Gaeilge

Title:	Green -v- Hardiman
Neutral Citation:	[2019] IESC 51
Supreme Court Record Number:	116/2018
Court of Appeal Record Number:	84/2017
High Court Record Number:	N/A
Date of Delivery:	07/02/2019
Court:	Supreme Court
Composition of Court:	O'Donnell Donal J., McKechnie J., MacMenamin J., Dunne J., Charleton J.
Judgment by:	Charleton J.
Status:	Approved
Result:	Appeal dismissed
Details:	Judgment also delivered by McKechnie J
Judgments by Link to Judgment Concurring Charleton J. Link O'Donnell Donal J., McKechnie J., MacMenamin J., Dunne J. O'Donnell Donal J. Link

---

O’Donnell J
McKechnie J
MacMenamin J
Dunne J
Charleton J

Between

Judgment of Mr Justice Peter Charleton of Tuesday 2 July 2019

1. At issue on this medical negligence appeal is the application of section 3 of the Statute of Limitations (Amendment) Act 1991 as amended to the facts of this case as found by the trial judge. This section provides that a plaintiff has two years to bring an action for a personal injury. This timespan runs either from the occurrence of the wrong, which is the ordinary rule, or exceptionally, from the date of knowledge, meaning when the plaintiff “first had knowledge” of the identity of the defendant and of the fact of significant injury and that the wrong “was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. Knowledge is not left undefined, thus to be construed in accordance with its ordinary meaning, but is instead given a specific statutory meaning. In attempting to address the very difficult question of obtaining justice for those who have an undiscovered injury while still maintaining the limitation period that, in various forms, is universal in ensuring that actions are commenced within a reasonable time, a recurring issue of proper statutory construction arises. That has been separately considered in this Court’s judgments in O’Sullivan v Bon Secours Hospital [2019] IESC 33, with submissions from both the present case and that case forming the basis of that judgment.

2. All of these decisions as to when an apparent wrong was discovered, or as to when it should be deemed that an apparent wrong would have been discovered because it became at a particular point in time reasonable for the plaintiff to seek expert advice in order to discover a fact, are based upon the assessment of evidence. The facts as found by the trial judge are thus crucial. In attempting to get to the truth of any situation, one often compounded by the complex relationship of trust between a patient and a treating physician or surgeon, the trial judge should seek out the narrative from the plaintiff of what is alleged to be negligence. As regards the defendant, the circumstances in which a wrong was allegedly committed should be examined from the point of view of whether there was a want of care that caused the plaintiff wrong and what representations, if any, were made by the treating medical personnel or staff as to what outcome from treatment had been effected. While the burden of proving the lack of knowledge exception is on the plaintiff, the reality of these cases is that they must be seriously engaged with in order to uncover where the truth lies.

Summary of the law
3. The law is as stated by this Court in O’Sullivan. Two sections of that judgment should be quoted. The first is the passage which quotes and then removes unnecessary words from the Statute of Limitations (Amendment) Act 1991. Paragraphs 3 to 6 of the judgment of Charleton J states:

3. The legislation is approached from the point of view of the ordinary principles of statutory interpretation. These are set out in the separate judgment of Finlay Geoghegan J. Any analysis of where the plaintiff and the defendant stand as regards limitations requires that the relevant section of the legislation now be quoted. Analysis of the section, and of the decisions based on it, will follow later. A personal injuries action must be commenced within two years of the injury, unless the fact of significant injury and that the wrong “was attributable in whole or in part to the act or omission which is alleged to constitute negligence” only becomes known to the plaintiff at a later date. Section 2 of the 1991 Act deals with the issue of “date of knowledge for the purposes of this Act” and states:

(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.


4. In aid of construction, it is helpful to strip away from the section all of the wording that does not impact on this case, or indeed on the generality of actions. Thus, the plaintiff in this case, and in most such cases, did not suffer a brain injury and nor was he put in a coma in consequence of which he was not in a position to know that someone had treated him negligently; hence subsection (3)(b) is not relevant here and is rarely relevant. While a breach of duty may give rise to a cause of action in tort for damages where a specific legislative provision is for the benefit of a sufficiently defined class, for instance industrial regulations requiring that prim movers such as saws or the dangerous internal mechanisms of machines be fenced, what is applicable here and in almost all medical negligence allegation cases is the common law concept of negligence. While it may be that a nuisance, such as noise emanating from one house into another, can both cause damage and can give rise to the delayed realisation of a wrong, such as hearing loss, only years after such an obvious annoyance has been continuing, that is not the case here or in any of the decided cases. Any issue of an apparently concealed defendant does not arise here. But, making no reference to contractual obligations as to fitness for purpose, such an issue might arise in a case of harm resulting from use or consumption of a product, the noxious element of which was reasonably bought by the primary supplier from a reputable source: see for instance Fleming v Henry Denny & Sons Ltd (Supreme Court, unreported, 29 July 1955), Mason v Williams & Williams Ltd [1955] 1 WLR 549 and Taylor v Rover Co Ltd [1966] 1 WLR 1491. Nor is this defendant unknown, since the standard practice, whether for right or wrong is not commented on here, is to sue all potential defendants. Section 8 of the Civil Liability and Courts Act 2004 provides for certain potential adverse consequences for a plaintiff where they fail “without reasonable cause, to serve a notice in writing, before the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter” on the defendant “stating the nature of the wrong alleged to have been committed by him or her”. Where there are multiple potential defendants, the O’Byrne letter procedure will be invoked, and, depending on the circumstances, may trigger the application of section 78 of the Courts of Justice Act 1936, relating to the liability of an unsuccessful defendant for the costs of any successful defendant, perhaps through an order against the plaintiff and an order-over. This plaintiff was in the position of many of the usual potential plaintiffs, in that he was in a position to take a case himself and there is no intervening representative, such as for a minor.

5. Hence, as relevant, section 2 of the 1991 Act reads that for the calculation of when a person had sufficient knowledge of the wrong done to him, the commencement of the limitation period depends upon the date of the plaintiff’s first knowledge that he or she “had been injured … significant[ly]”, that such injury “was attributable in whole or in part to the act or omission which is alleged to constitute negligence” and that the plaintiff knew “the identity of the defendant”, but provides that “knowledge that any acts or omissions did or did not, as a matter of law, involve negligence … is irrelevant.” Knowledge is not to be construed in the meaning accorded to that word in ordinary use. Otherwise the limitation period might be suspended indefinitely until the plaintiff took the trouble to be informed. Rather, the potential plaintiff is required to act when it is reasonable to require such a plaintiff to seek out such knowledge. Thus the section has a specific statutory definition which provides that it “includes knowledge which” a plaintiff “might reasonably have been expected to acquire” either “from facts observable or ascertainable by” him or her or “from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek”. Subsection 3, however, provides that no plaintiff is to be “fixed … with knowledge of a fact ascertainable only with the help of expert advice” though that requires him or her to take “all reasonable steps to obtain (and, where appropriate, to act on) that advice”.

6. At paragraph 22 of her separate judgment, Finlay Geoghegan J has set out the balance which the Act achieves. This is a matter of a “two or three step” test which is set out at paragraph 32: firstly, when did the plaintiff have knowledge that he or she had sustained a significant injury? If it is alleged, on her analysis, by a defendant that knowledge is to be attributed to a date earlier than the date of actual knowledge due to a plaintiff failing to take all reasonable steps to obtain and act on expert advice, that earlier date should be identified by the defendant; if necessary, the second step. On her analysis, the third step is the ascertainment of when the plaintiff was aware that the injury is attributable, in whole or in part, to such facts as are “alleged to constitute negligence”. As she later analyses the decided cases, a patient a month after leaving hospital following a procedure or operation may know that he or she is seriously ill. That is not knowledge of itself according to the statutory definition. Knowing that the illness is due to infection may not be enough either since some hospital infections, according to counsel in this case, may be transmitted to a patient while in hospital through no fault in procedures for clinical cleaning and sterilization. The difficult arises in the last test, that is knowledge that the serious injury is due to attribution to some act or omission that may, as a matter of later legal analysis, which for the purpose of ascertaining knowledge, turn out to be an actionable wrong but which the plaintiff is aware of as an act or omission.

4. Having analysed the relevant authorities, the second section, with which Dunne J agreed and O’Donnell J agreed subject to a qualification not here relevant, summarises the existing law from paragraphs 33 to 35:

33. Where a plaintiff claims that he or she did not commence a case due to knowledge of their injury, and of the broad facts alleged to constitute an actionable negligence, coming to them at a date later than the occurrence of the wrong in question, a number of factors must be considered.

34. The first step in determining whether time begins to run at that later date, or on the earlier date of the occurrence of the alleged wrong, requires judges to examine the way the plaintiff puts his or her case and to distil what he or she is complaining about. That inquiry is into the truth of any such assertion, to determine the point at which such a plaintiff had, in broad terms, knowledge of the facts on which that complaint is based. Such knowledge is sufficient to start the time running if it justifies the plaintiff in both consulting a solicitor and also in being able to give an outline of the broad factual parameters of his or her case; that is what happened to the plaintiff as a result of a wrong by someone else. In this context, the limitation period may be delayed because a potential plaintiff did not have such broad knowledge of one or more of the following: knowledge that they had been injured by what they complain of; or knowledge that the proposed defendant had done something wrong; or knowledge that the injury was significant; or knowledge as to the identity of the proposed defendant or defendants. It is knowledge that the proposed defendant had done something wrong which is the key factor in most cases; that is, broad knowledge of the act or omission in consequence of which that plaintiff says that he or she was subject to an act or omission that should not have occurred. Any later legal analysis as to whether, as a matter of law, such act or omission is negligence is not relevant. What caused the accident is relevant, whether or not that act or omission amounted in law to negligence.

35. The core issue is always at what stage such a plaintiff had such broad knowledge from facts which he or she either had, or might reasonably have been expected to acquire, from observable or ascertainable facts, or only on the basis of consulting an expert to ascertain such fact or facts. Having been consulted in such a timely fashion as a reasonable person would pursue that step, it is then the task of the expert to identify any act or omission that is alleged to constitute a wrong. Failure to take timely steps to pursue broad knowledge of facts by consulting an expert, or inertia in acting on such knowledge when received, does not stop time running.

Chronology in this case
5. Leo Green, the plaintiff, was a very active man in his late 60s when he was admitted to Tallaght University Hospital for the repair of a colovesical fistula by laparotomy on 11 December 2007. During the operation, his bowel was accidentally perforated; possibly by a tear of an adhesion. Normally, the bowel would be palpitated to check for this and this seems to have been done but, if it was, nothing was discovered. Consequently, though the operation appeared to be successful, and the plaintiff was discharged, leakage of digestive material into the abdomen meant that the plaintiff became seriously ill. He returned to hospital with elevated levels of C-reactive protein and white cell count. Even so, it is now the admitted negligence of the hospital that they did not perform a CT scan to uncover the cause of this and no other intervention was made. The plaintiff was sent home. He returned even more ill a few days later, and on 19 December 2007 a second laparotomy resulted in a stoma formation; that is an external bag for the collection of digestive waste. After the operation he spent some time in intensive care, and stayed in the hospital until he was discharged on 28 December 2007. In the hospital, according to the plaintiff, he was told that an internal suture had come away causing a leak. Feeling unwell into the new year, his local doctor referred him to South Tipperary General Hospital on 25 January 2008. On 6 February 2008, he was transferred back to Tallaght. There, the stoma consequence of the prior operation was reversed and he was discharged on 13 February 2008. On review on 27 March 2008, the plaintiff’s wounds had healed well. In an undated letter relating to this review, dictated by the treating surgeon on 27 March 2008 but not typed up until 6 July 2008, the treating surgeon wrote to the plaintiff’s family doctor stating that the plaintiff had a ventral hernia consequent on the sepsis of the abdomen and the second operation. The letter, in part stated:

I reviewed [the plaintiff] today. … On clinical evaluation today, he is well. His is eating well and his bowels are working normally. His wounds are all healed. He has a ventral hernia as a consequence of having septic abdomen and an emergency laparotomy for this. However, he is not anxious for any surgery at this time and I agree with him on this matter. I will see him in six months time for a consideration of repair if he needs it at that stage. …

6. The plaintiff gave the following evidence in relation to the appointment on 27 March 2008:

[The treating surgeon] looked at me very quickly, observed the hernia thing. … The scar from the hernia. … And said oh, that’s such and such a hernia … he said, we won’t do anything with that at the moment, he said, we won’t treat that until you are fitter. …[a]nd then we will deal with it. And that was the last time, then or any time, I saw [that surgeon].

7. When it was asked of him by counsel as to whether he had “any sense at that stage” from that conversation that “something had gone wrong” during the first operation other than a stitch coming loose, the plaintiff said, “No. Because at this stage I was still waiting and accepting the fact that [the surgeon] was going to be seeing me and putting it all right. I had nothing to feel about it. It wasn’t until a great deal later than that that I began to think what’s going on.” Cross J, the trial judge before the High Court, stated at paragraph 2.12 that at the time of the review, the plaintiff was “developing a ventral hernia” and the treating surgeon indicated to the plaintiff that this “could be treated in approximately six months afterwards when he had got better.” Despite the reference to possible treatment in six months’ time by the surgeon, the trial judge stated that the plaintiff was “very angry” that there was “no further follow up was put in place by the defendants”, due to “[i]t seems … some mix up between the appointments desk and the plaintiff in that no follow up appointment was given.” The trial judge further found that this was the last involvement of the treating surgeon and that the plaintiff’s hernia in the meantime developed, causing him concern and “difficulty in terms of movement and discomfort.” By December 2008, the plaintiff had been referred to a new surgeon because that hernia was troublesome. Apparently, the plaintiff had a pre-existing hernia but one that was not close to as troublesome as what he was now faced with. After examination by the new surgeon, no new treatment to remove the hernia was advised and he wrote to the plaintiff’s family practitioner on 14 January 2009 in the following terms:

As you know he has divarication of rectus abdominis muscle on his abdominal wall given the impression of a long standing midline hernia. This is a very common condition but does not particularly improve from surgery because of the geometric outline of where the rectus muscles now lie. Essentially they pull away from the midline and resuturing them back in really only facilitates a tear of these muscles and they get an even greater type herniation.

Mr. Green’s situation is compounded in that he has also actually developed a small incisional hernia component in the central part of his abdominal wall just below the umbilical area in keeping with a true incisional hernia at the site. However this would account for no more than 10% of the incisional herniation component …

I have outlined to him that this is biomechemical problem rather than of an incisional hernia nature and that while his recent abdominal surgery was somewhat contributory to some of the protrusion of the abdominal wall, the main protruding component is due to divarication.

I have outlined to them both that any surgical repair at first does not guarantee success and in general surgeons try to opt away from repairing divarication if at all possible, the reasons for this that the results are rather poor from a functional and cosmetic point of view. I have outlined to him that he would need large prosthetic mesh implanted onto his abdominal wall and there is no guarantee of success in this. I have also pointed out that he has already had an infection of his abdominal wall and implanting a prosthetic mesh runs risk of activating further infection developing a fasciitis which can result from dormant infection is his abdominal wall …

8. Hence, the advice given in good faith by the new surgeon and in the absence of the hospital notes, was that any connection between the need to have three operations instead of one and the hernia was minimal.

9. According to the judgment of Cross J, the evidence of the plaintiff’s expert was uncontested. He had reviewed all of the procedures and pronounced the failure to intervene or to properly test the plaintiff on his representation as a very sick man on 14 December 2007 as being negligent. Had that occurred, a much earlier intervention would apparently have led to a much better result rather than that which resulted from leaving the plaintiff so ill over a period of about five days before taking action.

10. Matters became worse. Golf and gardening, mainstays of the plaintiff’s amenity in life could not be resumed. On 31 January 2011, the plaintiff consulted a solicitor. Medical records were requested from Tallaght hospital shortly after in February 2011. These full records arrived on 31 March 2011. In October 2011, the plaintiff’s solicitor noted references throughout the medical records to a perforation. This was initially considered as possibly being negligence. At the trial, however, Cross J, having heard evidence that such a thing could happen and remain undetected without want of appropriate care, regarded this as being incapable of founding a decree in damages. A report from an expert was sought on 19 October 2011. This was received on 3 May 2012 and was not contradicted or challenged when that expert testified before the High Court, giving evidence that the failure of intervention and testing on 14 December 2007 was the cause of the plaintiff’s problems.

11. Proceedings were issued on 7 August 2012, some four years and eight months after that negligent treatment. As explained in the analysis as to the relevant limitation legislation in this Court’s judgment in O’Sullivan, proceedings should have been issued within two years of the cause of the wrong, the wrong normally being the accident or medical misadventure in such tort cases. That time can be extended for such concealed facts as might broadly establish negligence but which were unknown to a plaintiff. Time does not begin to run until such facts come to the knowledge of the plaintiff. But time will run from a time when a fact would have come to the plaintiff by him or her acting reasonably and finding a fact from expert advice or analysis.

12. Thus, the plaintiff says here that such fact only came to him as of the report of the expert of 3 May 2012, which was received by his solicitors on 20 May 2012. That report claimed negligence under two different prongs. At trial, the first of these, (a) was accepted by the expert not to necessarily arise by negligence but simply by misadventure, while Tallaght hospital did not challenge or contradict (b) and (c). These are set out by the trial judge at paragraph 2.24 of his judgment:

(a) Failing to test the apparent serosal tear in the small bowel so as to show what on the balance of probability was the case that this was not a serosal tear but a full tear which caused leakage of matter and infection to the plaintiff.

In particular, under this heading, [the expert] stated that the small bowel ought to have been delivered so that it could be palpated by hand so that gas could be squeezed through the injured segment and that then it would have been anticipated that there was a full thickness injury which required a full thickness repair which could and should have been carried out on 11th December, either by laparoscopy or by access through the already created midline laparotomy wound which would have minimised the risk of any hernia. Further, as there would not have been any time for any significant infection to have developed the prospect of a hernia would have been considerably reduced.

(b) In failing to investigate the elevated CRP which are associated with infection on 14th December, 2007, when studies show that the original colon was sound, a CT scan or similar ought to have been carried out on 14th or 15th to determine the source of the contamination especially given the fact that there had been a recognised injury to the small bowel.

(c) Which follows from (b) above, a failure to operate on 15th December at the latest and if the CT scan and other investigations had taken place on 14th that an operation could have taken place at the latest on 15th which caused a further four to five days delay increased the level of infection increased the prospect of a large scar and increased the likelihood of the hernia which developed taking place.

High Court judgment
13. Neither party to this appeal argues that Cross J reached the incorrect conclusion in finding that the plaintiff was negligently treated by Tallaght hospital and that this caused the plaintiff significant damage. In the High Court judgment delivered in January 2017, the plaintiff was awarded general damages of €60,000 for pain and suffering to date and €35,000 for pain and suffering into the future, amounting to general and special damages totalling €96,403. Instead, even though the hospital does not contest negligence, the claim is that the action always was statute barred.

14. Cross J did not accept that contention. The sixth section of the High Court judgment analyses the relevant section of the 1991 Act and deals with that issue thus:

6.1 The interpretation of s. 2 of the 1991 Act ought to be simple but is extremely difficult in practice. Every case will turn on its own facts and the principles of the authorities offer guidance to the decision maker but probably no more. The starting point must be the Act itself and for the purposes of this case, the relevant subsection is s. 2(1)(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.”

6.2 I accept that the word “attributable” cannot be airbrushed out of the equation and is central to my conclusion. The plaintiff was before August 2010, upset about his treatment and the result thereof. His first port of call was the referral to the gastrointestinal surgeon in South Tipperary General Hospital, Mr. M., who, as we have seen, not alone advised him as to the difficulties of further surgery but his report is not supportive of any action claiming significant personal injuries as a result of the indexed procedure. Mr. M. was presumably advised of the two operations but would not have had the notes or information that there had been some eight days of infection from the small bowel prior to the second procedure and could not conclude that the hernia was as a result of this infection.

6.3 In Farrell v. Ryan, Peart J. held that “it is incorrect as a general proposition that a plaintiff may wait until she receives her medical records before time starts to run against her…”. In the Farrell case, Peart J. indicated that the plaintiff, after hearing about a television programme on symphysiotomies in February 2010, was aware that she underwent what she believed to be an unnecessary symphysiotomy. In the Farrell v. Ryan case, that knowledge was sufficient to allow the statute to commence to run against the plaintiff.

6.4 The fact that as a general proposition, a plaintiff cannot insist that the Statute does not run until he or she obtains medical records does not, of course, mean that Medical Record may, in some cases, be essential for knowledge and attribution under the Statute.

6.5 In Fortune v. McLoughlin, McCracken J. stated:-

“However, the question is not whether the plaintiff knew the physical facts of her injuries, but whether she knew that the injury was attributable in whole or in part to the act or omission which is alleged to constitute the negligence, which basically was the failure of the defendant to monitor her properly during the latter part of her pregnancy. The trial judge held that the plaintiff herself did not make the connection between her injuries and the actions or omissions of the defendant. It is quite clear from the evidence that the proceedings were ultimately issued as a result of advice from a general practitioner in September, 1999 and even at that stage, she believed that any relevant blame would lie on the National Maternity Hospital. At this stage she sought advice from her solicitor who obtained her medical records from the hospital. It was only when the relevant records were obtained and advice was received by her from an independent medical expert based on those records that the facts now relied upon by the plaintiff in relation to her treatment by the defendant came to light.”

6.6 I find that it was only when the plaintiff, in this case, received the medical records that the basis of the case and the attribution of the plaintiff’s injuries to the failures on 14th and 15th could be known. The plaintiff’s general suspicions as to having suffered an injury and that that injury was caused by some actions of the defendant were, as it transpired ill founded.

6.7 The plaintiff has, subject to the Statute, established liability on the failure of the defendants to examine the plaintiff’s small bowel by way of a CT scan or similar on 14th and their failure to operate on 14th or 15th.

6.8 Prof. K. has given evidence which I have accepted that as a consequence of these matters, the plaintiff’s injuries have occurred.

6.9 The plaintiff’s initial concerns as to any faults whatsoever on the part of the defendants for any significant injury must have been assuaged by Mr. M’s report in 2009. Prof. N. still does not accept that in the first operation he entirely ruptured the small bowel or that there was any significant evidence of infection by 14th. Prof. K. on examination of the notes concluded that the hernia was caused by the initial undetected and untreated rupture which caused leakage and infection and which resulted in the hernia after the substantial incision which was required by the second operation on 19th.

6.10 The plaintiff in this case is in a significantly different position than the plaintiff in Farrell v. Ryan, in that Mrs. Farrell was aware from the reports of a television programme that she had suffered an injury caused by what she believed to be an unnecessary symphysiotomy. The plaintiff in this case was not and could not have been aware that he has suffered an injury due to the failure of the defendant to examine by way of CT scan or similar his small intestine on 14th and to operate on 14th or 15th. This knowledge and this attribution could only and did only arise on the receipt of the report of Prof. K. or, arguably, when the plaintiff received the hospital records. Either date, of course, is within the statute.

6.11 The requirement for the records in this case prior to the requisite knowledge and attribution is not because of any nuance in particulars of negligence or because of any minor refinements in the case, the records were required in order to attribute the injuries of the plaintiff to the failure of the defendants to investigate on 14th and to operate on 14th or 15th. Dr. M. did not have the records and did not attribute the hernia to these facts.

6.12 To conclude otherwise would, in my view, be to ignore the fourth paragraph of the judgment of Spargo (“barking up the wrong tree”) and to ignore the decision of Dunne J. in Naessens, it would be to ignore the decision of McCracken J. in Fortune v. McLoughlin and would be to specifically ignore the provisions of s. 2(1)(c) of the Statute of Limitations (Amendment) Act 1991.

6.13 I find accordingly that the plaintiff’s action against the defendant is not barred by virtue of the Statute of Limitations.

15. From the point of view of an appeal, the finding of fact by Cross J which must stand is “that it was only when the plaintiff … received the medical records that the basis of the case and the attribution of the plaintiff’s injuries to the failures on 14th and 15th [December 2007] could be known.” To that it might usefully be commented that few plaintiffs are able to read medical notes and that interpretation is difficult save in the unlikely event that negligence is explicitly admitted on the face of them. Thus medical records are not of themselves always facts “knowable or ascertainable” by a plaintiff even upon receipt. A reasonable time to ascertain whatever fact is to be found within such notes, supposing them to have been sought at a time when it was reasonable to do so, and for an expert to report a fact that gives rise to a claim in negligence ought to be allowed.

Court of Appeal
16. The Court of Appeal did not take a different view. Peart J, having analysed the relevant statute and considered the authorities, concluded that the judgment of the High Court should not be disturbed:

24. The question therefore arises whether the omission to scan him after the first surgery was something that the plaintiff might reasonably be expected to acquire prior to the 10th August 2010 from facts of observable or ascertainable by him, or from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek. While the trial judge did not directly address that question, it is implicit from his judgment that he considered that the plaintiff could not have known about the omission to scan him from anything observable by him, as it was only his hospital records that revealed that essential fact to him. Was it reasonable to expect that he should have sought the assistance of his doctors to further ascertain if there was some omission or act of negligence that necessitated an unnecessary second operation prior to the 10th August 2010? The trial judge did not address that question directly, but again, in my view, it is implicit from his judgment that his view was the plaintiff could not reasonably have been expected to do so when he saw Mr. Murchan in January 2009. He referred to the fact that Mr. Murchan did not have the hospital records at that time. He also referred to the letter that Mr Murchan wrote to the plaintiff’s GP after that consultation in January 2009. The trial judge concluded that “the plaintiff’s initial concerns as to any faults whatsoever on the part of the defendants for any significant injury must have been assuaged by Mr M’s report in 2009”. That is a conclusion that was open to the trial judge in the light of the letter from Mr Murchan to the GP, and the evidence of the plaintiff. In the light of these findings, it could not be reasonable to find that the plaintiff ought at that stage and before August 2010 to have embarked upon a course of further inquiry, with or without the assistance of medical experts, with a view to finding out if there had been some negligent act or omission which necessitated the second operation from which all else ensued.

25. The defendant has sought to rely on my judgment in Farrell v. Ryan [2016] IECA 281 for a submission that the plaintiff did not need to see his hospital records in order to know that he had suffered a significant injury since he already knew that at latest by the time he saw Mr Murchan. In my view the present case is so different on its facts to Farrell v. Ryan as to be easily distinguishable. In the latter, the plaintiff at the relevant time knew that she had undergone an unnecessary symphysiotomy, and that fact alone was sufficient for time to start to run against her. She did not need her hospital records for time to start to run. On the case she was making (i.e. that a symphysiotomy was in all circumstancesan unnecessary and negligent act) she knew enough already.

26. The present case is very different. Here the plaintiff did not know the essential fact which grounds his allegation of negligence, namely that no scan had been performed by Prof. N, until his solicitor received his hospital records in March 2011. He certainly did not know this when he consulted Mr Murchan in January 2009, and nor did Mr Murchan.

27. In his judgment the trial judge carefully and thoroughly analysed the relevant authorities to which he had been referred by the parties. It is unnecessary that I do so again. I agree with his analysis. I am satisfied that he correctly applied the legal principles deriving from same to the facts of this case, and that he was correct to conclude that the plaintiff’s claim was not statute-barred for the reasons which he gave.

Application of legal principles
17. What is at issue is the application of the principles set out in O’Sullivan and it is clear that cases of hidden injury or consequences are not easy to analyse. Both the arguments on this appeal and in that case form the basis for the principles set out in O’Sullivan.

18. On this appeal, Tallaght hospital claim that there is nothing to justify the plaintiff apparently waiting over a period from the time when he had received advice as to his hernia from the new surgeon he consulted to the time he decided to consult a solicitor. That period, as the chronology states, ran from 14 January 2009 for a full two year period up to the time when the plaintiff first consulted a solicitor on 31 January 2011. Based on this, Tallaght hospital make the following submission:

23. Various verified replies to particulars were pleaded. On 26 April 2013 in Request 1 the Appellant asked the Respondent to state when the Respondent first knew he was injured. Request 3 asked for particulars of the acts of omissions being relied on and the date upon which they were first known. On 8 July 2013 the Respondent replied that he associated this with receipt of a report from Prof. [K] on 20 May 2012.

24. In replies dated the 29 April 2014 the Respondent crucially clarified a focused particular of his pleading; asked what prompted him to first attend a solicitor before he claimed he knew about the perforation, he says (Reply 3.3) that he became concerned as to the quality of the care he was afforded when he began to encounter difficulties with his hernia”

“The [Respondent] had become concerned about the quality of the care he had received because of the difficulties he was experiencing with his hernia.”

25. The same replies also dealt with the Respondent’s state of mind after what has been relied on as an “assuaging” event in January 2009 as follows (at Reply 3.4):-

“Following this, the [Respondent] began to question whether this was an acceptable outcome for him and he became desirous of seeking an expert medical opinion on liability and causation regarding the hernia.”

26. In light of the legal points discussed below, the Court is asked to bear this in mind – following January 2009, the Respondent “began to question whether this was an acceptable outcome for him” and “he became desirous of seeking an expert medical opinion on liability and causation regarding the hernia.”

19. In answer to that submission, it is necessary to quote a passage, footnotes omitted, from the submissions of the plaintiff, the length of which demonstrates the extent to which plain issues of fact are capable of argument as to interpretation:

3. The injury suffered by the Plaintiff for which he was awarded compensation was the significant hernia sustained by him as a result of the second operation on the 19 December 2007. He suffered an infection after the first operation on the 11 December, 2007 and the extent of his infection necessitated the second operation. The initial infection arose due to a tear to the Respondent’s small bowel caused during the first operation. However, the extent of the infection was caused by the omission to scan the Plaintiff’s small bowel on the 14 December, 2007 and thereafter to repair it by a laparoscopic procedure on the 14 or 15 December.

4. The Respondent had no knowledge, and could not reasonably have been expected to have knowledge, of this omission until receipt of the expert report from Prof. [K] in May, 2012 or on receipt of his medical records in March 2011 at the earliest. Whilst the Plaintiff had some concerns about his treatment during both operations he was ultimately incorrect in his suspicions in that regard.

5. To place the Plaintiff’s state of knowledge in some objective context it is worth noting that the surgeon who carried out both operations (Prof. [N]) was of the opinion, including during the trial in the High Court, that the small bowel had not been entirely ruptured at all during the first surgery and that there was no significant evidence of infection by the 14 December. Mr. Murchan, a respected surgeon whom the Plaintiff had seen in January, 2009, was of the opinion that the cause of the Plaintiff’s hernia was in the main “longstanding” and “only related to the indexed procedure to a small degree such as, I believe, any operation might produce”. The trial judge found as a fact that the Plaintiff was “assuaged” by this and the Court of Appeal has held that this was clearly open to the trial judge based on the evidence, see para 24 of the Court of Appeal judgment, Peart J.

6. While the Appellant states that the Plaintiff had concerns from an earlier stage about his overall treatment and care (and the nature of his concerns are important and will be set out further below) it is important to note that it is well established by the authorities that it is not enough that a Plaintiff should know that the injury is due to “an act or omission” of the Defendant, they must know that the injury is attributable to “the act or omission which is alleged to constitute the negligence”. As well as being established by the authorities, the foregoing statement is of significant practical importance. For example, the same general factual matrix as present in this case, could for example in another case mean that different Defendants (two different surgeons) might be responsible for each operation and a further Defendant again (a Hospital) might be responsible for the care in between the operations; so the knowledge at issue is not simply about some fine detail as to the particulars of the claim. It is significant therefore that the Plaintiff’s initial concerns were around the surgery he had received and in that sense it was ultimately established that he was “barking up the wrong tree” (see paras 2.23, 5.16 and 6.6 of the High Court judgment).

7. It is also important to bear in mind that medical negligence cases present particular challenges for a Plaintiff which are relevant to the Statute; and that those involving omissions are even more likely to be less obvious to a patient. In that regard the Respondent points to the judgments in Fortune v McGloughlin (a case where a midwife omitted to monitor the Plaintiff properly during the later part of her pregnancy) and Naessens v Jermyn (where the claim centered on the omission of a Hospital to carry out certain scans post initial surgery) as being particularly helpful in their analysis as to when the necessary “knowledge of attribution” can be said to have been acquired. In Fortune, the knowledge of attribution was only acquired when the Plaintiff had received her records and an independent expert medical report (see page 532) whereas the Plaintiff had initially believed the fault lay with Holles Street. While in Naessens, the Plaintiff had been somewhat concerned at the different levels of treatment he had received in St. Vincent’s Hospital compared to that provided to him by St. James’s Hospital but he only began to make formal enquiries following reading a general article in a newspaper and having a discussion with a friend that lead him to contact a solicitor. Naessens also makes it clear that there is no requirement for a triggering event, see page 26.

8. Accordingly, it is respectfully submitted that it was entirely open to the High Court to find as a fact, having applied all of the correct legal principles, that at para 6.10:

“The Plaintiff in this case was not and could not have been aware that he had suffered an injury due to the failure of the defendant to examine by way of CT scan or similar his small intestine on 14th and to operate on 14th or 15th. This knowledge of attribution could only and did only arise on the receipt of the report of Prof. K. or, arguably, when the Plaintiff received the hospital records. Either date of course is within the statute.”
9. The Court of Appeal, at paragraph 24 of its judgment appropriately addresses the question of constructive knowledge within the meaning of sections 2(2) and (3) and concludes that based on the evidence and findings of the trial judge “it could not be reasonable to find that the plaintiff ought at that stage and before August 2010 to have embarked on a course of further enquiry, with or without the assistance of medical experts, with a view to finding out if there had been some negligent act or omission which necessitated the second operation from which all else ensued.”

Analysis of this case
20. Certainly it is accurate that there was a substantial, approximately two year gap, during which nothing was happening from January 2009 to January 2011. However, it is also the case that on consulting the second surgeon in January 2009, the plaintiff had been steered in the direction of thinking that his abdominal condition arose due to the natural progression of a pre-existing condition. At that consultation, the trial judge noted that the surgeon advised against any further surgery, due to reasons such as the difficulty in repairing the hernia and the risk of further infection, which meant the plaintiff “accordingly did nothing about the problem and hoped that his condition would improve.”

21. Supposing that no such consultation and report had happened in January 2009, what would be the situation? It must be that the plaintiff would then have failed to seek out facts when it would have been reasonable for him to seek out those facts. But, that is not what happened here. Thus, on seeking advice as to the cause of his injury, because the plaintiff turned in the wrong direction consequent on professional advice, the plaintiff reasonably considered that his illness was due to natural causes. Hence, he felt that there was no cause of action based on an expert interpretation of fact and he waited. Peart J, in the Court of Appeal, rightly points out at paragraph 24 that the issue of this two year delay, the full length of the limitation period ordinarily applicable, was not analysed by the trial judge: “Was it reasonable to expect that he should have sought the assistance of his doctors to further ascertain if there was some omission or act of negligence that necessitated an unnecessary second operation prior to the 10th August 2010?” As Peart J stated, while the trial judge “did not address that question directly”, his view was that “it is implicit from his judgment that his view was the plaintiff could not reasonably have been expected to do so when he saw [a second surgeon] in January 2009.”

22. The limitation period was delayed in the exceptional circumstances of this plaintiff being given, in good faith and on the basis of a professional assessment, an incorrect set of facts in consequence of taking the reasonable step of consulting expert medical advice. In consequence, it would not be within the section of the 1991 Act for the plaintiff to be required to reverse the conclusion, based on expert advice, that what was involved was a natural progression of his existing condition. What he had not been aware of until much later was the facts which were within the section of the 1991 Act. These identified an act or omission on the part of the treating surgeons as having caused his significant injury. Thus, it was only later that it became reasonable for him to act: that is when he became aware that the delay in treating him on second presentation was the operative cause of the hernia problem. Had he not been assured by the surgeon he consulted after the treatment in question that his hernia problem was due to an existing condition, it would have been reasonable for him to have earlier pursued the case. This could have been done by obtaining medical records and consulting with an expert. The first independent expert he consulted thought that the hernia resulted from natural causes. On the facts, therefore, the judgment of the Court of Appeal should be upheld.