Limitation of Actions Consultation - Law Commission

1980 78
] are so obvious that the enactment by our Parliament of a
similar provision would merit urgent consideration. 79
10.36 The constitutionality of the Statute of Limitations was again tested in Morgan v
Park Developments Limited. 80
The plaintiff was attempting to recover damages for
negligence in relation to defects in a house built for him by the defendant. The
house was built in 1961 and bought by the plaintiff in 1962. Within months the
plaintiff had complained of cracks in the walls. Over the following years there were
attempts, some of which were made by the defendants, to repair the cracks, but in
1979 the plaintiff was advised by an architect that the cracks resulted from a
serious structural defect. The plaintiff commenced proceedings in 1980. In the
High Court Carroll J held that accrual of the cause of action, for the purposes of
section 11 of the Statute of Limitations 1957, had two possible meanings. The first
was the date on which the damage caused by the negligence actually first
occurred. The second was the date on which the damage became discoverable
with reasonable diligence. 81
She said that if she applied the first of the two
constructions of the statute the effects would be “harsh and absurd” and that it
seemed to her that “no law which could be described as ‘harsh and absurd’ or
which the Courts could say was unreasonable and unjustifiable in principle could
also be constitutional.” 82
No such objections applied to a construction based on
discoverability. Since she was obliged to choose the construction which was
consistent with the Constitution, Carroll J upheld the discoverability test. But,
since the plaintiff still failed on the facts, the judge’s ruling on the correct
construction of the statutory wording was obiter.
10.37 In 1987, the Irish Law Reform Commission reported on limitation periods in
relation to personal injury. 83
By this time, following the decision at first instance in
Hegarty v O’Loughran, 84
the law was in such a state of uncertainty that any one of
three statements might have correctly described the law in relation to the
limitation period for tortiously inflicted personal injuries: 85
78 See para 3.29 above.
79 [1980] IR 269, 288.
80 [1983] ILRM 156.
81 Cf the decision of the House of Lords in Pirelli General Cable Works Ltd v Oscar Faber &
Partners [1983] 2 AC 1, which had been given recently at the time Morgan v Park
Developments Ltd was decided.
82 [1983] ILRM 156, 160.
83 Report on the Statute of Limitations: Claims in Respect of Latent Personal Injuries LRC 21
(1987).
84 [1987] ILRM 603. In this case, which involved a claim for medical negligence, Barron J
rejected the contention that the cause of action accrued, and the limitation period began,
when it became discoverable. He appeared to hold that the cause of action accrued on the
date when the act causing the damage was committed, rather than the date when the
damage itself occurred, although nothing turned on this distinction on the facts. See para
10.32 above and para 10.39 below in relation to the Supreme Court’s decision on appeal.
85 Report on the Statute of Limitations: Claims in Respect of Latent Personal Injuries LRC 21
(1987), p 6.
190