Dáil Éireann - Volume 410 - 02 July, 1991

Private Members' Business. - Statute of Limitations (Amendment) Bill, 1990: Report and Final Stages.

Acting Chairman (Mr. Sherlock): Amendments Nos. 1 and 2 in the name of Deputy McCartan are related and can be taken together by agreement.

Mr. McCartan: I move amendment No. 1:

In page 3, line 35, to delete “two” and substitute “three”.

These two amendments were proposed by me on Committee Stage and the Minister of State agreed to look at this issue more closely before Report Stage. The issue here is whether we shall extend the period within which a claim can be made for loss or damage in respect of goods sold or transactions conducted under the Sale of Goods and Supply of Services Act, 1980, from two years to three years. I had advocated that the period should be extended to three years on the basis of uniformity, the three-year period being the general period available to injured or aggrieved parties to bring claims under the statute of limitations provisions of the 1957 Act. The Minister of State indicated that when the two year period was introduced in 1980 it was on the basis of good market considerations, that an argument had been advanced at that time by the hire purchase industry generally and retail associations that to have a more extended period would reflect adversely on the market and could make things more expensive for the consumer in the long run. I queried that on Committee Stage and pointed out that this legislation is working primarily from [410] the point of view of the consumer, seeking to protect consumer interests in the long term against defective goods or services and that there was not a compelling reason now to suggest that the market needed any special protections. The Minister of State at the conclusion of the debate on 19 June agreed to look at this matter afresh. I hope he has reflected on the matter and that the House will agree to accept this simple straightforward amendment.

This is the only issue, I understand, which will be raised on Report Stage in what is otherwise excellent legislation which is long overdue and which will be greatly appreciated by litigants who heretofore had been badly disadvantaged because we did not have this principle of discoverability with regard to the period of time for which the right of action would run. Heretofore the period ran effectively from the date upon which the sale or purchase was made and the contract entered into. The fact that a defect could emerge subsequently was not taken into account. We should strive to approach this from the point of view of the consumer and to achieve uniformity of rule. The three year period is a general period and there is no reason someone who, because of financial or other circumstances, enters a contract on hire purchase or on other credit trade arrangements should be in any way disadvantaged. Those who can put the cash on the table on the day of purchase should be in the same position as those who buy on hire purchase. I hope the Minister will accept this amendment.

Mr. Cotter: Like Deputy McCartan I am unhappy with section 3. It seems somewhat anomalous that a category of person has certain security under the legislation while another, who could be in a more invidious position because of personal injuries, has his rights more restricted. The Minister on the last occasion said that to expose the members of the motor trade to the risk of claims from third parties for a full six years after a sale could put the cost of insurance beyond the reach of many in [411] the trade. I imagine the Minister was working on a hunch rather than on factual information, because he did not provide any factual information. The Minister did not say how he came to that conclusion and his reply was unsatisfactory. Without a deep knowledge and understanding of this, I find it hard to understand why the restriction should be two years when it is related to the sale of cars under certain circumstances. I would ask the Minister to re-examine section 3 to see if he can accept these amendments.

The whole question of insurance is being debated in this House and the debate will continue tomorrow night. Perhaps the Minister would urge the Government to look at the whole business to see if it is possible to have a public inquiry into the cost of insurance. It should not be a factor in deciding whether to place certain restrictions on a citizen's rights in this legislation. Everybody would agree that the cost of liability insurance here is colossal by comparison to what it is elsewhere and that it is entirely unsatisfactory.

In February the Minister for the Environment told the House that there were 77,000 uninsured drivers on the roads at that time. No doubt there is a strong relationship between the number of uninsured drivers and the cost of insurance. The number and size of claims which could be made under this legislation will no doubt be affected by all of that. The Government have been looking at the situation but they have not done anything about it. They are now proposing to impound cars which are being driven without insurance. The Government are attacking the problem from the wrong end. There are many factors which have contributed to our unacceptably high levels of insurance. The holding of a public inquiry into this industry is the only way in which we can ensure that these factors are put right.

This legislation is good in general and Fine Gael decided at the outset to support it. The 1987 report of the Law Reform Commission highlighted this problem in the first instance. They suggested that the [412] then position was unconstitutional and that an amendment should be brought forward to rectify it, which is what has been done in this Bill. Generally speaking this is a good Bill but section 3 seems to be somewhat unfair. My party were unhappy that latent property damage was not included under the terms of the amendment, which we thought could be done. I am aware of many cases — two in particular — where people's homes have been badly damaged by latent faults. These people who have very limited resources are left in a totally invidious position. Their homes are falling apart but they have no right under legislation to make a claim against anyone for compensation. Many other cases from various parts of the country outside my bailiwick have been brought to my attention. These relate to people who have suffered enormous financial loss because they did not have recourse under legislation to get compensation so that they could repair the damage caused to their homes. This is unfair.

I hope the Minister has listened to the points made by Opposition spokespersons in this regard and that he will give us an assurance that he intends to bring in a further amendment to the Statute of Limitations Act to put this matter right. I also hope that he accepts Deputy McCartan's amendment. It is unfair that some people can be protected in a certain way under the legislation while other people who suffer the same kind of personal injuries are given less protection. There is no justification for this.

I want to refer to another matter, and I am sure the Cheann Comhairle will allow me to refer briefly to it. This relates to the motor trade, to which this Bill refers. The motor trade is in chaos at present——

An Ceann Comhairle: The Chair has granted the Deputy quite a lot of licence in respect of what he has said——

Mr. Cotter: You have.

An Ceann Comhairle: ——but he is now clearly embarking on a Second [413] Reading speech and bringing in a lot of extraneous matter. I must insist that the Deputy confine his remarks to the amendments before us.

Mr. Cotter: Would it be in order for me to mention——

An Ceann Comhairle: The Deputy has had quite some latitude from the Chair.

Mr. Cotter: ——that some cars imported from Japan do not meet the requirements of the regulations under the Road Traffic Act and, therefore, contribute to accidents which cause personal and other injuries? Even though the practice of importing cars from Japan only began about 18 months ago members of the motor trade have assured me that this is the case. This legislation may well have effects on the insurance industry and if the Minister is worried about insurance costs, which he said he was on the last occasion we debated this Bill, then he should look at this point also. I hope the Minister accepts the amendments before the House.

Minister of State at the Department of Defence (Mr. N. Treacy): I should like to deal first with the two amendments before us on Report Stage and to deal subsequently with the other points raised, if that is in order.

We had a full debate on these amendments on Committee Stage and in accordance with my undertaking to have the position re-examined in the light of the debate which we had, I have consulted with the Department of Industry and Commerce in this matter. The 1980 Act is the responsibility of the Minister for Industry and Commerce. That Department have advised me that the proposed amendments could have implications for the insurance costs of motor traders in general which would need very careful consideration.

The existing two-year limitation period for proceedings against a motor dealer by a third party was set in the context of the comprehensive 1980 Act on consumer protection. The House in setting this and [414] other limitation periods in the 1980 Act established a complex structure of entitlements and obligations with very particular circumstances in mind. To use this Bill, which deals with the law on negligence, to amend the comprehensive frameword of laws based on statutory obligation would be most unwise. They are two completely separate systems. Any change to the 1980 Act should be considered in the context of a review of consumer legislation where the full implications, including insurance costs, can be properly considered. As an example of the growing extent and complexity of consumer protection legislation I might mention the Liability for Defective Products Bill, 1991, which recently passed Second Stage in this House. This will offer significant additional remedies to consumers and is also being promoted by the Minister for Industry and Commerce.

Consumer protection legislation is a large and complex area of law and one that is of growing importance. With the establishment of the Single Market there is no danger that it will be neglected. On the contrary, it will play an increasing role in responding to the needs of the citizens of the entire European Community. However, it is clearly vital that any changes or adaptations in consumer law are proposed in a planned, logical and informed manner with the House having available to it a comprehensive assessment of all the proposals. This is why I maintained on Committee Stage that amendments to this Bill should be confined to the purpose of the Bill and not seek to make substantive changes to other legislation. In the light of what I have said, I would ask the House and, in particular, Deputy McCartan not to press these amendments. I regret, with all the information and advice available to me, that I will not be able to accept them.

Mr. McCartan: While I thank the Minister of State for his reply, I have to say that, apart from telling us he consulted with the Department of Industry and Commerce who have responsibility for the 1980 Act he did not add anything [415] new to what he said on Committee Stage. He told us the Department had advised him that these amendments would have implications for motor insurance costs, but he gave no indication as to how this might arise and did not substantiate the argument by way of figures or empirical evidence. As Deputy Cotter said, tomorrow evening we will continue the debate on the issue of insurance costs generally in the motor trade. No doubt one of the facts which will emerge from this debate is that the insurance industry is one of the most empirically structured and organised industries in the country. Everything is done by way of facts and figures and all the actuarial experience available is brought to bear on the figure which is ultimately given over the counter to the consumer. I am disappointed that the Minister of State in advancing the reasons given to him by the Department of Industry and Commerce was not in a position to offer us any form of empirical evidence which would support the argument that we should not move to equalise the general provisions dealing with the rights of persons to bring legal action within a stated period of time, namely, three years as proposed in my amendment. Unfortunately, for this reason I am not happy with the Minister of State's reply.

The second reason advanced by the Minister of State was that the framework of the 1980 Act provides a comprehensive scheme dealing with the supply of services and sale of goods. He made the point that this Bill should not trespass into that area. I advanced my amendment only on the basis that there already exists in the Bill a provision dealing with the 1980 Act and that the Bill has been extended at the Minister of State's hand into the corpus of law dealing with the sale of goods. I am merely trekking down a road that has already been trodden by the Minister of State. Therefore, if I am trespassing so is the Minister of State. Given that the Title states “the period of limitation is to run in respect of actions for certain personal injuries, and to [416] amend related provisions in other statutes” and that section 3 (3) makes reference to the Sale of Goods and Supply of Services Act, 1980, the Minister is not being fair in seeking to reject my amendment on the basis that it is trespassing from one area of law into another.

The statute of limitations and the law generally is an amalgamation of rules covering liability and tortious action. The 1957 Act contains a litany of rules with regard to the litigation available and lays down the period within which actions can be initiated to right a wrong. Therefore, it is not a valid argument that the statute of limitations deals with one area of law and that the Sale of Goods and Supply of Services Act which provides for the protection of the consumer deals with a separate area of law. The statute of limitations contains provisions which specify the period of time in which actions can be taken in various areas of the law, be it in respect of breach of contract, breach of conveyancing rules, or a civil action in respect of personal injuries caused by negligence or nuisance.

The 1980 Act extends the rules contained in the 1957 Act dealing with the delivery of services. Section 13 of that Act deals primarily with the motor industry and the sale of motor cars. Therefore one cannot separate them and say that the statute of limitations deals with one area of law and that the Sale of Goods and Supply of Services Act and other laws deal with another area of law as they are inter-related. As I said, the statute of limitations, by definition, amounts to a codex and specifies the period within which actions in various areas of law may begin and end. Therefore, we are not breaking any rules in dealing with something which is primarily covered by the 1980 Sale of Goods and Supply of Services Act. As I said, if we are heading in a particular direction I am merely following the path already followed by the Minister of State in drafting the Bill initially.

The Minister of State said that the area of law which provides for the protection [417] of the consumer is complex and constantly reviewed. He instanced the Liability for Defective Products Bill, 1991 which is currently before the Dáil. When I contributed to the debate on that legislation I pointed out that the origin of that Bill which was circulated by the Minister for Justice lies in a decision of the Council of Ministers in 1976. One cannot, therefore, be happy at the rate at which legislation in this area is proceeding. The point also has to be made that the Bill before the House tonight is a direct response to the ruling of the Supreme Court which highlighted the shortcomings of our legislation which has been in existence since 1957. Therefore, it was an event outside the Minister's Department which propelled him to move in this area. It is not satisfactory to argue that we should wait and provide for protection of the consumer in consumer law because I believe it will be a long day before we get round to addressing those issues or have a comprehensive statute of limitations introduced in the House.

Given that this Bill is before the House and because of the provisions contained in section 3 (3), the House should have addressed this issue and the Minister of [418] State should have agreed to accept the amendment I have advanced. It is a great pity that he did not take the opportunity to accept it. I believe it is an injustice that while a citizen, can on the one hand, take an action within three years in general law, when we come to the law relating to the sale of goods, with particular reference to the motor industry, he is restricted to taking an action within a two year period.

Leaving aside all the verbiage that the corpus of law is complex and should not be intertwined, the only reason the Minister of State has advanced is that it would have implications for the motor industry in terms of insurance costs but no figure has been produced to substantiate it. For those reasons I am not prepared to abandon my amendment. If some fair grounds had been advanced I would have been prepared to do so. I ask that the amendment be put.

An Ceann Comhairle: That concludes the debate on amendments Nos. 1 and 2. As requested by Deputy McCartan, I am putting the following question: “That the words proposed to be deleted stand.”

Question put.

The Dáil divided: Tá, 71; Níl 50.

Ahern, Dermot.

Ahern, Michael.

Andrews, David.

Aylward, Liam.

Barrett, Michael.

Brady, Gerard.

Brady, Vincent.

Brennan, Mattie.

Brennan, Séamus.

Briscoe, Ben.

Browne, John (Wexford).

Burke, Raphael P.

Calleary, Seán.

Callely, Ivor.

Clohessy, Peadar.

Connolly, Ger.

Coughlan, Mary Theresa.

Cullimore, Séamus.

Daly, Brendan.

Davern, Noel.

Dempsey, Noel.

Dennehy, John.

[419]Lyons, Denis.

Martin, Micheál.

McDaid, Jim.

McEllistrim, Tom.

Morley, P. J.

Nolan, M. J.

Noonan, Michael J. (Limerick West).

O'Connell, John.

O'Dea, Willie.

O'Donoghue, John.

O'Hanlon, Rory.

O'Keeffe, Ned.

O'Kennedy, Michael.

de Valera, Síle.

Ellis, John.

Fahey, Jackie.

Fitzgerald, Liam Joseph.

Fitzpatrick, Dermot.

Flood, Chris.

Flynn, Pádraig.

Gallagher, Pat the Cope.

Geoghegan-Quinn, Máire.

Harney, Mary.

Hillery, Brian.

Hilliard, Colm.

Hyland, Liam.

Jacob, Joe.

Kelly, Laurence.

Kenneally, Brendan.

Kitt, Michael P.

Kitt, Tom.

Lawlor, Liam.

Lenihan, Brian.

Leonard, Jimmy.

Leyden, Terry.

[420]O'Leary, John.

O'Rourke, Mary.

O'Toole, Martin Joe.

Power, Seán.

Quill, Máirín.

Roche, Dick.

Smith, Michael.

Stafford, John.

Treacy, Noel.

Wallace, Dan.

Wallace, Mary.

Walsh, Joe.

Wilson, John P.

Woods, Michael.

Níl

Ahearn, Therese.

Barnes, Monica.

Bell, Michael.

Belton, Louis J.

Boylan, Andrew.

Bradford, Paul.

Browne, John (Carlow-Kilkenny).

Bruton, John.

Bruton, Richard.

Byrne, Eric.

Cotter, Bill.

Creed, Michael.

Crowley, Frank.

Currie, Austin.

Deasy, Austin.

Deenihan, Jimmy.

Doyle, Joe.

Durkan, Bernard.

Farrelly, John V.

Fennell, Nuala.

Finucane, Michael.

FitzGerald, Garret.

Flanagan, Charles.

Gilmore, Eamon.

Gregory, Tony.

Harte, Paddy.

Higgins, Jim.

Higgins, Michael D.

Hogan, Philip.

Howlin, Brendan.

Kavanagh, Liam.

Kemmy, Jim.

Lee, Pat.

Lowry, Michael.

McCartan, Pat.

McCormack, Pádraic.

McGahon, Brendan.

McGinley, Dinny.

Mac Giolla, Tomás.

McGrath, Paul.

Nealon, Ted.

Noonan, Michael. (Limerick East).

O'Shea, Brian.

O'Sullivan, Gerry.

Rabbitte, Pat.

Reynolds, Gerry.

Ryan, Seán.

Sherlock, Joe.

Spring, Dick.

Yates, Ivan.

Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies Gilmore and McCartan.

Question declared carried.

Amendment declared lost.

An Ceann Comhairle: Amendment No. 2 was discused with amendment No. 1. How stands the amendment?

Mr. McCartan: As it is directly related to the earlier amendment, I do not propose to press it.

Amendment No. 2 not moved.

Bill reported without amendment, received for final consideration and passed.

An Ceann Comhairle: This Bill is considered by Article 20.2.2º to be a Bill initiated in the Dáil and will be sent to the Seanad.