Challenger to constitutionality of limitation period did not have standing where her personal injuries action was clearly out of time

O'Higgins CJ (concurring with Henchy J): Appeal from High Court on preliminary issue - Section 11(2)(b) of the Statute of Limitations 1957 - whether section invalid having regard to provisions of the Constitution - plaintiff who did not know and could not possibly have known of the accrual of the right of action - plaintiff in question was aware of her rights and the alleged wrong of the defendant - whether plaintiff had sufficient standing to raise the question of the validity.

"Where the person who questions the validity of a law can point to no right of his which has by reason of the alleged invalidity, been broken endangered or threatened, then, if nothing more can be advanced, the Courts should not entertain a question so raised. To do so would be to make of the Courts the happy hunting ground of the busy-body and the crank. Worse still, it would result in a jurisdiction which ought to be prized as the citizens shield and protection, becoming debased and devalued. This is not to say, however, that if those whose rights are affected cannot act or speak for themselves the Courts should refuse to hear one who seeks to speak or act for them, even if his own rights are not affected. Such exceptional cases, hopefully rare, must, of course, be entertained."

Henchy J (nem diss): Claim against gynaecologist - consultation - tablets prescribed - subsequent illness - action commenced four years after ill effects - claim that incorrect and harmful medication had been prescribed - 11(2)(b)of the Statute of Limitations, 1957 - whether claim statute-barred - determination by High Court that claim was statute-barred - leave to plead constitutional issue - three-year time limit - alleged breach of contractual duty - Art. 40, s. 3, subs. 1, of the Constitution - personal rights of the citizen - failure to prevent rights from unjust attack - no extension of limitation period available.

"At all material times she was aware of all the facts necessary for the making of a claim against Dr. Sutton. Her present claim is founded on breach of contract. Within weeks of the commencement of hertreatment in 1968 she knew of the facts which, according to her, constituted a breach of contract, and of their prejudicial effects on her. Yet shedid not bring her action within the three-year period. It is clear, therefore - indeed admitted - that even if the suggested saving provision had been included in the Act, the plaintiff would still be shut out from suing after the three-year period of limitation."

"She is therefore seeking to be allowed to conjure up, invoke and champion the putative constitutional rights ofa hypothetical third party, so that, on the basis of that constitutional ius tertii, s. 11(2)(b) may be declared unconstitutional, thus allowing her to march through the resulting gap in the statute."

"To allow one litigant to present and argue what is essentially another person's case is not as a general rule conducive to the administration of justice.Without concrete personal circumstances pointing to a wrong suffered or threatened, a case tends to lack the force and urgency of reality."

"There is also the hazard that if the courts were to accord citizens unrestricted access, regardless of qualification, for the purpose of getting legislative provisions invalidated on constitutional grounds, this important jurisdiction would be subject to abuse. For the litigious person, the crank, the obstructionist, the meddlesome, the perverse, the officious man of straw, and for many others, the temptation to litigate the constitutionality of a law, rather than to observe it, would on occasion prove Irresistible."

"The plaintiff's complaint that s.11(2)(b) of the Statute of Limitations, 1957, is invalid on constitutional grounds is because there is not attached to it a saver for those who might become statute barred despite non-culpable ignorance of crucial facts. But theplaintiff's predicament is that she would be statute barred even if s.11(2)(b) had been so qualified. So she cannot be heard to say that the alleged unconstitutionality has wrought her personally any actual or threatened prejudice. She is therefore wanting in personal locus standi. Her counsel is therefore driven to grounding her allegation of unconstitutionality on the actual prejudice that would be suffered by a hypothetical person who would be statute barred under s. 11(2)(b) despite his non-culpable ignorance of crucial facts."

"For the reasons adduced in this judgment, I would allow this appeal against the order of Finlay P. to the extent that it declared that s.11(2)(b) is not unconstitutional. The issue of unconstitutionality must be left undetermined."