappeared since he undertook sobriety”.
I have set out these passages to indicate that Dr McCarrick’s view was very tentative and suggesting that the patient should perhaps be referred for assessment and certainly even if the soldier felt that his problems perhaps came from his experiences in Lebanon, there were strong contrary opinions held by the two senior army doctors who had the medical records, his LA30 and access to his CMF file.
At all events there had been no prior or preliminary application in respect of a time bar and that episode of cross-examination of Dr Breslin was the one passage which drew any thought to the prospect of a suggestion of a live issue with regard to a time bar issue. I was anxious to clarify what issues counsel for the defendant envisaged were going to confront the Court eventually and accordingly I made the request that he would open the case for the defence so that there could be clarification for the parties and the Court as to what issues were likely to emerge as being in contention. Much earlier, Counsel for the defendants had indicated that “the matter of the Statute of Limitations is to be dealt with depending on how the evidence unfolds” as I was anxious to have clarification on the issues, particularly that of any time bar.

Counsel for the defendants at the close of the plaintiff’s evidence did respond to the request to open his case but when Counsel for the plaintiff interrupted and said that he was misstating the plaintiff’s case, he declined to proceed to open his case and called his first witness as he was entitled to do. This however had the unfortunate result that neither Counsel for the plaintiff nor the Court were aware that the issue of the Statute involving a time bar was a live issue and certainly I can recall no mention of this aspect or of any relevant cases being mentioned. At the end of the evidence Counsel opted to submit written submissions and I requested co-operation to ensure the submissions did knit and did not pass like “ships in the night” without engaging on some issues. When the submissions came in, it turned out that the defendants were actually relying on the Statute of Limitations and neither I, nor Counsel for the plaintiff were aware that this was still a live issue. Accordingly I invited the plaintiff’s Counsel to put in a further submission in response to the claim of statute bar. This came in about mid-September after I had had to sit in August to complete the hearing of a judicial review involving the uncharted legal area of a further extension of a planning permission for a large windfarm, raising issues which required a lengthy judgment. I regret that the public law matter had to take priority and I am sorry that any time has passed in a case involving a psychiatric injury.

The case of the defendants in raising the Statute of Limitations is put on the basis that in May/June 1994 the plaintiff was aware that a locum psychiatrist, the late Dr McCarrick, thought the plaintiff was suffering from PTSD. Dr McCarrick died some time ago and so there is no evidence from him as to what he said to the plaintiff but the wording of Dr Breslin’s letter dated 2nd June 1994 is of a tentative nature:

“Dr McCarrick feels that he may be suffering a form of post traumatic stress disorder and feels that treatment for the problem may help Victor’s problems.”
The plaintiff was a soldier who had left school at the age of 15 and had been in constant work up to his tour to the Lebanon. Neither his treating psychiatrist Dr Flynn (in the absence of information about the plaintiff’s torrid tour in the Lebanon) nor the senior Army doctors Dr Kerr and Lt.-Col. Collins agreed with this tentative diagnosis. Dr McCarrick’s suggestion was that consideration be given to sending the plaintiff for assessment to the Army psychiatrist in Dublin.
The defendants submit that the plaintiff was informed in May/June 1994 that he may have PTSD and he should have instituted proceedings then but did not do so until 23rd March 1998. The Defence rely on Gough v Neary [2003] 3 IR 92 in particular the principles set out by Geoghegan J. quoting Spargo v North Essex Health Authority [1997] 8 Med LR 125. Principle 3 states:

“A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation.”
In view of the advices as to alcohol being the source of his problem from the Army doctors and Dr Flynn, who was never briefed with the copy LA30 or other records with regard to the plaintiff’s acute incapacitating anxiety states in the Lebanon and the tentative suggestion made by Dr McCarrick through his SHO Dr Breslin, it would surely have been precipitate for the plaintiff to rush off to a solicitor before being referred to Captain Dr F. O’Loughlin, the Army psychiatrist. She reported definitively to Dr Kerr by her letter dated 27th May 1996 when she confirmed that the plaintiff had had and still had post traumatic stress disorder.
Sections 2 and 3 (1) of the Statute of Limitations (Amendment) Act 1991
Section 2 of the Statute of Limitations (Amendment) Act 1991 provides:

2.(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 dependant 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 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.
(2) For the purposes of this section, a person’s 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 which it is reasonable for him to seek.

(3) Notwithstanding subsection (2) of this section –

(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.

Section 3(1) of the Statute of Limitations (Amendment) Act 1991 provides:
“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.”

The Plaintiff’s Date of Knowledge in the Present Case
The plaintiff was only diagnosed with post traumatic stress disorder in 1996. As his claim is based on the negligent failure to recognize and treat post traumatic stress disorder, he could not have become aware of the inaction on the part of the defendant in recognizing and treating his PTSD until he had been diagnosed with that condition.
The plaintiff also claims that the defendants negligently failed to arrange for treatment following the diagnosis of PTSD by Captain O’Loughlin in 1996. His claim in relation this head of negligence is one that continued until the time of his discharge from the Army. No case can be made by the defendants that this head of the plaintiff’s claim is statute-barred.
The Plaintiff’s Knowledge of his Injury – Post Traumatic Stress Disorder
The injury that gives rise to these proceedings is post traumatic stress disorder. Accordingly, the Court is concerned to establish the plaintiff’s date of knowledge (within the meaning of section 2 of the Statute of Limitations Act 1991) that he was suffering from this condition. The fact that the plaintiff may have been told at earlier times that he was suffering from depression or alcohol addiction therefore does not amount to knowledge of the injury that gives rise to these proceedings.

The plaintiff stated in evidence that the late Dr McCarrick raised the possibility of PTSD with him. The defendants now seek to rely on this as indicative of sufficient knowledge on the plaintiff’s part that he had PTSD as to commence the running of the statutory limitation period.

Dr. McCarrick, now deceased, was locum for Dr Fidelma Flynn, at St Columba’s Psychiatric Hospital, Sligo. The plaintiff in his evidence stated that Dr McCarrick said he would write a letter to the Army doctor, but he did not know if that had happened.

Dr Breslin then wrote to Dr Kerr by letter dated the 2nd June 1994 (Book 3 page 125) in relation to the possibility of post traumatic stress disorder, stating that “Dr McCarrick feels that he may be suffering a form of Post traumatic stress disorder and feels that treatment with this problem may help Victor’s problem”.

Dr. Fidelma Flynn wrote to Dr. Julian Flynn, one of the plaintiff’s general practitioners, on the 10th August 1994 (Book 4 pages 44-5), stating “It is unclear whether it is a true post traumatic stress disorder,” and that “Dr Kerr has agreed to refer Victor to the Army Counselling Service for further assessment”.

Dr Kerr stated in evidence that he did not believe that the plaintiff had PTSD. His letter of referral to Dr O’Loughlin was not written until the 7th November 1995 and indicated that he wished to “outrule” PTSD (Book 3 page 117).

In circumstances where the defendants, through Dr Kerr – the medical officer of the 28th Battalion at Finner, and the Army Medical Corps, had the same information as the plaintiff in 1994-5, and did not accept it as indicating post traumatic stress disorder at that time, they are estopped from now maintaining that the said information did indicate the presence of post traumatic stress disorder and that the plaintiff accordingly was aware of same at the time.

It is also noteworthy that Dr Kerr, in the same letter of the 7th November 1995, stated:

“By its nature, however, it is probably better that this issue be clarified before the man is reviewed by the [Medical] Board.”
This is hardly consistent with a position where the plaintiff as a layman is supposed to have been armed with sufficient knowledge of his injury and of the defendants’ responsibility for it, to have justified him in taking legal advice or instituting proceedings, as the defendants now allege. If a soldier’s medical officers keep on regarding him as suffering from alcohol then it seems bizarre that the army should maintain that the private should ignore the advice of his army doctors who were ascribing his ailments to alcohol and depression and when the army psychiatrist did diagnose PTSD positively in May 1996 they seemed to have disregarded her conclusive diagnosis and clung to the unsubstantiated theory of the primary problem being the taking of alcohol.
Following her first meeting with the plaintiff in November 1995, Dr O’Loughlin provisionally diagnosed post traumatic stress disorder. In her medical notes of the 17th November 1995 (Book 2 p. 28), she recorded that the plaintiff was “For CAPS” and “?PTSD”.

In her letter of the 17th November 1995 to Dr Kerr (Book 3 page 115), she stated that the plaintiff was a:

“difficult historian, and quite reluctant to discuss the Lebanon incidents. However, I think he may still be suffering residual effects and may in fact have PTSD.”
(I should explain that Dr O’Loughlin made clear in evidence that ‘difficult historian’ simply means that the plaintiff was reticent about talking about his traumatic ordeals. Avoidance of talking about such traumatic experiences is a quite usual sympton of PTSD. She in fact rated his validity, including co-operativeness, at the highest level, “excellent, no reason to suspect invalid response”.)
The wording of Dr. O’Loughlin’s note and of this letter indicates that as of the 17th November 1995, Dr. O’Loughlin was not definitely diagnosing post traumatic stress disorder. She had, however, decided to administer the CAPS test so as to establish whether or not PTSD was indicated.

However, even assuming that this were said to operate as the plaintiff’s date of knowledge, it dates from within three years prior to the institution of the proceedings.

Dr. O’Loughlin made a definite diagnosis of PTSD following the administration of the CAPS test. This test was completed by the 29th February 1996 (Book 2 p. 31, note at bottom of page). Dr. O’Loughlin reported to Dr Kerr by letter of the 27th May 1996 that the plaintiff indeed had post traumatic stress disorder (Book 3 page 110 and also Book 2 page 4).

The plaintiff did not have sufficient knowledge to institute proceedings in 1994, as the defendants appear to allege. He did not know that he had post traumatic stress disorder at that time. It had merely been mentioned as a possibility for checking by Dr. McCarrick. It appears that Dr. Fidelma Flynn (for whom Dr. McCarrick was locum) and Dr. Kerr did not think that PTSD was present. Dr. O’Loughlin’s opinion was sought in order to clarify the position. Against that background, the defendants cannot plausibly now maintain that the plaintiff “knew” that he was suffering from PTSD as far back as 1994, when clearly Dr. Kerr and Lt Col. Collins did not regard this as correct and the findings of the 1988 Medical Board were turned around (as put pithily by Counsel for the plaintiff) and his client with his obvious vulnerability was clearly stressed out to the point of incapacity by stressors and terror in Lebanon and then, as suggested by Counsel, the plaintiff was ‘left to swing in the wind’. Counsel for the plaintiff accordingly submit that he did not have knowledge of having suffered an injury, in the form of post traumatic stress disorder, until he was definitively diagnosed as suffering from it by Dr O’Loughlin in May 1996.

The plaintiff asserts that his medical adviser made a provisional diagnosis of post traumatic stress disorder on the 17th November 1995 of which he remained unaware until 1996 which assertion is supported by the medical notes and report of Dr. O’Loughlin.

The plaintiff was and remained unaware of the contents of all of his medical notes from the various institutions who treated him and in particular the notes of Dr. Fidelma Flynn and her registrars and/or locums until this case commenced.
“Constructive Knowledge” – Section (2) and 2(3) of the Statute of Limitations (Amendment) Act 1991
The defendants are not entitled to maintain that the plaintiff was affixed with knowledge that he might have been reasonably expected to acquire from facts observable or ascertainable by him or from facts ascertainable by him with the help of medical advice which it was reasonable for him to seek (under section 2(2) of the Statute of Limitations (Amendment) Act 1991).

The plaintiff did not know that he had post traumatic stress disorder in 1994. He could not have been expected to acquire such knowledge from facts observable or ascertainable by himself.

Section 2(2) of the 1991 Act is not applicable in this case, as the plaintiff’s medical advisers did not ascertain that he had post traumatic stress disorder until Dr. O’Loughlin’s diagnosis in 1996.

Dr. McCarrick had PTSD as a possibility and Dr. Breslin wrote on his behalf to Dr. Kerr on the 2nd June 1994 (Book 3 pages 45-6), suggesting that the plaintiff might be a candidate for assessment for treatment. Dr. Fidelma Flynn appears to have been sceptical about this suggestion, as was Dr. Kerr, and Dr. Kerr only referred the plaintiff to Dr. O’Loughlin, the Army’s specialist in post traumatic stress disorder, on the 7th November 1995. Judging by Dr. Breslin’s letter of the 2nd June 1994, Dr. McCarrick clearly appears to have envisaged the plaintiff being referred to this service run by Dr. O’Loughlin so as to have her ascertain whether his tentative suggestion of PTSD could be a correct diagnosis.

In the circumstances, the plaintiff was not in a position to obtain expert advice any earlier than he did because of the defendants’ delay, through Dr. Kerr, in referring him to Dr. O’Loughlin, who was the relevant specialist psychiatrist employed by the Army.

In those circumstances, the defendants are not entitled to rely on section 2(2) of the Statute of Limitation (Amendment) Act 1991.

Furthermore, if the defendants were otherwise entitled to rely on that provision, they are not so entitled by virtue of section 2(3) of the Act. The plaintiff took all reasonable steps to obtain advice. Dr. Breslin, acting on Dr. McCarrick’s behalf, suggested a referral for assessment by the Army’s facilities for diagnosing and treating post traumatic stress disorder. The defendants delayed in making the referral until the 7th November 1995. This was a matter outside the plaintiff’s control. Dr. Kerr, who was responsible for the plaintiff’s care in the Army, does not appear to have discussed PTSD with him or acted to investigate the possibility until November 1995 despite the records in the plaintiff’s LA30 about his condition in the Lebanon and because, with his incapacitating anxiety states requiring medication, he should have clearly been regarded as in peril of contracting chronic PTSD.

Furthermore, it seems that the defendants, through Dr. Kerr, delayed in referring the plaintiff to Dr. O’Loughlin until November 1995, a time when a Medical Board hearing was pending. Given their duty of care and fiduciary duty towards the plaintiff as a soldier whom they had exposed to trauma in the Lebanon, it would be inequitable to permit them to rely on their own delay in referring him for specialist opinion which found that he had chronic PTSD. They are accordingly estopped from relying on section 2(2)(b) to the plaintiff’s detriment.
The Plaintiff’s “Knowledge” of the Acts or Omissions alleged to constitute negligence and breach of duty
There was no evidence to the effect that the plaintiff knew in 1994 “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” – i.e., the Army’s failure to treat him or monitor him for PTSD before, on or after his return from the Lebanon.

The principles referred to by Geoghegan J. in Gough v Neary [2003] 3I.R. 92, 128, quoting from Spargo v North Essex Health Authority [1997] 8 Med LR 125 at p. 129, were as follows:

“(1) The knowledge required to satisfy s. 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) ‘Attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;

(3) a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

It should be noted that in this passage, the Court is largely considering the issue of knowledge of the act or omission which caused the injury, not knowledge of the injury itself.
In the present case, the plaintiff only knew that he had suffered PTSD when Dr. O’Loughlin made a definite diagnosis in 1996, on 29th February 1996 after the CAPS test or on 27th May 1996 when she had reviewed her clinical notes and the results of the CAPS test and wrote her letter dated 27th May 1996 to Dr. Kerr explaining that the plaintiff does suffer from PTSD. Accordingly, as has been said above, the plaintiff only became aware that he had suffered an injury in the form of PTSD at this time. His date of knowledge of the omissions on the part of the defendants through their failure to diagnose, treat or mitigate this condition cannot be any earlier than his date of knowledge that he was suffering from the condition of PTSD.

In the absence of an actual diagnosis of PTSD, the plaintiff could not be said to have been armed with knowledge that the continued existence of PTSD was a consequence of the defendant’s failure to monitor, diagnose and treat him.

In the Neary case, the Supreme Court held that, in the circumstances of that case, the relevant knowledge was the knowledge that the defendant had unnecessarily removed the plaintiff’s womb. In the present case, the relevant knowledge is that the plaintiff not only was suffering from PTSD but also that this PTSD could have been ameliorated or cured by treatment and therapy by the defendants. The earlier the mental health intervention then the more rapid and satisfactory the recovery was likely to be.

In Knowles v Minister for Defence [2002] IEHC 39 O’Donovan J. dealt with the plea of the Statute of Limitations raised by the defendants in the following passage (pages 2-3):

“In the circumstance that, in their defence delivered herein, the defendants claim (inter alia) that the plaintiff’s claim herein is barred by virtue of the provisions of the Statute of Limitations 1957 to 1991, I decided to determine that issue as a preliminary issue and, having heard evidence from the plaintiff in that regard, I concluded that his claim herein is not statute barred for the reason that, while it is clear that, at all material times since the year 1978, the plaintiff believed that the psychological problems of which he complained and continues to complain were attributable to events which occurred while he was a serving soldier in the Lebanon, it was not until he was referred to Dr. Ian Daly, a consultant psychiatrist, in the year 1996 that he first appreciated that those problems could have been alleviated and, possibly, eradicated had he been prescribed appropriate treatment by the army medical corps at the time he is alleged to have manifested psychological and psychiatric symptoms in the Lebanon. In those circumstances, I was satisfied that Mr Knowles date of knowledge that he had a cause of action, within the meaning of the provisions of the Statute of Limitations (Amendment) Act, 1991, was when he saw Dr. Daly in 1996 and that, therefore, his claim herein is not statute barred. In this regard, notwithstanding that I made that determination on the 28th November last, the defendants revisited the issue as to whether or not the plaintiff’s claim herein is statute barred in their submissions herein dated the 19th December, 2001. In that regard, it is clear from those submissions that the defendants’ advisers do not appreciate the basis upon which the plaintiff’s claim herein is founded. It is not based on an allegation that the defendants negligently inflicted psychiatric damage on the plaintiff, as is suggested by those submissions. If that were the basis for the plaintiff’s claim, then there is no doubt but that it would be statute barred because, in the course of his evidence, the plaintiff acknowledged that he was aware that the problems of which he has complained since he went to Lebanon in 1978 were attributable to events which occurred at that time. However, the fact of the matter is that he does not complain that the defendants negligently inflicted psychiatric damage on him but rather that, having developed psychological and psychiatric problems which he maintains were manifest and ought to have been recognized as such by the defendants, the defendants negligently failed to initiate appropriate treatment for those problems and that it was not until the year 1996 that the plaintiff first knew that he had a claim against the defendants based on such negligent failure.”
The claim advanced in the present case is similar in nature to that made in Knowles and it is respectfully submitted that the convincing reasoning of O’Donovan J. applies equally to the present case.
Furthermore a soldier in the care of Army doctors, particularly those aware of his medical record and condition of vulnerability with immature personality and incapacitating acute anxiety states cannot be faulted for trusting and relying on them to diagnose and treat him not least while and until a tentative suggestion of him maybe having PTSD is checked out and conclusively diagnosed.

For all these reasons I conclude that the plaintiff’s claim is not statute-barred. Having made such a clear decision on the legal issue on coercive grounds I would add as an afterthought that the Statute of Limitations is a shield not a sword; if the plaintiff has suffered injury by reason of the defendants’ failure to diagnose and treat his PTSD, when the army doctors had significant information as to his vulnerability to chronic PTSD, perhaps one might wonder at the defendants taking cover behind such a shield when they had so much relevant information and the soldier was initially affected while on UN peacekeeping duties with an Irish Battalion.
Germane disclosures
At the outset of the case I warned Counsel that from 1991 to 2000 I had dealt with a considerable number of PTSD cases as the nominated judge under the Garda Compensation Acts. I alerted Counsel to this as I am very conscious that “a little learning is a dangerous thing”. I know that there are real perils for a judge who thinks he knows about a subject from his own experience. However over a period of about nine years I had reason to assess many applicants suffering from PTSD giving evidence about critical incidents and their effects on them. Since it became apparent that the state of knowledge about PTSD in and around 1986 was likely to become important, I also mentioned to Counsel that I was aware that Lt Colonel Goggin retired had been the Army psychologist for many years and that Dr. Fionnuala O’Loughlin had been the Army psychiatrist as it became clear during the opening of the case that the chronology was likely to be important, and perhaps consideration should be given as to whether the evidence of these army officers might be pertinent.
The fallacy of assuming a good history will come from a soldier smitten by PTSD and subject to reticence, avoidance and reluctance
During the course of the evidence both Lt. Colonel Collins and Commandant Kerr made the point that if the plaintiff did not give a history and tell them about his problems, how could they assess and advise him? I can readily understand Dr. Kerr being upset by the realisation that a soldier as his patient would be reticent about telling even him as a caring doctor about the effect on the soldier of searing recollections of frightening events with factions fighting each other at a time of heightened hostilities in December 1986 and January 1997 in the Lebanon. Lt Colonel Collins also asked the question as to how the plaintiff could expect a doctor to be able to treat him if he did not reveal his symptoms? As to this. Dr. McGuire made clear that such reticence was usual in soldiers with PTSD and it was widely understood by doctors treating soldiers that it was common that those with PTSD were likely to have considerable avoidance of painful memories and reluctance and reticence in recalling intrusive and terrible events. Hence all the more need to encourage the patient to tell his story and relate and describe all symptoms.

The reticence among soldiers to discuss psychiatric problems is perfectly normal and unsurprising as any army has to be careful about the mental health of persons carrying lethal weapons. This makes it all the more important that there be patient and sympathetic questioning of those exhibiting symptoms of post traumatic stress and for there to be explanation of the symptoms as being normal after terrifying events. This is particularly so if the person has obvious immaturity or other vulnerability to PTSD so as to be able to take remedial steps to prevent the condition becoming chronic. As intelligent and well-educated doctors, both Colonel Collins and Cmdt Kerr must be very well aware of the reluctance of soldiers to confess to fear or panic attacks, or any form of problem of the psyche.

Such reticence and avoidance means that there must be a system to ensure that both army doctors and civilian doctors are kept informed of the history and sick records of all their military patients. It was more than surprising to learn that Dr. Fidelma Flynn was unaware of Dr. F. O’Loughlin’s positive diagnosis in respect of the plaintiff as to past and present diagnosis of PTSD which Dr. O’Loughlin confirmed in her letter dated 27th May 1996 to Captain Gerry Kerr. In fact Dr. Fidelma Flynn, who had been treating the plaintiff, and liaising with the army doctors about their mutual patient, only saw this letter when arriving at this Court, which seems remarkable as she was involved in the decision to refer the plaintiff to the army psychiatrist and one would have expected that the Army would have had a system in place to ensure that such a diagnosis confounding the opinions being expressed by the senior Army doctors dealing with and caring for and treating the plaintiff would have been sent to Dr. Flynn as a matter of course and not just out of courtesy. Dr. Kerr was transferred to Cork at this period but one would expect steps to have been taken to ensure that his successor would liaise with the plaintiff’s treating doctors and would also ensure that members involved in military Boards were made aware of Dr O’Loughlin’s findings, not least to ensure that appropriate treatment, counselling and therapy would be ensured for the plaintiff especially as Dr O’Loughlin also was moving on secondment. Furthermore as a matter of basic fairness and justice, the Military Board should clearly have been informed of the erroneous diagnosis of primary alcoholism and it should have been given Dr. O’Loughlin’s definitive diagnosis in May 1996 of the plaintiff’s primary PTSD which was undiagnosed, despite his acute panic states, until 1996.
Sensitising stressor
The plaintiff described flying to Tel Aviv, on 22nd October 1986 on his 21st birthday, and going from there by lorry and bus in convoy to Camp Brashit in the hills. He did duty at Checkpoint 6-21. After six or seven weeks – one night in November 1986 – they came under heavy fire in the checkpoint from Israelis for a while early in the night. He got a blackout or fit that night and did not remember much happening. When he had the fit he was sent for treatment at Camp Shamrock. I think this was his admission to the RAP Tibnin on 29th November 1986.

Soon after this in December 1986, he heard a commotion on the radio – there was radio contact with HQ: one soldier was shot at Camp Brashit about two miles from Checkpoint 6-21 where the plaintiff was stationed. This was 6th December 1986 and the soldier was William O’Brien from Athlone who had trained with the plaintiff. Camp Shamrock was about two or three miles from Camp Brashit. He was afraid when he heard Willie was shot dead. Willie’s wife was expecting another baby at Christmas. The plaintiff was afraid he would not get home to see his children.

He went home for Christmas about 19th December 1986 with Cpl. Dermot McLoughlin. He felt well over Christmas but was afraid and restless. He was asked about domestic problems and he said that his wife was upset that he was off in Lebanon when she had a small baby Jennifer of only a couple of months to mind on her own. He wanted to earn more money so that they could buy a house in Ballymote. His wife Veronica was happy he was back home but not happy about his going to Lebanon as their baby Jennifer was so young. However they discussed this and she was happy about it.

On 9th January 1987 he and Cpl McLoughlin flew again to Tel Aviv and then went by lorry to Naquora where they stayed as there was much gunfire on the road to Brashit. Next day on the way up from Naquora to Brashit Camp there was heavy fire and a Nepalese soldier was wounded. The Irish were in an APC Peugeot (an armoured personnel carrier) and had to get out and take cover. He saw the wounded Nepalese. They were told they were going to the “CO’s house” at Tibnin. However, the plaintiff in fact was told to ride “shotgun”, to do escort duty as observer in a jeep and went to the Total Station checkpoint. Cpl McLoughlin was sent to the CO’s house at Tibnin. That night all these checkpoints came under heavy fire. The plaintiff came under heavy fire and was aware of what was going on elsewhere from hearing on the radio. There was heavy machine gun fire, rifle and mortar fire and tank rounds. He and his colleagues took cover in a civilian house beside the Total Station Checkpoint and “were pinned down and could not return fire”. They came under heavy machine gun fire. The plaintiff became upset in the witness box and had difficulty in answering. He said that he had been very afraid. I believed him. His difficulty in recounting this incident is a feature of those affected by acute stress. His anquish was genuine; I am sure that was the night or early hours of 10th January 1987 when Cpl McLoughlin was killed by a shrapnel bomb which penetrated and exploded in the “CO’s house” at 6-17 which was a checkpoint with a roof over it and the recollection of this night’s events caused the plaintiff’s loss of self-possession.

It seems to me that there were many incidents in the hostilities between the factions in late November and December 1986 which could have sensitised the plaintiff and the accumulation of stressful incidents would have been reinforced by the close firing incidents and explosion on the night when Cpl McLoughlin was killed. This deeply affected the plaintiff as he had shared a billet with Cpl McLoughlin at 6-21 and the Corporal had been very supportive of him.

Counsel for the defendants challenged the veracity of several of the incidents described by the plaintiff to both Dr McGuire and to Dr O’Loughlin. However I accept that there is a strong core of truth and an intention to be truthful and I have relied particularly on events on which there is unimpeachable evidence not least from Lt Col. Collins about this being a “tough battalion”, meaning a very torrid and traumatic tour of duty, and several of the NCOs such as CQMS Flanagan, Sgt McCabe and Corporal Gaffney and how they too were affected by stressful dangers. Dr McGuire said pithily “Time and PTSD can change memory. He was in an area of hostility, felt his life in danger and that he was going to be killed”. She also made the valid point:- “May I first say that epilepsy of any type, petit mal or grand mal, pseudo seizures are common symptoms of combat stress and severe anxiety. They are well documented in the research as well”. I have every confidence that the diagnosis of PTSD made by both Dr McGuire and Dr F. O’Loughlin, the Army psychiatrist, were correct. I also accept Dr McGuire’s point that the DSM III and ICD 9 and 10 categorisations are guidelines, helpful for taxonomic reasons and helpful in diagnosis when used with the expertise of experience in conjunction with knowledge of the differing clinical signs of the constellation of symptoms which signify PTSD.
The alcohol proposition
There is no doubt that after his return in April 1987 the plaintiff resorted to drink as it were as self medication for the miserable and mystifying condition in which he found himself. He and his wife Veronica both maintained that he had been a moderate drinker before he went to and came back from the Lebanon but that then in April 1987 he was beset in the throes of symptoms such as broken sleep and early morning waking, startle response after a fire siren sounded, including his jumping from bed and then his searching frantically for his gun in a wardrobe. He was also irritable and upset to the point where she said that “he was not the Victor who had gone to the Lebanon” but was of changed personality and short with the children.

When opening the pleadings, counsel for the plaintiff referred to a reply giving particulars dated 9th November 2000 which included ‘the plaintiff’s marriage is broken up. His youngest child is two and a half years. He lives in a flat attached to his brother’s house. He is a broken man. He is full of remorse about the fact his marriage has broken down. He is drinking excessively and has great difficulty holding down anything close to a job. He is constantly depressed. His young wife has six children to deal with on her own. They range in ages from 18 down to two and a half. His marriage was good up to the time he returned from the Lebanon.’

When Counsel for the defendants objected that information about incidents not mentioned in the Statement of Claim was being adduced, Colm Smyth S.C. for the plaintiff pointed out that these matters were set out in the Report dated 27th May 1996 of the Army psychiatrist Captain Dr F. O’Loughlin which described incidents involving close firing which led her to make a finding or diagnosis of PTSD and the defendants had admitted the fact and the defendants were aware of the contents of Dr F. O’Loughlin’s Report (not least because she was the Army Psychiatrist) and the nub of the plaintiff’s case was that his client had suffered PTSD which had not been treated or even diagnosed, despite his incapacitated condition and acute anxiety states in the Lebanon, until eventually he was referred to Dr O’Loughlin in November 1995.

Four further snippets from my note of the evidence are worth inclusion. When asked how he reacted to the news from Captain Kilfeather that Cpl McLoughlin was dead the plaintiff said he was terrified and shaking. That night he passed out at Camp Brashit and woke up in hospital in Camp Shamrock. He recalled that he got ‘needle injections’. This would indicate that the plaintiff was taken in to the R.A.P. in an incapacitated anxiety state not just on occasions in December 1986 but also in or about 10th January 1987. There is further implication that the plaintiff’s acute anxiety states had to be treated in both December 1986 and in January 1987 with injections of tranquillisers, probably diazepam.

Secondly, after the Naquora ceremonies in respect of the late Corporal McLoughlin, the plaintiff was on a UNIFIL bus with Israelis firing heavy machine gun rounds down from the hill above. He had no weapon. He was late for the bus and was given two days detention by Comdt Smith at ‘Gallows Green’ military prison for being drunk carrying a weapon. This punishment clearly upset the plaintiff and much of his account accords with the recollection of Corporal Gaffney who knew him well from border duty before 1987.

Thirdly, under cross-examination the plaintiff said he went to Holland in 1999; there he was busy working all the time and could take a drink at the weekend. He came back to see the children fairly often ‘every twelve weeks but now they come out and see me’

Fourthly, Counsel for the defendant in cross-examination put to the plaintiff:

“Your troubles that you have described are largely related to alcohol and alcohol dependence”.
Mr Smyth objected on the basis that “none of that has been actually pleaded”. He appears to be correct in this as there is no mention or suggestion of alcohol or an alcohol-related dependency, until that dependency came from and was related to service in the Army, being the aftermath of the plaintiff’s experiences in the Lebanon. Counsel for the plaintiff submit that if the defendants intended to make such a case then it should be pleaded. Mr Smyth went through the Defence and there is no mention of alcohol in the defence, and at para.13 of a Reply to Notice for Particulars dated 9th November 2000 from the plaintiff’s Solicitor it is stated: “13. The plaintiff did not have a drink problem before 1987”. In a further reply dated 17th April 2003 at para 12 it is stated: “Since 1987 the plaintiff has suffered from alcoholism. He has suffered memory blackouts, insomnia and nightmares. He has suffered episodes of delirium tremens. He has experienced episodes of visual and auditory hallucinations, including flashbacks to the Lebanon…” At para.13 in that further reply again it is stated: “The plaintiff did not have a drink problem before 1987”. However on 6th September 2006 the plaintiff’s solicitor sent a further letter received by the Chief State Solicitor on 7th September 2006 which stated: “We refer to reply no. 13 of our Replies to Particulars dated 17th of April 2003. In that Reply we suggested that the plaintiff had no history of alcoholism prior to the events herein. We now understand on the basis of fresh instructions that that response was less than accurate. Mr Murtagh had difficulties with alcohol prior to 1987”. No further letter was sent until the Chief State Solicitor wrote on 5th January 2007 to the plaintiff’s solicitor:
“Dear Sirs,
For the avoidance of doubt please note that the allegation of negligence/contributory negligence against the Plaintiff in this matter includes the allegation that he failed to undergo treatment advised to him by the Army, its servants or agents.”

No application surprisingly was made to amend the pleadings to include a specific defence in respect of alcohol problems of the plaintiff prior to 1987.
Mr Smyth pointed out that the plaintiff was Med Cat A1 and if he was alcohol dependent he would not have been sent to the Lebanon. “The difficulties with alcohol prior to 1987” was explained as referring to his wife being very annoyed with him because after their first child was born he had gone out for a drink on a Saturday or at other times without taking his wife with him. Mr Smyth said that he had “no objection to Mr Clarke asking the plaintiff about his difficulties with alcohol, but if Mr Clarke is going down the road of suggesting to this witness, or this plaintiff, rather, that he was an alcoholic, that he was a person who was completely dependent on alcohol, and that all his problems are alcohol related, I object to that, because if he wants to make that case, it should have been specifically pleaded. And I know that he can not make that case, because he knows that this man was categorised as having an A1 health status before he went to the Lebanon and he could not but be A1. He would not be let next, nigh or near the Lebanon into a battle situation if he was alcohol dependent.” I understood Mr Smyth for the plaintiff was making the point that as a mortar man in a weapons platoon he would have to be fit and certainly not an alcoholic. He made clear that Mr Clarke was entitled to question him about “difficulties with alcohol” but he can go no further and say he was an alcoholic because that had not been pleaded. The case proceeded on this basis and no application was made to amend the defence then or at a later stage.

Dr Michael Bourke gave evidence as an experienced consultant psychiatrist on the lines that he had reservations about the plaintiff’s past history prior to 1987 with regard to alcohol. However the plaintiff had been medically examined twice in 1986 and was A1 fit. There is no cogent evidence supporting the premise that the plaintiff had any alcohol dependency prior to his tour in 1986/7 in Lebanon. If he had had any such an alcoholic proclivity, or even tendency, one would expect some plausible witnesses to be called to give simple, direct admissible evidence to this effect.

Furthermore if the plaintiff had any sort of alcohol dependancy this would have been likely to have been picked up by the officers and NCOs during training. This is a strenuous testing time to sift out those with weaknesses or problems such as an alcohol dependency. Several of the NCOs including Cpl. Gaffney and CQMS Flanagan and Sergeant McCabe refuted the idea he was an alcoholic although they knew that “he took a drink, no more than the rest of us”. I have much respect for the expertise and acumen of Dr Bourke but I am sure that his views were based on two incorrect premises. First he was led to believe there was no life-threatening sensitising incident. I have no doubt that the plaintiff was subjected to a plethora of incidents in which he felt he was in danger of death with the added shock of the actual deaths of Private William O’Brien and his own supportive and kindly mentor Corporal Dermot McLoughlin. There were several life-threatening, sensitising incidents which deeply affected the plaintiff according to the officers and NCOs of the weapons platoon. He clearly was profoundly affected and felt himself to be in mortal danger. Secondly, while there is an occasional hint or suggestion of the plaintiff taking a drink prior to the Lebanon tour he was certainly not alcohol dependent according to several NCOs notably Cpl. Gaffney, CQMS Flanagan and Sergeant McCabe all of whom had known the plaintiff well. Furthermore he had always been Med Cat AI and had a record quite unremarkable for lack of sick leave prior to the Lebanon tour. Accordingly neither of these two false premises stands up to scrutiny, particularly as the defendants were in a position to call proof positive easily if these false premises were capable of substantiation and more than supposition.

Dr Mary Scully, the experienced GP in Ballymote, knew the plaintiff’s grandparents well and was his GP for three years before he went to Lebanon. She had treated him in 1985 after an RTA and for sore throats in 1986 and 1987. All his complaints had been ‘run of the mill’, such as respiratory infections, prior to his tour to the Lebanon. His complaints on return were much different. He had no anxiety complaints pre Lebanon. He was definitely different after the Lebanon tour. He had changed considerably and had anxieties and alcohol abuse after the Lebanon. She had known the family and had a high regard for his grandparents who had brought him up. He had had a happy childhood. Her understanding was that the alcohol only became a problem when he had come back from the Lebanon. In February 1988 she had referred him for anxiety, depression and alcohol abuse to the psychiatric clinic in Ballymote.

Both the plaintiff and his wife agreed that he took a drink often at the weekend but both refuted the suggestion that he had an alcohol dependancy prior to going to the Lebanon. I accept both are honest witnesses albeit at times he may be affected in telling a story by the effects of PTSD. However he tried to tell his story honestly and truthfully with admission candidly of matters against his interest. Time and again on contentious aspects such as the bus in convoy from Naquora being subject to hostile fire, his account has had support from other sources, as in this incident from Corporal Gaffney as to the bus coming under fire and that the Corporal noticed the plaintiff out of the bus and taking cover. His suggestion of returning fire seems the product of overwrought imagination and I accept Dr. McGuire’s recognition of this as a symptom of PTSD.

His LA30 sick leave record indicates good work attendance prior to the Lebanon tour. He was medical category A1 and passed the tough training runs and the sifting process in the sessions in Mullingar. If the plaintiff had any alcohol dependancy prior to October 1986 then surely the defendants would have been able to call a witness to this effect? Not one witness was called to give positive direct eyewitness account of the plaintiff ever having been drunk prior to his tour in the Lebanon.
Conclusion

1. The plaintiff’s claim was not statute barred. The defendants’ doctors failed to diagnose PTSD in an immature and vulnerable 21 year old who was exhibiting numerous symptoms of acute anxiety states and had been exposed, like many of his NCOs and colleagues, to life-threatening experiences. The plaintiff in his evidence had given accounts of such experiences and of close firing. Neither the army doctors nor Dr Flynn (in her case in the absence of the information about acute anxiety states or panic attacks in his LA30 and CMF file) had diagnosed PTSD despite his constellation of symptoms. A conclusive diagnosis was made by Dr Fionnuala O’Loughlin on 27th May 1996 confirming her working diagnosis having regard to the CAPS test of 29th February 1996 and from her clinical findings and interviews with the plaintiff.

2. I accept Dr McGuire’s opinion that Army doctors in 1986/7 should have recognised the symptoms of PTS and PTSD and that if appropriate counselling and therapy and treatment had been given the plaintiff would have been likely to have been cured and rehabilitated or at least the length and ghastliness of his suffering of the cluster of symptoms of PTSD would almost certainly have been greatly reduced.

3. There is a suggestion of contributory negligence on the part of the plaintiff in that he failed to undergo treatment advised to him by the Army. The plaintiff as a soldier was trained to obey orders. His constant cry for help, as recorded in the Hospital notes in St Columba’s Hospital in Sligo, was for someone to tell him what was wrong with him. His symptoms should have been obvious to experienced Army doctors aware of the traumatic experiences of the members of this tour in the Lebanon and in particular the plaintiff who had to be brought in probably at least three, if not four, times to the RAP at Camp Shamrock suffering from incapacity and loss of consciousness in acute anxiety states which Dr McGuire said should have clearly indicated perils of future of chronic PTSD if the condition was left untreated. The plaintiff did attend St Conal’s Hospital in Letterkenny for a group therapy course in respect of alcohol abuse which he found helpful. His whole personality was to try his best and to obey orders and any failure to comply can be attributed to his distressful state resulting from the defendant’s failure to diagnose and treat him in Lebanon when his incapacitated condition and abnormal behaviour was common knowledge among his NCOs, officers and the medical officers. The failure to recognise the cause of the change in his sickness record from Med Cat AI soldier with nil or minimal sick leave to frequent sick leave of long duration, alcohol dependency and admissions to St Columba’s for detoxification should have alerted the army doctors, since they were aware of his experiences of PTS, including incapacitating panic attacks, in the Lebanon and he should have been referred to the army psychiatrist on his return from the Lebanon or soon thereafter because of the dramatic rise in his sick leave record. On this aspect I accept the evidence of both Dr Mary McGuire and Dr/Captain Fionnuala O’Loughlin. Dr McGuire made clear that the plaintiff’s condition afflicted by PTSD made life very difficult for the plaintiff and his condition would make compliance with medical advice difficult at times. If there was any contributory negligence on the part of the plaintiff this is explained by the advice of Dr McGuire about this and any miniscule contributory negligence on the part of the plaintiff pales into insignificance as compared with the failure of the defendants and their employees and agents to diagnose and treat the plaintiff and to refer him to Dr O’Loughlin for psychiatric examination. This failure was despite their knowing his condition of acute anxiety states, panic attacks and incapacitation in the Lebanon and the huge changes in his sick leave and medical record on his return. For completeness I should add that I have dealt with the suggestion of the plaintiff’s alleged negligence or contributory negligence on the merits and discounted the suggestion on the basis of the miniscule, if any, negligence of the plaintiff with the much greater and repeated faults of the defendants which make the former pale into insignificance. Counsel for the plaintiff did draw attention to paragraph 8 of the Defence and submitted convincingly that in the context of the wording of paragraph 8 and the ensuing Particulars of Negligence it was clear that the defendants’ allegations of negligence and contributory negligence in the Defence were in fact confined to the hearing loss aspect of the claim. This is borne out by particulars in respect of failure to comply with Defence Force Regulations and failure to apply for or to wear ear protectors and failure to advise his officers of defects in his hearing. The claim for hearing loss has been compromised. Thus the suggestion of negligence in the part of the plaintiff on each aspect has been determined.

4. The evidence of Cpl. Gaffney, CQMS Flanagan and Sgt. Gerry McCabe made it quite obvious that the hostilities and explosions and deaths of Private O’Brien and Cpl. McLoughlin and the fighting between the armed factions provided many life-threatening experiences and pressures. I accept Cpl. Gaffney’s evidence that the plaintiff did leave the bus and take cover when the road ahead came under fire, on the road from Naquora to Brashit but I do not think the plaintiff fired back – this was perhaps a figment of alcohol and more likely of PTSD, as Corporal Gaffney knew him well over the years and clearly was troubled by the incident and was sure that the plaintiff was not drunk but was affected by the death of Corporal McLoughlin.

5. The evidence of Dr Michael Bourke was postulated on the basis of the plaintiff having an alcohol dependency, not just a trivial familial problem of a husband going out without his wife who has to mind a new child. No cogent evidence was adduced to support the premise of alcoholism prior to the Lebanon tour but there was ample evidence that after the failure on the part of the Army to diagnose the PTSD and severe symptoms thereof that the plaintiff’s quality of life, working, social and domestic disintegrated and that, as his PTSD was chronic and re-emerged at times of relapse, it continued to haunt him until Dr O’Loughlin made her firm diagnosis of PTSD and explained his condition to him.

6. Veronica Hannan, the plaintiff’s wife, said his personality had changed between Christmas and his arrival back in April 1987. She described his startle reflex at the fire siren and his jumping from his bed in a panic, and how he was irritable, restless and went binge drinking after his return from Lebanon. She was a fair and measured, careful witness and I accepted her evidence especially that the plaintiff did enjoy a drink but was not stricken by dependence on alcohol until after his return in April 1987.

7. Dr Fionnuala O’Loughlin. The plaintiff’s repatriation medical was on 18th April 1987 in Lebanon. The Army doctors in Lebanon must have known of the plaintiff’s vulnerability and states of acute anxiety attacks on several occasions necessitating treatment at the RAP. With the vulnerability of the plaintiff was it not surprising that the Army doctors did not refer the plaintiff to Dr F. O’Loughlin in view of the plaintiff’s incapacitating anxiety states? I accept Dr O’Loughlin’s evidence including that formal debriefings for PTS were not started until 1993. However it was quite clear from the evidence of Dr McGuire that the incapacitating states of the plaintiff known to the army medical personnel in Lebanon were such that the Army doctors should have referred the plaintiff with his anxiety states, which had to be treated by them with injections of tranquillisers to Dr F. O’Loughlin as a patient clearly at risk of PTSD. Dr O’Loughlin made clear her diagnosis of the plaintiff’s PTSD was on the basis of her clinical findings and interviews as well as the CAPS test and she supported the views of Dr McGuire about there being much knowledge of PTSD in the mid 1980s and a long history of medical knowledge of the constellation of symptoms involved.

8. Dr Mary McGuire made clear that the DSM III and ICD 10 and 9 were guidelines. It seems that the core symptoms of neurasthenia, shell shock, battle fatigue or PTSD have mainly remained the same and the DSM and ICD categorisations are for taxonomic purposes and probably particularly useful in classifying these ailments for research purposes. It seemed to me that Dr McGuire relied on her wealth of experience and clinical diagnostic expertise rather than formulaic categorisations. She expressed the view that any competent GP would have known about PTSD in the mid 1980s. I suspect that they, the GPs and Dr Fidelma Flynn, were stymied in diagnosis by the lack of the information which was in the LA30 and CMF file held by the Army. This information would have been helpful to Dr Fidelma Flynn and to other treating doctors dealing with problems of the psyche.

Dr McGuire also made the comment that the failure to recognise the symptoms of PTSD and provide therapy would be likely to affect the capacity of the patient to avail of therapy and treatment. Clearly an understanding of why one is suffering symptoms of PTSD is important to enable the patient to comprehend why he is being afflicted and how he should learn to cope with his ailment and rehabilitate himself. In this his return to his former constancy in the form of hard work doing carpentry in Holland has clearly been beneficial.
Medical Reports:
I have read the medical report received 23rd November 2006 of Dr Mary Scully, GP. He had been a patient since 7th July 1985 and she knew his grandparents who had reared him from the age of three. On 2nd February 1988 Victor attended her. He had been overseas in the Lebanon and two of his friends had been killed in action. Victor found this very stressful and was in fear for his own life. He informed her that he had not been able to relax or sleep after that and he had turned to alcohol to get his nerves under control. He told her he got into bother with the authorities over this. Since then he had been depressed with an over-reliance on alcohol. She treated him with anti-depressants, advised counselling services and gave him a medical certificate.

Over the next seven years Victor attended her sporadically and his problems included

§ Depression
§ Suicide tendencies
§ Alcohol abuse
§ Anxiety
§ Sleep problems and
§ Generally not coping with life

During this seven year period, Victor was referred to Sligo Hospital to detoxify in 1995, 1996 and 1997 and also to the psychiatric services. Victor did not like going to a local waiting room for the psychiatrist and missed many of his appointments. Compliance was a big problem and he did not do very well.

His wife separated from him towards the end of 1997. At this time his alcohol abuse got worse. He was discharged from the Army in 1998.

I have read the two reports of Dr Mary McGuire, consultant psychiatrist, dated respectively 10th October 2005 and 16th November 2005. I note the contents and accept her opinions expressed in her reports.

I have already referred to Dr O’Loughlin’s two earlier reports dated respectively 11th November 1995 and 27th May 1996 and I have read her comprehensive report dated 12th September 2004.

She saw the plaintiff on four occasions between November 1995 and March 1996. During that time he described symptoms of post traumatic stress disorder, namely recurrent intrusive memories, nervousness in potentially threatening situations, disturbed sleep, irritability, anger and avoidance of engaging in conversation. In addition he described feeling depressed and felt suicidal at times. During that period of time, she completed a CAPS assessment on him and the findings indicated current PTSD at mild/moderate level.

She wrote that:

“The prognosis for PTSD which is associated with a co morbid condition particularly substance abuse and/or depression is guarded. The more chronic symptoms become, the more difficult it is to have a full resolution of the symptoms.”
She had not seen him for several years.
I have also read the two reports by Dr John Cooney dated respectively 15th April 1999 and 8th November 2006.

In the first he noted that this man’s previous history was a clear one up to the onset of his difficulties in Lebanon. He had married a factory worker both aged 18. They had 6 children but because of his abnormal drinking pattern, after his return from Lebanon, she had left him and he said he was still devoted to her and misses her company considerably. He stated he was perfectly well up to the time he went to the Lebanon in 1986.

In the second report Dr Cooney writes:-

“Mr Murtagh claims that he has suffered a “change of personality” since his return from the Lebanon. Alcohol has become a major problem in his life to the extent that he has been admitted to St Columba’s on many occasions and now attends Alcoholics Anonymous intermittently. He is subject to depression characterised by sleep disturbance, indecision, inability to face the day and chronic fatigue. Moreover, he experiences flashbacks to his experiences in the Lebanon. Mr Murtagh functioned at a poor level in the Army up to his discharge in March, 1998. He was seen by Dr F. O’Loughlin, an Army Psychiatrist, in 1996. According to Mr Murtagh, she diagnosed him as suffering from post-traumatic stress disorder and prescribed treatment for him. He is currently on an antidepressant from his family doctor in Ballymote and has been advised to abstain completely from all forms of alcohol.
The facts as outlined above were volunteered to me by Mr Murtagh. His wife was to have accompanied him when I had hoped to see her independently and obtain the corroboration of these facts, but she was unable to travel to my consulting rooms on the 12/3/99.

I came to the opinion that Mr Murtagh was suffering from the post-traumatic stress disorder, brought about by the experiences in the Lebanon. In view of the chronicity of this condition, I believe that the prognosis must be somewhat guarded. However, were Mr Murtagh to become abstinent, his prospect of recovery would improve considerably. Moreover, there is a possibility that should he reach the state of contented sobriety, a rapprochement with his wife might be possible.”

I am more than satisfied and feel sure that the plaintiff was obviously stricken with PTS in the Lebanon and certainly when he had to be sent for treatment to the RAP at Tibnin on what I believe were three occasions, warning bells should have rung about his condition as an immature 21 year old suffering Acute Anxiety States to the extent of loss of consciousness and uncontrollable shaking and fits. His vulnerability to PTSD should have been obvious. I do not accept that he was alcohol dependant prior to his tour in Lebanon and indeed I am convinced that it was the failure to diagnose and treat him which allowed the PTSD to become chronic. This failure to diagnose and treat him with medication, counselling and therapy or to refer him to Dr O’Loughlin or to have him monitored and contact made with his family as directed by Colonel Walsh the Director of the Medical Corps, resulted in the plaintiff’s resorting in his despair about his condition to self medication with alcohol with grievous results for him in respect of his working, social and family life. If there had been appropriate early intervention I am sure that the plaintiff with an understanding that he was not abnormal in his reaction to traumatic stress, would have confronted his illness once identified and would have rehabilitated himself, as he has largely managed to do, since being properly diagnosed, by engaging in steady work as a carpenter in Holland. The defendants, by their employees and agents, were negligent and in breach of their duty of care to the plaintiff as their employee in their failure to diagnose and treat or to refer him to the Army psychiatrist for examination. Also there was the failure to have a proper system in place so that treating doctors such as Dr Flynn and Dr O’Loughlin would be supplied with a full history particularly in a case involving manifest damage to the psyche. The failure to inform Dr Flynn in St Columba’s of Dr O’Loughlin’s positive diagnosis of PTSD in November 1995 seems extraordinary since she agreed to and was aware of the referral to St Bricin’s. Similarly there was the failure on the part of the defendants to have protocols and systems to ensure that if the Army psychiatrist is seconded elsewhere then another doctor will take up her patient caseload. There seems to have been a similar lacuna in monitoring, supervising and communicating information in that Dr Cmdt Kerr’s successor at Finner seems to have been unaware of Dr O’Loughlin’s diagnosis of PTSD or was not alerted to or did not realise that the plaintiff’s problems stemmed from the failure on the part of the defendants to diagnose and treat him in the Lebanon and again subsequently when he was back in Ireland despite the dramatic rise in his sick leave after his previous clean record. Thus the plaintiff was left being racked by the symptoms of PTSD without any follow-up from the Army. Dr McGuire pointed out that any caring employer would have noted the good work record of the plaintiff in his LA30 and would have called him in to inquire and investigate, if necessary, what affliction had affected him since his 1986/7 tour of duty in Lebanon. I find that his stress was unlikely to have become a PTSD if it had not been for the negligent failure on the part of the defendants to recognise and remedy his symptoms of severe stress. There was ample evidence of the efficacy of early intervention being helpful to prevent and reduce PTSD in such circumstances.
The defendants as employer are under a duty to take reasonable care for the safety of their employees and must keep abreast of contemporary knowledge in the field of reduction in the effects of potential afflictions to which soldiers are likely to be exposed in the course of duty. The perils of PTSD in those subjected to stress have been well known to the defendants for many years prior to 1986. Having been at the conference of military psychologists in Paris in the spring of 1986, Lt.-Col. Goggin gave a briefing to the battalion officers and NCOs at Mullingar which was recalled by both Lt.-Col. Goggin and Sgt Gerry McCabe who had given his evidence days before Lt.-Col. Goggin. As is elementary the plaintiff is not entitled to compensation because in his work as a soldier in the Lebanon he was exposed to stress. He must prove on the balance of probabilities that his injury was caused by the fault of his employer. The plaintiff’s strange and abnormal behaviour was well known in the platoon among officers and NCOs. He had to be treated in the RAP Tibnin on several occasions for incapacitation from known acute anxiety states. The failure to recognise and treat his symptoms or to refer him with his recognised vulnerability for checking out on his return by Dr O’Loughlin was due to culpable negligence on the part of his superiors and a failure of the army system at that time in 1986/7 and resulted in his contracting chronic PTSD. On the medical evidence it seems that the likelihood is that if the plaintiff had received proper diagnosis, counselling and therapy when he showed clear signs of stress and incipient or actual PTSD in 1986/7, his condition would have been relieved rapidly and he would not have become subject to the long-running and persistent chronic PTSD which has so adversely affected him in his working, social, domestic and family life.

The plaintiff is entitled to damages for the injury caused to him by reason of the negligence and breach of duty of care on the part of the defendants, their servants or agents.
Quantum of damage
I accept the evidence and prognosis of Dr McGuire and Dr O’Loughlin except insofar as the PTSD in 2004 seemed to have improved considerably from the severe earlier symptoms. I note that the more chronic symptoms become the more difficult it is to have a full resolution of the symptoms. I accept Dr McGuire’s view that the plaintiff has suffered severe emotional distress, depression and social, personal and familial losses in his life because of the failure to diagnose and treat his acute stress and his ensuing chronic PTSD. Dr Cooney’s initial opinion in 1999 was that prognosis had to be guarded because of the chronicity or longlasting nature of PTSD; on 8th November 2006 Dr Cooney reports that the plaintiff has been working consistently in Holland since 1999. His PTSD symptoms have abated to a considerable extent although he still suffers flashbacks. His wife now has a partner and has a child by this partner. The plaintiff provides for his wife on a regular basis. This is commendable and is what I would have expected from my estimate of the genuine and decent character of the plaintiff and his deep affection for his wife. I note Dr Cooney’s expert view that this man has improved considerably from the PTSD brought about by his experiences in the Lebanon, with the addendum of ‘and because of the failure to diagnose and treat the symptoms or to refer him to the Army psychiatrist in a timely manner.’

I General Damages

Pain and suffering to date €270,000

Including:-

Physical and psychological suffering,

Loss of vocation,

and loss of vocational enjoyment.

Separation from wife and family

Lack of treatment or explanation as to his underlying condition caused him to change personality from the viewpoint of his family and wife and made him difficult, irritable, insomniac and subject to self-treatment with alcohol.

Loss of employability

Future pain and suffering € 30,000

Including peril of recurrence

Special Damages agreed Doctors’ fees, Travel € 2,873

€302,873

II General Damages re deafness agreed € 2,650

€305,523

Judgment for €305,513 and costs to be taxed in default of agreement to the plaintiff.

Naessens v Jermyn

[2010] IEHC 102, Dunne J.
JUDGMENT of Ms. Justice Dunne delivered on the 26th day of March, 2010.
The plaintiff herein issued a personal injuries summons on the 21st December, 2006, against the defendants. The plaintiff is an actor/comedian and the first named defendant is being sued in his capacity as Chief Executive of St. Vincent’s Hospital, Elm Park, Dublin 4 and the second named defendant is a medical practitioner who carried on practice as a Consultant Surgeon at St. Vincent’s Hospital.

The plaintiff had surgery on his left parotid gland in or about the month of February 1994. He claims damages for personal injury, loss and damage by reason of the alleged negligence and breach of duty on the part of the defendants, their servants or agents in and about the management and treatment of an adenoid cystic carcinoma in the plaintiff’s left parotid gland and in and about the follow up, including post surgical follow up of the plaintiff, delay in diagnosing recurrence of the plaintiff’s tumour and/or in and about the advice given to him in that regard. Following the plaintiff’s surgery in 1994, he attended St. Vincent’s hospital and the second named defendant or his team, on a number of occasions between 1994 and 2001. A recurrence of the tumour was diagnosed on the 16th January, 2001. On the 21st February, 2002, the plaintiff underwent radical surgical resection of his left parotid gland tumour. He received post operative adjuvant radiotherapy.

Thus, the plaintiff’s claim is that the defendants and their servants or agents were negligent and in breach of duty in and about the management and treatment of the adenoid cystic carcinoma in the plaintiff’s left parotid gland and in and about their follow up, including post surgical follow up and in and about the advice they gave to the plaintiff and by their failure to use all due or reasonable care, skill, competence, diligence and judgement. The plaintiff claims that as a consequence of the foregoing there was a delay in the diagnosis of the recurrence of the plaintiff’s tumour in the left parotid gland, that he was deprived of an opportunity to avail of earlier intervention therefore, that he has been caused to undergo more extensive surgery than he would otherwise have been required to undergo and to suffer pain and suffering that he would not otherwise have suffered. Full particulars of personal injury were set out in the personal injuries summons and damages were claimed.

An order was made on the 11th May, 2009, directing the trial of a preliminary issue as to whether the plaintiff’s claim against the second named defendant is barred pursuant to the provisions of the Statute of Limitations Act 1957 and 1991 as amended.

Counsel on behalf of the second named applicant identified three areas in which negligence is alleged against his client. They are, firstly, a criticism of the surgery carried out in 1994, secondly, a criticism of the follow up that took place and in particular the failure to diagnose a recurrence of the plaintiff’s cancer in 1997 and/or 1998 and thirdly an allegation that the original surgery was not followed up with adequate treatment such as the provision of radiotherapy.

In the course of the submissions of the second named defendant a chronology of the treatment/review of the plaintiff was furnished to the court on behalf of the second named defendant, as follows:-

1. The plaintiff underwent his operation at the hands of the second named defendant in February of 1994.
2. The plaintiff was referred for outpatient review in 1996, 1997 and January 1998. It is disputed that he attended all appointments and further what took place when he did attend but it is common case that, on the dates he did attend, recurrence of cancer was not diagnosed.

3. In or about December 2000, the plaintiff attended A & E in the first named defendant’s hospital suffering pain, underwent CT examination of the parotid gland. Diagnosis in January 2001, noted indicia highly suggestive of tumour recurrence.

4. Between December 2000 and February 2001 the plaintiff was referred to a variety of different specialists for second opinions from specialist cancer surgeons and/or further advice on the extent, nature and treatment required for his condition. These referrals were initiated, assisted and facilitated by the second named defendant.

5. For the purpose of these referrals the second named defendant made the plaintiff’s treatment and other records available to the various experts whose opinion was being sought.

6. As early as March 2001, the plaintiff was advised that he needed urgent surgery.

7. The plaintiff underwent surgery on the 21st February 2002.

8. The plaintiff commenced these proceedings on the 21st December, 2006, four years and ten months later.

At this point it would helpful to refer to the provisions of the Statute of Limitations Act 1957 as amended. There is no dispute between the parties that the relevant limitation period for the plaintiff’s is three years by virtue of the provisions of s. 11 of the Statute of Limitations Act 1957 as amended. It is the case that the provisions of the Statute of Limitations (Amendment) Act 1991, also applied to the facts of this case such that the plaintiff’s cause of action does not accrue and therefore the limitation period does not run until his “date of knowledge” of matters provided for by that Act. Section 2 of the Act is in the following terms:-
“2(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 dependant 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 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

(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 which it is reasonable for him to seek.

(3) Notwithstanding subsection (2) of this section –

Having asserted that the proceedings herein are statute barred, it was contended by counsel on behalf of the second named defendant that as the plaintiff was relying on the provisions of s. 2 of the 1991 Act i.e. asserting that his date of knowledge arose within the three year period prior to the issue of the proceedings that the evidential burden shifted to the plaintiff to demonstrate that the date of knowledge was within the time frame of three years prior to the date of issue of the proceedings. Counsel on behalf of the plaintiff did not disagree with that contention and accordingly the matter proceeded before me on that basis.
Counsel on behalf of the plaintiff referred to the facts and history of the matter. Reference was made to a chronology of events dated April 2004, prepared by the plaintiff and which was brought by the plaintiff when he first went to consult his solicitors in relation to the bringing of proceedings. Having referred to a number of factual matters, the plaintiff was called to give evidence.

Mr. Naessens in his evidence described the operation that took place on the 21st February, 1994. Following the operation he was told that he would be seen after the operation every six months to see how things were settling down. There was some discussion in the early stages about whether further treatment might be required, but two weeks after the operation he was told that nothing else needed to be done other than attending for reviews. At his attendance at St. Vincent’s in 1996, he reported that he had pain at the site of the operation. It was explained that this was due to scar tissue and nerve damage which was part of the result of the operation. That pain continued. The medical records of that visit noted that there was occasional pain at the site wound.

He was referred back to the second named defendant by his GP towards the end of November 1997. At that stage it appears, that the plaintiff was “most anxious about follow up investigations and seems to have great anxiety regarding recurrence of tumour”. The second named defendant replied by letter dated the 16th December, 1997, having seen the plaintiff and the plaintiff confirmed that he was told about the contents of that letter which stated that “I know that this unusual type of tumour can recur locally, even some years after apparently complete excision and for this reason, I have not been able to give him the total reassurance which he obviously wishes. Nonetheless, if he continues for four or five years without recurrence, I think he will be on a very good ‘track’.” On that basis the plaintiff said that he took it that he had nothing to be concerned about and that he was reassured by the visit to Professor O’Higgins. He had occasional pain in the jaw area from time to time and had a bump in the area of the operation which was described as scar tissue.

The plaintiff indicated that by 1999, he was five years past the operation and as he had been reassured by the second named defendant, he was confident that he was on “a very good track”. Subsequently towards the end of 2000 he went back to the A & E Department in St. Vincent’s Hospital complaining of a pinching sensation in the area of his earlobe. It was similar to the type of pain he had experienced previously following the operation. He was advised to see a member of the second named defendant’s team and indicated that the pain he was having was more intense pain than he had had previously but was similar to the pain he previously had. He was advised to see Mr. McDermott and a CT Scan was arranged. Following the CT Scan, he was advised that there was a recurrence of the tumour. He referred to a letter dated the 22nd January, 2001, which was sent to his GP in which it was indicated that the CT Scan was “highly suggestive of recurrence”. Indeed the scan was reported on around the 14th January, 2001 and concluded “the appearances are those of recurrent tumour in the left parotid gland with extension from the superior to the deep plains and a possible metastatic node in the left posterior cervical space”.

The plaintiff said that he was terrified as a result of the outcome of the scan and was anxious to have further advice in relation to the findings. He had intended to travel to New York where his girlfriend resided for St. Valentine’s Day and decided to see if he could get further advice while there. He spoke to his GP and to the second named defendant about pursuing this course. In fact, he wrote a letter dated the 11th February, 2001 to the second named defendant in which he stated:-

“I am going to New York this Wednesday. While I am there I would like to know more about the ‘stage’ of my condition at present, the treatment options and the impact of further surgery and radiation treatment. Dr. Murphy suggested that you are in the best position to recommend an expert in ACC. I would be grateful if you could assist me to do this. . . .”
The plaintiff explained that around this time he learned for the first time of the phrase “adenoid cystic carcinoma” (“ACC”) and that the complaint he had was a very rare complaint. There was an internet site for people suffering from ACC. Having seen the second named defendant, he was referred to a Dr. Shaha in New York. The second named defendant wrote by letter dated the 12th February, 2001, to Dr. Shaha. The arrangements to see Dr. Shaha were made by the second named defendant on behalf of the plaintiff. In order to assist him, the plaintiff was given scans and X-rays. Dr. Shaha furnished a detailed report of his examination of the plaintiff and he recommended radical surgery followed by radiation treatment. At that point in time, the plaintiff said that he had no issue as to any question of fault on the part of the original team who dealt with him in 1994 and subsequently.
Subsequent to that visit the plaintiff wrote again by letter dated the 27th February, 2001, to the second named defendant. In that letter he expressed his gratitude to the second named defendant for the arrangements made by him for the plaintiff to meet Dr. Shaha. The plaintiff set out the advice given by Dr. Shaha to the plaintiff. The letter concluded:-

“I know that you are familiar with this area and I am reliant on your help and guidance as to the way ahead. I have an appointment with you at clinic next Tuesday and I would like to bring with me an old friend of myself and my family, John Keane, who is providing me with a lot of support.”
The plaintiff then outlined a series of steps taken with the second named defendant to obtain further opinions and advice in relation to the position that he found himself in. He consulted a Mr. Thomas attached to the Royal Marsden Hospital in London; he also saw Dr. Moriarty in St. Luke’s Hospital in Dublin in relation to the issue of radiation. He consulted Dr. John Armstrong, a specialist in radiation, who had worked in the Sloan Kettering Hospital in the United States. Finally the plaintiff stated that he heard about a doctor attached to St. James’s Hospital in Dublin a Professor Tyman. Ultimately he had surgery on the 24th February, 2002 and the plaintiff described that surgery.
Following the operation, the plaintiff started radiation in August/September of 2002. This took place over a six week period in St. Luke’s Hospital.

He described the affect of the surgery on his career and how he went home to live in his parent’s house for most of 2003. He attended counselling at ARC in Eccles Street. The counselling appears to have taken place in the years 2001 to 2002 and related to the situation in which he found himself. It lasted for approximately a year.

The plaintiff then gave evidence that he saw an article in the Irish Times edition of the 16th December, 2003. The article was entitled “Mistakes by Medical Staff Estimated to Kill or Injure 14,000 Patients Each Year”. The article was general in its nature save that it referred in some detail to an individual who was wrongly diagnosed with stomach cancer and had an operation to remove most of his stomach. Following the operation it was discovered there was no cancer. The individual concerned was left seriously and permanently injured. It appears that this article started to cause the plaintiff to question his previous treatment. He described meeting a friend, a Mr. Kineen, a Barrister some time after Christmas 2003. They discussed the plaintiff’s care and the frequency of follow up required by the plaintiff. This led the plaintiff to consider the difference between the standard of care available in St. James’s Hospital and St. Vincent’s. He stated that he wondered whether the difference in levels of follow up was due to the fact that in St. James’s Hospital he was being followed up subsequent to a recurrence of a tumour. He described the level of scanning done in St. James’s together with the X-rays taken there and he described the follow up in St. James’s as meticulous. He contrasted this with the fact that in St. Vincent’s Hospital prior to his surgery in 1994, no scanning had taken place. These issues were discussed with Mr. Kineen. Ultimately, following their discussions, Mr. Kineen advised him to see a solicitor. He talked to Mr. Kineen again in early March, but unfortunately Mr. Kineen himself took ill in March 2004 and died that month.

Shortly afterwards the plaintiff went to his current solicitors on the 15th April, 2004. As mentioned previously he gave the chronology he had prepared to his solicitors. He asked his solicitors to follow up the suspicions he had now as to the difference in treatment provided by St. Vincent’s in relation to his first surgery and St. James’s in relation to the second surgery. Through his solicitors, reports were obtained from medical experts and in particular reference was made to two reports from John Townend dated the 10th September, 2004 and the 5th November, 2004, respectively. Mr. Townend in his report recommended that an opinion from an oncologist was necessary. As a result, a further report was obtained from a Mr. Martin on the 20th February, 2006 and this was followed up by a second report on the 20th November, 2006. Shortly after the second report was received from Mr. Martin these proceedings were issued.

The plaintiff was cross examined extensively as to the state of his knowledge at various stages. In particular he was asked about researches done by him on the internet in relation to his illness. He indicated that he started training as a computer programmer in October 1999 and he was of the opinion that he had access to the internet from that time onwards.

He explained that when he was diagnosed with the recurrence of the cancer in January 2001, he was terrified and shocked. He did not fully understand at that stage the nature of the specific complaint i.e. ACC. In 1994 after his operation he was not concerned about the issue of recurrence. He said his concern was about pain. The letter of the 6th November 1997, from his GP to the second named defendant was put to the plaintiff and he explained that at that stage he was anxious to see either Dr. McDermott or the second named defendant about the pain. He accepted that he had some concern at that stage with follow up investigations/recurrence. However, he explained that following the receipt of a letter in January 1998, which was sent by the second named defendant to his GP, he was reassured. That letter indicated that the plaintiff was well and had no evidence of recurrence of carcinoma of the parotid gland. He described the researches he made on the internet in relation to ACC and he obtained the information that it was a difficult cancer to treat and that it does not have the usual follow up. He explained that any information he got from the internet was brought back to the second named defendant for the purpose of obtaining guidance and clarification.

Dr. Shaha’s report was put to the plaintiff in which Dr. Shaha noted “the patient comes in today after having done considerable research on the disease via the internet consulting various physicians”. He agreed that he had done considerable research but pointed out that it was research by a layman. Asked if he had known from his research that he would have had scans done as part of the normal follow up, he said that he was of the view that he had what was the appropriate follow up and that he did not have any expectations as to the nature of the follow up. He was not of the view that there was something amiss about the follow up at that stage.

He was also referred to a letter written by Dr. Armstrong, in which Dr. Armstrong had referred to the plaintiff as “a very insightful man who has a clear grasp of the issues”. He accepted that he had a lot of knowledge at that stage in relation to issues such as the loss of the facial nerve, the possibility of paralysis and so on. He had had lots of discussion at that stage with various consultants and physicians and he had also obtained information on the internet.

He reiterated that he was prompted to question the situation following the article he read in the Irish Times on the 16th December, 2003. He described that article as a big motivating factor. The question he had in his mind was whether the difference in follow up between St. James’s and St. Vincent’s Hospital was because he had a recurrence or because there was a difference in the standard of treatment between St. Vincent’s Hospital and St. James’s Hospital. He commented that at that stage he knew that there had been a difference in treatment, but he was not aware of whether the difference was due to the fact that St. James’s was dealing with a recurrence of a tumour. In other words he knew there was a difference in treatment but was not aware of the reason of the difference. Finally the plaintiff in cross examination was asked about a number of matters set out in the document he had produced to his solicitors called Chronology of Events in which he stated:-

“I contend that:
Following my first operation in 1994, I should have received follow up radiation.

I should have been CT Scanned in 1997 or earlier when I complained of pain.

I should have had the disease and its high risk of recurrence explained to me.

Ideally, I should have been passed on to a medical team with more experience and a better expertise in the treatment of this rare form of cancer.”

In regard to these matters he pointed out that his awareness of these matters was different in 2004 to his state of awareness in 1994 and subsequently. By 2004 he had done more research and had looked at the issues more closely. He denied that he could have done this in April 2002. That concluded the plaintiff’s evidence.
Nuala Cadwell was also called on behalf of the plaintiff and she confirmed that she was a psychotherapist who was involved in the counselling of the plaintiff in the period 2001 to 2002. She was not sure if the counselling took place before or after the surgery. She described the function of psychotherapy and she described the concerns of the plaintiff. She recalled the extent of the damage done to the left side of the plaintiff’s face at the time that she was involved in counselling. He had concerns at that stage about recurrence and not being able to earn his living.

That concluded the evidence. In relation to the evidence given by the plaintiff in this case, I would echo the comments made in correspondence referred to above by Dr. Armstrong to the effect that the plaintiff is an insightful man. He is clearly an intelligent man and not surprisingly, strongly motivated to find out as much as possible about his illness. Throughout the time that the plaintiff was being treated by the second named defendant, he relied on him very much for guidance and information in relation to his situation. The plaintiff at different stages corresponded with the second named defendant and attended with the second named defendant or his team. It is also clear that he was appreciative of the lengths that the second named defendant went to on his behalf, in relation to assisting the plaintiff to obtain appointments with other consultants and relied extensively on the views of the second named defendant. That is something which comes clearly from the evidence of the plaintiff and indeed from the correspondence produced in the course of this hearing.

I accept the evidence before me that while the plaintiff asked a lot of questions over the years and was concerned about the issue of recurrence in 1997, as expressed in his letter of the 6th November, 1997, it is the case that the plaintiff accepted the reassurance which came from the second named defendant at that stage. The fact that he went to Australia in 1999 bears this out. It also seems to me to be reasonable to conclude having regard to the evidence that the plaintiff did not have any real concerns about his treatment by the second named defendant and the nature of the follow up following the original surgery in 1994 until after he had had surgery in St. James’s Hospital and went on to experience the difference of treatment by way of follow up. Although the plaintiff was cross examined as to the extent of the knowledge he acquired via the internet in relation to such things as scanning and radiotherapy it should be noted that no evidence was put before me as to the state of information available on the internet during the period when the plaintiff first began to research his disease in that way. Therefore I have nothing before me to show what the plaintiff should have been able to find on the internet in relation to topics such as scanning and the need or otherwise for radiotherapy.

I now want to look at the authorities opened to me by counsel on behalf of the plaintiff and the defendants. I should say in this regard that there was little disagreement between the parties as to the appropriate authorities and applicable principles. Counsel on behalf of the applicant referred to the specific provisions of the Statute of Limitations (Amendment) Act 1991, and in particular s. 2 of that Act. He identified the elements to be considered in relation to the date of knowledge, firstly that there was an injury, two, that the injury was significant, and three, that that injury was attributable in whole or in part to the act or omission alleged to constitute negligence. The injury referred to in this context was the operation carried out in February 2002 and it is the plaintiff’s contention that this operation would not have been necessary or alternatively would not have been as invasive had the appropriate follow up and attention been provided to the plaintiff following his first operation in 1994. Accepting for the moment that the plaintiff establishes the injury as being the operation in February in 2002 and that the injury was significant in the sense that the procedure undergone by the plaintiff at that time was more extensive than would have been the case if as alleged he had received the appropriate treatment follow up following the 1994 operation, the question then arises as to the date on which the plaintiff first had knowledge of the fact that that injury was attributable in whole or in part to the act or omission alleged to constitute negligence.

One of the difficulties in a case such as this is that an individual may be aware of an injury in the sense used in s. 2 of the 1991 Act and that the injury was significant but depending on the circumstances of the case it may not be clear to them that the injury was attributable to negligence. For example one only has to consider the possibility of surgery being carried out on someone in circumstances where it is found subsequently that the surgery was unnecessary. At the time of undergoing the surgery the patient consents to the surgery in the belief that he/she has a particular illness or injury which requires surgery. It will not be apparent to the patient at the time that the surgery is not necessary. The patient will suffer an injury, the surgery, but will not realise this to be the case at the time of the surgery. Therefore it will not be known to the patient that the injury is attributable to negligence.

I am satisfied that the plaintiff suffered an injury, a significant injury, in undergoing an operation in February 2002, which was more invasive than would have been necessary had the operation been carried out earlier. The question to be considered is when could and should the plaintiff have had sufficient knowledge of the facts that the injury was attributable in whole or in part to the acts or omissions alleged to constitute negligence in this case.

Counsel on behalf of the Plaintiff referred to Medical Malpractice Law, Healy, at para. 3-25 where it is stated:-

“In medical malpractice cases the plaintiff’s knowledge of his injury is more often interwoven with the question of the association between that injury and a culpable breach of duty by the defendant. This is for reasons intrinsic to the context of medical care. A patient enters a relationship with the doctor that at the outset is marked by physical complaint; thereafter the doctor treats the patient; and since all forms of treatment effects some change to the patients person, the patient, unlike other plaintiffs, often must be prompted to interpret what has been done to him and whether it was therapeutically necessary or competently performed. In a great many cases of iatrogenic injury – perhaps the majority – the plaintiff is given, or digests inadequate information in the aftermath of the event and only later, reasonably, is alerted to the significance or character of the event that gave rise to his injury. Unlike other cases of personal injury, the plaintiff is typically a person focused on his medical complaint prior to injury, and in many cases the injury he suffers in the course of treatment is difficult to extricate from his sense of the medical complaint itself and the risk associated with any treatment of it. This is not a plaintiff who suffers injury ‘out of the blue’, as tends to be the case where other negligence litigants; nor is it a case where the plaintiff is a stranger to the defendant – on the contrary the plaintiff, as a patient and the defendant as a doctor, tend to have been in a unique relationship characterised by one party’s dependence on the other for skill, advice and information. In consequence, the patient’s post operative response to fresh or further injury tends to be as different for the quotidian plaintiff as the doctor’s duties of care are from the duties on other defendants. It is therefore more usually the case that before the plaintiff begets a reasonable suspicion as to a right of action against the defendant, he must first have formed a reasonable suspicion, or been advised accordingly, that his present physical condition potentially constitutes a compensable injury or that the treatment he received was neither therapeutic nor carefully preformed. Clearly, in such cases classification of the plaintiff’s outcome as injurious is converges with attribution of that outcome to culpable negligence, and thereafter it falls to be considered whether the plaintiff knew or ought to have know the identity of the negligent party which, when not readily apparent, tends to be determined by a medical expert after sight of all the relevant medical records. Because of the potential multiplicity of other causes or other defendants in complicated medical negligence cases, this process is rarely as straightforward as it is for plaintiffs in cases of negligence simpliciter.”
That paragraph highlights some of the difficulties that can arise in medical malpractice cases. There was little dispute between the parties in relation to the case law applicable. Both parties referred to the Supreme Court decision in the case of Gough v. Neary [2003] 3 IR 92 and to the decision of Geoghegan J. and in particular to a passage from his judgment at p. 127 in which he referred to an English decision which set out a number of principles which were found to be of assistance in that case and in which both parties in this case agreed were appropriate to be considered. Geoghegan J. stated:-
“Since the hearing of this appeal it has come to my notice via the internet that there are quite a number of later English cases relevant to this limitation provision. As in a broad way they range over the same issues which have been debated at the hearing of this appeal I think that I can safely refer to a few points in them without introducing any new matter that has not been the subject of argument before this court. The principal authority to which I want to refer is Spargo v. North Essex District Health Authority [1997] 8 Med LR 125 and the judgment of the Court of Appeal (Nourse, Brooke, Waller L.J.J.) delivered the 13th of March, 1997. The judgment of the court is the judgment of Brooke L.J. in which he asks himself the rhetorical question, what does the law require in order that actual knowledge is established? He observes that ‘this branch of the law is already so grossly overloaded with reported cases . . . that I see no reason to add to the overload by citation from earlier decisions’. He then cites a large number of the reported cases and draws from them certain principles. I think it important to mention this because these principles have ever since been regularly referred to in later English judgments and have almost been interpreted as though they were statutory. As formulated by Brooke L.J. at p. 129, they are as follows:

‘(1) The knowledge required to satisfy s. 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) ‘Attributable’ in this context means capable of being attributed to, in the sense of being a real possibility;

(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4) On the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.’”

The plaintiff relied in particular on clause 4 of those principles as stated by Brooke L.J. Geoghegan J. in dealing with those principles went on to comment on the fact that another judge observed in a subsequent case that those principles were helpful up to a point but their application was by no means easy. He went on to add:-
“Certainly there is no merit in my view in casting them as stone.”
Geoghegan J. went on at p. 129 of the judgment to quote from a passage from Donaldson M.R. in the case of Halford v. Brookes [1991] 1 W.L.R. 428 at p. 433:-
“The word (knowledge) 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 and other advice, and collecting evidence’. Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.”
That is a useful passage in that it highlights the difficulty in a case such as the present one. The difficulty is trying to ascertain the point at which it could be said that the plaintiff had sufficient knowledge “to justify embarking on the preliminaries to the issue of a writ”. Counsel on behalf of the plaintiff also referred to the decision in the case of Fortune v. McLoughlin [2004] 1 IR 526, a decision of the Supreme Court in which it was held that the word “attributable” in s. 2(1)(c) of the Act of 1991 was not satisfied by the plaintiff’s knowledge of the factual situation. The knowledge referred to was knowledge of attribution and knowledge that there was a connection between the injury and the matters alleged to have caused the injury. McCracken J. in the course of his judgment in that case, at p. 534 went on to say:-
“The knowledge referred to in that subparagraph is knowledge of attribution, in other words knowledge that there was a connection between the injury and the matters now alleged to have caused the injury. This is a connection which the plaintiff did not make in this case. If a plaintiff is to have knowledge within the meaning of s. 2(1)(c) of the Act of 1991, she must have knowledge at least of a connection between the injury and the matters now complained of to put her on some inquiry as to whether the injury had been caused by the matters complained of. At what stage she is put on inquiry must be a matter to be determined in each case, but in the present case the plaintiff quite clearly did not make the connection at all, as even when she was alerted to the fact that there might have been negligence, her reaction was to attribute her injuries to the actions of the National Maternity Hospital rather than of the defendant. It should be emphasised that the plaintiff’s knowledge of these matters is largely a question of fact. The trial judge in this case heard and placed reliance on, not only the expert evidence, but also the evidence of the plaintiff herself. . . .”
Finally in the course of the submissions counsel for the plaintiff referred to the case of Cunningham v. Neary (Unreported, Supreme Court, Fennelly J., 20th July, 2004). The plaintiff in that case did not consult a solicitor until May 2000. McGuinness J. in the course of her judgment at p. 4 commented:-
“It was argued on behalf of the plaintiff that she as an ordinary lay person did not have the required medical knowledge to take immediate action in December 1998. It is perhaps understandable in the circumstances that she may have been hesitant about taking the step of consulting her solicitor. However, once she had done so she not only had the information already available to her but also had the benefit of legal advice. It must be presumed that this legal advice included knowledge of the operation of the Statute. In May 2000 proceedings initiated by the plaintiff would have been within the statutory limit.”
In that case the plaintiff waited until after a medical expert presented a report to the solicitor in April 2001, and proceedings were not issued until the 22nd March, 2002. In those circumstances the court came to the view that the proceedings were statute barred. Looking at that particular decision, counsel on behalf of the plaintiff urged this Court to take the view that there was a requirement in cases such as this for a triggering event that means it is reasonable to obtain legal advice. He submitted that there was nothing on the facts of this case to put the plaintiff on inquiry until 2003. After he was put on inquiry he began to take the appropriate steps. In those circumstances it was contended that the plaintiff’s case herein was not statute barred.
By way of response, counsel on behalf of the second named defendant pointed out that the plaintiff herein was an intelligent person, well informed and as described in the course of dealing with various medical consultants a person of great insight. As long ago as 1997, his GP in a letter to the second named defendant had made observations as to the anxiety of the plaintiff in relation to the issue of follow up and the recurrence of a tumour. It was therefore contended on behalf of the second named defendant that by 2001 the plaintiff had the necessary knowledge to be put on inquiry. The recurrence of the tumour was diagnosed in 2001 and it was pointed out that at that stage the plaintiff was aware of the nature of the follow up between the period of 1994 and 2000. He was also aware of investigations which had or had not been carried out. He rejected the suggestion that there had to be a triggering event. As he pointed out, the Act itself does not contain any provision for a triggering event. He submitted that it was very strange that the article referred to by the plaintiff from the Irish Times on the 16th December, 2003 should be viewed in some way as a triggering event. Rather he suggested that the triggering event might be the alleged difference in treatment between that which the plaintiff had in St. Vincent’s following the 1994 operation and that which was available in St. James’s Hospital after the 2002 operation. The plaintiff was aware of differences in the nature of scanning, staging and the overall more rigorous follow up in St. James’s Hospital as opposed to that which took place in St. Vincent’s Hospital. In other words, after the plaintiff had his second operation in February 2002, he should very quickly thereafter have experienced the difference in follow up between the two hospitals.

Counsel on behalf of the second named defendant suggested that rather than the fourth relied on by counsel for the plaintiff in the Spargo formulation that the third clause was appropriate, namely that a plaintiff has the requisite knowledge when they know enough to make it reasonable for them to begin to investigate whether or not they have a case against the defendant. It was contended that the plaintiff was an intelligent person whose cancer had recurred at the end of 2000 and the beginning of 2001 when he had the benefit of a wide variety of independent experts whose opinions had been sought in regard to future treatment. Accordingly it was submitted that in truth the plaintiff had the necessary knowledge available to him as of early 2001 at the latest. In those circumstances it was contended that the plaintiff’s claim was statute barred.

Counsel on behalf of the first named defendant adopted the submissions of the second named defendant.

Decision
I accept that the Spargo principles as set out by the Supreme Court in Gough v. Neary and subsequently followed in other decisions of the Supreme Court are of considerable assistance in looking at the question of the date of knowledge as defined in s. 2(1)(c) of the 1991 Act. In order to apply those principles it is necessary to look at the facts of this case.

As I have previously said, I accept that the plaintiff is an intelligent, insightful man. As such it is not surprising that when he was diagnosed with cancer in 1994, he sought reassurance from the medical team treating him as to the issue of radiotherapy and follow up treatment and the possibility of recurrence of his illness. He received the information that it was not necessary to have radiotherapy and he was required to attend for follow up on a regular basis. He attended for review and at his reviews in 1996 and 1997 he informed the members of the second named defendant’s medical team that he had specific complaints of pain at the site of his operation. At this time he was given various assurances that the matters he complained of were due to scar tissue and damage to the facial nerve. In the summary of the evidence of the plaintiff, I referred above to correspondence between the plaintiff’s GP and the second named defendant in November 1997 and early 1998. That correspondence is clear as to the nature of the plaintiff’s concerns at that time and also as to the reassurance given to the plaintiff as to his well being.

I accept that as time went on the plaintiff began to make use of the internet to seek out information about his illness. This probably commenced sometime around 1999 when the plaintiff was engaged on a computer programming course. It is difficult to be more precise than that in relation to this issue. By the end of the year 2000, the plaintiff re-attended at the A & E Department in St. Vincent’s Hospital. The pain he had complained of previously was now more severe and investigations carried out at that time by way of CT scan which took place in January 2001 revealed a recurrence of the cancer.

At this stage I have no doubt that the plaintiff actively researched his illness on the internet and that he brought his findings and concerns and questions to the second named defendant and his medical team. He discussed what options were open to him and he sought second opinions. There is no doubt and it is accepted by the plaintiff that the second named defendant was of considerable assistance to the plaintiff in obtaining second opinions from a variety of sources. Ultimately he had further surgery in February 2002.

I find it very difficult to accept the submissions made by counsel on behalf of the second named defendant that following the diagnosis of the recurrence of the tumour in 2001 that the plaintiff then could have had or should have had the necessary knowledge to embark on an inquiry as to whether there had been an injury attributable in whole or in part to the act or omission alleged to constitute negligence. It was ultimately conceded by counsel on behalf of the second named defendant in the course of the hearing that time should run at the latest from the date of the operation in 2002. The point made by the plaintiff in this hearing is that it was not until he had the experience of being operated on in St. James’s Hospital and was in a position to contrast the treatment he received in St. James’s as against that which he had received in St. Vincent’s that he had any doubts about the inadequacy of the treatment by the second named defendant and indeed the first named defendant herein. In the immediate aftermath of his operation, he would have observed that there had been pre-operation scanning and staging to assist in assessing the form of surgery that was required. The difference in post operative treatment could not have been ascertained until such time as the operation had taken place.

In his evidence the plaintiff said that whilst he was aware of differences in the treatment afforded to him by St. Vincent’s leading up to and in the aftermath of the 1994 surgery and that afforded to him before and in the aftermath of the surgery in 2002 carried out in St. James’s Hospital, his initial views were that the difference was attributable to the fact that in 2002 he was being treated for a recurrence of the cancer.

I accept that s. 2(1)(c) of the Act does not require a triggering event to start the statute running. What is clear from the case law is that the statute begins to run when a plaintiff has knowledge of attribution i.e. that the injury was caused by the act or omission involved and knowledge that there was a connection between the injury and the matters alleged to have caused the injury as described in the case of Fortune v McLoughlin by McCracken J. in the passage referred to above. In other words, the plaintiff has to be able to make that connection.

The evidence given by the plaintiff in this case is that it was not until the article published in December 2003 that he began to consider the possibility that what he now complains of in these proceedings, namely, that the recurrence of the tumour might not have required such extensive and invasive surgery had his treatment in St. Vincent’s Hospital been different. He gave evidence as to his discussions after Christmas 2003 with a friend of his who was a barrister. The plaintiff had a further discussion with that individual in March 2004 and within a very short period of time consulted his solicitors with the result that proceedings ultimately issued at the end of December in 2006. Accepting as I do that the plaintiff is an intelligent, educated man who acquired a great deal of information in relation to his illness it still does not seem to me to be possible to attribute knowledge within the meaning of s. 2(1)(c) of the Act of 1991 to the plaintiff. It seems to me that it is reasonable to conclude that for a long period of time after his surgery in February 2002, the plaintiff did not make a connection between the requirement to have such radical treatment then with the now alleged failings in relation to his treatment in St. Vincent’s following his operation in 1994. There is nothing to suggest otherwise in the evidence before me. His view as to the difference in treatment in the two hospitals was down to the fact that the second hospital was dealing with a recurrence of a pre-existing tumour.

Finally, I should note that counsel for the first named defendant joined in the submissions of the second named defendant.

In these circumstances I am satisfied that the plaintiff’s claim is not statute barred and accordingly I will refuse the application of the first and second named defendants herein.

McCoy v Keating

[2011] IEHC 260

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 28th day of June, 2011
1. Each of these cases arises out of a road traffic accident that occurred on the 20th March, 2006 at Ballydonnell, Mullinahone, County Tipperary. In the accident, Natalie Horan Quinn (the deceased) and another child were killed and Natalie’s brother received serious injuries. The deceased was a granddaughter of Margaret and Edward McCoy. Mr. Patrick Quinn is and was at all material times a partner of the mother of the deceased and acted in loco parentis to her. In each of these cases, the plaintiffs claim damages for psychiatric injuries and nervous shock caused by the shock and trauma of coming upon the aftermath of the road traffic accident.

2. Margaret McCoy and Edward McCoy (the grandparents) took a telephone call shortly after the accident and they went to the scene. They could see the car in which the deceased had been travelling was stuck in a drain at the side of the road. Some time later, they were allowed through an area which was cordoned off and saw the deceased’s body and the body of the other child lying at the side of the road. The deceased children were removed by ambulance from the scene.

3. Patrick Quinn was at home with the deceased’ s mother when she was informed by telephone that there had been an accident involving the deceased and other children. He drove to the scene with the deceased’s mother and her other daughter where they found the car on its side in a deep dike or ditch at the side of the road. There was a stream flowing though the ditch and the water level was rising and Patrick Quinn attempted to help the trapped children by communicating with them and preventing other members of the public from interfering with the rescue scene. While he was there, the deceased and the other child who died in the accident were trapped at the back of the car and he attempted to speak to them. He saw their bodies being removed from the scene and taken to hospital and he also saw the deceased’s brother in a seriously injured state at the scene.

4. Liability is not an issue in any of these cases. However, in each case a plea is raised that the actions are barred by virtue of the provisions of s. 3(1) of the Statute of Limitations (Amendment) Act 1991 as amended by s. 7(a) of the Civil Liability and Courts Act 2004 and s. 50 of the Personal Injuries Assessment Board Act 2003.

5. The parties are agreed that the following timelines apply in these cases:

(a) Margaret McCoy
PIAB application acknowledged 25 February 2008.

Authorisation 28 February 2008.

Expiration of time limit (accrual of cause of action is 20 March 2006) 20 September 2008.

Personal injuries summons issued 20 February 2009.

The summons is prima facie out of time by five months.

(b) Edward McCoy

PIAB application acknowledged 25 February 2008.

Authorisation 06 March 2008.

Expiration of time limit (accrual of cause of action is 20 February 2006) 29 September 2008.

Personal injuries summons issued 20 February 2009.

The summons is prima facie out of time by approximately four months and twenty two days.

PIAB application acknowledged 18 March 2008.

Authorisation 19 March 2008.

Expiration of time limited (accrual of cause of action is 20 March 2006) 20 September 2008.

Personal injuries summons issued 02 October 2008.

The summons is prima facie out of time by approximately twelve days.

The law
6. Allowing for amendments made to date, s. 3(1) of the Statute of Limitations (Amendment) Act 1991, provides, inter alia, that an action in respect of personal injuries caused by negligence or breach of duty shall not be brought after the expiration of two years from the date on which the cause of action accrued or the date of knowledge, if later, of the person injured. Section 2(1) of the Act provides that references to a person’s state of knowledge or references to the date on which he first knew that the injury in question was significant. Section 2(2) provides:

“For the purposes of this section, a person’s 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 which it is reasonable for him to seek.”

In Byrne v. Hudson [2008] 3 IR 106 (at p. 115) Macken J. stated:
“Since the provisions of s. 2 are, in reality, an exception to the normal provisions concerning the obligation to commence proceedings for relief in respect of a tort causing personal injuries within a three year period, it is correct to apply the provisions of the section literally and not benignly or with an unduly lax interpretation.”
In Bolger v. O’Brien [1999] 2 IR 431 (at p. 440) the Supreme Court held that the question of prejudice suffered by a defendant or the shortness of time by which the limitation period has expired is irrelevant to the interpretation and/or application of s. 2 of the 1991 Act.
7. In Whitely v. Minister for Defence and Ors. [1998] 4 IR 442, Quirke J. noted the absence of any express definition of a “significant” injury under the 1991 Act and held that in Irish law the test was primarily subjective with the qualification of the provision contained in s. 2(2). He held that this sub-section introduced:

“… 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”.
This test was applied by the Supreme Court in Bolger v. O’Brien. In that case, the plaintiff claimed not to have realised that a back injury was “significant” until October 1992, at which time an X-ray confirmed the presence of a non-displaced fracture of the sacrum. In the Supreme Court, Hamilton C.J. said:
“The learned trial judge had held that the full significance of the plaintiff’s injuries were not brought home to him and that he did not understand them until in or about October, 1992 but that is not the test.
The test is when he knew or ought reasonably have known ‘from facts observable or ascertainable by him’ that he had suffered a significant injury. …

The fact that the plaintiff did not realise the full significance of the effect of such injury is not of relevance once it is established that he knew the injury was significant.”

Application of the law to the facts
8. In this case, each of the plaintiffs gave evidence that they suffered significantly from shock and distress from the time they attended upon the immediate aftermath of the accident and saw the bodies of the children on the side of the road.

9. In the case of Mrs. Margaret McCoy, the evidence established that she suffered significantly after the accident, but by the time she had seen Dr. Morrison, a consultant psychiatrist, her symptoms had improved. She continued to improve since that time. Dr. Morrison made no reference to any past relevant history, but Dr. Richard Horgan, a consultant psychiatrist called on behalf of the defendants, noted that she had developed agoraphobia with depressive features in the 1960s and sought treatment for that condition. This evidence establishes that she had an awareness of her symptoms on that earlier occasion and sought appropriate medical treatment.

10. In the case of Edward McCoy, he came across as a highly sensitive individual. Dr. Morrison, consultant psychiatrist, said that he was affected greatly by the accident and developed a severe Post-Traumatic Stress Disorder with depression, loss of interest, lack of energy, anger, irritability, hyper-vigilance, and other symptoms but noted that he was not anxious to take any medication and did not believe in having counselling. Dr. Morrison felt he would never make a full recovery. On follow-up visits to Dr. Morrison, he found that he was not showing any improvement. But on the last examination of him, on 24th May, 2011, he felt that he had improved slightly and he felt that he would make some progress although he would never make a full recovery. Dr. Richard Horgan was of the view that this plaintiff suffered primarily a prolonged grief reaction with some overlapping symptoms of Post-Traumatic Stress Disorder. But he felt that, primarily, he had a prolonged grief reaction which was complicated by anger against the County Council for the state of the road at the site of the accident and the fact that the ambulance personnel laid the bodies of the children on the side of the road. He felt that after the legal proceedings there would be some closure for Mr. McCoy.

11. Patrick Quinn was in loco parentis to Natalie Horan Quinn, one of the children killed in the accident. He was in a long-term relationship with Natalie’s mother at the time. Dr. Morrison gave evidence that Mr. Quinn was suffering a Post-Traumatic Stress Disorder and that he had also developed depressive symptoms. It seems he had some bereavement counselling after the accident. Dr. Horgan said that when he examined this plaintiff on 26th August, 2010, he did not appear to be very distressed and there was no evidence of a panic disorder but there were some features of an Obsessive Compulsive Disorder. He also felt that while this plaintiff developed some features of a Post-Traumatic Stress Disorder, these symptoms had largely cleared up by then. His main difficulty was one of a prolonged grief reaction. Of some significance is this plaintiff’s past history which establishes that in 2003, he was an in-patient for two weeks in the Psychiatric Unit in Waterford Regional Hospital suffering from depression. Subsequent examinations by Dr. Morrison showed that Mr. Quinn continued to improve.

12. These cases are somewhat unusual in that none of the plaintiffs sought medical help for their mental state soon after the accident. It was only after they had gone to a solicitor with a view to commencing proceedings, that their solicitor referred them to Dr. James P. Morrison, a consultant psychiatrist. In the case of Patrick Quinn, he stated, in evidence that he attended with his partner at her appointment with her solicitors in connection with her legal action arising out of the accident. He gave evidence that her solicitor asked him how he was and suggested it might not be a bad idea to see Dr. Morrison. The plaintiffs allege that it was only when he told them that they were suffering from Post-Traumatic Stress Disorder that they became aware of the significance of their injuries. Dr. Richard Horgan, a consultant psychiatrist, on the other hand, was of the view that while there was some element of Post-Traumatic Stress Disorder in the history, as given by the plaintiffs, their primary symptoms were one of prolonged grief reaction to what was undoubtedly a most upsetting event. It appears that none of the plaintiffs wanted to take any medication or were put on any course of medication. Mrs. Margaret McCoy gave evidence that some time after the accident, she attended her GP for matters unrelated to the accident and he discussed her general wellbeing with her. But he did not refer her for psychiatric assessment. Mr. Edward McCoy said he did not think he had a problem until diagnosed by Dr. Morrison. Yet, he saw his GP, Dr. Quirke, on one occasion, and he told the court that there was nothing Dr. Quirke could do for him. He said he was offered sleeping tablets but did not take them and he was not prescribed antidepressant medication. He had gone to a solicitor because he felt that he and his wife should have a case for the loss of their granddaughter, and when asked by counsel what injury he suffered, he stated it was the loss of his granddaughter. He said that he was angry that the bodies had been placed on the roadside and also angry with the condition of the road.

13. In my view, it is significant that two of the plaintiffs (Mrs. Margaret McCoy and Mr. Patrick Quinn) had a prior history of some depressive symptoms so they would have been aware of the opportunities available to have symptoms of depression and related symptoms treated.

14. I am satisfied, from the evidence of the plaintiffs and from the medical evidence, that each of the plaintiffs was aware that they had a condition (whether it was a grief reaction and/or Post-Traumatic Stress Disorder) but that they did not become aware that part of their condition was a Post-Traumatic Stress Disorder until Dr. Morrison informed them of the fact. But as Hamilton C.J. stated in Bolger v. O’Brien, that is not the test to be applied in determining the date of knowledge for the purpose of the Statute of Limitations. The test is when each of these plaintiffs knew, or ought reasonably to have known from facts observable or ascertainable by each of them, that they had suffered a significant injury. The fact that each of the plaintiffs did not realise the full significance of the effect of their injury is not of relevance once it is established that they knew that the injury was significant. Further, knowledge of the nature of their injury could have been acquired from facts ascertainable by each of the plaintiffs with the help of medical or other appropriate expert advice which it was reasonable for them to seek. In the case of two of the plaintiffs (Margaret McCoy and Patrick Quinn), they had already sought treatment for psychiatric conditions in the past, and in the case of Mr. Edward McCoy, Dr. Morrison said that he had a serious condition since the date of the accident. Thus, all of the plaintiffs ought to have known from facts observable or ascertainable by each of them that they had suffered a significant injury. As between the evidence of Dr. James Morrison and Dr. Richard Horgan, I prefer the evidence of Dr. Horgan who was of the opinion that each of the plaintiffs had suffered a prolonged grief reaction with some element of overlay from a Post-Traumatic Stress Disorder.

15. The plaintiffs had been referred to Dr. Morrison because it is clear they would not have had a cause of action unless a diagnosis of a recognisable psychiatric condition was made. All that happened when he made his diagnosis was that a name was put on the condition from which each of the plaintiffs had been suffering since the date of the accident. They clearly knew that they had been suffering from a condition even if they did not know what the medical term for that condition was. Margaret McCoy and Edward McCoy did not to seek a medical opinion until after they had visited their solicitor with a view to commencing proceedings. Patrick Quinn had gone to the solicitor, not to commence proceedings himself, but to accompany his partner who was commencing proceedings arising out of the death of her daughter, Natalie. It was then suggested by her solicitor that he might be seen by Dr. Morrison, and following his diagnosis of Post-Traumatic Stress Disorder, he also brought proceedings in his own name.

16. In the case of Margaret McCoy and Edward McCoy, the court was furnished with copies of the application forms for assessment of damages under s. 11 of the Personal Injuries Assessment Board Act 2003. In the case of Margaret McCoy, she stated that she first sought medical attention in April or May 2006, and the name and address of her medical attendant was given as Dr. Mike Quirke, Gladstone Street, Clonmel. In the case of Mr. Edward McCoy, he stated that he first sought medical attention in April 2006, and the name of the same doctor was given. Both these forms were signed in February 2008. By that time, they had already seen Dr. Morrison, yet there is no reference to him on the form. In the course of her evidence, Margaret McCoy said that she attended her GP within two or three months of the accident, but did not attend him for grief or complaints associated with witnessing the accident. I accept her evidence on that point. But that raises an issue as to the information given in the form because the question asking on what date she first sought medical attention is raised in the context of the ‘Injury/Claim Details’. Mr. Edward McCoy’s evidence was that the injury he suffered was the loss of his granddaughter and his angry feelings about the way in which the bodies were laid out on the roadside and the condition of the road itself. Although he saw Dr. Quirke once, he never took any medication or went for counselling. There is no mention in either PIAB application form of Dr. Morrison. Furthermore, in the course of the hearing in respect of all three plaintiffs, there was no evidence of a referral of any of the Plaintiffs by their GP to a psychiatrist, nor did Dr. Morrison prescribe a course of treatment for any of the plaintiffs. Neither did he furnish a letter to the GP informing him of his findings in relation to each plaintiff, which would be the usual practice if he had been their treating psychiatrist. But, of course, he was not their treating psychiatrist. He had only become involved at the behest of the plaintiffs’ solicitor at a time when Margaret McCoy and Edward McCoy had already gone to their solicitor with a view to commencing proceedings, and after Patrick Quinn had attended his solicitor with his partner in connection with her proceedings.

17. This is a very sad and tragic case. I am satisfied that each of the three plaintiffs suffered a significant grief reaction with some overlay of Post-Traumatic Stress Disorder as a result of what they witnessed on the night of the accident. I am also satisfied that insofar as they suffered a grief reaction or Post-Traumatic Stress Disorder, that their symptoms arose in the immediate aftermath of the accident and that they knew, or ought reasonably have known from facts observable or ascertainable by them, that they had suffered a significant injury.

18. In the circumstances, I hold that the plaintiffs have not established that the date of knowledge applicable in each of their cases is the date on which they were diagnosed by Dr. Morrison. I therefore hold that the plaintiffs’ claims are time-barred.

Kiernan v J Brankard Electrical Ltd

[2011] IEHC 448

Judgement delivered 23rd of November 2011 White Michael J.
This matter comes before the Court by way of Notice of Motion issued on behalf of the Second Named Defendant Quebec Construction Limited on the 6th April, 2011 seeking a Dismissal of the Plaintiff’s claim on the grounds that it is statute barred, or in the alternative setting the matter down for trial as a preliminary issue. As no facts are in dispute, it is appropriate to deal with the matter on this motion.

The Plaintiff Paul Kiernan caused a Personal Injury Summons to be issued on the 5th March, 2010 alleging negligence which caused him personal injury.

The Plaintiff is an Electrician and was working on a building site at Pimm Street, in the City of Dublin, when he alleges he was injured on the 11th June, 2007. The First Named Defendants were Electrical Contractors on the site and the employer of the Plaintiff and the Second Named Defendants were the main Contractors.

Section 3 (1) of the Statute of Limitations Amendment Act 1991 as amended by Section 7 (A) of the Civil Liability and Courts Act 2004 provides that an action for personal injuries caused by negligence shall not be brought after the expiration of two years from the date on which the cause of action accrued or the date of knowledge if later.

Section 50 of the Personal Injuries Assessment Board Act 2003 provides that

“ In reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified by the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act 1991, the period beginning on the making of an Application under Section 11 in relation to the claim and ending 6 months from the date of issue of an Authorisation under, as appropriate, Section 14, 17, 32 or 36, Rules under Section 46(3) or Section 49 shall be disregarded”.
The Plaintiff instructed his Solicitors on the 28th June, 2007 and confirmed the accident occurred in the course of his employment with the First Named Defendant on a Quebec Construction site. A Company’s Office Search carried out on the 2nd July, 2007 revealed that Quebec Construction was a limited liability company with a registered office at 54/55 Marrowbone Lane, Dublin 8.
On the 27th May, 2009 the Plaintiff’s Solicitors faxed an Application Form, a copy Medical Report and copy cheque to the Personal Injuries Assessment Board at 1.58p.m. The Fax was successfully sent. On the same date the originals of these papers were sent by Registered Post to the Personal Injuries Assessment Board at P.O. Box 8, Clonakilty, Co. Cork.

The Board by letter of the 27th May acknowledged receipt of the documentation, but stated that additional information was required before the Application could be accepted as complete. This letter was received by the Plaintiff’s Solicitors on the 2nd June, 2009. The Board wrote again on the 10th June, 2009 to the Plaintiff’s Solicitors confirming the Application was completed on the 29th May, 2009 for the purposes of Section 50 of the Personal Injuries Assessment Board Act 2003.

On the 19th August, 2009 the Board issued an Authorisation pursuant to Section 14 of the Act, allowing the Plaintiff to bring legal proceedings. These proceedings were not issued until the 5th March, 2010. The Authorisation was received by the Plaintiff’s Solicitors the following day on the 20th August, 2009.

The Second Named Defendants allege that the relevant dates for the operation of Section 50 of the Personal Injuries Assessment Board Act 2003 were the 29th May, 2009 and 19th August, 2009. The Plaintiff contends the relevant dates for the operation of Section 50 were the 27th May, 2009 and the 20th August, 2009.

The Plaintiff also contends that the date of knowledge of the accident was the 2nd July, 2007 the date of the Company Search, and relies on Section 2 of the Statute of Limitations (Amendment) Act 1991 as follows

2.—(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 dependant 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 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;

( 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 which it is reasonable for him to seek.

(3) Notwithstanding subsection (2) of this section—

( a ) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
( b ) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.

The Second Named Defendant also relies on Rule 3 (3) (b) of Statutory Instrument Number 219/2004 Personal Injuries Assessment Board Rules 2004…
3) In relation to a relevant claim, the date of–

(a) the receipt by the Board of an application under section 11 of the Act for the purposes of section 13 of that Act, and
(b) the making of an application under section 11 of the Act, for the purposes of section 50 of that Act,

shall be the date on which the application in a form specified in sub rule (1)(a), containing the information specified in sub rule (1)(b) is acknowledged in writing as having been received by the Board.

THE AUTHORISATION.
Section 50 of the Act states the period to be disregarded ends six months from the date of issue of an Authorisation under the various Sections recited namely Sections 14, 17, 32, 36, 39, rules pursuant to 46 (3), and section 49. The Authorisation issued on the 19th August, 2009, pursuant to Section 14, and the Plaintiff’s Solicitors received the Authorisation in the course of post, the next day the 20th August, 2009. For the purpose of this hearing, the relevant date was the date of the Authorisation the 19th August 2009. I am not dealing with any undue delay from the issue to the receipt of the Authorisation.

DATE OF KNOWLEDGE
Section 2 of the Statute of Limitations (Amendment) Act 1991 must be construed strictly as certainty is important.
Section 2 (2) of the Act includes knowledge which the Plaintiff might reasonably have been expected to acquire (A) from facts observable or ascertainable by him and (B) from facts with the assistance of expert advice.

The Plaintiff knew it was a Quebec Construction site. The only extra information he acquired from the Company’s Office Search was that it was a limited liability company and the address of the registered office. I have no doubt that the date of knowledge of the claim was the date of the accident the 11th June, 2007.

MAKING OF CLAIM
Section 50 states “the period begins in the making of an Application under Section 11 in relation to the claim”.
The rules state “the making of an application under Section 11 of the Act, for the purposes of section 50 of that Act, shall be the date on which the application in a form specified in sub rule(1)(a) containing the information specified in sub rule(1)(b) is acknowledged in writing as having been received by the Board.

In my opinion there is a conflict between the two. In construing when the claim was made the Court must have regard to the Act in preference to the Rules made pursuant to the Act. This is clear from the Case Law precedent.

In Frascati Estates Limited V Marie Walker [1975] IR P177 at Page 187 Henchy J in the Supreme Court Judgement stated

“Much of the necessary procedure is laid down by regulations made pursuant to the Act, but these I ignore in determining the scope of the Act. As Lord Diplock said in the context of another Act “It is legitimate to use the Act as an aid in construction of the regulations. To do the converse is to put the cart before the horse” Lawson –v- Fox [1974] A.C. 803, 809.
Examining the ordinary meaning of “making of an Application” the essential components were in place after the fax had been successfully delivered on the 27th May, 2007. The Board had a copy Application Form and a copy of the Medical Report. The payment was not made but a copy of the cheque was in the Board’s possession and the original cheque was sent by registered post on the 27th May, 2009 for the appropriate fee.
The Court comes to the conclusion the appropriate date in respect of the making of a claim for the purposes of the Statute was the 27th May, 2009.

In accordance with Section 50 of the Personal Injuries Assessment Board Act 2003 the period from the 27th May, 2009 to the 19th February, 2010 should be disregarded for the purposes of the Statute.

The commencement date for the statute to run was the 11th day of June 2007.

Connolly v Health Service Executive [2013] IEHC 131
JUDGMENT of Mr. Justice Gilligan delivered on 22nd day of March, 2013
1. By notice of motion filed on 25th June, 2012, the defendant seeks “An Order directing that the Defence raised by the Defendant that the Plaintiff’s within proceedings are barred pursuant to the Statute of Limitations Acts 1957-1991(as amended) be heard and determined as a preliminary matter in accordance with the directions of this Honourable Court” and also, or alternatively, “an Order striking out the Plaintiff’s claim in respect of an alleged trespass to the person in accordance with s.2 of the Civil Liability Act 2004, which precludes relief being sought in proceedings commenced by way of Personal Injuries Summons”.
Background
2. During 2006 the plaintiff was referred by his GP for review of a keratotic lesion on his right ear to the outpatients department at Tullamore Hospital. On 18th May, 2006, the plaintiff consented to a biopsy procedure which he claims he was told would take a minute or two. It is alleged that contrary to the agreed procedure, the surgeon excised the entire legion by wedge resection without the plaintiffs consent. The plaintiff states that he suffered horrendous pain and that he has been left with a permanent cosmetic defect of which he is extremely conscious and that he has suffered loss and damage as a result. Results of a histology exam showed that the lesion was benign and were sent to the plaintiffs GP on 29th May, 2006.

3. On or about 22nd May, 2006, the plaintiff made a complaint to the Hospital and it is alleged that on 29th May, 2006, the plaintiff was informed by Mr. Ashraf Tawfik, Surgeon, that “All would be ok”. In July, 2006 the plaintiff discussed the incident with his solicitor. In September, 2006 the plaintiff met consultant surgeon Mr. Kieran O’Driscoll who apologised for what had occurred.

4. On 15th September, 2008, legal proceedings were commenced by way of Personal Injuries Summons. This summons alleged negligence and breach of duty and trespass to the person against the defendant. The respondents now seek to have these proceedings struck out on the basis that they were commenced outside the time prescribed by the statute of limitations and that the trespass to the person claim was not, as it should have been, commenced by plenary summons. I will now consider each of these matters in turn.
Statute of Limitations
5. Section 3 of the Statute of Limitations (Amendment) Act 1991, as amended by section 7 of the Civil Liability and Courts Act 2004, states that an action claiming damages in respect of personal injuries “shall not be brought after the expiration of two years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured”.

6. In Bolger v. O’Brien [1999] 2 ILRM 372, the Supreme Court held that the date of knowledge is the date when the plaintiff first had knowledge that his injury was significant. In Gough v. Neary [2003] 2I.R. 92 Geoghegan J. cited with approval the following principle set out by Brooke L.J. in Spargo v. North Essex Health Authority [1997] 8 Med LR 125 –

“…a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation”
7. In Cunningham v. Neary & Ors [2004] IESC 43 the Supreme Court held that the plaintiff’s claim was statute barred as she had cause to question the actions of the doctor and had been advised to make a complaint to the Medical Council. McGuiness J. held –
“…even prior to that date however she had reason at least to question the necessity for the removal of her ovary. She had at an early stage queried the need for the operation…”
8. In the present case, it is submitted by the defendant that the plaintiff would have been aware that he underwent an unnecessary procedure when he learned from the results of the histology report that the lesion was benign. In addition, the plaintiff made a complaint on 29th May, 2006, and sought legal advice in July, 2006. Furthermore, the plaintiff also received an apology from Mr. O’Driscoll on 11th September, 2006.
9. I am of the view that the plaintiff’s ‘date of knowledge’ came almost immediately after the procedure on 18th May, 2006, and certainly no later than July, 2006 when the plaintiff, after having made a complaint to the hospital, sought legal advice in relation to the matter. In his oral evidence to the court the plaintiff described the horrendous pain he endured following the procedure and said that when he returned home from the hospital he could see that what had happened was not what was meant to have happened. He described his ear as being “almost folded over” and said that three quarters of an inch of his ear was missing. I am satisfied that at this stage the plaintiff knew he had sustained a significant injury. For that reason, I must hold that the proceedings were not instituted within a period of two years of the date of the cause of action and are statute barred. I consider it appropriate to state that, particularly as the plaintiff sought legal advice so soon after the incident, it was incumbent upon the plaintiff to ensure that proceedings were initiated within the time period prescribed by statute.

Trespass to the person

10. Having found that the plaintiff’s claim of negligence and breach of duty is statute barred, it is necessary to consider the claim in relation to trespass to the person, which was made within the time prescribed by statute, albeit in the Personal Injuries Summons rather than plenary summons as required by the Rules of the Superior Courts.

11. The defendant relies on Section 2(d) of the Civil Liability and Courts Act 2004, which states that personal injuries actions –

“…shall not include…an action where the damages claimed include damages for…trespass to the person”
12. It is submitted on behalf of the defendant that O.1, r. 1 of the Superior Court Rules 1986, requires a claim in relation to trespass to the person to be made by plenary summons and for that reason the plaintiffs claim in this regard is misconceived and must be struck out.
13. Counsel for the plaintiff submits that O. 19, r. 26 of the Superior Court Rules provides that no technical objection shall be raised to any pleading on the ground of any want of form. It is submitted that the fact that the trespass to the person claim was made in the Personal Injuries Summons rather than plenary summons is not fatal to the claim and has caused no prejudice to the defendant.

14. The issue of the correct originating procedure has been considered on a number of occasions by the courts. In Bank of Ireland v. Lady Lisa Ireland Ltd [1992] 1I.R. 404, O’Hanlon J. followed the decision of Meares v. Connolly [1930] I.R. 333 and held that the use of the summary summons procedure where it was not available was a fundamental flaw that was fatal to the claim and accordingly the claim was dismissed.

15. However, as set out by Delany and McGrath in Civil Procedure in the Superior Courts (3rd Ed.) “…this strict approach has not been followed in other cases which have, instead, emphasised the wide discretion conferred by Order 124, Rule 1”. This broad discretion is evident in a number of cases. For example, in Wicklow County Council v. Fenton [2002] ILRM 469 the applicant failed to commence proceedings on a particular ground by special summons as required by the relevant legislation. On this basis, the respondents sought to have proceedings struck out. Kelly J. described the objection raised as “unreal” and “academic”, particularly in circumstances were there was overlap between the reliefs sought. Also of importance was that no prejudice had been suffered to the respondents.

16. In Earl v. Cremin [2007] IEHC 69 the proceedings were commenced by way of plenary summons when O.74, rr. 49 and 136 stipulated that the claims in question should be brought by the originating notice procedure. The defendants sought to strike out proceedings as improperly constituted and prejudicial. Smyth J. held that the adoption of the incorrect originating procedure was due to oversight and that any prejudice suffered could be adequately remedied by the court.

17. The defendant also submits that the point was specifically raised in the defence dated 3rd April, 2012, and that despite this the plaintiff failed to take any steps to remedy the situation. In relation to this point it is important to note that time to deliver the defence was extended by consent for three weeks by Order of this Court on 31st January, 2011. The defence was not delivered until over fourteen months later at which point the plaintiff would have had very little time to take the appropriate steps to remedy the error by way of want of form prior to the expiration of the statutory time limit.

18. It is clear that O. 124 gives the court discretion when deciding whether or not to strike out proceedings due to non-compliance such as a want of form. In the present case, I find that while the plaintiff’s claim of trespass to the person was incorrectly pleaded in the Personal Injuries Summons rather than correctly by way of a plenary summons, it is not fatal to the claim. The claim arises out of the same incident and is clearly defined in the Personal Injuries Summons. The defendant has suffered no prejudice as a result of the error and the claim was made within the prescribed limitation period.
Conclusion
19. In light of the foregoing, I will grant an order striking out the plaintiff’s claims in respect of damages for negligence and breach of duty as they are statute barred. However, after careful consideration of the facts of the case, I hold in the exercise of my discretion that the plaintiff’s claim in relation to damages for trespass to the person should be allowed to proceed in the present proceedings.

Stapleton v St Colman ‘s (Claremorris) Credit Union

[2015] IEHC 510

Neutral Citation [2015] IEHC 510

THE HIGH COURT
Record No: 2014/7369P

BETWEEN:

KAREN STAPLETON
Plaintiff
-AND-
ST COLMAN’S (CLAREMORRIS) CREDIT UNION LIMITED

Defendant

JUDGMENT of Mr Justice Max Barrett delivered on 31st July, 2015.

PART I
KEY ISSUE ARISING

1. Should the within personal injuries proceedings be struck-out as statute-barred under the statute of limitations legislation?

PART II
BACKGROUND FACTS

2. On or about 19th June, 2011, Ms Stapleton was out at a social occasion when she was advised that an allegation, it seems of workplace bullying, had been made against her by a co-worker at the defendant credit union. Thereafter Ms Stapleton appears to have been considerably unhappy at work due to what she perceived to be an ongoing and unresolved vilification of her good name. In the end, Ms Stapleton’s worries seem to have got the better of her, with the result that between February and September 2012, she was absent from work on stress-related sick leave for a considerable portion of time. She was eventually dismissed from her employment on 18th September, 2012.

3. A claim brought by Ms Stapleton under the unfair dismissals legislation in respect of her dismissal met with success in January of this year before the Employment Appeals Tribunal and Ms Stapleton’s reinstatement to work was ordered.

4. Separately, in March 2014, Ms Stapleton had set about the process of seeking relief for personal injuries that she claims to have suffered at the hands of the credit union, its officers, servants or agents. She made application to the Personal Injuries Assessment Board (PIAB); this application was received on 24th March, 2014, and an authorisation to bring the within proceedings issued from that Board on 26th March, 2014. Notably, this was 2 years and 8 months after Ms Stapleton first attended with her medical doctor for treatment of alleged work-related stress, and 2 years and 1 month after she was diagnosed with a significant related ailment.

PART III
PRINCIPAL CONTENTIONS OF RESPECTIVE PARTIES

5. The credit union comes to court complaining that Ms Stapleton’s proceedings were commenced out of time. It points to the fact that Ms Stapleton has pleaded in her personal injury summons, the contents of which have been verified on affidavit, that the alleged workplace vilification commenced against her in or about June 2011, and that she was caused to attend with her medical doctor for treatment of work-related stress on or about 22nd August, 2011. She was certified as unfit to work due to stress-related illness on 1st February 2012, returned to work for March 2012, and thereafter was absent until September 2012, at all times due to work-related stress. This being so, the credit union contends that there is no doubt that Ms Stapleton knew, at the latest by 1st February, 2012, that she had been injured, that the injury in question was significant, that the injury was attributable in whole or in part to the impugned acts or omissions of her employer, its officers, servants or agents, whether in conducting or allowing the purported campaign of vilification. Consequently the credit union claims that, consistent with s.2 of the Statute of Limitations (Amendment) Act, 1991, Ms Stapleton ought to have commenced her personal injuries action within two years of 1st February, 2012, given the two-year time limitation on personal injuries actions.(The text of s.2 is set out in Appendix A hereto which forms a part of this judgment).

6. Counsel for Ms Stapleton points to the fact that in the body of the application form submitted to PIAB in March 2014, Ms Stapleton was asked to identify the date of injury, or the date of accident, and identified it as 18th September, 2012. Moreover, within the body of that form Ms Stapleton asserts that on 18th September, 2012, she was dismissed from her employment and, as a result thereof, she suffered stress-related injuries. Later in the form she is asked to identify the nature of the injuries that she suffered; she indicates that her injury is related to work-related stress and (curiously) indicates that the she first sought medical attention for work-related stress on 18th September, 2012.

7. The strange centrality in the PIAB application form of 18th September, 2012 as a date on, or as a result of which, Ms Stapleton suffered personal injury, is not apparent from a consideration of Ms Stapleton’s pleadings in the within proceedings. The date of 18th September, 2012,is the date on which Ms Stapleton was dismissed from her employment. By then she had suffered the alleged personal injuries on which the indorsement of claim in the within proceedings is patently focused. There is reference in that indorsement of claim, it is true, to the fact that Ms Stapleton attended work on 18th September and was dismissed on that day; however, any fair reading of the indorsement of claim is that the injuries for which recompense is being sought are those allegedly suffered by Ms Stapleton in the previous year, with some emphasis on the summer of 2011.The truth is that, apart from its being the date of Ms Stapleton’s dismissal from employment, a date that would be painful for anyone to endure, the 18th September, 2012, is accorded no especial significance in Ms Stapleton’s pleadings, which are focused on her previous history.

PART IV
SOME CASE-LAW

8. Counsel for Ms Stapleton has drawn the court’s attention to the relatively recent judgment of Barr J. in Brandley and anor. v. Deane t/a Hubert Deane and Associates & anor. [2014] IEHC 610. That was a case in which the statute of limitations was pleaded but in which there was a factual dispute between the parties as to when the damage at issue in the proceedings in fact occurred. This being so, Barr J. concluded as follows, at paras.20-21 of his judgment:

“20. I am of opinion that where there is a factual dispute between the parties, such as to when the actual damage occurred to the property, such dispute cannot be determined on affidavit evidence. It will be necessary for the court to hear oral evidence from the parties and from their expert witnesses prior to reaching any conclusion on the Statute of Limitations point.
21. Accordingly, I refuse the first named defendant’s application to have the plaintiffs’ action dismissed as being statute barred against the first named defendant. This is due to the fact that such issue cannot be determined on the basis of the affidavits currently before the court. However, the plea can remain as a live issue in the defence of the first named defendant. It can be determined as part of the defence at the trial of the action.”

9. The difficulty for Ms Stapleton is that, on her own account of the facts, so taking her case at its height, she falls to be endowed, pursuant to s.2 of the Act of 1991, with the knowledge necessary to commence the within proceedings, at the latest, on 1st February, 2012. The sudden and fortuitous significance of 18th September, 2012, a date allegedly so central to Ms Stapleton’s claim that it gets the scantest of references in her indorsement of claim, which is clearly focused on her previous bout of stress-related ill-health, does not alter the determinative significance, for the purposes of the within application, of 1st February, 2012, if not some earlier date.

PART V
CONCLUSION

10. The court is not without sympathy for Ms Stapleton. She appears not to have had an easy time of it in the last few years. However, the Oireachtas has decided, doubtless for good reason, that it is preferable for society as a whole that personal injuries proceedings be commenced within a relatively short time of such injuries occurring. Here the injuries in issue, having regards to the papers and pleadings before the court, are patently those of which Ms Stapleton stood possessed of the statutorily required knowledge, at the latest, on 1st February, 2012.Yet application for authorisation to proceed with the within proceedings was not made of PIAB until end-March 2014. The court therefore accedes to the application of the defendant credit union that these proceedings be struck out as statute-barred, having being commenced outside the applicable two-year timeframe.

APPENDIX A
11. Section 2 of the Statute of Limitations (Amendment) Act, 1991, provides as follows:

“(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 dependant 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 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) 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;

(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 which it is reasonable for him to seek.

(3) [This sub-section is not relevant to the within application].”

Stapleton v St Colman ‘s (Claremorris) Credit Union [2015] IEHC 510

JUDGMENT of Mr Justice Max Barrett delivered on 31st July, 2015.

PART I
KEY ISSUE ARISING

1. Should the within personal injuries proceedings be struck-out as statute-barred under the statute of limitations legislation?

PART II
BACKGROUND FACTS

PART III
PRINCIPAL CONTENTIONS OF RESPECTIVE PARTIES

PART IV
SOME CASE-LAW

PART V
CONCLUSION

APPENDIX A
11. Section 2 of the Statute of Limitations (Amendment) Act, 1991, provides as follows:

(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

(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 which it is reasonable for him to seek.

(3) [This sub-section is not relevant to the within application].”

O’Reilly v Collier

[2015] IEHC 729

JUDGMENT of Kearns P. delivered on 20th day of November, 2015
This application is one brought by way of a preliminary issue to determine whether the proceedings against the second named defendant are barred by virtue of the provisions of the Statute of Limitations 1957 to 2001 (as amended).
RELEVANT LEGISLATION
Prior to the enactment of the Statute of Limitations (Amendment) Act 1991 the Statute of Limitations 1957 provided that a plaintiff had three years simpliciter within which to bring a claim for damages arising from negligence, nuisance or breach of duty of a defendant.

Section 7 of the Civil Liability and Courts Act 2004 reduced the limitation period for actions claiming damages in respect of personal injuries caused by negligence, nuisance or breach of duty to a period of two years from the date of accrual of the cause of action or date of knowledge of the cause of action (if later).

The 1991 Act introduced the concept of a plaintiff’s ‘date of knowledge’ at section 2 as follows –

“2.—(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 dependant 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 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

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.

(2) For the purposes of this section, a person’s 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 which it is reasonable for him to seek.

(3) Notwithstanding subsection (2) of this section—

(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.”

BACKGROUND
The substantive proceedings arise out of a road traffic accident which occurred on 16th February, 2010. On that date the plaintiff was driving his motor vehicle on the Ballyboughal to Swords road in the Fingal area of North County Dublin when he observed a car coming off the public road and veering into a housing estate.
The plaintiff was concerned for the driver of the other car and so pulled into the estate and parked his own car several metres away. He then went to speak with the driver of the other car, Ms. Lisa Prout, and to attempt to help her restart the car. As the plaintiff was standing and talking with Ms. Prout he observed a car driven by the first named defendant coming towards him along a grass verge. The plaintiff began running towards his own car but was struck by the first named defendant’s vehicle and unfortunately suffered very serious injuries which required a below the knee amputation of his left leg by surgeons at Beaumont Hospital.

Emergency services attended the scene and an investigation of the accident was carried out by An Garda Síochána. This included interviewing the relevant motorists and witnesses at the scene and formal statements were provided to Gardaí over the subsequent weeks.

On 24th March 2010 the first named defendant’s insurer, Aviva, wrote to the plaintiff’s solicitor stating that liability was not in issue in the case. However, on 26th May, 2010 Aviva wrote again stating that “the second paragraph of our letter was included in error. Therefore please note that liability is not conceded. Our investigations continue and we will revert to you once they are completed.”

On 20th October, 2010 the Garda Abstract Report containing the various witness statements was released to the plaintiff’s then solicitor. The content of the report is relied upon by the second named defendant in support of the contention that, for the purposes of the Statute, the time within which to commence proceedings against the second defendant began to run no later than the 20th October, 2010.

The first statement contained in the report is that of the first named defendant which she provided to Gardaí on 1st April, 2010. She outlines her recollection of the accident and states that “as she approached the bend in the road “suddenly the car swung out to the right, then the car suddenly veered to the left. It was as if I was driving on glass. I couldn’t notice anything on the road which would have cause me to do this and it baffles me as to why this occurred.” Later, she states that “…the car went into a skid prior to the collision, it meant that I could not prevent the car from taking the course it did.”

Ms. Lisa Prout provided a statement to Gardaí on 2nd April, 2010. In it she describes how she too lost control of her car near the entrance to the estate. She states that “I didn’t notice anything on the surface of the road which may have caused this accident.” Another witness, Mr. Glen Scheiner, who was driving ahead of the plaintiff when he noticed Ms. Prout’s car leave the road told Gardaí that “The road seemed dry and I remember it was weird because there didn’t seem to be anything on the road.”

However, the statements of the Gardaí who attended the scene differ from the aforementioned motorists in respect of the road conditions at the time of the accident. Garda Conor Morris and Garda Brendan O’Brien arrived at the scene of the accident O’Brien shortly after it occurred and the plaintiff had been taken to hospital by ambulance. Garda Morris states that “The collisions occurred in the daytime and the visibility on the road would have been good. The surface of the road was wet and had small bits of dirt and muck on it. Fingal County Council were subsequently notified of the incident and were requested to attend the scene to grit the road as it appeared that the dirt and muck was a contributory factor to the collision which had taken place. They arrived a short time later and coated the surface of the road with grit.”

Sergeant Tom Quinn also attended the scene of the accident and states that – “I created a detailed sketch of the scene including all relevant measurements and positions of the vehicles involved. I noted that the road appeared to be slippy due to a skim of mud on the road. The road was treated by officials from Fingal County Council.”

Authorisation to issue proceedings against the first named defendant was obtained on 10th August, 2011 and a personal injuries summons issued against the first defendant only on 3rd April, 2012. A full defence was entered by the first defendant on 10th April, 2013.

On 12th March, 2014 Mr. Conor Devally SC, who had been retained on behalf of the plaintiff, wrote to the plaintiff’s solicitors and expressed his view that they should write to the defendant indicating that they wished to join Fingal County Council as a co-defendant. On 2nd June 2014 a letter was sent to the first named defendant stating that “an engineering opinion has now been procured on behalf of our client, which indicates that Fingal County Council may have contributed to the road traffic accident the subject matter of the within proceedings…” It is further stated that “it is our intention to bring an application to join Fingal County Council as a co-defendant to the within proceedings.” Authorisation to join Fingal County Council issued from PIAB on 7th July, 2014 and a notice of motion to this effect issued on 16th July, 2014. An order joining Fingal County Council was made by the Master of the High Court on 31st July, 2014.

A defence was delivered on behalf of the second named defendant on 10th December 2014 before a notice of motion seeking to have the Statute of Limitations matter determined as a preliminary issue was issued by the second defendant on 8th January 2015.
SUBMISSIONS OF THE SECOND DEFENDANT
It is accepted by the second named defendant that, in all the circumstances of this case, the plaintiff’s date of knowledge was not the date of the accident, i.e. 16th February 2010. However, it is submitted that the date of knowledge can be not later than 20th October, 2010 when the Garda Abstract Report was received by the plaintiff’s solicitor. The second named defendant contends that the content of this report, and in particular the statements of the relevant gardaí, can only be interpreted as a suggestion that the accident might have or could have been caused by the condition of the road. It is submitted that upon receipt of this document the plaintiff and his solicitors were put on reasonable inquiry into the second named defendant’s possible involvement.

In those circumstances, it is submitted that, taking into account the two year period provided for under statute and the six month hold on time pending the issuing of authorisation by PIAB, the plaintiff’s claim was statute barred as against the second named defendant as of 20th April, 2013. However, the second named defendant was not added to the proceedings until 31st July, 2014.

It is submitted that the Supreme Court decision in Byrne v Hudson [2008] 3 IR 106 imposes an obligation on this Court to determine whether or not there were facts ascertainable from the Garda Abstract report as of 20th October, 2010 that ought to have put the plaintiff and his solicitors on inquiry. It is submitted that the Court in this context is not exercising any discretionary or interests of justice exercise or engaging in a balance of prejudice test as occurs in the UK, but rather, the Court must be satisfied before allowing the matter to proceed against the second defendant that the date of knowledge brings the plaintiff within the statutory time limit. In Byrne, Macken J. dealt with the issue of date of knowledge specifically in relation to whether the plaintiff ought to have ascertained the identity of a particular defendant, namely the third defendant in that instance. Macken J. stated as follows –

“Given the amendment to the Statute of Limitations 1957 by the provisions of s. 2 of the Act of 1991, as set out above, it is appropriate to commence a consideration of the law by seeking to ascertain whether the plaintiff can come within the provisions of s. 2(2)(a) of the Act, and whether the High Court Judge correctly found that he did so. The first “port of call” so to speak in seeking to determine a person’s knowledge for the purposes of s. 2(2)(a) is to discover from the evidence adduced in the High Court whether there were facts from which the plaintiff could have “observed” or “ascertained” the identity of the appropriate defendants, in this case the third defendant.”
Macken J. went on to conclude at paragraph 23 –
“It seems to me rather that the appropriate position first to be considered, at least in the present case, is whether or not the fact that the third defendant was an occupier of the premises in question was something ascertainable or observable by the plaintiff. If it was, then the plaintiff is obliged in the usual way to make this information available to the solicitor he employs for the purposes of enabling that solicitor to reach a view or a conclusion as to the correct defendant to be included in any proceedings commenced on behalf of the plaintiff. I am satisfied that on the uncontroverted evidence adduced before the High Court, on the hearing of the application, the occupancy by the third defendant was fully known to the plaintiff, and was therefore both observable and ascertainable by him, and that without any difficulty whatsoever. Further I am of the view that since the provisions of s. 2 are, in reality, an exception to the normal provisions concerning the obligation to commence proceedings for relief in respect of a tort causing personal injuries within a three year period, it is correct to apply the provisions of the section literally and not benignly or by an unduly lax interpretation. There is no suggestion in the Act of 1991 that a plaintiff is in some way to be forgiven for failing to furnish to his solicitor all of the facts which are within his direct knowledge, as here, so as to enable his solicitor commence proceedings against the correct defendant. It seems clear that, had the plaintiff done so in the present case, the information to enable the solicitor to do just that would have been freely and readily available within days of the incident occurring. It may well be that in certain cases, the ambit or nature of which it is not necessary to speculate upon, it would be appropriate to rely entirely upon a solicitor in respect of matters to be “ascertainable”, whatever about “observable”, when considering s. 2(2)(a) of the Act. But that is not a position which could apply in the present case.”
Counsel for the second defendant submits that the present case is even stronger on the facts as the plaintiff had solicitors acting for her at all relevant times, including on the 20th October, 2010 when those solicitors were in receipt of the Garda Report and statements. Further, even if the Court were to allow the plaintiff an additional period of time following receipt of the Garda report within which to seek an engineering report the plaintiff is still out of time as the commissioning of that report took a further 7 months. The second defendant contends that, as per the decision in Byrne, the relevant statutory provisions are not be interpreted in a benign or unduly lax way, and there is no persuasive argument before the Court that the plaintiff and his solicitor were not put on reasonable inquiry as and from 20th October, 2010.
SUBMISSIONS OF THE PLAINTIFF
The plaintiff submits that the assertion that the content of the Garda Abstract Report ought to have put the plaintiff or his solicitors on reasonable inquiry as to whether or not the second defendant had any involvement in the accident is misplaced. It is submitted that the statement of Ms. Collier and the Garda sketch of the incident suggests that the first defendant was liable having approached a bend in the road near the locus of the accident at excessive speed and going off the road.

Furthermore, the relevant Gardaí, who it is submitted are more knowledgeable than the other motorists and witnesses in relation to road surfaces, highlight only muck and debris, but do not identify the curvature or camber of the road as a possible contributory factor. The plaintiff was only alerted to the camber issue upon receipt of the engineering report and it came as a surprise. In addition, it is submitted that the mud and debris on the road at the time of the incident was cleared away that evening by the second named respondent and there was nothing for the plaintiff or his solicitor to investigate at that point in time.

The plaintiff submits that another relevant factor in terms of assessing the date of knowledge is that the first named defendant initially conceded liability. While it is accepted that this was done in error and later retracted, the plaintiff submits that for a considerable period of time after the accident there was no indication that the first defendant was not going to concede liability and allow the matter to proceed as an assessment of damages only.

It is submitted that it has been held in several cases that the Statute does not begin to run until a plaintiff to a case has knowledge of attribution i.e. that the injury was caused by the act or omission involved and knowledge that there was a connection between the injury and the matters alleged to have caused the injury. The plaintiff’s knowledge of a factual situation is not enough.

In Boylan v Motor Distributors Ltd (1994) 1 ILRM 115 the plaintiff, who worked with her husband at a family- run plating firm, had been injured while assisting the driver of a delivery van to unload goods. Her right ring finger was caught in the van door and had to be amputated from its top joint. Proceedings were initially commenced against the driver’s employer only. However, following an engineer’s report which highlighted a design defect in the hinge mechanism of the van door, the plaintiff sought to join Motor Distributors and Daimler Benz. A preliminary issue arose as to whether the plaintiff was statute-barred in pursuing this claim. Lynch J. held that it was reasonable for the plaintiff’s solicitor not to request an inspection of the van and a report by an engineer until requested to do so by senior counsel. It was held that the plaintiff’s date of knowledge that her injuries were attributable to the negligence of the defendant only ran from the date her solicitor received the engineer’s report.

In Gough v Neary [2003] 3 IR 92, the Supreme Court considered s.2 of the 1991 Act in the context of a medical negligence action. Geoghegan J. quoted with approval the observations by Hoffman LJ in the English case of Hallam-Eames v Merrett Syndicates Ltd [1996] 7 Med L.R. 122 that –

“It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know ‘the essence of the act or omission to which the injury is attributable’ (Purchas L.J. in Nash v. Eli Lilly & Co. [1993] 1 W.L.R. 782, 799) or ‘the essential thrust of the case’ (Sir Thomas Bingham M.R. in Dobbie v. Medway H. A. [1994] 1 WLR 1234 or that one should ‘… look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based’ (Hoffmann L.J. in Broadley v. Guy Clapham & Co. [1994] 4 All E.R. 439).”
In Fortune v McLoughlin [2004] 1 IR 526 it was held that the word “attributable” in s. 2(1)(c) of the Act of 1991 was not satisfied by the plaintiff’s knowledge of the factual situation. McCracken J. stated at paragraph 16 –
“I cannot accept the defendant’s contention that the word “attributable” in s. 2(1)(c) of the Act of 1991 is satisfied by the plaintiff’s knowledge of the factual situation. The knowledge referred to in that subparagraph is knowledge of attribution, in other words knowledge that there was a connection between the injury and the matters now alleged to have caused the injury. This is a connection which the plaintiff did not make in this case. If a plaintiff is to have knowledge within the meaning of s. 2(1)(c) of the Act of 1991, she must have knowledge at least of a connection between the injury and the matters now complained of to put her on some inquiry as to whether the injury had been caused by the matters complained of. At what stage she is put on inquiry must be a matter to be determined in each case…”
In the present case, it is submitted that the Court must consider the plaintiff’s date of knowledge of the five facts set out under s.2(1)(a)-(e) of the 1991 Act. It is clear that the plaintiff suffered a very serious injury and so (a) and (b) do not fall to be considered in any detail. In regard to sub-section (c), it is submitted that the plaintiff did not have any knowledge that his injuries may have been contributed to by the negligence and breach of statutory duty of the second named defendant until the engineer’s report was received on 29th August, 2013 and this is the earliest date of knowledge. It is submitted that (d) does not need to be considered in detail in the present case as the plaintiff was at all times aware of the identity of the entity responsible for the public road, while (e) is of no relevance.
In light of the foregoing, it is submitted that the plaintiff’s date of knowledge was 29th August, 2013, when the engineering report was received, and the proceedings against the second named defendant are therefore not barred by the Statute.
DISCUSSION
Section 7 of the Civil Liability and Courts Act 2004 prescribes that the limitation period for actions claiming damages in respect of personal injuries caused by negligence, nuisance or breach of duty is two years from the date of accrual of the cause of action or date of knowledge of the cause of action. It is accepted by the parties to the present case that the date of knowledge in relation to the potential involvement of the second named defendant came after the date of the road traffic accident which caused the injuries. The primary question for this Court is to determine the correct date of knowledge which, in law, a plaintiff is deemed to possess.

Section 2 of the 1991 Act states that the ‘date of knowledge’ will be the date on which the plaintiff first had knowledge of the facts as set out at sub-section (1)(a)-(e). Of most significance to the present case is sub-section (c), namely the date the plaintiff knew “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.” The second defendant contends that this was on 20th October, 2010, when the Garda Abstract Report was made available to the plaintiff’s solicitor and his action against the second named defendant is therefore statute-barred.

The plaintiff, on the other hand, contends that there is nothing in the Garda Report which ought to have placed him or his solicitor on reasonable inquiry of the second defendant’s potential involvement. It is submitted that this only came to light upon receipt of an engineering report which highlighted the curvature and camber of the road as potential contributory factors.

I have carefully considered the submissions of both parties, and in particular the content of the Garda Abstract Report, and am satisfied that the plaintiff’s date of knowledge that the injuries he suffered were attributable in whole or in part to the acts or omissions of the second named defendant was no later than when the Garda Report was received on 20th October, 2013. I am satisfied that it is reasonable to expect that the plaintiff and/or his solicitor were aware of the potential involvement of the second defendant as and from this date.

The statements of two gardaí contained in the report raise the issue of the condition of the road as a possible contributory factor to the unfortunate accident which occurred. While the statements of the relevant motorists as to the condition of the road conflict with the garda statements, in my view this controversy as to the state of the road ought in itself to have put the plaintiff or his solicitor on inquiry as to the potential involvement of the second named defendant. Furthermore, this was a highly unusual accident, whereby two cars left the road in unexplained circumstances within a very short space of time, with the drivers contending that they felt they had no control over the vehicles. The Court accepts the submission by counsel for the second defendant that, following an accident of this sort, further inquiries ought to have been carried out by the plaintiff which may have identified any one of a number of factors, such as inadequate lighting, road curvature, camber, or spillage, as a contributory factor. Alternatively, any further inquiries may well have failed to identify any aspect of the road condition or any act or omission of the second named defendant as a contributory factor. Whatever the outcome of any such inquiries, I am satisfied that they ought to have been carried out upon receipt of the Garda Abstract Report in order to assess the potential liability of the second named defendant.

The plaintiff relies on the decision in Boylan where Lynch J. held that the date of knowledge in that case was when the engineer’s report was received. However, the facts of the Boylan case are distinguishable from the within proceedings. There, the court held that the plaintiff did not know and could not reasonably be expected to know that her injury might have been caused by a design defect in the hinge mechanism of the van door in which she trapped her finger. In my view, the potential liability of the party sought to be joined in Boylan related to a highly specialised and esoteric area of expertise, namely the design of vehicle door hinges. While road curvature and camber is equally a specialised discipline which would require the input of an engineer, the fundamental questions raised as to road condition by Gardaí, who the plaintiff accepts are experts in road safety matters, ought to have alerted the plaintiff to the potential liability of the second named defendant and prompted further inquiry, particularly having regard to the highly unusual circumstances of the accident.

The plaintiff also referred the Court to a number of English authorities and made reference to section 33 of the UK Limitation Act 1980 which confers on the courts in that jurisdiction a statutory discretion to disapply the relevant limitation periods. The UK courts are required to consider factors such as prejudice caused to the defendant and the equity in allowing or disallowing a party to be joined to a case outside of the time limits. However, as submitted by counsel for the second defendant, no such provision exists in this jurisdiction and, as set out by Macken J. in Byrne, the Court is required to apply the relevant statutory provisions “literally and not benignly or by an unduly lax interpretation”.

The Court is satisfied in all the circumstances of this case that the plaintiff’s date of knowledge as set out in s.2(1) of the 1991 Act was no later than 20th October, 2010. It was at this point that the time limit as set out in the Statute started to run and the plaintiff’s proceedings against the second named defendant are therefore statute-barred. The plaintiff’s claim against the first named defendant remains extant.
DECISION
For the reasons set out above, the Court directs that the second named defendant be released from the proceedings and the matter should proceed as against the first named defendant only.

Murray v Budds

[2015] IECA 269

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 19th DAY OF NOVEMBER 2015:

1. Before this Court are two appeals from interlocutory orders made in the High Court, the details of which I shall shortly set forth. The proceedings themselves comprise a claim for damages for professional negligence and/or breach of contract by the defendant firm arising from its retainer to defend the plaintiff at Naas Circuit Criminal Court against a charge of possession, with intent to supply, of a significant quantity of heroine. He was convicted of that offence on the 11th February 1999 and received a seven year sentence of imprisonment from which he was released in September 2004. I should add that the plaintiff was unsuccessful in two separate appeals against his conviction to the Court of Criminal Appeal. The first appeal in 2000 was based on a number of alleged errors on the part of the trial judge. His second appeal was heard in June 2005 after his release from prison, and was based on the alleged failure of his solicitor to adequately and properly prepare for his trial, and the failure of both solicitor and counsel to pay heed to his instructions during the course of his trial. As I have said, neither appeal succeeded.

2. He commenced these proceedings by way of Plenary Summons on the 2nd February 2005, being just within a period of six years from the date of his trial, being the relevant period under the Statute of Limitations, 1957 as amended, provided that the claim is not one in respect of personal injuries. That reservation assumes some significance in one of the appeals before the Court, as we shall see.

3. Because there are two appeals – one by each party to these proceedings – I will refer to the parties as plaintiff and the defendant, rather than cause confusion by referring to them as appellant and respondent.

4. The plaintiff’s appeal is against an order of Charleton J. dated 20th April 2009 whereby he ordered:

(a) that the proceedings be struck out as an abuse of process because, being an action alleging professional negligence, it was launched without first ascertaining that there were reasonable grounds for so doing by obtaining appropriate expert evidence to support it; and
(b) further ordered that the plaintiff pay the defendant’s costs of the motion when taxed and ascertained.

5. The defendant’s appeal is against an order of Clark J. dated 23rd of November 2010 whereby she:
(a) permitted the plaintiff to amend his pleadings in order to introduce a new claim for “loss and damage in the week of the 3rd to 10th February 1999” the particulars of which loss were that “the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be”;
(b) declined the defendant’s’ application to strike out the proceedings in their entirety on the basis of section 3 (1) of the Statute of Limitations (Amendment) Act, 1991; and

6. Before addressing the appeals themselves, some background narrative would assist an understanding of the basis for permitted claim in negligence, and the loss and damage said to have been sustained. The plenary summons was served on the defendants in January 2006. The Statement of Claim was delivered in June 2006. It contained many allegations in relation to the defendants’ handling of his case and their preparation of his defence at trial. There is no need to set out those allegations extensively, but merely to refer to one of the complaints which is now the only complaint which remains relevant to the plaintiff’s claim following the amendment permitted by the said order of Clark J., namely that they failed to retain and instruct Counsel in a timely fashion, indeed until the night before the trial was scheduled to commence. Clark J. permitted the plaintiff to amend his claim in the manner which I have described in paragraph 5 above, but struck out the remainder of his claims relating to the conduct of the trial itself and his conviction, on the basis that they represented a collateral attack upon the previous decision of the Court of Criminal Appeal.
7. The allegation that Counsel was retained by the defendants only on the evening before the plaintiff’s trial is pleaded in the Statement of Claim as follows:

“(v) although the defendant’s solicitors had nearly two years to prepare the trial, the defendant found himself the weekend before the trial without counsel. Such was his panic that he endeavoured to contact counsel on his own but unsuccessfully. Indeed, when he met his instructing solicitor at Naas the day before his trial, there was still no counsel appointed. It was only on the evening of the same day that he was introduced to his new legal team, and a consultation lasting around 30 minutes was held.”
8. It appears that after the defendant firm was first instructed by the plaintiff, a particular experienced Senior Counsel was retained and a consultation took place with him in April 2007. In due course a trial date was fixed for February 1998 but the trial was postponed to a later date, presumably to February 1999 when the trial in fact took place. The plaintiff has stated in Replies to Particulars that he was not made aware of the reason for the postponement of his trial but he goes on to state that “[he] believes that the trial was postponed due to the fact that the defendants were completely unprepared for a trial at that time”. It appears to be common case that the particular Counsel retained was heavily engaged in another lengthy trial by February 1999 and was therefore unavailable to represent the plaintiff. His complaint essentially is that despite knowing for some time that Counsel would be unavailable, no new Counsel was engaged to defend the plaintiff until the day before the trial was due to take place. The Defence delivered by the defendants contains a denial that counsel was retained only on the night before the trial.
9. I believe that I have provided sufficient by way of background in order to understand the rather limited basis on which Clark J. allowed the plaintiff’s claim to be amended, namely to a claim for “loss and damage in the week of the 3rd to 10th February 1999” arising from the fact that “the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be”. That is now the nature and extent of the plaintiff’s claim, and there is no cross-appeal by the plaintiff against the order striking out the remainder of the plaintiff’s claims as being an abuse of process. The defendants say that the only claim that has been permitted to be litigated is a personal injuries claim to which only a two year limitation period applies, and is therefore statute-barred, and should be struck out, firstly because it is clearly statute-barred and cannot succeed, and secondly because the type of injury in respect of which compensation is sought, namely “worry and stress” is not one for which damages can be awarded, absent some recognised psychiatric injury.
The defendants’ appeal:
10. As I have said, the defendants’ appeal is from an order of Clark J. made on the 23rd November 2010 whereby she permitted the plaintiff to amend his claim in the manner described, struck out the remainder of his claims as an abuse of process, and directed that any issue on the statute of limitations on the amended claim should be addressed by the trial judge. That motion first came before Clark J. in December 2008. Having heard the parties’ submissions she expressed certain views as appear below in paragraph 12 and put the matter back. Between that date and it coming back before her, the defendants had brought a further motion to have the proceedings struck out on the basis of the doubt expressed by Clark J. that a professional negligence action may not be commenced in the absence of an expert opinion having been obtained showing a basis for such a claim. That matter was determined by Charleton J. in the defendants’ favour on the 20th April 2009, and is the subject of the plaintiff’s appeal which I shall address in due course. There is further procedural history but none that is particularly relevant to the present appeals.

11. The defendants’ motion to strike out the plaintiff’s claims had come before Clark J. on foot of a notice of motion dated 5th March 2007 in which the defendants sought to have the plaintiffs’ claims (as then pleaded) dismissed as being statute-barred, and/or on the basis of inordinate and inexcusable delay, and/or as an abuse of process on the basis of being a collateral attack upon the decision of the Court of Criminal Appeal, and/or finally on the basis that the plaintiff’s statement of claim (as then pleaded) disclosed no reasonable cause of action.

12. As already explained, Clark J. acceded to the application based on abuse of process, but permitted the plaintiff to amend his claim. In her judgment, she stated at paragraph 10 thereof:

“Having heard submissions from both parties, I indicated that the proceedings as constituted did indeed represent an impermissible collateral challenge to a decision of the Court of Criminal Appeal and that the application would succeed on that ground. However, I recommended that if the plaintiff confined his claim to the alleged upset claimed for the short period before the trial when he became aware that his original counsel with whom he was familiar would not be available to represent at the trial, and that no substitute senior counsel had been located or briefed, then he might possibly have a claim, but that the claim as constituted would fail. I also expressed doubt as to the propriety of commencing a negligence action against a professional without first obtaining an independent opinion from an expert in the area stating that the actions of the solicitor in question fell below the expected professional standard in such circumstances. The Court expressed its understanding that a practice direction to this effect existed.”
13. The doubt expressed by Clark J. in the final sentence quoted above is what led to the motion which was heard by Charleton J. and which I have referred to in paragraph 10 above. In addition, following the judge’s suggestion, the plaintiff issued a motion seeking to amend his claim. That motion came before Clark J. on the 21st April 2010, and led to the judgment and order now under appeal.
14. Her judgment indicates that when the amendment application came before her, counsel for the plaintiff accepted her ruling that the claims as originally pleaded represented a collateral attack on the decision of the Court of Criminal Appeal, and stated that the limited claim now being advanced was “not a new claim but rather a modification of the original claim outlined in the plenary summons which was issued … within six years of the events complained of”. Her judgment goes on to note counsel as stating that the plaintiff does not claim any out of pocket expenses “but seeks damages for the mental distress suffered by the alleged professional negligence/breach of contract of the defendant”.

15. I should add at this point that the amendment first sought to be made by the plaintiff claimed that the worry and stress which he suffered during the week from the 3rd to the 10th February 1999 in advance of his trial “constituted an invasion of his constitutional right to fairness and justice”. The defendants submitted that this amounted to dressing up a claim for personal injuries (i.e. mental distress) as a constitutional tort in order to escape the clutches of s. 3 of the Statute of Limitations (Amendment) Act 1991, as amended.

16. In reaching her conclusions, Clark J. stated as follows:

“17. The Court has a wide discretion pursuant to Order 28 of the Rules of the Superior Courts 1986, to amend or alter pleadings to do justice between the parties and to determine the real questions in controversy between the parties. It seems to this Court that it is now clear that the only issue in controversy between the parties is the issue of mental distress and upset alleged to have been suffered by the plaintiff in the period between when he was made aware that his expected counsel would not be available to represent him or to have a further consultation with him and his trial which was listed for a week later [sic]. He alleges that during that week he was’ messed about’. This is not a collateral attack on the decision of the Court of Criminal Appeal to the effect that the trial was fair and that the plaintiff was adequately represented but rather recites the ingredients – subject to proof – of a claim for negligence and breach of contract. It is no function of this Court to determine the merits of that claim. That function falls to another judge. The claim the plaintiff makes is that due to the lack of communication with his legal representative he suffered distress during the period that he was in limbo when he had no idea who would represent a matters forthcoming trial. The issue will be whether this constitutes professional negligence and breach of contract.”
18. It is now established that in certain circumstances where a contract has been established, the negligence of a solicitor in the performance of that contract to provide professional services can ground a claim for distress provided that the claim passes the test of foreseeability. See Hamilton-Jones v. David & Snape (a firm) [2004] 1 WLR 924; Farley v. Skinner [2002] 2 AC 732; Heywood v. Wellers [1976] QB 446 or that damages for distress can arise from breach of contract since Jarvis v. Swan Tours [1973] 1 Q.B. 233. See also, Hussey v. Dillon & others [1995] 1 I.R. 111.

19. It is not, however, open to the plaintiff to plead an ill-defined constitutional tort in the manner sought or indeed at all at this stage of the proceedings. The issue of whether a plaintiff on the facts of this case or indeed at all, can plead a constitutional tort against an individual rather than an organ of the State is not one which falls to be determined in this case. The Court adopts the dictum of Barrington J in McDonnell v. Ireland [1998] 1 I.R. 134 where at p. 148 when he stated:

‘constitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action.’

20. In all the circumstances, I do not believe that it is appropriate for the plaintiff to be permitted to ground his claim for worry and distress in the guise of a constitutional tort. If he has a cause of action is lies in the perfectly well recognised tort of professional negligence. I am prepared to allow a limited amendment to determine the real questions in controversy between the parties which is confined to a claim for ‘loss and damage in the week of the 3rd to the 10th February 1999 as a result of the defendants‘ negligence and breach of duty’. Particulars of loss and damage: – ‘the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who is counsel would be.
21. While the defendants seek to resist any amendment to the proceedings on the basis of the provisions of the Statute of Limitation (Amendment) Act, 1991, in particular, section 3 (1), as amended, and further seek to have the proceedings struck out on that basis, the Court will not accede to that motion as to do so would deprive the plaintiff of any opportunity to pursue his asserted and now limited grievance. Courts must be slow to use their inherent power to strike out proceedings in their entirety unless it is clearly evident that the claim is unsustainable and bound to fail. Mindful of that restraint on the power to strike out proceedings, the limited amendment will be allowed with costs but the costs of the application will be in favour of the defendants. The issue of the application of the statute of limitations will be one to be determined by the trial judge.” [emphasis added]

17. The defendants submit on this appeal that while Clark J. struck out the claims as originally constituted as an abuse of process, she erred by allowing the plaintiff to amend his proceedings in the manner described, and by not simply striking out the entire proceedings.
18. Firstly it is submitted that a claim for damages for worry and stress simpliciter is not recognised within the law of tort, and that the trial judge erred by permitting such a claim to be litigated.

19. Secondly, it is submitted that even if such a claim is possible (which is denied) it could only be one for personal injuries, and is therefore in any event statute-barred given the time limit applicable to such claims under s. 3 (1) of the Statute of Limitations (Amendment) Act, 1991 as amended. I leave aside any issue concerning whether the claim would first have to be brought to the Personal Injuries Assessment Board. It is to be noted that a personal injury action where the cause of action accrues before 5th March 2005 must be commenced not later than three years from the accrual of that cause of action, and where the accrual date is after the 5th March 2005, not later than two years from such accrual, as provided by s. 3 of the Act of 1991 as amended by s. 7 of the Civil Liability and Courts Act, 2004. In the present case it is submitted that it is beyond any doubt that the plaintiff’s new cause of action accrued not later than the 10th February 1999, and cannot possibly be any later date given the express terms in which the amendment was permitted.

20. Thirdly in so far as it is being argued by the plaintiff that the stress and worry results from the breach of contract of retainer of the defendants for his trial, it is submitted (a) that the plaintiff has identified no duty arising under that contract that has been breached, (b) that there cannot be implied into that contract a term that obliges the defendants to ensure that the plaintiff is not caused any stress and worry in the week prior to his trial, and (c) even if there is such a claim for worry and distress in this case arising from the contract of retainer, the accrual date for the alleged breach is still the 3rd February 1999 or latest 10th February 1999, and the six year limitation period for a claim in contract had passed by the date on which Clark J. allowed the proceedings to be amended. In that regard, it is submitted that the amendment amounted to an entirely new claim, and not simply an amendment to any existing claim which might be saved by the issue of the original proceedings on the 2nd February 2005.

21. The plaintiff has not delivered an amended Statement of Claim. But the factual basis subtending his amended claim (and with those facts being assumed to be proven for the purpose of the strike out application and this appeal) is clear from the affidavits filed on the defendants’ motion, and indeed from the plaintiff’s written submissions on this appeal. For convenience I will set forth that factual basis as it appears in the plaintiff’s written submissions as follows:

“The proposition of the Respondents in this Appeal is that on the facts of this case (which are disputed) he was subjected to unnecessary stress and aggravation in the week before the trial. Notwithstanding that he had been arrested and charged with a serious criminal offence in October 1996, no steps had been taken by the appellants to prepare for his trial. It is accepted that all persons facing criminal trial must endure fear and upset, but in this matter, the respondent believing himself innocent and conscious of the risks of a substantial custodial sentence became increasingly concerned in the week before the trial that no steps were being taken to meet his concerns. His fears were well grounded. Despite the period of time since his arrest, no directions or advice on proofs had been prepared; no detailed witness statement had been taken and finally there had been no detailed consultation with leading or junior counsel. The respondent in the week before the trial repeatedly sought an assurance from the appellants that matters were under control but received none. He did not meet his counsel until late in the evening of the day before the trial. These facts, if proven before a trial judge, could be held to constitute a disturbance of his peace of mind sufficient to justify an award of damages.”
23. The plaintiff submits that his claim is not simply one arising from some general anxiety before his trial, which might be expected of anybody facing such a trial, but is grounded on an alleged specific lack of preparation which was fundamental to the obligations upon the defendant firm by virtue of its retainer to defend him, namely the failure to have engaged counsel in a timely fashion, thereby unnecessarily causing him a level of stress and anxiety above and beyond that which to be expected of any person facing trial on serious charges. By making that distinction he seeks to escape the several authorities to which the defendants have referred this court, where a claim in tort for general worry and stress has been found not to exist, whether in contract or tort. I will come to some of those.
24. I should add at this point that counsel for the plaintiff has conceded that if the plaintiff’s claim is now to be considered to be a personal injuries action, then it is statute-barred. But he seeks to satisfy the court that it is a claim for damage resulting from breach of contract. In so far as the defendants have submitted that no such claim can be made under contract by reason of the general rule in Addis v. Gramophone Co Ltd [1909] AC 488, the plaintiff prays in aid certain passages from the judgment of Neuberger J. (as he then was) in Hamilton Jones v. David & Snape (a firm) [2004] 1 All ER 657 which, it is submitted, lend support to his submission firstly that Addis may no longer be considered to be as sound an authority as in the past, and secondly, that where one purpose of the retainer was to minimise that stress normally to be expected of a client facing a criminal trial, a breach of that contractual duty which causes additional stress and anxiety to the plaintiff can sound in damages.

25. The facts of the present case are of course very different to those in Hamilton Jones. That case involved an allegation of negligence against a firm of solicitors who acted for the plaintiff in relation to proceedings commenced by her husband relating to the couple’s children. An order was obtained prohibiting the husband from removing the children from the United Kingdom. However, due to a failure on the part of her solicitors, the Passport Office did not maintain the names of the children on their records beyond twelve months, and the husband was thereby enabled to obtain a new passport with the children’s names included on it, which in turn enabled him to remove the children from the United Kingdom while on an arranged unsupervised contact visit, thereby defeating the very purpose which she had sought to guard against when she retained her solicitors. It was on such facts that Neuberger J. carried out a lengthy examination of the legal principles in relation to the availability of a claim for worry and distress arising from a breach of retainer by a solicitor. On the facts of that case he concluded:

“It appears to me that both the claimant and the defendants would have had in mind that a significant reason for the claimant instructing the defendants was with a view to ensuring, so far as possible, that the claimant retained custody of her children for her own pleasure and peace of mind. It would, I think, be a relatively unusual parent who, in the position of the claimant in the present case, would not have had, and would not be perceived by her solicitors to have had, her own peace of mind and pleasure in the company of her children as an important factor. In these circumstances, subject to any further argument which the defendants might raise, I consider that the principles as developed in Watt’s case and in Farley’s case indicate that the claimant should be entitled to recover damages for mental distress.”
26. As far as the present case is concerned, however, one must bear in mind firstly the very different facts and circumstances which distinguish it significantly from Hamilton Jones. It can hardly be argued that when an accused person retains a firm of solicitors to defend him against a serious charge, the solicitor undertakes, inter alia, a duty to preserve the client from worry and stress. I do not read Hamilton Jones as going that far.
27. But in the present case one must have regard to the nature of the amendment which was permitted by Clark J. and the fact that she struck out all the other claims. The facts relied upon in the Statement of Claim were professed in that document to constitute a beach of contract or in the alternative negligence. They were struck out in their entirety as being a collateral challenge to the decision of the Court of Criminal Appeal. Clark J. stated in paragraph 20 her judgment:

“if [the plaintiff] has a cause of action it lies in the perfectly well recognised tort of professional negligence. I am prepared to allow a limited amendment to determine the real questions in controversy between the parties which is confined to a claim for loss and damage in the week of the 3rd to the 10th February 1999 as a result of the defendants’ negligence and breach of duty”.
28. This passage makes clear the nature and scope of the amendment permitted, and there has been no cross-appeal by the plaintiff against this part of the judgment. The permitted claim is a claim in tort only, and can only therefore be a personal injury claim. The fact that contract was pleaded as part of the claims originally made is no longer relevant since all of those claims have been struck out.
29. There is no doubt in my view that the claim permitted is statute-barred. I appreciate that no amended Statement of Claim has been delivered by the plaintiff, presumably because the order of Clark J. is under appeal, but it can be noted and had regard to that in its Defence to the Statement of Claim originally delivered, the defendants pleaded the statute. There have been cases where a defendant has attempted to have a plaintiff’s claim struck out ahead of the delivery of its defence, and that application has been considered to be premature, since a plea on the statute is a plea by way of defence. But here the position is clear. The plaintiff’s claim has been permitted by way of amendment where the cause of action accrued at latest on the 10th February 1999. That is not in dispute. It is now a new personal injury claim in tort. A two year, or at best from the plaintiff’s point of view a three year, limitation period applies. In my view, Clark J. ought not to have permitted an amendment of the claim in order to introduce a personal injury claim that was clearly statute-barred. She was already in possession of all the facts and circumstances said to give rise to that claim, as is clear from the very precise nature of the amendment permitted by her. On that ground alone I would allow this appeal and vacate that part of the order of Clark J. which permitted an amendment to the plaintiff’s claim.

30. There is, however, another important aspect to the appeal which should be addressed by reference to the judgment of Hogan J. in Walter and another v. Crossan and others [2014] IEHC 377. It is the entirely separate question whether, even if this claim was not statute-barred, damages for the alleged worry and stress during the week of 3rd February 1999 is recoverable at all, given the absence of any pleaded recognizable psychiatric injury. In Walter, Hogan J. examined the relevant case-law in this area both from this and the neighbouring jurisdiction with typical care and exhaustion, and concluded on the facts of that case that even though there was a duty of care owed to the plaintiff purchasers by the firm of solicitors acting for the builder of the house, the only damages claimed were for “mental distress, upset and inconvenience falling short of nervous shock or psychiatric injury” and as such were not recoverable. I appreciate that in Walter there was no contractual relationship between the plaintiffs and the solicitor firm and that the only remedy, if any, was in negligence predicated on a duty of care being owed. But in the present case, the claims based upon a breach of contract have been expressly struck out by Clark J., and cannot subtend the claim that was permitted by way of amendment. It is now solely a claim in negligence, and it seems to me in such circumstances that the damage being claimed are, as in Walter, in respect of a category of claim for which damages are not recoverable, namely mental distress, stress generally and worry, but short of any recognised psychiatric illness.

31. That being my conclusion, I am satisfied that having struck out all the plaintiff’s existing claims in the proceedings, Clark J. erred in permitting the plaintiff to amend his Statement of Claim by inserting the new claim for damages in negligence and breach of duty which are provided for in her order under appeal by the defendants.

32. I would therefore allow the appeal by the defendants against that part of the said order.

33. In view of these conclusions it is unnecessary to address the plaintiff’s appeal against the order of Charleton J. dated 20th April 2009 wherein he acceded to a motion by the defendants to strike out the plaintiff’s proceedings as an abuse of process on the ground that being an action alleging professional negligence it was launched without first ascertaining that there were reasonable grounds for so doing by obtaining appropriate expert evidence to support it. In my view it is unnecessary now to dispose of that appeal, save to say that if I was required to reach a determination I would have allowed that appeal because, while there is certainly authority to the effect that in cases alleging medical negligence against a doctor or other professional person, it would be an abuse of process or irresponsible to launch such proceedings in the absence of the plaintiff’s solicitor satisfying himself or herself that there were reasonable grounds for the allegations of negligence being made, I would not exclude the possibility that where the action is being contemplated against a solicitor for professional negligence, the plaintiff’s solicitor may not in every case require to obtain an independent expert opinion from another solicitor or counsel in order to form the relevant opinion that the facts of the case disclose a prima facie case, and that it is not irresponsible to commence the proceedings.

34. Every case will depend on its own facts, and a plaintiff’s solicitor ought to exercise caution in every such case. In any case where he or she has a doubt, prudence suggests that an opinion from another expert be sought in advance of commencement. I believe that such a view is consistent with what was stated by Denham J. (as she then was) when, having considered the views expressed by Barr J. in Reidy v. National Maternity Hospital [1997] IEHC 143, and those of Kelly J. in Connolly v. Casey & Fitzgibbon [2000] 1 IR 345, she expressed agreement as follows:

“While bearing in mind the important right of access to the Courts I am satisfied that these statements of law are correct. To issue proceedings alleging professional negligence puts an individual in a situation where for professional or practice reasons to have the case proceed in open Court may be perceived and feared by that professional as being unprofessional conduct”.
34. In so far as Charleton J. concluded (as the agreed note of his decision indicates) that “the advices of the plaintiff’s junior counsel did not fulfil the exacting requirements of obtaining an expert’s report on the merits or otherwise of the plaintiff’s claim against his former solicitors”, I would very respectfully disagree that this of itself was necessarily a basis for a finding of an abuse of process. However, it is unnecessary to reach a concluded view in this case, given that the appeal against the order of Clark J. must be allowed in any event.

Dignam v Health Service Executive

[2015] IEHC 295

JUDGMENT of Mr. Justice McDermott delivered on the 11th day of May, 2015
1. This is an appeal from an order of the Circuit Court (Her Honour Judge Linane) on 24th November, 2014, rejecting the defendant’s claim that the plaintiff’s case was statute barred by virtue of the provisions of the Statute of Limitations Act 1957 – 1991.
The History of the Proceedings
2. The plaintiff issued a personal injury summons on 7th August, 2012, against the defendants. The first defendant is the statutory body having control of Beaumont Hospital and the second defendant is sued in the capacity of the Chief Executive Officer of Beaumont Hospital, Beaumont, Dublin. The proceedings were later discontinued against the first defendant on 2nd November, 2012. The plaintiff’s claim is for damages for “upset, distress, psychological upset and injury” alleged to have been caused to him by reason of the negligence and breach of duty and statutory duty of the defendant, his servants or agents in and about the management of the Accident and Emergency Department of Beaumont Hospital and the care of his late wife, Mrs. Mary Dignam, following her transfer from St. Patrick’s University Hospital, Dublin to Beaumont Hospital. Mrs. Dignam was transferred on 11th June, 2010, and between 11th and 14th June was not provided with a hospital bed and spent three days or more sitting in a chair in the Accident and Emergency Department of Beaumont Hospital. She was then provided with a bed and treated in Beaumont Hospital, but unfortunately died on 20th June, 2010.

3. In the particulars of personal injuries set out in the summons, the plaintiff outlines in detail how upset and distressed he became at the sight of his late wife, who was extremely ill, as she was left to sit in a chair in the Accident and Emergency Department. The situation was allowed to continue despite numerous complaints to the hospital staff and authorities. The plaintiff contends that the hospital was fully aware of her deteriorating condition which had resulted in her transfer from St. Patrick’s Hospital to Beaumont Hospital in consultation with the gastroenterology team at Beaumont Hospital.

4. The plaintiff bases his claim on alleged negligence and breach of duty on the part of the second defendant, his servants or agents in that they (inter alia):-

(a) Failed to inform his late wife’s consultant at St. Patrick’s University Hospital that a bed would not be available at Beaumont Hospital for upwards of three days.
(b) Failed to ensure that his late wife was provided with a bed when admitted to Beaumont Hospital.

(d) Failed to provide her with an appropriate level of comfort.

(e) Failed to anticipate that leaving his late wife in a chair for up to three days would cause psychological upset and distress to the plaintiff:

(f) Failed to have any or any adequate or appropriately trained management or supervisory staff in place at the emergency department at Beaumont Hospital to ensure that the plaintiff’s deceased wife did not remain in a chair for upwards of three days:

(g) Failed to provide any effective care and support to the plaintiff’s deceased wife.

5. Letters seeking and furnishing particulars were exchanged on 5th October, 2012 and 26th November, 2013. Further particulars of personal injury were supplied on 4th July, 2014.
6. A defence was delivered on 29th April, 2014, in which it was pleaded as a “preliminary objection” that any claim brought by the plaintiff was statute barred because the personal injuries summons was issued after the two year period contained in the Statute of Limitations. The summons issued on 7th August, 2012, and the facts complained of occurred on or before 14th June, 2010. The defendant contends that a hospital bed was provided on 14th June.

7. The matter was determined before Her Honour Judge Linane on the basis of two affidavits of Ms. Katie McAuliffe sworn 31st July, 2014, on behalf of the defendant, and a replying affidavit of Mr. John Hennessey, Solicitor, sworn 7th October, 2014, together with discovery documentation furnished with an affidavit of discovery sworn on 16th October, 2014.

8. Following the order made by the Circuit Court on 24th November, a notice of appeal issued on 1st December, 2014, and the matter was heard by this Court on 20th April, 2015. The matter proceeded in the Circuit Court as an issue concerning the interpretation of s. 3(d) of the Personal Injuries Assessment Board Act 2003. However, the defendants on the appeal wished to rely upon two further grounds related to the processing of the application by the Personal Injuries Assessment Board. For that purpose, a supplemental affidavit was sworn by Ms. McAuliffe on 15th April, and Mr. John Hennessey on 20th April, 2015.
The Relevant Dates
9. A “Form A” application for assessment of damages under s. 11 of the Personal Injuries Assessment Board Act 2003, was completed and signed by the plaintiff on 11th June, 2012, and bears a stamp noting its receipt by the Injuries Board on 15th June, 2012. Mr. Hennessey, solicitor to the plaintiff, in his affidavit states that this application was sent by facsimile on 14th June, 2012, and therefore submits that the averment by the defendant’s solicitors that no application was made until 15th June, as stamped on the document received, was incorrect. A covering letter to the facsimile of the 14th June states that:-

“This matter is due to become statute barred by 20th June, 2012, therefore it is essential that we receive an immediate acknowledgment of the receipt of this application for the purposes of s. 50 of the Personal Injuries Assessment Board Act 2003.”
The letter was also sent by post and enclosed the “Form A” duly completed, a fee payment cheque in the sum of €45.00 and the medical report of Dr. Terence J. Hynes dated 12th June, 2012.
10. Dr. Hynes’s report on the plaintiff’s condition, having noted that his late wife died on 20th June, 2010, and that he had been depressed and felt traumatised by the circumstances of her death, stated:-

“It seems that Mrs. Dignam was five days on a trolley before she was admitted to a ward. By that time she lasted three days because of oedema of the brain i.e. fluid on the brain. She was in St. Patrick’s ten days before as she was very depressed. On 21.5.2010 I spoke with house physician Dr. Farron in St. Patrick’s. They decided to send her to Beaumont Hospital mainly because of oedema of lower limbs…”
11. The “Form A” as completed, stated that Mr. Dignam was bringing his application in his own capacity and as the representative of Jonathan Dignam and Caroline Farrell. He states that he is the husband and next friend of the deceased and that he suffered distress in the circumstances surrounding his wife’s death on 20th June, 2010 and:-
“The applicant makes the application on behalf of himself and his family.”
The brief details of the injury furnished in the appropriate column are “psychological injury-depression”.
12. The authorisation issued by the Personal Injuries Assessment Board on 18th June, 2012, under s. 17 of the Personal Injuries Assessment Board Act 2003 and 2007, to bring proceedings in respect of the plaintiff’s claim notes the date of the relevant claim to be 20th June, 2010. In a letter to the second defendant’s solicitors on 10th April, 2015, PIAB confirmed that “the claim was acknowledged as complete by the Board on 15/6/2012”. The defendant contends that the plaintiff’s cause of action arises out of the provision of a health service to a person, namely his late wife, when first received as a patient in the Accident and Emergency Department of Beaumont Hospital during the period 11th to 14th June, 2010, and that the cause of action falls outside the scope of the Personal Injuries Assessment Board Act 2003, by reason of the provisions of s. 3(d). Therefore, it is claimed that the application should not have been made to PIAB and should have been initiated within the two year period of limitation on or before 13th June, 2012. The plaintiff submitted in the Circuit Court that the cause of action was for personal injuries and he was obliged to initiate the matter by application to PIAB. Proceedings issued within six months of receipt of the authorisation and it is submitted that proceedings were initiated within the period of limitation as extended by s. 50 of the 2003 Act.
Section 3(d)
13. Section 3 of the Act insofar as it is relevant provides:-

“3. This Act applies to the following civil actions—

(a) …
(b) …

(d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to any person, the carrying out of any medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person).”

14. Section 3(1) of the Statutes of Limitation Act 1991, as amended by s. 7A of the Civil Liability and Courts Act 2004, requires that an action for personal injuries should not be brought after the expiration of two years upon which the cause of action accrued or the date of knowledge of same, if later.
15. Section 50 of the 2003 Act provides:-

“50. In reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified by the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act 1991, the period beginning on the making of an application under section 11 in relation to the claim and ending 6 months from the date of issue of an authorisation under, as appropriate, section…17….shall be disregarded.”
16. Under the Personal Injuries Assessment Board Rules 2004 (S.I. No. 219 of 2004) it is provided that in relation to any relevant claim, the date of receipt by the Board of an application under s. 11 of the Act and the making of an application under s. 11 of the Act for the purposes of s. 50, shall be the date on which the application in a Form specified in subrule (1)(a) containing the information specified in subrule(1)(b) is acknowledged in writing as having been received by the Board.
17. Insofar as there is a conflict between s. 50 in that it provides that the period of interruption of the running of the limitation period will commence on the making of an application and the statutory rules which state that the period of interruption commences following the acknowledgment of the receipt of “Form A”, the provisions of s. 50 must prevail (Frescati Estates Limited v. Marie Walker [1975] I.R. 177, per Henchy J. at p. 187 and Kiernan v. J. Brunkard Electrical Limited [2011] IEHC 44). In this case, the “Form A” was sent by facsimile to the Board on 14th June, 2012.

18. The defendant submits that the proceedings ought to have been commenced within two years of 14th June, 2010, as the normal period of limitation applied. It is submitted that the cause of action fell outside the scope of the Act by reason of s. 3(d) because it involved the provision of a health service to the plaintiff’s late wife and that accordingly, the period of limitation ran and was not interrupted in the manner contemplated by s. 50 in respect of a claim properly submitted to the Board. It is claimed that these proceedings should never have been submitted to the Board because they are exempted under section 3(d). Therefore, the proceedings ought to have been issued on or before 13th June, 2012 but were not issued until 7th August, 2012.

19. The plaintiff submits that the action does not arise out of the “provision of any health service to a person” and is a claim for personal injuries for psychological upset and distress as a result of the plaintiff witnessing his wife’s treatment at Beaumont Hospital and the failure to provide her with appropriate medical care and attention. It is submitted that in order for the health service exemption under s. 3(d) to apply, the service must be provided to the claimant. The plaintiff is not a person to whom a health service was being supplied between 11th and 14th June, 2010. Therefore, it is submitted that the plaintiff as a claimant for personal injuries was obliged under the 2003 Act to submit his claim to PIAB since his claim for personal injuries did not arise out of the provision of a health service to him. Consequently, it is submitted that the period of limitation was interrupted once the Form of application was submitted by facsimile on 14th June, 2012.

20. The learned Circuit Judge determined that the ordinary meaning to be given to s. 3(d) was that the plaintiff required a PIAB authorisation in respect of his application for damages for personal injuries as set out in the personal injuries summons dated 7th August, 2012, as his actions did not arise out of the provisions of any health service provided to him.

21. The defendant submits that since relatives of deceased persons are enabled to initiate proceedings and receive damages in fatal injuries cases by reason of negligence and breach of duty in the provision of health services to the deceased, and such claims are exempt from the requirement to obtain an authorisation from PIAB because of the exemption under s. 3(d), it would be illogical if the plaintiff’s claim were not to be similarly regarded as arising from a health service provided to a person who is being treated in Accident and Emergency. However, under s. 2 of the Act, “claimant” is defined as including the personal representative of a deceased where death is caused by a wrongful act, neglect or default under s. 48(3) of the Civil Liability Act 1961. It is clear that specific provision was made under s. 2 for persons suing as personal representatives in a fatal injury matter, thereby creating the nexus between the proposed plaintiff in such a case and the deceased patient to whom the health service was provided. No such legal nexus is created in the plaintiff’s case in which he initiated proceedings entirely on his own behalf based on his own cause of action in respect of personal injuries caused to him. I am satisfied that the exemption that might apply to the relative of a deceased patient who sues for the death of their relative by reason of negligence and breach of duty, in the provision of a health service is directly related to the treatment and service provided to the deceased patient as a result of which they died.

22. In Gunning v. National Maternity Hospital & Ors [2009] 2 IR 117, the plaintiff underwent a medical procedure during the course of which a forceps broke and one part of it lodged in her abdomen. The suppliers and the manufacturer of the forceps were sued in respect of a defective product, as was the hospital in which the event occurred. She made an application to PIAB in respect of the suppliers and manufacturers, but not as against the hospital because it was considered that that aspect of the claim was exempt from the PIAB provisions because of s. 3(d). On a motion to strike out the plaintiff’s proceedings against the hospital and on the plaintiff’s application for a declaration that the proceedings against the hospital were exempted under s. 3(d), O’Neill J., held (granting the plaintiff’s declaration) that the subsection described a number of cases in civil actions in the medical sphere to which the 2003 PIAB provisions did not apply. He held that s. 3(d) should be construed as applying to the factual circumstances of the action rather than to the specific legal cause of action. Having examined the facts and pleadings in the case, the learned judge stated:-

“9. The factual circumstances, out which the plaintiff’s personal injury claim arises, in my view, clearly occurred in the course of “…the carrying out of a medical or surgical procedure…” and are well within the provision of s. 3(d) of the Act of 2003. This conclusion would be sufficient to dispose of this application in favour of the plaintiff. Even if one were to adopt the approach of construing s. 3(d) of the Act of 2003, by reference to the specific causes of action pleaded or to looser categorisations such as “product liability claim”, “occupiers liability claim” or “employer liability claim”, the plaintiff would have to succeed in this application for the following reasons.
10. In this action the plaintiff alleges that the first named defendant was negligent on various grounds as set out in the particulars quoted above. Manifestly these grounds extend far beyond merely alleging that the forceps was a defective product. Even if counsel for the first defendant was correct in his submission that a defective product liability case was not caught by s. 3 (d) of the Act of 2003, this could only result in the striking out of these proceedings of that aspect of the plaintiff’s claim against the first named defendant and no more. I was not urged by counsel for the first defendant to adopt that approach.

11. In my view, the case as made by the plaintiff in her Personal Injury Summons comfortably falls within the terms of s. 3(d) of the Act of 2003.”

23. In Carroll v. Mater Misericordiae Hospital, the plaintiff was an in-patient under medication. She left her hospital bed unaccompanied and went to the bathroom. She became dizzy and fainted, suffering personal injuries. The defendants claimed that her action was statute barred as it should have been brought within two years. She applied to PIAB for authorisation to initiate the proceedings, which was granted. As a result, the proceedings were initiated in excess of two years beyond the date of accrual of the action. The plaintiff claimed that the case was not exempt under s. 3(d) and that she had taken the correct course and was thereby entitled to calculate the limitation period with the benefit of the extension permitted by s. 50.
24. Hedigan J. stated at para. 12:-

“Looking at the context in which “health service” is placed in the Act, whilst it certainly is separated from medical services as specified in the section, does that mean that nursing care is not to be covered by the exclusion clause? For that to be so, nursing care would have to be somewhat artificially excluded from the definition in s. (d) as defined as a service which is neither part of a health service nor the provision of a medical service. I find it difficult to accept such an argument in particular in the context upon which it is based here. As stated by O’Neill J. in Gunning…it is to the factual circumstances the court should look and not to any particular label the plaintiff puts upon the legal issues arising. Doing that, I cannot accept the argument of the plaintiff that the claim arises from the management and maintenance of the hospital. It seems apparent looking at the personal injuries summons and the reply to the defence that the plaintiff’s claim arises from the actions of the defendants, its servants or agents in prescribing certain medication for her. To succeed she would need to show that it was foreseeable that the affects of this medication would be such as was likely to make her dizzy and likely to faint if she got out of bed and walked, in this case to the bathroom. She would need nursing assistance in such circumstances. Medical evidence would need to be called in this regard…She was being treated for her illness with certain medication. It was arising from this treatment that, when she went to the bathroom unaccompanied, she felt dizzy and fainted. It seems to me, therefore, that the plaintiff’s claim is one that arises from a mix of her nursing care and her medical treatment. As such, it is an action which is covered by the exclusion provided in s. 3(d) and consequently, it is one to which the PIAB Act does not apply.”
25. In this case the plaintiff complains about the manner in which his late wife was treated between 11th and 14th June, 2010. The particulars of negligence and breach of duty alleged against the second defendant have already been set out.
26. As appears from the judgments referred to, the court must have regard to the circumstances in which the alleged cause of action is said to have arisen, and the pleadings in the case. I am satisfied that this case is not about any alleged defect in nursing or medical care or treatment to the plaintiff’s deceased wife. It concerns allegations of gross mismanagement of the Accident and Emergency Department at Beaumont Hospital in failing to provide a person whose transfer had been arranged with the medical staff of a sister hospital with a service consistent with her dignity and comfort, and which was so far below the level of comfort and dignity necessary to as to give rise to a reasonably foreseeable risk that her husband would be distressed, upset and psychologically disturbed at the condition in which she was kept for a period of in excess of three days. It is clear that the plaintiff does not complain of the care and attention provided by the nursing and medical staff who attended his wife, but of administrative negligence and breach of duty that caused her to be left on a chair for three to four days. Therefore, I am not satisfied that this claim is one which is properly exempted from the requirement to seek authorisation from PIAB under s. 3(d). However, that does not conclude the matter.
The Date of Accrual of the Action
27. It is clear from the facts that emerged in the subsequent affidavits filed on the appeal that the application to PIAB was made on 14th June, 2012, by facsimile. This was one day outside the period of limitation of two years within which an application ought to have been made to PIAB. A bed had been provided to the plaintiff’s wife on 14th June, 2010. The last date for making application to PIAB within two years, was 13th June, 2012 (see McGuinness v. Armstrong Patents Limited [1980] I.R. 289). Under the 2003 Act, the period of limitation is interrupted on the making of an application to the Board under s. 11. The application was made on 14th, the day after the expiration of the period of limitation and consequently, the plaintiff is not entitled to the benefit of s. 50 of the Act. It follows, therefore, that the plaintiff’s action is statute barred.

28. The court also notes that the application form “Form A” states that the relevant event occurred on 20th June, 2010, which was the day upon which the late Mrs. Dignam died. There is nothing in the pleadings or the affidavits submitted on this application to suggest that the plaintiff was unaware of the cause of any medical symptoms from which he claims to have suffered arising out of the events of 11th to 14th June, until 20th June or any date thereafter, and there is no evidence that the severe distress or upset from which he suffered at the time was not clearly apparent at that stage. Moreover, the report of Dr. Hynes does not indicate that the plaintiff suffered a recognisable psychiatric illness as a result of what happened, which gives rise to a difficulty of a different nature with which this judgment is not concerned. (See Devlin v. The National Maternity Hospital [2008] 2 IR 222.)

29. The defendant is entitled to succeed and the plaintiff’s claim must, therefore, be dismissed.

Farrell v Ryan

n [2015] IEHC 275

JUDGMENT of Mr. Justice Cross delivered on the 1st day of May, 2015
1. Introduction
1.1 The plaintiff was born on 9th January, 1939 and claims damages against the defendant as secretary and general manager of the Coombe Hospital, Dublin and as the representative of the hospital. The plaintiff’s claim is that on 25th September, 1963, some twelve days prior to the delivery of her first child, the defendants carried out a non-emergency unnecessary symphysiotomy.

1.2 The plaintiff claims that the said procedure was in the circumstances negligent and that as a result thereof, she has sustained significant personal injuries.

1.3 The case proceeded for fifteen days of evidence. I was greatly assisted by all the witnesses I heard and I entirely accept that every witness gave their evidence truthfully and I also accept the independent expertise of those witnesses called as experts. I recognise that this issue is one that has generated much emotional controversy which at times has filtered through to some of the experts. While the independence of one of the defendant’s experts was called into question due to alleged remarks made to another patient, I fully accept that this person gave independent expert evidence. Similarly, while one of the plaintiff’s expert witness unfortunately in her report described what occurred to the plaintiff as “abuse”. I also accept her evidence as being independent expert evidence.

1.4 The plaintiff who has worked for the vast majority of her life in various factories and as a waitress and homemaker, was married to a painter in May 1961. On 18th September, 1963, she was admitted to the Coombe Hospital on her first pregnancy with a believed estimated date of delivery of 7th September, 1963. Subsequent events clearly indicated that the estimated date of delivery calculated on the basis of the last stated menstrual period was an error.

1.5 The plaintiff signed a form stating:-

“I gave my consent for any operation or anaesthetic which may be necessary.”
1.6 The plaintiff was examined on admission and it was noted that the “Vx Eng” (head engaged in maternal pelvis) and x-ray pelvimetery was ordered. In the light of subsequent events, it seems probable that the notation that baby’s head was engaged was, in fact, incorrect. Nothing materially turns upon that inaccuracy.
1.7 The x-ray pelvimetery was reported as showing a: “generally contracted anthropoid, sub-pubic narrow. T.C.10.8. T.10.5. The foetus is small but there is some disproportion, also outlet is diminished.” “T.C.” which refers to the True Conjugate was stated in evidence to be “normally” 11.5cm and the plaintiff’s measurement was 10.8. The T. refers to transverse diameter which is stated as “normally” being 13.5cm but in the plaintiff’s case was 10.5cm. The sub-pubic arch was described as “narrow”.

1.8 It appears that on 20th September, 1963, there was an episode of regular uterine contractions for which the plaintiff was admitted to the labour ward but labour did not continue. There is some doubt expressed that the date, September 20th in the hospital notes might be a misreading of September 30th but this is on balance unlikely.

1.9 On 25th September, 1963, an examination under anaesthesia (EUA) was performed and at this examination it was noted “the head could not be made to engage in the pelvis. Symphysiotomy performed. Minimal bleeding. No difficulty. Good one inch gap obtained between symphysis.”

1.10 At the conclusion of the EUA, the symphysiotomy was performed by the Master of the Coombe at the time. The gap in the symphysis was stated to be one inch. I believe that the Master may have anticipated the possibility of performing a symphysiotomy based upon the pelvimetry prior to the EUA as the plaintiff recalls him saying something to the effect that they were going to help her deliver the baby. However, I find that the decision to perform the procedure was not made until the EUA was completed.
2 The Symphysiotomy Procedure and its Aftermath
2.1 The pelvic girdle is made up of three parts. At the back is the sacrum which connects with at its low end with the coccyx (the tailbone of the spine) and that at its upper most end with the 5th lumbar vertebra. At each side the sacrum articulates with an ipselateral innominate bone which, in turn, articulate with each other anteriorally at the symphysis pubis. The symphysis pubis is a strong ligament which is at the front of the pelvis between the ends of the innomiates.

2.2 Symphysiotomy involves an incision being made in length above the upper boarder of the symphysis pubis and the tissues are divided to allow a gap to facilitate vaginal delivery. The history of the procedure will be described further below.

2.3 The plaintiff says, and I accept, that she did not know that a symphysiotomy was going to be performed. She expected that her baby would be delivered. When she woke in some considerable pain, she was not told for some time that the baby had still not been delivered. She had a band around her waist and had to be assisted by a fellow patient to go to the toilet. While there, she had a very frightening experience in which she recounted and I accept that she felt the sensation of being “split apart”. The plaintiff was encouraged to walk the corridor after the symphysiotomy which she did though with difficulty.

2.4 On 3rd October, 1963, there is a note in the records documenting that the plaintiff had not started labour and it was questioned that she was “near term now”. Her abdomen was noted to be difficult to palpate and the question of whether the baby was breached was raised.

2.5 The plaintiff was readmitted to the labour ward on 6th October, at 6:.30pm, there were strong and regular contractions and she was given an injection for pain relief and at 5:45am on 7th October, 1963, she was delivered by mid-forceps delivery due to “failure to advance”. At this stage, a gap of half an inch was noted in the symphysis and the tight fit under the pubic arch was noted and it was documented that the pelvis “otherwise felt adequate”. Accordingly, assuming that the hospital notes are correct, the gap in the symphysis had reduced from one inch to half an inch by the time of the birth.

2.6 The delivery was conducted under general anaesthetic and the plaintiff delivered herself of a baby girl who was noted to be slow to revive and was transferred to the paediatric unit.

2.7 On 17th October, 1963, the plaintiff was discharged home having had her nylon sutures removed. There was a slight discharge from her symphysiotomy scar noted.

2.8 Every year, the Coombe Hospital published a detailed clinical report as to the births in that year. The report for 1963 indicated that in that year, symphysiotomy was carried out in five cases, four times on a primigravida (first birth) and ones on a multiparae. The operation was performed on three patients during labour and was followed by “easy delivery”. One patient had a caesarean section because of a breach presentation and a small pelvis. Symphysiotomy was done following the section. The plaintiff’s procedure is described as follows:-

“One patient had the operation two weeks before term. She had an easy low forceps delivery.”
2.9 In the notes to the report, the plaintiff’s case is summarised as follows:-
“Generally contracted anthropoid pelvis. T.C.10.8 T.10.5. Narrow sub-pubic angle. Symphysiotomy two weeks before term. Low forceps delivery without difficulty at term.”
2.10 It was also noted in the 1963 report that one of the five Symphysiotomies was a stillbirth which occurred in the case of a failed forceps delivery. This was in the case of a patient with a previous spontaneously delivery of a baby.
3 The effects of the procedure on the plaintiff
3.1 The plaintiff’s evidence and hospital notes confirmed that the plaintiff had one further pregnancy in 1968 and on 1st December, 1968, at 42 weeks gestation, she had a forceps delivery under general anaesthetic. The delivery was described as “easy, low forceps after preliminary episiotomy. Infant in good condition”.

3.2 The defendants contend that the symphysiotomy procedure does not result in any significant adverse effects. In particular, it was contended by Dr. Peter Boylan and Prof. Bonner that the performance of symphysiotomy is not associated with high rates of mortality or morbidity and that at the time of the plaintiff’s procedure it was safer than caesarean section from a maternal point of view and there was no difference in outcome from the foetal point of view.

3.3 In particular, the defendants contend that the plaintiff herself suffered no injuries. The plaintiff did not mention any problems that could be associated with symphysiotomy to her GP between January 1997 (when the records presently available begin) and August 2014. Indeed, her GP was unaware until around the time of this litigation that the plaintiff ever had a symphysiotomy. She attended at the Adelaide Hospital in 1988 for gynaecological problems which resulted in a hysterectomy being performed and did not make any reference to urinary incontinence. The plaintiff was in attendance in the Mater Private Hospital at the physiotherapy department in 1993 because of a road traffic accident and reported historic four year problems with her hip and in 2007, she also attended a surgery complaining of discomfort in her left hip.

3.4 However, I accept the plaintiff’s evidence of a lifetime of some physical instability. Some six months after the birth in 1963, the plaintiff developed a neurogenital prolapse. The plaintiff also developed incontinence. This incontinence is correctly dated back to the time of the catheter was removed after delivery. While some incontinence is associated with the aftermath of many births and while some of the plaintiff’s present incontinence may be age related, I accept the evidence of Prof. Cardozo that on the balance of probabilities, the incontinence was, at least, exacerbated by the symphysiotomy.

3.5 Ms. Alison Bourne, Chartered Physiotherapist on behalf of the plaintiff gave evidence various tests and found that while she had some fairly mild hip and back pain consistent with a woman of her age, that she does struggle to maintain stability in her pelvis and that she tested positively for pelvic pain tests.

3.6 Prof. McElwain, Orthopaedic Surgeon, who gave evidence for the defendant, vigorously contested the evidence of Ms. Bourne and insisted that the plaintiff had no instability. I note that the gap in the symphysis which was originally one inch after the procedure had narrowed to half an inch by the time of the birth and is now clinically within normal limits. Having heard all the evidence, I accept that in the plaintiff’s case, she is suffering from functional pelvic instability and has so suffered throughout her life since the first birth which I associate with the symphysiotomy but which the plaintiff believed, historically, was her “lot” following the first birth. It would be very easy, in view of the present normal measurements, to dismiss the plaintiff’s evidence as retrospective, but the plaintiff made her “complaints” about mild but continuing disabilities after her first birth to her friends at work, long before any question of legal proceedings arose. Indeed, it was only because that she remembered these complaints that Ms. Teeling was able to associate what she saw on the television programme with the plaintiff.

3.7 The validity or efficacy of the various follow up tests on persons who have undergone a symphysiotomy has been called into question. Indeed, one eminent surgeon in the Coombe, Dr. Feeney, at that time noted the fact that it is mostly satisfied patients who return to their doctor and tried to set in place a more objective system of monitoring the effects of symphysiotomy on his patients. I am not deciding on any general safety or the generally alleged possible harmful effect of symphysiotomy. What I am deciding upon is the effect this procedure had on this plaintiff. The procedure was carried out twelve days prior to birth and post operation, the plaintiff was required to walk up and down the corridor after the symphysiotomy had been performed, and experienced significant pain as a result prior to delivery.

3.8 Whether the plaintiff’s injuries are a general example of persons who undergo symphysiotomy or are particular to the plaintiff due to the timing of her symphysiotomy and what occurred thereafter is not for me to decide. However, I do accept that the plaintiff has suffered physically in the manner outlined above.

3.9 In addition, to the physical trauma, the plaintiff also suffered mental health sequelae. The plaintiff spoke graphically of the event when she went to the toilet in the hospital after the procedure and before the birth and felt that the two sides of her body were “on the floor”. She was also told after birth that she could not see her baby for some four days. She was unable to look after the baby after discharge and had to get relatives and friends to assist her. She did not bond or “attach” to baby as she had a right to expect and this was, at least, contributed to by reason of her inability to look after her baby after discharge. The plaintiff gave evidence, which I accept, of a lifetime of some distance from this child in contradistinction to her experience with her second child who was born in 1968.

3.10 I also accept that the plaintiff was traumatised by her experience and that she suffered flashbacks due to the event in the toilet. Whether this amounts to a Post Traumatic Stress Disorder as suggested by the plaintiff’s expert, Prof. Veronica O’Keane or should be classified as another psychiatric disorder, as contended by the defendants, is not really material.

3.11 After the symphysiotomy, the plaintiff suffered distress and anxiety and was very fearful of becoming pregnant. Her husband was even more fearful of this and resolved that their sexual activity should preclude pregnancy and in effect, the plaintiff says that she “tricked” her husband so that she could become pregnant again. Again, it would be easy to be somewhat cynical and associate these complaints with a retrospective belief fostered by associating with the “survivors of symphysiotomy”. However, this is another matter that was also raised long before these proceedings were contemplated by the plaintiff in her chats to her fellow workers in the cafeteria.

3.12 Notwithstanding what I accept was her lifetime distress the plaintiff, entirely untypical for her age and for the times, was obliged to return to work when her husband was unemployed due to an industrial dispute in the building trade in the mid 1960s. In essence, the plaintiff has been in regular and constant employment since she returned to work in 1964.

3.13 The plaintiff originally worked since the age of approximately 15, in a textile factory in Tullamore near where she then lived. She moved to Dublin and worked in the Urney’s Chocolate Factory and continued working therein, after her marriage, until the smell of the chocolates affected her adversely during the latter part of her pregnancy. When an industrial dispute in the building industry occurred in the summer of 1964, the plaintiff got a job as a textile supervisor and continued working until approximately six months prior to the birth of her second child in December 1968. After the birth of her second child, she returned to work with the factory until it closed in 1974 and then worked part time in the Green Isle Hotel until 1979 and from 1979 she worked in Jury’s as a waitress. She says allowances were made for her as she could not lean over with heavy trays at work.

3.14 With the closure of Jury’s Hotel, she is still working, elsewhere as a waitress, notwithstanding her age. As the eminent historian, Prof. Mary Daly, who gave evidence on behalf of the defendant stated:-

“She has a very interesting employment history, which would have been atypical at the time and I find it quite remarkable. We need to record stories of people like her because it is a working career that would have been untypical at the time.”
With that opinion, I respectfully agree.
4 Issues
4.1 The defendants plead there has been a prejudice due to the lapse of time between the instant and the bringing of the proceedings, that the proceedings are barred by virtue of the statute of limitations and that there was no negligence on behalf of the defendant.

4.2 Accordingly, the issues that have to be addressed on liability are:-

(a) prejudice;
(b) statute of limitations; and

5 Prejudice
5.1 The defendant contends that the proceedings should be dismissed on the inherent jurisdiction of the court to dismiss proceedings the court concludes would be unfair or unjust to require a defendant to meet. I accept that this jurisdiction which was recognised in O’Domhnaill v. Merrick [1984] I.R. 151 and Toal v. Duignan (No. 2) [1991] ILRM 135, is separate from the line of authorities stemming from Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 which involves an examination of whether any delay is inordinate, inexcusable and whether assuming it is both inordinate and inexcusable that the balance of justice favours dismissal.
5.2 Hogan J. stating in Donnellan v. Westport Textiles [2011] IEHC 11:-

“the speedy and efficient dispatch of civil litigation is of necessity an inherent feature of the court’s jurisdiction under Article 34.1.”
Hogan J. found support for that proposition in Article 6 ECHR and added:-
“One might add that this duty also extends to protecting the public interest in ensuring the timely and effective administration of justice.”
5.3 The test in O’Domhnaill v. Merrick can be summarised under two headings: (a) is there by reason of the lapse of time a real and serious risk of an unfair trial; and (b) is there by reason of a lapse of time a clear and patent unfairness in asking the defendant to defend the action.
5.4 I do not believe that the inherent jurisdiction of the court to dismiss proceedings for delay which is a clearly draconian measure is properly exercised outside the O’Domhnaill v. Merrick principles.

5.5 In other words the defendants must show that there is a real and serious risk of an unfair trial or a clear and patent unfairness in asking them to defend the action. The right to a speedy trial, as identified by Hogan J. in Donnellan v. Westport Textiles (above), must, I believe, be subordinate to the right to a trial in the first place.

5.6 The symphysiotomy complained of, occurred in September 1963. The personal injuries summons was issued on 6th September, 2012, some 51 years after the event. It is clear that none of the characters present on behalf of the hospital at the time is alive or available to give evidence of the defendant.

5.7 By letter dated 10th October, 2014, the plaintiff’s solicitor wrote to the defendants advising that the case was being reformulated and was proceeding on a single basis, namely:-

“That there was no justification whatsoever in any circumstances for the performance of a symphysiotomy on the plaintiff at the time it was performed.”
5.8 I will discuss the implications of that plea later under the issue of liability but notwithstanding that plea, the defendant contends that they are prejudiced in establishing that there was justification for the procedure. I do not accept that contention it is not for the defendant to establish justification, it is for the plaintiff to establish “no justification”. This is a very onerous burden indeed. In any event, the defendant had the benefit of a number of experts, at least one of whom was in practice at the time of the operation and I do not believe they have been in any way prejudiced in resisting the plaintiff on this point.
5.9 The defendants also contend that there is a general prejudice, given the absence of records, because of lack of knowledge of all the parties as to the development of the plaintiff’s complaints. I accept that the plaintiff did not make any complaints of symptoms related to symphysiotomy to her doctors but as I have indicated above, I also accept that her present complaints are genuine. Accordingly, I do not accept that there is any real prejudice to the defendant due to the absence of records or due to the lack of contemporaneous evidence of the development of the plaintiff’s complaints.

5.10 The plaintiff’s reformulation of her case by letter of 10th October, 2014, as discussed above, followed the reformulation by the plaintiff appellant in Kearney v. McQuillan & North Eastern Health Board [2010] 3 I.R. 576, Hardiman J. on behalf of the Supreme Court stated at p. 580 – 581:-

“(15) This formulation appears wholly to prescind from any complaint about the manner in which the symphysiotomy was carried out, as opposed to the decision to carry it out at all. It also seems to render irrelevant the matter of any contemporary records said to be missing, and the reason for their disappearance.
(16) This reformulation of the case was done in order to meet what would otherwise be a very strong claim on the part of the first defendant to have the action dismissed against it on the grounds of prejudice arising from prejudice arising from delay…

(17) …Counsel for the plaintiff conceded that the case, reformulated as it was, would be defeated if the first defendant could establish any circumstances in which in the circumstances prevailing in Ireland in the year 1969, and in the circumstances of this case, a symphysiotomy could have been justified by a consultant gynaecologist. In other words, the first defendant may, if the action is permitted to proceed, defeats the plaintiff’s claim on a hypothetical basis and will not be itself defeated because its defence by reason of the absence of Dr. Connelly and his consulting colleagues of the time can only be hypothetical.

(18) In those circumstances, it appears to the court that no remaining prejudice accrues to the first defendant by reason of the death of Dr. Connolly and the other doctors mentioned. In particular, the court is satisfied that the first defendant will continue to have available to it the defence suggested by the second of the principles laid down by Finlay C.J., in Dunne (an infant) v. National Maternity Hospital [1989] I.R. 91, at p. 109. This is as follows:-

‘If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.’
(19) It appears to the court that, by reason of the reformulation of the case, the first defendant is relieved of the necessity to establish specific indications, perceived by Dr. Connolly, and justifying the carrying out of the symphysiotomy. It is enabled to defend the case by establishing in credible evidence some realistic reason for the procedure in the circumstances actually prevailing in relation to the plaintiff in 1969….”
5.11 Following the above decision of the Supreme Court, I have no doubt but that there is no prejudice to the defendant in defending the trial given the extremely difficult task that the plaintiff accepts.
5.12 In the absence of the reformulation of the plaintiff’s case of October 2014, I believe that the defendant would have had a strong, if not unanswerable case on prejudice.

5.13 The defendant makes one further plea in relation to prejudice that due to the delay and the relative paucity of records and the difficulty in establishing the plaintiff’s state of mind, insofar as that may be necessary, and in particular the plaintiff’s knowledge of whether or not she was ever aware that a procedure called symphysiotomy had been performed that the issue of the Statute of Limitations cannot be fairly decided. I will turn to the issue of the statute of limitations in the next section but given the basis of my decision on the statute, I do not see any merit in the defendant’s submissions to dismiss the proceedings by reason of delay on this point.
6 Statute of Limitations
6.1 On 24th September, 1963, the Master of the Coombe Hospital informed the plaintiff that the hospital would help her to have her baby. An EUA was performed and a symphysiotomy was then performed. Initially, the plaintiff believed she had delivered her baby and was confused when she realised that this was not so. The plaintiff states that she did not know that the procedure that was conducted was called “symphysiotomy” until around the time of the broadcast of one or either of a television programme, either Primetime or Tonight with Vincent Browne.

6.2 She did state over the years that she informed various doctors at various hospitals that she was “cut across the end of my stomach” before the birth of her first born. She says that she was not aware of any procedure to her pelvis. The plaintiff put her post birth symptoms down to the normal complications of pregnancy and the birth with the aid of a forceps. In particular, she put down her incontinence to the pregnancy and birth and associated her psychological problems more with post-natal depression or general post birth problems than any specifically due to the procedure that was performed upon her.

6.3 It must be said, however, that a number of hospital notes in relation to examination of the plaintiff in the years following the symphysiotomy do refer to the fact of symphysiotomy, by name. The plaintiff believes that she merely told the doctors or staff that she had a procedure “down there” and submits that they must have concluded what was done was a symphysiotomy. The record keepers in the various hospitals do not, obviously, recall the plaintiff or what the plaintiff said in person but the witnesses do not believe that they would have recorded the word “symphysiotomy” without being told of it by the plaintiff. Indeed, one of the doctors said that at the time he would not have known what a symphysiotomy was. However, I prefer and accept the direct evidence of the plaintiff on this point that she did not use the word “symphysiotomy”, rather than the hypothetical recollection of what various witnesses believe they would or would not have done. I do not believe that the use or non-use, or knowledge or non-knowledge of the word “symphysiotomy” is material to the issue of the statute of limitations.

6.4 However, it is clear that in discussions with her fellow waitresses, the plaintiff did relate various injuries and woes to the circumstances of the birth of her first child. Her friend, Ms. Teeling was informed, at least on one occasion that the plaintiff after birth could not walk her baby, had difficulty in walking, had pain in her back, but the plaintiff stated that she thought that these symptoms were as a result of a forceps delivery or the like.

6.5 It is clear that Ms. Teeling, having been told on at least one occasion of the plaintiff’s post birth difficulties was in a position having watched a television programme in 2010 or 2011, to contact the plaintiff and suggest that she obtain her birth record and associate the stress of persons who had undergone symphysiotomy with what the plaintiff had told her. There was a Primetime programme on RTE about symphysiotomy in 2010. There was a programme on TV3 on Tonight with Vincent Browne in June 2011 which also dealt with the symphysiotomy issue. The plaintiff and Ms. Teeling both say that it was as a result of this programme not Primetime that Ms. Teeling rang, the plaintiff looked at the end of the programme at the time the credits were being rung, saw an address of a solicitor to contact and was advised by Ms. Teeling to get her hospital records. The plaintiff was also given a book about symphysiotomy in Ireland, “Bodily Harm” in 2011.

6.6 On other occasions when being examined by Prof. Keane, for the purposes of these proceedings, the plaintiff said that she was notified by Ms. Teeling following the programme which she referred to as Primetime.

6.7 As a matter of probability, I believe that the plaintiff was contacted by Ms. Teeling after the Primetime programme because by letter dated 20th February, 2010, shortly after the Primetime programme, the plaintiff first sought her medical records from the Coombe. This letter was received by the Coombe on 26th February, 2010.

6.8 The plaintiff, however, was not furnished with any records following the requests in February 2010. The defendant states that this was because the information furnished was not sufficient, in point of fact they were subsequently able to find the plaintiff’s records without all the information that they contend they ought to have been given. In any event, the defendants wrote to the plaintiff by letter of 23rd April, 2010, seeking further details including her date of birth and address at the time of confinement. The plaintiff received this letter but does not seem to have replied to it. In July 2011, after the TV3 programme, the plaintiff sent a second letter of request of her records and the plaintiff was then telephoned by Ms. Farrell on behalf of the defendants requesting further information and the records were furnished to the plaintiff in August 2011. The plaintiff then contacted the solicitor whose phone number appeared at the end of the Vincent Browne broadcast and attended a meeting of “survivors” and the proceedings herein were issued by personal injuries summons dated 6th September, 2012.

6.9 I find as a fact that as a matter of probability the plaintiff was not aware of the word “symphysiotomy” until around the time she was contacted by Ms. Teeling. I do not, however, believe that the plaintiff’s knowledge that the procedure she had undertaken was called “symphysiotomy” is of relevance to the issue of the statute of limitations. It is for that reason that I rejected the defendant’s claim of prejudice due to the inability to establish what the plaintiff did or did not tell various doctors as to the name of the procedure she underwent or her knowledge that she had undergone the procedure. What is of relevance to establishing the plaintiff’s date of knowledge is the provisions of s. 2 of the Statute of Limitations (Amendment) Act 1991.

6.10 I also find as a fact that contrary to the plaintiff’s own recollection now and contrary to the recollection of Ms. Teeling that Ms. Teeling probably had watched the Primetime broadcast in 2010. This must be the reason for the 2010 request for her records. The plaintiff has no explanation as to why she made her first request in 2010 but the coincidence with “Primetime” is too great in the circumstances.

6.11 I do not believe that the plaintiff or indeed Ms. Teeling are in any way trying to deceive the court in their evidence on this matter, I fully accept that the plaintiff does not normally watch either Mr. Browne’s programme or indeed Primetime.

6.12 The defendants plead that the plaintiff’s case is statute barred. It is common case that a two year time period now is the relevant period at present for commencing personal injury proceedings after the “date of knowledge”. A person’s date of knowledge is the date in which the plaintiff first had knowledge of certain facts as set out in s. 2(1) of the Statute of Limitations (Amendment) Act 1991, as follows:-

“(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

6.13 Section 2(2) of the 1991 Act provides:-
“(2) For the purposes of this section, a person’s 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 which it is reasonable for him to seek.

(3) Notwithstanding subsection (2) of this section –

6.14 It is clear, and I accept, that a plaintiff relying on the provisions of s. 2 of the 1991 Act, has the burden of establishing that he or she falls within the ambit of that section.
6.15 The correct approach to the provisions of s. 2 of the 1991 Act has been established by the Supreme Court in Gough v. Neary [2003] 3 IR 92 and in subsequent cases. In Gough, Geoghegan J. quoted with approval the judgment of the English Court of Appeal in Spargo v. North Essex Health Authority [1997] 8 MDLR p. 125 as follows:-

“(1) The knowledge required to satisfy s. 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) ‘attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;

(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

6.16 Irvine J. in Naessens v. Jermyn [2010] IEHC 102, indicated that the issue was to “ascertain the point at which it could be said that the plaintiff had sufficient knowledge” to “justify embarking on the preliminary to issue a writ”.
6.17 The plaintiff’s claim against the defendant is that she was subjected to an unnecessary symphysiotomy and indeed after the reformulation of her case that there was “no justification” at the time for the procedure. By accepting the authority of the Supreme Court in Gough v. Neary which I must, and of Irvine J. in Naessens v. Jermyn which I readily do, I conclude that the plaintiff’s date of knowledge did not start to run until she had actually received the records from the hospital. I believe that when her friend rang her as I found in 2010 this caused her to seek the records. At that stage, the plaintiff did not and could not have had the requisite knowledge, as defined in s. 2 above. It is only when the plaintiff had available to her the records to show that the symphysiotomy was indeed carried out twelve days prior to the birth of her eldest child and which also set out the circumstances of her confinement that potentially gave rise to the symphysiotomy that she could properly have been advised that she had a possible case against the defendants. It was only at that stage when she had the hospital notes that the plaintiff could be said to have knowledge to “justifying embarking on the preliminary to issue a writ”. I believe that up to her obtaining the requisite notes from the hospital, the plaintiff’s position was as in sub-paragraph (4) of the judgment in Spargo i.e. she may have thought that she knew the acts or omissions that she should investigate but it was quite possible that she was barking up the wrong tree. She may have been aware by that stage, in 2010, that the procedure carried on her was indeed a symphysiotomy but she was not armed with any information that could have justified her issuing proceedings against the defendants or going to a solicitor to instruct that solicitor to issue proceedings, until the furnishing of the records. The plaintiff’s date of knowledge commences in August 2011 when she was furnished the records is inside the two year period and accordingly, the defendant’s plea under the statute of limitations must fail.
7 Symphysiotomy and the “Dublin School”
7.1 The first successful symphysiotomy was performed in Paris in 1777 on a woman with “dwarfism” who had lost three previous children. Both mother and child survived the operation but the mother suffered significant after effects, difficulty in walking and urinary incontinence. The operation persisted only in small numbers in the ninetieth century but at the beginning of the twentieth century, a different and less invasive technique was perfected so that the symphysis fibres were not completely severed to reduce the chance of long term pelvic instability. Local anaesthesia replaced general anaesthesia and this was the technique used in Ireland in the mid-twentieth century.

7.2 Mr. A.W. Spain, Master of the National Maternity Hospital (1942 – 1948) introduced symphysiotomy to Dublin together with his successor A.P. Barry (Master, 1949 – 1955). Spain wrote in the Journal of Obstetrics and Gynaecology of the British Empire (1949) at p. 576 on “Symphysiotomy and Pubiotomy” and gave a history of symphysiotomy describing the paper as “Apologia based on the study of 41 cases”. In this Apologia, Spain wrote of the justifications or indications for the operation as being:-

(i) In the case in which the head enters the true pelvis but becomes arrested in mid-straight or at the outlet and cannot be delivered vaginally without the use of undue force or craniotomy.
(ii) In the case of a young woman in whom both clinical judgment and radiological knowledge of the pelvis advises “a little more room is required the whole way through, especially in the transverse diameter, to vaginal delivery. This latter indication would become operative in primigravida only when a Trial of Labour has failed to bring the head into the true pelvis or when the decision has been forced by premature ruptures of the membranes without the onset of labour in a reasonable time.

(iii) “Occasionally it may be justifiable to perform the operation in a mutligravidae before labour has set in.

7.3 Symphysiotomies became more popular in Ireland, especially in Dublin, because more and more births were taking place in hospitals after the end of the Second World War and because there was still a belief that caesarean sections were dangerous, especially repeat caesarean sections. This belief was being challenged by experts, especially from the United Kingdom but it undoubtedly is the case that the prejudice against repeat sections remained.
7.4 Dr. Barry, in the Irish Journal of Medical Science in February 1952, deals with the question as to when symphysiotomy should be performed and states:-

“The answer to this is comparatively simple. The operation should be carried out:-
(a) in all young primigravida with pelvic contraction undergoing trial labour when the natural powers are failing to overcome the obstruction;

(b) in all multigravidae with disproportion sufficient to cause obstruction;

(d) in the face of presentation with a chin posterior and in brow presentation were efforts that corrections have failed;

(e) in all young primigravida with contracted pelvis selected for trial labour in whom early rupture of the membranes are inertia occurs. In such cases it is better to do the operation too early than too late, as delay may result in loss of the baby…”

Barry went on and subsequently controversially to add:-
“Again it must be emphasised that the real value of this procedure is that it does not have to be repeated as does the caesarean treatment of contracted pelvis. It may be argued that no woman needs to have more sections than she freely desires, but in many countries, and especially in those countries containing a high percentage of Roman Catholics, sterilisation and contraception are repugnant to the patients…”
7.5 It is clear that the operation as performed on the plaintiff does not fall into any of the categories or indications for symphysiotomy as set out by Barry or Spain above. What was performed was known as a prophylactic symphysiotomy and it is important to consider how the original indications as set out by Spain and Barry were expanded upon to a certain extent, at least, in the Dublin hospitals.
7.6 In the Coombe Hospital between 1959 and 1962, a total of 42 symphysiotomies were performed and 17 of these were described as “prophylactic” (i.e. before labour). In the National Maternity Hospital between 1960 and 1962, 47 symphysiotomies were performed and of these 15 were elective pre-labour and 7 “on the way out”. In the Rotunda Hospital, uniquely, the procedure was used almost always “on the way out” only after a caesarean section in the anticipation of the next pregnancy where obstruction had been discovered.

7.7 Up to the mid-1960s, the maternity hospitals all over Britain and Ireland used pelvimetry x-rays extensively to determine the size and shape of the pelvis. The practice of pelvimetry was discontinued in Dublin from the mid-1960s. The new Master of the National Maternity Hospital, Dr. O’Driscoll (1963 – 1969) introduced “active management of labour” in which trial labour was persisted and it was discovered that many cases previously diagnosed as disproportion were, in reality, ineffective, inefficient uterine action. Pelvimetry was, in effect, “banned” by the Master in the Dublin hospitals. The National Maternity Hospital led the way in Britain and Ireland advocating “active management of labour” with the result that symphysiotomies rapidly declined to the extraordinarily rare occasions in which they would be utilised now. This rapid decline in pelvimetry and of symphysiotomies was followed in the other Dublin maternity hospitals.

7.8 I have already indicated that each of the Dublin maternity hospitals published annual reports and these annual reports were each year subject to frequently extremely robust discussion by obstetricians at meetings of the Royal Academy of Medicine. At these meetings, visiting experts usually from the Great Britain discussed, and commented upon and sometimes criticised the Annual Transactions of the Dublin Hospitals. The visitor’s comments were answered equally, if not more robustly, by Irish consultants. The full papers and the responses were then published. This whole procedure is one that must be welcomed and applauded as it gave active review and intellectual and practical challenge to the practices and procedures of the Dublin Hospitals. And this open discussion had, I accept, a mutual advantage to both native and visiting consultants.

7.9 I have read a number of these Annual Transactions which were published in the Irish Journal of Medical Science and indeed to borrow from Nietzsche, the consultants were philosophising with a hammer and testing concepts and conclusions by striking them to see if they were hollow.

7.10 These discussions as to the practices in the Dublin maternity hospitals took place on an annual basis. Following its re-emergence in Dublin, the role of symphysiotomy was acknowledged and referred to in the various English leading textbooks and references were made to the “Dublin School”. There is evidence that British experts who had been entirely dismissive of symphysiotomy and who contributed to the Dublin proceedings, did modify their view and acknowledged that symphysiotomy had a role, if a limited role, in childbirth. In the British textbooks, the indications for symphysiotomy never varied from the initial indications as set out in Spain and Barry above. Donald in Practical Obstetric Problems (1959), a leading Scottish obstetrician refers to symphysiotomy and states as follows:-

“One of the great advantages of symphysiotomy is that the pelvis is permanently enlarged, so that subsequent deliveries are likely to be much easier. In a city like Dublin where high degrees of parity are common, this is a factor of some importance as it helps to eliminate the needs for repetitive caesarean section with all its penalty.”
7.11 The indications for symphysiotomy in the Dublin hospitals expanded and developed from the initial strictures as set out in Spain and Barry and the practice of “prophylactic” symphysiotomy (symphysiotomy performed without any Trial of Labour because a conclusion had been reached that normal delivery would not be reasonably possible) started to develop in limited cases. The reason for this development is that the consultants believed that a combination of pelvimetry and a EUA could predict that vaginal delivery would not be either possible or easy in a number of limited cases and that on certain occasions a symphysiotomy was preferable to a caesarean section.
7.12 Feeney, the Master of the Coombe, stated in the 1954 report:-

“My experience of prophylactic symphysiotomy is limited to six cases which worked out satisfactorily, but I do not recommend it. The patient should have the benefit of carefully supervised Trial of Labour.”
7.13 Dr. Feeney was Dr. Stewart’s predecessor and he stated, one year later, in the 1955 report:-
“My experience of prophylactic symphysiotomy is limited to seven cases which worked out satisfactorily, but I do not ordinarily (emphasis added) recommend it. The average (emphasis added) patient should have the benefit of a carefully supervised Trial of Labour.”
7.14 The practice and use of symphysiotomy including prophylactic symphysiotomy was carefully recorded and subject to open and transparent review at the annual transactions as referred to above.
7.15 In 1956, Dr. Barry from the National Maternity Hospital stated “equally we believe that there is a small place for the elective operation…in the management of contracted pelvis in the young primagravida where the success of Trial of Labour seems at the outset to be a very unlikely proposition”.

7.16 The Rotunda Hospital which was most clearly not under the control of either a Catholic religious order or subject to the control of the Roman Catholic Archbishop of Dublin, symphysiotomies were performed “on the way out” after a caesarean section for prophylactic reasons in order to facilitate further vaginal deliveries.

7.17 I believe that the truth of the conflict between the British and Irish experts, specially in the 1951 transactions, was as stated in evidence in this trial, though couched in religious and biblical terms, more a question of a clash between native obstetricians defending Irish practices and visitors from the old colonial power.

7.18 In any event, what is at issue in this case is whether there was any justification for the procedure that was carried out on the plaintiff, twelve days prior to birth and without Trial of Labour.

7.19 I accept that medical practice evolves in the manner that Dr. Boylan indicated. There will always be a first time when any particular procedure is undertaken. It may be justified or not justified. In a trial for negligence, that issue is one for the judge to resolve on the evidence. The procedure may ultimately be proved to be successful and valid or be discontinued as unsuccessful and possibly dangerous but even if a procedure is subsequently discontinued or subsequently out ruled, it does not necessarily mean that that procedure could be described as negligent. I accept that medical science could not advance if such strictures were applied. Where any practice is a general one, of course, the defendants after the principles laid down in the Dunne case (below) cannot escape liability if the plaintiff should establish that the practice has inherent defects which ought to be obvious to any person giving the matter due consideration subject to the plaintiff also establishing the case as reformulated.

7.20 It is clear that this operation would not have been performed at the start of the introduction of symphysiotomy in Dublin by Spain and Barry as it did not fulfil any of the criteria set out by them and it would also not have been performed within a year or two, after 1963, as the ultimately extremely successful practice of “Active Management of Labour” had been established in Dublin.
8 The Plaintiff’s Case
8.1 The plaintiff’s case is that there was no justification for the carrying out of the procedure on the plaintiff some twelve days prior to birth without any Trial of Labour. The plaintiff contends that there is no support in the literature for antenatal symphysiotomy as a general and approved practice and that such references that they are merely the reports by those who performed them in the annual records of the hospital. It is further submitted if it were a general or approved practice that it was inherently defective as an approach and failed to meet a test of rational scrutiny and is indefensible.

8.2 Dr. Peter Bohan Simpkins who gave evidence on behalf of the plaintiff states that in his practice, he had never heard or seen a symphysiotomy being performed and that it was and remains an operation of last resort. Mr. Gareth Thomas stated that symphysiotomy was limited to an unforeseen crisis of outlet obstruction but a Trial of Labour is also required. The leading textbook at the time (Monroe Kerr’s Operative Obstetrics, Chassar Moir (Ed. 6th) was referred to in which Chassar Moir stated:-

“I cannot stress too strongly the importance of recognising the limitations of symphysiotomy. Pressed beyond its scope it has grave potential dangers.”
8.3 The plaintiff’s expert strongly disputed that there was any or any sufficient evidence of cephalopelvic disproportion which both Bohan Simpkins and Thomas insisted could only manifest itself in labour and this was a functional diagnosis which was not interchangeable with and could not be confused with a contracted pelvis which was merely an anatomical description.
8.4 Both of the plaintiff’s experts were of the view that a Trial of Labour was always indicated when there was a suspicion of CPD and essentially that a diagnosis cannot be made until a Trial of Labour occurs.

8.5 The plaintiff’s experts also contended that in a case of absolute disproportion of the pelvis, a caesarean section is always indicated and for moderate contraction the options are either Trial of Labour, induction of premature labour and caesarean section. It was submitted that a contracted pelvis or a small pelvis has no bearing on CPD whatsoever. Accepting the x-ray evidence as suggesting a moderately contracted pelvis and some disproportion, this would only give rise to a suspicion of CPD and not a diagnosis and therefore a Trial of Labour was the only reasonable option. If it was decided that the plaintiff could never deliver vaginally (a case of absolute disproportion) then a planned caesarean section was always required as symphysiotomy is never recommended for absolute disproportion.

8.6 Dealing with the argument that there was a “development” or expansion in the indications for symphysiotomy in Dublin during the late 1950s and early 1960s, and that prophylactic symphysiotomy without labour came to be accepted, the plaintiff contends that in her case, there was no basis for such a decision. The records indicate there is no evidence that could lead any reasonable doctor to conclude that there was absolute disproportion and therefore she could not have been delivered vaginally.

8.7 Further, the plaintiff submits that even if it was determined that she could not deliver vaginally and that there was absolute disproportion that the only reasonable course available in the literature was a planned caesarean section. It was further argued that CPD could not have been diagnosed prior to the onset of labour and that other alternatives e.g. forceps of vacuum extraction could have been available to deal with any difficulties in labour. The plaintiff further disputes that by 1963 repeated caesarean sections were or could be reasonable regarded as dangerous. The practice of prophylactic symphysiotomy was disapproved of by Chassar Moir in 1965 as a failure to “grasp the principles surrounding the treatment of disproportion”. The plaintiff also relies on the report of Dr. Hugo McVey (Treatment of Disproportion by Combined Lower Segment Section with Symphysiotomy, Irish Journal of Medical Science 1957) in which he refers to a case in which prophylactic symphysiotomy was performed:-

“Another point bears condemnation the patient was not allowed a Trial of Labour prior to symphysiotomy. If the plaintiff did have a vaginal delivery on her next confinement, the justifiable question could be asked: how do you know she could not have done it the first time? A question to which there is no answer because she was not allowed a Trial of Labour.
This brings us to the question as to whether there is any place for prophylactic symphysiotomy i.e. symphysiotomy before the onset of labour. It is unanimously agreed that the place of the operation is a minor or medium degrees of disproportion. Admitted that this minor degree of disproportion is clinically and radiologically proved can even the most expert obstetrician state that the disproportion will not be overcome by asynclitism and moulding of a foetal head. Only a Trial of Labour with concurrent assessment of uterine forces, moulding, asynclitism and lateral deviation of the foetal head to the sacral base will prove if the disproportion is insurmountable.

It is easy to diagnose a minor degree of disproportion at 38 weeks, perform an immediate symphysiotomy and await vaginal delivery two weeks later. If the patient then has a vaginal delivery, what is being proved? Precisely nothing. The question would be asked “how do you know she could not have had a vaginal delivery without a symphysiotomy?” The question to which there is no answer because there has been no Trial of Labour.”

9 The Defendant’s Case
9.1 The defendants contend that the decision to carry out the symphysiotomy appears from the notes to be based upon the pelvimetry and which revealed:-
“Generally contracted anthropoid subpubic narrow, true conjugate 10.8 transverse diameter 10.5. Foetus is small but there is some disproportion. Also outlet is diminished.”
9.2 As well as the pelvimetry, a clinical examination under anaesthetic (EUA) was undertaken and this EUA revealed “the head could not be made to engage in the pelvis”.
9.3 The decision to proceed to symphysiotomy was not made on an abstract diagnosis of pelvic dimensions on the basis that the pelvis was contracted but after analysis of the pelvimetry and the clinical examination.

9.4 The defendants contend that at the time of this delivery, it was acceptable to make a decision in advance of labour, either that the pelvis was contracted to such an extent, or that disproportion was present to such an extent, that one could not anticipate a successful Trial of Labour.

9.5 The defendants concede that reliance of pelvimetry fell out of favour and indeed that this lack of favour was pioneered in Dublin with a development of “active management of labour”. But, at the time of this birth, pelvimetry was widely used in Ireland and Britain to ascertain the viability or ease of vaginal delivery.

9.6 The defendant referred to the text of Donald (1960) as follows:-

“It is naturally a part of good antenatal care that major degrees of contracted pelvis should be evaluated long before the patient reaches term. Nowadays the main problem is confined to the lesser degrees in borderline cases. A foetal head engaged within the pelvis within the last four weeks practically rules disproportion out of court, for there is no finer pelvimeter than the foetal head, but where satisfactory engagement of the head is not present, disproportion is one of the numerous diagnostic possibilities…the stature of the patient is relevant, and although quite small women have good obstetrical pelvis, any woman whose height is less than five feet should have an accurate assessment of the pelvis made during pregnancy, and if she is a primigravida, radiological pelvimetry is indicated.”
9.7 X-ray pelvimetry continued to be used in 97% of UK maternity units up to 1995.
9.8 In Ireland, the use of x-ray pelvimetry was, in effect, “banned” in the National Maternity Hospital and active management of labour rapidly supplanted x-ray pelvimetry pre-labour as the 1960s progressed.

9.9 The defendants rely upon the evidence of Prof. Bonner who stated that the shape of the pelvis was anthropoid i.e. a pelvis in which the transverse diameter is reduced and Prof. Bonner, as well as Dr. Boylan, both stressed that the recorded features of the plaintiff’s pelvis were consistent with not merely mild to moderate rim disproportion but also moderate outlet contractions.

9.10 Accordingly, the defendants rely upon Donald (1960) Practical Obstetric Problems at p. 340 that Trial of Labour is “definitely not applicable”…where there is outlet contraction.

9.11 During the course of the EUA, the Master performed what is known as the Muller Muno Kerr manoeuvre which involves a clinical assessment of the pelvis and foetus and assess whether the head would enter the pelvis. The head would not engage and the Master decided to perform a symphysiotomy to enable the subsequent delivery to be vaginal.

9.12 The defendants accordingly contend by the standards and knowledge of 1963 that a combination of EUA and an analysis of x-ray pelvimetry could justify intervention prior to labour and could have done so and should have done so in the plaintiff’s case.

9.13 The defendants then contend that the practice in the Dublin Maternity Hospitals in 1963 was that symphysiotomy was an acceptable option in carefully selected cases even in advance of labour.

9.14 The plaintiff further contends that the records of the Dublin Maternity Hospitals indicate that the original strictures on confining symphysiotomy in cases in which a Trial of Labour failed had gradually been superseded by the belief that symphysiotomy could in certain cases be used rather than caesarean cases.

9.15 The defendants contend that the reason for the popularity of symphysiotomy was that there was still a fear as to the danger of multiple c-sections and that there was a large instance of multiparous women in the population, in that 30% of all births in the Republic were fifth births or higher. The belief was that disproportion/CPD was a problem which would reoccur on subsequent deliveries and that the patient as a whole rather than the instant pregnancy must be treated.

9.16 At the time the importation and sale of contraceptives was banned and the practice of sterilisation was prohibited or was not available in the Dublin Maternity Hospitals (in this regard, Dr. Boylan is incorrect to say that sterilisation was unlawful or that use of artificial contraceptives was unlawful but that distinction is probably a legal rather than a practical one).

9.17 If a caesarean section was offered then the likelihood that future births would also have to be by caesarean section. There were certain dangers still associated with multiple sections but the option of sterilisation after two or three sections though it was routinely available in Britain was not available in Ireland.

9.18 Symphysiotomies were practised in the three Dublin maternity hospitals, one of which was not under any control of any Roman Catholic religious order or the Archbishop of Dublin. The Rotunda Hospital utilised symphysiotomy “on the way out” only after the first births by caesarean section where a Trial of Labour was not successful. In other words, in the Rotunda, the practice was that symphysiotomy might be considered after one successful delivery by c-section prophylactically in order to ease future births and obviate the need for repeat caesarean sections.

9.19 Dr. McVey of the Rotunda, upon whom the plaintiff also relies, wrote at the time of a caesarean section:-

“This decision while overcoming the difficulty of the present pregnancy makes no provision for any future pregnancy. The patient still has a contracted pelvis, and, further, a uterine scar…a future pregnancy will result in either another uterine scar or induction of premature labour with all its risks or hazards…in this country we have special circumstances of treating a population in which sterilisation and contraception are not practised plus a primagravida delivered by caesarean section for disproportion faces a lifetime with repeat operations with all the hazards of uterine ruptures, adhesions and bladder injury. In gross disproportion caesarean section is unquestionable correct, but in minor or medium degrees of disproportion, if symphysiotomy allows of vaginal delivery on this and all subsequent pregnancies it is surely the operation of choice.”
9.20 The defendant’s hospital was aware of a maternal death a few months prior to the symphysiotomy, the mother in question had a repeat caesarean section with placenta acreta and placenta praevia. The defendant further referred to Monroe Kerr of Operative Obstetrics (1971) in a section dealing with the dangers of symphysiotomy, he concludes:-
“Employed in just the right case, it is one of the most satisfactory of obstetrical operations.”
9.21 The practice in relation to what is known as prophylactic symphysiotomy had developed in Dublin as the obstetricians were content with the good results and lack of complaints in relation to their patients and this was recognised by Feeney in the Coombe as early as 1955 and Barry in 1956, who stated:-
“Equally, we believe there is a small place for the elective operation…in the management of contracted pelvis in the young primagravida where the success of Trial of Labour seems at the outset a very unlikely proposition.”
9.22 Furthermore, Dr. Browne, Master of the Rotunda stated in 1962 in the Irish Journal of Medical Science:-
“It is interesting to note that the longer a man is Master of a Maternity Hospital the more he gets worried about sections and the more he tries to find a way of avoiding them. Symphysiotomy seems to be the answer and I quite agree that elective symphysiotomy must surely be a correct indication, rather than symphysiotomy done during labour.”
9.23 Accordingly, the defendants contend that it is impossible to legally propose that there was at the time no justification for the procedure that was carried out. It was contended therefore that in Ireland in 1963, symphysiotomy pre-labour had a role in the treatment of disproportion and this was carried out by an experienced practitioner and that though medical experts from Britain, and some in Ireland (e.g. McVey) disagreed with the level of symphysiotomy and in particular with the introduction of the practice of prophylactic symphysiotomies, this disagreement does not amount to a breach of the principles in the Dunne case and does not result in the plaintiff being able to establish her case as reformulated.
10 The Law
10.1 In Dunne (an Infant) v. National Maternity Hospital [1989] I.R. 91, Finlay C.J. stated that the principles laid down in relation to medical negligence and the liability of professionals could be summarised:-

“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.

3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.

4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.

5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant….”

10.2 As previously stated the plaintiff by letter of 10th October, 2014, reformulated her case to the effect that it would proceed on a single ground, namely:-
“That there was no justification whatsoever in any circumstances for the performance of a symphysiotomy on the plaintiff at the time it was performed.”
10.3 This reformulation was done as in the case of Kearney v. McQuillan and North Easter Health Board in the Supreme Court in order to defeat a claim for prejudice. As Hardiman J. stated that in the Kearney case it was conceded by the plaintiff and in this case, I hold that the case reformulated would be defeated if the defendant could establish:-
“any circumstances in which, in the circumstances prevailing in Ireland in the year 1969, and in the circumstances of this case, a symphysiotomy could have been justified by a consultant gynaecologist. In other words, the first defendant may, if the action is permitted to proceed, defeat the plaintiff’s claim on a hypothetical basis and will not be itself defeated simply because its defence, by reason of the absence of Dr. Connolly and his consultant colleagues of the time, can only be hypothetical.”
10.4 Hardiman J. specifically stated that the court is satisfied that the defendant will continue to have available to it the second principle laid down in Dunne, i.e. the allegation that a professional from a generally approved practice will not establish negligence “unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications”.
10.5 The plaintiff contends that the second Dunne principle of necessity also requires the third principle which somewhat qualifies the second i.e. where the medical practitioner defends his conduct by establishing that he has followed a course of practice which was general and which was approved by his colleagues cannot escape liability if, in reply, the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.

10.6 I accept the contention that the third Dunne principle must have application, however, it is, of course, applicable only within the case as reformulated i.e. that there was no justification “whatever, in any circumstances for the performance” of the operation. It does not follow as a matter of law that just because one expert says that a particular practice was reasonable that a court must follow that opinion. In medical negligence cases, it is always the obligation of the court to make its decision and a court can do so by accepting or rejecting some or all of the evidence of any particular expert or experts.

10.7 I reject any suggestion from the defendants that the plaintiff’s case should, in any way, be judged less sympathetically due to the existence of a no fault scheme for “survivors of symphysiotomy”.
11 Decision
11.1 There is no doubt but that this operation would not have been performed on the plaintiff today or indeed at any date after the introduction of “active management of labour” by Dr. O’Driscoll. It was only a matter of a few years after 1963 when active management of labour came into practice in Dublin. There is also little doubt but that at the start of the reintroduction of symphysiotomy into Dublin that symphysiotomy without Trial of Labour would not have been performed.

11.2 I have already held that the plaintiff has suffered during her life as a result of the effects of this operation. I do not make any general observations about the effects of symphysiotomy on patients. I am aware that there is still a limited place for symphysiotomy especially in countries with limited hospital facilities for mothers and where mothers have great distances to travel. I also accept that the contention that symphysiotomy produces generally significant adverse affects on mothers is hotly in dispute. In this case, the plaintiff, whether as a result of the timing of the symphysiotomy or otherwise did suffer and indeed continued to suffer consequences throughout her life.

11.3 I accept that medical practice develops and can only develop in the manner as suggested by Dr. Boylan. Every procedure, now common place must once have been “unprecedented” and indeed may well have been very controversial. A practice will not be condemned merely because it is not supported in any peer review literature. A practice can only be condemned if it fails the Dunne test, or in this case, the reformulation of the plaintiff’s case against the defendant.

11.4 I have come to the conclusion that in 1963 in the Dublin Maternity Hospitals, it was accepted that Trial of Labour was not always required for a consultant to conclude that a vaginal delivery would not be possible and that in those cases prophylactic symphysiotomy without Trial of Labour was a reasonable though limited option. In this case the hospital notes indicate that pelvimetry and the EUA convinced the treating doctors that a vaginal delivery would not be possible and accordingly, they proceeded on a course of a symphysiotomy which at the time they had reason to believe was not generally adverse in its effect to the mother and it was safer as far as the child was concerned. I have further come to the conclusion that given the real fears of multiple caesarean sections and the perceived benign effects of symphysiotomy and also given the wide acceptance of this practice among the leading consultants in the Coombe and National Maternity Hospital, that the plaintiff has not established that this practice was one which such inherent defects that ought to have been obvious to any person giving the matter due consideration.

11.5 The practice of prophylactic symphysiotomy was vigorously and publicly defended by the professionals in the annals of their hospitals and was subject to combative peer review at the annual Proceedings of their Professional Society. The annual records of the maternity hospitals do not merely relate the circumstances of the births and indeed some cases the deaths of patients but also contain some frank admissions as to failures and errors of certain procedures in order to counsel against their repetition. There is no evidence of any peer criticism of the plaintiff’s procedure.

11.6 The issue in this case is whether the plaintiff has established that there was “no justification whatsoever in any circumstances for the performance of a symphysiotomy on the plaintiff at the time it was performed”. The fact that the procedure was carried out some twelve days before the birth may have been causative of a number of the plaintiff’s injuries but the particular time delay involved is not, of itself, a factor which could be added to the plaintiff’s case such as to establish liability. The defendants did not know at the time of the symphysiotomy when labour would commence and indeed the defendants at that stage still believe that the baby was overdue.

11.7 I find that the practice of prophylactic symphysiotomy in 1963 was not a practice without justification. It was, indeed, a controversial practice but it was also strongly defended. I find the strength of this defence is such that it is impossible to conclude that the plaintiff has proved her case. Though I would in the words of Sir Ranulph Crewe, Chief Justice of England, “take hold of a twig or twine-thread” to uphold the plaintiff’s case, I must find that this remarkable lady whose story indeed deserves to be told must fail in her case against the defendants.

Farrell v Ryan [2015] IEHC 275

1.2 The plaintiff claims that the said procedure was in the circumstances negligent and that as a result thereof, she has sustained significant personal injuries.

1.5 The plaintiff signed a form stating:-

2.6 The delivery was conducted under general anaesthetic and the plaintiff delivered herself of a baby girl who was noted to be slow to revive and was transferred to the paediatric unit.

2.7 On 17th October, 1963, the plaintiff was discharged home having had her nylon sutures removed. There was a slight discharge from her symphysiotomy scar noted.

4.2 Accordingly, the issues that have to be addressed on liability are:-

(a) prejudice;
(b) statute of limitations; and

5.7 By letter dated 10th October, 2014, the plaintiff’s solicitor wrote to the defendants advising that the case was being reformulated and was proceeding on a single basis, namely:-

“(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

6.13 Section 2(2) of the 1991 Act provides:-
“(2) For the purposes of this section, a person’s 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 which it is reasonable for him to seek.

(3) Notwithstanding subsection (2) of this section –

(iii) “Occasionally it may be justifiable to perform the operation in a mutligravidae before labour has set in.

(b) in all multigravidae with disproportion sufficient to cause obstruction;

(d) in the face of presentation with a chin posterior and in brow presentation were efforts that corrections have failed;

9.6 The defendant referred to the text of Donald (1960) as follows:-

9.10 Accordingly, the defendants rely upon Donald (1960) Practical Obstetric Problems at p. 340 that Trial of Labour is “definitely not applicable”…where there is outlet contraction.

9.13 The defendants then contend that the practice in the Dublin Maternity Hospitals in 1963 was that symphysiotomy was an acceptable option in carefully selected cases even in advance of labour.

9.19 Dr. McVey of the Rotunda, upon whom the plaintiff also relies, wrote at the time of a caesarean section:-

Noel Recruitment (Ireland) Ltd v Personal Injuries Assessment Board [2015] IEHC 30

UDGMENT of Kearns P. delivered on the 23rd day of January, 2015
In these proceedings the applicant seeks an order of certiorari quashing the authorisation granted by the respondent to the notice party on the 25th July, 2013 which purported to authorise the notice party to bring proceedings against the applicant in respect of a work place accident which occurred on the 23rd October, 2009. The application has been brought in circumstances where the respondent had previously granted an authorisation to the same notice party in respect of the same accident in 2011. The issue, therefore, is whether or not the respondent is entitled to issue a second authorisation in such circumstances. Other parties named as potential defendants in both applications to the respondent have not sought to raise a similar point and the position of the respondent in relation to the present application is a neutral one, it neither objects nor consents, but specifically does not oppose the making of an order consisting of a declaration that the authorisation dated the 25th July, 2013 is invalid insofar as it authorises the notice party to bring proceedings in respect of the relevant claim against the applicant (as distinct from the other named parties).

The position of the third party is a simple one: as there is no express prohibition in the legislation which precludes a second authorisation, it must be permissible for the respondent Board to so act, as otherwise the constitutional right of access to the court of the notice party would be curtailed.
BACKGROUND
The notice party claims to have been injured whilst lifting bags of potatoes in a warehouse on the 23rd October, 2009. The accident is stated to have occurred at Keelings warehouse in Ballymun in Dublin where the notice party worked since December 2007. Both the applicant herein and Tesco Ireland Ltd. are stated at different points in the notice party’s application to have been his employer on the date in question.

Using the name Michael Chapwanya, the notice party made an application dated the 30th August, 2010 for an assessment of damages under s.11 of the Personal Injuries Assessment Board Acts 2003 – 2007 (hereinafter “the Act”) in respect of this alleged work place accident. The applicant was named as a respondent “employer” to the first application, as were Keelings Ltd. The applicant was notified of the first application pursuant to s.13 of the Act by notice of the respondent dated the 1st October, 2010.

The applicant did not respond to the said notice and was deemed to have consented to an assessment under s.14 of the Act. By letter dated the 16th March, 2011 the respondent notified the applicant of the decision to authorise proceedings against the applicant and stated in its letter:-

“As this concludes our involvement in the matter, we have closed our file.”
This authorisation bore a reference number EL0906201040898. However, no proceedings were issued on behalf of the notice party on foot of this authorisation and any potential proceedings on foot thereof are now statute-barred pursuant to the provisions of the Statute of Limitations Act 1957, as amended and s.50 of the Act.
The notice party, using the name Moro Issak (aka Michael Chapwanya) made a second application dated the 5th March, 2011 which was received by the respondent on the 5th October, 2011 for an assessment of damages under s.11 of the Act in respect of the same work place accident of 23rd October, 2009 which was the subject matter of the first application. The applicant was named as a respondent in the second application, as was Keelings Ltd. Additionally, however, Tesco Ireland Ltd. were also named as a respondent in this second application.

The applicant was notified of the second application pursuant to s.13 of the Act by notice from the respondent dated the 30th August, 2012. By email dated the 1st October, 2012 a representative of the applicant replied to the correspondence indicating that the applicant did not consent to the respondent assessing the matter. Thereafter by letter dated 25th July, 2011 the applicant was notified of the decision to authorise proceedings by the notice party against the applicant, notwithstanding that the purported authorisation was in respect of the same accident which was the subject matter of the first authorisation. Both authorisations now carry the same reference number.

It is beyond dispute therefore that the respondent entertained two successive applications for the assessment of damages brought by the same person in respect of the same accident, and in respect of which the respondent has issued two successive authorisations dated respectively the 16th March, 2011 and the 25th July, 2013.

The applicant has now been served with a personal injury summons dated the 30th July, 2013 in respect of a personal injuries claim brought by the notice party as plaintiff and purported to be permissible on foot of the second authorisation issued by the respondent on the 25th July, 2013.

On taking the matter up with the respondents, the applicant through their solicitor were advised that the Board was of the view that the second authorisation would not be invalid and that proceedings would be strenuously defended. However, the respondents have come into court with a modified position to the effect that any invalidity extends only to so much of the second authorisation as permitted the notice party herein to bring proceedings against the applicant.
STATUTORY FRAMEWORK
The Personal Injuries Assessment Board Act 2003 states in its preamble that it is:-

“An Act to enable, in certain situations, the making of assessments, without the need for legal proceedings to be brought in that behalf, of compensation for personal injuries (or both such injuries and property damage), in those situations to prohibit, in the interests of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the particular assessment ….”
Part 2 of the Act prescribes mandatory assessment procedures in respect of the civil action to which the Act applies.
Section 11 of the Act sets out provisions governing the making of an application by a claimant to the Personal Injuries Assessment Board (hereinafter “the Board”).

Section 12 of the Act provides as follows:-

“(1) Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, rules under section 46 (3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim.”
At this juncture it must be noted that the date of issue of an authorisation has significant implications for the time period within which proceedings must be commenced. As enacted, section 50 of the Act (as amended) provides:-
“In reckoning any period of time for the purposes of any applicable limitation period in relation to a relevant claim (including any limitation period under the Statute of Limitations 1957, section 9 (2) of the Civil Liability Act 1961, the Statute of Limitations (Amendment) Act 1991 and any international agreement or convention by which the State is bound), the period beginning on the making of an application under section 11 in relation to the claim and ending six months from the date of issue of an authorisation under, as appropriate, section 14, 17, 32 or 36, rules under section 46(3) or section 49 shall be disregarded.”
On the basis of the application made on behalf of the notice party to the Board on the 5th October, 2011 and the authorisation which issued on the 25th July, 2013, the notice party has a period of approximately six and a half months thereafter to commence proceedings against the first and third respondents named in the authorisation. If certiorari is granted in respect of the authorisation insofar as it relates to the first respondent and/or if the court grants a declaration that the Board acted ultra vires in issuing the authorisation, the notice party will be deprived of any authorisation required to pursue proceedings against the other named respondents, namely, Keelings and Tesco Ireland Ltd. and any proceedings against the first respondent (Keelings) on the basis of the authorisation issued on the 16th March, 2011 will be statute-barred. However, any consequences of that nature are avoidable in the event that the court grants only the second relief sought by the applicant, namely, a declaration that the authorisation dated the 25th July, 2013 is invalid insofar as it authorised the notice party to bring proceedings in respect of the relevant claim against the applicant herein. The decision of the Board in those circumstances to authorise the notice party to commence proceedings against the other two respondents would remain operable and effective. The Board’s contention, as per its written submissions is that it could – if it wished – have issued three separate authorisations entitling the notice party to commence proceedings against each of the respondents. It was further argued on behalf of the respondent in the Board’s submissions that the present applicant would in any event lack locus standi to have the second authorisation altogether quashed.
Section 46 of the Act is also relevant. This section enables the Board to make rules concerning the procedure to be followed in relation to the making of applications under s.11 of the Act. Specifically, s.46 (3) is relied upon by the notice party to argue that the Board may amend an authorisation or grant an additional authorisation in circumstances where a genuine oversight or mistake has occurred. The section in relevant part provides:-

“(3) Rules under this section shall enable the Board (subject to rules under subsection (4) to issue to a claimant a document (in this Act also referred to as an ‘authorisation’), in circumstances where the claimant is not otherwise authorised under a provision of this Act to bring proceedings in respect of his or her relevant claim, in either or both of the following cases, namely –

(a) section 18(3) or (6) applies in respect of one or more of the respondents to the relevant claim and the claimant wishes to bring proceedings in respect of that claim against that respondent or those respondents (acting, unless he, she or they are no longer of unsound mind, by a guardian or a committee),
(b) the claimant wishes to bring proceedings in respect of his or her relevant claim against one or more persons whom he or she omitted, through a genuine oversight or ignorance of all the facts relating to the matter, to specify in his or her application under section 11 as being a person or persons liable to him or her in respect of that claim.

(4) Rules under this section shall enable the Board to defer making a decision as to whether to issue an authorisation referred to in subsection (3) unless and until the relevant claim concerned has been the subject of an assessment or, as appropriate, a fresh assessment under this Act (which rules under this section may include a requirement for (but subject to those rules permitting the Board to waive that requirement where, due to lapse of time or other circumstances, compliance with that requirement would unduly interfere with the claimant’s right to bring proceedings)).
(5) An authorisation referred to in subsection (3) shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim against the person or persons concerned and such an authorisation shall be in addition to any authorisation issued under another provision of this Act to the claimant.”

DISCUSSION
Dr. Forde, S.C., on behalf of the notice party, argues that, having regard to the constitutional right of access to the courts, the terms of the Act must be narrowly construed and, given that they contain no express prohibition on the issuing of a second authorisation, must be construed as permitting the respondent Board to do so in circumstances where it deems it appropriate. He placed reliance on s.46 as being indicative of such a power being available to the respondent Board.
On behalf of the applicant it was submitted that a statutory body, having been granted power to determine a particular question or application, exhausts its power once it determines that question and will be prevented from reconsidering or re-determining that application by virtue of the doctrine of functus officio. Absent an express power to do so, a statutory tribunal should not have power to revisit its own decisions.

Any other construction or interpretation of the statutory scheme would lead to absurdity. If an applicant was permitted to lodge a fresh application against a particular respondent in respect of a particular claim after his first application had already been authorised or assessed, an application could never truly be completed. It would also have the indirect effect of conferring on the respondent Board the power to effectively extend the limitation period applicable to the institution of claims for damages for personal injuries, absent any statutory power to that effect.
DECISION
The Court is quite satisfied that no restriction of the constitutional right of access to the courts has arisen on the facts of this case. On the contrary, the first authorisation granted to the notice party specifically authorised the bringing of a personal injuries claim before the courts. That right is not one exercisable forever or in all circumstances, not least because of the existence of the Statute of Limitations, the constitutionality of which has not been challenged in this application.

The Court is also satisfied that no facts have been made out in the particular circumstances of this case as might have brought the provisions of s.46 of the Act into play. There is no evidence of any “genuine oversight or ignorance of all of the facts relating to the matter” nor is there any suggestion that the claimant is not of sound mind or lacked capacity to bring forward a claim. Section 18(1) of the Act expressly provides that the Board may presume that the claimant and the respondent or respondents are each of full capacity.

The applicant has referred the Court to a number of authorities in support of its contentions as to the powers of the respondent Board. In the first instance, reliance is placed on the passage in Hogan & Morgan Administrative Law in Ireland, 4th Ed., where at para. 19-132 it is stated as follows:-

“If a public authority has statutory powers to determine some question, its decision will generally be final and irrevocable. This is not because of the operation of res judicata, but rather because the authority lacks jurisdiction to alter its original decision and has become functus officio.”
In Re War Damage Act 1943: Re 56, Denton Road [1952] All ER 799, the Chancery Court held that the War Damage Commission was functus officio once it had reached a particular determination (in that case the classification of the plaintiff’s dwelling house which had been damaged by enemy action), the determination must be regarded as final and conclusive, in the absence of an express statutory power or the consent of the plaintiff to the contrary.
Similarly, in Akewushola v. Immigration Officer, (Heathrow) [2000] 1 WLR 2295 the Court of Appeal held (per Sedley L.J.) in relation to the question of whether an immigration tribunal could reopen its decision in order to correct an error:-

“The limit in point of time of this power to cure irregularities is thus the point at which a decision is reached. From then on the maximum power must be to correct accidental errors which do not substantively affect the rights of the parties or the decision arrived at. [Counsel] has drawn our attention to a passage at p.262 of the current (7th) Ed. of Wade & Forsyth on Administrative Law. Having instanced cases where powers of review are expressly conferred on administrative tribunals, the authors say:-

‘Even when such powers are not conferred, it is possible that statutory tribunals would have power, as has the High Court, to correct accidental mistakes; to set aside judgments obtained by fraud; and to review a decision where facts subsequently discovered have revealed a miscarriage of justice.’

… For my part I do not think that, slips apart a statutory tribunal – in contrast to a superior court – ordinarily possesses any inherent power to rescind or review its own decisions.”
Similar reasoning was adopted by the Court of Appeal in Aparau v. Iceland Frozen Foods plc [2000] 1 All ER 228. In that case the Employment Appeal Tribunal in the U.K. had remitted a matter to an industrial tribunal to reconsider a question of whether an express mobility clause in a contract of employment was enforceable. The industrial tribunal had already decided the substance of the case, and the order remitting the matter to the tribunal was limited to the issue concerning the mobility clause. The Court of Appeal decided that the Industrial Tribunal was incorrect, upon the matter being remitted, to go on to reconsider the substance of the case afresh. In effect, the court decided that the tribunal was functus officio in relation to all matters other than the issue which was remitted for it to decide.
The Court of Appeal indicated that the industrial tribunal was not entitled to reconsider matters already decided even had the parties consented to doing so, stating as follows:-

“It is a jurisdiction which falls to be exercised in accordance with statutory rules of procedure and within the framework of a system which provides for an appeal to the employment appeal tribunal. I do not think that the parties can by acquiescence or agreement enable the industrial tribunal to act outside the boundaries of the rules laid down by the statutory scheme so as effectively to clothe it with a jurisdiction which it would not otherwise possess.”
I am satisfied that the statutory scheme governing the respondent does not, either expressly or implicitly, permit the respondent to consider a second application against the same respondent in respect of the same accident once an authorisation in respect of that accident has issued. I am fortified in reaching that conclusion having regard to the implications of any other interpretation in terms of the effect it would have on the provisions of the Statute of Limitations. The Act does not purport to extend periods fixed for bringing claims under the Statute save as expressly provided for by the Act. There can not otherwise be a rolling back of the Statute. A scenario whereby time limits prescribed by the Statute could be indefinitely deferred by repeated applications to the respondent Board is the very antithesis of the speedy resolution to claims which the respondent Board was set up to bring about.

Cases Equitable Extension

Murphy -v- Grealish

[2009] IESC 9 (10 February 2009)

Composition of Court: Geoghegan J., Kearns J., Macken J.

Judgment by: Geoghegan J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Geoghegan J.
Appeal dismissed – affirm High Court Order
Kearns J., Macken J.

Outcome: Dismiss

THE SUPREME COURT

Appeal No. 79/2006

Geoghegan J.
Kearns J.
Macken J.

BETWEEN/
DAVID MURPHY

Plaintiff/Respondent
and

MICHAEL GREALISH

Defendant/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of February 2009

This is an appeal brought by the defendant/appellant from an order of the High Court (MacMenamin J.) refusing to dismiss a personal injuries action instituted by the plaintiff/respondent. Technically, the motion sought two alternative reliefs which were:

“A. An order dismissing the plaintiff’s proceedings herein pursuant to the provisions of section 11(1)(2) of the Limitation of Actions Act, 1957 as amended by section 3(1)(2) of the Statute of Limitations (Amendment) Act, 1991;

B. Further or in the alternative an order directing the trial of a preliminary issue namely whether the proceedings herein are statute barred pursuant to the provisions of section 11(1)(2) of the Limitation of Actions Act, 1957 as amended by section 3(1)(2) of the Statute of Limitations (Amendment) Act, 1991.”

The Statute of Limitations contains no provisions whereby a defendant who has pleaded it may follow up that plea with a motion to have the action dismissed. It may well be that such a motion can be brought pursuant to the well-known inherent jurisdiction of the court to strike out proceedings certain to fail but given the plea of estoppel in the Reply to which I will be referring, it would seem inconceivable that such an order could be granted.

It would be open, of course, to seek the second relief at paragraph (B) but what happened in practice was that MacMenamin J. decided the issue himself rather than set it down for a separate trial and I assume that this was by consent of both parties in that no point has ever been taken about it.

This was an action brought outside of the three year period. The statute was duly pleaded. A Reply, however, was delivered which contained the following plea.

“The plaintiff denies that the claim herein is statute barred and pleads that the defendant by his actions and those of his servants or agents and representatives is estopped from raising the statutory period in order to evade liability in these proceedings.”

In a nutshell, the case made by the respondent is that from an early stage the appellant admitted liability and that thereafter negotiations proceeded surrounding the medical condition of the appellant with a view to establishing quantum. These discussions continued even after the three year period had expired and the appellant’s solicitor was taken by surprise by the plea of the statute. He, effectively, maintains that he was lulled into a false sense of security by the appellant’s insurers. I am deliberately using non-legal terminology at this stage. I will discuss the legal position when I have set out the factual history in full.

The chronology is as follows. The motor accident giving rise to the action occurred on the 12th May, 2000. The first letter of any importance is a letter from the appellant’s insurers, Quinn Direct, dated 1st August, 2000 and addressed to the respondent personally. It reads as follows:

“Dear Mr. Murphy

We write to advise that an independent motor assessor has agreed repairs on your vehicle at IR £1,849.53.

Please complete the enclosed acceptance form and return it to us. On receipt of same we will issue a cheque in the amount of IR £1,849.53 in your favour in full and final settlement of this claim.

We trust this meets with your approval. We look forward to your early reply.

Yours faithfully
Deborah O’Reilly
Claims Department.”

Even this first letter contained a clear admission of liability though either consciously or unconsciously it ignored altogether a possible legitimate claim by the respondent for general damages for personal injuries and, indeed, any special damages in connection therewith. Interestingly, and perhaps significantly, that particular letter was omitted from the correspondence exhibited in the affidavit grounding the appellant’s motion. However, a letter sent by the respondent’s solicitors, O’Dea and Company in reply and dated 17th August, 2000 was exhibited. That letter read as follows:

“Dear Sirs

We confirm we act on behalf of Mr. Murphy. We refer to your letter of the 1st inst. You might confirm that the figures were agreed with McCormack Car Sales Limited.

Our client suffered personal injuries in relation to the accident. You might confirm that you are prepared to deal with the material damage at this stage.

Yours faithfully”.

Quinn Direct, under a different signature, replied to that letter making it clear that it was not the company’s policy to deal with claims on a “piecemeal basis”. The letter went on to request details of the nature and extent of the alleged injuries with the names and addresses of the relevant doctors so that the insurers could arrange for their own medical examination, if necessary. There was then a long gap with no correspondence with the result that the insurers wrote again on the 18th June, 2001 asking if the injury claim was still being pursued. It was confirmed in a reply that the claim was being pursued. On the 22nd October, 2001 Quinn Direct wrote still looking for particulars of the injuries and the medical attendance. They followed this up with further letters of the 9th November and the 13th November, 2001. By a letter of the 20th November, 2001 the respondent’s solicitors explained that the respondent was awaiting an orthopaedic examination. In a letter of the following day they gave particulars of the names of the relevant doctors. A letter of importance in considering the issues in this case and dated the 5th December, 2002 was then written by Quinn Direct, it read as follows:

“Dear Donal

I refer to the above matter and to previous correspondence concerning same.

Could you let me know as soon as possible if

you would be prepared to share medicals with Quinn Direct in this case and if you are prepared to discuss settlement of the claim. Liability is not an issue.

Trusting to hear from you at your earliest convenience.

Regards

Yours sincerely
Hugh McGrath
Regional Claims Manager”

That letter was replied to on the 5th February, 2003 in which it was stated that the respondent’s x-rays were being reviewed by an orthopaedic surgeon at an appointment in March and that it would be anticipated that following on his latest report there will be no difficulty about sharing it.

The orthopaedic surgeon retained on behalf of the respondent was Mr. Michael Gilmore of Galway and he reported on an MRI scan on the 21st May, 2003. He did not recommend surgery but expressed the view that the respondent would have ongoing disability in his back as a result of his injury which had led to the degeneration and bulging of discs. That report was forwarded to the insurers on the 17th June, 2003.

Quinn Direct wrote on the 21st July, 2003 that they had arranged for a medical examination of the respondent by the Galway surgeon, Mr. Wilson. An almost identical letter was written on the 21st August, 2003. Presumably, the examination was, in the event, postponed from 20th August, 2003 to 13th October, 2003 which was the new date.

Apparently, the respondent missed his appointment and had to pay the medical fee. A new appointment was to be arranged.

By a letter of the 19th January, 2004 the respondent’s solicitors referred to a telephone call of the 16th January where reference was made to High Court proceedings having been issued but that solicitors had not been nominated by the appellant. Receipt of that letter was acknowledged by a letter of the 27th January, 2004 which read as follows:-
“Dear Sir

We acknowledge receipt of your letter dated 19th January, 2004 and note the contents.

We have forwarded a copy of your letter to our Regional Claims Manager, Hugh McGrath, who has a copy of our file of papers in relation to the above incident. He will contact you in the forthcoming days to discuss this matter further.

In the meantime if you have any outstanding queries, Hugh will be able to assist you and he can be contacted directly on the number above.

Yours faithfully
Catriona McCaffrey
Claims Department”.

In a letter of 4th May 2004 for the first time, the issue of statute bar is raised. The letter reads as follows:

“Dear Sir

We refer to the above incident and to your facsimile dated the 4th May, 2004 enclosing a copy of the plenary summons.

We note that the date the summons was issued was outside the three year period after the date of the accident and is therefore statute barred.

Under the circumstances we will not be dealing with any claims from your client and we are therefore closing our file of papers.

If you have any queries in relation to the above please do not hesitate to contact the undersigned.

Yours faithfully

PPL Galligan
Catriona McCaffrey
Claims Department”.

It is important at this stage to refer to paragraph 2 of a supplemental affidavit of Donal Downes the partner in O’Dea and Company who was dealing with the case. I will cite the paragraph in full:
“I beg to refer to the said affidavit already sworn by me on the 3rd day of May 2005 in these proceedings and in particular to paragraph 6 thereof wherein I have stated that the plaintiff’s solicitors relied on the defendant’s insurers admission of liability. I say that the basis and extent of my reliance upon the defendant’s admission of liability was as follows:
i. Quinn Direct, the defendant’s insurance company had stated (without prejudice), in writing as early as 31st August 2000 that it was ‘satisfied that liability will not be an issue’.

ii. Quinn Direct had previously attempted to settle the plaintiff’s claim directly with the plaintiff on or without prejudice basis.

iii. By letter dated 5th December 2002 Quinn Direct Regional Claims Manager, Mr. Hugh McGrath, advised the plaintiff’s solicitors that ‘liability is not an issue’. Significantly, this was an open admission of liability.

iv. Quinn Direct had, through the Regional Claims Manager, sought and received agreement to share medical reports.

v. Mr. McGrath had contacted the plaintiff’s solicitors on several occasions and it was clear that he was anxious and willing to settle the claim.

vi. In the light of the foregoing it never entered my consciousness that Quinn Direct would subsequently attempt to rely on the Statute of Limitations for the purpose of resiling from its open admission of liability, and the issue or non issue of proceedings within the time provided by the statute was not something to which I gave consideration.”

It is worth citing paragraph 3 which was the final paragraph of the same affidavit:
“I say that it is obvious to me, your deponent, that Quinn Direct also attached significance and relevance to its admission of liability by reason of the fact that it decided not to disclose correspondence admitting liability (albeit marked ‘without prejudice’) in the affidavit sworn on its behalf, and with its express authority, for the purpose of grounding the herein application to dismiss the plaintiff’s claim.”

Although it is not appropriate to include legal arguments in an affidavit, Mr. Peter Kelly, solicitor of Erne, the firm acting for the appellant, Mr. Kelly did just that in an affidavit affirmed on the 12th April 2005. Because what he says is at the heart of the argument I find it useful to quote it as an introduction to my discussion of the law. He says in the middle of paragraph 3 the following:

“It is a daily occurrence that insurance companies admit liability, but I respectfully submit that this does not indicate or mean that proceedings should not be instituted. The law is clear, as laid down by the Supreme Court in Ryan v. Connolly [2001] 2 ILRM 174. The case held that the mere fact that a defendant had expressly and unambiguously conceded the issue of liability did not necessarily mean that it was reasonable for a plaintiff to assume that he could defer the institution of proceedings beyond the limitation period. In the absence of a statement from an insurance company from which it was reasonable to infer that, in the event of proceedings not being instituted within the limitation period, they would refrain from relying on a defence under the statute, the insurance company should not be precluded from relying on such a defence. And, (fairly similar to the situation herein) the court held that no such unambiguous representation had been made by the insurance company and the proceedings were, accordingly statute barred’.”

I would respectfully suggest that that is a selective statement of the law and, indeed if the law was as simple as that, the courts would have an easier task. The first point to be made is that although Ryan v. Connolly is the latest relevant Supreme Court decision, an earlier decision of this court Doran v. Thomas Thompson and Sons Limited [1978] I.R. 223 is even more relevant particularly as it is perfectly clear from a reading of the single judgment of Keane C.J. in Ryan v. Connolly that the former Chief Justice was intending to follow the principles laid down in Doran. There is the further difficulty that although there were three reasoned concurring judgments in Doran i.e. those of Henchy J., Griffin J. and Kenny J., they do not seem to me to be absolutely identical at least in so far as some aspects of the problem are emphasized. This may be why Keane C.J. seemed almost exclusively to rely on the judgment of Griffin J. In my opinion, when the judgments in both cases are carefully studied, two important factors emerge. The first is that an admission of liability is all important in considering an issue of estoppel preventing reliance on the Statute of Limitations. Indeed on one reading of the judgment of Henchy J., in particular, one might almost believe that it was a determining factor. I do not believe, however, that he or either of the two other judges in that court would have intended to convey that. In that particular case, there was in fact no admission of liability.

The second factor which emerges from the two cases is the useful correction in this regard made by Keane C.J. and cited by Mr. Kelly in his affidavit. It clearly could not be the law that merely because there was an admission of liability a plaintiff could ignore the Statute of Limitations with impunity. It is in that context that Keane C.J. uses the word “necessarily” in the passage cited. Indeed Keane C.J. develops this with an example. He postulates the case where an insurance company within days of the accident accepts that no issue on liability arises but that for some reason the subsequent negotiations become dormant. “The plaintiff may well find himself unable to rely on the principle under consideration if he permits the limitation period to expire without instituting proceedings.”

That clearly correct cautionary note must be balanced against what Henchy J. said at p. 225 of Doran:

“Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest and unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and thereby, into a justifiable belief that the statute would not be used to defeat his claim, to escape liability by pleading the statute. The representation necessary to support this kind of estoppel need not be clear and unambiguous in the sense of being susceptible of only one interpretation. It is sufficient if, despite possible ambiguity or lack of certainty, on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not to be heard to say that an admission of liability was not intended.”

Another passage in the judgment of Henchy J. has indirect relevance to this case. It is at p. 226 and reads as follows:

“Secondly, it was held that it was reasonable for the solicitor to expect that an offer of settlement would be made after the defendant’s surgeon had carried out a medical examination. Doubtless it was reasonable for him to cherish that expectation, but not to the extent of ignoring the period of limitation. As the three-year period drew to its close, the insurers’ silence on the issue of liability cried out for a direct question to be put to them asking whether liability was being admitted or not, and if a satisfactory reply were not received, for an originating summons to be issued. The issue of the summons would have cost little; it did not even have to be served to defeat the statute; it would have been valid for 12 months; and it could have been renewed at the end of the twelve months. However, such routine precautions never crossed the solicitor’s minds. The self-induced idée fixe that he had formed diverted his attention from the palpable and imminent disaster. His preoccupation with the quantum of damages to the exclusion of the issue of liability was the cause of his inactivity, and not anything in the nature of a representation by the insurers.”

In neither Doran nor Ryan was there an admission of liability and that is the key point in both cases. Although in each case, the decisions of the High Court (Costello J. in Doran and Kelly J. in Ryan) were reversed, this was largely on the basis that the Supreme Court judges did not consider that the inferences in favour of the plaintiffs drawn by the High Court judges were warranted but it does not seem to me that they had any criticism of the basic approach of the respective High Court judges which was essentially to consider whether there was an equitable estoppel by reason of the general surrounding circumstances, those circumstances constituting an implied representation rendering it unconscionable to allow the reliance on the statute.

Before setting out my own conclusions, I will refer now to the judgment of the High Court by MacMenamin J. I am in broad agreement with the learned High Court judge’s extensive review of the facts and the law in that judgment. It does not differ in any material respect from my own approach. It think it useful however to pick out some salient points from the judgment to which significance was either expressly or by inference attached.

First of all, there are the facts of the accident itself. MacMenamin J. points out that at the time of the accident the appellant’s car was driven into the rear of the respondent’s stationary car thereby causing significant injuries to the respondent. It is obvious from the facts of the accident itself that there could not be a liability issue. Whilst that of itself would not be enough to raise an estoppel, the clear acknowledgments by the appellant’s insurers that there was in fact no liability issue would be likely to lull the respondent and/or his solicitor into a sense of security that the issue of proceedings within a particular time limit was not of importance. Again, some added facts would be necessary to create an estoppel but not much addition would be required. The nature of the correspondence to which I have already referred and which is dealt with even in more detail by the learned High Court judge and which revealed a situation of settlement negotiations given that relevant correspondence was originally headed “without prejudice” and various arrangements made re sharing of medical reports etc. The judge, in particular, refers to the supplemental affidavit of the respondent’s solicitor sworn on the 24th November, 2005 with the permission of the court. The solicitor, Mr. Downes, made it clear in that affidavit that he relied on the appellant’s insurers admission of liability. The details of the extent of that reliance as set out in the affidavit are already cited in this judgment.
Just as I have done, MacMenamin J., relied heavily on Doran and Ryan cited above. He rightly attached significance to a passage in the judgment of Kenny J. in Doran which reads as follows:

“The other argument was that it would be inequitable to allow the defendants to rely on the Statute of Limitations. If the defendants had accepted liability and had entered into negotiations to arrive at an agreed sum, and if the plaintiff’s solicitors had refrained from bringing proceedings because they relied on the admission of liability or the negotiations being conducted, it would be inequitable to allow the defendants to rely on the time bar. But they never accepted or admitted liability and never represented that they did, nor did they carry on any negotiations for the purpose of settling the case. They did nothing which could give the plaintiff’s solicitors the impression that they need not issue proceedings nor did they mislead them in any way. I cannot see how the conduct of the insurers was dishonourable in any respect and I do not think that anything they did makes it inequitable for them to plead and rely on the Statute of Limitations. If the plaintiff’s solicitors thought that liability was being admitted, the defendants and the insurers did nothing to cause or contribute to that belief.”

That passage is important because it brings into focus a case wholly different on its facts from this case and for all practical purposes contrasts it with a case more or less on the lines of this case.

Finally, the learned High Court judge refers to a much earlier Supreme Court decision in O’Reilly v. Granville [1971] I.R. 90 where Walsh J. made the following observation at p. 100 of the report:

“The Statute of Limitations does not exist for the purpose of aiding unconscionable and dishonest conduct and I fully agree with the view expressed by the Chief Justice that in the circumstances of this case if the Statute of Limitations were to be invoked it would be for the purpose of sustaining and maintaining unconscionable and dishonest conduct”.

Although that was a minority judgment there is no indication that the other judges disagreed with that statement of principle. On the contrary it was endorsed in the judgment of Ó Dálaigh C.J. when he stated:

“A plea of the Statute of Limitations in the circumstances, would be not wholly unmeritorious but, I feel it my duty to add unconscionable and plainly dishonest.”

As the learned High Court judge acknowledges, the facts of that case were totally different and indeed the issue was different but the two quotations do seem to invoke the concept that a plea of the statute may not be effective if such plea was unconscionable. In concluding his judgment, that is precisely what MacMenamin J. held in this case. He said the following:

“It is sufficient to observe that in my view on the facts the plea of the Statute is unconscionable.”

I think that a caveat has to be entered here. It is not clear that there is any principle independent of estoppel that unconscionable behaviour may prevent a plea of the statute being effective. In this particular case, the plea in the Reply is confined to estoppel. As is well known, there are, of course, different kinds of estoppel. The classic legal estoppel involving a clear statement made by one party on which the other party relied does not seem to be relevant here. This case history involves a combination of conduct which can reasonably be construed as an implied representation combined with a consequence that in all the circumstances it would be unconscionable to resile from the implied representation arising from the conduct. I think that it is in that context that the learned High Court judge in the concluding part of his judgment uses the word “unconscionable”. This seems to me to become doubly clear given that in his opening few sentences under the heading
“Legal principles” the judge asked the rhetorical question “does an equitable estoppel arise?”

For the reasons indicated, I am satisfied that the learned High Court judge concluded that an equitable estoppel did arise in the circumstances set out in this judgment and I am in agreement with him.

I would leave open the question till it arises in some appropriate case as to whether a plea of statute bar can be defeated in some situations by unconscionable conduct but which could not be said to give rise to an estoppel. Quite apart from the judgments of Ó Dálaigh C.J. and Walsh J. referred to above, the High Court judgments of Costello J. and Kelly J., though reversed on the particular facts, might give some credence to a wider principle of unconscionability rather than the much narrower concept of estoppel with its stricter rules.

On the other hand, it is important to reiterate that there is nothing unjust about the Statute of Limitations. Far from it, it prevents stale claims difficult to defend from being pursued. In the absence of substantial unfairness a court will not allow a defence of statute bar

properly raised to be defeated.

I would dismiss the appeal.

Barbour v Houston

(1884) 14 LR Ir 273 (Exchequer Division); (1885) 18 LR Ir 475 (Court of Appeal)

The case involved an action to recover damages for fraudulent misrepresentation relating to lands leased to the plaintiff. The defendants pleaded that the action was barred under the Statute of Limitations. The plaintiff replied that the basis of his action was fraud which he could not, with reasonable diligence, have discovered until within 6 years before the commencement of the action. The defendants then argued on demurrer that this reply was no answer to their plea based upon the Statute.

Palles CB: Were we to decide this demurrer exclusively upon grounds which before the Judicature Act were cognizable in Courts of Common Law, we should be coerced by authority to hold the reply bad. The Imperial Gas Light and Coke Company v The London Gas Light Company 10 Exch 39, although it appears to have been doubted by the majority of the Court of Appeal in England in Gibbs v Guild 9 QBD 59, has not been expressly overruled, and is still binding upon us.

However, since the Judicature Act, our consideration of the case cannot be confined within these narrow limits. The same system of jurisprudence now prevails in all Divisions of the High Court; and if, upon the facts pleaded, the plaintiff could, before the Judicature Act, have had in Equity the relief which he seeks in this action, he is now entitled to it in this Court. That Act changed forms of procedure, but did not alter rights or remedies.

What relief then would the plaintiff have been entitled to before the Judicature Act, upon the facts stated in the pleadings here? I think it clear that in a case like the present where, by the fraudulent representation of the lessor and another, a lessee has been induced to take a lease, under circumstances in which, as here, an estate vested in him, such lessee had either of two alternative rights – (1) to have the lease set aside, and to recover back what he had paid thereunder, accounting for the sums received out of the lands; or, (2) to retain the lease and recover damages for the loss sustained by the false representation. It was, and is, for him to elect upon which of these rights he will rely; and the Courts of Law and Equity, before the Act, provided, and the High Court now provides, appropriate relief applicable to the particular right sought to be enforced; relief, however, necessarily different in the one case from that which would be afforded in the other. Before the Act, relief of the first class, viz, to set aside the lease, could have been obtained in a Court of Equity only; whilst on the other hand, if the lessee elected to retain the lease and relied upon his right to recover damages on that basis, he might have sued at Law and in many cases in Equity also. The Judicature Act has abolished the distinction as to the Court in which the particular relief may be obtained; but the essential difference between the two rights, and the relief applicable to each, still exists.

The allegation in the present case is that the plaintiff was induced by fraud to execute a lease reserving rent, and to enter into possession of the lands demised. The fraud did not render the lease void. It may have made it impeachable in a Court of Equity at the election of the plaintiff; but this election the plaintiff has not exercised, and even had he done so (as the defendant Rooper does not appear to have had any estate in the lands, or to have received anything by reason of the fraud), the only relief which could have been obtained against him, if such election had been made, and if a suit had been instituted to set aside the lease, would have been the payment of costs.

Not then having elected to set aside the lease, the plaintiff s only other right was to seek damages for the fraud. This is the right sought to be asserted in this action, and the question is whether the assertion of this right is barred by the Statute of Limitations. The action is one which (to use the words of the 20th section of our Common Law Procedure Act 1853), was for a cause which would theretofore have been brought in the form of action called trespass on the case. Prima facie, therefore, the period of limitation would be six years, and would run from the time of the cause of such action. To this the plaintiff presents two answers: – 1st That in a suit for a cause such as the present in a Court of Equity, before the Judicature Act, the period of limitation would have been calculated from the discovery, and not from the commission, of the fraud; and, 2ndly. That the allegations in the reply involve a statement of fraudulent concealment of the original fraud till within six years.

In my opinion, the argument that in a suit for a cause such as the present in a Court of Equity, before the Judicature Act, the period of six years would be calculated from the discovery and not from the committal of the fraud cannot be sustained.

The Statute of Limitations prescribed a period of limitation for some, but only for some, forms of action, and such forms of action were exclusively forms of proceedings in Courts of Common Law. Those statutes were, however, always held, and in my opinion rightly held, to be applicable to the causes of action for which those forms of action were the appropriate remedies, although for some collateral reasons such causes of action were sought to be made available in Courts of Equity. In the leading case of Hovenden v Lord Annesley 2 Sch & Lef 630-1 Lord Redesdale says:

But it is said that Courts of Equity are not within the Statutes of Limitations. This is true in one respect: they are not within the words of the statutes, because the words apply to particular legal remedies; but they are within the spirit and meaning of the statutes, and have been always so considered. I think it is a mistake in point of language to say that Courts of Equity act merely by analogy to the statute; they act in obedience to it. … I think, therefore, Courts of Equity are bound to yield obedience to the Statute of Limitations upon all legal titles and legal demands, and cannot act contrary to the spirit of its provisions. I think the statute must be taken virtually to include Courts of Equity, for when the legislature by statute limited the proceedings at Law in certain cases and provided no express limitation for proceedings in Equity, it must be taken to have contemplated that Equity followed the law, and, therefore, it must be taken to have virtually enacted, in the same cases, a limitation for Courts of Equity also.

The remedies or forms of action mentioned in these statutes did not include a proceeding to set aside or cancel for fraud an instrument under which an estate had passed. I use these limited words advisedly, instead of the more general ones, to avoid a contract for fraud, in order to exclude the simple cases not material here, but to which I shall have to refer in distinguishing some of the cases cited, in which the parties could be reinstated in their former position, and in which, therefore, an action for money had and received, or an action of trover (both of which were within the terms of the Statute of Limitations), would lie to recover back money or goods which had been obtained under a contract avoided for fraud. It follows, therefore, that whenever the cause of action was to avoid a contract under which an estate passed, the Statute of Limitations was inapplicable; but it was so inapplicable, not because the cause of action was before the statute cognisable in a Court of Equity, but because it was one which was not within the Statute of Limitations. So also, since the Judicature Act, if such a suit be depending in a Common Law Division, as, notwithstanding s 36 of the Judicature Act, it may be (when, for instance, it is the subject of a counterclaim), the Statute of Limitations will not afford a defence. On the other hand, in actions or suits before the Judicature Act, in which damages were sought to be recovered for the fraud upon the basis of non-avoidance, the statute applied, whether the proceeding in which the question arose was one at Law or in Equity; and such statute equally applies, since the Judicature Act, in a suit for the same purpose, irrespective of the Division in which such suit may appear to have been commenced or be pending.

None of the cases cited are at variance with this view. In none of them, whether the forum was a Common Law or an Equitable one, was it attempted to apply a period of limitation commensurate with that fixed by the Statute of Limitations, but commencing not from the accrual of the cause of action, but from the discovery of the fraud, to an action based upon the non-avoidance of the transaction alleged to be impeachable for fraud.

Upon the contrary, in Peek v Gurney LR 6 HL 377, which was a proceeding of this nature in a Court of Equity, upon the correlative question whether a lapse of time less than that prescribed by the Statute of Limitations could be relied on as disentitling the plaintiff to relief, the House of Lords is very specific in defining the time which in such a case (a case which ad hoc is identical with the present) precludes a plaintiff from suing, as being that and that only which is mentioned in the statute. There Lord Chelmsford says LR 6 HL 384:

The suit in the present case is not for the rescission of the contract, but is founded upon the loss the appellant has sustained and may sustain in consequence of his being bound by the contract he has entered into. It is a proceeding similar to an action at Law for deceit; and the only amount of delay which could be a bar to relief is fixed by the Statute of Limitations, by analogy to which Equity generally proceeds in questions of laches.

So also, Lord Cairns says Ib. 402:

The suit is in the nature of an action for damages for misrepresentation; it is in the nature of an action or proceeding ex delicto; and it appears to me that to such an action or proceeding there is no bar arising from delay, unless the delay be such as would bring the Statute of Limitations applicable to the case into operation.

In all the cases cited for the plaintiff, in which the period was computed from the discovery of the fraud, save one, Ecclesiastical Commissioners v The North Eastern Railway Company 4 Ch Div 845, it will be found that the cause of suit was of such a nature that the Statute of Limitations did not apply, and that the Court acted not in obedience to, but by analogy to, such statute.

In cases within the Statute of Limitations, Courts of Equity were bound by its terms as conclusively as Courts of Law, and they were powerless to alter its provisions; but in framing a rule of their own (from, or by analogy to, that statute) which was to be applicable to cases within neither its letter nor spirit, Courts of Equity were not bound to follow in all respects the statute, but were entitled to apply it, subject to such modification as they thought consonant with justice. They accordingly laid down the rule that in suits to rescind or set aside transactions for fraud (to which no statutable period of limitation was applicable), they would deem the title to avoid the transaction as not having completely arisen until the discovery of the fraud, and that the period, the lapse of which would amount to a bar to relief, should therefore be calculated not from the commission, but from the discovery, of the fraud, provided it could not with due diligence have been previously known.

In no case, however, that I am aware of (save The Ecclesiastical Commissioners for England v The North Eastern Railway Company 4 Ch Div 845) can it be contended that the rule applied to a cause of action which was within the Statute of Limitations. In that case, which is a decision of the Court upon the hearing of the cause and not upon demurrer, the pleadings are not given in the report, and they may have contained an allegation of concealment which (if proved) might, upon a ground I shall afterwards mention, have supported the decision. If the decision be not susceptible of this explanation, I can only say that I do not agree in it, and must decline to follow it.

The plaintiff, however, denies that the equitable rule is restricted to cases outside the Statute of Limitations, where the court acts by analogy and not in obedience to it and in support of their denial they rely on Booth v Lord Warrington 4 Br PC 163, and the numerous cases in Equity to recover money procured by fraud which have followed that decision. As our judgment mainly depends upon this question, I must explain at some little length my view of that decision.

There was in Equity a general jurisdiction to set aside contracts procured through fraud. Some of these contracts, however, were of such a nature that if the defrauded party returned the property (or, in the case of money, an equivalent amount) which he had received under the fraudulent contract, such contract might at Law be avoided by him for the fraud. It was, however, clearly settled that the jurisdiction of Courts of Equity to set aside transactions as fraudulent was not confined to cases in which the transaction could not be avoided at Law, Story s Eq Jur 184. There were, therefore, cases in which there was concurrent jurisdiction in Courts of Law and Equity to recover back money paid under a contract avoided for fraud; and, in my opinion, there was a difference in the application of the Statute of Limitations, according to the Court in which the proceeding was instituted. When it was taken in a Common Law Court, it was held that, as the avoidance of the contract related back, and such contract when avoided was so avoided ab initio, the money paid under it continued, notwithstanding its payment under the fraudulent contract, the property of the defrauded party. The right to recover it, therefore, arose upon the moment of its payment under the contract; and as the only form of action known to the common law in which it could be recovered back was an action for money had and received, which was within the Statute of Limitations, the period of six years ran from the time of the payment, and not from the discovery of the fraud. In truth, this form of action rested on what, if the case were dealt with according to the intention of the parties, would have been a fiction, viz. that the money was all through the money of the payer, although both parties (from the time of the payment to the discovery of the fraud) treated it as that of the payee.

In Booth v Lord Warrington 4 Br PC 163 the question was raised whether the same result ensued when, under such circumstances, the defrauded party sued in Equity instead of at Law. In such a proceeding he did not rely upon the fiction of the money procured by the fraud always having continued to be his. He asked the same doctrine to be applied in reference to a suit to recover back money procured by fraud as would have applied had that which had been so procured been an estate in land, or any other property; and it was there held that, although the plaintiff there at one time had a remedy at Law, and that remedy had been barred by the Statute of Limitations, he also had a remedy in Equity which was not within the statute. That remedy, however, was, in my opinion, based upon the avoidance or rescission of the transaction for fraud; or, in other words, one which was not within the Statute of Limitations, and in which the Court acted not in obedience but by analogy, to that statute.

For these reasons, it appears to me to be clear that the Statute of Limitations applies; and that if a suit for a cause of action such as the present had before the Judicature Act been determined by a Court of Equity, the period of limitation would have been held to run from the accrual of the cause of action and not from the discovery of the fraud.

This brings me to the second question. A state of facts may exist which would show that it is against conscience to rely upon any particular defence; and this doctrine applies as well to a defence founded upon the Statute of Limitations as to any other. If, then, such a state of facts be shown by the reply, it is a good answer to the defence – as this Court, applying the principles of equity, cannot allow effect to be given to that which is against good conscience to rely on. This is the effect of the decision of Lord Redesdale in Bond v Hopkins 1 Sch & Lef 413; and Brett, LJ, in Gibbs v Guild 9 QB Div 68, lays down the same principle as having been the ground of the decisions of Courts of Equity. But assuming, he says, that the Statute of Limitations would be binding, the Courts of Equity, on doctrines of their own, sometimes applied, if other circumstances arose, a particular kind of equity. They did not construe the statute so as to give equity; they adopted an equity which was quite independent of the statute, but which, no doubt, had an effect on the transaction notwithstanding the statute – that is to say, they said if the existence of the cause of action given by the defendant was fraudulently concealed by the defendant from the plaintiff until a period beyond six years, then they would not allow the defendant to prevent the plaintiff from supporting his right to his remedy on the ground that the statute was a bar. It seems to me that there is some little confusion in the expressions used in some cases as to the origin of the cause of action being a fraud. That is not the fraud which raised the equity; but if there was a cause of action, and if its existence was fraudulently concealed from the plaintiff by the defendant who had given that cause of action, it was then that the plaintiff s equity arose, notwithstanding that his cause of action had arisen more than six years before.

Now, does this reply show a state of facts which renders it against conscience in the defendant to rely upon the Statute of Limitations? The equity to prevent him relying upon it is, as I have shown, rested by Brett, LJ, upon the fraudulent concealment by the defendant from the plaintiff of the existence of the cause of action. That concealment was, in Gibbs v Guild, stated as a fact in the replication 9 QB Div 59. The distinction between that case and the present is, that here the allegation of concealment, which is the entire foundation of the equity, is absent. To hold therefore, the present reply good, we should hold as a matter of law that every fraudulent representation involves a continuous fraudulent and intentional concealment of that fraud until the injured party might or ought to have discovered it. To say that, however, would be as effectually to alter the Statute of Limitations as to substitute the words after discovery of the fraud for after the cause of such action; for, if fraudulent representation necessarily involves subsequent fraudulent concealment, by suing upon the concealment which was involved, instead of on the representation which involved it, the statute would run, not from the accrual of the cause of action upon the representation, but from the discovery of the fraud.

I do not decide, nor do I think, that active or aggressive concealment is in all cases essential to afford an equitable answer to the Statute of Limitations. In many cases there may be a duty to disclose the truth, and in such a case non-disclosure may have the same effect as active concealment would have in other cases. Again, I think it clear that a fraudulent misrepresentation may be made under such circumstances that an inference of fact may rightly be drawn of a subsequent active and intentional concealment of the fraud. But, in my opinion, whether the concealment sufficient to amount to this equitable answer must be active, or may in some instances be mere non-disclosure – whether such concealment may or may not in any particular case be inferred from the original fraud, the question whether there was or was not concealment is in every case one of fact; and in the present case, there being no allegation of such fact, the entire basis of the equity to be relieved against the Statute of Limitations is absent.

Upon the whole, my opinion is, that the reply is bad, and that the demurrer thereto ought to be allowed.

Griffin -v- Calally

[2008] IEHC 83 (01 February 2008)

High Court Record Number: 2002 8244 P

Date of Delivery: 01 February 2008

Court: High Court

Composition of Court: Edwards J.

Judgment by: Edwards J.

Status of Judgment: Approved

Neutral Citation Number: [2008] IEHC 83
THE HIGH COURT
[2002 No. 8224 P]
BETWEEN
NICOLA GRIFFIN
PLAINTIFF
AND
LUCY CALALLY
DEFENDANT
JUDGMENT of Mr. Justice John Edwards delivered on Friday the 1st day of February 2008
Introduction
The issue that I have to decide arises in the context of personal injuries proceedings arising out to a road traffic accident on the 18th July, 1999. The plaintiff was travelling as a passenger in a motor car which was in a head on collision with another motor car at Scarrawalsh, Enniscorthy, Co. Wexford. Unfortunately, the driver of the other vehicle, a Mr. Hugh Kerr, died in the accident. The plaintiff alleges that she suffered personal injuries, loss and damage in the accident, and that these were caused by the negligence and breach of duty of the deceased in or about the driving of his motor vehicle. The defendant named in the proceedings is a law clerk in a firm of solicitors and is sued as nominee on behalf of the deceased driver.
The Plenary Summons was issued on the 13th June, 2002, and a Statement of Claim was delivered on the 17th February, 2003. There was the usual request for further and better particulars arising out of the Statement of Claim and further and better particulars were duly furnished. On 12th May, 2005, a Defence was filed on behalf of the defendant. This was a very brief document and, in the circumstances, it is convenient to recite it in full:-
“1. The defendant denies that the plaintiff suffered, sustained or incurred the alleged or any injuries or loss or damage or expense and each and every particular of same is denied as if individually set forth herein and traversed seriatim.
2. No admission is made as to the alleged or any items of special damage.”
The defence as filed is not signed by counsel.
The defendant brings the motion that is presently before me and in her Notice of Motion seeks an order pursuant to O. 28, r. 1 of the Rules of the Superior Courts granting her liberty to deliver an amended defence to include the following preliminary plea and objection:-
“The claim of the plaintiff herein is statute barred pursuant to the provisions of s. 9(2)(b) of the Civil Liability Act, 1961 and the Statute of Limitations, the proceedings herein not having been commenced within the period of two years after the 18th July, 1999, being the date of death of Hugh Kerr, the alleged tort feasor in the proceedings herein.”
This application has been vigorously opposed by the plaintiff.
As the defendant is the moving party she will hereinafter be described as the applicant. Correspondingly the plaintiff will hereinafter be referred to as the respondent.
The application was grounded upon an affidavit of Ivan Durcan, solicitor, sworn on the 21st November, 2006, and the documents therein exhibited. A replying affidavit was filed on behalf of the respondent, namely an affidavit of David K. Anderson, solicitor, sworn on the 15th December, 2006, with accompanying exhibits. Then by way of rejoinder Mr. Ivan Durcan sworn a supplemental affidavit on the 2nd February, 2007 responding to Mr. Anderson’s affidavit.
The matter came on before this Honourable Court sitting in Tralee on 17th January, 2008, and in the course of the hearing detailed legal arguments were presented to me, to which I will refer later. I then retired to consider the evidence and the parties respective submissions and, having done so, formed the view that it would be inappropriate in the particular circumstances of this case to allow the amendment sought. Accordingly, I dismissed the applicant’s application and I indicated that I would give reasons for my decision in a written judgement on today’s date. I now give those reasons.
The evidence
At para. 5 of his affidavit of the 21st November, 2006 Mr. Durcan exhibits a booklet of inter-partes correspondence in the case marked “ID 1”. With respect to that course of correspondence he disposed:-
“I acknowledge the references in the correspondence to liability not being an issue or otherwise being conceded, save for possible seat belt issues, but it is submitted that far from communicating directly or indirectly to the plaintiff’s solicitors, that there was no need to issue proceedings, I repeatedly called upon the plaintiff’s solicitors to move matters along and to issue proceedings.”
It will be necessary to refer to the inter-partes correspondence in a little more detail later in this judgment. However, the other matter of significant substance in the affidavit of Mr. Durcan, is contained in para. 7 wherein he states:-
“I say and believe that the failure to plead the limitation issue referred to above was a mistake and an oversight. I pray this Honourable Court for liberty to deliver an amended Defence raising this as a preliminary issue. I make this application in the context of the correspondence including the explicit references calling upon the plaintiff’s solicitors to move the matter along and to issue proceedings which could not reasonably give rise to any assumption on their part that there was no requirement to issue the proceedings.”
In his replying affidavit, Mr. Anderson referred at para. 3 to the averment in para. 7 of Mr. Durcan’s affidavit, that the failure to plead the statute of limitations in the applicant’s Defence “was a mistake and an oversight”. In regard to that Mr. Anderson deposed:-
“I am surprised that Mr. Durcan should make such an averment because the entire course of the dealings between us up to the issue of this motion was that liability was not an issue in this case. Indeed, on the date the Defence was delivered, a Notice of Tender was also served in which the defendant made a substantial offer in settlement of this case.”
At para. 4 of his affidavit Mr. Anderson avers that the correspondence exhibited by Mr. Durcan only gives a partial history of the proceedings. Mr. Anderson then goes on to exhibit further correspondence and, save for one item which must be mentioned at this point, I will deal with the relevant correspondence later. The one letter that must be referred to at this point was a letter of 4th September, 2000 from Mr. Durcan to the respondent’s solicitors stating plainly:-
“Liability will not be an issue in these claims save for possible seat belt issues.”
At para. 5 of his affidavit, Mr. Anderson deposes:-
“Following the letter of 4th September, 2000, the dealings between our respective firms of solicitors proceeded on the basis that liability was not an issue. Certainly, I accepted on behalf of the plaintiff that this was the case and that the only reason that proceedings might be required would be to assess quantum.”
At para. 6 of his affidavit, Mr. Anderson states:-
“Mr. Durcan avers that he repeatedly called upon my firm to move matters along and to issue proceedings. However, as is apparent from the correspondence, when this was done it was always in the context of attempts being made to settle the proceedings and never against any suggestion that the proceedings when issued would actually be contested as regards liability.”
Mr. Anderson goes on to describe the course of dealings between himself and Mr. Durcan both before and after the issuing of proceedings and it is not necessary to recite in full the evidence in that regard. He alludes to various attempts to negotiate a settlement of the matter; to the furnishing of medical reports and vouchers to the applicant with a view to reaching settlement; to the fact that the respondent was requested to, and did, attend numerous medical consultations set up by the applicant; to the issuing of proceedings and the raising of Notices for Particulars by the applicant, to the furnishing of replies to the applicant’s Notices for Particulars and extensive correspondence between the solicitors with regard to the respondent’s claim for loss of earnings. Mr. Anderson comments:-
“This was all done against the background that liability was not an issue in the case, and in which every effort was being made to co-operate with, and facilitate, the defendant’s inquiries.”
At para. 10 of his affidavit, Mr. Anderson refers with particularity to the fact that a Notice of Tender offer was delivered with the Defence on the 12th May, 2005. He points out that the tender was not accepted but by letter dated the 24th June, 2005 he communicated with the applicant’s solicitor that he was currently awaiting an occupational therapist’s report in respect of his client and that he would revert in respect of the tender. He points out that on 8th November, 2005 he furnished the applicant with the respondent’s occupational therapist’s report together with an updated schedule of loss of earnings from the respondent’s accountant, and also the respondent’s actuarial report. He states that in reply, the applicant’s solicitor, who had previously sought settlement negotiations, requested service of a Notice of Trial.
It appears that Notice of Trial was never in fact served. However, the respondent attended a further medical consultation at the behest of the applicant on the 4th May, 2006.
It would appear that the first intimation received by the respondent that the applicant was seeking to rely on the Statutes of Limitation was when, out of the blue, the Notice of Motion in the present application was issued on the 21st November, 2006.
In his supplemental affidavit of the 2nd February, 2007 Mr. Durcan makes the following points. At para. 3 he contends that Mr. Anderson equates references to “liability not being an issue” with an express or inferred representation, which he asserts, that a defence under the Statutes of Limitation will not be relied upon. He submits that these are not synonymous. He points out that the correspondence exhibited makes no reference to the Statutes of Limitation. He avers that no express representation was made that the applicant would not raise the limitation period. He points out that the respondent’s advisers did not seek any latitude or indulgence in this regard. Moreover, he says, the applicant’s advisers did not offer any comfort on this point and did not, for example, at any stage suggest either that proceedings could be dispensed with or that no point would be raised if the issuing of proceedings was delayed beyond the expiry of limitation period.
At para. 5 of his affidavit he states that so far as reliance on implied representations is asserted, the furnishing of loss of earnings documentation, experts reports and other information, or indeed references to possible settlement negotiations, do not of themselves, separately or in combination, constitute or comprise a representation that proceedings are not required or that a defence under the Statutes of Limitation will not be relied upon. He makes certain specific references to the correspondence and, as I have said, I will deal with the correspondence separately.
Relevant correspondence
I should say at the outset that “without prejudice” correspondence was included in the correspondence exhibited by both parties. Neither side has asserted a claim of privilege before me nor has any objection been taken by either side to me seeing or placing reliance upon “without prejudice” correspondence. In the circumstances I propose to treat and have regard to all correspondence in the same way, regardless of whether or not any particular item is expressed to be “without prejudice”.
The course of correspondence exhibited before me commences with a letter of the 21st July, 2000 from the applicant’s solicitors to the respondent’s solicitors indicating that they have authority to accept service of proceedings. They further request the sharing of medicals on the usual without prejudice basis or, failing that, that the respondent might be made available for medical examination on the usual terms. This letter was replied to by a lengthy letter from the respondent’s solicitors to the applicant’s solicitors dated 30th August, 2000. Part of the reason for its length was that it dealt with not just the claim of the respondent in these proceedings, but with a second claim relating to the respondent’s husband and a third claim relating to the respondent’s daughter, both of whom were also injured in the accident. The letter, inter alia, promulgates various complaints on the part of the respondent’s solicitor concerning the manner in which the applicant’s insurer had dealt with all three claims up to that point. The letter dealt at length with the claim of the respondent’s husband on the basis that his claim “appears to be the only one of the three Griffin claims that might rightly be approaching a possibility of long term assessment of his loss, damage and injury… .” Significantly with regard to the respondent’s husband’s case the letter states:-
“We have no problem in producing our client’s medical reports, on the usual basis and we attach hereto copies of the above surgeon’s reports.”
There was no offer to furnish medical reports in respect of either the respondent herself or her daughter but, in fairness, this has to be understood in the context of the view asserted that the only claim that was ready to be progressed was that of the respondent’s husband.
In response to the said letter of the 30th August, 2000 the applicant’s solicitors wrote to the respondent’s solicitors on the 4th September, 2000 in the following terms:-
“Dear Sirs,
Thank you for your letter of the 30th August. Liability will not be an issue in these claims save for possible seat belt issues.
Thank you for the medical reports in relation to Garda Griffin. We await a further report following his recent operation.
Can you furnish us with any medical reports in relation to Mrs. Nicola Griffin’s claim and Catherine Griffin’s claim?
If you wish to issue proceedings you might note that the nominated Defendant is Lucy Calally. Ms. Calally is a law clerk in this office and is nominated purely for the purposes of these proceedings.
We await hearing from you.
Yours faithfully.”
There was some delay on the part of the respondent’s solicitors in responding to the applicant’s solicitors letter of the 4th of September, and reminders were sent by the applicant’s solicitors to the respondent’s solicitors on the 25th October, 2000, the 8th December, 2000, and the 25th January, 2001 respectively. By letter of the 26th January, 2001 the respondent’s solicitors replied to the applicant’s solicitors. This reply indicated:-
“We are prepared to recommend to our client that you appoint a medical attendant to independently assess our client’s injuries arising out of the above accident and for record purposes we also enclose a further medical report which we hold on file from Mr. Michael O’Riordan dated the 7th September, 2000.
We propose to attempt to settle and resolve the claim of Garda Joseph Griffin as a preliminary matter and thereafter the two other family member’s claims.
We await your formal reply by return.
Yours faithfully.”
The applicant’s solicitors responded on the 31st January, 2001 reiterating that there had been a formal of concession of liability save for possible seat belt issues. It went on to state:-
“You say you want to attempt to settle the claims. Do you want to meet now or do you intend to issue proceedings and then meet?
What is the position about the other cases? When do you intend to issue proceedings?
We await hearing from you.
Yours faithfully.”
By a letter dated the 30th April, 2001 from the respondent’s solicitors to the applicant’s solicitors in reply to theirs of the 31st January, 2001 the respondent’s solicitors complained that, with respect to the case of the respondent’s husband, the applicant’s solicitors had neither commented upon the medical reports sent to them or nominated a medical examiner. The letter continued:-
“In respect of the other two members of the Griffin family their condition is still very serious – we know and understand that your client’s objective is to ‘box’ the claim and assess the value thereof. This has no beneficial interest to our clients and unless and until both Mrs. Griffin and her young daughter reach a recovery stage they will remain under constant medical supervision and attendance and we will not limit their claim by suggesting settlement or otherwise until a clear path of damage, loss and injuries is ascertained.
We again draw your attention to the penultimate paragraph of our letter dated the 26th January, 2001 when we clearly specified our proposal and we now look forward to receiving a beneficial response forthwith.”
The applicant’s solicitors responded by a letter of the 1st May, 2001 stating:-
“The issue is quite simply – do you want to meet in one or more of the cases now to see if we can settle them or if not, please issue proceedings and we will get on with the case. Three months have gone by and nothing has happened (between us) and it is time to move the case on now, either by negotiation or issue of proceedings. Accordingly, please let us hear form you.
Yours faithfully.”
Again, there was delay on the part of the respondent’s solicitors in responding to the letter of the 1st May, 2001 and the applicant’s solicitors sent one line reminders on the 29th May, 2001 and the 18th July, 2001, respectively, the latter date coincidently being the date on which the limitation period expired. The latter reminder appears to have crossed with a reply from the respondent’s solicitors to the applicant’s solicitors dated the 18th July, 2001. It again complained that the applicant’s side had neither commented upon the medical report furnished nor nominated a medical examiner. It then states:-
“On this side of the fence if you had to hear and translate the very considerable family loss and upset which has arisen in respect of the above incident you might better well better understand the trauma and distaste that has arisen in respect of the entire matter which occurred two years ago today.”
There was then a reiteration of the call for the nomination of a medical examiner and the letter concluded:-
“If we do not receive what we consider to be a proper beneficial response we will institute proceedings without further reference. It appears to our company that no matter what we say and/or how we say it – our words, queries, proposals and otherwise have never got a full and/or proper response from you at any time. The other Griffin family members, for whom we also act, await a proper, positive and helpful response from your firm.
Yours faithfully.”
The first letter written in the post expiration stage of the correspondence was a letter of the 23rd July, 2001 from the applicant’s solicitors to the respondent’s solicitors. It stated:-
“Our letter of the 31st January could not be clearer. You were kind enough to send us a report from Mr. O’Riordan. We asked you whether or not you wanted to meet to settle the claim or else we invited you to issue proceedings. Since then you have done neither. We are quite happy to proceed on the basis of Mr. O’Riordan’s medical report (and any updated ones since).
It is not for us to comment on what you have to do for the plaintiffs. Our respective firms are here to represent our clients and with that in mind we have invited you to settlement discussions. If you do not wish to meet to discuss settlement of the claim on a without prejudice basis we suggest that you issue your proceedings and get on with the case or cases. We await hearing from you – by return please.
Yours faithfully.”
The next letter is a letter of the 1st August, 2001 again from the applicant’s solicitors to the respondent’s solicitors referring to “our recent meeting”. It requests “will you please serve proceedings”. There is then another letter from the applicant’s solicitors to the respondent’s solicitors dated the 7th November, 2001 in the following terms:-
“We refer to our meeting at the end of July. We have not heard from you with proceedings. Will you please let us hear from you so that this matter can proceed?”
A one line reminder was sent on the 3rd December, 2001 from the applicant’s solicitors to the respondent’s solicitors. On the same date, but by separate letters, each of the claimants was requested to attend a medical examination by a doctor nominated by the applicant. By a letter from the respondent’s solicitors to the applicant’s solicitors dated the 13th December, 2001 it was confirmed that the three claimants would attend the said medical examinations.
The next item of correspondence is a letter of 26th June, 2002 from the respondent’s solicitors to the applicant’s solicitors enclosing a Plenary Summons in respect of the respondent’s claim. That letter was responded to by letter of the 27th June, 2002 from the applicant’s solicitors to the respondent’s solicitors returning the original Plenary Summons duly stamped with acceptance of service endorsed thereon. The letter also enclosed an Appearance to the proceedings and called on the respondent’s solicitors to deliver a Statement of Claim. Thereafter, there was the usual type of correspondence that one expects in connection with proceedings recently served. There were letters requesting particulars; letters threatening motions and so on. By letters of 20th August, 2002 all three claimants were again requested to attend a medical examination by a doctor nominated by the applicant. By letter of 3rd April, 2003 the applicant requested the claimants to attend yet another medical examination by the applicant’s doctor. There was a similar request communicated by a letter of the 3rd September, 2003. The affidavit of Mr. Anderson exhibits a continuation of the correspondence between the respective solicitors from that time up until April 2006. There are twenty three further letters in all and, as many of them are lengthy and detailed it will be sufficient for the purposes of this judgment to characterise the correspondence in a general way. There was very detailed and protracted correspondence between the parties concerning the special damages claimed by the respondent and in particular her claim for loss of earnings. Accountants were involved on both sides. Further, the applicant’s solicitors were furnished with an Actuary’s report by the respondents’ solicitors and also with a report of a Vocational Rehabilitation Consultant. The applicant’s solicitors also requested the respondent to undergo a number of further medical examinations.
In addition, and quite tellingly, it was during this period that the Defence was filed, namely on the 12th May, 2005, and the tender offer made. Further, there are at least two demands in the correspondence from the defendant to the plaintiff that the plaintiff should serve Notice of Trial, failing which “we will serve Notice of Trial ourselves”. Throughout all this time there was no suggestion in any letter that the Statute was being, or might be, relied upon.
The Applicant’s Submissions
The applicant relies firstly on the terms of O. 28 r. 1 which states:-
“The court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”
The applicant contends that the amendment requested is “necessary” for the determination of the real questions in controversy between the parties. Anticipating, correctly, that the application was likely to be resisted and opposed on the basis of a plea of estoppel arising from the representation contained in the letter of the 4th September, 2001 to the effect that liability would not be an issue in the case, the applicant places strong reliance on the following passage from the judgment of Chief Justice Keane in the case of Desmond Ryan v. Michael Connolly and Ann Marie Connolly [2001] 2 ILRM 174 at 182:-
“The fact that a defendant has expressly and unambiguously conceded the issue of liability in a case will not necessarily of itself make it reasonable for the plaintiff to assume that he can defer the institution of proceedings beyond the limitation period. Where an insurance company within days of the accident accepts that no issue on liability arises – e.g. in the case of a passenger wearing a safety belt – but for some reason the subsequent negotiations become dormant, the plaintiff may well find himself unable to rely on the principle under consideration if he permits the limitation period to expire without instituting proceedings. In the absence of a statement by the insurance company from which it was reasonable to infer that, in the event of proceedings not being instituted within the limitation period it would refrain from relying on a defence under the Statute, there seems no reason in principle why the insurance company should be subsequently precluded from relying on such a defence.”

The Respondent’s Submissions
The respondent relies on the decision of the Supreme Court in Kevin Doran v. Thomas Thompson & Sons Ltd [1978] 1 I.R. 223 and also upon the case of Murphy v. Grealish [2006] IEHC 22, a decision of Mr. Justice John MacMenamin.
Particular reliance was placed on the following passages from the judgments of Henchy J. and Griffin J., respectively, in the Doran case. At p. 225 of the report Henchy J. stated:
“Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and, thereby, into a justifiable belief that the statute would not be used to defeat his claim, to escape liability by pleading the statute. The representation necessary to support this kind of estoppel need not be clear and unambiguous in the sense of being susceptible of only one interpretation. It is sufficient if, despite possible ambiguity or lack of certainty, on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not be heard to say that an admission of liability was not intended.”
He continued at 227 of the report:
“Looking at the matter without the benefit of hindsight, I consider that no reasonable legal adviser who read the file of the plaintiff’s solicitor at the stage when the end of the limitation period was approaching could have reasonably believed that the issue of liability had been or would be abandoned. At best he could only have hoped or expected that such would be the case, and the basis for that hope or expectation would have been the plaintiff’s instructions and not anything said or done by the insurers.
The insurers had exercised their right to remain silent on the issue of liability. There was no onus on them to deny the allegation of negligence that had been made in the opening letter. It was for the plaintiff’s solicitor to pursue the matter in correspondence and, in the absence of a satisfactory reply, to issue proceedings. His failure to do so was not supported by any causative representation by the insurers. As many a would-be plaintiff has learned, it is a fact of life in the world of insurance that a not unusual way for insurers to dispose of unprosecuted claims is to allow them to die of inanition. That is what happened here.”
Griffin J. stated the following in his judgment in the matter at pp. 230-231 of the report:
“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and that he may be restrained in equity from acting inconsistently with such promise or assurance. The representation, promise or assurance must be clear and unambiguous to found such an estoppel: see Bowen L.J. at p. 106 of the report of Low v. Bouverie [1891] 3 Ch. 82. But this does not mean that the representation must be positively incapable of more than one possible interpretation. Where, however, more than one construction is possible, the meaning relied upon must clearly emerge in the context and circumstances of the case, although in other contexts or other circumstances the same words might possibly have borne a different construction. In addition, the party relying on the representation must show that the representation was reasonably understood by him in a sense materially inconsistent with the allegation against which the estoppel is attempted to be set up: see Cairns L.J. at p. 306 of the report of the Court of Appeal in Woodhouse Ltd v. Nigerian Produce Ltd [1972] A.C. 741 where he explained and analysed the celebrated passage of Bowen L.J. in Low v. Bouverie.
If the defendant’s insurers had made a clear and unambiguous representation (in the sense I have explained) that liability was not to be in issue, and the plaintiff’s solicitor had withheld the issue of proceedings as a result, I would have held that the defendants were estopped from pleading the Statute of Limitations.”
In the present case Counsel for the respondent makes the point that in neither Doran v. Thompson, nor in Ryan v. Connolly, was there a clear and unambiguous admission of liability. This point was treated as being of significant importance by MacMenamin J. in Murphy v. Grealish, and was one of the grounds on foot of which he distinguished the facts in Murphy from those in the Doran and Ryan cases respectively. Moreover, counsel for the respondent in the present case drew attention to the fact that on account of this material difference it had been strenuously argued in Murphy v. Grealish that the remarks of Keane C.J. in Ryan v. Connolly (which the applicant relies upon) must be treated as obiter dicta. He submitted that this had been accepted by MacMenamin J. and that I should do the same. According to counsel for the respondent the ratio decidendi of Ryan is encapsulated in this further quotation from Keane C.J. (which follows on immediately after the passage relied upon by the applicant):
“On any view, however, it is clear that a plaintiff who seeks to rely on the law as laid down in Low v. Bouverie and Doran v. Thompson Ltd. must be in a position to satisfy the court that there was a clear and unambiguous representation by the defendants that liability would not be in issue from which it was reasonable for the plaintiff to infer that the institution of proceedings was unnecessary ….”
Counsel for the respondent submitted that if that is regarded as the ratio of the Ryan case then Ryan can be readily reconciled with Doran v. Thompson and the earlier cases. Essentially, where there has been a clear and unambiguous representation by a defendant that liability will not be in issue, and the plaintiff has reasonably relied upon it, the plaintiff will be able to successfully claim estoppel. The dictum of Keane C.J. engages with the issue of the “reasonableness” of the plaintiff’s reliance on the representation. As the Chief Justice pointed out:
“Where an insurance company within days of the accident accepts that no issue on liability arises – e.g. in the case of a passenger wearing a safety belt – but for some reason the subsequent negotiations become dormant, the plaintiff may well find himself unable to rely on the principle under consideration.”
In the contention of counsel for the respondent the Chief Justice was doing no more than echoing Henchy J.’s recognition of a legitimate strategy frequently employed by insurance companies, namely that of allowing unprosecuted claims to die of inanition. Thus, if a claim is allowed to go dormant and is not prosecuted for a significant period then, depending on the circumstances of the case, continued reliance on a representation that liability is not in issue may become unreasonable. Whether, and if so when, it becomes unreasonable to continue to rely on the representation will be dependent on the circumstances of the particular case, so says the respondent. Counsel for the respondent contends that in this particular case the correspondence, and the course of dealings between the parties, clearly establishes that the respondent’s claim was anything but dormant.
Decision
This court regards the legal submissions of the respondent as representing a careful and correct analysis of the law. I am satisfied that in this case the respondent was the recipient of a clear and unambiguous representation from the applicant, initially proffered in the letter of the 4th of September 2000, and reiterated in later correspondence. The respondent undoubtedly relied upon this representation from the moment it was made. On the basis of the correspondence and the dealings between the parties I am completely satisfied that the plaintiff’s claim was not allowed to go dormant, nor was it not being prosecuted. The non-issuance of proceedings by the 18th of July 2001 occurred in the context of the applicant having been informed of the respondent’s solicitors of their wish to have the respondent’s husband’s case dealt with first, and thereafter to deal with the other two cases. Moreover, the applicant had also been informed that the injuries of neither the respondent nor the respondent’s daughter had stabilised to the point where negotiations could be progressed. As recently as the 30th of April 2001 the applicant was informed:
“In respect of the other two members of the Griffin family their condition is still very serious – we know and understand that your client’s objective is to ‘box’ the claim and assess the value thereof. This has no beneficial interest to our clients and unless and until both Mrs. Griffin and her young daughter reach a recovery stage they will remain under constant medical supervision and attendance and we will not limit their claim by suggesting settlement or otherwise until a clear path of damage, loss and injuries is ascertained.”
In the light of that representation the applicant could not reasonably have regarded either claim as being abandoned, nor could it have inferred an intention not to prosecute them. In fact it was the very opposite. They were simply being told that these claims were not ready to be progressed at that point.
Moreover, the way in which the applicant dealt with the respondent at all stages up until the autumn of 2006 served only to reinforce the express representation that had been made that liability would not be an issue. The question of the statute was never raised in correspondence. The respondent’s solicitors were encouraged to engage in settlement talks, and did so, and then to issue proceedings. A defence was filed that admitted liability and did not plead the statute. That defence was accompanied by a Notice of Tender. The applicant pressed the respondent to serve Notice of Trial. Throughout this phase there was a very active course of correspondence about the special damages claim. The respondent was regularly being asked to attend medical examinations at the behest of the applicant and was doing so. Experts reports were being exchanged. On no view or construction of the matter could the respondent’s claim be regarded as having been abandoned, or as having gone dormant, or as not being prosecuted. The issuance of the Notice of Motion of the 21st of November, 2006 came completely out of the blue, and in my view was unconscionable having regard to the clear and unambiguous representations that had been made, and the course of dealings between the parties. Moreover, I am unimpressed with the averments in Mr. Durcan’s affidavit that the limitation period was not initially pleaded due to “a mistake and an oversight”. It might be one thing or the other but it is hard to understand how it could be both. This is not explained. Moreover, he does not amplify or describe the nature of the “mistake” referred to. The same comments can be made with respect to the claim of “oversight”. It is hard to see how a mistake or oversight could have occurred in the light of the dealings that in fact occurred and in the absence of adequate explanations this Court cannot accept the bald, and on one view of it contradictory, excuses put forward by Mr. Durcan. I consider that the applicant is estopped in the circumstances of this case from relying upon the Statutes of Limitation. I therefore dismiss the application to amend.

Griffin -v- Calally

[2008] IEHC 83 (01 February 2008)

High Court Record Number: 2002 8244 P

Date of Delivery: 01 February 2008

Court: High Court

Composition of Court: Edwards J.

Judgment by: Edwards J.

Status of Judgment: Approved

The Respondent’s Submissions
The respondent relies on the decision of the Supreme Court in Kevin Doran v. Thomas Thompson & Sons Ltd [1978] 1 I.R. 223 and also upon the case of Murphy v. Grealish [2006] IEHC 22, a decision of Mr. Justice John MacMenamin.
Particular reliance was placed on the following passages from the judgments of Henchy J. and Griffin J., respectively, in the Doran case. At p. 225 of the report Henchy J. stated:
“Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and, thereby, into a justifiable belief that the statute would not be used to defeat his claim, to escape liability by pleading the statute. The representation necessary to support this kind of estoppel need not be clear and unambiguous in the sense of being susceptible of only one interpretation. It is sufficient if, despite possible ambiguity or lack of certainty, on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not be heard to say that an admission of liability was not intended.”
He continued at 227 of the report:
“Looking at the matter without the benefit of hindsight, I consider that no reasonable legal adviser who read the file of the plaintiff’s solicitor at the stage when the end of the limitation period was approaching could have reasonably believed that the issue of liability had been or would be abandoned. At best he could only have hoped or expected that such would be the case, and the basis for that hope or expectation would have been the plaintiff’s instructions and not anything said or done by the insurers.
The insurers had exercised their right to remain silent on the issue of liability. There was no onus on them to deny the allegation of negligence that had been made in the opening letter. It was for the plaintiff’s solicitor to pursue the matter in correspondence and, in the absence of a satisfactory reply, to issue proceedings. His failure to do so was not supported by any causative representation by the insurers. As many a would-be plaintiff has learned, it is a fact of life in the world of insurance that a not unusual way for insurers to dispose of unprosecuted claims is to allow them to die of inanition. That is what happened here.”
Griffin J. stated the following in his judgment in the matter at pp. 230-231 of the report:
“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and that he may be restrained in equity from acting inconsistently with such promise or assurance. The representation, promise or assurance must be clear and unambiguous to found such an estoppel: see Bowen L.J. at p. 106 of the report of Low v. Bouverie [1891] 3 Ch. 82. But this does not mean that the representation must be positively incapable of more than one possible interpretation. Where, however, more than one construction is possible, the meaning relied upon must clearly emerge in the context and circumstances of the case, although in other contexts or other circumstances the same words might possibly have borne a different construction. In addition, the party relying on the representation must show that the representation was reasonably understood by him in a sense materially inconsistent with the allegation against which the estoppel is attempted to be set up: see Cairns L.J. at p. 306 of the report of the Court of Appeal in Woodhouse Ltd v. Nigerian Produce Ltd [1972] A.C. 741 where he explained and analysed the celebrated passage of Bowen L.J. in Low v. Bouverie.
If the defendant’s insurers had made a clear and unambiguous representation (in the sense I have explained) that liability was not to be in issue, and the plaintiff’s solicitor had withheld the issue of proceedings as a result, I would have held that the defendants were estopped from pleading the Statute of Limitations.”
In the present case Counsel for the respondent makes the point that in neither Doran v. Thompson, nor in Ryan v. Connolly, was there a clear and unambiguous admission of liability. This point was treated as being of significant importance by MacMenamin J. in Murphy v. Grealish, and was one of the grounds on foot of which he distinguished the facts in Murphy from those in the Doran and Ryan cases respectively. Moreover, counsel for the respondent in the present case drew attention to the fact that on account of this material difference it had been strenuously argued in Murphy v. Grealish that the remarks of Keane C.J. in Ryan v. Connolly (which the applicant relies upon) must be treated as obiter dicta. He submitted that this had been accepted by MacMenamin J. and that I should do the same. According to counsel for the respondent the ratio decidendi of Ryan is encapsulated in this further quotation from Keane C.J. (which follows on immediately after the passage relied upon by the applicant):
“On any view, however, it is clear that a plaintiff who seeks to rely on the law as laid down in Low v. Bouverie and Doran v. Thompson Ltd. must be in a position to satisfy the court that there was a clear and unambiguous representation by the defendants that liability would not be in issue from which it was reasonable for the plaintiff to infer that the institution of proceedings was unnecessary ….”
Counsel for the respondent submitted that if that is regarded as the ratio of the Ryan case then Ryan can be readily reconciled with Doran v. Thompson and the earlier cases. Essentially, where there has been a clear and unambiguous representation by a defendant that liability will not be in issue, and the plaintiff has reasonably relied upon it, the plaintiff will be able to successfully claim estoppel. The dictum of Keane C.J. engages with the issue of the “reasonableness” of the plaintiff’s reliance on the representation. As the Chief Justice pointed out:
“Where an insurance company within days of the accident accepts that no issue on liability arises – e.g. in the case of a passenger wearing a safety belt – but for some reason the subsequent negotiations become dormant, the plaintiff may well find himself unable to rely on the principle under consideration.”
In the contention of counsel for the respondent the Chief Justice was doing no more than echoing Henchy J.’s recognition of a legitimate strategy frequently employed by insurance companies, namely that of allowing unprosecuted claims to die of inanition. Thus, if a claim is allowed to go dormant and is not prosecuted for a significant period then, depending on the circumstances of the case, continued reliance on a representation that liability is not in issue may become unreasonable. Whether, and if so when, it becomes unreasonable to continue to rely on the representation will be dependent on the circumstances of the particular case, so says the respondent. Counsel for the respondent contends that in this particular case the correspondence, and the course of dealings between the parties, clearly establishes that the respondent’s claim was anything but dormant.
Decision
This court regards the legal submissions of the respondent as representing a careful and correct analysis of the law. I am satisfied that in this case the respondent was the recipient of a clear and unambiguous representation from the applicant, initially proffered in the letter of the 4th of September 2000, and reiterated in later correspondence. The respondent undoubtedly relied upon this representation from the moment it was made. On the basis of the correspondence and the dealings between the parties I am completely satisfied that the plaintiff’s claim was not allowed to go dormant, nor was it not being prosecuted. The non-issuance of proceedings by the 18th of July 2001 occurred in the context of the applicant having been informed of the respondent’s solicitors of their wish to have the respondent’s husband’s case dealt with first, and thereafter to deal with the other two cases. Moreover, the applicant had also been informed that the injuries of neither the respondent nor the respondent’s daughter had stabilised to the point where negotiations could be progressed. As recently as the 30th of April 2001 the applicant was informed:
“In respect of the other two members of the Griffin family their condition is still very serious – we know and understand that your client’s objective is to ‘box’ the claim and assess the value thereof. This has no beneficial interest to our clients and unless and until both Mrs. Griffin and her young daughter reach a recovery stage they will remain under constant medical supervision and attendance and we will not limit their claim by suggesting settlement or otherwise until a clear path of damage, loss and injuries is ascertained.”n the light of that representation the applicant could not reasonably have regarded either claim as being abandoned, nor could it have inferred an intention not to prosecute them. In fact it was the very opposite. They were simply being told that these claims were not ready to be progressed at that point.
Moreover, the way in which the applicant dealt with the respondent at all stages up until the autumn of 2006 served only to reinforce the express representation that had been made that liability would not be an issue. The question of the statute was never raised in correspondence. The respondent’s solicitors were encouraged to engage in settlement talks, and did so, and then to issue proceedings. A defence was filed that admitted liability and did not plead the statute. That defence was accompanied by a Notice of Tender. The applicant pressed the respondent to serve Notice of Trial. Throughout this phase there was a very active course of correspondence about the special damages claim. The respondent was regularly being asked to attend medical examinations at the behest of the applicant and was doing so. Experts reports were being exchanged. On no view or construction of the matter could the respondent’s claim be regarded as having been abandoned, or as having gone dormant, or as not being prosecuted. The issuance of the Notice of Motion of the 21st of November, 2006 came completely out of the blue, and in my view was unconscionable having regard to the clear and unambiguous representations that had been made, and the course of dealings between the parties. Moreover, I am unimpressed with the averments in Mr. Durcan’s affidavit that the limitation period was not initially pleaded due to “a mistake and an oversight”. It might be one thing or the other but it is hard to understand how it could be both. This is not explained. Moreover, he does not amplify or describe the nature of the “mistake” referred to. The same comments can be made with respect to the claim of “oversight”. It is hard to see how a mistake or oversight could have occurred in the light of the dealings that in fact occurred and in the absence of adequate explanations this Court cannot accept the bald, and on one view of it contradictory, excuses put forward by Mr. Durcan. I consider that the applicant is estopped in the circumstances of this case from relying upon the Statutes of Limitation. I therefore dismiss the application to amend.

Doran v. Thompson Ltd.

Henchy J. [1978] IR 223
S.C.

Henchy J.
15th February 1978

To prevent the guillotine from falling on these proceedings, it is necessary for the plaintiff to show that the defendants are estopped by representation from pleasing the Statute of Limitations, 1957. Otherwise, the claim must stand dismissed for, as the defendants have pleaded, the plaintiff’s claim for damages for negligence was not commenced within three years after the cause of action aroseas the statute requires.1
Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and, thereby, into a justifiable belief that the statute would not be used to defeat his claim, to escape liability by pleading the statute. The representation necessary to support this kind of estoppel need not be clear and unambiguous in the sense of being susceptible of only one interpretation. It is sufficient if, despite possible ambiguity or lack of certainty, on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not be heard to say that an admission of liability was not intended.
What representation did the defendants’ insurers make as to the issue of liability? The answer is “None.” Aside from the first letter written by the plaintiff’s solicitor in October, 1973, in which a query was put as to what proposal the defendants had for compensating the plaintiff, and the insurers’ neutral reply saying that the circumstances of the accident were being investigated, not a word was written or spoken during the three-year period of limitation on the question of liability. Other than those two opening letters, the only communications that passed were those between the solicitor and the insurers, and these consisted of five letters on each side and two telephone conversations. In none of them was any reference, direct or oblique, made to the question of liability.
The plaintiff’s solicitor assumed at all stages that liability would not be in issue; but what lured him into that state of mind was the plaintiff’s account of how the accident happened. There is nothing in what the insurers said or did that could reasonably be held to have nurtured his assumption that liability would be admitted. For reasons that are not obvious he excluded the possibility that the plaintiff’s explanation of the cause of the accident might prove wrong or that, even if right, the defendants might still escape liability by pleading the statute. This fallacious thinking stemmed entirely from considerations subjective to the solicitor. I find nothing in the conduct of the defendants’ insurers that could reasonably be said to have been causative of the impression that the issue of liability had disappeared from the case.
In holding that there was estoppel by representation, the judge in the High Court saw three matters as supporting that inference. First, he held that it was reasonable for the solicitor to conclude from the account of the accident given by the plaintiff that liability would not be denied. It was certainly reasonable for the solicitor to hope or expect that liability would not be denied, but I do not think it was reasonable for a plaintiff’s solicitor in such circumstances to risk the extinction of his client’s claim by assuming that liability would not be contested. Because the defendants’ version of how the accident happened might not tally with the plaintiff’s, or for any one of a number of other reasons (such as that the ostensible negligence of the defendants might turn out to be that of a third party), the issue of liability could not have been safely written off. At any rate, the solicitor’s state of mind in this respect was formed and maintained without reference to any representation by the insurers.
Secondly, it was held that it was reasonable for the solicitor to expect that an offer of settlement would be made after the defendants’ surgeon had carried out a medical examination. Doubtless it was reasonable for him to cherish that expectation, but not to the extent of ignoring the period of limitation. As the three-year period drew to its close, the insurers’ silence on the issue of liability cried out for a direct question to be put to them asking whether liability was being admitted or not, and if a satisfactory reply were not received, for an originating summons to be issued. The issue of the summons would have cost little; it did not even have to be served to defeat the statute; it would have been valid for 12 months; and it could have been renewed at the end of the 12 months. However, such routine precautions never crossed the solicitor’s mind. The self-induced idÃ©e fixe that he had formed diverted his attention from the palpable and imminent disaster. His preoccupation with the quantum of damages to the exclusion of the issue of liability was the cause of his inactivity, and not anything in the nature of a representation by the insurers.
Thirdly, it was held that the insurers’ willingness to make available a copy of their surgeon’s medical report justified the solicitor’s assumption that a reasonable and realistic approach to settlement would be taken by them, and that it was probable that the report would be treated as an agreed one. Assuming, without so holding, that to be so, I do not think it advances the plaintiff’s claim that the defendants are estopped by representation from pleading the statute. The agreement to give the plaintiff’s solicitor a copy of the medical report was a concession requested by him and agreed to by the insurers because the plaintiff would have no medical representative present at the medical examination. The solicitor had no reasonable grounds for assuming that the result would be an agreed medical report, or that the medical examination was but a prelude to a settlement.
Looking at the matter without the benefit of hindsight, I consider that no reasonable legal adviser who read the file of the plaintiff’s solicitor at the stage when the end of the limitation period was approaching could have reasonably believed that the issue of liability had been or would be abandoned. At best he could only have hoped or expected that such would be the case, and the basis for that hope or expectation would have been the plaintiff’s instructions and not anything said or done by the insurers.
The insurers had exercised their right to remain silent on the issue of liability. There was no onus on them to deny the allegation of negligence that had been made in the opening letter. It was for the plaintiff’s solicitor to pursue the matter in correspondence and, in the absence of a satisfactory reply, to issue proceedings. His failure to do so was not supported by any causative representation by the insurers. As many a would-be plaintiff has learned, it is a fact of life in the world of insurance that a not unusual way for insurers to dispose of unprosecuted claims is to allow them to die of inanition. That is what happened here.
It is with regret that I differ from the conclusion reached in the full and careful judgment under review. I feel, however, that the plaintiff’s case on this question was put fairly and at its highest by the solicitor himself when, at the end of his evidence in the High Court, he was asked a final question by the judge to explain why the necessity of issuing proceedings did not enter his mind. The solicitor’s reply was:
“My attitude in this case . . . was that my opinion on the circumstances of the accident as explained to me by my client was that it was a pretty clear case on liability, and I had the correspondence and the telephone conversations with the insurance company relating to the carrying out of the examination, and my object was to facilitate them as far as I could in arranging that examination and, indeed, I was anxious to get medical evidence myself, and I was quite confident that when the medical evidence was available the claim could and would be settled without the necessity of any proceedings.”
There, frankly, fairly and at its full strength, stands the plaintiff’s case for avoiding the closure applied by the statute. It shows that the solicitor misread the situation. He erred in good faith in thinking that the question of damages was all that was in issue. He failed to apprehend that the defendants could plead the Statute of Limitations: but the error was of his own making. It was not induced by any representation made by or on behalf of the defendants. The result is the sort of unfortunate situation that persuades prudent solicitors of the necessity to be adequately insured against the consequences of their negligence. I would allow the appeal and rule that the plaintiff’s claim is statute-barred.

Griffin J.
The facts in this case are not in dispute. On the 20th July, 1972, the plaintiff was employed by the defendants as a steel erector. On that date, whilst working for the defendants in erecting a steel structure at Carlow, he was injured when he fell to the ground from a height of approximately 20-25 feet. He consulted his solicitor during the latter half of October, 1973, which was 15 months after the accident.
On the 31st October, 1973, his solicitor wrote to the defendants and referred to the fall and the fact that his client was still totally incapacitated at that time and was attending the doctor each week. The letter concluded as follows: “From the instructions we have received it appears that the accident was due to your failure to provide a safe system of work, and we shall be glad to hear from you as to what proposal you have to compensate our client for the loss and damage he has sustained.” The defendants passed this letter to their insurers, who replied thereto on the 18th December, 1973. In their letter, having stated that they were “investigating the circumstances of the accident to which you refer”, the insurers inquired whether the plaintiff had effected a full and complete recovery from his injuries and, if not, they requested the usual facilities for a medical examination of the plaintiff by their medical officer. Between that date and the 16th June, 1975, further correspondence took place between the insurers and the plaintiff’s solicitor; in addition, there were three telephone conversations between the principal of the firm of solicitors and offcials of the insurers. This correspondence and the telephone communications related exclusively to the medical examination of the plaintiff which was sought on behalf of the defendants; some difficulty had arisen in connection with the attendance of a doctor on behalf of the plaintiff at such examination. In the result, it was arranged that the defendants’ doctor should examine the plaintiff without the necessity for the attendance of a doctor on behalf of the plaintiff, provided that a copy of the medical report was made available to the plaintiff’s solicitor. This examination took place on the 29th July, 1975, and on the 29th September, 1975, a copy of the medical report was sent to the plaintiff’s solicitor by the insurers.
Proceedings on behalf of the plaintiff were not commenced within the three years specified in s. 11, sub.-s 2(b), of the Statute of Limitations, 1957. This action was instituted on the 18th February, 1976, and the defendants pleaded in their defence that the plaintiff’s claim was barred by virtue of the provisions of that statute. As the plaintiff in his reply pleaded (inter alia) that the defendants were estopped by their conduct and the conduct of their agents from relying on the provisions of the statute, an issue of law as to whether they were so estopped was directed; it was tried by Mr. Justice Costello.
Four witnesses gave evidence at the oral hearing, and these included the principal of the said firm of solicitors. The latter conceded that the question of liability was not discussed at all in the telephone communications between him and the insurers, that the discussions were purely confined to the arrangements for a medical examination and that there were no negotiations whatever. He stated that he had not issued legal proceedings during the period between October, 1973, and the end of July, 1975, and he stated his reason as follows:
“I did not really consider the question of issuing proceedings because I had been arranging with the insurance company for this medical examination which was proving so difficult. There was never any discussion as to liability. It seemed to me that the case was a clear one and that the only question at issue was the extent of the man’s injuries and the amount of damages and as long as I was still in discussions with the insurance company to arrange this medical examination, the question of issuing proceedings did not enter my mind.”
He said that he was quite confident that when he got a copy of the doctor’s report and probably submitted it to his doctor for his views on it, he would then have negotiations with the insurance company as regards the settlement of the claim. In answer to the last question (Q. 101) put to him (by the trial judge), he summarised his attitude as follows:
“My attitude in this case . . . was that my opinion on the circumstances of the accident as explained to me by my client was that it was a pretty clear case on liability, and I had the correspondence and the telephone conversations with the insurance company relating to the carrying out of the examination, and my object was to facilitate them as far as I could in arranging that examination and indeed, I was anxious to get medical evidence myself, and I was quite confident that when the medical evidence was available the claim could and would be settled without the necessity of any proceedings.”
Having heard all the evidence, and considered the correspondence, the trial judge held that the defendants were estopped by their conduct from pleading the statute. He was satisfied that the words and conduct of the defendants’ insurers led the plaintiff’s solicitor to believe that the case was a clear one, that liability would not be contested, and that it would be settled without the necessity of instituting proceedings; and that this belief was one which it was reasonable for him in the circumstances to draw from that conduct.
It is with the utmost regret that I also differ from the trial judge. Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and that he may be restrained in equity from acting inconsistently with such promise or assurance. The representation, promise, or assurance must be clear and unambiguous to found such an estoppel: see Bowen L.J. at p. 106 of the report of Low v. Bouverie 10 . But this does not mean that the representation must be one positively incapable of more than one possible interpretation. Where, however, more than one construction is possible, the meaning relied upon must clearly emerge in the context and circumstances of the case, although in other contexts or other circumstances the same words might possibly have borne a different construction. In addition, the party relying on the representation must show that the
representation was reasonably understood by him in a sense materially inconsistent with the allegation against which the estoppel is attempted to be set up: see Cairns L.J. at p. 306 of the report of the decision of the Court of Appeal in Woodhouse Ltd. v. Nigerian Produce Ltd. 11 where he explained and analysed the celebrated passage of Bowen L.J. in Low v. Bouverie 10 .
If the defendants’ insurers had made a clear and unambiguous representation (in the sense I have explained) that liability was not to be in issue, and the plaintiff’s solicitor had witheld the issue of proceedings as a result, I would have held that the defendants were estopped from pleading the Statute of Limitations. In my opinion, however, on the agreed facts there was no promise, assurance, or representation made by the insurers to the plaintiff’s solicitor, and none can be inferred from the correspondence, the telephone conversations, or the conduct of the insurers. Apart from stating in their first letter that they were investigating the circumstances of the accident, the insurers thereafter made no reference, express or implied, to the circumstances of the accident or the question of liability.
It is contended on behalf of the plaintiff that the insurers’ failure to deny the statement in the first letter from the plaintiff’s solicitor (to the effect that, from the instructions they had received, it appeared to the solicitors that the accident was due to the defendant’s failure to provide a safe system of work) amounted to a representation that the insurers were not contesting liability. However, this is not the law as, in the absence of a duty to speak out, mere silence or inaction is not such conduct as amounts to a representation. A duty to speak arises whenever one party knows that the other party is acting on an erroneous assumption of some liability undertaken by the former. There is no question of any such knowledge in this case.
Whilst the plaintiff’s solicitor undoubtedly believed that, on the information he had received from his own client, the case was a clear one and that it would be settled without the necessity of instituting proceedings, that belief was not induced by the insurers. Indeed, with the utmost candour and fairness, when he was giving evidence the principal of the solicitors’ firm, in reply to questions 78 and 101 (already quoted), did not suggest that his belief that the case was a clear one was induced by the insurers. There was no promise, assurance, or representation on the part of the insurers within the meaning of the principles already mentioned and, accordingly, the defendants are not estopped from pleading the statute.
It is the invariable practice of some solicitors, upon first receiving instructions and opening a new file in a case in which personal injuries are received in an accident, to put in bold figures, on the outside of the file, the date prior to which a plenary summons must be issued unless the case is settled. This, or some appropriate variation of it, is a practice which might, with advantage, be universally adopted. If the action has not been settled by the date which appears on the outside of the file, prudence requires that a plenary summons should be issued though not necessarily served. In any event the small cost of issuing the plenary summons will be recovered on any subsequent settlement. If there is no settlement, the plaintiff’s rights are protected. I would allow this appeal.

Kenny J.
On the 20th July, 1972, the plaintiff, while working for the defendants as a steel erector, had an accident which was caused entirely by a defect in the plant supplied by them. He was paid nothing by them or their insurers in respect of any period after this. The plaintiff did not consult a solicitor about the accident until the second half of October, 1973. At that time the plaintiff was claiming that he was totally incapacitated and that he would never be fit for his former work again and so the case was a serious one.
On the 31st October, 1973, the plaintiff’s solicitors wrote to the defendants: “We have been instructed by Mr. Kevin Doran of School Road, Tinahely who was formerly employed by you as a steel erector. Our client informs us that on 20th July, 1972, while employed by you in the erection of a steel building, he fell a distance of approximately 25 feet to the ground and injured his back. He was in hospital for a week following the accident and is still totally incapacitated from work and is attending his doctor every week. From the instructions we have received it appears that the accident was due to your failure to provide a safe system of work, and we shall be glad to hear from you as to what proposal you have to compensate our client for the loss and damage he has sustained.”
The defendants sent that letter to their insurers (National Employers Mutual General Insurance Association Ltd.) who replied to it on the 18th December, 1973, by a letter which was marked “without prejudice” but which was relied on before the trial judge and before this Court by both parties. The letter of the 18th December, 1973, states:
” Kevin Doran v. Thomas Thompson & Sons Ltd.
Your letter of the 31st October addressed to the above-named firm has been passed to us for attention as their insurers: please note our interest and arrange that all future correspondence is addressed to this office.
We are investigating the circumstances of the accident to which you refer: in the meantime as it occurs to us that your client may by now have effected a full and complete recovery from his injuries, an open letter from you stating recovery to be a fact will obviate the necessity for a medical examination; on the other hand if he has not recovered, we presume you will extend to us facilities for examination by our medical officer in consultation with his medical attendant and, if you will advise us of the name and address of the latter, we will be in a position to make the necessary arrangements.
On the other hand, as it occurs to us that you may have obtained a report from your client’s medical attendant, perhaps you would be prepared to make a copy available to us on a strictly without prejudice basis.
We presume that your client has formulated a claim for payment of benefit under the provisions of the Social Welfare (Occupational Injuries) Act, 1966.”
On the 3rd January, 1974, the plaintiff’s solicitors wrote to the insurers saying that they had received the letter of the 18th December, 1973, that they had seen their client who was still totally incapacitated, and that they had no objection to the insurers arranging a medical examination. They informed the insurers that their client’s medical adviser was Dr. Monaghan of Shillelagh.
On the 7th January, 1974, the insurers wrote to the plaintiff’s solicitors:
“We refer to your letter of 3rd instant and to the writer’s conversation with [the principal of the solicitors’ firm] on 4th idem. We confirm that we would like to have your client examined by a Dublin surgeon and therefore we will look forward to hearing from you as to your nomination of a surgeon to attend in consultation when we will have the necessary arrangements put in hands. We confirm, of course, that we will accept responsibility both for the consultation fee involved and for your client’s reasonable travelling expenses in connection with his visit to Dublin.”
On the 8th January, 1974, the plaintiff’s solicitors wrote to the insurers saying that they had been in touch with Dr. Monaghan who suggested that Mr. Joseph Gallagher, a well-known surgeon, would attend the medical examination of the plaintiff in consultation with the surgeon retained by the insurers.
On the 29th January, 1975, the insurers wrote to the plaintiff’s solicitors:
“We refer to previous correspondence in this matter and to the writer’s conversation with [the principal of the solicitors’ firm] some time ago. You will remember that you had given an authority to arrange for examination of your client in consultation with Mr. Gallagher but that the latter had indicated to Mr. Robinson that he was not prepared to act. In these circumstances you were to ascertain who would act on your client’s behalf and advise us so that we could make suitable arrangements but to date we have not heard from you. We trust that you will let us have your advices in this regard, at your convenience, indeed it may be that you would be willing to permit examination of your client by Mr. Robinson without another doctor being present. We look forward to receipt of your advices.”
On the 30th January, 1975, the plaintiff’s solicitors wrote to the insurers stating that they had been in touch with Dr. Monaghan who had informed them that Mr. James Sheehan F.R.C.S.I. would attend in consultation with Mr. Robinson on the examination of the plaintiff, and asking the insurers to arrange the necessary appointment.
On the 3rd February, 1975, the insurers wrote to the plaintiff’s solicitors:
“We thank you for your letter of 30th ultimo. In the circumstances we have written to-day to Mr. D. L. Robinson requesting him to contact Mr. Sheehan to arrange a suitable appointment whereby examination of your client may take place. When we are advised the time and venue, we will inform you to enable you to arrange for your client to attend.”
Difficulties arose in connexion with Mr. Sheehan’s attendance at any examination and on the 28th May, 1975, the plaintiff’s solicitors wrote to the insurers saying that, in view of the difficulties in arranging a suitable appointment for the examination of their client, they would be prepared to advise him to agree to an examination by Mr. Robinson alone provided that a copy of his report was made available to them; and they asked the insurers to make an appointment with him and to let them know the time and place of it so that they could instruct their client to attend.

On the 3rd June Mr. Robinson, who had arranged to be out of Dublin in the earlier part of July, fixed the date of examination of the plaintiff for the 29th July and so, on the 10th June, 1975, the insurers wrote to the plaintiff’s solicitors:
“We refer to your letter of 28th ultimo. We have now heard from Mr. D. L. Robinson of 83 Harcourt Street that he will examine your client on Tuesday 29th July next at 2.30 p.m. at his consulting rooms at the above address. We trust that you will be kind enough to make arrangements for your client to attend and in this connection we confirm that we will accept responsibility for your client’s reasonable travelling and sustenance expenses incurred in connection with the visit to Dublin to attend the examination. If you will advise us the amount involved in due course, we will issue a cheque in reimbursement.”
On the 11th June the plaintiff’s solicitors wrote to the insurers saying that they had received the letter of the 10th June and that they were arranging for their client to attend the examination on the 29th July, and asking the insurers to confirm that they would send the solicitors a copy of the medical report. On the 16th June the insurers confirmed that they would send a copy of the medical report to the plaintiff’s solicitors.
Section 11, sub-s. 2(b), of the Statute of Limitations, 1957, provides:”An action claiming damages for negligence . . . where the damages claimed by the plaintiff for the negligence . . . consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued.” The three-year period in this case expired on the 20th July, 1975.
I have given the full text of the letters written by the insurers because counsel for the plaintiff argued that they constituted an admission of liability and that, in such circumstances, it was dishonest and dishonourable to rely on the Statute of Limitations. He also urged that the correspondence lulled the plaintiff’s solicitors into the belief that liability was admitted and so they thought that the amount of the damages would be negotiated to lead to an ultimate settlement.
What happened after the 20th July, 1975, has little relevance to the question involved in this issue. If the defendants are not in one way or another estopped or precluded from relying on the Statute of Limitations by what they wrote or did before that date, they cannot be estopped or precluded from pleading it by what happened after that date. Therefore, it will be sufficient for the purposes of this judgment to deal briefly with the events after that day. On the 29th September, 1975, a copy of Mr. Robinson’s report was sent to the plaintiff’s solicitors. It expressed the view that the plaintiff had had more than ample time to recover from the ill effects resulting “from any injuries which he may have suffered in his accident” and that he had in fact done so.
On the 3rd October, 1975, the insurers wrote to the plaintiff’s solicitors to ask if proceedings had been instituted and the solicitors wrote on the 4th November, saying: “In view of the negotiations which have been going on with you we have not yet instituted proceedings in this case and we trust that it may be possible to have the claim settled without the necessity of doing so.”The statement in this letter that negotiations had been going on was entirely incorrect. When the principal of the firm of solicitors was subsequently giving evidence before Mr. Justice Costello on the trial of the issue, he said that no negotiations as to settlement of the plaintiff’s claim had ever taken place. This is of such importance that I think it necessary to quote three questions and answers in the cross-examination:
“92. Q. Mr. Maguire has said that he does not suggestand I think you also saidyou do not suggest that there were any negotiations at all?”
A. No.
93. Q. I suggest the only thing that happened in this case after you wrote your letter of claim was that the medical examination was asked for?
A. That is all that happened.
94. Q. Right up to the time when the statute was claimed or pleaded?
A. That is right.”
On the 18th February, 1976, the plenary summons was issued by the plaintiff’s solicitors and a statement of claim was subsequently served. The defendants filed a defence in which they pleaded the Statute of Limitations and denied that the plaintiff had suffered the alleged or any injuries, loss or damage. The defendants then applied to have the issue of law which was raised by the defence determined before the trial of the action under order 25, r. 1, of the Rules of the Superior Courts, 1962, and on the 14th February, 1977, with the consent of the parties the High Court made an order that this be done.
The issue as to whether the defendants were estopped or in any way precluded from pleading the Statute of Limitations was tried by Mr. Justice Costello on the 26th May, 1977. Oral evidence was given and, in a most careful and conscientious judgment, he held that they were. His first ground for so holding was that the defendants’ insurers, by not informing the plaintiff’s solicitors that they were contesting liability, led the solicitors to conclude that the insurers were not contesting it and that the case would be settled without the necessity of instituting proceedings. His second ground was that it would be inequitable to allow the defendants to go back on the position which their insurers’ words and conduct had brought about. He thus based his first conclusion on the developing doctrine of promissory estoppel. I regret that I cannot agree with either of the grounds he relied on.
Both parties accepted as being correct the statement of the law on promissory estoppel at p. 563 of the 27th edition (1973) of Snell’s Principles of Equity which has the authority of having been edited by Mr. Justice Megarry (now the Vice-Chancellor) and Professor Baker. It reads:
“Where by his words or conduct one party to a transaction makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) and the other party acts upon it, altering his position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it.”
It was argued that the plaintiff’s solicitors made a claim by their letter of the 31st October, 1973, that the defendants were liable to compensate their client, that the answer by the insurers was that they were investigating the circumstances of the accident and that they never informed the plaintiff’s solicitors what the result of the investigations were and never denied liability, so that, it was contended, the solicitors were justified in assuming that the insurers were accepting liability.
In court pleadings what the defendant does not deny in a plaintiff’s statement of claim is admitted, but this is the result of a rule of court (O. 19, r. 13, of the Rules of 1962) and cannot and should not be applied to correspondence. The failure to reply to a charge in correspondence may have some tenuous evidential value if there is some ground for the complaint but silence on receipt of an accusation (be it criminal or civil) can never be an acceptance of the allegation unless the person against whom the charge is made is under a duty to deny it. One of the penalties of being a judge is the receipt of letters from disappointed litigants. At present I get numerous letters from two litigants accusing me of corruption, acceptance of bribes and gross partiality. Do I admit these charges by ignoring the letters, and am I to be held to have led the writers to believe that I accept the accusations because I do not answer them? The rule of law on this matter was summarised by Lord Tomlin when delivering the judgment of a particularly eminent House of Lords in Greenwood v. Martins Bank 12 . At p. 57 of the report he said: “Mere silence cannot amount to a representation, but when there is a duty to disclose deliberate silence may become significant and amount to a representation.”
Then it was said that the request for the medical examination by the insurers was an admission of liability or a representation that the case had become one in which the amount of the damages was the only issue. In every case in which damages are claimed for personal injuries, the defendant or his insurer asks for a medical examination of the proposed plaintiff at the earliest possible date. This is because the defendant’s surgeon or doctor may ultimately have to give evidence and in some cases, where the plaintiff is not wealthy, it may be possible to settle the case for a small sum and avoid the heavy costs of litigation. If the surgeon or doctor retained by the defendant does not examine the plaintiff at an early stage, his evidence will be compared unfavourably with the plaintiff’s surgeon or doctor who will have examined him shortly after the accident and many times afterwards.
In my opinion there was no representation of any kind by the insurers or the defendants that they were admitting liability, or that the only issue in the case was the amount of damages, or that they would not rely on the Statute of Limitations. Therefore, there is no foundation for the application of the doctrine of promissory estoppel.
The other argument was that it would be inequitable to allow the defendants to rely on the Statute of Limitations. If the defendants had accepted liability and had entered into negotiations to arrive at an agreed sum, and if the plaintiff’s solicitors had refrained from bringing proceedings because they relied on the admission of liability or the negotiations being conducted, it would be inequitable to allow the defendants to rely on the time-bar. But they never accepted or admitted liability and never represented that they did, nor did they carry on any negotiations for the purpose of settling the case. They did nothing which could give the plaintiff’s solicitors the impression that they need not issue proceedings nor did they mislead them in any way. I cannot see how the conduct of the insurers was dishonourable in any respect and I do not think that anything they did makes it inequitable for them to plead and rely on the Statute of Limitations. If the plaintiff’s solicitors thought that liability was being admitted, the defendants and the insurers did nothing to cause or contribute to that belief.
Counsel for the plaintiff relied strongly on the decision of this Court in O’Reilly v. Granville 4 . That was an application to add a party as a defendant in a motor-accident case. Objection to this step was taken on the ground that, at the date of the application, the time limit of three years had expired. Complicated questions as to the effect of order 15, r. 13, were discussed but this has no relevance to the present case. In that case the defendant’s insurers within the statutory period of three years wrote to the plaintiff’s solicitors asking for details of the special damages, and added: “We shall see if we can arrange a settlement with you.” Subsequently the defendant’s insurers asked the plaintiffs solicitors by letter how much the plaintiff expected to be paid in settlement of his claim apart from special damages which (the letter added) “no doubt can be agreed by negotiation.” It was in these circumstances that Ã“ DÃ¡laigh C.J. said that a plea of the Statute of Limitations “would be not only wholly unmeritorious but, I feel it my duty to add, unconscionable and plainly dishonest.” Therefore, there was conclusive proof that an admission of liability had been made by the defendant’s insurers: in this case no such admission was made either expressly or by implication and so O’Reilly v. Granville 4 does not help the plaintiff.
The question whether an admission of liability without more makes it inequitable to rely on the Statute of Limitations or whether the admission of liability must have been relied on by the plaintiffs solicitors as a ground for not issuing proceedings was not discussed in argument and, in any event, does not arise. I find it difficult to reconcile the remarks of the former Chief Justice with the reasoning in The Sauria 5 on this point, and so I reserve this for future consideration.
In my opinion the issue ordered to be tried by the order of the 14th February, 1977, should be answered by finding that, in this case, the defendants are not estopped or precluded in any way from pleading or relying on the Statute of Limitations, 1957.

Ryan v. Connolly

, High Court

, February 29, 2000, Kelly J.
1. The Plaintiff alleges that he was injured in a road traffic accident on 24 April 1995. Arising out of that accident he commenced proceedings in this court against the Defendants on 11 December 1998. Having regard to those two dates it is clear that these proceedings were prima facie statute barred at the time they were instituted.

The statement of claim was delivered on 11 June 1999 and the defence followed on 14 July 1999. Given the dates already mentioned, it is not surprising that the defence includes a plea at paragraph 8 thereof to the effect that the Plaintiff’s claim is statute barred by virtue of the provisions of section 11(2)(b) of the Statute of Limitations Act 1957.

To that defence there was delivered a reply. Having joined issue with the Defendants on the defence and having denied the allegation of contributory negligence, the reply goes on as follows:

“3. Without prejudice to the foregoing the conduct and representations express and implied of the Defendants herein their servants or agents from the time of notification of the motor collision of the 26 April 1995 up to the commencement of proceedings herein by Plenary Summons dated 11 December 1998 caused and induced the Plaintiff to refrain from issuing proceedings within the period prescribed by statute.

“4. By reason of the aforementioned conduct of the Defendants their servants or agents the Defendants are estopped from relying on the provisions of the Statute of Limitations 1957 as pleaded.”

Having regard to that exchange of pleadings an application was made to the court for the trial of a preliminary issue. By order of 1 February 2000 McGuinness J directed that there be a trial of such an issue, the question being “whether the Plaintiff’s claim herein is or is not statute barred by virtue of the provisions of section 11(2)(b) of the Statute of Limitations 1957, as amended”.

It does not seem to me that the question posed in that form is really the issue for trial. It is accepted by the Plaintiff that, prima facie, the Plaintiff’s claim is statute barred but he contends that the raising of a plea of that nature is a matter for defence and that the Defendants are precluded from standing on their legal rights in the circumstances outlined in the evidence put before this court. In other words, the Plaintiff says that the Defendants are estopped from raising the plea of the Plaintiff’s action being time barred because of their conduct. This court is therefore asked to exercise the jurisdiction of a court of equity which, over the centuries in appropriate cases, has intervened so as to prevent a defendant from exercising strict legal rights and entitlements in circumstances where it would be inequitable to do so.

In order to understand how this plea comes to be made on the part of the Plaintiff and how this application is brought, it is necessary to look at the correspondence exchanged between the parties’ solicitors and the Hibernian Insurance Company, the insurance company representing the Defendants in the action.

Without further ado I have to deal with a legal objection which was raised at the hearing to my looking at this correspondence. It is said that the correspondence is protected by privilege and that therefore it is not open to the Plaintiff to seek to adduce it. I was invited to look at the correspondence on a de bene esse basis so as to make an adjudication as to whether this allegation of the correspondence being privileged was or was not well made out.

The basis upon which it is said that the correspondence is privileged is the fact that it is headed in practically every case by the legend “without prejudice”, it is clear from the authorities that the mere attaching of such a label to correspondence does not make such letters privileged. The court has to look to see whether they fall within the rubric of what is properly privileged correspondence. Having read through the letters exhibited at TD.3 in the Affidavit of Thomas D’Alton I am satisfied that they are not privileged letters notwithstanding the fact that most of them are headed “without prejudice” and it is therefore open to me on this application to have regard to them.

The correspondence begins by a letter of 23 May 1995, just one month after the road traffic accident in suit. That letter was from the Plaintiff’s solicitors to the Hibernian Insurance Company and it reads:

“Please find enclosed copy letter which we have today sent to your insured Anne Marie Connell in relation to a road traffic accident which took place at Furbo, Galway, on 26 April 1995.”

Attached to that was a letter written in a very standard form to the Defendant Ann Marie Connolly by the Plaintiff’s solicitors making the allegation of negligence in respect of her involvement in the road traffic accident in question. In the final paragraph of that letter she was invited by the Plaintiff’s solicitors to pass it on to the Hibernian Insurance Company.

There next came a letter from the Hibernian Insurance Company of 11 July 1995 pointing out that the recent communication from the Plaintiff’s solicitors was having attention and seeking a considerable amount of information including, inter alia, the allegations of negligence which were being made against the Defendants. That was then followed on 27 July 1995 by a letter indicating that an appointment had been made to have the Plaintiff medically examined by a consultant orthopaedic surgeon in Galway and giving a time for that examination. There then followed a letter on 1 September 1995 from the Plaintiff’s solicitors to the Hibernian Insurance Company in response to the request made in July of that year for detailed information.

There was then an important letter dated 9 July 1996 from the Hibernian Insurance Company to the Plaintiff’s solicitors. It reads as follows: “With regard to the above matter we refer to previous correspondence and confirm that we have obtained a medical report on your client.

“We have concluded the damage claim direct with your client’s insurers Norwich Union.

“Please advise if you are in a position to discuss settlement at this time.

“We await hearing from you.”

On 24 July 1996 receipt of that letter was confirmed by the Plaintiff’s solicitors in which they indicated confirmation of the appointment for an up-to-date medical report and indicating that they would respond as soon as the report came to hand.

On 13 March 1997 there was a further letter to the Plaintiff’s solicitors from the Hibernian Insurance Company in the following terms:

“With regard to the above matter we refer to previous correspondence. Please advise if you are interested in discussing the case with us at this time.

“We look forward to hearing from you.

There does not appear to have been a response (certainly there was no response in writing) to that letter from the Plaintiff’s solicitors.

On 30 October 1997 there was a further letter from the Hibernian Insurance Company to the Plaintiff’s solicitors. It reads:

“We refer to the above and to previous correspondence in connection with same.

“Could you please advise if you are in a position to meet for settlement discussions at the October Galway High Court or alternatively the February 1998 Galway High Court.

“We await hearing from you in due course.”

Again, there does not appear to have been any response to that letter from the Plaintiff’s solicitors. On 6 November 1997 there was a further letter from the Hibernian Insurance Company setting up another medical examination to be carried out by the same consultant in Galway. Apparently the Plaintiff did not attend for that examination and on 8 December 1997 there was a letter from the Hibernian Insurance Company to the Plaintiff’s solicitors pointing that out. The letter asked for confirmation in writing that the Plaintiff would attend any future medicals organised by Hibernian. There does not appear to have been any response in writing to that letter.

On the same day there was a letter from Mr Kelly, the orthopaedic surgeon, to the Plaintiff’s solicitors indicating that a further appointment had been made for the 8 January 1998 at the request of the Hibernian Insurance Company. That appointment was confirmed by a letter of 9 December 1997 from the Hibernian to the Plaintiff’s solicitors.

On 27 January 1998 there was another letter from the Hibernian Insurance Company asking the Plaintiff’s solicitors to advise if they were in a position to meet for discussions at the forthcoming Galway High Court. There does not appear to have been any response to that letter.

On 2 July 1998 the Hibernian Insurance Company wrote as follows:

“Could you please advise if you are in a position to meet for without prejudice talks at the forthcoming Galway High Court sessions.

“We have tried to phone your office on a number of times in relation to this matter but have been unable to get through.

“We await hearing from you in due course.”

It is of some interest to note that that letter was written at a time (2 July 1998) when the action was already statute barred, the accident having occurred on 24 April 1995.

Nothing more appears to have happened until there was a letter of 30 April 1999 from the Plaintiff’s solicitors asking the Insurance Company to nominate a solicitor to accept service of proceedings.

On 12 May 1999 the final letter came from the Hibernian Insurance Company in the following terms:

“We refer to your letter of 30 April 1999 and to our telephone conversation with Mr Thomas D’Alton when we phoned you on 10 May in this regard.

“We must confess to being surprised to receive your letter as this case is clearly statute barred, the accident having happened over four years ago.

“We note your request for a nomination to accept service of proceedings and we entirely without prejudice to the Statute of Limitations nominate Corrigan & Corrigan solicitors . . .”

On 18 May 1999 the Plaintiff’s solicitors wrote to Corrigan & Corrigan seeking the indorsement of acceptance by them of the Plenary Summons which had been issued in the preceding December.

In the light of that correspondence the Plaintiff says that it would be inequitable to permit the Defendants’ insurers to now plead the Statute of Limitations.

As to the case law on the topic, I am satisfied that the decision which binds me is that of the Supreme Court in Doran v Thompson and Sons Limited [1978] IR 223. As it is not necessary for me to set out in detail the factual background to that case, I merely cite from the headnote as follows:

“On the 20 July 1972 the plaintiff was injured in an accident which occurred while he was working for his employer, the defendant. Shortly after they were consulted by the plaintiff. In October 1973 the plaintiff’s solicitors wrote to the defendant on behalf of the plaintiff and claimed compensation for his injuries and loss. The defendant’s insurers replied on the 18 December 1973 stating that they were investigating the accident and asking for arrangements to be made for the examination of the plaintiff by the insurer’s doctor. The plaintiff’s solicitors experienced considerable difficulty in making arrangements for the plaintiff’s doctor to attend such examination. In May 1975 the insurers were informed by the plaintiff’s solicitors that they agreed to the plaintiff being examined by the insurer’s doctor atone provided that they received a copy of the doctor’s report. The plaintiff’s cause of action became statute barred on the 20 July 1975. The plaintiff was examined by the insurer’s doctor on the 29 July 1975. The insurers did not inform the plaintiff’s solicitors of the results of the insurer’s investigation of the accident or notify the solicitors that liability was being denied, nor did the insurers discuss liability or damages with the plaintiff or his solicitors. The plaintiff claimed damages from the defendant in an action which was instituted in the High Court on the 28 February 1976. The defendant pleaded that the plaintiff’s claim was statute barred and the plaintiff replied that the defendant was estopped by the acts and representations of the defendant’s insurers from pleading the statute. At the trial of the preliminary point of law raised by the pleadings it was decided by the High Court that the defendant was estopped from pleading the statute. On appeal by the defendant it was

Held by the Supreme Court (Henchy, Griffin and Kenny JJ) in allowing the appeal, 1, that any misapprehension in the mind of the plaintiff or his solicitors was not shown to have been induced by any representation made by the defendant or by the defendant’s insurers.

2. That, accordingly, the defendant was not estopped from pleading the statute.”

I do not propose to go through the correspondence which was exchanged in that case in extenso as it is set forth most particularly in the judgments of Griffin J and Kenny J, but there is quite a difference between the correspondence in that case and the correspondence in this case. Be that as it may, the test which has to be applied is set forth in the judgment of Henchy J at page 225 where he says:

“Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and, thereby, into a justifiable belief that the statute would no be used to defeat his claim, to escape liability by pleading the statute. The representation necessary to support this kind of estoppel need not be clear and unambiguous in the sense of being susceptible of only one interpretation. It is sufficient if, despite possible ambiguity or lack of certainty, on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not be heard to say that an admission of liability was not intended.”

It is clear from that judgment that a twofold test has to be applied:

Have the Plaintiff’s legal advisers in fact inferred from the correspondence which I have read that the statute would not be pleaded against them and was it reasonable for them to so infer?

The answer to the first part of that question is clearly to be found in the affidavit of Mr D’Alton. This affidavit was not controverted and it was not sought to cross-examine Mr D’Alton on it. In making submissions on behalf of the Defendants’ Insurance Company it is right to say that Mr McCann accepted as a matter of fact that the Plaintiff’s advisers formed the views which are set forth in particular at paragraphs 11 to 14 of Mr D’Alton’s affidavit:

“11. Correspondence from Hibernian Insurance to this deponent from 9 July 1996 onwards indicated (1) that the Plaintiff’s material damage claim had been concluded with his insurers directly and (2) that the Hibernian Insurance were anxious to engage in settlement discussions if that was the case. The Defendants’ insurers in fact invited the Plaintiff to settle in discussions or a total of five occasions, on 9 July 1996, 13 March 1997, 27 January 1998 and the 2 July 1998.

Only four occasions are mentioned there although the body of the affidavit speaks of five.

“12. I say that I did not meet with the Defendants’ insurers as the Plaintiff continuously expressed concerns about his injuries and I sought further medical reports and waited on his condition to show more indication of settlement. Matters were further complicated somewhat by the Plaintiff suffering a second accident on or about the 11 September 1997.

“13. I say that I at all times considered this case to be one that would be settled with the Defendants’ insurers once I was in a position to meet with them, most likely at a sitting of Galway High Court and in these circumstances, which were in very large part cultivated by the Defendants’ insurer’s correspondence, I refrained from issuing proceedings within the time prescribed by statute. Indeed, although I did not know it at the time it is worth noting that the Defendants’ insurer even invited the writer to a settlement meeting by letter of 2 July 1998 which was two to three months after the expiry of the limitation period which the Defendant now seeks to rely upon.

“14. I say and believe that the failure to issue the proceedings herein within the time prescribed by statute arises in circumstances where settlement of the case was anticipated when all of the parties were ready to meet and that this climate arose from the correspondence issued from the Defendants’ insurer.

It therefore seems clear that the Plaintiff’s legal advisers did in fact infer as a result of that correspondence that the Statute of Limitation would not be raised against them. The net issue which I have to decide is whether it was reasonable to so infer. If it was, then it would follow that the attempt on the part of the Defendants’ insurers to raise the Statute of Limitations would be inequitable.

I have opened the correspondence in some detail. As I pointed out earlier, the letters do differ from the type of correspondence that was exchanged in Doran v Thompson. The correspondence really falls into two parts. The first part is the indication that was given to the Plaintiff’s solicitors from the Hibernian Insurance Company on 9 July 1996 to the effect that the material damage claim of the Plaintiff had been settled direct with his insurance company. The second part of the correspondence can be characterized as the setting up of appointments with a consultant for the medical examination of the Plaintiff and a series of invitations to engage in settlement negotiations with the Defendants’ insurance company.

In all the circumstances it seems to me that the view that was formed by the Plaintiff’s solicitor was a reasonable one. First of all, he was put on notice that the material damage claim had been concluded directly with the Plaintiff’s insurer. On a reasonable reading of that correspondence it seems to me that the Defendants’ insurance company was prepared to settle, and did in fact settle, that part of the claim. That must have been an indication that the invitations to engage in settlement negotiations were being extended in circumstances where the Defendants’ insurance company had in fact settled the property damage claim.

Taking into account that correspondence and the frequent invitations to engage in settlement negotiations, including one letter which was written after the defence of the statute was open to the Defendants, I have come to the conclusion that it would now be inequitable to allow the Defendants’ insurance company to plead the Statute of Limitations as against the Plaintiff. I am not for a moment saying that the mere fact that an insurance company invites a plaintiff’s legal representative to settlement negotiations would be sufficient of itself to bar it from pleading the Statute of Limitations. That was a fear expressed by Counsel on behalf of the Insurance Company at the hearing on Friday last. I quite accept that it would make life very difficult for insurance companies if they were subsequently precluded from pleading the Statute of Limitations simply by extending an invitation to engage in settlement negotiations.

However, that is not the case here. Those invitations to attend settlement negotiations were preceded by a clear indication from the Hibernian Insurance Company that it had already settled the material damage part of the Plaintiff’s claim directly with his insurance company. Seeing those invitations in the light of that admission, it seems to me that it would be inequitable to allow the Hibernian Insurance Company to now stand on its legal rights.

Applying the test which has been propounded by Henchy J in Doran v Thompson, I have come to the conclusion that the Defendants have “engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred” that the Statute of Limitations would not be relied on. Accordingly, I do not propose to answer the precise question that was put in the order of McGuinness J because I do not think that that is the correct question to answer. Whilst this case was commenced outside of the period of three years from the date of the accident, in the circumstances I find that it is not now open to the Defendants to rely upon the Statute of Limitations as a defence. I therefore propose to strike out paragraph 8 of the Defence. That means that the action can proceed to trial. However, the question of liability for the accident is in issue on the pleadings and there is no impediment placed in the way of the Defendants from fighting the action in full as to both liability and quantum of damages.

Yardley v Boyd, High Court, December 14, 2004

JUDGMENT of Mr. Justice Herbert delivered the 14th day of December, 2004
By a letter dated 20th September 1993, Messrs Evill and Coleman, Solicitors, of Putney, London, Solicitors for Sean Yardley, (a minor), the Plaintiff in this action, who was injured in a road traffic accident on 28th November, 1992 when a motor car then driven by his father, who died in the incident, skidded on ice and collided with a wall on the Gorey to Arklow road, wrote to Bradford–Pennine Insurance stating that they were still investigating quantum but asking whether the Insurers could, “confirm that liability will not be an issue.” The Solicitors went on to state that unless the Insurers were, “prepared to admit same or confirm that it will not be an issue nor will contributory negligence be an issue,” they would have to incur additional expense in investigating that aspect of the claim further. By a letter dated 23rd September, 1993, Mr. Keith Colman, Assistant Claims Controller at Bradford-Pennine Insurance replied that, “based upon information that we have seen so far liability for the accident would not appear to be an issue.”

By a letter dated 28th September, 1993 Evill and Coleman, Solicitors, again wrote to Bradford-Pennine Insurance inviting the insurers to admit liability. The Insurers, through Mr. Keith Colman, replied by a letter dated 4th October, 1993 as follows:-

“We thank you for your letter of 28th September.

We are not saying that there is any other information to see simply that what we have seen so far suggests that liability is not a relevant issue. In the interests of all concerned can we not now make some headway with these claims? As previously requested and we await full details with some indications as to the parameters of the intended claims including documentary evidence.”

By a letter dated 11th April, 1994, Mr. John McGuire, Managing Clerk, of Evill and Coleman, Solicitors, wrote to Bradford-Pennine Insurance advising them that proceedings on behalf of Sean Yardley might be issued in Ireland. This was confirmed by a letter dated 25th August, 1994. A brief dispute then arose as to the choice of venue for the proceedings, but the issue was soon conceded by the insurers. By a letter dated 21st October, 1994 and marked, “without prejudice”, Sun Alliance Ireland confirmed to Messrs Evill and Coleman, Solicitors that papers had been furnished to them to handle the claim and asked for the name of the Solicitors in this jurisdiction who would be dealing with the claim so that they might correspond with them. By letter dated 2nd November, 1994 Messrs Evill and Coleman, advised Sun Alliance Ireland that the matter would be dealt with by Messrs Brophy, Solicitors.

In their letter of 25th August, 1994 to Bradford-Pennine Insurance, Messrs Evill and Coleman pointed to a potential conflict of interest between Terence Yardley and Rosalind Diane Yardley as Administrators of the estate of the deceased Insured, while at the same time acting as Sole Guardians of the Plaintiff and, in the case of Terence Yardley, his Next Friend and also as the probable principal witnesses on his behalf, “in any proceedings”. They indicated that in their opinion Terence Yardley and Rosalind Diane Yardley should renounce as Administrators in favour of a person to be nominated by the Insurers. In the events which occurred, the Defendant, Patricia Boyd, was not nominated by the Insurers until their letter of 19th December, 1994, despite a further request from Brophy, Solicitors, dated 17th November, 1994 to Sun Alliance Insurance, (within the statutory period), and a further reminder dated 6th December, 1994, (outside the statutory period). By letter dated 12th December, 1994, (outside the statutory period) Sun Alliance Insurance advised Brophy Solicitors, that Messrs Miley and Miley were nominated to act as Solicitors for the Insurers.

The Plenary Summons in this action was issued on 11th January, 1995 and an Appearance was entered on behalf of the Defendant on 16th January, 1995. A Statement of Claim was delivered on 23rd January, 1995. A Notice for Particulars was served on 27th January, 1995 to which Replies were given on 10th October, 1995. A Defence was delivered on 23rd November, 1995. At paragraph 1 of this Defence it is pleaded that this action is statute barred by virtue of the provisions of Section 9(2) of the Civil Liability Act, 1961. A Notice of Intention to Proceed was served on behalf of the Plaintiff on 11th November, 1999 and a Reply was delivered on 16th December, 1999. Paragraphs 2, 3 and 4 of this Reply are in the following terms:-

“2. The Defendant is estopped from raising as a Defence the provisions of Section 9(2) of the Civil Liability Act, 1961 by reason of the acts and representations of the insurers of Sean Yardley, Deceased.

3. Further, by reason of the acts and representations of the insurers of Sean Yardley, Deceased, the Defendant has waived her right to rely upon the provisions of Section 9(2) of the Civil Liability Act, 1961.

4. Without prejudice to the foregoing within the period of two years of the date of the road traffic accident which is the subject matter of these proceedings, the insurers of Sean Yardley, Deceased, stated and/or inferred that liability would be admitted and the Defendant is therefore estopped from escaping liability by pleading Section 9(2) of the Civil Liability Act, 1961.”

In Replies to Particulars dated 6th October, 2000, the Solicitors for the Plaintiff cited the extracts to which I have already referred from the letters of 23rd September, 1993 and 4th October, 1993 from Bradford-Pennine Insurance to Evill and Coleman Solicitors as the relevant acts and representations of the insurers admitting liability. In the same Replies to Particulars, they cite the third paragraph of a letter dated 6th September, 1994 from Bradford-Pennine Insurance to Evill and Coleman, Solicitors, as constituting a waiver by the Insurers of their right to rely on the provisions of Section 9(2) of the Civil Liability Act, 1961. This letter states as follows:-

“We thank you for your letter of 25th August.

Whilst appreciating the difficulties that you describe before we nominate Legal Representatives considerable clarification is required regarding jurisdiction.

As we understand the situation the surviving boy Sean on who’s behalf of the action will be brought is and always has been a UK citizen and there is no indication that the grandparents who intend to bring this action on his behalf were not also domicile in the UK at the time this accident occurred and that being the case advice we have received is that this action should be brought in the UK and not in the Republic. If that is agreed then we will nominate Solicitors to handle the formalities but if it is not agreed please state the authority upon which you base any decision to bring this action in the Republic notwithstanding the fact that all concerned are UK citizens.”

These Replies to Particulars dated 6th October, 2000 then continue as follow:-

“In the circumstances of the said correspondence and representations and acts of the insurers for the Defendant, the Defendant is estopped from raising as a Defence the provisions of Section 9 of The Civil Liability Act in that the said correspondence, being acts and representations encouraged the Plaintiff’s United Kingdom’s Solicitors to defer taking steps to protect the Plaintiff’s interests in that they believed as a result of the words and/or conduct of the Defendants and it was reasonable to infer and from which it was in fact inferred, that liability would be admitted. Accordingly the Plaintiff and his legal advisors were misled into a feeling of security on the issue of liability and thereby into a justifiable belief that the statute would not be used to defeat the Plaintiff’s claim, to escape liability by pleading the statute. The parties were clearly interested in trying to reach a settlement without the necessity of issuing proceedings. In this regard please see correspondents dated 20th September, 1993, 23rd September, 1993, 28th September, 1993, 4th October, 1993 together with telephone discussions held by Solicitors representing the Defendant’s interest which occurred on 12th April, 1994 with the representative of B.P.I. in which discussions took place in regard to quantum value of the claim vis a vis dependency of the Plaintiff and the care aspect of the claim in regard to the Plaintiff as well as general damages.
In the circumstances, it would be unconscionable for the Defendant herein to plead the limitation period as set out in the Civil Liability Act, 1961.

The aforesaid is a resume of the most salient facts but detailed oral evidence will be tendered to support the Plaintiff’s claim.”

Evidence was given at the hearing of this Preliminary Issue by Mr. Keith Colman, Assistant Claims Controller of Bradford-Pennine Insurance, Mr. John McGuire, Managing Clerk of Messrs Evill and Coleman, Solicitors and Mr. Kevin Brophy, Principal of the Firm of Brophy, Solicitors.

Mr. Colman told the Court that in 1993 insurers in England and Wales were being encouraged to narrow issues and to settle claims as quickly and as inexpensively as possible. He said that in writing his letters of 23rd September, 1993 and 4th October, 1993 to Messrs Evill and Coleman, he was indicating that Bradford-Pennine Insurance were anxious to settle this claim and would not be raising an issue of contributory negligence. In the course of a telephone conversation on 12th April, 1994, he and Mr. McGuire had tried to agree the heads of damage which were being claimed and the amount being claimed under each such head. Both men kept a Memorandum of this conversation and these were proved and introduced in evidence at the hearing. They never, he said, got anywhere in terms of quantifying the claims, but liability was not an issue and never had been. If the case was to proceed in the United Kingdom where he believed it should, he was prepared to nominate Solicitors to handle the formalities.

Mr. McGuire told the Court that as far as he was concerned the insurers had never come out and said, “liability is no longer an issue”. He had never got an absolute, positive or unequivocal admission that liability was not an issue. He would probably have to agree that there was always some uncertainty as to whether or not there would be an issue on liability in any proceedings which might be initiated. He was satisfied that at the end of the day, they would win on liability. He did not discuss the Statute of Limitations, [Limitation Act (England and Wales) 1980 Section 11(4)], with Mr. Colman or with anyone else.

Mr. Kevin Brophy said that his Firm was instructed in the case in January, 1994. He had a conversation with Mr. McGuire or Mr. McGuire’s secretary and, from that, and, from his own knowledge of the circumstances of the accident, he had operated on the basis that liability was not going to be an issue in the case. Papers were sent to Counsel by his Firm, – he did not himself retain the carriage of the case, – and draft proceedings were furnished by Counsel in October, 1994. In cross examination Mr. Brophy told the Court that he and Mr. McGuire knew from experience there were cases where it was 99.9 per centum certain that liability was not going to be an issue and, that this was one such case. If liability was put in issue he considered that it would be a mere formality. He accepted that his Firm did not have a letter from the insurers dealing specifically with the question of liability but he was aware of the correspondence between Messrs Evill and Coleman, Solicitors, and Bradford-Pennine Insurance. In his opinion, Mr. McGuire had got as absolute an admission on the issue of liability as one was ever likely to get from an insurance company. However, he accepted that Mr. McGuire had not got an absolute, unqualified admission on liability. Mr. Brophy accepted that there was no awareness in his Firm that the limitation period in this case had expired on 27th November, 1994 and, Counsel in returning the draft pleadings in October, 1994, had made no mention of the imminent expiry of a limitation period. Mr. Brophy considered that the provisions of Section 9(2) of the Civil Liability Act, 1961, had not been adverted to by the person in his Firm dealing with the claim.

Having heard the evidence and considered the correspondence, I find that neither Bradford-Pennine Insurance or Sun Alliance Ireland had made a clear and unambiguous promise assurance or representation to either Messrs Evill and Coleman, Solicitors, or to Brophy, Solicitors, that liability would not be an issue. Both Mr. McGuire and Mr. Brophy from their own information were convinced that negligence or contributory negligence would never be real issues in proceedings taken on behalf of the Sean Yardley (a minor). It is clear from the evidence of both these gentlemen that neither considered that he had received a promise or assurance that the insurers, if the claims were not compromised, would not raise an issue of negligence, breach of duty or contributory negligence. Both accepted that the issue of the claims becoming statute barred was never adverted to: the issue did not arise under the Law of England and Wales because of the length of time involved and, the person dealing with the claim in Brophy Solicitors does not appear to have adverted to the two year, as distinct from the normal three year period of limitation in personal injury claims, provided for by Section 9(2) of the Civil Liability Act, 1961, in respect of causes of action surviving against the estate of a deceased person.

Even if the letters of 23rd September, 1993 and 4th October, 1993 from Bradford-Pennine Insurance to Messrs Evill and Coleman, Solicitors, taken in their context and in the light of the circumstances that the accident had occurred on 28th November, 1992 and had since then been the subject of very considerable scrutiny, – including a Coroners Inquest, – could only have the meaning that liability was conceded unless in the very unlikely event of some new and very material facts concerning the accident coming to light, this in my judgment, is far short of the sort of clear and unambiguous promise assurance or representation that liability would not be an issue necessary to enable the doctrine or promissory estopple to be invoked by the Plaintiff. This correspondence could not in my judgment, have induced the Solicitors for the Plaintiff to believe that the claims would be settled without the necessity of initiating proceedings within the period stipulated by the statute. Indeed, in the course of evidence both Mr. John McGuire and Mr. Kevin Brophy accepted that they had received no absolute positive or unequivocal promise or assurance from the insurers that liability would not be an issue in any proceeding. In my judgment, the principles of the law of promissory estopple as expounded and applied in the case of Doran v. Thomas Thompson and Sons Limited (1978) I.R. 223, (Supreme Court), apply with similar effect to the facts of the instant case. Using the words of Kenny, J., at page 238 of the Report in that case:-

“There was no representation of any kind by the insurers…, that they were admitting liability, or that the only issue in the case was the amount of damages or that they would not rely on the Statue of Limitations. Therefore, there is no foundation for the application of the doctrine of promissory estopple.”

Even if these letters could, – and I do not accept that they could, – be construed in the context as amounting to an unambiguous promise or assurance intended to affect the legal relations between the parties, that liability, that is negligence breach of statutory duty or contributory negligence, – would not be an issue in any proceedings, this would not necessarily of itself make it reasonable for the Solicitors for the Plaintiff to assume that the institution of proceedings, – even if by way of assessment of damages only, – could be deferred beyond the limitation period. In the decision of the Supreme Court in the case of Ryan v. Connolly [2001] 1 IR 627 Keane C.J., (as he then was), in delivering the judgment of the Court stated as follows at page 633:-

“In the absence of a statement by the insurance company from which it was reasonable to infer that, in the event of proceedings not being instituted within the limitation period they would refrain from relying on a Defence under the Statute, there seems no reason in principle why the insurance company should be subsequently precluded from relying on such a Defence.”

In the case of Doran v. Thompson Limited, (above cited), the Supreme Court considered that the conduct of an insurer, though not sufficient to amount to a promissory estopple, might yet be so dishonourable or such that it would be inequitable in the Court to allow them to rely on a time-bar. At page 238/9 of the Report in that case, Kenny, J., held as follows:-

“The other argument was that it would be inequitable to allow the Defendant to rely on the Statute Limitations. If the Defendant had accepted liability and had entered into negotiations to arrive at an agreed sum and if the Plaintiff’s Solicitors had refrained from bringing proceedings because they relied on the admission of liability or the negotiations being conducted, it would be inequitable to allow the Defendants to rely on the time-bar. But they never accepted or admitted liability and never represented that they did, nor did they carry on any negotiations for the purpose of settling the case. They did nothing which could give the Plaintiff’s Solicitors the impression that they need not issue proceedings nor did they mislead them in anyway. I cannot see how the conduct of the insurers was dishonourable in any respect and I do not think that anything they did makes it inequitable for them to plead and rely on the Statute of Limitations. If the Plaintiff’s Solicitors thought that liability was being admitted, the Defendants and the insurers did nothing to cause or contribute to that belief.”

In my judgment this was the principle upon which this Court acted in the case of Traynor v. Fegan [1985] I.R. 586, where Barrington, J., (then of the High Court), in the course of his judgment cited the decision of the late Chief Justice, O’Dalaigh in O’Reilly v. Granville [1971] I.R. 90 at 98, and the decision of Finlay P., (as he then was), in the case of Smith v. Ireland and Others [1983] I.L.R.M. 300. In Traynor v. Fegan, Barrington, J., at page 595 of the Report, pointed to the fact that there was no question in that case of the Plaintiff having been led to believe that the Defendant was going to admit liability, or that her Solicitor was deceived on that point. However, he found that the conduct of the insurers in that case was such that it would be inequitable to permit them to rely upon the Statute of Limitations in their defence. In that case, problems of representation on the Defence side in this Jurisdiction for which the insurers were principally responsible were held to have caused the Solicitor for the Plaintiff to defer issuing the originating summons until it was too late and the statutory period had expired.

In my judgment, the letter dated 6th September, 1994 from Mr. Keith Colman, Assistant Claims Controller of Bradford-Pennine Insurance to Messrs Evill and Coleman, Solicitors for the Plaintiff does not amount to a waiver by the insurers of their right to plead the time-bar, nor does it give rise to a circumstance where in the words of O’Dalaigh C.J., (as he then was), in O’Reilly v. Granville (above cited) it would be, “not only wholly unmeritorious, but I feel it my duty to add unconscionable and plainly dishonest,” for them to rely on the provisions of Section 9(2) of the Civil Liability Act, 1961.

The events in the case of Traynor v. Fegan (above cited) which surrounded the nomination by the insurer of a Solicitor in this State to defend the proceedings, and which the Court found resulted in the Solicitor for the Plaintiff not taking steps to protect his clients’ interest by issuing proceedings in time for service outside the Jurisdiction, were materially different to those in the instant case. Mr. Colman, then Assistant Claims Controller of Bradford-Pennine Insurance wrote his letter of 6th September, 1994, as he confirmed in evidence before this Court, against the background that the insurer had been advised that the proceedings should be brought in the United Kingdom and not in this State. He then, very properly, went on to state, “If that is agreed then we will nominate Solicitors to handle the formalities but if it is not agreed please state the authorities upon which you base any decision to bring this action in the Republic notwithstanding the fact that all concerned are UK citizens.”

As appears from the subsequent correspondence on 8th September, 1994 he was advised by Messrs Evill and Coleman that proceedings could be taken in this Jurisdiction and that the matter would be dealt with by Solicitors here. By letter dated 21st October, 1994 Sun Alliance Ireland wrote to Messrs Evill and Coleman informing them that they were now acting in the matter and asking that Firm to nominate Solicitors in this State with whom they might correspond. By letter dated 2nd November, 1994 Messrs Evill and Coleman advised Sun Alliance Ireland that Brophy, Solicitors were dealing with the matter. By a letter dated 17th November, 1994 Brophy, Solicitors advised Sun Alliance Ireland, that Counsel had drafted proceedings on behalf of the Plaintiff and asked them to nominate some person to represent the deceased driver in place of Terence and Rosalind Diane Yardley who would be the Defendant in the proceedings. Unfortunately, by 19th December, 1994, when Sun Alliance Ireland wrote to Brophy, Solicitors, advising them that Patricia Boyd was nominated to represent the deceased driver, the limitation period had expired since 27th November, 1994.

In my judgment, the letter of 6th September, 1994 from Bradford-Pennine Insurance to Messrs Evill and Coleman, did not impose any positive duty on Sun Alliance Ireland to nominate Solicitors in this Jurisdiction to accept service of proceedings here or to nominate a person to be the Defendant in those proceedings prior to the expiry of the limitation period. It could not, nor could any subsequent correspondence or communications from the insurers justly or reasonably be said to amount to conduct which would render it unconscionable or dishonest for them to plead the time-bar in their Defence.

I am satisfied on the evidence and I so find, that the sole reason why the originating summons in this action was issued outside the period allowed by Section 9(2) of the Civil Liability Act, 1961, was that the person in the Firm of Brophy, Solicitors, having carriage of the action was unfortunately unfamiliar with that Section and the shorter limitation period which it specified as compared with the generally known limitation period of three years provided by Section 11(2)(b) of the Statute of Limitations, 1957. In the circumstances, the Court is driven to the conclusion that no proceedings maybe maintained in respect of this particular cause of action by reason of the provisions of Section 9(2)(b) of the Civil Liability Act, 1961, and this action must regrettably be dismissed.

Other cases referred to in argument

Industrial Yarns Limited v. Greene and Manley [1984] I.L.R.M. 15

Crabb v. Arun District Council [1975] 3 A.E.R. 865 (Court of Appeal, Civil Division)

Bowes v. Motor Insurers’ Bureau of Ireland and Harte [2000] 2 IR 79

Bus Eireann – Irish Bus v. The Insurance Corporation of Ireland plc. [1995] 1 I.R. 105.

Moynihan v. Greenesmyth [1977] I.R. 55

Evanson v McColgan

[2006] I.E.H.C. 47

JUDGMENT of Mr. Justice John MacMenamin dated the 27th day of January, 2006.
By notice of motion dated 5th day of May, 2004 the defendant seeks an order pursuant to Order 25 Rule 1 of the Rules of the Superior Courts that a preliminary issue be tried as to whether that the plaintiff action is barred by virtue of the provisions of s. 9 of the Civil Liability Act 1961 as amended.
1. Background
The proceedings in question arise out of a road traffic accident which occurred on 20th October, 1995 on the main Letterkenny to Lifford road. The vehicle in which the plaintiff was a passenger collided with a vehicle being driven by one Peter McColgan. Mr. McColgan unfortunately died as a result of the collision.
Subsequently the plaintiff commenced proceedings Record No. 1998/11298 P by way of originating plenary summons wherein the late Mr. Peter McColgan was named as defendant. These proceedings were issued on 16th October, 1998 in circumstances which will be later described. No appearance was ever entered to those proceedings. The first reason therefor was that the defendants pointed out that the plaintiff was not entitled to sue that defendant being a deceased person, even if sued in the care of the solicitors nominated on behalf of the defendant by his insurer. The second reason which gave rise to this motion was that, when the writ was served on Messrs John P. Redmond and Company, the defendants nominated solicitors, they raised the issue that the summons to be out of time in that such proceedings should have been initiated within two years of the date of the death of Peter McColgan.
2. On 18th July, 2000 the plaintiff commenced the current proceedings against the defendant in her capacity as the personal representative of the late Peter McColgan. A second set of proceedings was also initiated by the plaintiff’s husband, also involved in the accident. While the same issue arises in regard to the second proceedings, it has been agreed that the motion should determine the issue for both cases. An appearance was entered to the proceedings and a statement of claim was filed on 31st August, 2000 asserting negligence and breach of duty including breach of statutory duty by the defendant.
3. On 29th May, 2001 a defence was delivered stating that the action of the plaintiff herein is barred pursuant to the provisions of s. 9 of the Civil Liability Act 1961. Thereafter a reply to the said defence was delivered on 1st October, 2002.
4. The plaintiff Jane Evanson resides in Northern Ireland. She sustained injuries in the accident. They were of a significant nature. She was minded to initiate proceedings and to that end instructed her solicitor in Northern Ireland, Brian Patrick McElholm, to advise her in this regard. Mr. McElholm forwarded a letter of claim on 13th December, 1995 to the insurers for the deceased namely Cornhill Insurances in Dublin (hereinafter “Cornhill”). Cornhill passed the file to their Belfast office and correspondence then followed between the Belfast office of Cornhill and Mr. McElholm.
The Correspondence
5. The first letter referred to then, is one of 13th December, 1995. It was addressed to Cornhill Insurance at Russell Court, St. Stephen’s Green, Dublin 2. It was headed
“Re: Your Insured Peter McColgan deceased of Keady, Muff, Co. Donegal.
My Clients: Michael and Jane Evanson of Crevenagh, Omagh, Co. Tyrone
Your Insurance Policy No: PZO-7760276
Road Traffic Accident at Trimlagh, Letterkenny, Co. Donegal on 20th October, 1995.
Dear Sir
I act for my above clients who sustained serious personal injuries in the above mentioned road traffic accident. I have not directed a letter of claim to the personal representatives of the late Peter McColgan as my clients did not wish the family to be troubled. However I would advise you that both my clients suffered severe personal injuries in the above accident. I have been instructed to pursue claims for personal injuries loss and damage and I would be obliged if you would open correspondence with me and confirm whether or not you are prepared to accept liability on behalf of your Deceased Insured at this stage.
I am in the process of obtaining the necessary medical reports and I will contact you further in that regard in due course.
I would be obliged to hear from you soon as possible.
Yours faithfully”
In response to that letter Cornhill in Dublin indicated that they had passed the file to their Belfast Office to deal with the two claims.
6. On January 12th 1996 a letter was sent from Cornhill in Belfast to Mr. McElholm. In the course of that letter they sought details of the date of the accident, and other details as to the plaintiff’s personal circumstances and her injuries. These details were provided by Mr. McElholm on 23rd January, 1996.
7. On 7th May, 1996 Mr. McElholm again wrote to the Cornhill in Belfast drawing attention to his response of 23rd January, 1996 and indicating that he did not appear to have heard from the Cornhill since. He stated that it appeared to him that liability should not be in dispute. He requested that he hear from the Cornhill by return regarding the matter of liability. He added:
“Please note that if I do not hear from you within seven days from the date hereof proceedings will issue without further notice”.
The Cornhill replied on 13th May, 1996 indicating that they understood that Mr. McElholm was obtaining various medical reports and requesting sight of them, as well as details of any special damages being claimed. This letter was signed by Mr. Ian Sayer, an official of the Cornhill in Belfast holding the position of Deputy Team Leader.
8. Mr. McElholm states that, at the time, it was a widespread practice in Northern Ireland not to share medical reports without an admission of liability. It was certainly his practice not to do so until liability was admitted and he can now think of no occasion whom he did share such reports without such an admission. Therefore on receipt of the letter dated 13th May, 1996 from Cornhill he telephoned that insurance company in Belfast and spoke to a claims clerk named “Jennifer” to confirm that there would be no dispute with regard to liability. In an affidavit sworn herein, Mr. McElholm specifically deposed to the fact that the claims clerk to whom he spoke indicated that liability would not be in dispute given the circumstances of the accident. He also stated that he was concerned that the defendant would not raise any issue with regard to speed or any other element of contributory negligence. He was assured that there was no issue with regard to these issues and that the matter should be settled quite easily subject to obtaining all necessary medical reports on both sides. Mr. McElholm says that this telephone conversation must have taken place on 17th May, 1996 as he made a handwritten note on the face of defendants letter of 13th May, 1996. This note or memorandum reads
“17/5/96
No dispute on liability.”
9. Mr. McElholm further specifically swears that Cornhill, through the same official (now known to be a Jennifer Crean) requested that he not pass the file to agents in Ireland for the purpose of instituting proceedings but that he should as he only seek legal advice as to valuation of the claim and that he continue to conduct settlement negotiations directly with the Cornhill so as to avoid costs. He agreed to this course of action on the basis that his clients had specifically instructed him to achieve an early settlement as they had just embarked on a new business venture.
10. On 17th May, 1996 (the same date as that memorandum) Mr. McElholm wrote two letters. The first of these was addressed to the plaintiff and her husband. The letter confirms that Cornhill had contacted him through their Belfast office and indicated that liability was not in dispute. He stated that he had arranged with them that he would obtain further medical reports in respect of both plaintiffs and forward these directly to the insurance company. He added:
“They wish then to deal directly with me, and that I only use my agents in Donegal as consultants in regard to valuations in the Republic of Ireland. They have indicated that they would like to achieve an early settlement of these cases and will do so upon receipt of our confirmation that our medical evidence is complete …”.
Clearly this letter is of particular value as being contemporaneous to the events in issue.
On the same date Mr. McElholm wrote to the Cornhill. That letter reads
“Thank you for your letter of 13th May. I further refer to my telephone conversation with Jennifer in your Office on 17 May.
I note that there will be no dispute in liability in this matter and I would be grateful if you could confirm that in writing and confirm that no question of contributory negligence or any other complicating factor in regard to liability will be raised. On the basis that I am confident that I will receive this information I enclose the following medical report in respect of Jane Evanson:
1. Report of Thomas F. Fannon M.D. FRCS Ed Dated 1 February, 1996
You will note that Mr. Fannon recommends a report from Mr. D.P. Burns Consultant Surgeon RVH. I will confirm that I have already requested same from Mr. Burns but as yet have not heard from him. I am also in the process of obtaining medical evidence in relation to my client Michael Evanson. Upon receipt of further reports in respect of both parties I will let you have a note of same.”
On the same date Mr. McElholm wrote a further letter to the Cornhill enclosing copies of hospital accounts from Letterkenny General Hospital in respect of both his clients, as such accounts would form part of the claim for special damage.
He also wrote a letter to Mr. Michael Evanson requesting details of any uninsured losses which he may have incurred in the accident and also asked for details of any towing or storage account in respect of his own vehicle, the excess on his insurance policy and any car hire account if relevant. Mr. McElholm states that thereafter the emphasis was on gathering medical evidence and particularising the plaintiff’s particulars of his loss and obtaining valuations from counsel with regard to the plaintiff’s injuries. This is confirmed by letters dated 26th June, 1996 and 9th October, 1996 relating to the vouching of the items of special damages referred to earlier. Having written on the 9th October, 1996 furnishing this material, on 30th October, 1996 Mr. McElholm again wrote to the Cornhill referring to his earlier letter and stating that he would be obliged to hear from them as soon as ever possible.
11. On 23rd October, 1996 Mr. Sayer writes to Mr. McElholm seeking purchase receipts of the various rather small items of special damage which have been claimed earlier and also asking details as to when these articles were purchased. One of the items was a CD player and he enquired whether it was installed in the motor vehicle.
12. At this stage a loss adjustor had been retained on behalf of the plaintiff. His name was Neville King. On 18th November, 1996 Mr. McElholm enclosed copy correspondence provided by Neville King the loss adjustor in relation to the CD carried in the Evanson car. Mr. King’s letter of 12th November, 1996 furnished a claim schedule with the purchase dates written beside each item and also confirmed that the CD player was not installed in the motor vehicle and was simply being transported to Donegal for the vehicle. Mr. King asked the claims assessor in Cornhill to contact him and he would endeavour to agree quantum with regard to this section of the claim.
13. On 29th January, 1997 Mr. Sayer wrote to Mr. McElholm referring to the claim and confirms having received certificates from the Compensation Recovery Unit indicating that no benefits had been paid to the plaintiffs. He adds
“Please inform us whether or not your medical evidence is now complete”.
On 4th June, 1997 Mr. King wrote to Mr. McElholm advising that he had that day agreed the contents of the motor vehicle section of the claim with Cornhill in the sum of STG £1,750 plus £100 policy. He added that Mr and Mrs Evanson had requested that interim payment be forwarded to them as soon as possible as they would wish to replace these items before departing on their holiday in two weeks time.
14. He also included a copy of his fee account and asked for it to be forwarded to the Cornhill.
15. In summary therefore, Mr. McElholm states that at all times Cornhill Insurances urged him not to engage agents in Ireland but to deal directly with themselves so as to reduce costs and to save time; that Cornhill Insurance were most anxious that proceedings would not be instituted but that the plaintiff’s claim should be settled by way of negotiations as between himself and the insurance company without having to issue unnecessary proceedings and incur unnecessary costs. He states that the conduct of the case by Cornhill Insurance Company up to and including beyond the two year time limitation period would indicate that they too accepted this agreement.
16. It is relevant to recollect here that the accident occurred on 20th October, 1995. Thus the statutory two year time limit expired on 19th October, 1997.
17. Mr. McElholm’s knowledge of this question is not addressed. None of the participants in the events appear to have adverted at any time during this period to the fact that the statutory time limitation pursuant to s. 9(2) of the Civil Liability Act 1961 as amended was just two years.
18. On 11th February 1998, and outside of the limitation period, pursuant to the earlier agreement, six medical reports in the case were sent to the Cornhill by way of Disclosure by Mr. McElholm, and two medical reports were sent in relation to Mr. Michael Evanson. Ms. McDonnell the assistant solicitor then dealing with the file in Mr. McElholm’s office stated to the Cornhill that she would be obliged if the official dealing with the matter in the Cornhill would contact her with a view to arranging a join consultation in respect of the matter.
19. On 28th of April, 1998 Mr. Sayer of the Cornhill again contacted the plaintiff’s solicitors apologising for not having responded earlier and stating that Cornhill would then require details of the plaintiff’s gross and net earnings for a period of 26 weeks prior to the accident. They also sought details that all expenses should be enclosed. Mr. Sayer added
“On receipt of same we will contact you to discuss your clients claim”.
20. On 7th September, 1998 Ms. McDonnell wrote to the Cornhill stating that details of the plaintiff’s gross and net earnings for the 26 weeks prior to the accident were unavailable as they had just started their own business and therefore no accounts were available for that period. By this point Ms. McDonnell was working with the firm of John J. Roche and Company of Newtownstewart. On 24th September, 1998 Mr. King the Loss Assessor wrote to Ms. McDonnell at John J. Roche and Company and indicated that he understood they now acted on behalf of the claimants and reminding her that in June 1997 he had agreed the contents of the motor vehicle with the insurers in the sum of STG £1,850. He enclosed a copy of the bank draft. He also stated that he would be obliged if Ms. McDonnell would advise him of the current position with regard to the claim as he had not received payment from the insurers. A copy of the relevant bank draft dated 23rd June, 1997 is exhibited in the proceedings.
21. It is clear that Ms. McDonnell by early October 1998 considered that matters had dragged on excessively and on 6th October, 1998 she indicated that she had been instructed to issue proceedings. She wrote:
“Dear Sirs
You will note that we are now instructed by the above named following the closure of the office of B.P. McElholm Solicitor. I can confirm that we are now instructed to issue proceedings herein to protect our clients position. Please confirm your clients Title for the purpose of issue of the proceedings. I would also assume that giving (sic) the circumstances you would intend to nominate solicitors to accept service of proceedings in the South of Ireland. I would be obliged to receive details of same by return.”
On a letter of the same date Ms. McDonnell enclosed a copy of a medical report which she had received from Mr. Thakore Consultant Surgeon relating to Mrs. Evanson’s injuries. On that same letter there is a written memorandum to the following effect.
“12/10/98
Mr. Sayers/Ms. McCrey
To ring me back today”, and referring to a direct line telephone number.
On 13th October, 1998 there is exhibited an attendance docket from Ms. McDonnell. This reads
“Tel. Att. On Ian Sayer.
Sols to accept service in Eire
JP Redmond and Co
22 Merchants Quay
Dublin 8
Defendants Title Peter McColgan”.
22. Thus on 13th October, 1998 Ms. McDonnell wrote to Messrs Reid and Sweeney Solicitors, Main Street, Ballyshannon, Donegal. Referring to both her clients the letter reads
“Dear Sirs
We act for the above named in relation to a claim for damages arising out of a road traffic accident on 20th October, 1995. We are in the process of negotiating a settlement with the insurers but it has become necessary to issue proceedings solely to protect our clients position. Our counsel Mr. Paul McGettigan has drafted proceedings and recommended that we contact your office with a view to having same issued and served. The insurers have confirmed that the defendant (although deceased) is to be named as Peter McColgan and proceedings are to be served on JP Redmond and Co Solicitors, 22 Merchants Quay, Dublin 8.
I would be obliged if you would attend to this matter and let us have a note of your fee herein. Please confirm that proceedings will be issued before Tuesday 20th October.
Yours sincerely”.
It is clear then that Ms. McDonnell, proceeding on her misapprehension as to the time limit, was seeking to ensure that proceedings were issued within a perceived three year time limit from the date of the accident which had occurred on 20th October, 1995.
23. Prior to these letters of October 1998 however Ms. McDonnell specifically deposes that she telephoned Cornhill Insurances on 12th October 1998, asking them to confirm their insurer’s title for the purpose of issuing proceedings and spoke at that stage to Ian Sayer who “specifically requested that your deponent herein not issue proceedings as liability was not disputed”. Ms. McDonnell adds:
“I say that this conversation took place well outside the statutory period and even at that stage the said Cornhill Insurance were requesting that proceedings not be issued. I say that Mr. Sayer informed me the following day as to the name of the solicitors who would be acting for the defendant and the appropriate title of the defendants.”
She refers to the attendance docket dated 13th October, 1998 and also to the fact that proceedings thereafter were issued on 16th October of that year to Reid and Sweeney Solicitors. Thereafter her colleague Patrick Roche assumed conduct of the file effective from November 1998 and she had no further input therein.
24. The position of the defendant’s insurers in this motion is put forward on the basis of two affidavits, one sworn by Ian Sayer and the other by Eric Dawson. Both are now officials at Allianz Northern Ireland Insurance Company in Belfast (formerly Cornhill Insurance plc).
25. It is necessary to deal with the affidavit of Mr. Sayer first. From a consideration of the file he states that it seems that it was Jennifer Crean who spoke with Mr. McElholm on 17th May, 1996. Ms. Crean worked with the Cornhill Insurance company at that time.
Efforts were made to have her swear an affidavit in these proceedings. But no such affidavit has been adduced.
Mr. Sayer also states that he could confirm from the file that at no stage was there any indication that there would be a dispute on liability and that at all times the plaintiff’s claim was a matter for assessment only. He states that this is consistent with the handwritten note of Mr. McElholm on the letter written by Mr. Sayer on the 13th May, 1996 and upon which Mr. McElholm made the memorandum referred to earlier.
26. However Mr. Sayer goes further and states that he is clear that
“in any conversation with Mr. McElholm, at no stage was it intimated or indicated to him that he should not issue proceedings but certainly if it was the case back in May 1996 that Mr. McElholm was anxious to achieve an early resolution of the case, your deponent would certainly have taken the view that issuing proceedings will only have delayed matters”. Mr. Sayer continues:
“However at no stage did your deponent make any representation to Mr. McElholm that it would never be necessary for the plaintiffs to have to issue proceedings as whilst the matter may have been for assessment only, the deponent in May 1996 or thereafter could never have been confident that agreement could be reached on quantum and if this were the case obviously proceedings would then have to issue.
He concludes:
“Hence, if there were any agreement regarding the institution of proceedings as whether or not to institute such proceedings, your deponent first disputes that this was agreed but, in any event, secondly, is adamant that same was only on the basis that the matter would be resolved in a short period of time as was the then intent on the part of the plaintiff”. Clearly however Mr. Sayer cannot
testify as to what was represented to the plaintiffs solicitor by Ms. Crean.
27. Mr. Sayer states that, having perused the file, at no stage did he make any note or memorandum to the effect that Mr. McElholm need not issue proceedings. He also draws attention to a letter of 6th October, 1998, sent to him by Mr. McElholm, which letter makes no mention of any agreement or representation whereby it was not necessary for the plaintiff to institute proceedings at all. The letter confirms that proceedings were now going to be issued “to protect the plaintiff’s position” and requesting that Mr. Sayer nominate a firm of solicitors in this jurisdiction. He adds:
“Your deponent is unaware whether or not at that stage the plaintiff’s solicitors were aware that the statutory limitation had expired as the defendant was deceased, though your deponent does note Ms. McDonnell’s averment that by October 1998 it was clear that the statutory period had expired.”
Mr. Sayer fairly adds that at that time he was not aware of the divergence in this jurisdiction between the more common limitation period and that which exists when the plaintiff is deceased.
Mr. Sayer points out that the memorandum of 13th October, 1998 wherein he nominated Mr. John P. Redmond and Co to accept service, further underlines that at no time was there any agreement or representation for proceedings not to issue.
28. On 15th October, 1998 Mr. Sayer wrote to John P. Redmond and Company Solicitors with regard to their nomination as solicitors to act in defence of the claim. This letter reads:
“Our insured – P. McColgan (deceased)
Motor accident – October 20th 1995
M & J Evanson v. McColgan
We refer to the above tragic accident in which our insured was killed. We have nominated your good selves to accept service of proceedings from the solicitors acting on behalf of the third parties.
There is no dispute on liability. The solicitors have indicated that the proceedings are only issued due to the time period and that immediately the medical evidence is complete which we hope will be in the near future, discussions can take place …”
29. With regard to the telephone conversation which took place on 13th October, 1998, Mr. Sayer says he is quite certain that neither on the occasion Ms. McDonnell mentioned nor on any other occasion did he request her in any way not to issue proceedings. To his recollection statutory periods were never mentioned between them. He did however give the name of the solicitors in Dublin namely John P. Redmond and Company who would accept service. He states that he does not recall and has no note on the file to state that he agreed to allow Peter McColgan to be named as the defendant in the proceedings. He again refers to his letter to John P. Redmond and Company on 15th October, 1998 and says that if he had made such an agreement with Ms. McDonnell he would certainly have informed John P. Redmond and Company of the same.
30. Mr. Sayer says that at no stage was it ever agreed or represented that the plaintiff need never institute proceedings as this could in due course have made it impossible for the parties to resolve the matter. However he states in certain actions he might occasionally request a firm of solicitors not to issue proceedings after an offer to settle a claim had been made but rather for the firm of solicitors to hold off issuing such proceedings until their client had come back with an acceptance of such offer. However in those circumstances, a note would have been made of the offer and the fact that proceedings were to be held off until a response had been given to same. In this case, this did not arise as no offer in settlement of the case was ever made.
31. It is noteworthy however that in his letter of 15th October, 1998 Mr. Sayer in the course of the heading of the letter refers to the case as being “M & J Evanson v. McColgan” having previously referred to the Cornhill insured as being “P. McColgan (deceased)”. It will also be noted that he states that the proceedings are “only issued due to the time period”. From this I infer that Cornhill Insurance apprehended that the plaintiff’s solicitors would not have issued the proceedings but for their concern regarding the time period. They would not have done so otherwise.
A further question arises. Upon that basis had the plaintiff’s solicitors been induced to desist from the issuing of proceedings? The only reasonable conclusion is that the decision not to issue proceedings arose from the conduct of the negotiations between the plaintiffs and Cornhill.
32. It is necessary then to deal with two other affidavits which were sworn in time sequence. The first of these, already referred to, is that of Eric Dawson. Mr. Dawson, an insurance official with the defendant, denies that any representation was made by him in any contact which he had with Mr. McElholm whereby it was deemed not necessary for the plaintiff to issue proceedings. He adds that if such an unusual and far reaching agreement had been made, a note of same would have appeared on the file and would have been followed up by a confirmation letter to the plaintiffs then solicitors.
33. Mr. Dawson concedes that, while it seems that Ms. Crean on behalf of the defendant agreed that liability would not be put in issue, it was certainly not the case that a representation was made whereby that no issue would be taken on time if and when the plaintiffs issued proceedings. Mr. Dawson accepts that he too was unaware of the distinction in time limitation that exists in the case of the deceased persons as defendants. I consider that Mr. Dawson’s affidavit must be seen in the same light as that of Mr. Sayer. He cannot depose as to what Ms. Crean said, any more than Mr. Sayer.
34. There is finally an affidavit from Mr. McElholm wherein he states that in cases such as these it was his usual practice to forward a file to agents in this jurisdiction within 12 months of the date of the accident in the event that the case had not settled. He adds:
“In this particular case Cornhill Insurance urged me not to do this and at all times represented to me that this was a case of assessment only and not to incur any further costs by issuing proceedings. It was on these representations that the file was retained and proceedings not issued”.
He adds
… “If the representation had not been made then I would have forwarded the file to agents in the Republic of Ireland and had proceedings issued before the expiry of the two year limitation period”.
35. On behalf of the defendant Mr. Comyn SC submitted –
(1) That the plaintiff’s advisors thought that the relevant time limitation in this jurisdiction for the issuing of proceedings was a three year period;
(2) That the plaintiff was never led to believe that the proceedings need not be issued within this statutory period whatever it might be;
(3) That there was no misrepresentation from the Cornhill as to the time limit applicable nor as to the need to issue proceedings at some stage within such time limit as might apply;
(4) That there is not here a question of “mutual mistake” nor any issue, arguing by analogy, similar to a position which arises in contract law where both parties to a negotiation operate under a fundamental misapprehension. Rather their limitation period is laid down by statute. No representation was made by the Cornhill Insurance Company as to the time limit which might give rise to mutual mistake;
(5) That there is no mutuality of duty between the obligations of the plaintiff’s solicitors to their client and that of the insurers. It is the duty of the plaintiff’s solicitor to protect the interest of their client;
(6) That a concession in liability is not be seen as a carte blanche never to issue proceedings;
(7) That on the evidence the reason why these proceedings were not issued in time was because there was error on the part of the plaintiff’s solicitors as to the time limitation.
36. Consideration of the Evidence
On the evidence I conclude that the following events combined gave rise to the situation whereby proceedings were not issued within the time period.
The first of these was that of the 13th May, 1996. This was the conversation which took place between Mr. McElholm and Ms. Jennifer Crean. It is clear that Ms. Crean gave Mr. McElholm to understand that there would be no dispute in relation to liability. Second, it was the desire of the Cornhill not to incur any further costs by the issuing of proceedings. Third, if the representations had not been made would Mr. McElholm otherwise have forwarded the file to agents in the Republic of Ireland and had proceedings issued before the expiry of the two year limitation period? On behalf of the defendants Mr. Comyn S.C. submits that no weight should be given to evidence of this nature. One cannot “superimpose” subjective evidence of an habitual practice on the objective facts. However I consider some weight can be given to this evidence because of other uncontested evidence. In this regard there is one uncontested factor which stands out. It is that the plaintiff themselves were anxious to achieve an early settlement. They had embarked on a new business venture. On a number of occasions referred to earlier it was the plaintiff’s solicitors themselves who took the initiative in the course of the negotiations. They were constrained to contact the Cornhill with a view to reminding them to deal with the file. It was necessary to retain the services of a loss adjustor to deal with the claim for the contents of the car. This aspect of matters was dealt with by the Cornhill and a cheque was forthcoming on 23rd June, 1997. Thus there was pressure from the clients to expedite matters. The fact that the plaintiff’s solicitor did not issue proceedings sooner after the first letter can only be attributed to the representations of the defendants. Mr. Sayer’s affidavit is carefully phrased. I do not understand the plaintiffs case to be that it was agreed or represented that the plaintiff need never institute proceedings. Rather their case is that they accept that they were asked to refrain from issuing proceedings, although it is accepted that no representation was made by the Cornhill that it would never be necessary to issue proceedings nor that the plaintiff was absolved from the need to issue proceedings within a reasonable period. An additional factor was that, due to the unawareness of both parties as to the time limit, the representations (which I am satisfied were made) were sufficient to bring about a circumstance where the plaintiffs claim became statute barred.
But for those representations what would, as a matter of probability; have occurred? Having regard to the nature of the client’s instructions, their apprehension as to the urgency of the proceedings and also (with lesser weight) the evidence regarding Mr. McElholm’s normal procedure, I consider, the evidence as a matter of probability, points to a conclusion that the proceedings would have been issued in this jurisdiction within the time limitation period of two years.
37. One other matter arose on the evidence. This relates to the circumstances surrounding the issue of the first summons. This was issued on 16th October, 1998. The defendant nominated in the summons was the late Peter McColgan.
On behalf of the defendant Mr. Comyn S.C. submits that the plaintiff has not adduced any evidence that her solicitors were misled as to the identity of the defendant in the first set of proceedings. He points out that despite the fact that Messrs Redmond and Co indicated that Mr. McColgan could not be sued, this was not met by the plaintiff’s solicitors with any contention that they had been misled by Cornhill Insurance into nominating the late Mr. McColgan. I do not think it is possible for the court to draw any inferences either way from what occurred, especially having regard to Mr. Sayer’s letter of 15th October, 1998 identifying the cases: “M. and J. Evanson v. McColgan”, and the previous reference to the insured as “P. McColgan (deceased)”. It is only fair to say this issue remains unexplained. It also must be accepted that there is no suggestion in any of the correspondence from which it might be enforced that there was any lack of candour or misconduct on the part of either of the participants in these negotiations. Thus the plaintiff cannot contend in the instant case that any reliance upon a plea under the statute of limitations would be dishonest, as opposed to unconscionable.
38. The Law
To a degree this case bears resemblance to the case of Yardley (A Minor) plaintiff v. Patricia Boyd (defendant) (1995 No. 215 P) Herbert J. Unreported 14th December, 2004. But there the representation made by the defendant as to liability was limited in nature. It is referred to by Herbert J. (at p. 8 of his judgment) as being “far short of the sort of clear and unambiguous promise assurance or representation that liability would not be an issue necessary to enable the doctrine or promissory estoppel to be invoked by the plaintiff” .. But based on the facts Herbert J. stated he was
…..
“ … satisfied on the evidence, that the sole (italics added) reason why the originating summons in this action was issued outside the period allowed by s. 9(2) of the Civil Legality Act 1961, was that the person in the firm of Brophy Solicitors, having carriage of the action was unfortunately unfamiliar with that section and that the shorter limitation period which is specified as compared with the generally known limitation period of three years provided by s. 11(2)(b) of the Statute of Limitations 1957. Thus the action was dismissed.”
39. But it is essential to bear in mind these critical distinctions. It can by no means be said that the sole reason why proceedings were not issued here was unawareness of the limitation period. There were clear representations. There was a clear course of negotiation and conduct. There was an abandonment of liability.
40. Finally counsel submitted that the plaintiffs do not contend that there was an unlimited concession on liability and that at all stages the question of whether or not proceedings ought to be issued was, on the evidence, present to the mind of the plaintiff’s solicitors. On the evidence, it could not be contended that the plaintiff’s solicitors had been “lulled into a false sense of security” regarding the need to issue proceedings. A gap in the correspondence from the plaintiff’s solicitors between 18th November, 1996 and 11th February, 1998 which indicated that the negotiations had “gone off the boil”.
41. Both the defendant and plaintiff (represented by Mr. Michael Carson SC) rely in this case on the decision of the Supreme Court in Ryan v. Connolly [2001] 2 ILRM 174.
42. In that case the plaintiff was involved in an accident on 26th April, 1995. In Ryan the plaintiff was involved in an accident on 26th April, 1995. By letter dated 23rd May, 1995 the plaintiff’s solicitor informed the second named defendant that the plaintiff was claiming damages as against the latter (the driver of the car) for having caused the accident and requested her to forward the letter to her insurer. With one exception, the ensuing letters from the defendants’ insurer to the plaintiff’s solicitor were headed “without prejudice”. By letter dated 11th July, 1995 the insurer sought certain information from the plaintiff’s solicitor and stated that on receipt of same and having concluded their investigation, they would advise as to their decision on liability. Their requests for information were stated to be without prejudice to liability on the part of the insured. By letter dated 1st September, 1995 the plaintiff’s solicitor provided this information. Arrangements were made for a medical examination. By letter dated 9th July, 1996, the insurer stated that it had concluded the damage claim directly with the plaintiff’s insurers and requested the plaintiff’s solicitor to advise if he was in a position to discuss a settlement at the time. By letter dated 24th July, 1996, the plaintiff’s solicitor had stated that he was awaiting an up to date medical report and would contact the insurer as soon as one was obtained. By letters dated 13th March, 1997, 30th October, 1997 and 27th January, 1998 (which were not replied to by the plaintiff’s solicitor) the insurer requested the plaintiff’s solicitor to advise as to whether he was in a position to have settlement negotiations. By letter dated 2nd July, 1998 – at which point the Statute of Limitation period of three years had expired – the insurer requested the plaintiff’s solicitor to advise if he was in a position to meet for without prejudice talks. On 30th April, 1998 the plaintiff’s solicitor requested the insurer to nominate a solicitor to accept service of proceedings. These proceedings were instituted by way of plenary summons dated 11th December, 1998 and a statement of claim was delivered on 11th June, 1999. In their defence delivered on 14th July, 1999, the defendants pleaded that the action was statute barred pursuant to s. 11(2)(b) of the Statute of Limitations, 1957, as amended.
43. In its consideration of the earlier authority of Doran, the Supreme Court held in Ryan that a plaintiff who seeks to rely on the estoppel principles outlined therein, must establish that there was a clear and unambiguous representation by the defendant that liability would not be in issue, from which it was reasonable for the plaintiff to infer that the institution of proceedings was unnecessary. In this regard a plaintiff cannot rely on a strained or fanciful interpretation of the words used by the defendant. He must show that it was reasonable in the circumstances to construe the words in a sense that would render it inequitable for the defendant to rely on the defence under the Statute of Limitations. However the court added this caveat: the fact that a defendant has expressly and unambiguously conceded the issue of liability in a case will not necessarily of itself make it reasonable for the plaintiff to assume that he can defer the institution of proceedings beyond the limitation period. Where, for example, an insurance company accepts within days of an accident that no issue on liability arises but the subsequent negotiations become dormant, the plaintiff may be precluded from relying on the principle under consideration if he permitted the limitation period to expire without instituting proceedings. In the absence of a statement by the insurance company from which it was reasonable to infer that, in the event of the proceedings not being instituted within the limitation period, they would refrain from relying on their defence under the Statute of Limitations, the insurance company should not in principle subsequently be precluded from relying on such a defence.

Keane C.J. added
“On any view however it is clear that a plaintiff who seeks to rely on the law as laid down in Lowe v. Bouverie and Doran v. Thomson Limited must be in a position to satisfy the court that there was a clear and unambiguous representation by the defendants that liability would not be an issue from which it was reasonable for the plaintiff to infer that the institution of proceedings was unnecessary.”
44. I accept Mr. Carson’s submissions that it is clear from the judgment of the then Chief Justice, and in particular to his reference to the state of the law in Doran v. Thomson, that the earlier authority of Doran was not overruled. Effectively Doran’s case, seen from the standpoint of the judgment of the Chief Justice in Ryan, limits the requirement on a plaintiff raising an estoppel to establishment of the fact that there had been a withdrawal of liability. However the Supreme Court judgment in Ryan’s case makes the point that a mere withdrawal of liability may not, of itself be sufficient in certain circumstances, and gives the example of a settlement negotiations which become dormant. This is not the case here. The negotiations did not come to an end in the sense that there had been the refusal of an offer, or in any sense from which a court might infer that there was then an obligation on the plaintiff’s solicitor to issue proceedings and that negotiations had broken down. It is in that light that one should see the statement of Keane C.J., set out above, which is to describe a situation in which the plaintiff who has obtained the benefit of a withdrawal of liability, and who was in negotiation which subsequently becomes dormant, may thereafter find himself defeated by the statute and unable to raise an estoppel unless he is in a position to establish that reliance on the statute had also been withdrawn. Mr. Carson points to the fact that Doran v. Thomson was referred to with approval in the course of the judgment in Ryan v. Connolly and therefore manifestly was not overruled by the latter case.
45. It is unnecessary to consider the ancillary submission by Mr. Carson S.C. that even if he is incorrect, the earlier citation from Ryan should be seen as obiter dicta.
46. In the course of arguments Mr. Comyn SC relied on a quotation from Spencer Bower, Estoppel by Representation 4th ed. at chap. V.2.1 (p. 90):
“Implicit in the requirement that the represented induced the represented by the representation is a requirement that the represented rely on the representation. Inducement and reliance may be different concepts but each tests whether the representation caused the relevant conduct, from the point of view of representor and representee respectively, and a representor cannot induce a representee to act by a representation unless the representee relies on the representation.”
Mr. Comyn submits that in the instant case the evidence does not disclose that there was conduct which the plaintiff relied on and was justified in relying on in not issuing proceedings. I regret that I cannot accept this submission.
47. For the reasons outlined earlier I consider that there was express representation by the defendants that proceedings need not be issued. The nature of the representation was that the plaintiff’s solicitors in Northern Ireland should continue to deal with the case; that the matter should not be sent to solicitors in this jurisdiction for the purpose of issuing proceedings in order to save costs; and that on foot thereof the plaintiff and the defendants could discuss an early settlement as desired by the plaintiffs themselves. It was this representation which caused the plaintiff’s solicitors to desist from issuing proceedings within the two year time limitation period. There was no evidence before the court regarding Mr. McElholm’s understanding of the law in this jurisdiction. In the absence of an affidavit from Ms. Jennifer Crean I consider that the evidence of Mr. McElholm both on the nature and effect of the inducement should be accepted. On foot of the express representation or inducement outlined earlier there was a course of conduct, both oral and written, as indicated by negotiations which took place between May 1996 and June 1997. Thereafter there was a payment by the defendant’s insurers of STG £1,850. This payment was made directly to the plaintiffs. I consider that the course of conduct in question continued beyond the expiry of the implementation period. This is shown by the letter from Mr. McElholm to the Cornhill on 11th February, 1998 enclosing a letter from the plaintiff’s accountant regarding loss of earnings and a response thereto of Mr. Sayer of the Cornhill of 25th May, 1998 apologising for the delay in dealing with the matter and seeking additional details regarding earnings. In this case the relevant period for the assessment as to whether an estoppel arises is within the two year period. Within that time span I consider there is evidence on which an estoppel arises.
48. But for the inducement as identified above on the part of the Cornhill Insurance Company I consider the effect of the evidence is that proceedings would have been issued within the two year period. In Doran v. Thomson Limited [1978] I.R. 223, Henchy J. observed
“Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statue, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and thereby, into a justifiable relief that the statute would not be used to defeat his claim to escape liability by pleading the statute”.
49. This dictum applies in the instant case, but certainly not in the sense that Cornhill Insurance did anything dishonest or underhand. It is the conduct and inducement which would render reliance on the plea under s. 9 of the Act of 1961 unconscionable in the circumstances.
50. For the reasons outlined therefore the court will decline the relief sought in the Notice of Motion.

Murphy v Grealish

[2006] I.E.H.C. 22

JUDGMENT of Mr. Justice John MacMenamin dated the 11th of January 2006.

By notice of motion dated 2nd day of March, 2005 the defendant seeks the following relief in the above entitled proceedings

(a) an order dismissing the plaintiff’s proceedings herein pursuant to the provisions of s. 11(1)(2) of the Statute of Limitations Act 1957 as amended by s. 3(1)(2) of the Statute of Limitations Act 1991;
(b) further or in the alternative an order directing the trial of a preliminary issue namely whether the proceedings herein are statute barred pursuant to the provisions of s. 11(1)(2) of the Statute of Limitations Act 1957 as amended by s. 3(1)(2) of the Statute of Limitations Amendment Act 1991.
Background

A number of matters are not in dispute.

1. The plaintiff was born on 2nd November, 1963. He is a cab driver and resides in County Galway. He was involved in an accident on 12th May, 2000 when he was sitting in his car which was stationary on the public highway at or near the Great Southern Hotel at Eyre Square in the city of Galway. The defendant’s car was driven into the rear of the plaintiff’s stationary car as a result of which he sustained significant injuries to his neck and back.

Thereafter significant correspondence took place between the plaintiff’s solicitors (O’Dea and Company), the defendant’s insurers (Quinn Direct Insurance) and the solicitors who thereafter came on record for the defendant, Erne Solicitors.

2. It will be necessary to deal with this correspondence in some detail in order to arrive at a complete understanding as to the respective understandings of the parties regarding what occurred. While some of that correspondence was headed “without prejudice”, the defendant’s counsel, Mr. Paul Henry O’Neill BL has quite properly indicated at the hearing of this motion that no reliance will be placed upon any contention of privilege.

3. Insofar as documentary evidence is available to this court therefore, the first letter in sequence appears to be one of the 1st of August, 2000 from Quinn Direct addressed to the plaintiff personally. It is headed “without prejudice” and states

“Dear Mr. Murphy we write to advise that an independent motor assessor has agreed repairs on your vehicle at IR £1,849.53.
Please complete the enclosed acceptance form and return it to us. On receipt of same we will issue a cheque in the amount of IR £1,849.53 in your favour in full and final settlement of this claim.

We trust this meets with your approval. We look forward to your early reply.

Yours faithfully

Deborah O’Reilly

Claims Department.”

4.Thereafter Messrs O’Dea and Company respond on behalf of the plaintiff. By letter of 17th August, 2000 they state:
“Dear Sirs
We confirm we act on behalf of Mr. Murphy. We refer to your letter of 1st inst. You might confirm that the figures were agreed with McCormack Car Sales Limited.

Our client suffered personal injuries in relation to the accident. You might confirm that you are prepared to deal with the material damage at this stage.

Yours faithfully

O’Dea and Company”.

5. By letter of 31st August, 2000 Quinn Direct respond to O’Dea and Company. This letter which was again headed “without prejudice” stated:

“Dear Sirs

We confirm receipt of your letter to our insurer dated 17th August, 2000 the contents of which have been noted. We have received the completed Accident Report Form from our insurer and we are satisfied that liability will not be an issue.

We advise that is not the policy of this company to deal with claims on a “piece-meal basis”, therefore we will not be in a position to settle the material damage claim, separately from a claim for personal injury. However if your client can prove that he is not the registered owner of the vehicle we will be in a position to deal with the material damage.

Please outline in detail the nature and extent of the injury sustained by your client, along with the name and address of his attending G.P. and consultants, so that we may arrange our own medical examination, if necessary. Please also advise your client’s age, occupation, marital status and VAT status and confirm if he was wearing a seat belt at the time of the incident.

We await your reply.”

6. Matters rested thus in correspondence until 18th June, 2001, when Quinn Direct contacted O’Dea and Company. By letter of that date they stated:

“Dear Sirs

We refer to the above and to previous correspondence.

Please could you confirm if your client is still pursuing his injury claim and if so we would appreciate if you could outline in detail the nature and extent of his injuries and his medical attendance.

We await your early reply.”

To this letter Messrs O’Dea and Company responded on 5th July, 2001 indicating that

“Our client is pursuing a claim in relation to the matter. We have Circuit Court proceedings drafted and same will be served presently.”
7. By letter of 22nd October and 9th November, 2001 Quinn Direct again contacted the plaintiff’s solicitors indicating that to date they have not received any indication of the nature and extent of the plaintiff’s injuries, that no further correspondence had been received since the letter of 1st July, 2001, and that if no further contact took place that Quinn Direct would be closing their file in the matter as they will not be in a position to proceed. A letter, which is not exhibited of 8th November appears to have been sent from O’Dea and Company. On 13th November Quinn Direct respond to the following effect:

“Dear Sirs

We write further to your letter of 8th November last.

You still have not provided the names and addresses of your client’s G.P. and consultants.

This was first requested in our letter to you of 31 August, 2000.

We await details of the same within the next seven days.”

In response to that letter O’Dea and Company state on 20th November, 2001:

“We refer to yours of 13th inst. Our client is at present awaiting an orthopaedic examination. Upon receipt of the results we shall revert to you.”
On the following day a further letter was sent by O’Dea and Company to Quinn Direct indicating the identity of the plaintiff’s medical advisors. On 5th December, 2002 a further letter was sent by Hugh McGrath Regional Claims Manager of Quinn Direct to the plaintiff’s solicitor. This letter comes within a different category to those of the 1st August, 2000 and 31st August. The former two letters were both headed without prejudice. For that reason the defendant indicates they were not exhibited in the grounding affidavit sworn in this application. However the latter letter of 5th December, 2002 was not exhibited either. The reason for such omission is stated to be that such letter was sent by Mr. McGrath Regional Claims Manager of Quinn Direct from his home although it is on company notepaper. For this reason the defendants state they were unaware of its existence until this application was made and the letter was referred to by the plaintiff’s solicitors. The letter of 5th December, 2002 is not headed “without prejudice”. It is addressed to Donal Downes Solicitor of O’Dea and Company Solicitors acting on behalf of the plaintiff Mr. McGrath states:

“Dear Donal
I refer to the above matter and to previous correspondence concerning same.

Could you let me know as soon as possible if:

You would be prepared to share medicals with Quinn-direct in this case and if you are prepared to discuss settlement of the claim. Liability is not an issue.

Trusting to hear from you at your earliest convenience.”

8. By letter of 5th February, 2003 the plaintiff’s solicitor informed Mr. McGrath of Quinn Direct insurance that the plaintiff’s x-rays were being reviewed by an orthopaedic surgeon at an appointment for March of that year. It was presumed that that surgeon would give an addendum to his report confirming his findings. The plaintiff’s solicitor indicated “we will have no difficulty in sharing this”. It will be opportune to recollect at this point that the date of the accident was 12th May, 2000. Therefore all subsequent correspondence took place outside the three year limitation period.

The report from the consultant orthopaedic surgeon was dated 21st May, 2003. This report of Mr. Michael Gilmore FRCS is exhibited in the course of the proceedings.

9. Mr. Gilmore points out that a scan taken at the MRI centre Bon Secour Hospital on 13th May, 2003 showed degenerative change at T6/7, T7/8, and T9/10. It went on to state: “at the T7/8 level there is a moderate disc protrusion which does indent (sic) the thecal sac and thoracic spinal cord but there is no evidence of any damage to the spinal cord itself and nor is there any evidence of nerve root compression. Likewise there is a smaller disc protrusion at the C6/7 level which again does indent the thecal sac.” Mr. Gilmore’s opinion was that the plaintiff continued to have disability with his back as a result of the injury sustained “now three years ago”. The MRI scan showed a problem at the thoracic spine which would account for this ongoing disability but he did not consider that any surgical intervention was indicated. Indeed his view was that the only treatment that may be justified was a localised injection in the tender area in his back and it was for the plaintiff himself to decide when this should be done. He concluded that the plaintiff would have an ongoing disability in his back as a result of the injury which has led to the degeneration and bulging of these discs.

10. While this report from Mr. Gilmore is dated 21st May, 2003 it clearly had not been received by O’Dea and Company by 26th May. This may be inferred from their letter of 26th May, 2003 addressed to Mr. Hugh McGrath the Regional Manager which stated:

“Dear Hugh
The plaintiff had his MRI scan on Tuesday 13th May, 2003 but we imagine it is a couple of weeks before Mr. Gilmore gets to read it. He missed a previous appointment.”

Thereafter, on 17th June, 2003 Messrs O’Dea and Company furnished the MRI scan results to Mr. McGrath.

11. On 21st July, 2003, Ms. Catriona McCaffrey an official of the Claims Department of Quinn Direct wrote to O’Dea and Company. This letter stated:

“We refer to previous correspondence and write to advise that we have arranged an appointment for a medical examination for your client as follows
“Medical Practitioner: Mr. A.L. Wilson
Address: 2 The Crescent

Galway

Co. Galway

Date and Time: Wednesday 20th August, 2003 at 3 p.m.

Please advise your client to bring to this appointment any relevant x-rays or documentation they may have regarding their injuries.

Kindly confirm that your client will be able to attend this appointment as a non attendance fee applies.

Should you have any queries in relation to the above please contact the undersigned.

Yours faithfully.”

12. This appointment appears not to have been convenient for, on the 21st August, 2003 a further letter was sent from Ms. McCaffrey re-arranging a consultation for the 13th October, 2003 with Mr. Wilson.

13. On 21st October, 2003 O’Dea and Company wrote to Quinn Direct. They indicate their understanding from their client that he missed his appointment with Mr. Wilson which had been fixed for 13th October and offering to discharge any non attendance fee. On 28th October, 2003 Ms. McCaffrey responds, and furnishes a copy of the invoice from Mr. Wilson which O’Dea and Company had agreed to pay on behalf of their client. Ms. McCaffrey goes on to state that Quinn Direct were arranging another medical appointment. By letter of 5th November, 2003 Ms. McCaffrey contacted O’Dea and Company and arranged for a further appointment for 24th November, 2003.

14. On 19th January, 2004 O’Dea and Company Solicitors contacted Mr. Hugh McGrath of Quinn Direct. This letter stated:

“Dear Sirs
We refer to your telephone call of 16th inst. High Court proceedings were issued in this matter though you do not seem to have nominated solicitors. Please do so now.” Ms. McCaffrey of the Claims Department of Quinn Direct responded to this letter on 27th January, 2004 noting its contents and indicating that a copy of the letter had been forwarded to the Regional Claims Manager Mr. McGrath who would contact O’Dea and Company in the “forthcoming days”.

15. On 5th May, 2004 the following letter was sent by Ms. McCaffrey of the Claims Department to O’Dea and Company Solicitors:
“Re: Your Reference 00/19660FB
Your Client: Mr. David Murphy

Our Insured: Ms. Sarah Grealis (sic)

Incident dated: 12 May, 2000

Dear Sir

We refer to the above incident and to your facsimile dated 04 May 2004 enclosing a copy of the Plenary Summons.

We note that the date the summons was issued was outside the three year period after the date of the accident and is therefore Statute Barred.

Under the circumstances we will not be dealing with any claims from your client and we are therefore closing our file of papers.

If you have any queries in relation to the above please not hesitate to contact the undersigned”.

By letter of 17th May, 2004, O’Dea and Company respond that the proceedings were issued after the date of the accident but before the receipt of any medical report by Mr. Murphy in respect of his medical condition. They contend the proceedings are not statute barred and request the nomination of solicitors to accept service.

16. By letter of 27th May, 2004 O’Dea and Company transmitted the plenary summons to Quinn Direct. The plenary summons claiming damages for personal injuries was actually issued on 18th June, 2003.

17. The Proceedings

The proceedings are grounded upon an affidavit of Mel Bourke, solicitor. In the course of his brief affidavit of five paragraphs Mr. Bourke sets out the date of birth of the plaintiff, the date of issuance of the proceedings and the fact that the plenary summons was not served within a year of its being issued with the consequence that it was necessary for the plaintiff to apply to extend the plenary summons for a further six months which application was made on 26th July, 2004. Mr. Bourke refers to a booklet of correspondence passing between the plaintiff’s solicitors and Quinn Direct Insurance and Erne Solicitors (who are in-house solicitors acting on behalf of the insurers).

18. In a replying affidavit of Donal Downes solicitor on behalf of the plaintiff the deponent points out that only some of the relevant correspondence had been exhibited in the affidavit of Mr. Bourke. In particular he pointed out that the Quinn Direct letter dated 1st August, 2001 referred to above was not exhibited. He also states that the letter of 31st August, 2000 (referred to above) was not exhibited.

19. He also states at paragraph 6 of his affidavit: “It is greatly significant that the single most important letter that ever passed between the parties, that of 5th day of December, 2002 has not been exhibited in that booklet of correspondence or at all.” At paragraph 7 of his affidavit Mr. Downes states this letter from Quinn Direct to this office clearly and unambiguously admits liability on behalf of the defendant. At paragraph 8 of his affidavit Mr. Downes states that at all times from the date of the accident, the defendant and the defendant’s servants or agents, representatives and insurers have always admitted liability and never once denied that the accident was entirely the defendant’s fault. He states that at all times the defendants knew that the plaintiff was an adult and was not suffering from any incapacity. Furthermore he states that even after receipt of the plenary summons herein one year outside the limitation period the defendants insurers and solicitors demanded that the plaintiff file a statement of claim and that the plaintiff had done so. In the circumstances Mr. Downes contends that the defendant is estopped from denying liability by raising the statute of limitations having caused the plaintiff to believe that at all times for three years a resolution of the case was merely a matter of agreeing in quantum, thereby prejudicing his position.

20. In a further affidavit dated 12th April, 2005 Peter Kelly Solicitor of Erne solicitors responds that the letter of 1st August was not exhibited because it was a “without prejudice” letter. He further states that the defendant is prepared to waive privilege. He states that the letter of the 1st August, 2000, is of no relevance to the application. A similar contention is made relating to the second letter of 31st August, 2000. The deponent then deals with the omission of the letter of 5th December, 2002. He states that this letter was sent by Mr. Hugh McGrath the Regional Claims Manager of Quinn Direct from his home address and a copy was not furnished to Quinn Direct. Hence, he states, that it was not exhibited as it was not in “our possession”. In any event, Mr. Kelly contends that the plaintiff’s solicitor is mistaken in his contention that the letter means that it was not necessary to issue proceedings. He states that it is a daily occurrence that insurance companies admit liability but submits that this does not indicate or mean that proceedings should not be instituted. Referring to the decision of the Supreme Court in Ryan v. Connolly [2001] 2 ILRM 174 Mr. Kelly deposes that the mere fact that a defendant had expressly and unambiguously conceded the issue of liability did not necessarily mean that it was reasonable for a plaintiff to assume that he could defer the institution of proceedings beyond the limitation period. He adds that in the absence of a statement from an insurance company from which it was reasonable to infer that, in the event of proceedings not being institution (sic) within the limitation period, they would refrain from relying on a Defence under the Statute, the insurance company should not be precluded from relying on such a defence. Mr. Kelly adds: “And (fairly similar to the situation herein) the court held that no such unambiguous representation had been made by the insurance company and the proceedings were, accordingly, statute barred.”

21. When the matter came first before me I considered that, in the interests of justice, the plaintiff’s solicitors should be entitled to file a supplemental affidavit dealing with the question of his understanding of the conduct of the defendant insurance company. On 24th November, 2005 Mr. Downes swore an affidavit wherein he stated that the plaintiff’s solicitors relied on the defendants insurers admission of liability. He added that the extent of his reliance on that admission of liability was as follows:

(i) Quinn Direct, the defendant insurance company had stated (without prejudice) in writing as early as 31st August, 2000, that it was “satisfied that liability will not be an issue”.
(ii) Quinn Direct had previously attempted to settle the plaintiff’s claim directly with the plaintiff on a without prejudice basis.
(iii) by letter dated 5th December, 2002 Quinn Direct Regional Claims Manager Mr. Hugh McGrath advised the plaintiff’s solicitors that “liability is not an issue”. This was an open admission of liability.
(iv) Quinn Direct had, through its Regional Claims Manager, sought and received agreement to share medical reports.
(v) Mr. McGrath had contacted the plaintiff’s solicitors on several occasions and it was clear that he is anxious and willing to settle the plaintiff’s claim.
(vi) in the light of the foregoing it never entered his consciousness that Quinn Direct would subsequently attempt to rely on the statute of limitations for the purpose of resiling from its open admission of liability and the issue or non issue of proceedings within the time provided by the statute was thus not something to which he gave consideration.
Consideration of the correspondence and affidavits
A number of relevant facts arise from a consideration of the correspondence and the affidavits which have been sworn herein. I do not accept that the contents of the letters of 1st August, 2000 and the 31st August, 2000 are not relevant to this claim as contended by Mr. Kelly in his affidavit. The first letter contains an agreement of the repair figure on the vehicle, encloses an acceptance form, and states that on receipt of that a cheque in the amount claimed would be furnished “in full and final settlement of this claim”.

22. In the second letter that of the 31st August, 2000 it is specifically stated at the penultimate line of the first paragraph: “we are satisfied that liability will not be an issue”. It might be noted here parenthetically that the phraseology employed in the letter was that liability would not be an issue rather than in issue which is the more normal phraseology.

23. I now turn to the letter of the 5th December, 2002. Again I reject Mr. Kelly’s contention that this letter does not contain material which is of relevance. As cited earlier, it clearly contains an invitation to share medical reports with Quinn Direct, to discuss settlement of the claim, and contains a representation that liability is not an issue. Mr. Kelly states that this letter was sent by Mr. McGrath, the Regional Claims Manager from his home address and that a copy was not furnished to Quinn Direct. While this statement is borne out on the face of Mr. McGrath’s letter, it is nonetheless unsatisfactory that relevant correspondence, which on its face is material to this application, should not have been exhibited. I would add that it is inappropriate in my view for affidavits to contain legal submissions relating to the law or to contain material which is of an argumentative nature.

24. The original plea of privilege is, however, of some relevance to this claim for, in order for it to succeed, the party claiming it must establish that the communication in question was made (i) in a bona fide attempt to settle a dispute between the parties; and (ii) with the intention that, if negotiations failed, it could not be disclosed without the consent of the parties.

25. Legal Effect of “Without Privilege” Plea

As a matter of law, it has been pointed out that although the designation of a communication by a party as “without prejudice” is a prima facie indication that the communication is in furtherance of settlement negotiations, those words “possess no magic qualities” and will not be regarded as conclusive (see South Shropshire District Council v. Amos [1987] 1 All E.R. 340 at p. 344 and O’Flanagan v. Ray-ger Limited (High Court, Costello J. 28th April, 1983 at p. 13; See also Ryan v. Connolly [2001] 2 ILRM 174, 181). In the course of the affidavit evidence it has been suggested that the omission of these letters by the defendant was mala fides. I do not consider that there is evidence to substantiate this contention. However, the fact that the question of privilege was raised is not without consequence, albeit it was subsequently waived. For it seems to me that, to rely on privilege at all, necessitates a reliance on the proposition that there were in existence bona fide negotiations between the parties as and from the dates of the two letters in August, 2000.

26. It will further be seen that the correspondence between the parties continues for a considerable period after the time limit under the Statute of Limitations expired. This correspondence from May, 2003 onwards relates to the sharing of medical reports and also to the identification of a suitable date for medical examination of the plaintiff by the defendants’ solicitors. The contention that the plaintiff’s claim is statute barred is first raised only on 5th May, 2004. There are thus seven separate pieces of correspondence emanating from Quinn Direct or their in-house solicitors, after the expiry of the three-year time limit, all of which relate to the negotiation and settlement of the plaintiff’s claim, an arrangement for the sharing of medical reports, fixing dates for medical examinations, and reciting the plaintiff’s solicitor’s undertaking made by letter of 21st October, 2003, that he would discharge the fee for his client’s non-attendance on the defendants’ medical consultant owing to his having missed such appointment.

Having regard to the foregoing facts, which are undisputed, the court is entitled to infer that until 5th May, 2004 not only did the plaintiff’s solicitor consider that negotiations were ongoing, but that this view was shared not only by the defendant’s insurers but their solicitors also. The issuing of the plenary summons on 18th June, 2003 does not alter this view. Indeed, to a degree it may support the inference, having regard to the fact that it was not actually served, was renewed in the circumstances set out earlier and was ultimately served on 27th April, 2004. It is also to be noted that on 27th October, 2004, even after the question of the Statute had been raised, Mr. Burke of Erne Solicitors wrote to O’Dea & Company on behalf of the plaintiff, requesting the furnishing of a statement of claim within twenty-one days, and threatening that in the absence thereof a motion would be brought to dismiss the claim for want of prosecution. It appears such a motion was actually drafted and issued: the correspondence discloses that on 7th January, 2005 the defendants’ solicitors enclosed a notice of motion and grounding affidavit to the plaintiff’s solicitors. This documentation was not exhibited. One can only surmise as to the relief sought in that notice of motion. In any case, the notice of motion in suit raising the Statute of Limitations was not issued until 2nd March, 2005.

27. Legal principles

In the course of argument substantial reliance was place by counsel on two Irish authorities. These are Ryan v. Connolly [2001] 2 ILRM 174 and Doran v. Thompson [1978] I.R. 223. In the first place it may be noted that in both cases the defendant insurers had not in fact admitted liability. Does an equitable estoppel arise?

Such estoppel may be said to arise when one party, by representation or conduct, either actively or passively leads another party to alter his position on the basis of that representation or conduct, and the representor, or party so conducting himself, is precluded from resiling from his representation, or the consequences induced by his conduct.

Estoppel may accordingly be invoked to counter a defence based on the running of time, but the success of such invocation like that of Laches, will depend on the court’s view of the facts of the particular case. Thus the representee’s inference from the words or conduct upon which he is relying to raise an estoppel must be reasonable. In the course of his judgment in Doran, Henchy J. observed:

“Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having mislead the plaintiff into a feeling of security on the issue of liability and thereby, into a justifiable belief that the statute would not be used to defeat his claim to escape liability by pleading the statute.” (at p. 225)
28. In Doran the plaintiff was injured in an accident on 20th July, 1972 while working for the defendant. The plaintiff consulted solicitors in October of that year and the latter wrote to the defendant claiming compensation for injuries and loss. The defendant’s insurers replied on December 18, 1972 stating they were investigating the accident and asking for arrangements to be made for the plaintiff’s examination by the insurers’ doctor. The plaintiff’s solicitors experienced such difficulty in arranging for the plaintiff’s doctor to be present at this examination that, in May 1975, they agreed to an examination without the plaintiff’s doctor being present and that examination took place on July 29th, 1975. The insurers did not inform the plaintiff’s solicitors of the results of their investigation of the accident, nor did they notify them that liability was being denied, nor did they discuss the quantum of liability or damages with the plaintiff or his solicitors.

29. The plaintiff instituted proceedings in the High Court in February, 1976 and was met with a plea that his claim was statute barred. The plaintiff replied that the defendant was estopped by the acts and representations of his insurers from pleading the statute. The main thrust of the plaintiff’s argument was summed up by Costello J. in his judgment in the High Court that it would be unjust and inequitable to allow the defendant to plea the Statute since it could be inferred from the conduct of the defendants’ insurers that they had accepted that they would pay damages and they had intimated that liability was not in issue.

30. Costello J., bearing in mind the views expressed in the Supreme Court on the statute in the cases of Baulk v. Irish National Insurance Co. Ltd. [1969] I.R. 66 and O’Reilly v. Granville [1971] I.R. 90, concluded that to permit reliance on the statute in the circumstances would allow the defendant to resile from a situation which the words and conduct of the defendant and insurers had created.

In allowing the defendants’ appeal, the Supreme Court considered that any misapprehension in the minds of the plaintiff or his solicitors was not shown to have been induced by any representation made by the defendants or the defendants’ insurers. However the court did not question the use of estoppel in such cases should the circumstances so warrant, and it was the interpretation of the circumstances in that case which led that court to a different conclusion from that reached by Costello J. In the course of his judgment, Henchy J. observed:

“As many would-be plaintiff has learned, it is a fact of life in the world of insurance that a not unusual way for insurers to dispose of unprosecuted claims is to allow them to die of inanition. That is what happened here.”
31. In the course of his concurring judgment, Griffin J. added at p. 230:

“Where one party has by his words or conduct made to the other a clear and unambiguous promise or assurance which is intended to affect the legal arrangements between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to his previous legal relations as if no such promise or assurance had been made by him and that he may be restrained in equity from acting inconsistently with such promise or assurance. The representation, promise or assurance must be clear and unambiguous to found such an estoppel; see Bowen L.J. at p. 106 of the report of Low v. Bouverie, but this does not mean that the representation must be one positively incapable of more than one possible interpretation. Where, however, more than one construction is possible, the meaning relied upon must clearly emerge from the context and circumstances of the case although in other contexts and other circumstances the same words might possibly have borne a different construction. In addition, the party relying on the representation must show that the representation was reasonably understood by him in a sense materially inconsistent with the allegation against which the estoppel is attempted to be set up: see Cairns L.J. at p. 306 of the report of the decision of the Court of Appeal in Woodhouse Ltd. V. Nigerian Produce Ltd., where he explained and analysed the celebrated passage of Bowen L.J. in Low v. Bouverie.”
Continuing, Griffin J. stated:

“If the defendants’ insurers had made a clear and unambiguous representation (in the sense I have explained) that liability was not to be in issue and the plaintiff’s solicitor had withheld the issue of proceedings as a result, I would have held that the defendants were estopped from pleading the Statute of Limitations. In my opinion however, on the agreed facts there was no promised assurance or representation made by the insurers to the plaintiff’s solicitor and none can be inferred from the correspondence, the telephone conversations, or the conduct of the insurers. Apart from stating in the first letter that they were investigating the circumstances of the accident, the insurers thereafter made no reference, express or implied, to the circumstances of the accident or the question of liability.”
32. One turns then to the second main authority, that of Ryan v. Connolly. In Ryan the plaintiff was involved in an accident on 26th April, 1995. By letter dated 23rd May, 1995 the plaintiff’s solicitor informed the second named defendant that the plaintiff was claiming damages as against the latter (the driver of the car) for having caused the accident and requested her to forward the letter to her insurer. With one exception, the ensuing letters from the defendants’ insurer to the plaintiff’s solicitor were headed “without prejudice”. By letter dated 11th July, 1995 the insurer sought certain information from the plaintiff’s solicitor and stated that on receipt of same and having concluded their investigation, they would advise as to their decision on liability. Their requests for information were stated to be without prejudice to liability on the part of the insured. By letter dated 1st September, 1995 the plaintiff’s solicitor provided this information. Arrangements were made for a medical examination. By letter dated 9th July, 1996 the insurer stated that it had concluded the damage claim directly with the plaintiff’s insurers and requested the plaintiff’s solicitor to advise if he was in a position to discuss a settlement at the time. By letter dated 24th July, 1996, the plaintiff’s solicitor had stated that he was awaiting an up to date medical report and would contact the insurer as soon as one was obtained. By letters dated 13th March, 1997, 30th October, 1997 and 27th January, 1998 (which were not replied to by the plaintiff’s solicitor) the insurer requested the plaintiff’s solicitor to advise as to whether he was in a position to have settlement negotiations. By letter dated 2nd July, 1998 – at which point the Statute of Limitation period of three years had expired – the insurer requested the plaintiff’s solicitor to advise if he was in a position to meet for without prejudice talks. On 30th April, 1998 the plaintiff’s solicitor requested the insurer to nominate a solicitor to accept service of proceedings. These proceedings were instituted by way of plenary summons dated 11th December, 1998 and a statement of claim was delivered on 11th June, 1999. In their defence delivered on 14th July, 1999, the defendants pleaded that the action was statute barred pursuant to s. 11(2)(b) of the Statute of Limitations, 1957 as amended.

33. In its consideration of the earlier authority of Doran, the Supreme Court held in Ryan that a plaintiff who seeks to rely on the estoppel principles outlined earlier, must establish that there was a clear and unambiguous representation by the defendant that liability would not be in issue, from which it was reasonable for the plaintiff to infer that the institution of proceedings was unnecessary. In this regard a plaintiff cannot rely on a strained or fanciful interpretation of the words used by the defendant. He must show that it was reasonable in the circumstances to construe the words in a sense that would render it inequitable for the defendant to rely on the defence under the Statute of Limitations. However the court added this caveat: the fact that a defendant has expressly and unambiguously conceded the issue of liability in a case will not necessarily of itself make it reasonable for the plaintiff to assume that he can defer the institution of proceedings beyond the limitation period. Where, for example, an insurance company accepts within days of an accident that no issue on liability arises but the subsequent negotiations become dormant, the plaintiff may be precluded from relying on the principle under consideration if he permitted the limitation period to expire without instituting proceedings. In the absence of a statement by the insurance company from which it was reasonable to infer that, in the event of the proceedings not being instituted within the limitation period, they would refrain from relying on their defence under the Statute of Limitations, the insurance company should not in principle subsequently be precluded from relying on such a defence.

Thus, in the course of his judgment on behalf of the court, Keane C.J. stated at p. 183:

“I would make one further comment on the statement of the law in Doran v. Thompson Ltd. The fact that a defendant has expressly and unambiguously conceded the issue of liability in a case will not necessarily of itself make it reasonable for the plaintiff to assume that he can defer the institution of proceedings beyond the limitation period. Where an insurance company within days of the accident accepts that no issue of liability arises – e.g. in the case of a passenger wearing a safety belt – but for some reason the subsequent negotiations become dormant, the plaintiff may well find himself unable to rely on the principle under consideration if he permits the limitation period to expire without instituting proceedings. In the absence of a statement by the insurance company from which it was reasonable to infer that, in the event of proceedings not being instituted within the limitation period it would refrain from relying on a defence under the statute, there seems no reason in principle why the insurance company should be subsequently precluded from relying on such a defence.”
It has been submitted on behalf of the plaintiff herein that the above former quotation from the judgment in Ryan is obiter, the latter cited below forming the ratio decidendi of the case. Even if this view is incorrect however, the correspondence admitting liability cited earlier, together with the statements and conduct of the defendant up to the 5th May, 2004, are very significantly at variance from that of the defendants in Doran and Ryan. On any reading, the negotiations in the instant case were far from dormant, and continued albeit at intervals for a period of almost exactly one year after the Statute had expired. The reason for the defendant’s subsequent volte force and reliance on the statute has not been explained.

34. Turning to the latter quotation from Ryan Keane held:

“On any view, however, it is clear that a plaintiff who seeks to rely on the law as laid down in Low v. Bouverie and Doran v. Thompson Ltd. must be in a position to satisfy the court that there was a clear and unambiguous representation by the defendants that liability would not be in issue from which it was reasonable for the plaintiff to infer that the institution of proceedings was unnecessary …”
35. In considering the legal principles applicable to the facts in this case, considerable assistance can be obtained from the judgment of Kenny J. in Doran, also concurring. In the course of consideration of the facts of Doran, Kenny J. observed regarding the plaintiff’s argument at p. 238 of the report:

“The other argument was that it would be inequitable to allow the defendants to rely on the Statute of Limitations. If the defendants had accepted liability and had entered into negotiations to arrive at an agreed sum and if the plaintiff’s solicitors had refrained from bringing proceedings because they relied on the admission of liability or the negotiations being conducted it would be inequitable to allow the defendants to rely on the time bar. (Italics added). But they never accepted or admitted liability and never represented that they did, nor did they carry on any negotiations for the purpose of settling the case. They did nothing which could give the plaintiff’s solicitors the impression that they need not issue proceedings nor did they mislead them in any way. I cannot see how the conduct of the insurers was dishonourable in any respect and I do not think that anything they did makes it inequitable for them to plead and rely on the Statute of Limitations. If the plaintiff’s solicitors thought that liability was being admitted the defendants and insurers did nothing to cause or contribute to that belief.”
36. Kenny J. added:

“Counsel for the plaintiff relied strongly on the decision of this court in O”Reilly v. Granville. That was an application to add a party as a defendant in a motor accident case. Objection to this step was taken on the ground that, at the date of the application the time limit of three years had expired. Complicated questions as to the effect of Order 15, rule 13 were discussed but this has no relevance to the present case. In that case the defendants’ insurers within the statutory period of three years wrote to the plaintiff’s solicitors asking for details of the special damages and added: ‘We shall see if we can arrange a settlement with you’. Subsequently the defendants’ insurers asked the plaintiff’s solicitors by letter how much the plaintiff expected to be paid in settlement of his claim apart from special damages which (the letter added) ‘no doubt can be agreed by negotiation’. It was in these circumstances that O’Dalaigh C.J. said that a plea of the Statute of Limitations ‘would not only be wholly unmeritorious but, I feel it my duty to add, unconscionable and plainly dishonest’. Therefore there was conclusive proof that an admission of liability had been made by the defendants’ insurers: in this case no such admission was made either expressly or by implication and so O’Reilly v. Granville does not help the plaintiff.”
37. Kenny J. concluded:

“The question whether an admission of liability without more makes it inequitable to rely on the Statute of Limitations or whether the admission of liability must have been relied on by the plaintiff’s solicitors as a ground for not issuing proceedings was not discussed in argument and in any event does not arise. I find it difficult to reconcile the remarks of the former Chief Justice with the reasoning in the Sauria on this point and so I reserve this for future consideration.”
38. Counsel on behalf of the respondent herein in the course of argument did indeed rely on the decision in the Sauria [1957] Vol. 1 Lloyds List Law Reports, August 7, 1957. In that case there was an unqualified admission of liability by the defendants in correspondence. However, nothing in the correspondence amounted to what was stated to be a binding contract to waive the right to plead the statute if the plaintiffs did not start proceedings until the statutory period had run out. The accident in question in that case occurred on 16th June, 1953. The time limit for the bringing of proceedings was two years. While significant correspondence took place regarding the determination of quantum by arbitration, no summons was issued until June, 1957. While under s. 8 of the Maritime Conventions Act of 1911 the court might be entitled to extend the time within which proceedings might be issued, no sufficient grounds had been adduced to justify such extension of time. Consequently the Court of Appeal held that, having regard to the very great delay after June, 1955, there was no ground shown which would justify an exercise of the discretion in the proviso to s. 8 whereby time might be extended. The essence of the decision, therefore, was whether by virtue of the contractual agreement made, the parties had agreed to waive the statutory time limit insofar as it concerned any subsequent claim in relation to the quantum of the claim as opposed to the issue of liability itself.

39. It seems to me that the authority of the Sauria is unhelpful here for the following reasons. First, it appears to be reliant entirely upon the contractual nature of the agreement between the parties and what was in contemplation thereby. Second, the terms of the Maritime Convention Act, 1911 appear quite different from those of the Statute of Limitations, 1957 as amended. Under the Statute of Limitations no extension of time is permissible. Third, in the Sauria no issue arose as to conduct on the part of the defendant which might render it inequitable, unconscionable or dishonest to rely upon any limitation period.

40. In the instant case the facts are distinct from these authorities. I say this for the following reasons. First, on foot of the correspondence referred to earlier, it was clearly and unambiguously stated that liability would not be an issue in the case. This was stated not once but several times within the limitation period. Second, while elapses of time undoubtedly occurred within the limitation period, the evidence does not support the contention that what is in issue here was, to paraphrase Henchy J. in Doran, an unprosecuted claim being allowed to die of inanition. Indeed, it is clear that the prosecution of the claim acquired significant momentum in the period running up to the expiry of the limitation period and thereafter. Third, the court must have regard to the reliance (albeit temporary) on the question of privilege. While this was waived subsequently, it is consistent with a belief on the part of the defendants that there were bona fide negotiations occurring between themselves and the plaintiff and his advisers. Fourth, one turns then to the nature of the representation. As pointed out by Henchy J. in the course of his judgment in Doran v. Thompson Ltd., at p. 225:

“It is sufficient if, despite possible ambiguity or lack of certainty on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not to be heard to say that an admission of liability was not intended.”
Is there objective evidence of this nature in the instant case? I consider that there is. This evidence consists in the admissions of liability, the continuance of correspondence and steps towards settlement for a period just short of one year after the expiry of the limitation period, during which time no mention whatsoever was made of the statute until 5th May, 2004. This correspondence, already referred to, consists of arrangements of various types which were necessary for the identification of the plaintiff’s injuries and for the resolution of the question of general damages. One cannot ignore the fact that even as late as October, 2003, the plaintiff’s solicitor undertook to pay for the consultation with the defendants’ medical consultant which the plaintiff had been unable to attend. Further, there is the correspondence which took place in November, 2004, threatening the dismissal of the plaintiff’s claim for want of prosecution. Whether this culminated in a notice of motion or not has not been vouchsafed to this court. Taken together, these objective facts remove this case from the realm of subjective “idée fixe” (to paraphrase Henchy J.) on the part of the plaintiffs solicitors.

41. What is also significant in all this material is the extent to which it is indicative of the defendant’s mind, directed to the somewhat dilatory nature in which the plaintiffs were prosecuting the claim rather than any question of that claim itself having become time barred. Nor can the court ignore the fact that no affidavit has been adduced from Mr. McHugh, the author of the letter of 5th December, 2002, which in anyway controverts the plaintiff’s evidence as to his understanding of the position which was thereafter to obtain. Finally no explanation has been furnished to this court as to the apparent volte face of the defendants as and from the 5th May, 2004 where quite plainly there is a change of mind or attitude on the part of the defendant as to their conduct of the defence.

42. There is, additionally, one other principle which emerges clearly in the earlier decision of O’Reilly v. Granville [1971] I.R. While the facts of the case are quite distinct Walsh J. observed at p. 100 of the report

“The statute of limitations does not exist for the purpose of aiding unconscionable and dishonest conduct and I fully agree with the view expressed by the Chief Justice that in the circumstances of this case if the statute of limitations were to be invoked it would be for the purpose of sustaining and maintaining unconscionable and dishonest conduct”.
43. While Walsh J’s judgment was in the minority, the sentiments expressed there are equally strongly expressed in the judgment of O’Dalaigh C.J. on behalf of the majority. Having referred to the facts of that case he stated

“A plea of the statute of limitations in the circumstances, would be not only wholly unmeritorious but, I feel it my duty to add unconscionable and plainly dishonest”.
44. I certainly do not go so far in this case. It is sufficient to observe that in my view on the facts the plea of the Statute is unconscionable. Moreover, (although it is not necessarily a material consideration) the defendant has not been able to demonstrate any prejudice which has arisen as a result of the elapse of time which has occurred.

45. For the reasons set out therefore I consider that the court should decline the relief sought in the notice of motion herein.

Approved: MacMenamin J.

Tracey Enterprises MacAdam Ltd v Drury

[2006] I.E.H.C. 381

Judgment of Miss Justice Laffoy dated 24th November, 2006.

The dispute
The dispute between the plaintiff and the defendant in these proceedings relates to the title to, and entitlement of possession of, a plot of land comprising an area just over half an acre which is situated on the left hand side of the road from Tallaght to Brittas in South County Dublin, which I will refer to as “the disputed plot”. While I believe that the disputed plot is situated in the townland of Crooksling, the postal address is Mount Seskin, Brittas, County Dublin. The plaintiff claims to be the owner in fee simple of the disputed plot. The defendant disputes that the plaintiff ever acquired title to the disputed plot and, in the alternative, asserts that he has acquired title by adverse possession thereto.

The plaintiff’s paper title
The plaintiff claims to have acquired title in fee simple to the disputed plot by virtue of a conveyance dated 30th September, 2004 from an associated company, Tracey Enterprises Dundrum Limited (Dundrum). There is no issue between the parties as to the devolution of title from Dundrum to the plaintiff. The issue is whether Dundrum ever acquired title to the disputed plot, and, if it did, whether it has been extinguished by reason of the defendant being in adverse possession for the limitation period.
The plaintiff claims that Dundrum acquired title by virtue of a conveyance dated 4th July, 1990 made between Lock Heed Builders Limited of the one part and Dundrum of the other part (the 1990 Conveyance). By virtue of that conveyance, Dundrum acquired the lands described in the first schedule thereto as follows:
“… part of the lands of Mount Seskin situate in the Parish of Tallaght, Barony of Upper Cross and County of Dublin being the hereditaments and premises delineated on the map annexed hereto and thereon surrounded by a red verge line and comprising an area of 140.022 hectares or thereabouts being part of the property comprised in the Deed of Conveyance made on 5th day of April, 1979 …”
The map on the 1990 Conveyance was drawn in September, 1989 by J.P. Behan, Associates. It was drawn on a scale of 1:10560 and it did not depict the features which would have appeared on the ordnance survey map, except the road from Tallaght to Brittas. On the basis of a superficial assessment of the map, it would seem to include the disputed plot.
The 1990 Conveyance gave effect to an agreement for sale dated 20th March, 1990 between Lock Heed Builders Limited of the one part and Dundrum of the other part (the 1990 Contract). Some interesting features of the 1990 Contract were highlighted by counsel for the defendant. The purchase price was IR£205,000. The deposit paid on execution of the agreement was IR£50,000. The closing date was to be 28 days from the date of the contract. The special conditions provided that Dundrum was deemed to have made all relevant pre-contract enquiries regarding the title of the vendor and to have seen and inspected the physical boundaries and to have been satisfied that the physical boundaries corresponded with the title offered. On that basis, Dundrum agreed that the deposit, which was almost 25% of the purchase price, should be forfeited if it failed to complete on the closing date, even if it alleged that a person was in adverse possession of a portion of the property, or that the boundaries did not match the boundaries set out on the map attached to the contract, which was the same map as eventually was annexed to the 1990 Conveyance, or that the vendor had not furnished title to all of the property in sale. One of the witnesses, Ms. Alison Crawford, a solicitor in the firm of Joynt and Crawford which acted for Dundrum in the purchase, described the sale as a “forced sale”, which I understand to mean that the vendor was being forced by its bankers to sell. The provisions of the agreement highlighted by counsel for the defendant were definitely unusual and harsh on Dundrum. While the fact that they were included is highly suggestive of Dundrum being prepared, for whatever reason, to acquire the property, to use a colloquial expression, “warts and all”, to infer that whatever, if any, blemishes affected the title related to the disputed plot would be pure conjecture.
The conveyance dated 5th April, 1979 (the 1979 Conveyance) referred to in the 1990 Conveyance was made between John Lynham of the first part, James Lynham of the second part, Joseph Nestor of the third part, Barra J. Flynn of the fourth part and Lock Heed Buildings Limited of the fifth part (the 1979 Conveyance). The 1979 Conveyance gave effect to a very substantial transaction: the consideration was £900,000, a very substantial price at that time. The property conveyed was described therein as:
“… part of the lands of Mount Seskin situate in the Parish of Tallaght, Barony of Upper Cross and County of Dublin being the hereditaments and premises delineated on the map or plan annexed to these presents and thereon surrounded by a red verge line including the hereditaments and premises coloured in orange and the hereditaments and premises hatched in blue and yellow.”
The areas described as being “hatched in blue and yellow” in the 1979 Conveyance correspond to property adjoining the disputed plot to which the defendant has title and the disputed plot. Neither the evidence adduced, nor the documents put in evidence, explain satisfactorily why these areas were distinguished in the 1979 Conveyance. I would surmise that the explanation is to be found in the application lodged in the Land Registry on foot of which the area hatched in blue, i.e. the defendant’s property, was subsequently registered. However, I am satisfied that the disputed plot is within the area intended to be conveyed by the 1979 Conveyance.
In 1985, probably in the context of the raising of money on the security of the property the subject of the 1979 Conveyance, the identity of the property the subject of the 1979 Conveyance required to be clarified. This was done by Peter Ging, architect, who, in a statutory declaration made on 11th July, 1985, declared that the lands shown coloured red and referred to at “A” on the map annexed to the statutory declaration formed portion of and were wholly comprised within the lands conveyed by the 1979 Conveyance. The parcels in the 1979 Conveyance were quoted in part, excluding the reference therein to the inclusion of the areas coloured orange and hatched in blue and yellow. On the basis of a superficial assessment of that map, it would appear to include the disputed plot. That map, prepared by Mr. Ging in July, 1985, was also annexed to a statutory declaration made on 22nd December, 1986 by Roderick J. Tierney, solicitor, whose firm had acted as solicitors for the executors of Francis Lynham deceased. Mr. Tierney declared that at the date of his death Francis Lynham had been in sole and exclusive possession of the lands of Mount Seskin as depicted on that map.
The recitals in the 1979 Conveyance disclosed that under the will of Francis Lynham, his children, James Lynham, John Lynham, Mary Lynham, and Patricia Bridget Lynham became entitled in equal shares as tenants in common to the lands at Mount Seskin, that he died on 12th January, 1947 and that his will was proved on 8th August, 1947. The recitals also disclosed that Joseph Nestor and Barra J. Flynn, two of the vendors in the 1979 conveyance, acquired the respective one-quarter shares of Mary Lynham and Patricia Bridge Lynham by virtue of a conveyance dated 19th March, 1974. By the time of the sale to Dundrum in 1990 that conveyance had been lost, as was disclosed in a special condition in the contract dated 20th March, 1990.
Leaving aside speculation about the prescriptive special conditions in the 1990 Contract, and about the reasons for the hatching in yellow and blue on the map on the 1979 Conveyance, the documentary evidence of title adduced by the plaintiff, read on its own, certainly indicates that the plaintiff is the owner in fee simple of the disputed plot.

The defendant’s paper title
The defendant’s evidence was that he acquired property adjoining the disputed plot by purchase in 1983. The vendor was Mrs. Mary Mansfield, but the defendant negotiated the purchase with her son, Mr. Jim Mansfield, whom the evidence suggests was a director of, and had a controlling interest in, Lock Heed Builders Limited. The defendant did not instruct a solicitor in relation to the purchase at the time and, on the evidence, it would appear that it was some considerable years later that he regularised his title. It is common case, however, that the defendant has been in possession of land contiguous with the disputed plot on the north side of the disputed plot. The plaintiff does not dispute the defendant’s ownership of this land. However, the defendant put in evidence documentary title to portion only of it: the portion immediately adjoining the disputed plot on which a large workshop stood in 1983 and still stands. The defendant did not produce documentary evidence of his title to the remainder, on which the defendant built the bungalow in which he resides after he acquired the property in the mid-1980s. I assume the title to the bungalow is registered on folio 124842F, which, in 1998, was carved out of folio 17796F referred to below.
The documentary title which the defendant has to the workshop plot is folio 17796F, County Dublin. That folio relates to part of the townland of Crooksling shown as Plan 36 on the Land Registry map. The folio was opened on 9th September, 1980 on foot of an application for first registration, which the Land Registry reference number would suggest was lodged in the Land Registry in 1974. The first registered owner was Mary Mansfield and she was registered as full owner on 9th September, 1980. The defendant was registered as full owner on 28th April, 1998. The title registered is absolute title.
Before comparing the Land Registry map in relation to folio 17796F with the maps on the plaintiff’s unregistered title, I propose considering the evidence of the lie of the land both historically and in the recent past from the ordnance survey maps put in evidence.

The ordnance survey maps
The earliest ordnance survey map put in evidence is the historic 25-inch map which was surveyed and revised in 1909. At that time, the eastern boundary of the disputed plot and the defendant’s workshop plot and bungalow plot was the Union and Rural District boundary, which I assume coincides with the townland boundary. On the evidence, I am satisfied that there was an old stone wall, 200 to 300 years old, along the boundary, the remains of which are still visible. I would surmise that it was part of the demesne wall of Mount Seskin. The three plots, and also a strip to the south of the disputed plot which now gives access to the plaintiff’s lands at Mount Seskin, which I will refer to as “the Mount Seskin access”, comprised one field containing 2.319 acres. The only feature of interest which appears on the ordnance survey map is a path or track (depicted by broken lines), which I will refer to as “the track”, which ran diagonally across the field from the public road and gave access to a building, which the evidence suggests was an old stone cottage, which was located outside and to the east of the eastern boundary of the field. The track is still discernible, as is the remains of the cottage.
Chronologically the next ordnance survey map put in evidence was a map of the revision which occurred in 1968/69. Very little had changed since 1909. The Mount Seskin access and the three plots still comprised one field, the area of which was given as 2.320 acres. The track still crossed the field. A building is still depicted at the location of the cottage remains but the configuration of the land around the cottage was slightly different. However, the old stone wall which separated the cottage from the field to the west was still in situ because the boundary is shown on the map as “CW” (centre of wall). The major difference, which is only of marginal significance in the context of the issues in this case, is that a pump is depicted in the field, located on the Mount Seskin access near the public road.
The ordnance survey map was revised again in 2001 on the basis of a survey in 1996. By then a lot of changes had occurred. That map depicts the current position. The bungalow plot with the bungalow erected on it is depicted. The Mount Seskin access has been formed. Between the Mount Seskin access and the bungalow plot two defined areas are shown. That nearer to the Mount Seskin access is roughly rectangular in shape and includes the disputed plot and a triangular area which is part of the lands now registered on folio 17796F. The division between the disputed plot and the triangular area is along the line of the track, which is no longer depicted. The other area is the remainder of the lands registered on folio 17796F with the workshop depicted thereon. The boundary between the two, which is depicted by a straight line, represents a line of conifers, which are now thirty feet high, which the defendant planted in 1983.

Comparison of the plaintiff’s unregistered title and the defendant’s registered title
Having regard to the scale to which the maps on the plaintiff’s unregistered title were drawn and the lack of detail shown and, in particular, the lack of depiction of physical features, any comparison of the maps on the plaintiff’s unregistered title and the map in relation to folio 17796F is of necessity superficial. Bearing that in mind, both the Ging map and the Behan map suggest that Dundrum acquired title in fee simple in 1990 not only to the disputed plot, but also to the lands now registered on folio 17796F other than the triangular area. Both maps suggest that the triangular area was excluded from the Mount Seskin lands conveyed by the 1979 conveyance and the 1990 conveyance. The plaintiff acknowledges that the defendant has title to the triangular area and, on the basis of its own paper title, could hardly suggest otherwise. There is no issue, nor could there be, but that the defendant is the owner of all of the lands registered on folio 17796F. However, the inconsistency between the plaintiff’s unregistered title and the defendant’s registered title as regards the lands registered on folio 17796F excluding the triangular area has not been explained.
Notwithstanding that inconsistency, I am satisfied on the evidence that Dundrum acquired title in fee simple to the disputed plot by virtue of the 1990 conveyance. The issue which remains is whether the evidence establishes, as he contends, that the defendant was in adverse possession of the disputed plot in 1990 against Dundrum’s predecessor in title and continued in adverse possession thereof subsequently so as to have acquired a title by adverse possession by the time these proceedings were commenced by plenary summons which issued on 3rd October, 2005.

Evidence of possession/use
On analysis of the evidence chronologically, it can conveniently be divided into periods as follows:
Prior to 1983
As I have stated, the defendant purchased his property in 1983 from Mrs. Mansfield and he negotiated the purchase with Mr. Jim Mansfield. Mrs. Mansfield and her family lived a short distance to the north of the disputed plot, on the far side of the road. Her son, Mr. Joseph Mansfield, who was called by the defendant, testified that from the 1950s onwards until the sale to the defendant in 1983 his mother grazed a couple of cows on the land where the defendant’s property is now located and the disputed plot. He pointed to the pump as the southern extremity of the land used for grazing. At the time, there was a strand of wire along the front roadside to keep the cows from going out on the road.
Mr. Michael Quinn, who has been a tenant of the Mount Seskin lands for upwards of thirty years, who was also called by the defendant, testified that he never farmed beyond, that is to say, to the west of, the old stone wall. His evidence was that he never used the disputed plot.
In my view, the evidence of the use of the disputed plot prior to 1983 does not advance the defendant’s claim to have acquired title by adverse possession. Whatever, if any, rights Mrs. Mansfield had acquired over the disputed plot prior to 1980, the position is that when she registered her title in 1980 the southern extremity of her title was the track and the disputed plot was excluded. The defendant did not make the case on the pleadings that he had acquired title to the disputed plot by purchase from Mrs. Mansfield and that case was not made in the closing submissions on his behalf at the hearing. Despite that, the defendant testified that when he was negotiating the purchase with Mr. Jim Mansfield in 1983 they “stepped” Mrs. Mansfield’s land which he was purchasing and that area included the disputed plot. Insofar as it is necessary to do so, I find that that evidence cannot correct. Everything which happened subsequently is inconsistent with it.
1983/1993
After he acquired the property he purchased from Mrs. Mansfield the defendant planted the line of conifers to physically separate the workshop plot from the triangular area and the disputed plot. Some time after he planted the trees, the defendant augmented them by erecting a substantial concrete post and wire-mesh fence with two strands of barbed wire at the top to the south and along the line of the conifers. I think it is reasonable to infer that at the time the defendant believed that the southern extremity of the property he acquired from Mrs. Mansfield was the line of the conifers and fence. I also think it probable that this was the view of Lockheed Builders Limited and its successor, Dundrum. Of course, the defendant did acquire, and he now has title to, the triangular area.
The defendant’s evidence was that when he moved to the property it was a dumping ground for all types of waste; household waste, burnt out cars and vans. Over the years he has cleared the disputed plot of waste. He put in evidence an invoice from August, 1989 “for clearing of cars and rubble from site and levelling of site adjacent to work shop and dwelling of [the defendant]”. He testified that when he moved up to the property he put up a small fence to keep people out and that fence ran along the Mount Seskin access and down the main road. It was a continuous job to repair the fence and he had to put a better fence up. The defendant’s evidence on this point and, indeed, on many points was vague and imprecise, which I think is understandable because of the passage of time. In any event, if he did put a fence along the Mount Seskin access between 1983 and 1993, I find that he did not do so with the intention of taking possession of the disputed plot.
The defendant has carried on the business of repairing, servicing and maintaining machinery, mainly Volvo dump trucks, in the workshop. The defendant’s evidence, which was corroborated by that of his employee, Thomas Holmes, was that since 1983 he has used the disputed plot to test machinery which is being repaired in the workshop. As to the frequency of that use, the defendant’s evidence was that one machine per week might be tested but it could be one machine per month. It could take a month to overhaul a machine and when it was overhauled it would be taken out from the workshop plot and a day might be spent testing it there. In cross-examination the defendant acknowledged that the testing operations could be as infrequent as once every six months, as it could take that long to repair the machine. There was a slight conflict between the defendant and Mr. Holmes as to whether machinery was left outside the workshop area overnight; the defendant’s evidence was that, for security reasons, machinery was never left on the disputed plot overnight, whereas Mr. Holmes testified that if a machine had broken down on the disputed plot it would be left there overnight.
There was also a conflict on the evidence as to how the defendant accessed the disputed plot with machinery from the workshop between 1983 and 2000. The defendant’s evidence was that when he was planting the conifers he left a gap adjacent to the rear of the workshop and that when he put in the fence it was left in such a way that it could be rolled back. The plaintiff’s witnesses’ evidence was that in September, 2000 the only access to the disputed plot and the triangular area was through what was described as a “wire gate” at the public road frontage. The defendant’s evidence was that it was too dangerous to use that access, that it was never used and that he always used the access at the back, adjacent to the workshop. I accept the defendant’s evidence on this point.

1993/1994
The evidence indicates that, although Dundrum acquired the Mount Seskin property in 1990, no acts of ownership were exercised in relation to the disputed plot until some time in 1993. It is not possible to form any view on the evidence as to why Dundrum acquired the property. Mr. Quinn continued to take a letting of the land for farmin

g purposes. Mr. Patsy Monaghan, who was the manager of a quarry owned by Dundrum in the vicinity, suggested that the intention may have been to acquire a piece of land behind the quarry and to extend quarrying on to the Mount Seskin lands. At any rate, there was a meeting between Mr. Jack Tracey, who was the proprietor of Dundrum, who was accompanied by Mr. Monaghan, with the defendant at some time in 1993. As a result of that meeting, the defendant wrote a letter on 17th November, 1993 to Mr. Tracey which was headed “ Re Adjoining Site in Common Ownership”. This letter is of sufficient importance to merit being quoted in full. It stated:
“When we met some time ago to discuss the matter of flooding from your land, which is affecting my property, both you and Patsy [Monaghan] said that it was your intention to fence in a site adjoining my property between your existing lands and the public roadway, which I am told, is and has been for some considerable time in common use.

My understanding is that the ground in question is known as commonage and having looked into the matter I can find no record of ownership having been registered in your name.

I have in the past, together with others in the area, on occasion used this ground. I would expect to be able to do so for the foreseeable future.”
While the defendant testified that he did not think he had the benefit of legal advice when he wrote that letter, I am very sceptical as to whether his recollection on that point is correct. I think what the letter was meant to convey is what is to be deduced from a plain reading of it, and that reflected the defendant’s state of mind at the time. In particular, what the letter conveyed was that the defendant was not accepting that Dundrum had ownership of the disputed plot. However, he was not asserting ownership on his part or even possession. The point he made was that the disputed land was commonage, by which he meant used in common by persons including himself. I do not accept the defendant’s evidence that when he referred to the disputed plot being commonage and in common use he was referring to the fact that it was used for dumping, in effect for illegal dumping. The message the defendant was conveying was that, as Dundrum was not the owner of the disputed plot and as it was commonage, Dundrum was not entitled to fence it in and obstruct access over it.
It was not until May, 1994 that Dundrum followed through on its intention to erect fencing around the disputed plot. A wooden post and wire fence was erected along the public road frontage and along the boundary with the Mount Seskin access of the disputed property. I think it probable that it was because of the belief that the conifers coupled with the fence erected by the defendant to the south of them represented the boundary with the defendant’s lands that the track was not fenced off from the triangular area.
The evidence established that in 1994 Dundrum laid a pipe under the disputed plot to drain the Mount Seskin lands following complaints of flooding both from Dublin County Council and the defendant.

May 1994 to July 2001
After the fencing went up in May, 1994, there was no further objection from the defendant, although he did testify that at the meeting he had with Mr. Tracey in 1993 Mr. Tracey threatened that if the defendant prevented him from fencing he would “send the travellers round”. No other acts of ownership were exercised by Dundrum until September, 2000. Mr. Tracey died in April, 1996. Ms. Crawford, who was an executor of his will, and another executor became directors of Dundrum. In September 2000 Mr. Monaghan brought it to the attention of Ms. Crawford and her co-director that the defendant had constructed fencing on the disputed plot. The fencing was substantial concrete post and wire-mesh fence, referred to as a chain-link fence by the defendant, which bounded the disputed plot on three sides: the public road frontage; the Mount Seskin access; and the eastern side inside the old stone wall. As a result of that action, Ms. Crawford and her co-director inspected the Mount Seskin property and they called on the defendant. Ms. Crawford’s evidence was that on that occasion the defendant asserted that he was entitled to put up the fence, that it was commonage, and that he had put up the fence to stop Mr. Quinn’s cattle straying.
There followed correspondence between the solicitors for the parties. The opening sally was a letter of 15th September, 2000 from Joynt and Crawford to the defendant with which there was enclosed a copy of the 1990 Conveyance, because, as was stated in the letter, the defendant appeared to be under a misunderstanding regarding Dundrum’s boundaries. It was further stated that the defendant’s complaints regarding straying cattle would be taken up with Mr. Quinn, with a view to rectifying the situation. The defendant was called upon to remove the fence, failing which Dundrum would remove it and deliver the posts and wire to the defendant in the best condition possible. The response to that letter was a letter of 20th September, 2000 from the defendant’s solicitors, Cullen & Co., to Joynt and Crawford. The tenor of that letter was that there was a conflict between the Land Registry map relating to the defendant’s registered title and the Map annexed to the 1990 Conveyance. It was suggested, sensibly, that the matter required to be resolved as between the solicitors. An application for an injunction was threatened if Dundrum attempted to remove the fence. After that, it was agreed between the solicitors that the clients’ respective engineers or architects should meet with a view to agreeing the boundary between the two holdings. Due to no fault on the part of the solicitors, that process never came to fruition. In July, 2001, following a change of ownership and management, a restructuring and disposal of the Tracey group of companies was commenced. The boundary issue between Dundrum and the defendant was put on the back-burner. Joynt and Crawford ceased to act for Dundrum on the change of management.
During this period, the defendant continued to use the disputed plot for testing machinery under repair as he had done previously.

July, 2001 to date
Apart from an inspection of the Mount Seskin lands and the disputed plot in September, 2003 by the new Chief Executive of the Tracey group of companies, Eanna Daibhis, in September, 2003, Dundrum appears to have taken no interest in the disputed plot until it received a letter of 17th June, 2004 from the defendant’s solicitors to its former solicitors. At the time of the 2003 inspection Mr. Daibhis observed that the disputed plot was overgrown, there was a container on it and a piece of equipment. He also observed the concrete and wire fence which had been erected by the defendant. Because of more pressing issues, he had no further involvement with the issue of the disputed plot until he received the 2004 letter.
In that letter, the defendant’s solicitors referred to the correspondence in late 2000 and early 2001 and the on-site meeting between the architects for Dundrum and the defendant. They informed the plaintiff’s former solicitors that the defendant intended offering the property itemised in the letter for sale. As well as the property comprised in folios 17796F and 124842F, the letter itemised the disputed property as property “which our Client claims he has been in possession of through all his estate and title, if any”. I assume that the word “through” was a mistype for “for” and that the title the defendant intended to offer was “all his estate and title, if any”, so that he did not intend giving a prospective purchaser any warranty as to his title.
That letter was the catalyst for acrimonious correspondence between the solicitors for the parties, which ultimately led to these proceedings.
I am satisfied on the evidence that since September, 2000 the defendant has intensified his user of, and activity on, the disputed plot. For instance, he erected two new gates, one on the public road frontage, which provoked a warning letter dated 21st June, 2006 from South Dublin County Council pursuant to s. 152 of the Planning and Development Act, 2000, and the other on the rear boundary where the track exits the disputed plot. Apart from that, I find on the evidence that the defendant’s practice of putting containers on the disputed plot commenced in this period.

The relief claimed by the plaintiff
Against the foregoing background the plaintiff claims a declaration that the disputed plot was at all material times and so remains in the ownership of the plaintiff. The defendant also seeks injunctive relief and damages. Damages are sought in lieu of or in addition to the other reliefs under various headings: slander/defamation as to title or injurious falsehood; and negligence and breach of duty.
As I have already found, Dundrum acquired title to the disputed plot by virtue of the 1990 Conveyance. It remains to consider whether that title has been extinguished by the defendant having acquired title by adverse possession.

The law
Although the plaintiff has not sought an order for possession, in essence, this action concerns entitlement to possession of the disputed plot which goes hand in hand with title and ownership. The defendant’s defence is that he has acquired a possessory title to the disputed plot. In determining whether he has, the provisions of the Statute of Limitations, 1957 (the Act of 1957) come in to play. Section 13(2) provides that no action to recover land shall be brought by any person, other than a State authority, after the expiration of twelve years from the date on which the right of action accrued to that person. Section 18(1) deals with when the right of action to recover land accrues and provides that no right of action to recover land shall be deemed to accrue unless the land is in the adverse possession of some person in whose favour the period of limitation can run. Section 24 provides that at the expiration of the period fixed for a person to bring an action to recover land the title of that person to the land shall be extinguished.
The meaning of “adverse possession” in s. 18 of the Act of 1957 was explained by the Supreme Court in Murphy v. Murphy [1980] I.R. 183 in the following passage at p. 202 of the judgment of Kenny J.:
“Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title, i.e., adverse possession, and so there had to be an ouster. The doctrine of non-adverse possession was abolished by the Real Property Limitation Act, 1833, in which the words ‘adverse possession’ were not used … . The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In section 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as a servant or caretaker or a beneficiary under a trust …”
Later in his judgment Kenny J. referred to the decisions of the English Court of Appeal in Wallis’s Holiday Camp v. Shell-Mex [1975] Q.B. 94 and Treloar v. Nute [1976] 1 W.L.R. 1295, commenting that in each of those cases the question was whether the person in possession of lands had been in adverse possession. He then observed that this is ultimately a question of fact.
In Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677 Barron J., having referred to the judgment of Kenny J. in Murphy v. Murphy, stated that each case must be decided on its own facts and continued (at p. 683):
“Adverse possession depends on the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that when this factor is present it is easier to hold an absence of animus possidendi.”
In relation to the type of acts of use and enjoyment which will amount to possession, the following passage from the judgment of Lord O’Hagan in The Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273 at p. 288 has been cited frequently by this Court with approval in recent years (for example, by Costello J. at first instance in Murphy v. Murphy, at p. 193, and by Gilligan J. in Keelgrove Properties Limited v. Shelbourne Development Limited in his unreported judgment delivered on 8th July, 2005):
“As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.”
The practical application of the principle stated in that quotation may be observed in Doyle v. O’Neill (the High Court, Unreported, 13th January, 1995) in which O’Hanlon J. stated:
“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
On the facts, O’Hanlon J. held that the acts of user relied on in that case, which he described as being very casual, sporadic and of an inconclusive nature, were inconclusive to found a claim to a possessory title.
On the other hand, in an authority relied on by the defendant, Griffin v. Bleithin [1999] 2 ILRM 182, the application of the principle that in every case possession must be considered by reference to the peculiar circumstances, resulted in a different outcome. There Quirke J., found on the facts that the defendant’s use of a yard for the purpose of parking vehicles and his use of a shed for storing equipment and for other purposes connected with his various activities between 1974 and 1994 constituted possession in circumstances where the yard and shed were located in Rathgar in Dublin and the defendant had overheld on the determination of his tenancy of the yard and shed by notice to quit in 1974 and that the possession was adverse.

Application of the law to the facts
On the basis of the authorities, the two key questions which fall for consideration here are, first, whether the use of the disputed plot by the defendant constituted possession and, secondly, if it did, whether it was adverse possession in the sense of being possession inconsistent with the title of the true owner.
In relation to the first question, in my view, the evidence does not establish that in the period from 1983 to 2000 the defendant’s use of the disputed plot constituted possession. Apart from clearing waste from the disputed plot in a manner akin to abating a nuisance, the defendant’s use was limited to sporadic incursions for the purpose of testing machinery following repair or service in the adjoining workshop. This is borne out by the defendant’s reference in the letter of 17th November, 1993 to the fact that in the past, in common with others, he had used the disputed plot “on occasion”. Having regard to the nature of the disputed plot, the manner in which it was used by the defendant between 1983 and 2000, which covers most of the crucial period between 1993 and 2005, would not have sent out a signal that the defendant was occupying the disputed plot to the exclusion of the true owner and all others.
If, contrary to the view which I have expressed, the use by the defendant of the disputed plot prior to the year 2000 did constitute possession, the evidence strongly suggests that prior to 2000 the plaintiff did not have the necessary animus possidendi to justify an inference that the possession was adverse. The state of mind evinced in the letter of 17th November, 1993, which I have analysed earlier, was not consistent with an intention to exclude all persons other than himself from the disputed plot. Even by September, 2001 that position had not changed. The defendant was not asserting a right of exclusive possession to the disputed plot. His justification for erecting the fences he erected at that time was to keep Mr. Quinn’s straying cattle off land which he still regarded as commonage and away from the property he owned. After the solicitors acting for Dundrum formally objected to the erection of the fences by the defendant in September, 2001, the correspondence which passed between the solicitors indicates that on both sides the issue between the parties was seen as a paper title boundary dispute. It seems to me to be of particular significance that the plaintiff was not even at that stage asserting that he had established a possessory title to the disputed plot. The first time such assertion was made on his behalf was in 2004. Accordingly, I reject the defendant’s assertion that he has acquired title by adverse possession to the disputed plot.

The Order
There will be a declaration that the disputed plot was at all material times and remains in the ownership of the plaintiff. A perpetual injunction has not been sought and none is necessary having regard to the terms of the declaration.
No evidence has been adduced as to any loss or damage incurred by the plaintiff and, accordingly, the plaintiff is not entitled to any damages.

Griffin v Calally

[2008] I.E.H.C. 83 Edwards J

JUDGMENT of Mr. Justice John Edwards delivered on Friday the 1st day of February 2008
Introduction
The issue that I have to decide arises in the context of personal injuries proceedings arising out to a road traffic accident on the 18th July, 1999. The plaintiff was travelling as a passenger in a motor car which was in a head on collision with another motor car at Scarrawalsh, Enniscorthy, Co. Wexford. Unfortunately, the driver of the other vehicle, a Mr. Hugh Kerr, died in the accident. The plaintiff alleges that she suffered personal injuries, loss and damage in the accident, and that these were caused by the negligence and breach of duty of the deceased in or about the driving of his motor vehicle. The defendant named in the proceedings is a law clerk in a firm of solicitors and is sued as nominee on behalf of the deceased driver.
The Plenary Summons was issued on the 13th June, 2002, and a Statement of Claim was delivered on the 17th February, 2003. There was the usual request for further and better particulars arising out of the Statement of Claim and further and better particulars were duly furnished. On 12th May, 2005, a Defence was filed on behalf of the defendant. This was a very brief document and, in the circumstances, it is convenient to recite it in full:-
“1. The defendant denies that the plaintiff suffered, sustained or incurred the alleged or any injuries or loss or damage or expense and each and every particular of same is denied as if individually set forth herein and traversed seriatim.
2. No admission is made as to the alleged or any items of special damage.”
The defence as filed is not signed by counsel.
The defendant brings the motion that is presently before me and in her Notice of Motion seeks an order pursuant to O. 28, r. 1 of the Rules of the Superior Courts granting her liberty to deliver an amended defence to include the following preliminary plea and objection:-
“The claim of the plaintiff herein is statute barred pursuant to the provisions of s. 9(2)(b) of the Civil Liability Act, 1961 and the Statute of Limitations, the proceedings herein not having been commenced within the period of two years after the 18th July, 1999, being the date of death of Hugh Kerr, the alleged tort feasor in the proceedings herein.”
This application has been vigorously opposed by the plaintiff.
As the defendant is the moving party she will hereinafter be described as the applicant. Correspondingly the plaintiff will hereinafter be referred to as the respondent.
The application was grounded upon an affidavit of Ivan Durcan, solicitor, sworn on the 21st November, 2006, and the documents therein exhibited. A replying affidavit was filed on behalf of the respondent, namely an affidavit of David K. Anderson, solicitor, sworn on the 15th December, 2006, with accompanying exhibits. Then by way of rejoinder Mr. Ivan Durcan sworn a supplemental affidavit on the 2nd February, 2007 responding to Mr. Anderson’s affidavit.
The matter came on before this Honourable Court sitting in Tralee on 17th January, 2008, and in the course of the hearing detailed legal arguments were presented to me, to which I will refer later. I then retired to consider the evidence and the parties respective submissions and, having done so, formed the view that it would be inappropriate in the particular circumstances of this case to allow the amendment sought. Accordingly, I dismissed the applicant’s application and I indicated that I would give reasons for my decision in a written judgement on today’s date. I now give those reasons.
The evidence
At para. 5 of his affidavit of the 21st November, 2006 Mr. Durcan exhibits a booklet of inter-partes correspondence in the case marked “ID 1”. With respect to that course of correspondence he disposed:-
“I acknowledge the references in the correspondence to liability not being an issue or otherwise being conceded, save for possible seat belt issues, but it is submitted that far from communicating directly or indirectly to the plaintiff’s solicitors, that there was no need to issue proceedings, I repeatedly called upon the plaintiff’s solicitors to move matters along and to issue proceedings.”
It will be necessary to refer to the inter-partes correspondence in a little more detail later in this judgment. However, the other matter of significant substance in the affidavit of Mr. Durcan, is contained in para. 7 wherein he states:-
“I say and believe that the failure to plead the limitation issue referred to above was a mistake and an oversight. I pray this Honourable Court for liberty to deliver an amended Defence raising this as a preliminary issue. I make this application in the context of the correspondence including the explicit references calling upon the plaintiff’s solicitors to move the matter along and to issue proceedings which could not reasonably give rise to any assumption on their part that there was no requirement to issue the proceedings.”
In his replying affidavit, Mr. Anderson referred at para. 3 to the averment in para. 7 of Mr. Durcan’s affidavit, that the failure to plead the statute of limitations in the applicant’s Defence “was a mistake and an oversight”. In regard to that Mr. Anderson deposed:-
“I am surprised that Mr. Durcan should make such an averment because the entire course of the dealings between us up to the issue of this motion was that liability was not an issue in this case. Indeed, on the date the Defence was delivered, a Notice of Tender was also served in which the defendant made a substantial offer in settlement of this case.”
At para. 4 of his affidavit Mr. Anderson avers that the correspondence exhibited by Mr. Durcan only gives a partial history of the proceedings. Mr. Anderson then goes on to exhibit further correspondence and, save for one item which must be mentioned at this point, I will deal with the relevant correspondence later. The one letter that must be referred to at this point was a letter of 4th September, 2000 from Mr. Durcan to the respondent’s solicitors stating plainly:-
“Liability will not be an issue in these claims save for possible seat belt issues.”
At para. 5 of his affidavit, Mr. Anderson deposes:-
“Following the letter of 4th September, 2000, the dealings between our respective firms of solicitors proceeded on the basis that liability was not an issue. Certainly, I accepted on behalf of the plaintiff that this was the case and that the only reason that proceedings might be required would be to assess quantum.”
At para. 6 of his affidavit, Mr. Anderson states:-
“Mr. Durcan avers that he repeatedly called upon my firm to move matters along and to issue proceedings. However, as is apparent from the correspondence, when this was done it was always in the context of attempts being made to settle the proceedings and never against any suggestion that the proceedings when issued would actually be contested as regards liability.”
Mr. Anderson goes on to describe the course of dealings between himself and Mr. Durcan both before and after the issuing of proceedings and it is not necessary to recite in full the evidence in that regard. He alludes to various attempts to negotiate a settlement of the matter; to the furnishing of medical reports and vouchers to the applicant with a view to reaching settlement; to the fact that the respondent was requested to, and did, attend numerous medical consultations set up by the applicant; to the issuing of proceedings and the raising of Notices for Particulars by the applicant, to the furnishing of replies to the applicant’s Notices for Particulars and extensive correspondence between the solicitors with regard to the respondent’s claim for loss of earnings. Mr. Anderson comments:-
“This was all done against the background that liability was not an issue in the case, and in which every effort was being made to co-operate with, and facilitate, the defendant’s inquiries.”
At para. 10 of his affidavit, Mr. Anderson refers with particularity to the fact that a Notice of Tender offer was delivered with the Defence on the 12th May, 2005. He points out that the tender was not accepted but by letter dated the 24th June, 2005 he communicated with the applicant’s solicitor that he was currently awaiting an occupational therapist’s report in respect of his client and that he would revert in respect of the tender. He points out that on 8th November, 2005 he furnished the applicant with the respondent’s occupational therapist’s report together with an updated schedule of loss of earnings from the respondent’s accountant, and also the respondent’s actuarial report. He states that in reply, the applicant’s solicitor, who had previously sought settlement negotiations, requested service of a Notice of Trial.
It appears that Notice of Trial was never in fact served. However, the respondent attended a further medical consultation at the behest of the applicant on the 4th May, 2006.
It would appear that the first intimation received by the respondent that the applicant was seeking to rely on the Statutes of Limitation was when, out of the blue, the Notice of Motion in the present application was issued on the 21st November, 2006.
In his supplemental affidavit of the 2nd February, 2007 Mr. Durcan makes the following points. At para. 3 he contends that Mr. Anderson equates references to “liability not being an issue” with an express or inferred representation, which he asserts, that a defence under the Statutes of Limitation will not be relied upon. He submits that these are not synonymous. He points out that the correspondence exhibited makes no reference to the Statutes of Limitation. He avers that no express representation was made that the applicant would not raise the limitation period. He points out that the respondent’s advisers did not seek any latitude or indulgence in this regard. Moreover, he says, the applicant’s advisers did not offer any comfort on this point and did not, for example, at any stage suggest either that proceedings could be dispensed with or that no point would be raised if the issuing of proceedings was delayed beyond the expiry of limitation period.
At para. 5 of his affidavit he states that so far as reliance on implied representations is asserted, the furnishing of loss of earnings documentation, experts reports and other information, or indeed references to possible settlement negotiations, do not of themselves, separately or in combination, constitute or comprise a representation that proceedings are not required or that a defence under the Statutes of Limitation will not be relied upon. He makes certain specific references to the correspondence and, as I have said, I will deal with the correspondence separately.
Relevant correspondence
I should say at the outset that “without prejudice” correspondence was included in the correspondence exhibited by both parties. Neither side has asserted a claim of privilege before me nor has any objection been taken by either side to me seeing or placing reliance upon “without prejudice” correspondence. In the circumstances I propose to treat and have regard to all correspondence in the same way, regardless of whether or not any particular item is expressed to be “without prejudice”.
The course of correspondence exhibited before me commences with a letter of the 21st July, 2000 from the applicant’s solicitors to the respondent’s solicitors indicating that they have authority to accept service of proceedings. They further request the sharing of medicals on the usual without prejudice basis or, failing that, that the respondent might be made available for medical examination on the usual terms. This letter was replied to by a lengthy letter from the respondent’s solicitors to the applicant’s solicitors dated 30th August, 2000. Part of the reason for its length was that it dealt with not just the claim of the respondent in these proceedings, but with a second claim relating to the respondent’s husband and a third claim relating to the respondent’s daughter, both of whom were also injured in the accident. The letter, inter alia, promulgates various complaints on the part of the respondent’s solicitor concerning the manner in which the applicant’s insurer had dealt with all three claims up to that point. The letter dealt at length with the claim of the respondent’s husband on the basis that his claim “appears to be the only one of the three Griffin claims that might rightly be approaching a possibility of long term assessment of his loss, damage and injury… .” Significantly with regard to the respondent’s husband’s case the letter states:-
“We have no problem in producing our client’s medical reports, on the usual basis and we attach hereto copies of the above surgeon’s reports.”
There was no offer to furnish medical reports in respect of either the respondent herself or her daughter but, in fairness, this has to be understood in the context of the view asserted that the only claim that was ready to be progressed was that of the respondent’s husband.
In response to the said letter of the 30th August, 2000 the applicant’s solicitors wrote to the respondent’s solicitors on the 4th September, 2000 in the following terms:-
“Dear Sirs,
Thank you for your letter of the 30th August. Liability will not be an issue in these claims save for possible seat belt issues.
Thank you for the medical reports in relation to Garda Griffin. We await a further report following his recent operation.
Can you furnish us with any medical reports in relation to Mrs. Nicola Griffin’s claim and Catherine Griffin’s claim?
If you wish to issue proceedings you might note that the nominated Defendant is Lucy Calally. Ms. Calally is a law clerk in this office and is nominated purely for the purposes of these proceedings.
We await hearing from you.
Yours faithfully.”
There was some delay on the part of the respondent’s solicitors in responding to the applicant’s solicitors letter of the 4th of September, and reminders were sent by the applicant’s solicitors to the respondent’s solicitors on the 25th October, 2000, the 8th December, 2000, and the 25th January, 2001 respectively. By letter of the 26th January, 2001 the respondent’s solicitors replied to the applicant’s solicitors. This reply indicated:-
“We are prepared to recommend to our client that you appoint a medical attendant to independently assess our client’s injuries arising out of the above accident and for record purposes we also enclose a further medical report which we hold on file from Mr. Michael O’Riordan dated the 7th September, 2000.
We propose to attempt to settle and resolve the claim of Garda Joseph Griffin as a preliminary matter and thereafter the two other family member’s claims.
We await your formal reply by return.
Yours faithfully.”
The applicant’s solicitors responded on the 31st January, 2001 reiterating that there had been a formal of concession of liability save for possible seat belt issues. It went on to state:-
“You say you want to attempt to settle the claims. Do you want to meet now or do you intend to issue proceedings and then meet?
What is the position about the other cases? When do you intend to issue proceedings?
We await hearing from you.
Yours faithfully.”
By a letter dated the 30th April, 2001 from the respondent’s solicitors to the applicant’s solicitors in reply to theirs of the 31st January, 2001 the respondent’s solicitors complained that, with respect to the case of the respondent’s husband, the applicant’s solicitors had neither commented upon the medical reports sent to them or nominated a medical examiner. The letter continued:-
“In respect of the other two members of the Griffin family their condition is still very serious – we know and understand that your client’s objective is to ‘box’ the claim and assess the value thereof. This has no beneficial interest to our clients and unless and until both Mrs. Griffin and her young daughter reach a recovery stage they will remain under constant medical supervision and attendance and we will not limit their claim by suggesting settlement or otherwise until a clear path of damage, loss and injuries is ascertained.
We again draw your attention to the penultimate paragraph of our letter dated the 26th January, 2001 when we clearly specified our proposal and we now look forward to receiving a beneficial response forthwith.”
The applicant’s solicitors responded by a letter of the 1st May, 2001 stating:-
“The issue is quite simply – do you want to meet in one or more of the cases now to see if we can settle them or if not, please issue proceedings and we will get on with the case. Three months have gone by and nothing has happened (between us) and it is time to move the case on now, either by negotiation or issue of proceedings. Accordingly, please let us hear form you.
Yours faithfully.”
Again, there was delay on the part of the respondent’s solicitors in responding to the letter of the 1st May, 2001 and the applicant’s solicitors sent one line reminders on the 29th May, 2001 and the 18th July, 2001, respectively, the latter date coincidently being the date on which the limitation period expired. The latter reminder appears to have crossed with a reply from the respondent’s solicitors to the applicant’s solicitors dated the 18th July, 2001. It again complained that the applicant’s side had neither commented upon the medical report furnished nor nominated a medical examiner. It then states:-
“On this side of the fence if you had to hear and translate the very considerable family loss and upset which has arisen in respect of the above incident you might better well better understand the trauma and distaste that has arisen in respect of the entire matter which occurred two years ago today.”
There was then a reiteration of the call for the nomination of a medical examiner and the letter concluded:-
“If we do not receive what we consider to be a proper beneficial response we will institute proceedings without further reference. It appears to our company that no matter what we say and/or how we say it – our words, queries, proposals and otherwise have never got a full and/or proper response from you at any time. The other Griffin family members, for whom we also act, await a proper, positive and helpful response from your firm.
Yours faithfully.”
The first letter written in the post expiration stage of the correspondence was a letter of the 23rd July, 2001 from the applicant’s solicitors to the respondent’s solicitors. It stated:-
“Our letter of the 31st January could not be clearer. You were kind enough to send us a report from Mr. O’Riordan. We asked you whether or not you wanted to meet to settle the claim or else we invited you to issue proceedings. Since then you have done neither. We are quite happy to proceed on the basis of Mr. O’Riordan’s medical report (and any updated ones since).
It is not for us to comment on what you have to do for the plaintiffs. Our respective firms are here to represent our clients and with that in mind we have invited you to settlement discussions. If you do not wish to meet to discuss settlement of the claim on a without prejudice basis we suggest that you issue your proceedings and get on with the case or cases. We await hearing from you – by return please.
Yours faithfully.”
The next letter is a letter of the 1st August, 2001 again from the applicant’s solicitors to the respondent’s solicitors referring to “our recent meeting”. It requests “will you please serve proceedings”. There is then another letter from the applicant’s solicitors to the respondent’s solicitors dated the 7th November, 2001 in the following terms:-
“We refer to our meeting at the end of July. We have not heard from you with proceedings. Will you please let us hear from you so that this matter can proceed?”
A one line reminder was sent on the 3rd December, 2001 from the applicant’s solicitors to the respondent’s solicitors. On the same date, but by separate letters, each of the claimants was requested to attend a medical examination by a doctor nominated by the applicant. By a letter from the respondent’s solicitors to the applicant’s solicitors dated the 13th December, 2001 it was confirmed that the three claimants would attend the said medical examinations.
The next item of correspondence is a letter of 26th June, 2002 from the respondent’s solicitors to the applicant’s solicitors enclosing a Plenary Summons in respect of the respondent’s claim. That letter was responded to by letter of the 27th June, 2002 from the applicant’s solicitors to the respondent’s solicitors returning the original Plenary Summons duly stamped with acceptance of service endorsed thereon. The letter also enclosed an Appearance to the proceedings and called on the respondent’s solicitors to deliver a Statement of Claim. Thereafter, there was the usual type of correspondence that one expects in connection with proceedings recently served. There were letters requesting particulars; letters threatening motions and so on. By letters of 20th August, 2002 all three claimants were again requested to attend a medical examination by a doctor nominated by the applicant. By letter of 3rd April, 2003 the applicant requested the claimants to attend yet another medical examination by the applicant’s doctor. There was a similar request communicated by a letter of the 3rd September, 2003. The affidavit of Mr. Anderson exhibits a continuation of the correspondence between the respective solicitors from that time up until April 2006. There are twenty three further letters in all and, as many of them are lengthy and detailed it will be sufficient for the purposes of this judgment to characterise the correspondence in a general way. There was very detailed and protracted correspondence between the parties concerning the special damages claimed by the respondent and in particular her claim for loss of earnings. Accountants were involved on both sides. Further, the applicant’s solicitors were furnished with an Actuary’s report by the respondents’ solicitors and also with a report of a Vocational Rehabilitation Consultant. The applicant’s solicitors also requested the respondent to undergo a number of further medical examinations.
In addition, and quite tellingly, it was during this period that the Defence was filed, namely on the 12th May, 2005, and the tender offer made. Further, there are at least two demands in the correspondence from the defendant to the plaintiff that the plaintiff should serve Notice of Trial, failing which “we will serve Notice of Trial ourselves”. Throughout all this time there was no suggestion in any letter that the Statute was being, or might be, relied upon.
The Applicant’s Submissions
The applicant relies firstly on the terms of O. 28 r. 1 which states:-
“The court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”
The applicant contends that the amendment requested is “necessary” for the determination of the real questions in controversy between the parties. Anticipating, correctly, that the application was likely to be resisted and opposed on the basis of a plea of estoppel arising from the representation contained in the letter of the 4th September, 2001 to the effect that liability would not be an issue in the case, the applicant places strong reliance on the following passage from the judgment of Chief Justice Keane in the case of Desmond Ryan v. Michael Connolly and Ann Marie Connolly [2001] 2 ILRM 174 at 182:-
“The fact that a defendant has expressly and unambiguously conceded the issue of liability in a case will not necessarily of itself make it reasonable for the plaintiff to assume that he can defer the institution of proceedings beyond the limitation period. Where an insurance company within days of the accident accepts that no issue on liability arises – e.g. in the case of a passenger wearing a safety belt – but for some reason the subsequent negotiations become dormant, the plaintiff may well find himself unable to rely on the principle under consideration if he permits the limitation period to expire without instituting proceedings. In the absence of a statement by the insurance company from which it was reasonable to infer that, in the event of proceedings not being instituted within the limitation period it would refrain from relying on a defence under the Statute, there seems no reason in principle why the insurance company should be subsequently precluded from relying on such a defence.”

Murphy v Grealish [2009] IESC 9