In the High Court case LIAM O hAONGHUSA PLAINTIFF AND DCC PLC, DAYS MEDICAL AIDS LIMITED, MURRAY SURGICAL LIMITED AND DAYS HEALTHCARE LIMITED DEFENDANTS (JUDGMENT of Mr. Justice Hogan delivered on July 19th, 2011) the net issue before the court was whether the plaintiff’s action for damages for personal injuries against the first, third and fourth defendants (“the relevant defendants”) was statute-barred.
While it was plain that the plaintiff’s negligence action was statute-barred (see https://www.morganmcmanus.com/litigation/statute_of_limitations.html , the question of whether a claim under the liability for Defective Products Act 1991 was statute-barred was at issue.
The plaintiff, Mr. O hAonghusa, alleged that in September, 2004 he was travelling in his motorised wheelchair on Milltown Bridge, Clonskeagh, Dublin 14 when the tube in the front right tyre gave out. This caused the wheelchair to topple over and it was contended that as a consequence he suffered severe personal injuries. The wheelchair had been either purchased from or supplied or manufactured by the relevant defendants.
In September, 2007 Mr. O hAonghusa made an application to the Personal Injuries Assessment Board (“PIAB”) for compensation in respect of these injuries. An authorisation was issued by PIAB on 28th January, 2008, and the present proceedings were commenced on 11th July, 2008. The plaintiff’s principal claim as pleaded was for negligence and breach of duty. The endorsement of claim on the Personal Injuries Summons also contends that the relevant defendants were in breach of statutory duty and one of the particulars pleaded is that these defendants were “in breach of the Products Liability Act”.
Whether the negligence action was statute-barred?
It was noted by the court that Section 7 of the Civil Liability and Courts Act 2004 (“the 2004 Act”) effected a dramatic change to limitations law in that the limitation period that applies in your particular case. This is a good reason for seeing a solicitor as soon as you think you may have a claim for compensation.</p> ">limitation period for actions for personal injuries was reduced from three years to two years. Therefore, the Plaintiff`s claim was already far too late, since the plaintiff’s action had become statute-barred some five months previously.
The claim under the Liability for Defective Products Act 1991
There remained for consideration a potential liability under the Defective Products Act 1991 (“the 1991 Act”). While it may be that the claim has been but sparsely pleaded in the endorsement of claim, the judge considered that the plaintiff had nonetheless sought to rely on the 1991 Act. The court was therefore obliged to examine the question of whether this claim was statute-barred under that Act.
The court noted that the limitation period governing claims of this kind is contained in s. 7 of the 1991 Act which provides:
“(1) An action for the recovery of damages under this Act shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date (if later) on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.
(2) (a) A right of action under this Act shall be extinguished upon the expiration of the period of ten years from the date on which the producer put into circulation the actual product which caused the damage unless the injured person has in the meantime instituted proceedings against the producer.
(b) Paragraph (a) of this subsection shall have effect whether or not the right of action accrued or time began to run during the period referred to in subsection (1) of this section.
(4) The Statutes of Limitation, 1957 and 1991, shall apply to an action under this Act subject to the provisions of this section.
(5) For the purposes of subsection (4)—
(a) subsection (1) of this section shall be deemed to be a provision of the Statute of Limitations (Amendment) Act, 1991, of the kind referred to in section 2 (1) of that Act,
(b) “injury” where it occurs in that Act except in section 2 (1) ( b ) thereof includes damage to property, and “person injured” and “injured” shall be construed accordingly, and
(c) the reference in subsection (1) of this section to the date when the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer shall be construed in accordance with section 2 of that Act, but nothing in this paragraph shall prejudice the application of section 1 (3) of this Act.”
The judge stated that, on the face of it, the limitation period for such actions by virtue of s. 7(1) is three years. He declined to accept the defendants argument that the effect of s.7(5)(a) of the 2004 Act is to deem s. 7(1) to be a provision of the Statute of Limitations, so that three year limitation period contained in that sub-section must be deemed also to have been amended by virtue of the amendment of that latter provision and that accordingly the principal limitation period for actions arising under the 1991 Act has also been reduced to two years.
The Court held that s. 7(1) of the Defective Products Act 1991 was deemed to be a provision of the Statute of Limitations (Amendment) Act 1991 of the kind referred to in s. 2(1) of that Act where the specific question of the running of time and the plaintiff’s knowledge of the date the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer are relevant. The court noted that s. 7(1) of the 1991 Defective Products Act provides for a limitation period of three years from the date of damage or, subject to a 10 years extinguishment provisions, the “date (if later) on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer”.
The court concluded that the specialised rules as to the date of knowledge and running of time now applied generally to the Statute of Limitations Acts by s. 2(1) of the 1991 Amendment Act are also deemed to apply to the date of knowledge and the running of time rules contained in s. 7(1) of the 1991 Act, a point which is, in any event, underscored by s. 7(5)(c).
The conclusion that the applicable limitation period for the purposes of the 1991 Act is that contained in s. 7(1) and that this provision remains unaffected by the subsequent amendment of the Statutes of Limitation did not mean that the plaintiff was not statute-barred. More detailed evidence would be required at the hearing as to when the accident occurred and, in the event that the three years had expired, whether the plaintiff could invoke the date of knowledge provisions.
The judge accordingly permitted the plaintiff’s claim under the Defective Products Act 1991 to proceed to hearing.
In considering a Personal Injury Claim therefore which may be running close to the limitation period under the Statute of Limitations a Plaintiff should consider whether his injuries arose out of the use of a defective product and whether a claim should also be made under the Defective Products Act 1991.