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Dáil Éireann debate -
Wednesday, 19 Jun 1991

Vol. 409 No. 10

Statute of Limitations (Amendment) Bill, 1990 [ Seanad ]: Committee Stage.

Amendment No. 1 not moved.
Question proposed: "That section 1 stand part of the Bill."

The section is straightforward. However, an amendment in my name was ruled out of order by the office of the Ceann Comhairle. I am clearly bound by that ruling and I am not in a position to move the amendment at this stage. I would like to put on record why I intened to pursue this amendment in the hope that before Report Stage the Minister of State will reflect on the over-all scope of the Bill to see if there might be a means of extending its scope with a view to taking on board the relevant point which was raised by the Law Society.

Acting Chairman

I have given you a little latitude. As the amendment has been ruled out of order you will appreciate I cannot allow you to pursue this. You have made your point.

I fully accept the ruling of the Ceann Comhairle.

Acting Chairman

Your are not speaking on the section.

I am not moving the amendment. I am speaking to the section. The succinct point made by the Law Society which was circulated to me by letter of 29 January and, I presume, to all Deputies of the House, was that the Bill should cover all actions claiming damages in tort and not merely actions for certain personal injuries.

The amendment I had in mind was to add to section 1 a second subsection providing that in this Bill and in the principal Act personal injury should include all injuries or personal loss whether caused to the person or property or caused by any act of negligence or breach of duty or tortious action. I understand that Deputies Barrett and Bell also attempted to broaden the scope of the measure. I want to know why the Government decided to take such a narrow approach as to confine matters to the very specific base they have done in respect of certain actions for damages for personal loss and no other.

In regard to my amendment I was notified only this morning that it was not in order. I accept that ruling although it took me by surprise coming so late in the day. My amendments, and I understand those of other spokespersons, have been in circulation for many weeks and it would have been helpful in readdressing our minds to the Bill if we had had a bit more notice of the fact that our amendments were not square with the terms of the Bill. I make that point in the hope that it will be taken back to the Ceann Comhairle. I felt it was important that the point raised by the Law Society that the Bill should have a wider scope and application should be raised at this stage. Perhaps the Minister of State would respond, if not now, on Report Stage on this issue.

I also received a letter this morning which surprised me, informing me that the amendment tabled to extend this Bill to include latent damage to property has been ruled our of order. Again, this amendment has been in circulation for some time.

The section provides that this Bill and the principal Act means the Statute of Limitations Act, 1957. The Statute of Limitations Act, 1957 deals with both personal and non-personal injuries and any amending legislation should do likewise. If we are amending the Principal Act of 1957 I do not see why we should not amend it to refer to both personal and non-personal injuries. It was mere chance that the Supreme Court case which decided there was a need to amend the existing 1957 Act was taken in respect of personal injuries only. It could easily have been the other way round. It could have been in respect of non-personal injuries. Are we to assume that if that had been the case the Minister would have been in here this morning with legislation amending the Statute of Limitations Act in respect solely of non-personal injuries? He would not.

This is the sort of legislation that does not grab the headlines because it is not every day of the week that a person finds himself in need of this legislation. The most common thing is for a person, having struggled to pay a mortgage, discovering five, six, seven or eight years into paying this mortgage that a major problem has arisen as a result of a fault in the building he is purchasing and this has happened through no fault of his own. He could not reasonably be expected to know that this would happen. He has got a mortgage based on surveyors' reports and would have assumed that the property he was buying was in good order. He then, discovers, eight or nine years later, that this House is about to fall down around his ears and he has no comeback against the person who built the House. It has happened in a couple of cases I personally know about and it is causing immense personal difficulties for the people involved. I fail to see why the Minister has not used this occasion to extend the legislation to non-personal injuries in accordance with the principal Act of 1957. That Act, as referred to in section 1, refers to both personal injuries and non-personal injuries. This legislation only refers to personal injuries.

Acting Chairman

We are talking about section 1 now.

That is correct. I am referring to the Statute of Limitations Act, 1957. Like Deputy McCartan I would ask the Minister not to make fools of us in this House. Let him go outside and try to explain to people who are deeply concerned that this legislation does not refer to non-personal injuries. There is no logic for not extending the legislation as the 1957 Act does. Like Deputy McCartan, I am asking the Minister to use basic common sense and give us an assurance that he will come back on Report Stage with his own amendment if he so wishes. I am not particularly concerned about whether my amendment or another amendment achieves this. The section should extend to non-personal injuries as well as to personal injuries. I am asking the Minister at this stage, under this section — because the 1957 Act refers to both personal and non-personal injuries — to give an indication that he is sympathetic to the request from all Opposition parties to extend this legislation to include non-personal injuries, and to listen to the advice given to his Department by the law society and by various well respected people in the legal profession. Not everybody can be wrong. I cannot see why the Minister will not keep this legislation totally in accordance with the 1957 Act.

This section defines the expression "the Principal Act", as the Statute of Limitations Act, 1957. The 1957 Act contains most of the law of the State pertaining to limitation of actions. Where subsequent legislation has set up a cause of action, it has either made it its own limitation provision, as for instance section 48 of the Civil Liability Act, 1961, dealing with claims by dependent relatives of the deceased in fatal injuries cases, or applied the provisions of the 1957 Act whether with modification, as in section 13 of the Sale of Goods and Supply of Services Act, 1980, dealing with claims by third parties for damages in respect of defective vehicles, or without section 21 of the Control of Dogs Act, 1986, dealing with injuries caused by dogs.

As was already stated on Second Stage, nine years ago the Law Reform Commission published a report which deals with aspects of material damage, namely those concerning latent defects in buildings. However, there have been significant changes in the law since that time and it is clear that the commission's original 1982 proposals would need to be further examined and, perhaps, amended to take account of judicial decisions in this area in the meantime. In relation to material damage, particularly, the commission's proposals might need to be extended as they envisaged action being taken against the original builder and those associated with the original building work. That approach might be regarded by some as being too restrictive.

It may very well be that the law should be changed not only to cover material damage but also all cases of negligence. The law was changed in England in that respect in 1986 by the Latent Damage Act of that year and is of general application. However, any such change here now would have far-reaching implications for architects, engineers and other professions, apart from surveyors and the building industry generally. The insurance industry, too, would have views in the matter, as Deputy Barrett would know.

Any proposed change of that nature in the law would have to be considered very carefully and the affected interests would have to be consulted before the Government could consider bringing forward the necessary draft legislation. I would remind the House, and particularly Deputy Barrett, that his party's Private Members' Bill did not deal with latent damage to property. It covered the same ground as this Bill. It applied to personal injuries only.

It is perhaps worth noting at this point that in their Fifth Report on the Insurance Problems of Small Businesses in March 1986, the Joint Committee on Small Businesses, under the heading of "professional indemnity", expressed the view that some restriction would need to be put on the right to sue for professional negligence in return for affordable insurance. Otherwise, the situation would disimprove, either through insurance cover being unobtainable or the level of some professional services being reduced. This is a very important consideration in the present context and underlines the point I am making about separate and detailed examination of the matter.

It is not the Government's intention to take a narrow view of any legislation, but here we are dealing with something very specific. We cannot change it now. We are dealing with the Bill as published and we should proceed in that fashion. Any further consideration of the matter referred to by the Deputies needs to be considered in the context of an amendment to existing laws or in an entirely new Bill.

The Private Members' Bill responded to a particular problem. I accept that it referred only to personal injuries but that is not a good argument for not using a Government Bill, having listened to the advice given by various people, to extend it to include non-personal injuries. I regret that sort of political answer. What has that to do with this Bill? The fact that we produced a Private Members' Bill three or four years ago which referred only to personal injuries has nothing to do with what we are doing here this morning. We are not making party politics out of this. There are no votes to be gained from this at the end of the day. This is a question of whether or not one does the right thing. The Minister does not have to listen all the time to what he is being told by civil servants. I know they have to do their job, but let us talk as politicians. Can the Minister honestly say that it is wise when we have legislation here not to go the full way and extend it to non-personal injuries? I will put on the record a couple of points made by eminent people.

Acting Chairman

I would remind the Deputy now that——

The kernel of this legislation is really on this point.

Acting Chairman

I understand that quite well. I have allowed some latitude. Whereas the Bill amends the 1957 Statute of Limitations Act it only does so in a restricted way. By reason of that fact the amendments were deemed to be out of order. As the Chair has allowed some latitude, advantage should not be taken of it, even though the Deputy may have some strong points to make. The Chair has to rule that only a certain amount of latitude is allowed when the amendments are ruled out of order. Will the Deputy please keep that in mind?

I will, of course. Like Deputy McCartan, I got a letter this morning saying that the amendment was ruled out. This amendment has been down certainly since 6 March 1991 and this is 19 June. Nearly four months later I was told that the amendment was ruled out. Like Deputy McCartan, and I am sure the representative of the Labour Party, I have been contacted by people about this issue. People get in touch with Opposition spokespersons when a serious matter like this arises, to advise us. They also get in touch with the Government and the Department to advise them. I am obliged to make the case. It was not reasonable to be told this morning that the amendment was ruled out. I respect the rule of the Chair and I will try to confine myself to the Statute of Limitations Act, 1957, but to understand the problem one has to consider what people said in the past. If an action is taken in relation to non-personal injuries, the Department of Justice will be forced to come in here with amending legislation. There is not any doubt from the advice of many eminent people that the Statute of Limitations Act, 1957, as it refers to non-personal injuries, is unconstitutional. Professor Brady and Mr. Kerr of UCD in their book on the limitation of actions in the Republic of Ireland state that to hold that the cause of action accrues before a person knows or is even capable of knowing of the damage is manifestly unreasonable and unjustifiable in principle. If one relates that sort of advice to Article 40 of the Constitution, it is quite clear that we are treading on very dangerous ground. I should like to quote from what Miss Justice Carroll had to say in the Morgan v. Park Developments case. She said that a date of damage rule was unreasonable and unjustifiable, that it produced a result that was harsh and absurd and that to bar a plaintiff's action before he knew he had one was indefensible in the light of the Constitution. Those are not my words, they are the words of Miss Justice Carroll, a very respected member of the Judiciary, in the Morgan v. Park Developments case. I should like the Minister to look at the findings in that case between now and Report Stage so that he can see that Members on this side of the House are not making these points for any political reasons. We are making these points on the grounds that we are legislating to amend the 1957 Act and referring solely to personal injuries and ignoring non-personal injuries. All the advice we have received from very eminent people clearly indicates that the present law in relation to non-personal injuries is unconstitutional and we would be failing in our duty if we did not point this out to the Minister.

The Law Reform Commission also believe that the legislation should be extended to cover non-personal injuries. The law society have advised the Dáil that there is a need to extend the provisions of this Bill to include non-personal injuries. How far do we have to go before the Minister accepts this? It makes basic common sense to me to do this. Having listened to what has been said by experts whom I respect, my colleague, Deputy Cotter, and Deputy McCartan — I have not yet heard the views of the Labour Party on this point and I shall not speak for them — we all seem to agree that the scope of the Bill should be extended to include non-personal injuries.

With regard to the point made by the Minister about the difficulties which this might cause for insurance companies, architects and so on, if he so wishes he can do what was done in Britain and put a limit of, say, 15 years on latent damage cases. However, the Minister does not seem to think that this is necessary in relation to personal injury cases. I do not accept for one minute that extending this legislation to include non-personal injuries would cause any more difficulties for insurance companies than personal injuries are already causing them. It appears from section 7 that this legislation is retrospective, which is very unusual, and it will be very difficult for insurance companies to deal with personal injuries cases. However, we are not here to worry solely about insurance companies, architects or builders; we are here to protect the interests of society and those involved in the commercial world will have to overcome the difficulties posed by this legislation. I am sure the Minister has already thought of this problem. I do not accept that extending the legislation to include non-personal injuries will make life totally intolerable for insurance companies, builders or architects.

If a builder erects a house on a foundation that is clearly faulty or acts in a very unreasonable way from day one, it would be unreasonable to expect the occupier of that house to know that the work was faulty at the building stage. He may only discover seven or eight years later that a cowboy builder had put in a faulty foundation or carried out other faulty work. This can cause immense upset to an individual who may have a big mortgage round his neck. If his house falls down on top of him and injures him personally, under this legislation he will have some comeback but if the house falls down while he is in the garden he will have no comeback. This does not make sense. If someone carries out faulty or improper work and tries to get away with it, it is irrelevant whether the owner of the house discovers this after two or five years. It does not make any difference whether it takes a person two or five years to discover whether the work is faulty. They should have some comeback and should not be debarred, as they are by the 1957 Act and as proposed under this legislation, from having some comeback.

I sincerely hope the Minister will give us a concrete assurance on Report Stage that these people will have some comeback. If he wants to think about this for a month or two and leave Report Stage until after the summer recess I have no objection. We should not pass this legislation without extending it to cover non-personal injuries.

I want to respond briefly to the Minister's response to the points raised by Deputies on this side of the House. Amendment No. 1, which I tabled as long ago as 7 March and which sought to extend the scope of the Bill, and amendment No. 15 have been ruled out of order. I understand that ruling and accept it fully. However, I understood that it was open to Deputies on Committee Stage to seek to extend the scope of the Bill by tabling amendments to extend the Title. I raise this point to query why we are being so restricted on this occasion. Because of the way the Bill has been drafted and introduced by the Minister, the issue of latent and other tortious damages cannot be pursued. I had sought in my amendment to extend the Title of the Bill so that we could discuss these issues.

I would have been happy, if one can be happy and unhappy at the same time, if the Minister had merely said that the scope of the Bill is limited, that it will be dealt with expeditiously on that basis and is a specific response to a ruling of the Supreme Court which has already been made. However, he went a little further — this is what worries me — and suggested that extending the scope of the Bill to cover non-personal injuries would have widespread implications for architects, builders and others involved in the construction industry. His response to the point raised by Deputy Barrett in relation to latent defects worries me entirely. He seemed to suggest that once this legislation is out of the way that that will be it and because of the vested interests or otherwise of those involved in the construction industry he will not be moving any further in extending the rights of people, particularly those who find after six years that their property has been poorly constructed.

I put it to the Minister that the products liability Bill which we debated recently would never have been introduced if we had adopted the attitude that it would have widespread implications for the manufacturing industry. The Minister acknowledges in the explanatory memorandum that certain provisions of this legislation might have widespread implications for the Government in that actions which had expired heretofore, being statute barred, might be resurrected. The Minister acknowledges on the one hand that certain litigations may be reopened against the State because the provisions of this Bill will require it and it is proper that it should be so but, on the other hand, he says that the Bill will have implications for architects and other elements in the construction industry which might make it very difficult to legislate in this area.

The principle should be to ensure that the ordinary man in the street is given a reasonable opportunity to bring a case before the court and not to be disadvantaged because knowledge had not accrued to him that a building was defective. The single biggest element which militates against people accruing knowledge is the latency of a defect under the rafters of a roof or the foundations in the ground which may not emerge until the cracks appear. The Law Society and others, as Deputy Barrett illustrated, argue that this principle should be applied. The ordinary man and woman in the street should be given a reasonable right to seek redress in respect of personal losses and damage and the difficulty encountered in acquiring knowledge or expertise or in amassing information should not militate against that right. I am disappointed with the Minister of State's response. If he had confined himself to the narrow application of the legislation, well and good, but his later remarks are a source of concern. It appears that his view is that we should close the door on the issue once we pass from this legislation. I would ask him to re-examine the matter and to reassure us, if nothing else, before Report Stage.

Like other speakers, I am of the view that this measure is extremely restrictive, deals with a narrow area and to some extent is a reaction to particular events. When the Government decide to introduce a Bill such as the one before the House they should examine all the issues involved because we would be wasting our time in introducing a Bill on such a narrow base if other matters could be covered. One of the matters which the Labour Party are seeking to have addressed in the Bill is ground rents, in particular the matter of arrears of ground rent.

There is agreement in the House that ground rents are an anachronism, that they are unjust and unfair. That view is strongly held by the Labour Party. Unfortunately, there is no legal definition of "ground rent". We are seeking to have such definition included in the Bill. We are also seeking to have the time limit within which one can take an action to claim arrears of ground rent reduced to two years and for both parties to meet their own costs. However the Ceann Comhairle has ruled the amendment out of order but I should point out that, according to the legal advice we have received, it would be necessary to hold a referendum before ground rents could be abolished. This would impose a great expense on the State and would be difficult, too, in terms of time. The Labour Party have come up with a formula which effectively would abolish ground rents legally so that they could not be collected.

It is my view that the Bill is too narrow. It is obvious that the Government see the Bill as their response to the need to deal with the Statute of Limitations and do not want to deal with the problems highlighted by other speakers this morning, in particular the issue of ground rents.

First I want to say that it is not my intention to get at or have a go at anybody or to make political points. I thought I had made it clear in making reference to the Fine Gael Private Members' Bill, which was similar to the one before us, that we are being consistent. I want to make it quite clear that this Bill is a direct response to the report of the Law Reform Commission report — No. 21 of 1987 — on personal injuries. Deputy McCartan said he was disappointed with my reply — Deputy Barrett also expressed similar concern — in relation to professionals. All I am saying is that it would be very foolish not to take into account the effect this measure will have on the professionals involved in the building and insurance industries in framing the legislation.

Deputy Barrett referred to the decision handed down by Miss Justice Mella Carroll in the High Court in the case of Hegarty v. O'Loughran I think——

Morgan v. Park Developments Limited.

That is correct. I refer the Deputy to the decision handed down by the Chief Justice of the Supreme Court, Mr. Justice Finlay, on 8 February 1990. He said:

After careful consideration, I find that I must disagree with Carroll J in the conclusion reached by her in Morgan v. Park Developments Ltd., that two or more alternative constructions of s. 11 (2) (a) of the Act of 1957 are open and if I reach that conclusion I must also find it impossible to conclude that two alternative constructions of the provisions of s. 11 (2) (b) of that Act are open.

He went on to refer to section 71 (1) of that Act. Therefore the interpretation of the Supreme Court is different.

Deputy O'Shea referred to ground rents and to the amendment proposed by Fine Gael. As in the case of the Deputy, we were notified this morning that the amendment had been ruled out of order. We must accept the ruling of the Chair but with regard to the amendment in the name of Deputy Bell on ground rents, and to which Deputy O'Shea referred, similar amendments are contained in a Labour Party Private Members' Bill, the Statute of Limitations (Amendment) Bill, 1991 which is at present awaiting Second Stage, in Private Members' time, in the Dáil. The amendments propose to make the collection of ground rents by landlords so difficult as to encourage ground rent lessees not to pay them and to make it not worth the while of ground rent landlords to collect them. They seek to do so by not allowing any action for recovery of arrears of ground rent after two years from the date on which the arrears became due and not allowing the court to make an order in favour of the landlord in relation to the costs of any action brought to recover arrears.

The amendments attempt to abolish ground rents without compensation by stealth. In reality they represent an attack on private property, are probably unconstitutional and would be open to the charge that they ignore our obligations under the European Convention on Human Rights. The European Court of Human Rights has held that any restriction on the general right to the protection of property must strike a just balance between the protection of the community and the respect due to fundamental rights with particular reference to the latter. According to the court, compensation terms are material in assessing whether any measure strikes a fair balance. It is hard to see any difference in principle between a proposal that would, for example, make it uneconomic for a finance agency to pursue bad debts through the courts and the Labour Party proposals in relation to ground rents.

I trust this throws some further light on the matter. I also hope that I have made it clear that the Bill is not narrow and is a response to the report of the Law Reform Commission.

I wish to take the Minister of State up on a point he made in reply to the points made by me in my contribution. He quoted the decision of the Supreme Court but it looked at the matter from a technical point of view and gave its opinion based on the law as it stood. That was its opinion and we have to respect it but I quoted what Miss Justice Carroll actually said. She gave her opinion which is different from the findings of the court on a technical point based on the law as it stands. Miss Justice Carroll said a date of damage rule was unreasonable and unjustifiable and produced a result that was harsh and absurd. She also said that to bar the plaintiff's action before he knew he had one was indefensible in the light of the Constitution. She is clearly saying that in her opinion that principle is not in accordance with the Constitution.

Had an action been taken under the 1957 Act — which we are discussing under section 1 of the Bill — in relation to non-personal injuries, the Law Reform Commission would have recommended or, indeed, the Minister would have been in here with legislation to deal with that point. It just so happens that this change has been brought about as a result of a personal injuries case, but had somebody taken a case in respect of non-personal injuries I am quite certain and so, indeed, is Miss Justice Carroll, that the Statute of Limitations Act, 1957, would have been found to be unconstitutional. Commonsense would tell you that and you do not need to be an expert in constitutional law.

When I referred in passing to having had advice from civil servants I was not referring to the two civil servants in the House, in case anybody took personal offence at my remark, I did not mean to cause offence.

I forgot to respond to that point.

As the law stands in relation to non-personal injuries, it is clear from the advice we are getting that it is unconstitutional. In response to the point the Minister made about the difficulties amending the law might cause to architects, builders and insurance companies, let me say that most of the insurance companies operating in this country are British based and Britain amended her laws, the Latent Damage Act, in 1986 and this does not seem to have put the insurance companies in Britain out of business. If the Minister wants to see this legislation in operation, Britain has had five years experience of this law in operation. They have put a 15 year stop on claims and a person cannot make a claim after 15 years. We could argue about the time limit. The principle was established in the 1986 Act and this does not seem to put architects, builders and insurance companies out of business. They are still motoring away. In fact they are making more money in Britain than they are over here. I think the insurance companies have far more problems than dealing with the extension of the Statute of Limitations Act, 1957 to cover non-personal injuries and the question of occurrence or discoverability.

My advice is that the Minister should not be fooled by that argument. As I said, the British have had five years experience of the operation of similar legislation and people do not appear to be suffering. Even if they were — and the Leas-Cheann Comhairle, who is a very fair and reasonable man who has represented the people in Finglas and adjoining areas very well for a long time, knows that what we are supposed to be doing here is looking after the interests of the people who elected us. I appeal to the Minister to take this point on board.

If I decide to buy a house I have to take out a mortgage of anything in the region of £30,000 to £50,000. My wife, if she is fortunate enough to have a job, and I have to struggle to meet our mortgage repayments. If after seven or eight years I discover the house is collapsing around my ears mainly because this cowboy builder, who made a very nice profit, was negligent or greedy and did not put in proper foundations or the roof was faulty I am debarred from taking any action against that person. Whether this happens two, five, seven, or ten years after the house was built the fact is that the builder acted in an unreasonable way from day one and should therefore carry liability for it for a reasonably long period of time. I could not reasonably know the house was faulty. When the ordinary individual buys his house he gets reports from surveyors and then gets his loan from a building society and it appears that everybody is doing his job properly. How is the ordinary individual supposed to know that the foundations of the house were faulty? How could it be reasonable to debar me from taking an action against the person who built the house seven or eight years previously? The only thing I know is that I have to satisfy the bank or building society by making my monthly mortgage repayments. We should be worrying about the ordinary individual and not the cowboys——

I acknowledge Deputy Barrett's kind reference to the Chair. The Deputy has referred to what we are supposed to be doing. The occupant of the Chair knows what he is supposed to do and I am obligated to direct Deputies to direct their comments entirely to section 1. This section is a definition section and refers to the statute of limitations. The previous holder of the Chair told me he had indicated that he would allow a little latitude but I think we have allowed more than a little latitude in respect of section 1 which defines the expression "the Principal Act" as the Statute of Limitations, 1957. Whether the Minister inadvertently referred to other matters cannot be used as an excuse——

That is fair enough, but we have been having a good discussion.

We have to keep the debate in line as required by the order in respect of Committee Stage. I know the Chair can anticipate the Deputy's co-operation.

Certainly. We would have been discussing this point under an amendment but unfortunately it has been ruled out of order and I took the opportunity to make the point of the need to amend the law now, in its entirety as we are talking about the existing Act. There is a need to amend it in its entirety especially in relation to non-personal injury cases. I do not want to stretch the goodwill of the Chair too far so I will heed the Chair's remarks.

I feel strongly about this matter. Part and parcel of what is wrong with this House and what brings this House into disrepute is that we do not have a reasonable answer when people suggest that we should use the occasion to amend and go the full hog. When something makes basic commonsense to me I tend to fight for it and in this instance I cannot see the sense of not tackling this problem which will have to be tackled in the future but in the meantime people are suffering who are entitled to the protection of the law. Finally, will the Minister give a commitment that between now and Report Stage he will reconsider his position?

I will direct my remarks to section 1 and to the Minister's response.

The Minister was out of order in commenting and other Deputies ae not entitled to follow suit, however, a brief comment please. The Deputy will have ample opportunity to make more general comment on other sections.

I will take your advice, a Leas-Cheann Comhairle. I dealt with the issue of ground rents in the context of broadening the scope of the Bill but obviously the Minister only heard this morning, like myself, that this amendment had been ruled out of order. It appears from his answer that he was not unhappy with that. The points he raised in his reply in terms of the right to private property and the right under the European Convention of Human Rights, which were his alibi for not tackling the ground rents issue along the lines of the Labour Party Private Members' Bill, ring very hollow to me. Ground rents are an anachronism and a relic of the worst excesses of landlordism in this country when a foreign power was in charge here. They have lived on. They are neither just nor fair and again interests outside the State are buying up these ground rents and are bringing our citizens to court who have refused to pay this unjust and unfair tax on the grounds of principled opposition. I believe that if other issues can be dealt with speedily in the legislation — and Deputy Barrett made this point also — we should take the opportunity to do so as this speeds up the work of this House and makes it more meaningful to the people. We could then get things done more quickly instead of hiding behind procedures and so on.

Question put and agreed to.
NEW SECTIONS.
Amendments Nos. 2 and 3 not moved.
SECTION 2.

I move amendment No. 4:

In page 2, subsection (1), line 21, to delete "the following facts" and substitute "all of the following facts where relevant".

This is merely a drafting amendment to tidy up this provision. The section relates to the whole issue of the date on which knowledge becomes available and it goes on in general terms to define what facts comprise the concept of knowledge. The section provides that the date of a person's knowledge shall refer to the date on which he had knowledge of the following facts and these facts are listed in paragraphs (a) to (e). My amendment provides that the facts should be relevant. Some facts may not have any relevance to the cause of action. The five types of fact referred to in the section as drafted are 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

(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;

I am suggesting in my amendment that knowledge of facts where relevant should be relied upon. What is relevant or not would be a matter for a judge to decide.

I am prompted in tabling this amendment by what is proposed in the Law Reform Commission's report to which the Minister has referred. The point was also raised in correspondence with me. The Minister may find the amendment acceptable.

Of the facts listed in section 2 (1), we would all agree that those in paragraphs (a) to (d) will always be relevant in every case. No claim can proceed in the absence of knowledge of at least all of those facts. The matter at paragraph (e) refers to circumstances which may be relevant in a particular case. For example, the plaintiff may not know that an employer may be held vicariously liable for the tort of an employee committed during the course of his employment. In such a case the identity of the employee and the additional facts supporting the claim will be relevant to the question of the plaintiff's knowledge. There is, therefore, no need to repeat the words "where relevant" at the beginning of the list. Perhaps in view of these comments Deputy McCartan might consider withdrawing his amendment.

If the Minister says it is almost superfluous, he might accept it since it does not take from or add to the section. Paragraph (e) might on occasion give rise to some debate as to the matter of avoidance of responsibility by a litigant. To obviate any doubt, I would urge the Minister to accept my amendment. If the Minister says that all these paragraphs are indicators of fact that will be relevant in all instances, then the inclusion of the word "relevant" does not take from that in any way. Perhaps he would be willing to include it.

The insertion of the words "where relevant" might have a certain connotation. The first four points are very clear and unless these facts are available there is not much point in proceeding. It may have some impact on the legality and relevance they would have. The advice available to me is that it would not be advisable to make this change. I regret that I cannot accede to Deputy McCartan's request.

I equally regret the attitude of the Minister but it is not a matter that should divide the House. In view of the obdurate stubbornness of the Minister, I will not press my amendment.

Amendment, by leave, withdrawn.

Amendment No. 5 is in the name of Deputy McCartan. Amendment No. 6 is related and it is proposed to take these amendments together for discussion. Is that satisfactory? Agreed.

I move amendment No. 5:

In page 3, subsection (2), lines 5 to 7, to delete paragraph (b).

My proposition is that we delete in its entirety this paragraph (b) of subsection (2) which states:

from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.

I suggest in amendment No. 6 that paragraph (a) of subsection (3) should also be deleted. That paragraph states:

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

I am concerned about the introduction of a third party and the extent to which a right of a litigant might be done down by the failure of a third party expert to aid, provide information, come to the assistance of or properly advise a litigant in the course of an attempt to assemble facts to support an action. We should keep matters simple and settled between the two parties, the plaintiff and the defendant. Because we are dealing with personal injury, the advice of medical experts comes to mind. We will not deal with the question of property because my amendment in that regard has been ruled out of order. The issue is dealt with by the law society in their submission, although not as directly as I have proposed. They attempt to address the problems that could emerge from the introduction of the third party, potentially, to the litigation. If the failure is due to the negligence of that expert, the law society make the point that if the definition were extended in the way I have proposed, which is the way they recommend, then the legal action might lie against the expert rather than against the primary litigant. That indicates the way in which this matter can become tortuous and complex. The way to deal with the issue of advice and knowledge from a third source is to avoid it entirely, to delete the subsections relating to it and leave the matters then resting on the shoulders of the primary litigent, that is the plaintiff, and dwell on the standards required of him or her in terms of assembling facts. I am concerned that the way in which the expertise of lawyers, litigants, the legal system and the profession itself can create complexities and exploit the nuances of every process and active set of circumstances.

I am reminded particularly, not only because Deputy Rabbitte has moved into the Chamber close to me, of the scales to which the balances can be thrown. One is reminded of the case he was so closely involved in, that was the Holles Street litigation involving the Dunne family from County Wicklow and the scales that were thrown up on the one hand by the hospital and all its resources and the insurance company, and the extent to which every nuance, every opportunity was seized and every device used to avoid liability descending and justice and repose being granted to the Dunne family and, on the other hand, their efforts in terms of mortgaging their home and putting themselves almost into total "hock" and ruin to pursue an issue. Those are the kinds of powers or interests that can be drawn into litigation of this sort where we are dealing with personal injury — the medical experts and advice and information that may come out of it.

I am concerned when one moves into this area and sets up the possibility that insurance companies with their resources, hospitals with their reputation, doctors with their practices, will do everything possible to slip out, slip around and be as unhelpful as possible. Rather than create that whole scenario and that possibility, let us keep matters straight and succinct between the litigation on either side and avoid this deviation and diversion into the issue of what an expert adviser did or did not do and how that would reflect upon the state of knowledge of the litigant, here the plaintiff, on any occasion.

Both these amendments seek to exclude references to the obtaining of knowledge of an injury by seeking expert advice. These references are in aid of the injured person or other person whose knowledge is at issue. To omit these references, as the amendments propose, would have the effect of making the operation of the section less certain. On one reading of the provision without the references in question, it is possible that a person who failed to obtain knowledge despite having consulted an expert might nonetheless find himself or herself fixed with that knowledge, notwithstanding that it was as a result of a failure on the part of the expert in question.

The specific references to expert advice make clear how the law is intended to operate and it is perfectly reasonable that the law should operate in the way set out in the Bill. If the Bill were drafted with the omission of these provisions it would be rightly open to criticism on the grounds that it was incomplete and left an area of uncertainty which should be spelt out in the statute.

The only argument for leaving out these provisions is that their omission would in some way absolve a plaintiff from the responsibility of seeking medical or other expert advice even though he or she could reasonably be expected to have done so. Not only is this an invalid reason for omitting these provisions, as it would seek to reward unreasonable behaviour on the part of a potential plaintiff; but there is no guarantee whatsoever that the omission would achieve that aim. All that would remain would be expensive uncertainty.

I am also concerned that the possible effect of the words sought to be deleted by the Deputy's second amendment would be to remove the protection which they give to a plaintiff who has taken all reasonable steps to obtain expert advice on the facts of the case from being fixed with constructive knowledge of a fact discoverable by seeking expert advice, but which as it may turn out, the advice does not, in fact reveal. In view of these comments I would ask the Deputy to reconsider the situation and perhaps he would wish to withdraw these amendments.

I thank the Minister for his response, considered as it was, but I would like to pursue this matter a little more. He represents the provisions in the section as providing protection for the plaintiff-litigant. I am not at all convinced of that position.

The Law Society sent their initial circular by letter of 25 January and I presume the Minister of State has received the same submission as myself and other Members. The society in their submission say of section 2 (3) (a) of the Bill, which they quote, that the committee consider that the person should be fixed with this section with knowledge if his failure to obtain knowledge of the relevant fact was due to the negligence of the expert consulted by him. In fact, the law society are arguing for an extension of what is provided in the Bill and I am quoting it simply to show the type of difficulties that could arise and the area into which we are tending to move.

The Law Society are suggesting that if the expert consulted by the litigant, the plaintiff, was in some way negligent in imparting information to the litigant, particularly of a medical condition, or whatever, because we are now talking about personal injuries having restricted the Bill in the way we have, the litigant should be fixed with constructive knowledge as the Minister describes it. Even if the litigant has acted fairly and reasonably in all respects and is let down by the medical expert then the law society argue in their submission, "Well, so be it. The defendant-litigant should not be aggrieved by this or have a way out because of that". They go on to argue that the relief for the plaintiff would be in having an action against the medical expert for failure to act properly. I do not accept the law society's position on that. I am not arguing for their proposition but I am using it merely to illustrate the pitfalls we are pushing the plaintiff-litigant into in this legislation.

Regarding the two subsections I propose to delete entirely, subsection (2) generally is an effort to define further what a person's knowledge should consist of and how it should be assembled. 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,

That is the litigant. That clearly means anything the litigant should have known and which was observable and ascertainable by him. However, section 2 (2) (b) is: "from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek". Here we see a proposition opening up. Where, after a lapse of time, a litigant comes before the court seeking damages against another party for personal injury the other party might well say, "Sorry, you are coming too late in the day. You should have known reasonably of all this heretofore. You are coming much too late. You should have got this curious non-statutory concept of health or whatever it is that is included in the subsection from the medical or other appropriate expert long before now and it is unreasonable of you to come at such a removed time". That is the problem I see opening up here and it is provided for under the vehicle of this subsection. It is mirrored again in section 2 (3) (a).

Rather than these provisions being a protection for the plaintiff-litigant, as the Minister of State suggests they might be, if anything they are opening up a whole area of potential argument and device that will undermine the position on many occasions for the plaintiff-litigant. Section 2 (3) (a) suggests: "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... that advice;".

Here the argument will be what was reasonable and what steps should the person have taken to secure the medical or expert advice? One of the recurring problems for the litigant in medical negligence cases is the assembly of facts: finding out from one section of the medical profession what was wrong with the advice or actions of another section of the medical profession. Deputy Taylor, who has arrived in the Chamber, and who is a lawyer working in this area is an undoubted expert on medical negligence generally and would agree that often lawyers have to go outside the Republic to Northern Ireland, to England, to the continent or to America to find medical experts and witnesses who will assist in the reasonable pursuit of inquiry by way of litigation against other members of the medical profession at home. Therefore, what is reasonable in this respect? Who will decide and to what extent? If a litigant had gone to a general practitioner down the road, consulted with him or her, and had been told: "it is a pain in your head, take a few panadol or whatever else and forget about it", and subsequently it proved to be a lot more, has that person been reasonable or should they have gone much further afield? Whenever we get a headache, if we are concerned that litigation might arise or that issues might surround what are reasonable steps in terms of ascertaining advice or assistance, are we obliged not only to consult our general practitioner but also to bear in mind the possibility that it might be argued later that we should have gone much further, and, as well as having taken the two panadol, gone to see a leading expert in Fitzwilliam Square? These are the types of issues which are being opened up under these two provisions. I am concerned about them. I believe the issues should be kept succinct and to the point of facts observable and ascertainable by the plaintiff litigant as provided under the provisions of paragraph (a) of subsection (2) without introducing the further issues as provided by the other subsections.

I too received the submissions from the law society and I am inclined to agree with their point. What bothers me is a case taken by, say, a personal representative of somebody who is deceased. A problem can arise as to what is reasonable and what is not reasonable. The person is not around to be questioned on whether the pain in the head was severe enough to suggest that a panadol was sufficient, in so far as a reasonable person would take a panadol, when they should have gone to see some expert. There is a problem here and I would like the Minister to satisfy us that he has thought about it and that all angles are covered. When one is trying to deal with something after the person has died and one is dealing on their behalf as a personal representative there can be difficulties in trying to establish what would be regarded as reasonable knowledge. Perhaps the Minister would address his mind to that aspect of the problem as I see it in relation to section 2.

I agree with the thrust of what Deputy McCartan has said and I fully support his amendment. There is an aspect of this matter which is crucial, and which I do not think he referred to, but possibly he did while I was not in the Chamber. The manner in which this section is drafted puts an onus on a person who has a claim — who has sustained an injury, loss or whatever — to obtain expert advice and to act on that advice. I concede that at a first glance that seems eminently fair and reasonable, but the practicalities of the situation are very different. The one aspect of this matter I want to talk about is the cost. It is very easy to say: go and seek expert advice from an expert, a specialist, an orthopaedic surgeon, architect or whatever, but first one has to contend with a number of serious problems. First, you must find an expert who is prepared to do it, but the most serious problem is that of cost. It costs money to get expert advice from any expert. I can tell the House that it costs very substantial amounts of money which would be beyond the resources of the overwhelming majority of people who are faced with the need of the service. That is why the number of actions for medical negligence, and other cases of professional negligence, involving people other than doctors is so small in this country. The reason for this is the cost of obtaining expert advice and the absence of legal aid to enable people to secure that advice.

To put an obligation on an ordinary citizen to say that their position from a limitation point of view will be prejudiced or that they may lose their rights because they have not obtained and acted on expert advice is a very serious matter, because it is tantamount to depriving them of a perfectly valid claim that they may well have.

If the Minister, while introducing this Bill, was making adequate provision for legal aid to enable the fees charged up front and in advance by these experts, I would have much more sympathy and understanding for it. If an unfortunate man or woman in the Minister's or my constituency suspects they have a claim for medical negligence — that is what we are talking about — they may wish to get the expert advice but they will not have the few thousand pounds to put up front to get that advice. Will they lose out because of this subsection if it remains unamended? I think they will. Is that fair, reasonable, or just? I say "no" that it is totally unacceptable that the absence of the money to pay the expert up front will deprive a person who has a valid claim of the right to pursue it.

Even if you have the money to put up front — and very few people have — the availability of the expert is another matter that will have to be considered here. The fact is that there is great reluctance among the specialists in the medical profession to give an opinion on a matter that would cast a reflection on one of their colleagues. I suppose that is understandable, but it does not help the person who wants to take an action and may well have a valid claim and be entitled to take it.

Many would-be litigants have had to go abroad to get experts. I have had the experience of having to telephone specialists in a particular field and asking them to help in relation to a certain matter. They asked which doctor was involved and when I told them they said they were sorry but because of the fact that he was a colleague, they could not be involved. I was turned down flat on several Occasions for this reason and, eventually, I had to go outside the jurisdiction to get a doctor to examine the person. He confirmed that something wrong had been done and, after great hassle, difficulty and a tremendous fight by the medical organisation, compensation was obtained. It was extremely difficult and costly. Why should there now be an added obstacle in this Bill? If the Minister wants to help why not tell the House that he will consult the Minister for Justice with a view to obtaining a fair and reasonable legal aid service which would enable people to seek and obtain expert advice? If that was done, I would have much more sympathy for the section as it stands.

I listened with great interest to the various contributions. It seems that the only profession which does not have a society to protect it is the political profession. All the other professions consistently protect themselves in a very co-ordinated and strong manner.

As I said, this Bill is based on the report of the Law Reform Commission. The technical details of the Bill are based on the recommendations contained in the report. We considered the document in detail and had consultations with the law society. We had detailed, co-ordinated work with the parliamentary draftsman in consultation with the Office of the Attorney General and, based on all that, the Bill was introduced. I should like to quote from page 46 of the report of the Law Reform Commission:

We recommend that in determining when the limitation period begins, a person's knowledge should include knowledge which he might reasonably have been 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, but that he should not be fixed with knowledge of a fact ascertainable only with the help of such advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice. We furthere recommend that knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty should be irrelevant.

Section 2 is based on the recommendations of the report of the Law Reform Commission on the general scheme of the Bill to amend the Statute of Limitations, 1957, and the Civil Liability Act, 1961. Those technical recommendations are on page 59 of the report and are contained in section 2. We have had expert recommendations and consultations and the Bill is framed in accordance with their views. We have gone a long way in ensuring that it is as detailed, clear and as legally fair and binding as possible.

Subsection (2) has the effect of introducing the notion of constructive knowledge, that is knowledge which may be inferred not directly attributable or expressly to the date of knowledge concept. It does so by setting out those circumstances where a person may be fixed with knowledge that he should reasonably have obtained at or by a particular time. The subsection provides that knowledge includes knowledge which a person 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. This was alluded to by a number of speakers earlier. Thus a court may treat a person as having knowledge of a particular fact if it is of the view that he should have known it or found it out. The test which the court will apply is that of reasonableness, in other words, if the court thinks that a person could not reasonably be expected to know a particular fact or that it was not unreasonable for him to have failed to seek expert advice which might have established that fact, then the court will not fix him with knowledge of that fact. This seems eminently fair.

Subsection (3) limits the court's power to attribute knowledge which a person did not have available to him in two important respects. If a person has taken all reasonable steps to obtain and, if necessary, to act on expert advice, then he will not be fixed with knowledge which could only have been elicited through such advice but which he, nonetheless, failed to acquire. Furthermore, an injured person who, as a result of the injury, fails to acquire knowledge of a fact relevant to the injury, will not be fixed with knowledge of that fact. I hope this clarifies the matter.

I will ask the Minister a hypothetical question which arises on the amendment. If a person sought expert advice from, say, an orthopaedic surgeon, and was told that the surgeon was prepared to carry out an examination and give a report but that the fee would be £1,000 and that person could not raise the money to pay him, what would be the effect of the section if he had taken all reasonable steps to obtain the necessary advice? If, some years later, he was in a position to pay a fee of that kind would the fact that he did not have the money earlier make a difference? Does the Minister understand my point?

Yes. I would not expect anybody to look for expert advice unless it was so recommended by their own legal adviser. I would not expect a legal adviser to recommend this course unless it was a very grave matter which needed expert, detailed and meticulous advice to confirm a situation. If the person did not have the money, I cannot say what a legal adviser would recommend, but I presume the court would take the factual position into account and, based on the evidence available to it, make a decision.

I listened carefully to the Minister who advanced the case that these provisions are eminently fair and should stand. They would be eminently fair if we lived in a society which enjoyed the services of an open medical profession which was easily accessible. However, Deputy Taylor supported my view that this is often not the case. It would be different if there was a comprehensive legal aid system available to people to avail of expert advice. We are not dealing with an eminently fair and open society and, therefore, I ask that this amendment be put.

Will the Minister explain what would happen if someone was on the hospital waiting list——

The waiting list we inherited from the Deputy's party?

No, the one the Government created. What would the position be if something happened the patient after the time he or she was referred to a specialist but during which he or she had not seen him? What would happen in the event of the person's death and an action being taken by a legal representative?

Deputy Barrett will have to be patient and await the resumption of business to hear the reply to his question.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
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