The High Court has struck out a former Defence Forces member’s hearing-loss claim against the State, ruling that the delay in bringing and pursuing the case was inordinate and inexcusable and that its age made a fair trial impossible.
Mr Justice Hogan delivered the judgment on 18 January 2011. The proceedings, issued in September 2000, alleged that John Donnellan’s hearing loss and tinnitus resulted from excessive noise during his Defence Forces service and later employment at Westport Textiles Ltd. These were allegations, not findings on the cause of his condition.
Donnellan enlisted in September 1973 and left the Defence Forces in June 1974. He worked as a cone winder at Westport Textiles from 1978 to 1979. The company entered liquidation in 1981. The action was later pursued against the State defendants after the claim against the company’s insurer, Royal Sun Alliance, was struck out in separate proceedings.
The State sought to have the case dismissed for delay. The judge assumed for the purpose of the motion that the claim had been brought within three years of Donnellan’s statutory “date of knowledge”; he did not decide that limitation issue. The court considered whether the proceedings should be struck out for delay, not whether the defendants were liable for the alleged injury.
The State was notified of the action in November 2001 and served in May 2002. A notice for particulars was issued in September 2005, but replies were not served until August 2010, after the State’s motion to strike out had been issued. The judge accepted that there had been some delay by the State, but found it marginal compared with the plaintiff’s delay. He also noted that the State had not identified specific prejudice such as missing witnesses or difficulties in determining causation. The judgment records that the audiograms showed appreciable hearing loss, and that Donnellan would be prejudiced if deprived of a remedy.
Nevertheless, the court held that the Primor test was not the only basis for addressing delay. Relying on the courts’ constitutional responsibility to administer justice, the judge found that the passage of time since the events, together with the delays after the case began, meant the court could no longer conduct the kind of fair forensic inquiry required. He also accepted that stale claims can prejudice the public interest by using court resources and delaying cases pursued promptly.
The court granted the State defendants’ motion and struck out the proceedings for inordinate and inexcusable delay. It did not determine the negligence allegations or make findings on the cause of Donnellan’s hearing loss.