Limitation of Actions Consultation - Law Commission

(3) Latent Damage
10.33 The problem of latent damage is common to actions in both contract and tort. 74
The hardship potentially created by limitation periods based on the time of the
wrongdoing or the damage, rather than the time of discoverability, gave rise to a
constitutional challenge in Cahill v Sutton. 75
The plaintiff in that case was
prescribed tablets by the defendant in 1968. Although the plaintiff suffered illeffects
almost immediately she did not commence proceedings until 1972. 76
She
contended that because, under the provisions of the Statute of Limitations which
barred her own action, a plaintiff could lose the right to bring an action barred
before he or she could discover its existence, those provisions must be ineffective
because they offended against Articles 40.3.1 and 40.3.2 of the Republic’s
Constitution, which provide:
[Article 40.3.1] The State guarantees in its laws to respect, and, as far
as practicable, by its laws to defend and vindicate the personal rights of
the citizen.
[Article 40.3.2] The State shall, in particular, by its laws protect as
best it may from unjust attack and, in the case of injustice done,
vindicate the life, person, good name, and property rights of every
citizen.
10.34 The challenge was rejected by the Supreme Court, on the basis that the plaintiff
had insufficient locus standi to make the challenge. The Supreme Court took the
view that any constitutional defect in the relevant section of the Statute of
Limitations could be remedied by adding a saving provision delaying the start of
the limitation period where plaintiffs were (through no fault of their own) unaware
of the facts, but such a proviso would not have assisted the plaintiff in this case. 77
As her claim was therefore doomed to fail whether or not the constitutionality of
the statute was upheld, the Supreme Court held that the plaintiff did not have
sufficient interest to give her locus standi.
10.35 The members of the Supreme Court in Cahill v Sutton refrained scrupulously from
saying whether, if the plaintiff had had locus standi, the challenge would have
succeeded, although the wording of the Statute of Limitations received heavy
criticism. Henchy J, with whom the other members of the court concurred, said
that the
justice and fairness of [a provision similar to that contained in the
English Limitation Act 1963, now section 11 of the Limitation Act
74 It is possible for rights of action to exist concurrently in contract and in tort in relation to
the same facts: Finlay v Murtagh [1979] IR 249 (Sup Ct).
75 [1980] IR 269.
76 The plaintiff originally sued in both tort and contract, although she later abandoned the
tortious claim.
77 Because there was no delay between her suffering the ill-effects of the medication, and her
knowing that she had suffered those ill-effects.
189