Supreme Court allows appeal finding plaintiff knew third defendant was occupier, barring claim under Statute of Limitations 1957-2001.

THE SUPREME COURT

522/04

Kearns J.

Macken J.

Finnegan J.

Between:

Keith Byrne

Plaintiff/ Respondent

AND

Patrick Hudson Junior, Patrick Hudson Senior

Defendants

AND

By Order Kathleen Hudson

Third named Defendant/Appellant

Judgment delivered on the 15th day of November 2007 by Macken J.

This is an appeal by the third named defendant who was joined in these proceedings, pursuant to an order of the Master of the High Court dated the 26th

October 2001. By order of the President of the High Court (then Johnson, J.) made on the 15th December 2003, the High Court directed that a preliminary

issue be heard as to whether the proceedings against the third named defendant are time barred by virtue of the provisions of the Statute of Limitations

1957 - 2001. That preliminary issue was heard before the High Court (Butler, J.), and by order dated the 23rd November 2004 the High Court held that the

proceedings as against the third named defendant were not so barred. From that judgment and the order made thereon, the third named defendant has

appealed to this court.

The High Court Proceedings

The proceedings in this case arise out of a shocking mishap which befell the plaintiff on the 17th July 1997, at a time when he was about 26 years of age.

He was visiting a younger friend of his, Alan Hudson, who was then a teenager of about 15, where that friend lived at 84 Windmill Road, Crumlin, Dublin 12.

Alan Hudson had recently returned from the United States with his mother, the third named defendant. In the United States he had purchased a paint gun

which was subsequently lawfully brought into the State. This paint gun was capable of firing paint balls or pellets and at the time paintballing was a popular

past-time. On the evening of the 17th July 1997 during the course of the plaintiff’s visit to Alan Hudson, his brother, Patrick Hudson Junior, arrived a the

premises while his mother was absent. He was approximately 30 or 31 years old and no longer lived there. It was the evidence of the third named defendant

and of Alan Hudson in the course of the High Court hearing, that Patrick Hudson not only no longer resided in the house, but was no longer welcome to

come and go to the house and did not have a key to it. According to the evidence, when he arrived at the premises he entered the house, went up stairs

and found the paint gun in Alan Hudson’s bedroom locker, whereupon he opened the window and fired paint balls or pellets, one of which struck the plaintiff

injuring him seriously, as a result of which the plaintiff is effectively blind in one eye.

The evidence in the High Court as to the commencement and service of the proceedings against the defendants was to the following effect. For the

purposes of identifying the parties, the first named defendant in the proceedings is Patrick Hudson Junior, the middle son of the second and third named

defendants and the person referred to above. The second defendant Patrick Hudson Senior is the former husband of the third defendant and at the time of

the incident in question resided elsewhere than at 84 Windmill Road, and, although this fact was not known to the plaintiff’s solicitor, but according to the

evidence, was known to the plaintiff, he had been separated from the third named defendant.

Some few days after the incident the plaintiff, quite properly, attended his solicitor, Lewis E. Citron & Company. The solicitor having charge of the file in the

matter at the time was Mr Eamonn Carney. He now practices independently and he gave evidence in the High Court. The evidence in the High Court was to

the effect that Mr Carney had carried out certain inquiries or had inquiries carried out to establish who might be the appropriate defendants in the

proceedings apart from Patrick Hudson Junior who allegedly fired the paint gun. Having had enquiries carried out, including inquiries at the Land Registry

and in the Rateable Valuation Office, proceedings issued against the first and second named defendants with the issue of a plenary summons in the usual

way, followed by the delivery of a Statement of Claim on the 20th November 1998.

Although the particulars of negligence, breach of duty and breach of statutory duty are pleaded against all of the (original) defendants, it is quite clear on the

evidence that if the paint gun was fired at the plaintiff, it was fired by the first defendant Patrick Hudson Junior, the evidence being also that he had been

charged with a criminal offence in respect of the same. Insofar however as the allegation of breach of duty including breach of statutory duty is concerned

the claim is articulated in the following terms:

I Failing to exercise any or any sufficient control over the first defendant.

II Failing to ensure that the premises of which he is owner at Crumlin Road Fuel Depot 84 Windmill Road were reasonably safe

for persons using same.

III Failing to ensure the personal safety of the plaintiff, an invitee on the premises.

IV Failing to ensure that no unlawful weapons or ammunition were stored on said premises.

V Failing to ensure that no unlawful weapons or ammunitions were used on the said premises.

VI Allowing the first named defendant to be on the said premises when he knew or ought to have known that he had possession

of a dangerous weapon and ammunition therefore.

VII Tolerating the presence of the first named defendant on the said premises when in possession of a dangerous weapon.

VIII Failing to warn persons likely to call at said premises including the plaintiff herein as invitee of the dangers posed by the

weaponry and disposition of the first named defendant.

No defence appears to have been delivered by the first named defendant.

A defence was delivered on behalf of the second named defendant in which he denied residing at the premises in question and indicated that he resided in

Clondalkin. Further he alleged in his defence that the third named defendant was the person who was at all material times the owner of and in control and

supervision of the premises at 84 Windmill Road. That defence was delivered more than 3 years after the events in question.

In his ex tempore judgment delivered on the 23rd November 2004, the High Court judge came to the following conclusions, firstly, that the preliminary issue

did not involve any consideration whatsoever as to whether or not the plaintiff in the proceedings has a good cause of action against the third named

defendant on the merits, even if that was open to question; secondly, he found that the application to join the plaintiff was outside the time permitted by the

Statute of Limitations having regard to the date of the incident, but that by reason of the provisions of the Statute of Limitations (Amendment) Act 1991 the

date of knowledge (of the identity of the occupant of the premises) was the relevant factor in the case; thirdly, he found that the plaintiff’s then solicitor Mr

Carney, having taken instructions from the plaintiff, directed certain searches to be carried out based on the information given by the plaintiff to him, as a

result of which he came to the conclusion that the second defendant Patrick Hudson Senior was the occupier of the premises, that the solicitor had been

most diligent and had gone to great trouble in the matter, and that the conclusion which the solicitor reached as to the correct defendant was a reasonable

conclusion.

Further the High Court judge found that while the plaintiff’s state of knowledge was somewhat more, because the plaintiff knew, on the evidence tendered by

the third defendant, that her marriage to the second defendant had broken up, the plaintiff was entitled to give the essential facts (which did not include the

break up of the marriage) to his solicitor and leave it to the solicitor to determine who the legal defendant should be and the plaintiff had done so. The

question which arose thereafter was whether or not the solicitor had done enough. The learned High Court judge found, as a matter of fact, that the solicitor

had done enough.

Having held as aforesaid the learned High Court judge concluded that the identity of the third defendant as the occupier of the premises, within the meaning

of S.2 of the Statute of Limitations (Amendment) Act 1991, became known on or about 20th September 2000. Events which arose after that were, he held.

not relevant to the issue to be decided, which was confined entirely to whether or not the plaintiff was entitled to invoke the provisions of the Act of 1991.

Having held that he was, the plaintiff therefore had 3 years from the 20th September 2000 within which to issue an amended writ and he had done so.

The Appeal

Essentially the grounds of appeal are six in number and can be briefly described as follows:

That the learned trial judge erred in the following manner:

(a) His finding that the plaintiff’s solicitor had discharged his obligations as a reasonable and prudent solicitor was not supported

by the evidence.

(b) In his conclusion that the plaintiff’s solicitor’s reliance on a defective Land Registry search constituted sufficient discharge of

his professional duties and obligations to pursue “reasonable inquires and investigations prior to issuing proceedings”.

(c) He wrongly concluded that there was no obligation on the plaintiff’s solicitors to conduct a search on the Folio relating to the

property at Windmill Road.

(d) His finding that the plaintiff did not have sufficient knowledge to identify the third named defendant as the occupier of the

premises was not supported by the evidence.

(e) He failed to apply an objective test in relation to the plaintiff’s knowledge concerning ownership and occupation of the

premises.

(f) He wrongly found that the proceedings against the plaintiff were not statute barred pursuant to the provisions of the Statute of

Limitations 1957-2001.

Written submissions were filed on behalf of the third named defendant and also on behalf of the plaintiff and while I have had full regard to these, I do not find

it necessary to set out in any significant detail the content of those submissions. Essentially the third defendant seeks to support the various grounds of

appeal (a) on the basis of extracts from the evidence adduced during the course of the hearing, in particular certain evidence which was not controverted;

and (b) on the basis of the correct application of case law which will be referred to in greater detail below, while counsel for the plaintiff, as respondent

considers that the central issue in the case was the reasonableness and extent of the inquiries made by the solicitor for the plaintiff. He contends that the

findings of the High Court judge were wholly correct and were based on the evidence tendered by Mr Carney in the course of the High Court proceedings,

and upon which the learned High Court judge was entitled to rely.

Conclusion

It is common case that the proceedings issued by the plaintiff against the defendant pursuant to the order of the Master referred to above were served “out

of time” that is to say outside the 3 year period ordinarily provided for by the Statute of Limitation Act 1957 in respect of a tort actions claiming damages for

personal injuries of the type alleged in these proceedings. However the provisions of that Statute have been amended, and amended in a significant manner,

by the provisions of the Statute of Limitations (Amendment) Act 1991 (“the Act of 1991”) and in particular S.2 thereof. This reads as follows:

“2. —(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends

on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references

to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:

( 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;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2) 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, 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.

(3) Notwithstanding subsection (2) of this section—

( a ) 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

( b ) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a

result of that injury.”

Given the amendment to the Statute of Limitations 1957 by the provisions of S.2 of the Act of 1991, as set out above, it is appropriate to commence a

consideration of the law by seeking to ascertain whether the plaintiff can come within the provisions of S.2(2)(a) of the Act, and whether the learned High

Court judge correctly found that he did so. The first “port of call” so to speak in seeking to determine a person’s knowledge for the purposes of S.2(2)(a) is

to discover from the evidence adduced in the High Court whether there were facts from which the plaintiff could have “observed” or “ascertained” the identity

of the appropriate defendants, in this case the third named defendant.

The uncontroverted evidence in the High Court of both of the third defendant and of Alan Hudson the third defendant’s youngest son and a friend of the

plaintiff at the time, was that the plaintiff was fully aware, as is clear from the transcript, that the third defendant occupied the premises because the plaintiff

had been a friend of Alan Hudson for some time, he had visited the house where Alan Hudson and the third named defendant lived, Alan Hudson was young

at the time, about 15 years of age or so, and was living at home with his mother at 84 Windmill Road. Further it was the uncontroverted evidence of Alan

Hudson that the plaintiff had been in the third defendants house on several occasions including on the day before the incident and that he had met the third

defendant “a couple of times” before the incident, that he had been in the house reasonably frequently. It was also his uncontroverted evidence that he had

disclosed to the plaintiff that his father and mother did not live together, he knew Alan Hudson was living only with his mother, had met his father, and had

been with Alan Hudson to his father’s house in Ballymount Cottages on more than one occasion. The unchallenged evidence of Mrs Hudson was that she

had also met the plaintiff in her own house and talked to him, that she knew him, although not well, and that he had been in the house a short time before

the incident itself.

Further it was the uncontroverted evidence of Mrs Hudson that any correspondence delivered to the house but addressed to the third defendant was given to

the third defendant and that when a man came to the house looking for the third defendant (it appears from the line of questioning that this was possibly a

summons server) she told him that neither the second nor third defendants lived at 84 Windmill Road and that she informed him where the second and third

defendants lived.

The plaintiff did not give evidence in the course of the hearing in the High Court. It appears clear however from the detailed evidence given on behalf of the

plaintiff by his solicitor Mr Carney that the plaintiff had made his solicitor aware of the fact that the property was “owned and operated by the Hudsons” as

Mr. Carney gave evidence of this, although the solicitor believed presumably from information given by the plaintiff that Patrick Hudson Senior, the second

defendant, was the main occupant in that he believed he ran the commercial element of the business.

Mr. Carney gave evidence that there had been difficulty in having the summons served on the first and second defendants and that an order had to be

secured for substituted service. That is undoubtedly so, but there was no evidence of the content of the affidavit filed in support of such application, the

deponent of which would have had to indicate the steps taken to serve those defendants, and the results of any efforts to serve either of them at the

premises in question, which information might have been of assistance to the High Court in determining the issue before it.

It would appear clear from the above evidence that knowledge that the third defendant was the occupier of the premises at 84 Windmill Road whether alone

or with others, and information that the second defendant did not reside at those premises was clearly observable or ascertainable by the plaintiff. Indeed it

was known to him. But these facts were undoubtedly also observable and ascertainable by him. Without going further, it seems abundantly clear that the

knowledge which the plaintiff might reasonably have been expected to acquire within the meaning of S.2(2)(a) of the Act of 1991 existed and was known to

him.

It is equally clear that S.2(2) includes a second provision namely that apart from facts which are both observable or ascertainable by a plaintiff, a person’s

knowledge will also include knowledge ascertainable by him with the help of another party described in S.2(2)(b) as being “ascertainable by means of help

of medical or other appropriate expert advice, reasonable for him to seek”.

In the present case a great deal of time was taken in the High Court in determining the precise steps taken by Mr Carney whom the High Court judge

considered to have been extremely diligent in his work, and there was some considerable debate before this court also in respect of this same matter. Mr.

O Tuathail, senior counsel, on behalf of the plaintiff invoked the provisions of S.2(3)(a) as a ground upon which the plaintiff, having taken all reasonable steps

to obtain expert advice, is not to be fixed with knowledge of an ascertainable fact which is ascertainable only with the help of expert advice where that

expert advice, did not disclose the knowledge required. On the other hand Mr Daly senior counsel of behalf of the third defendant, invoked the case of

O’Driscoll v Dublin Corporation (unreported, High Court, Geoghegan, J. 3rd July 1998), for the purposes of establishing that information or knowledge

acquired by the solicitor is not acquired as an expert, but that where information is acquired as an agent for the plaintiff, this must be imputed to the plaintiff

himself. I do not consider it necessary for the purposes of this case to determine whether or not, according to the English cases referred to in O’Driscoll,

supra., a solicitor is not to be considered in any circumstances as being an appropriate expert for the purposes of knowledge ascertainable on the part of

the plaintiff within the meaning of S.2(2)(a) of the Act of 1991.

It seems to me rather that the appropriate position first to be considered, at least in the present case, is whether or not the fact that the third defendant was

an occupier of the premises in question was something ascertainable or observable by the plaintiff. If it was, then the plaintiff is obliged in the usual way to

make this information available to the solicitor he employs for the purposes of enabling that solicitor to reach a view or a conclusion as to the correct

defendant to be included in any proceedings commenced on behalf of the plaintiff. I am satisfied that on the uncontroverted evidence adduced before the

High Court on the hearing of the application the occupancy by the third named defendant was fully known to the plaintiff, and was therefore both observable

and ascertainable by him, and that without any difficulty whatsoever. Further I am of the view that since the provisions of Section 2 are, in reality, an

exception to the normal provisions concerning the obligation to commence proceedings for relief in respect of a tort causing personal injuries within a three

year period, it is correct to apply the provisions of the section literally and not benignly or by an unduly lax interpretation. There is no suggestion in the Act

of 1991 that a plaintiff is in some way to be forgiven for failing to furnish to his solicitor all of the facts which are within his direct knowledge, as here, so as

to enable his solicitor commence proceedings against the correct defendant. It seems clear that, had the plaintiff done so in the present case, the

information to enable the solicitor to do just that would have been freely and readily available within days of the incident occurring. It may well be that in

certain cases, the ambit or nature of which it is not necessary to speculate upon, it would be appropriate to rely entirely upon a solicitor in respect of

matters to be “ascertainable”, whatever about “observable”, when considering Section 2(2)(a) of the Act. But that is not a position which could apply in the

present case.

The evidence being that the facts were not simply observable or ascertainable but actually known to the Plaintiff in sufficient detail to enable his solicitor

advise him of the correct defendant(s), it seems to me that while the learned High Court judge found that the instructing solicitor had been both diligent and

had carried out substantial searches and had reached an appropriate conclusion on those searches, nevertheless by failing to have regard for the plaintiff’s

direct knowledge of the true position as disclosed on the evidence, the learned High Court judge erred in law in his finding that the plaintiff did not have

knowledge sufficient to identify the third defendant as an actual occupier of the premises within the normal three year limitation period.

In the circumstances I would allow the appeal, set aside the High Court order and make a declaration that the plaintiff’s cause of action against the third

named defendant is time barred by virtue of the provisions of the Statute of Limitations 1957 – 2001. I will also make the consequential order that the third

named defendant be dismissed from the proceedings.