Before reporting progress I had signalled that I had taken an opposite view to the Minister of State with respect to the provisions under section 2 (2) of the Bill as circulated. He believed they represented safeguards and protections for the litigant or potential litigant but in my view, they have the potential of being otherwise. We have to disagree on that. As I had signalled before reporting progress, I ask that this question be put because we take opposite views, and perhaps the House should resolve the issue.
Statute of Limitations (Amendment) Bill, 1990 [ Seanad ]: Committee Stage (Resumed).
Debate resumed on amendment No. 5:
In page 3, subsection (2), lines 5 to 7, to delete paragraph (b).
—(Deputy McCartan.)
Cuirfidh mé an cheist——
Perhaps I should respond. We have dealt with these two amendments at great length, and I think the House will agree with that. At the risk of being repetitive I want to say the subject matter of these amendments was discussed in detail in the Law Reform Commission's report on the matter — the relevant pages are 45-47. The provisions in the Bill before us are modelled precisely on the commission's draft Bill at head 6 (2), page 58 of the report to which I referred earlier.
I have no doubt that if the Government had left out these provisions, as Deputy McCartan now proposes, there would be trenchant criticism for not following what the experts recommended. Such criticism would be well founded because the plain fact is that the references in section 2 (2) (b) and 2 (3) (a) are in aid of the injured person or any other person, including the personal representative.
Deputy McCartan referred to the Law Society's comments on this provision. The Law Society considered that under this section a person should be fixed with knowledge if his failure to obtain knowledge of the relevant fact was due to the negligence of the expert consulted by him. The society felt in those circumstances that the action should be against the expert. That is the recommendation of the society's litigation committee conveyed to my Department by letter dated 29 January last. That approach is clearly unacceptable.
The Government are of the view that the commission got it exactly right in this instance. That is why the text of this provision was approved.
In relation to Deputy Barrett's question about an injured person who might be referred to a specialist but due to delays had not been examined and died before an examination takes place, I would think the provision at section 2 (2) (a) only would apply to the personal representative. His date of knowledge would be fixed by reference to facts observable or ascertainable by him, for example, sight of medical documents or an appointment note with the specialist. The provision at section 2 (2) (b) would not be applicable and, of course, neither would section 2 (3) (a) apply in those circumstances.
I am saying this in order to be helpful because obviously I cannot give legal advice. It is clear, to me at any rate, that that is what should happen and the Bill does not operate in a way to defeat that objective. I could say to the House and to the Deputies opposite that I will look at the matter between now and Report Stage, but I believe there is no point at this stage. I am convinced the section as worded is both fair and reasonable, and where a plaintiff has taken all reasonable steps to obtain expert advice, the provision actually protects him from being fixed with constructive knowledge of a fact which expert advice does not reveal.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
In view of the will of the House in respect of amendment No. 5, as amendment No. 6 is related I do not propose to press it.
Amendment No. 6 not moved.
Question proposed: "That section 2 stand part of the Bill."
A number of amendments to this section were put down by Fine Gael — Deputy Barrett's and Deputy Cotter's amendment in respect of latent defects — and by the Labour Party — Deputy Bell's amendment with respect to ground rents. We have touched on the wider basis——
Deputy, I ask for your co-operation. I think the Ceann Comhairle's decision was that they were not relevant because the legislation refers entirely to personal matters. I ask your indulgence not to stray too far.
I will let matters rest for the moment.
Will the Minister give us an assurance that he will review the situation in relation to latent damages to property between now and Report Stage?
Certainly I will reflect on it between now and Report Stage.
Question put and agreed to.
SECTION 3.
Amendment No. 7 in the name of Deputy McCartan and amendment No. 13 are related. It is proposed, therefore, for discussion purposes that we take amendments Nos. 7 and 13 le chéile. Agreed.
I move amendment No. 7:
In page 3, subsection (3), line 35, to delete "two" and substitute "three".
The purport of my amendment is to extend the period from two to three years where we are fixing periods specifically. The Bill as drafted, section 3 (3), provides that an action under the Sale of Goods and Supply of Services Act should be brought within a period of two years of the date of knowledge. In this amendment and in the related amendment I am pursuing a proposition that we should simply equalise the period of time within which an action should be taken and that where we are seeking to limit the period, it should be limited to three rather than two years. I hope the Minister will accept this idea and principle at this stage. It may well be that there are consequential amendments needed to the principal Act and elsewhere to accommodate the idea, but for the life of me I have never fully understood why the Legislature in times past ever differentiated between the right of action that would accrue under the general law of tort for personal injuries and the more specific right of action that would accrue under specific legislation would accrue under specific legislation such as the Sale of Goods and Supply of Services Act, 1980. Again as a matter of general application, the same period should run and be available to the litigant from the time the action would accrue. For that reason I am proposing the substitution of "three years" for the two years stated in the Bill.
Both amendments seek to increase from two to three years the limitation period which applies where a third party wishes to proceed against the seller of a motor vehicle for breach of the implied condition that the vehicle was not suffering from a dangerous defect. The thinking underlying the two-year limitation period specified in the Sale of Goods and Supply of Services Act, 1980, in these cases was that the extension to third parties of this right to claim against the seller was a significant exception to the concept of privity of contract between seller and buyer. To expose the members of the motor trade to the risk of claims from third parties for a full six years after a sale — an unknown and unquantifiable risk — could well put the cost of insurance beyond the reach of many in the trade. The limitation period of two years diminishes the likely insurance costs.
The duration of this period appears somewhat anomalous, I agree, in the context of the usual period of six years for most torts and three years where personal injuries are involved. However, the effect of the Deputy's amendment would be to compound the anomaly by providing that in cases under section 13 (7) of the 1980 Act, the limitation period should be three years as he now proposes where personal injuries were involved but two years where there were no personal injuries because this Bill does not affect other categories.
Do not blame me for the restrictions in the Bill.
I do not think that that could be justified. I made it clear earlier that I am not here to apportion blame or to be negative to anybody. The purpose of this Bill is to extend the period within which claims for personal injuries can be brought by the application of the test of discoverability and to effect the necessary changes in that regard. It is not desired to make substantive changes in the law.
If there is to be a change, then the appropriate place is in a general Limitations Bill, which this Bill is not, or else in a Bill to amend the Sale of Goods and Supply of Services Act, 1980. Perhaps in the light of this situation Deputy McCartan would consider withdrawing his amendment.
I will certainly consider any reasonable proposition put to me by the Minister of State. I am not entirely convinced with the arguments he has advanced. I know I have interjected on this issue but I will pursue it now to get it off my chest, particularly when I am accused of being disingenuous on the basis that I am suggesting two formulae for the periods that might apply, simply by reason of the restrictive nature of the Bill before the House: the construction and creature of the Minister. I would like to avoid anomaly and by all means we should have this Bill extended to deal with all personal injuries and other tortuous actions that may arise. I pursued that issue earlier in the day without success. I am not prepared to abandon good and reasoned argument and amendment later on simply because the Minister did not see my way at the earlier stages. I would ask the Minister not to seek to leave me hanging out there simply because the Bill is too narrow.
The point is important because we are working from the point of view of the litigant — the ordinary person in the street. This is a consumer protection provision and we are trying to protect the consumer in this instance because specifically the subsection deals with the Sale of Goods and Supply of Services Act, 1980, in relation to the motor trade. We are trying to protect people who buy motor vehicles which are potentially defective. I would have thought the approach of the Minister of State would be as generous as possible to the potential victims of what has and continues to be a cowboy area of business, not only in the city but throughout the country.
Only a couple of days ago I met a constituent who complained that as she was driving her motorcar out of a shopping centre in my constituency, the car failed to stop and there was a slight collision. She took the car to a garage for repair and when it was put up on the hoist it was discovered that it had been involved previously in a very serious collision and that a certain amount of work had been done to cover up the defects which were visible on the chassis and the basic substructure of the vehicle. It was a potentially lethal vehicle and, fortunately, failed at a time when there was not a great deal of speed involved.
Whenever one comes to deal with the issue of the sale and passing on of motor vehicles the whole conundrum of latency and the ingenuity of a section of that motor trade to cover up previous history, to interfere with speedometers and so on, looms large before us. In addressing the right of action of litigants, once accidents occur, we should err on the side of generosity. Three years was the minimum period in the 1957 legislation that applied to general personal injuries and I propose we adopt that period when dealing with restricted legislation dealing with personal injuries. We should not deviate from that.
The Minister has given some explanation that if you were to extend two years to three years in the motor trade that suddenly the whole trade would collapse, that it would make it terribly difficult for people to consider selling motor cars — if I understand what he suggests — and the insurance industry would increase their premia out through the roof. How often in this and other debates when dealing with the right of action of litigants will we hear, from whatever quarter, whatever angle or repository of the Minister's area of advice, about the insurance industry, the increased premia and pricing out of the market of any potential for people to take out insurance on their motor cars? At some stage someone, somewhere in Government, has to address this issue and lay it to rest once and for all. I am of the view that the only way to do it is to close down the private market in this area and establish what has on occasions been close to a national insurance service in terms of motor vehicles. We came close to it with the collapse of the PMPA and the other insurance company involved. It is time we stopped representing and presenting the inability of Government to control the pricing area of the insurance industry towards private motor vehicles as a reason for and a basis against doing anything constructive in this area. Too often we have heard that argument and it is trotted out here again.
In cases of personal injuries the time in which action can be taken under the provisions of the 1957 Act is generally three years and the same should apply in this case. Breach of contract is, to some degree, central to this issue and it provides for a longer period in which actions can be taken. I believe that two years is much too short and is too restrictive. The extension I am suggesting, from two to three years, is not unreasonable. I do not accept the Minister's suggestion that that will make the market in the insurance area impossible. I have no doubt that it will not act as a disincentive to the motor trade to continue in existence.
I do not have a copy of the Sale of Goods and Supply of Services Act with me but surely the point made by Deputy McCartan is a fair one. What we are talking about here is personal injuries arising from negligence on the part of someone. The liability is not absolute so far as one must prove there was negligence on the part of the person selling the car. I maintain, that, no matter what business you are in, if through gross negligence somebody receives a personal injury and that can be proved in court, then we should err on the side of the person who suffered the injuries. Motor vehicles are very dangerous items of equipment. Part of the problem insurance companies have at present is that there is no compulsory testing after five years. If we are so concerned about insurance premiums — and rightly so because of the cost of insurance in this country — we should be doing things of a practical nature that would prevent accidents occurring, prevent injuries happening by imposing restrictions such as compulsory testing of motor vehicles after five years to check whether they are roadworthy. Where somebody engages in a business and through negligence causes personal injury to others, we have a responsibility to the people who suffer those injuries. What we are really talking about here is negligence on the part of somebody engaged in the business of selling motor vehicles. When an ordinary consumer walks into your garage and you assure that person the car is in good order, has not been involved in accidents, is in good mechanical order and is not dangerous, the ordinary person does not have the skill or the expertise to examine the vehicle and, thereore, the transaction involves trust. Most people in the motor industry are honourable, do a job properly and are not unscrupulous in their day to day business activities but, if somebody deliberately misleads a member of the public as a result of which the consumer suffers personal injuries, liability should be borne by the person who caused the injuries.
We should not be worried about the effect this would have on insurance costs; I started my working life in the insurance business — I am still in it — and I know an insurance company will always look at the moral as well as the actual risk. The moral risk involves the kind of person to whom cover is being given and part of the process of deciding whether to accept the risk is to look at the person proposing the risk as well as the risk itself. Insurance companies in those cases should be careful — indeed they are careful — not to give cover to people who behave in an unbecoming and unacceptable fashion in their day to day business.
I stress that we should not give the impression in the House that all persons engaged in the motor industry are gangsters or cowboys, they are not. However, if someone misleads the public by selling a vehicle which is unfit to be on the road and as a result another person suffers serious personal injuries, that person carries not only a heavy responsibility on their shoulders but also a tremendous liability for which he should answer. It will make insurance companies more aware of the moral risk aspect of the case being presented to them as well as the risk itself. Unless I am misreading the Sale of Goods and Supply of Services Act, 1980, it is not a qustion of absolute liability, one must also prove negligence on the part of a person.
We are talking about someone behaving in a negligent fashion. If that is the case and personal injuries are caused to others, account must also be taken of the rights of the individual who suffered the injuries. I do not see anything wrong with Deputy McCartan's proposals, indeed, I congratulate him for bringing it to our attention. I am not concerned either about its effect on insurance premia because, as I said, it would refer to a limited number of people who, if they behave like that, should not be in business in the first place or given insurance cover.
I should like to clarify Deputy Barrett's remarks. I certainly did not wish to give the impression that the whole trade had to be reined in. I am concerned about people in the trade who, through misinformation, sleight-of-hand or deceit, perpetrate negligence and can be the cause of accidents to the person who buys the motor car. I do not want to suggest that it is rampant or widespread but we should be erring on the side of generosity in regard to this matter. I cannot accept that where negligence has been proved and where there is an accident causing personal injury to someone through the sale of a motor car that the market will be thrown out of kilter by the extension of the period from two to three years within which a litigant can bring an action. Three years is the general period provided for under the 1957 Act for taking an action in regard to personal injuries.
The Minister of State advanced reasons earlier for including the clause of two years. Under the 1980 Act it is the single shortest period in the limitation code of which I am aware for personal injury actions but a negligent motor trader should not be given that extra protection. I do not believe it will have major reverberations for the trade, generally speaking, and we should equalise the provisions in regard to personal injury actions. I ask the Minister to accept the proposition that we increase the period from two to three years because it will not make a great difference. It could, on occasions, provide relief for an injured litigant who did not move quickly enough or did not realise what he should have done. I hope the Minister will accept the decision in the spirit in which it is advanced.
Deputy McCartan made a very good case and has been ably supported by Deputy Barrett. Subparagraph (3) states:
Notwithstanding section 11 (2) (d) (inserted by section 13 (8) of the Sale of Goods and Supply of Services Act, 1980) of the Principal Act, an action for damages under section 13 (7) of the said Act of 1980 which consist of or include damages in respect of personal injuries to any person may be brought within two years of the date of knowledge of the person injured if that date is later than the date on which the cause of action accrued.
Section 13 (6) of the 1980 Act extends the benefit of the implied condition enjoyed by the buyer of a vehicle under subsection (2) to any person lawfully using the motor vehicle, who suffers loss. The Society of the Irish Motor Industry and the Confederation of Irish Industry expressed strong reservations about the extension of the concept of privity of contract in this subsection at that time. The Houses of the Oireachtas in 1980 saw fit to impose a two year limitation period in these cases, that is, where a person using a car with the consent of the buyer suffers loss as a result of the implied condition in section 13 (2) of the 1980 Act, it maintains this differential as against the actual purchase of the car because of the legal doctrine of privity of contract. An amendment was agreed at that time changing the situation originally proposed in the Bill from six years to two years. We are again consistent in this Bill and the essence of good legislation must be consistency, particularly when it is modern and relevant. The Sale of Goods and Supply of Services Act, 1980, is only ten years old. We must maintain our consistency and the House will probably accept it.
Ten years is a considerable period and I cannot remember what I was doing ten years ago. I was a long way from thinking that I would be addressing this House as a legislator.
Like myself.
Let us have regard to that momentous change in circumstances and realise that it is now time to look at the specific provisions of the 1980 Act. We must realise that times and attitudes have changed.
The Minister highlighted another inconsistency because the owner of a new or second-hand motor car suffers an injury as a result of a defective vehicle he or she will have right of action within a period of three years from the time of the accident whereas someone lawfully using the motor car, with the consent of the owner, will only have a period of two years. Why should there be a difference? The Minister has advanced the reason that we were in some way invading the general terms of the privity of contract principles, but are we working this legislation from the point of view of protecting the consumer? Could the lawful user not be described as a consumer in the same way as is the owner? Should the seller or supplier of a motor vehicle not have the same duty to the owner as to all potential users of the motor vehicle? Are we saying that just because somebody spends several thousand pounds on a motor car he or she at their peril pass it on or consider allowing other people the right to use it? There is as much inconsistency there as the Minister might argue there is consistency in the cause he is advancing.
The whole development in this area in the last ten years has been against the notion of a restrictive policy or doctrine of privity of contract. We are now moving from a commercial society that has protected in the first instance, the manufacturer, supplier and distributor to a new philosophy that recognises that the consumer, the user and the buyer are of equal importance in the commercial and social life of our contract laws. I do not believe that 11 years later the same arguments can exist that the privity of contract notion is so restrictive in its general application as to require us to be as restrictive as is being proposed here. It is time to change, and if the 1980 Act requires amendment perhaps we should consider that at another time. That was one of the first concessions I made when I moved this amendment.
In this debate we should be working in the mood and philosophy subtending this legislation recognising the position from where we are coming in regard to the protection of the consumer and purchaser. Certainly there should be equality of rights of the lawful purchaser on the one hand and the lawful user with the purchaser's consent on the other hand. I see no reason, based on the restrictive principle of privity of contract, for having a differentiation. I urge the Minister to reconsider this matter before Report Stage or, alternatively, I ask the House to decide the issue.
I have listened with interest to the very convincing efforts of my colleagues on this matter, particularly Deputy McCartan. As somebody who worked in a professional capacity for a long time for both vendors and purchasers I have no doubt that without purchasers there would be no need for vendors and without consumers there would be no need for traders, but, of course, we must always remember the old adage of caveat emptor. That is very important.
It is as old as where it originated from.
Perhaps.
It is time to move on.
I have no difficulty in taking on board some of the recommendations and I am prepared to have another look at the matter. We are prepared to have discussions on this matter with the Department of Industry and Commerce. We will bring the debate to the attention of the Minister and the officials in the Department. We will take legal advice on it and if we feel we can marry all the ideas, commitments and expressions pertaining to further protection for the consumer we will come back with a more solid amendment for Report Stage if the House agrees.
Amendment, by leave, withdrawn.
Question proposed: "That section 3 stand part of the Bill."
I ask the Minister to very briefly address this section which deals with limitations of actions. Subsection (1) refers to "personal injuries to a person caused by negligence, nuisance or beach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision)". I wish to join with the other Deputies in expressing my reservations about the narrow way in which the legislation has been drafted. Deputy Barrett sought to deal with the issue of latent defects, I addressed the issue of tortuous actions and Deputy O'Shea dealt with the question of attempting to introduce the issue of ground rents into the legislation.
The debate on this Bill has drawn to our attention a matter that needs more consideration by the Department of Justice, sooner one hopes rather than later. The Principal Act of 1957 is the grounding legislation in this area. It is time we considered this matter again. At a time when very good legislation in this regard has been enacted in our neighbouring jurisdiction this House should be asked, as I have said, sooner rather than later to address general issues in this area of the law. The propositions contained in subsection (1) are very restrictive and perhaps, necessarily so because we are responding to a particular judgment of the Supreme Court. It is welcome that the House can respond to that judgment. I know there are many lawyers and litigants who are looking forward to the passing of this legislation. We hope the Minister will come back sooner rather than later with a broader amending Bill if not a new Bill dealing with the issue of limitations of actions generally. We can then address those other urgent and important issues that Deputies Barrett and O'Shea mentioned earlier.
Question put and agreed to.
Amendment No. 8 not moved.
Section 4 agreed to.
SECTION 5.
Amendments Nos. 9 and 12 are related and it is proposed, therefore, that they be discussed together, with the agreement of the House. Is that agreed? Agreed.
I move amendment No. 9:
In page 4, subsection (1), line 21, after "right" to insert "first".
In some respects this is a drafting amendment. It was prompted by a submission of the Law Society who suggest that the section would be much tidier and more succinct if the word "first" was inserted immediately before the word "accrued". I suggest that the word "first" be inserted after the word "right" on line 21. This proposal is worthy of consideration. I will quote from the submission of the Law Society of January 1991, and repeated in a submission of May 1991, to which the Minister referred. I quote from paragraph 4:
The Committee felt that the word "first" should be inserted in section 5 (1) immediately before the word "accrued" in line 21 of page 4 of the Bill. Section 49 (1) (b) of the principal Act is similarly worded and it is thought that there should be a consistency in that regard.
The Minister, today at least, is a very substantial proponent of the concept of consistency, so I am sure he will have no difficulty in accepting this amendment.
Deputy McCartan, by tabling his amendment, provoked a further examination of section 5 of the Bill. He is indeed correct in saying that the word "first" is missing before the word "accrued". We only disagree — and it is hardly worth calling it a disagreement — on where the missing word should go in.
To speak of the time when a right of action first accrued to a person, which would be the effect of the Deputy's amendment, is a redundant use of the word "first". This is because once a right of action accrues to a person, it stays accrued; that person cannot accrue the same right a second time. The best way I can put this is that the accrual of the right of action can best be thought of as leaving an indelible mark or a sign which lasts forever.
On the other hand, the Government amendment uses the word "first" in a different context, this time to denote that a right of action accrued to one person before it accrued to another. Sections 5 (1) and (2) are the equivalents in this Bill of sections 49 (1) (a) and (b) of the Statute of Limitations Act 1957. The reference to the right of action first accruing occurs in paragraph (b) of the 1957 provision; it should accordingly also occur in section 5 (2) of the Bill. The Government amendment provides for this.
Perhaps Deputy McCartan might withdraw his amendment No. 8 in favour of Government amendment No. 12. What he wants to achieve could be achieved through that amendment.
I am happy to do so. There is no credit due to me at all on this issue.
The officials could give the Deputy assistance.
Amendment, by leave, withdrawn.
We now come to amendment No. 10. Amendment No. 11 is related to that amendment. It is therefore proposed, with the agreement of the House, to discuss amendments Nos. 10 and 11 together.
I am happy with that proposal. I move amendment No. 10:
In page 4, subsection (1), lines 25 and 26, to delete ", but section 49 (1) (c) of the principal Act shall apply accordingly".
Again I would class this amendment in the general field of constructive amendment, amendment to merely tidy the legislation. I believe the phrase: ", but section 49 (1) (c) of the principal Act shall apply accordingly" to be somewhat superfluous, if not restrictive, and I hope the Minister will take on board my intention by accepting the amendment.
The effect of the provision in section 49 (1) (c) of the Statute of Limitations Act, 1957, is to prevent a potential defendant from the danger of legal action indefinitely into the future as a result of successive extensions of time by reason of disability. It is a perfectly reasonable provision: it cannot be in the public interest that the potential for litigation arising out of a particular fact should survive indefinitely. It is not a provision peculiar to Irish law. As I am sure Deputy McCartan would agree, a similar provision exists in the law of at least one neighbouring jurisdiction.
It is not only reasonable, but necessary for the sake of consistency with existing law, that the provisions of section 49 (1) (c) apply to the new provision in this Bill applying the date of knowledge principle to the situation of potential litigants under legal disability. I have already said that this Bill is not designed to break new ground in relation to the general law on the limitation of actions. Consequently, I regret that I will be unable to accept Deputy McCartan's amendment. I hope that he will understand and perhaps withdraw the amendment.
I am a little disappointed at the Minister's response. The reason I pursued the amendment in the first place is that legislation should work from the point of view of the litigant "consumer". Legislation should be made in the first instance from the point of view of the man-in-the-street who is to be protected by that legislation. When drafting provisions the House should always seek to err on the side of generosity.
I do not understand why the House should seek to limit the rights of persons when injury and personal loss have accrued. Section 49 (1) (c) of the Principal Act does not introduce a degree of limitation, but I am not so sure that it should be carried over into 1991 general legislation. Section 49 (1) (c) of the Principal Act states:
Where a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under a disability, no further extension of time shall be allowed by reason of the disability of the second person.
In this instance we are talking about people with mental disability. I suppose that in some respects a physical disability could act to deny people the opportunity to accrue the knowledge that the Act required, although it is very hard to envisage circumstances in which that would ever come into play at all. However, in the limited possibilities of two people in sequence suffering from a particular disability then we as legislators should be generous and work to try to accommodate all eventualities. Disabilities and deficiencies are never willed or willingly brought upon any member of the community. That being so, legislators should never work in any way to create a disadvantage for those unfortunate people.
To accept the general approach of a spirit of generosity and to accept the need to be fair is to allow the general proviso that exists in all such actions of a discretion of the court to decide whether or not in particular circumstances it would be fair or unfair to any litigant or any defendant party to have to answer a claim two generations or beyond of disability.
For that reason I suggest that the restrictive words in section 5 should not be included. Section 5 (1) should stand without reference back to section 49 (1) (c) of the Statute of Limitations Act. The amendment probably concerns the occasion of rarity and for that reason might seem not to be an issue of great moment. It is certainly an issue on which I am not going to fall greatly out of favour with the Minister but, nonetheless, it was important to take the time to thrash out the reasons for borrowing from the principal Act such a restrictive attitude. People should not be penalised for disability and when no other injustice is created — and any court could rule on that — then the right of action should be allowed to run until someone with firmness of mind takes it up and presents it to the court. At that stage the court should be allowed to decide whether any particular impediment or injustice exists. Even though I talk about a rare occasion, there could even be within that occasion a very short time involved. It could pass from one person to another equally suffering a disability rendering them incapable of launching an action. A matter of months, if not years could be involved. For example, if one year or more outside the normal period, one was to be presented with the proposition that nothing has happened because people had been suffering under a disability, why then say to a person of sound mind and body who says there is a cause of action, that they are a year too late, a month too late or whatever, and that had they been fit and well the action could and should have been taken a short time previously?
Perhaps we are taking too quickly and too easy an attitude. I know this is something that might happen rarely, but rare occasions can be as oppressive for the person involved if that set of circumstances should visit their doorstep.
Subsection (1) of this section is, in effect, a replacement for section 49 (2) (a) of the Statute of Limitations Act, 1957. Part of section 49 (2) (a) was found unconstitutional in the case of O'Brien v. Keogh in 1972 which is reported in Irish Law Reports 144. That was the provision which removed the benefit of the suspension of time from a personal injuries victim under a disability if, at the time when the right of action accrued, he was in the custody of a parent. The remaining provisions of section 49 (2) are superfluous in consequence of the constitutional decision. Subsection (4) of this section accordingly repeals the entirely of section 49 (2) of the 1957 Statute.
Under Part III of the Statute of Limitations, 1957, where a person is under a disability when a right of action accrues, the limitation period — three years in the case of actions involving personal injuries — does not start to run until the person ceases to be under a disability or dies, whichever is earlier. "A person under a disability" in this case means either — (a) an infant, i.e. a person who has not reached the age of majority — majority is attained on reaching 18 years or on earlier marriage; (b) a person of unsound mind; or (c) a convict subject to the operation of the Forfeiture Act, 1870, where no administrator or curator has been appointed — this applies to those who are serving sentences of penal servitude; for the duration of sentence a convict is unable to bring a legal action, making a contract or dealing in property in his own right. Such activities are done only through an administrator appointed by the State or by a curator appointed by the courts on application by an interested party. This is the only difference of any significance that remains between a sentence of penal servitude and one of imprisonment; modern statutes creating offences now provide only for imprisonment, and there are proposals in course of development to abolish penal servitude as a separate class of punishment.
Section 5 (1) of the Bill provides that where a person is under a disability either at the time when a right of action involving personal injuries or for wrongful death accrued to him or at the date of his knowledge of the injury, then the three year limitation period will not start to run until the person ceases to be under a disability or dies, whichever is earlier.
Section 49 (1) (c) of the Statute of Limitations Act provides that, if a right of action accrues, on the death of a person under a disability, to another person who is also under a disability, no further extension of time will be allowed by reason of the second person's disability. No change is being made in this provision.
That section is being maintained because to do otherwise would make a very important change in the law which is not justifiable.
Question: "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 11 not moved.
I move amendment No. 12:
In page 4, subsection (2), line 28, after "action" to insert "first".
Amendment agreed to.
Amendment No. 13 not moved.
Section 5, as amended, agreed to.
SECTION 6.
I move amendment No. 14:
In page 5, subsection (3), lines 4 to 6, to delete all words from and including "the court" in line 4 down to the end of the subsection and substitute "the action may proceed on behalf of all persons otherwise entitled to claim subject to the other provisions of the Act herein.".
The general provisions of the subsection are acceptable to me. However, I am concerned that, where a defendant is entitled to make a case that is provided for under the subsection, we should contrive a device that ensures that it is not an issue that is taken up on the date of the hearing thereby allowing a defendant to slip free of any action employing this subsection. That is why I am putting forward this amendment. What I have in mind is that all the parties would be joined for the substantive hearing, and issues of who is and who is not at fault would not be allowed to be taken up at the ultimate hour of the process when the action comes to hearing. It is to avoid people evading responsibility by using a technical device that might not otherwise be available to them.
I appreciate that Deputy McCartan's intention in proposing this amendment might be to simplify the working of the section. I presume that it is also his intention that subsection (4) of the section which refers to the direction to be given by the court in the portion of subsection (3) to be deleted by his amendment is also, as a consequence, to be deleted.
However, in this case I do not think simpler means better as the Deputy's amendment will not achieve what I think we are all agreed should be the desired result. That desired result can be expressed as follows: if in any fatal injuries claim there are any dependants of the deceased person whose claims would be ruled out by a defence of limitation under 6(1) of the Bill on its own, then each dependant's position should be looked at separately. The court will not exclude a dependant from claiming in these circumstances if the provisions of section 5 would have the effect of allowing the claim proceed in spite of what section 6(1) says or — and these are important alternatives — if there has been an agreement between the parties not to raise the defence of limitation or any other way in which the court is satisfied that the limitation defence would be defeated.
The Deputy's amendment runs the risk of eliminating from the Bill these two important provisions which are provided for expressly at section 6(4). Thus, while the amendment would read more simply, it is clear that the result we all want is not quite as simple as it looks. The provision in the Bill as it stands does achieve the desired result and there is doubt if the Deputy's amendment would do so. In the circumstances I think it best that we stick with what we know will work even though it may not be as simply expressed as the House and Deputy McCartan would like.
I accept the Minister's explanation and will not pursue the amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill".
The Law Society posits a reasonable query in respect of subsection (4) where they say they are at a loss to understand in what circumstances this might apply. I am somewhat at a loss too, and so that I might respond to subsequent inquiries from the society armed with the necessary information, perhaps the Minister could tell us in what circumstances he believes subsection (4) would apply.
The purpose of subsection (4) is to apply the disability provisions in section 5 of the Bill to fatal injuries cases. Thus a minor who was a dependent relative of a deceased person would, by reason of section 6(4), be entitled to have a claim under section 48 of the Civil Liability Act proceed, notwithstanding that it was outside the three year period from cause of action or date of discovery if it comes within section 5 of the Bill. I trust that this will assist the Deputy in advising the Law Society.
Can the Minister give an example? Is he saying that if somebody is nine or ten years old when his father is killed, he must be 18 before he can take an action?
To clarify that, a minor who is a dependent relative of a deceased would by reason of section 6 (4) of the Bill, be entitled to have a claim under section 48 of the Civil Liability Act proceed, notwithstanding that it was outside the three year period from the cause of action or date of discovery, once it comes within section 5 of this Bill.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill".
Is this the first time that retrospective legislation is being passed in this area? I am not objecting to it, but the Minister spent a lot of time this morning talking about the effects this would have on insurance companies and on insurance premiums. Section 7 of the Bill is the one section which will cause problems. I would like a comment from the Minister on whether this may cause problems for the people he was worried about earlier.
I commend the decision of the Minister to include this provision in the legislation. I do not accept the view of the Law Society that this will inevitably prove to be the tip of the iceberg. It will address a small number of cases in which people left it too late to bring an action. They will have an opportunity now to review their position in the light of this legislation. This will perhaps address the specifics of the case that led to the ruling of the Supreme Court and will allow the parties to that action to have the issues determined by a judge of the High Court in due course.
All of us who have been close to the workings of the legal profession will have encountered hard luck, sad cases where people had not moved quickly enough because they did not realise in time that they had a cause of action to seek compensation for bad personal injuries and they lost out. They may now have such an opportunity. This Bill will not open the floodgates. It is a very reasonable provision. It is, as Deputy Barrett suggests, if not unique, certainly an unusual provision in legislation of this sort. I welcome it and congratulate the Minister for including it in the legislation.
I have no problem with it.
It would be unconstitutional to have retrospection in criminal law, however we are dealing with civil law here. The cause of this is to have retrospection to improve the situation where there has been some doubt in civil cases. I agree with Deputy McCartan that this is positive legislation and that it will not open the floodgates. It will be of major assistance to people in reaching a positive conclusion to their problems.
Question put and agreed to.
Section 8 agreed to.
Title agree to.
Bill reported with amendments.
When is it proposed to take Report Stage?
On Tuesday week, subject to agreement between the Whips.
Report Stage ordered for Tuesday, 2 July 1991.