Limitation of Actions

Question 1

Cantrell v AIB

Answer 1

‘it was settled more than a century ago that a cause of action arose or accrued when every fact which it would be necessary for the plaintiff to prove in order to support his right to judgement of court was in existence’

Question 2

Bradley v Deane

Answer 2

• Court noted three potential times the clock could have begun to run:
  a) The date of the wrongful act
  ◊ Dismissed on the basis that the clock could not begin to run if no damage had materialised at this point

     b) The date the damage ought reasonably be discovered
                        ◊ Rejected on the basis that to use a discoverability test would be unfair in the circumstances 
  					
            c) The date the damage manifested itself 
          Appropriate date

Question 3

Gallagher v ACC Bank

Answer 3

• Plaintiff was advised to invest in a certain product which he claimed was entirely unsuitable for this purpose as it was a ‘borrow to invest’ product
• Claimed negligence
• Brought more than six years later
• Due to the fact that that the allegation was that the plaintiff would never have entered the investment scheme had he been aware it was inappropriate, the clock would begin to run from the date of investment
• Statute-barred

Question 4

Noble v Barr

Answer 4

• In cases of negligent advice, court distinguished between ‘flawed transactions’ which equalled loss and ‘no transactions’, where the plaintiff would never have entered into the a transaction if the advice was not negligent

Question 5

Smith v Cunningham

Answer 5

• Claim brought 8 years after the house was bought, 6 years from the date of planning permission issues and 5.5 years from the collapsed sale
• Where did the clock run from?
• clock ran at the transaction

Question 6

Hegarty v O’Loughlin

Answer 6

• P had undergone a medical procedure on her nose in 1973
• Alleged that she needed a second surgery in 1974 because of the first one
• Took action in 1982
• Did the claim run from the date that the tort came into existence or the date that the plaintiff discovered the injury?
• To deal with this, Statute of Limitations Act 1991 was enacted
• Introduced a ‘knowledge’ or ‘discoverability’ element
• S2 provides that the clock begins to run the date the cause of action accrues or the ‘date of knowledge if later’

Question 7

Maitland v Swan

Answer 7

• Plaintiff had an operation when aged 13 in 1969
• During that operation her right ovary was removed due to the presence of a benign cyst
• P was not aware of the removal until 1971
• In 1985, she instituted proceedings arguing that the defendant was negligent and should have considered the severity of long-term effects
• Not statute-barred as, despite being aware of the removal since 1971, she only realised its implications in 1983

Question 8

Gough v Neary

Answer 8

• P had a hysterectomy in 1990 and was told at the time that it was absolutely necessary
  In 1998, following complaints from other patients and media Took action later that year
• Not statute-barred as the court emphasised that knowledge of the injury in such cases is was the date the plaintiff knew or should have known that the surgery was unnecessary

Question 9

Cunningham v Neary

Answer 9

• Opposite outcome to Gough v Neary
• P had her ovary removed by the defendant
• Oct 1998, p underwent a hysterectomy
• Her surgeon was critical of the previous procedure and she was advised by a nurse to make a complaint about it
• Made a complaint in dec 1998
• Despite media coverage, she did not contact her solicitor until 2000 and received a full medical report in 2001
• Did not issue plenary summons until May 2002
  Statute-barred as she knew since 1998

Question 10

Whitely v Minister for Defence

Answer 10

• ‘army deafness’ cases
• P served in the army from 1957 to 1978
• In 1995 he instigated proceedings alleging that he had been exposed to excess noise without adequate hearing protection
• Caused damage to his hearing
• Testified that he had experienced hearing problems while in the army and after he had left
• Claim was statute-barred as there was nothing preventing him from taking the case earlier

Question 11

Presho v Doolan

Answer 11

• ‘whether or not the plaintiff was capable of managing his affairs in relation to the alleged wrong. Managing his affairs includes the protection of his legal rights’

Question 12

Brennan v Mullan

Answer 12

• P was young child who was sexually assaulted by a Christian brother at a monastery where he worked between 1980 and 1986
• Abuse had a traumatic effect on the plaintiff’s career and love life
• In 1995, he attended the Rape Crisis Centre
  □ Advised to seek advice from a solicitor
  □ Told he did not have cause of action
• Reluctantly, he did not issue proceedings until 2009
  □ Found that earlier legal advice may have been incorrect
• Held not statute barred as it was clear from medical and other evidence that the reason he did not bring a claim earlier was because of information provided to him incorrectly

Question 13

Ahearne v O’Sullivan

Answer 13

i) Has there been an inordinate delay?
ii) Has it been inexcusable?
iii) If the answer to the first two questions is positive, it then becomes necessary to consider whether the balance of justice is in favour of or against allowing the case to proceed

Question 14

Heffernan v O’Herlihy

Answer 14

• Defendant never issued plenary summons regarding his client’s medical negligence case
• However, kept issuing updates about the case to the client
• Eventually ordered new solicitors to take on her case
• New solicitors were only given medical records
• The clock only started when the new solicitors contacted the defendant as that is when the fraud was discovered