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Lawless v. Dublin Port and Docks Board [1998] IEHC 41; [1998] 2 IR 502; [1998] 1 ILRM 514 (27th February, 1998)
THE
HIGH COURT
ADMIRALTY
(CIRCUIT
APPEAL)
1997
No. 23 C.A.
BETWEEN
CHRISTY
LAWLESS
PLAINTIFF/APPELLANT
AND
DUBLIN
PORT AND DOCKS BOARD
DEFENDANT/RESPONDENT
Judgment
of Mr. Justice Barr delivered on the 27th day of February, 1998
.
1. The
plaintiff/appellant is a ship's engineer who is and was at all material times
employed by the defendant, the harbour authority for the port of Dublin, as a
crewman on its tug "Cluain Tarbh". On 10th December, 1994 the tug was engaged
in towing another vessel. It is alleged that owing to the negligence of the
master for whose conduct the defendant was responsible, the tug collided with a
quay wall in Dublin port in consequence of which the plaintiff was thrown
across the galley of the tug thereby sustaining personal injury to his back.
2. The
proceedings were instituted on behalf of the plaintiff by civil bill dated 2nd
February, 1996 in the Dublin Circuit Court. In its defence the defendant
raised preliminary issues on foot of Section 46 of the Civil Liability Act,
1961 contending that:
(a) the
plaintiff was out of time in launching his action, and
(b) in
the particular circumstances the court ought not to extend time for so doing.
3. These
issues were tried by Matthews J. in the Circuit Court and by order made on 21st
January, 1997, he held that:-
"1. The
plaintiff's claim herein was statute barred pursuant to the provisions of
Section 46(2) of the
Civil Liability Act, 1961 as a result of the failure by
the plaintiff to bring his proceedings within a period of two years as
prescribed by the section.
2. That
there was nothing in the circumstances of the plaintiff's case which would
bring it within the ambit of
Section 46(3) of the said Act."
4. The
plaintiff/appellant appealed the foregoing order and the matter came on for
hearing by O'Donovan J. in this court on 15th December, 1997. He decided that
as the questions at issue raised important points in maritime law, the appeal
should be transferred to the Admiralty Court and he directed the parties to
furnish written submissions for the benefit of the court. The issues were duly
argued before me on 25th and 26th February, 1998. There was no dispute on the
facts which are set out in the affidavit of the plaintiff, the relevant
portions of which are as follows:-
"5. I
say that on the 10th day of December, 1993, I was on duty on board the
defendant's tug, "Cluain Tarbh" in the port and county of Dublin towing the
ship "Fontana" when the tug collided with the quay wall thereby throwing me
across the galley of the tug causing injury to my left lower back. In these
circumstances, I say that my claim is not a maritime case as comprehended by
the Act referred to, and is not an action maintained to enforce a claim for
damages or lien, but is a claim for personal injury against my employer for a
collision with a quay wall occurring within the jurisdiction of this Honourable
Court.
6. ........
I attended Dr. Daly on the 16th day of December, 1993 with muscular injury to
my shoulder-blade and chest. He prescribed Ibuprofen 600 mg. three times a day
and asked me to rest but I told him that I would continue at work. I
continued...... and my symptoms developed into a chest infection in January
1994, and I was also anxious at work particularly in bad weather. I attended
Dr. Daly on the 17th January, 1994 and again on 10th May, 1994 because of the
persistence of the pain. Dr. Daly referred me for x-rays and I was relieved to
be told that my heart and chest were normal and that no rib fracture was seen.
My symptoms settled at that time and I expected to make a full recovery.
However, I continued to have pain whenever I would exert myself and in March,
1995 I contemplated seeking compensation for my injuries. My solicitor wrote
to the defendant on the 10th March, 1995, and received a reply from the
defendant dated the 5th May, 1995, stating that the owners of the "Fontana"
were not (sic) responsible for any accident or injuries sustained.
7. I
say that I did not pursue the matter further at that time as I felt that I was
getting better over the summer of 1995 and my real concern all along was to
recover from the injury and continue at work. However, in late October 1995 I
was waiting at the quay side to go on duty on the tug which was approaching the
berth. I noticed that there was a work-raft moored in the berth which would be
in the way of the tug. To assist the tug, I moved the raft away from the berth
by pulling the raft along the quay-side by its mooring rope. This was a
perfectly ordinary task for which I should have been well able but the pain in
my right side and in my left lower back came back and I was subsequently
obliged to go back to Dr. Daly on 28th October, 1995, with respiratory
infection, muscular pain and discomfort.
8. I
was prescribed anti-inflammatories and antibiotics but these symptoms persisted
and I began to realise that my injury was much more serious than I had believed
and that I was not going to recover as easily as I had expected. I also
realised that I was going to have to proceed with my claim for injury......
9. In
these circumstances, I say and believe that I was justified in my reluctance to
sue and in not precipitating litigation. On the other hand, I say that the
defendants have not been prejudiced in any way because statements were made to
the defendants at the time of the accident by each member of the crew of the
tug and I did, in fact, send them a solicitor's letter on the 10th March, 1995
when I first contemplated litigation."
5. That
letter was from the plaintiff's solicitor to the secretary of the defendant
Board in which he referred to an accident on the tug in December, 1993 and
contended that it was caused entirely by the negligence and breach of duty of
the Board, its servants or agents. He called on the defendant to admit
liability and to compensate the plaintiff for the injury, loss and damage he
had sustained. It will be noted that the plaintiff's action commenced two
years, two months and twenty-three days after the happening of the accident
which is the subject matter of the proceedings.
THE
ISSUE
Section
46 of the
Civil Liability Act, 1961 (the Act) is contained in part III which
relates to concurrent wrongdoing and it has a marginal note "Maritime cases".
Sub-section (1) relates to damage caused by the fault of two or more vessels
which results in damage to one or more of them or to another vessel or to the
cargo of any of them or any property on board. Where an action is brought in
that regard "the liability of each vessel in respect of such damage shall be in
proportion to the degree in which such vessel was in fault". This sub-section
re-enacts with amendments
Section 1 of the
Maritime Conventions Act, 1911 which
gave statutory effect to the Convention of Brussels, 1910 relating to
collisions at sea.
6. Sub-section
(2) of Section 46 is in the following terms:-
"Where
by the sole or concurrent fault of a vessel damage is caused to that or another
vessel or to the cargo or any property on board either vessel, or loss of life
or personal injury is suffered by any person on board either vessel then,
subject to sub-section (3) of this section, no action shall be maintainable to
enforce a claim for damages or lien in respect of such damage, loss of life or
injury unless proceedings are commenced within two years from the date when
such damage, loss of life or injury was caused........"
7. Sub-section
(3) provides that:
"Any
court having jurisdiction to deal with an action to which sub-section (2) of
this section relates may, subject to any rules of court, extend the period
referred to in that sub-section to such extent and subject to such conditions
as it thinks fit, and shall, if satisfied that there has not during such period
been any reasonable opportunity of arresting the defendant vessel within the
jurisdiction of the court or within the territorial waters of the country to
which the plaintiff's vessel belongs or in which the plaintiff resides or has
his principal place of business, extend any such period to an extent sufficient
to give such reasonable opportunity."
8. The
final sub-section provides that "this section shall be construed as one with
the Merchant Shipping Acts, 1894 to 1952".
9. The
first issue before the court is whether, having regard to the provisions of
Section 46(2) of the Act, the plaintiff was obliged to commence his action
against the defendant within two years from the happening of the accident
complained of or whether the three year limitation period for personal injury
provided in Section 11 of the Statute of Limitations, 1957 applies. In the
interest of clarity I set out hereunder sub-section (2) stripped of verbiage
which is irrelevant to this case.
"Where,
by the sole fault of a vessel personal injury is suffered by any person on
board [the] vessel then, no action shall be maintainable to enforce a claim for
damages in respect of such injury unless proceedings are commenced within two
years from the date when such injury was caused."
10. It
is submitted on behalf of the plaintiff that the sub-section applies only to
actions in rem and not to a claim in personam as in this action. There are two
substantial arguments in support of that submission. First, that Section 46
relates to maritime claims and when read as a whole it is apparent from the
language used that it is intended to apply only to actions in rem. For
example, reference is made to the fault of two or more
vessels
and the liability of each
vessel
- a concept relevant only to actions in rem. There is also reference to
"arresting the defendant vessel" and to "a lien in respect of damage". These
are remedies which also relate to Admiralty actions in rem and not to actions
in personam. The plaintiff's second argument is that if the sub-section
applies to a claim made by a workman against his employer in personam for
personal injury sustained in an accident on board a vessel allegedly caused by
the negligence of the employer, his servant or agent, the injured party is
penalised by the location of the accident, i.e., the three year limitation
period provided for in the Statute of Limitations, 1957 would apply if the
event happened at any place other than in or about a vessel. It is patently
illogical that different limitation periods should apply to actions brought by
a worker against his employer which depend solely upon the location of the
accident which gives rises to the claim. Furthermore, it is a fundamental
right derived from Article 40 of the Constitution that workers are entitled to
equal treatment before the law and ought not to be disadvantaged regarding
limitation of actions in personam if they are also covered by the sub-section.
It is argued that the court should uphold the constitutional construction of
the provision by limiting its application to actions in rem. Alternatively, if
the sub-section is deemed to include also claims in personam then the question
arises whether the purported limitation period of two years in regard to such
claims should be struck down as unconstitutional.
11. In
the light of Section 46 of the Act read as a whole, it seems to me that the
Oireachtas probably intended that the entire, including sub-section (2), should
be regarded as applying only to Admiralty actions in rem. However, as the
defendant argues, that could and should have been specifically stated if such
was the intention. It is evident that the relevant wording of the sub-section
is without any ambiguity and must be interpreted in accordance with the plain
ordinary meaning of the words used.
12. Statutory
construction was considered by the Supreme Court in
Howard
-v- Commissioners of Public Works
,
[1994] I.R. 101. Blayney J. quoted with approval the following passage from
Craies
on Statute Law
,
(1971, 7th ed.) at page 65:-
"The
cardinal rule for the construction of Acts of Parliament is that they should be
construed according to the intention expressed in the Acts themselves. If the
words of the statute are themselves precise and unambiguous, then no more can
be necessary than to expound those words in their ordinary and natural sense.
The words themselves alone do in such a case best declare the intention of the
law giver. 'The tribunal that has to construe an Act of a legislature, or
indeed any other document, has to determine the intention as expressed by the
words used. And in order to understand these words it is natural to enquire
what is the subject matter with respect to which they are used and the object
in view.' [Per Lord Blackburn in
Direct
United States Cable Co. -v- Anglo-American Telegraph Co
.,
(1877) 2 A.C. 394]."
13. The
learned judge went on to comment that the rule is expressed in very similar
terms in
Maxwell
on the Interpretation of Statutes
,
(12th ed. 1976) at p. 28:-
"The
rule of construction 'to intend the Legislature to have meant what they have
actually expressed'. [Per Parke J. in
R.
-v- Banbury (Inhabitants)
,
(1834) 1 Ad. and El. 136 at p. 142]. The object of all interpretation is to
discover the intention of Parliament, 'but the intention of Parliament must be
deduced from the language used' [Per Lord Parker C.J. in
Capper
-v- Baldwin
,
[1965] 2 Q.B. 3 at p. 61] for 'it is well accepted that the beliefs and
assumptions of those who frame Acts of Parliament cannot make the law'. [Per
Lord Morris of Borth-y-Gest in
Davies
Jenkins & Co. Limited -v- Davies
,
[1967] 2 WLR 1139 at p. 1156]."
14. Denham
J. in course of her judgment in Howard stated at p. 162:-
"Statutes
should be construed according to the intention expressed in the legislation.
The words used in the statute best declare the intent of the Act. Where the
language of the statute is clear we must give effect to it, applying the basic
meaning of the words. There is well established case law on this aspect of
statutory construction."
15. The
learned judge then went on to refer to leading authorities in English law on
statutory interpretation and to the following passage from
Craies
on Statute Law
,
(7th ed.) at p. 67:-
"Even
though a court is satisfied that the legislature did not contemplate the
consequences of an enactment, a court is bound to give effect to its clear
language."
16. Denham
J. also quoted with approval the following passage from
Hallsbury's
Laws of England
,
(4th ed.) Vol. 44, paras. 863 and 864 respectively:-
"Primary
meaning to be followed. If there is nothing to modify, alter or qualify the
language which a statute contains, the words and sentences must be construed in
their ordinary and natural meaning.
Speculation
as to Parliament's intention is not permissible. If the result of the
interpretation of a statute according to its primary meaning is not what the
legislature intended, it is for the legislature to amend the statute construed
rather than for the courts to attempt the necessary amendment by investing
plain language with some other than its natural meaning to produce a result
which it is thought the legislature must have intended."
17. In
the light of her review of the law, Denham J. summarised it as follows:-
"The
correct conclusion to be drawn is that the plain language of the Act must not
be extended beyond its natural meaning so as to supply omissions or remedy
defects. The court should neither misconstrue words so as to amend defects in
the legislation nor legislate to fill gaps left by the legislature. If there
is a plain intention expressed by the words of a statute then the court should
not speculate but rather construe the Act as enacted."
18. In
the light of the foregoing statement of law and having regard to the patently
unambiguous meaning of the relevant words used in the sub-section under
construction, I am compelled to conclude that it applies to all forms of action
in negligence and is not limited to claims made in rem. However, it follows
that insofar as the sub-section brings about a disadvantage as to the
limitation of an action in personam based on the location of the accident which
gave rise to the claim, it is then necessary for the court to consider whether
the sub-section is unconstitutional in failing to vindicate the entitlement of
such a claimant to fair procedures and equal rights at law with others who
bring similar actions but where the injuries complained of did not happen on
board a vessel. If there was no question of constitutional impediment arising
out of the construction of the sub-section as including claims in personam such
as that made by the plaintiff against the defendant in this action, I would
exercise the discretion given to me by sub-section (3) of section 46 to extend
the period of limitation referred to in sub-section (2) sufficiently to
legalise the plaintiff's claim against the defendant. It was not unreasonable
for his advisors to have concluded that section 46 of the Act in its entirety
refers to actions in rem only. The plaintiff's explanation for delay is
reasonable and differs substantially from that in
Carleton
-v- O'Regan,
(unreported) in which I delivered judgment on 14th October, 1996 and to the
reasons for delay in the various authorities referred to therein. In all of
them the period of limitation was not in issue and the only question in each
was whether there had been special circumstances or "good reason" for the delay
in launching proceedings.
19. Furthermore,
the difference in limitation periods based on location of the place of injury
on foot of sub-section (2), if constitutional, where the action is brought in
personam is an obvious statutory lacuna which can be put right by exercising my
discretion under sub-section (3) in favour of the plaintiff. Accordingly, I
extend the period for commencement of the plaintiff's action up to and
including the date of actual commencement thereof. Having taken that course,
it is unnecessary to make any formal ruling on the constitutionality of
sub-section (2) of section 46 of the Act.
© 1998 Irish High Court
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