I move: "That the Bill be now read a Second Time". This Bill is designed to rectify an injustice, and a possible unconstitutionality, in the present law regarding the limitation of actions for personal injuries.
This injustice, and the constitutional implications of the present statutory provisions in this area, are analysed in detail by the Law Reform Commission in their report published in 1987 entitled The Statute of Limitations: Claims in respect of Latent Personal Injuries. This Bill gives effect to that report's recommendations.
Briefly put, the present law is that, with certain exceptions, where a person is injured by the wrongful act or neglect of another, he or she has three years from the date of the accrual of the cause of action in which to commence proceedings to recover damages. If legal proceedings are commenced after the three year limitation period has expired, the defendant can put a stop to them by what is known as "pleading the Statute"; in other words, by invoking the provision of the Statute of Limitations, 1957, which specifies the limitation period.
There is nothing wrong in principle with having limitation periods as such. It is in the interest of society as a whole that, if an occurrence gives rise to legal action, the action should be taken with reasonable promptness. Delay can lead to a denial of justice through the deterioration of evidence or the blurring of witnesses' memories. It can be unjust and lead to a proper sense of grievance if a person finds himself the defendant in an action which could have been commenced many years before.
I suppose it can be said that the law of limitation of actions generally illustrates the tension between justice and certainty which is a feature of any developed legal system. On the one hand there is the argument that litigation should not be unduly delayed and that parties should be clear as to their position under the law. This points to short limitation periods measured from a fixed date, with no possibility of extension. On the other hand, there is the view that such a rigid system will inevitably lead to injustice in particular cases and that this argues for longer periods measured perhaps from an uncertain date as, for example, the date when a plaintiff actually discovers that he has a cause of action.
This is the difficulty addressed by the Law Reform Commission in their report. The commission refer to the instances where injury or damage to a person does not manifest itself at all until long after the act or omission which caused the injury took place. If the normal three year limitation period has expired before the injury becomes evident, then the injured person has lost his right of action even before he knew he had such a right. That is where the injustice lies and the tension to which I have referred is stretched to breaking point.
In looking at the law in this area, the commission considered how the apparent injustice of the Statute stands in the context of the Constitution, and set out three possible interpretations as to what the state of the law is, or might be determined to be given a suitable case in which all of the arguments were opened to the court. The important message of the commission's report is that the law in this area is unclear, and possibly unconstitutional. Some of the doubts were removed in a Supreme Court decision of 8 February, 1990, in the case of Hegarty v. O'Loughran delivered since the publication of the commission's report. In that case, however, the constitutional aspects were not put in issue by the parties and, therefore, not argued before the court. Accordingly, there still remains a substantial degree of uncertainty as to the precise state of the law and the constitutionality of the statutory provision.
The Bill removes the uncertainty and the injustice by providing, at section 3 (1), that the three year period that applies in claims for personal injuries is to run from the date of accrual of the cause of action, which is the case at present, or from the date of knowledge of the person injured, if later. This latter date is known as the date of discoverability of the injury.
Section 2 of the Bill sets out what is meant by a person's date of knowledge. In order for a person to be fixed with knowledge of an injury, and therefore for time to begin to run, the person must not only know that there had been injury but also that the injury was significant; that it was caused at least partially by an alleged wrongful act or omission; the identity of the defendant; and if the defendant is someone other than the person who did the wrongful act, the additional facts supporting the bringing of the action against the defendant. Time begins to run from when a person actually knew all the relevant facts or from when he could, by reasonable inquiry, have found them out, if earlier.
The net effect of these provisions will be to remove the present injustice from the law by giving those who could not have discovered that they had a right of action within the normal period running from the time of the actual injury an opportunity to make a claim. The limitation period of three years which applies to claims of this type will now run from the time when the injured person discovered, or should have discovered, the necessary facts about his injury. The law will still operate, as it does at present, so as to discourage undue delay on the part of potential plaintiffs,
Section (3) (1) which I referred to a moment ago, can be regarded as the core provision of the Bill. The remaining provisions of the Bill are largely concerned with making the changes in the law necessary for consistency with the core provision or completeness of its effect. I will comment briefly on the more important of these.
Subsections (3) and (4) of section 3 carry the principle of the discoverability provision into other statutes which contain limitation provisions resulting to personal injuries cases.
Section 4 of the Bill deals with the situation where an injured person dies before the limitation period has expired. In such a case, an action arising out of the injury may survive for the benefit of the estate. The Bill provides that the personal representative of the deceased will have three years from the date of the death, or from the date of the representative's knowledge of the injury, if later, in which to commence the action.
This type of action, known as a survival action, can arise in any case where an injured person dies while there is still an outstanding claim in relation to the injury, whether or not the death was caused by the injury. Where the injury did cause the death, the surviving dependent relatives may have a claim under section 48 of the Civil Liability Act, 1961, against the person who caused the injury. This type of claim is distinct from survival action. Both claims may be made in the same case.
Section 6 of the Bill applies the discoverability provision to claims under the Civil Liability Act. It provides that such a claim may be made within three years of the death — as at present — or of the date of knowledge of the dependent relative for whose benefit the action is brought, whichever is later. Where there is more than one dependent relative, the discoverability test will be applied to each; and any person outside the time limit will be excluded from the action unless either there is an agreement not to invoke the defence of limitation or the person comes within the terms of the provision I am about to comment on.
Deputies will recall that when describing the present law earlier in my speech, I mentioned that there were certain exceptions to the present provision which specifies that the three year limitation period runs from the date of accrual of the cause of action. Those exceptions arise when the person injured was under a legal disability at the time of the injury. "Disability" in this context means mainly either being below the age of majority or suffering from a mental disability. Section 49 of the Statute of Limitations, 1957, specifies that in these circumstances, the three year period will not start to run against the injured person until he ceases to be under a disability.
Section 5 of the Bill modifies this provision to take account of the discoverability concept. The effect of the section is that where a person is under a disability, either when the right of action in a personal injuries case accrues to him or at the date of his knowledge, then the three year limitation period will not start to run until he ceases to be under a disability.
Section 7 of the Bill applies the new discoverability test to all causes of action relating to personal injuries, whether accruing before or after its passing and to proceedings pending at its passing. This provision is unusual in that it has retrospective effect, something normally avoided in the introduction of new law. Let us consider what the effect of this provision will be, that is, that some people who did not realise that they had a cause of action because their date of knowledge was more than three years after their injury will now in fact be able to proceed. This is precisely what the Bill as a whole is designed to do. Indeed, the Law Reform Commission, in recommending a provision on these lines, said that to provide otherwise:
...would clearly frustrate in a number of cases the objective of the proposed reform of the law.
That is from page 53 of the 1987 report. While I am on the subject, I would like to take this opportunity to record our thanks to the commission for the production of this report. As with many of their reports, this set out the background to the problem and the various approaches to it taken in other jurisdictions before canvassing the various options and setting down a clear path for legislative action. This is an invaluable service which can ease the work of the Legislature in determining how best to reform the law. I think I can speak for all sides of the House in offering our gratitude to the commission.
I commend this Bill to the House.