Gaeilge

Title:	O'Sullivan -v- Ireland, the Attorney General & ors
Neutral Citation:	[2019] IESC 33
Supreme Court Record Number:	34/2018
Court of Appeal Record Number:	2014 no 383
High Court Record Number:	2008 no 6906P
Date of Delivery:	05/23/2019
Court:	Supreme Court
Composition of Court:	O'Donnell Donal J., McKechnie J., Dunne J., Charleton J., Finlay Geoghegan J.
Judgment by:	Charleton J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring Finlay Geoghegan J. Link McKechnie J., Dunne J., Charleton J. Charleton J. Link Dunne J. O'Donnell Donal J. Link

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O’Donnell J
McKechnie J
Dunne J
Charleton J
Finlay Geoghegan J

Between

Judgment of Mr Justice Peter Charleton of Thursday 23 May 2019

1. At issue on this appeal is the interpretation and application of section 3 of the Statute of Limitations (Amendment) Act 1991 as amended. This 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 instead is 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. The purpose of this judgment is both to decide the individual appeal and to set out the relevant principles.

2. In these cases, very often the issue of whether the limitation period has been breached or not is tried on a preliminary basis; thus potentially without all of the full facts being heard. This does not always help. While the alleged injury to the plaintiff occurred in this case in September 2005 in the Bon Secours Hospital in Cork, the plaintiff and defendant, to date, have only a judgment of the High Court and three judgments, one dissenting, of the Court of Appeal on the limitation issue. By a determination dated 29 June 2018, this Court enabled a further appeal. While the Bon Secours Hospital has accepted any liability which may arise on behalf of all defendants, but which is contested, no decision on liability has been made. It is now more than 13 years since the plaintiff Oliver O’Sullivan contracted Methicillin-resistant Staphylococcus aureus, commonly called MRSA, during the course of what might otherwise have been an uncomplicated operation in that Cork hospital.

Statute of Limitations (Amendment) Act 1991

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. It would be sensible, as O’Donnell J points out in his dissenting judgment, for the entire corpus of limitations law to be subject to statutory revision and restatement. Any analysis of where the plaintiff and the defendant stand as regards limitations requires that the relevant section of the current 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.

Facts found in the High Court

7. The plaintiff, then aged 25 years, entered the Bon Secours Hospital in Cork on 20 September 2005 and underwent a hemicolectomy operation. If this operation had been conducted negligently, leaving the plaintiff with a disability, then proceedings should have been commenced by 19 September 2007. The operation involved the removal of part of the large intestine. Risks associated with this kind of operation include excessive bleeding, internal injury, a potential for a colostomy, either temporary or permanent, where reattachment of the intestinal tract is not then possible, anastomic leak where the two remain parts of the colon are reattached, and infection. He was discharged without apparent complication. As it turned out, there was in fact a problem. He had contracted and an extremely severe MRSA infection. This necessitated his emergency readmission to hospital on 30 September to undergo surgical incision of the abdominal wall and the connection of the ileum, or small intestine, externally; an ileostomy. Whilst in the process of recovery from this serious operation, he was told by a hospital doctor that he had been infected by MRSA in the course of the first operation, thus necessitating the second. The plaintiff gave the following evidence about a doctor mentioning MRSA to him:

Well, at the start I didn’t know anything about MRSA, I never heard of MRSA. I knew nothing about MRSA. … It was, the first time I heard I [had] MRSA was when [a doctor treating me after the second operation] came to me and asked me was I in any other hospital and I said I was in the South Infirmary in July [2005] and she said, well, you probably picked up the MRSA there. … it was just after having emergency surgery.

8. That conversation took place on 4 October 2005. Kearns P, the trial judge on the preliminary issue in the High Court, held that the doctor had made no mention of any other hospital and that the plaintiff’s “distressed state” to some degree “informed his approach to his recollection of” that conversation with the doctor. This may be a reference to what the plaintiff told his solicitor. In other words, the finding of fact by Kearns P was that because of his condition “Mr O’Sullivan didn’t really know what had happened, how could he, he had so much on his plate.” In March 2006, while recovering, his mother told him of a television programme which featured a man who had lost his leg due to infection with MRSA. Because the programme gave a telephone number of a person who had contracted MRSA, the plaintiff rang the man featured and, in turn, was given the number of a solicitor. Because the ileostomy was shortly to be reversed, reattaching his digestive tract, the plaintiff did not want to perturb the hospital with any request from a solicitor to see his records. The plaintiff then made a personal freedom of information request, as drafted by his solicitor privately, to the hospital. That was responded to by a scrivenery charge whereupon his solicitor intervened and asked that the fee be waived because “this request for his medical notes” was made “because he contracted a hospital-acquired infection in your hospital.” The plaintiff was admitted to reverse the ileostomy on 26 March 2006 and discharged with a successful result eight days later. On 17 July 2006, his solicitor received the hospital notes. The 800 pages of records included a report on a swab from the peritoneum collected on the date of the second emergency operation on 30 September 2005 noting “MRSA heavy growth isolated”. His solicitor used a general practitioner to filter out potentially stateable cases and that doctor reported on 22 February 2007. Apparently, and this cannot be here stated as a fact but only as part of an analysis of the plaintiff’s potential case, co-analysis of the notes of other patients indicated that there had been an outbreak of MRSA in the hospital during the time of the first operation. On 19 September 2007, two years after the first operation, the time for taking a personal injury case would have expired. The preliminary report, of 17 July 2006, however, indicated a cause for obtaining a specialist report. That report, which was dated 16 May 2008 was received by his solicitor and him on 3 June 2008. Asked during the preliminary issue hearing in the High Court as to why he had contacted a solicitor in the first place in March 2006, the plaintiff said:

Because I wanted to find out what happened in the last six months. Did something go wrong? … Honestly, I didn’t know it was the MRSA. In my eyes the first operation … performed I honestly thought something went wrong with that. Nothing to do with MRSA. And I swear on that. Swear.

9. It was on 19 August 2008 that the plenary summons was eventually issued against the hospital. Two years before that would have been 20 August 2006. Issuing on 19 August 2008 was a month short of three years after the plaintiff had undergone the first operation. To be viable, the date of issuing proceedings has to be within two years of knowledge as required by the section, with Kearns P in the High Court finding that the clock began to tick on 22 February 2007; that is the date when the general practitioner reported to his solicitor that this case was, apparently, part of an outbreak of MRSA, the idea apparently being that special precautions should have been taken by the hospital. Kearns P held that “marrying up” the facts with the relevant section of the legislation:

[U]nless this was a case where one could say that the doctrine of res ipsa loquitur were to apply, and I don’t take [counsel for the defendant] as making that case, it seems to me that facts had to be clarified to enable the case [to] proceed. And certainly these were not facts observable or ascertainable by the plaintiff himself and, indeed, I don’t think they were ascertainable by the solicitor either. And they could only be ascertained with the help of a medical or other expert. And the question then becomes were reasonable steps taken? Did the plaintiff in this context take all reasonable steps to obtain, and where appropriate, act on that particular advice?

It seems to me that reasonable steps were taken, and albeit that several months had passed before [the general practitioner doing the analysis on behalf of the solicitor] replied, but it seems to me really the time from which the clock starts ticking is the 22nd of February 2007 when the report came to hand from [that general practitioner] and there was a congruence of all the requisite elements under the statute to start the clock ticking. I don’t think the clock started to tick until that point in time and that being so, insofar as the issue of the statute is concerned I am resolving that issue in favour of Mr. O’Sullivan so that his case can proceed.

The Court of Appeal

10. The Court of Appeal upheld the High Court decision; [2018] IECA 8. Ryan P, with Edwards J concurring in a separate judgment, was of the view that a “plaintiff does not need to know all the particulars of negligence that will be detailed in pleadings” but “does require certain specific information as defined in the 1991 Act”, which he described as being required “to know in general terms that he has a claim and what that is based on.” Ryan P stated:

60. Accordingly, for our purposes, questions along the following lines arose in regard to s. 2(1)(c): to what act or omission does the plaintiff attribute his injury? And when did he first make the connection between his injury and that act or omission? This means that the plaintiff had to know about the act or omission and the connection.

61. The plaintiff’s knowledge that he contracted MRSA in the hospital does not mean that he was in possession of this information. Could he reasonably have been expected to acquire that knowledge from facts observable by him - if so, which facts? Or from facts ascertainable by him - if so which facts? I do not think so. There is nothing in the evidence or argument to suggest how Mr. O’Sullivan could have known these things from any facts that he should have observed or ascertained. This knowledge is what the plaintiff himself knows or should find out. Matters that require expert assistance are the subject of separate provision.

11. The view of Ryan P was that the plaintiff had taken “all reasonable steps to obtain that advice as required by s. 2(3)(a)” and that Kearns P “was correct to dismiss the motion [to strike out the claim on the limitation issue].” His essential reasoning as to the necessary level of knowledge required under the section is encapsulated in the following paragraphs:

62. The facts, as they appear material to me, are that after he had heard about the television programme from his mother, the plaintiff contacted Mr. Kavanagh and Mr. Simon in turn, looking for information. Mr. Kavanagh referred him to the solicitor who knew nothing about Mr. O'Sullivan’s case, just like Mr. Kavanagh. The plaintiff knew he had been ill with MRSA in hospital, but not more. Specifically, he did not know whether any acts or omissions of the hospital or his doctor might have caused his illness. His state of knowledge was different from the two other plaintiffs in whose cases a TV programme also featured. The fact that Mr. Simon was “an MRSA solicitor” is to me irrelevant. That is why Mr. Kavanagh recommended him to the plaintiff, but that was essentially the beginning of the process as the trial judge found and as appears to be clear from the evidence. The point is that Mr. O’Sullivan was looking for information, not supplying it. In those circumstances, it seems to me to be illogical as well as unreasonable to fix the plaintiff with knowledge of the very matters on which he was consulting people in search of information.

63. He did not know whether the hospital or the surgeon caused him to contract the infection and by what acts or omissions. He did not have a basis for believing that his condition was capable of being attributed to an act or omission which he could identify in broad terms so that he could go to a solicitor to seek advice about making a claim for compensation. See Spargo test (3) above. He was I think much closer to the position identified in test (4). This is where his knowledge of what the potential defendants, the hospital and the surgeon, did or did not do was so vague or general that he could not fairly be expected to know what acts or omissions might form the basis of his claim.

64. In the circumstances, it must be considered reasonable for Mr. O’Sullivan to have obtained expert medical advice. In order to have the knowledge for the statutory purpose Mr. O’Sullivan needed to make a connection between the acts and omissions he was complaining about and the condition and that was absent it seems to me. And while in the circumstances I do not think it makes any difference, the primary defendant was not known because the defendant that Mr. O’Sullivan is accusing of negligence is the hospital and I do not think there was a basis for thinking that Mr. O’Sullivan knew or ought to have known prior to getting Professor Scurr’s report that the hospital and not a treating doctor was responsible for his condition of MRSA.

65. Following Mr. Simon’s advice, Mr. O’Sullivan looked for his hospital records. Until they were received and examined, he and his solicitor could not have knowledge of the acts or omissions to which his illness was attributable. That is an essential point in the case, in my judgment. And that is what Kearns P. found as he succinctly expressed it in his ex tempore judgment. In my opinion, it was reasonable for Mr. O’Sullivan to seek medical expert advice as to the causation of his injury. He did not himself make that connection, and it was only after becoming aware of media information that he followed up the question and consulted a solicitor. The legal adviser would obviously have wanted to get a medical opinion, but before he could do that, he had to get the hospital records, which Mr. Simon set about obtaining. That happened on 17th July 2006, and the solicitor got a preliminary report from Dr. Cummins on 22nd February 2007. The proceedings were instituted by personal injuries summons on 19th August 2008.

12. Edwards J, at paragraph 26 of his judgment, agreed that in the circumstances, it was:

reasonable for a plaintiff to seek expert assistance in understanding his medical records, not for the purposes of identifying specific negligence or breach of duty, but for the purpose of identifying broadly the causally relevant act or omission that resulted in his injury, where that cannot be otherwise imputed to him, or he cannot be fixed with constructive knowledge of it.

13. Dissenting, Irvine J focused on the events in the hospital, holding at paragraph 25 that there was a “distinction to be drawn … between knowledge of acts and/or omissions on the one hand and knowledge of negligence, nuisance or breach of duty on the other”, with only “the former … relevant for the purposes of assessing when time starts to run against a potential claimant”. At paragraph 26 she stated:

Accordingly, for the purpose of seeking to ascertain the point in time at which Mr. O’Sullivan should be deemed to have had knowledge for the purposes of s. 2(1)(c), the trial judge was required, as Geoghegan J. advised in Gough v. Neary, to consider “what was the ‘act or omission’ which was ‘alleged to constitute negligence’ in this case?” I will return to consider this issue later.

14. Referring expressly to the conversation between the plaintiff and the doctor treating him after the second emergency operation, Irvine J stated that he “had been told … on the 4th of October, 2005 that he had contracted MRSA whilst in hospital”. But, since the plaintiff was not aware because of his extremely ill condition that his troubles were due to the infection as and from that time, this was not the point at which time began to run:

54. I am accordingly satisfied that, applying the Spargo principles to the facts of the present case, Mr. O’Sullivan’s date of knowledge cannot be postponed to the date upon which he received Dr. Cummins’ medical report and, at the latest, he must be considered to have had the relevant knowledge as of the 17th July, 2006 [when the plaintiff’s solicitor received the hospital notes].

Limitations

15. Construction of a section of a statute should take place within the context of all other provisions of the legislation that bear on the section under consideration and against the background of the purpose for which a provision was enacted.

16. In The People (Attorney General) v Kennedy [1946] IR 517 at page 536, Black J emphasised context as central to the meaning of a statutory provision:

A small section of a picture, if looked at close-up, may indicate something quite clearly; but when one stands back and views the whole canvas, the close-up view of the small section is often found to have given a wholly wrong view of what it really represented. If one could pick out a single word or phrase and, finding it perfectly clear in itself, refuse to check its apparent meaning in the light thrown upon it by the context or by other provisions, the result would be to render the principle of ejusdem generis and noscitur a sociis utterly meaningless; for this principle requires frequently that a word or phrase or even a whole provision which, standing alone, has a clear meaning must be given a quite different meaning when viewed in the light of its context.

17. Personal injuries are defined by section 2(1) of the Statute of Limitations Act 1957 as including “any disease and any impairment of a person’s physical or mental condition”. Section 11(2)(b) of that Act provided that an “action claiming damages for negligence … where the damages claimed by the plaintiff … consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued.” This provision was deleted by section 3(2) of the 1991 Act. The limitation period in respect of personal injuries is now governed by s 3(1) of the 1991 Act, as amended by s 7 of the Civil Liability and Courts Act 2004, which established a two year limitation period. The change effected by the 1991 Act was to provide an alternative date to the commencement of the limitation period in personal injury cases providing that such a claim was not to be “brought after the expiration of two years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.” Section 221 of the Legal Services Regulation Act 2015 has amended the 1991 Act and introduced a three year limitation for clinical negligence cases. This section, which has not yet been commenced at the time of writing, provides as follows:

(1) The Statute of Limitations (Amendment) Act 1991 is amended—

(a) in section 3, by substituting the following subsection for subsection (1):

“(1) An action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of—

(a) in the case of a clinical negligence action within the meaning of Part 2A of the Civil Liability and Courts Act 2004, 3 years, or

(b) otherwise, 2 years,

from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”

18. Prior to the enactment of the 1991 Act, there had been challenges, or judicial queries in the course of decisions, as to the constitutionality of the inflexible provision of the 1957 Act limiting the commencement of a personal injury to three years and in relation to latent damage cases outside personal injury actions; Morgan v Park Developments Ltd [1983] ILRM 156, Cahill v Sutton [1980] IR 269, Brady v Donegal County Council [1989] ILRM 282, O’Donnell v Kilsaran Concrete Ltd [2001] 4 IR 183. In Hegarty v O'Loughran [1990] 1 IR 148 at 157, Finlay CJ and Griffin J developed a test of damage whereby time did not begin to run until the wrong could be proven to have caused loss in the sense of injury:

I would, therefore, conclude that the proper construction of this sub-section is that contended for on behalf of the defendant and that it is that the time limit commenced to run at the time when a provable personal injury, capable of attracting compensation, occurred to the plaintiff which was the completion of the tort alleged to be committed against her.

19. At page 156, Finlay CJ considered the public policy considerations that required tort allegations to be commenced within a reasonable time:

In legislation creating a time limit for the commencement of actions, the time provided for any particular type of action; the absolute or qualified nature of the limit; whether the court is vested with a discretion in certain cases in the interests of justice; and the special instances, if any, in which exceptions from the general time limit are provided, are, with others, all matters in the formulation of which the legislature must seek to balance between, on the one hand, the desirability of enabling persons with causes of action to litigate them, and on the other hand, the desirability of finality and certainty in the potential liability which citizens may incur into the future.

Rationale for extending limitations

20. There is a definite rationale, however, for extending the running of the limitation period from the date when an apparent wrong occurs to the date when it becomes apparent, or reasonably ascertainable, that some apparently unreasonable action or neglect, amounting to want of care by a defendant, in the past has altered the course of a plaintiff’s life. Coal miners exposed without protection to coal dust could be crippled years afterwards by pneumoconiosis. Working with asbestos can lead to asbestosis, a type of pulmonary fibrosis, a condition in which the lung tissue becomes scarred over time. Most such cases can be traced back to repeated exposure, often in enclosed spaces, to asbestos-containing materials in places such as construction sites or industrial facilities. While it can take years of regular asbestos exposure for lung damage to be suffered, this is not usually manifest until time passes. Such continual exposure cases also make it difficult to place the wrong at a definite time, in order to start the limitation period running. More seriously, chronic exposure is usually followed by a latency period, perhaps over decades, before symptoms present themselves. This was a situation well-known to both medical personnel and to those seeking to achieve a just result for those injured through the negligence of others. In the neighbouring kingdom, the knowledge of the development of coal dust diseases led to the enactment of an amendment in the Limitation Act 1963. In the Hegarty case, Griffin J pointed out at page 158:

There have, however, been many cases in which persons involved in violent accidents have escaped apparently unscathed, or at worst with only such trivial injuries as would not warrant an award of compensation. Nevertheless several months, or even years, later such persons have become gravely ill from a condition which was attributable to the particular accident. Likewise, there have been instances in which persons involved in trivial accidents, in which they sustained no apparent injury, later exhibited symptoms of serious injury such as brain damage. Again, there have been cases in which a foreign body was negligently left in a patient after an operation, and the patient had been totally oblivious of its presence for a considerable time before suffering any ill-effects from it. In cases such as these, if time were to run from the date of the occurrence of the wrongful act, the period of limitation of three years might very well expire before there is any manifestation of the damage suffered in consequence of the wrongful act.

21. The purpose of the introduction of a test of knowledge in the 1991 Act was to remedy a wrong that might otherwise result in the unjust barring of an action due to the passing of time. That purpose must inform the meaning of the section. As Shanley J stated in Re Steamline Limited [2001] 1 IR 103 at 105, “enactments should be given a purposive construction … which promotes the remedy the Oireachtas has provided to cure a particular mischief.” See also DPP (Ivers) v Murphy [1999] 1 IR 98 quoting Heydon’s Case (1584) 76 ER 637, and Attorney General v Simpson (No 2) [1959] IR 335 where Lavery J quoted at page 340 that 16th century case through the medium of the 7th edition of Maxwell on the Interpretation of Statutes at page 19 to the effect that “literal interpretation has … but prima facie preference” but “[t]o arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act” which requires consideration of “1, what was the law before the Act was passed; 2, what was the mischief or defect for which the law had not provided; 3, what remedy Parliament has appointed; and 4, the reason of the remedy.”

The ordinary aware plaintiff

22. A case where the knowledge alternative under section 2 of the 1991 Act applies may be contrasted to cases where plaintiffs do not have resort to any claim of unawareness. To take an example, a woman works in a factory which binds books. The machine she operates, upon pulling a lever, presses the binding upon the covers being glued with cloth. She has been fully trained in the operation of the machinery and she has experience. One day the press is engaged without the lever being pulled and her hand is trapped. What does that potential plaintiff know? She only knows that something has happened which should not have happened: that she has been seriously injured and that as she sees it something which should not have happened in accordance with standard training has occurred. As in the provision in section 2(1), it is irrelevant that she does not know what is or is not a tort as a matter of law, or what the relevant industrial safety regulations may say, or what constitutes reasonable care or the provision of a safe place of work. In respect of the running of time, that began because the plaintiff was injured and because the apparent cause of that was experienced by her. Time runs, even though it may take an engineer to say that the lever was defective or that the servicing schedule on the machine was not adhered to thus causing the relevant malfunction. To take another instance, a man is driving a car and proceeds through a junction at which he has the right of way but collides with a pedestrian in dark clothing crossing the road. The motorist does not necessarily know if he has been negligent, but his expectation might reasonably be that society should organise its legal affairs so as to ensure that if there is to be a case, it should be taken within a defined time span. The pedestrian plaintiff will consult a solicitor, but will be uncertain as to whether a case in court will be successful. All that such a plaintiff will know is that, as a pedestrian, he should have seen the car and he perhaps also thinks that the motorist in the car ought to have noticed him. The outcome is uncertain. Nonetheless, time runs from the accident. A final example would be a customer on a bus who, while descending from the top deck, slips on the stairs. Even though hurt, she notices ice cream on her shoes and on her coat. The question of who put the ice cream there would be answered by the probability that it was another customer, but the question of liability of the bus company as to whether the method of inspection, including by internal cameras or by periodic checks by the driver, was adequate, can only be answered by an examination of the records and video recordings. The customer’s legal prospect of success in a court action, is uncertain. Even still, the apparent wrong has happened and the limitation period has begun as and from the tumble on the bus stairs. In all these cases, time has run because there is nothing hidden about the circumstances.

23. Hence, the amendment as to the delay in time is not to be construed as putting the unaware plaintiff in a better position than the ordinary and aware plaintiff. It follows that what ordinary plaintiffs have when an accident happens to them in an unconcealed circumstance is an awareness that they have been injured and some sense, reasonably construed, that this happened due to something other than mere mischance and hence that it is something which might amount to a want of care on the part of an employer, or motorist, or other potential defendant. He or she seeks legal advice. The solicitor of such a plaintiff will take instructions and make the necessary enquiries. That solicitor will be aware of the limitation period, and once a reasonable case seems to emerge, no such plaintiff is able to claim that time has stood still. It is a solicitor’s duty to issue the proceedings within the limitation period, enquiries being necessary or not. It is beyond argument that the purpose of section 2(1) of the 1991 Act was to establish a reasonable degree of uniformity as between the ordinary case, such as the three examples mentioned in the preceding paragraph, and the case where there was a hidden element. Where plaintiffs were handicapped by the slow emergence of a personal injury, a potential injustice due to an inflexible limitation period is ameliorated in their favour and for that purpose. Where such plaintiffs, however, have that degree of awareness that would have enabled a plaintiff injured in the ordinary way to commence a personal injuries action, their cases are not to be treated more favourably than cases where the injury is immediately, or soon, apparent and where there is a sense of wrong sufficient to enable a reasonable person to consult a solicitor with a view to commencing litigation. In both kinds of cases, if you only know a fact that may establish negligence when an expert has been consulted, then time begins to run only at that point. In this context, it should clearly be noted, however, that a fact is to be distinguished from the expression of an opinion. In the factory case or the bus case or even in the crossing the road case, an expert opinion may be sought and may be proffered to the court during the hearing. An opinion will be given as to careful schedules for cleaning busses, or operation of machinery, or training, or lighting. Those are opinions. They are not concealed facts ascertainable only when an expert examines a situation. In both kinds of cases, where a fact is only ascertainable by consulting an expert, time is not held up by not ascertaining a fact through consulting an expert when it is reasonable to consult an expert in order to find that missing or occluded fact. An example of a fact that an expert may ascertain is often said in medical malpractice cases to be the wrong discovered on the medical notes, requiring because of their complexity a person versed in the relevant medical knowledge to uncover and to then state to be a wrong form of treatment.

24. Relevant decisions have borne out this approach; see Gough v Neary [2003] 3 IR 92; Fortune v McLoughlin [2004] 1 IR 526, Naessens v Jermyn & Anor [2010] IEHC 102, and from the neighbouring jurisdiction, Halford v Brookes [1991] 1 WLR 448 and Spargo v North Essex District Health Authority (1997) 37 BMLR 99. In some of the cases, distinctions are drawn between attributability and negligence and between negligence and causation. While these are interesting, what a trial judge deciding a negligence case needs, and what a plaintiff and defendant are entitled to expect, is some clear principle that is justified in terms of the sense and purpose of the law. Any such analysis should be capable of application in court and of comprehension by practitioners. Concision is a virtue in such an attempt. An essay in that regard by Brooke JL in Spargo at page 106 has proved useful to judges in the neighbouring kingdom but, as Geoghegan J notes in the Neary case at page 128, the application of the four principles there stated while “helpful up to a point” are “by no means easy” in terms of application. In the hope of clarity, only some points from that and other cases are referenced here.

Analysis

25. The starting point has to be a common-sense approach to the occurrence of apparent wrong and how a reasonable potential plaintiff would approach the consideration of taking an action. While many people are not good historians, which disadvantages the proper assessment by lawyers of whether they have been the victim of the tort of negligence, being left injured in consequence of specialised treatment further handicaps that situation. In an ordinary consultation with their solicitor, in a factory, or bus or traffic case, perhaps with counsel present, a potential plaintiff will attempt to point out what happened and where they see the wrong occurring. Any such discussion is pointless unless it centres on fact and focuses on what allegedly went wrong, and on why and as to what the personal injury consequences were. That is what court cases are all about. That is what pleadings are designed to give notice of. Thus, it is surely right, despite the case otherwise to have been doubted, for Sir Thomas Bingham MR in Dobbie v Medway Health Authority [1994] 4 All ER 450 to have approved the approach of Hoffman LJ in Broadley v Guy Clapham & Co [1994] 4 All ER 439 which requires judges to “look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based.” That, again, is to be taken as a reference to fact, in distinction to opinion.

26. In that regard, Geoghegan J points out at page 126 of Neary that it is not necessary “for the purposes of starting the statute to run to know enough detail to draft a statement of claim”. The level of knowledge to start the statute running is not that in the ordinary, as opposed to concealed, cases. To start time running in an allegedly concealed case:

[A] plaintiff in my opinion must know enough facts as would be capable of at least upon further elaboration of establishing a cause of action even if the plaintiff has no idea that these facts of which he has knowledge do in fact constitute a cause of action as that particular knowledge is irrelevant under the Act. But the adequacy of the knowledge must be related to the context …

27. This is also the approach of Finlay Geoghegan J; see paragraph 60. Taking a similar approach, Brooke LJ in Spargo considered that time began to run where a potential plaintiff had “a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable” by which is meant “capable of being attributed to” as “a real possibility”. In a sensible way, that judge refers to the limitation period as starting where a plaintiff has “such knowledge” to go to a solicitor to seek advice on the basis of a broad knowledge that an injury or condition “is capable of being attributed to an act or omission” which, in broad terms, a plaintiff “can identify”. The entire passage is not here quoted with approval as it seems unnecessary and potentially confusing to conflate belief with awareness; a particular kind of statutorily defined knowledge being the concept at issue in the present case. It is surely correct, however, for that judge to refer to a situation where time does not start to run in a situation where all that a potential plaintiff knows is “so vague or general that” that he or she “cannot fairly be expected to know what” is to be investigated. Knowledge is not to be attributed to a person where it is necessary to consult an expert to see whether the broad knowledge of a potential plaintiff demonstrates a connection between the condition or injury complained of and the event that the plaintiff outlines as the basis of his or her case. To repeat, many plaintiffs consult an expert for an opinion but only the necessity to consult an expert to discover an apparent fact delays time running. Where a reasonable plaintiff would be aware of the necessity to consult an expert in order to ascertain a fact, but delays, that delay does not stop the limitation period. It runs from the time when it is reasonable to consult an expert to uncover a fact and when such an expert would reasonably be expected to furnish that fact to such a potential plaintiff. Hence, to again use the wording of subsection 3, 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 that is appropriate, “to act on” such expert advice.

28. Clearly, knowledge is not to be construed as requiring any more detailed or any less particularised knowledge than the ordinary plaintiff in the factory, the bus or the motor collision case. That is not a high level of knowledge, but it is surely an equivalent level of knowledge to that which causes the clock to tick in those kind of cases. In a similar way, Geoghegan J also quoted at page 129 of the Neary case a passage from Donaldson MR in Halford at page 443 regarding the construction of knowledge:

The word (knowledge) has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context 'knowledge' clearly does not mean 'know for certain and beyond possibility of contradiction.[’] It does, however, mean 'know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence'. Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.

29. This test does not differ from the later Fortune case where at page 534, McCracken J referred to “knowledge that there was a connection between the injury and the matters now alleged to have caused the injury.” If a plaintiff is to have knowledge within the meaning of s 2(1)(c) of the 1991 Act, he or she must have knowledge at least of a connection between the injury and the matters now complained of to put her on some enquiry as to whether the injury had been caused by the matters complained of.

30. A few references to decided cases help to illustrate the principles. There are many of these. It is striking that the law has moved from miners and coal dust and builders suffering from the later manifestation of the effects of asbestos. Instead, the case law centres on the particular facts of occurrences in hospitals. Perhaps the reason for this is threefold. Firstly, the reposing of trust in medical personnel in a context where really only other medical experts may know what is right and wrong treatment. Secondly, in many of those cases, the plaintiffs would have been either relieved to have overcome a medical issue or were, as in this case, so ill as to not immediately be in a position to make enquiries or to take in information imparted to them. Thirdly, a black box mentality would perhaps ensure that in every case where something goes wrong, the general safety of patients would come before individual reputations. Perhaps that does not happen due to insurance considerations, but perhaps in the long run such an attitude would improve standards and lower costs.

31. In the Dobbie case, the plaintiff had her breast removed when a biopsy would have shown that the lump causing her and her surgeon concern was in fact benign. The decision against that plaintiff was justified on the basis that she knew at an early stage that the growth was benign. Perhaps she did not know that removal of the entire breast, as opposed to the lump, was not medically justified. In Broadley, the plaintiff had a knee operation to remove a foreign body but was left worse off. The dismissal of the plaintiff’s claim on limitation grounds was based on him being required to seek medical advice which was reasonably available and which would have shown that nerve damage had been caused. In Forbes v Wandsworth Health Authority [1997] QB 402, the plaintiff had a leg amputated. Time did not begin to run from that event but, instead, from the time when he had reasonably obtained expert advice that the amputation resulted from a failure to earlier carry out a second bypass operation. Again, the plaintiff’s claim was dismissed for failing to reasonably seek a medical opinion in a timely fashion.

32. In the Neary case, a young woman had gone into hospital for the birth of her first child. The baby was delivered by caesarean section. But, immediately thereafter, the defendant doctor had removed her womb, ostensibly as an emergency hysterectomy. Not knowing that this was not the correct step to take, it was only six years later that she learned that the operation might not have been necessary and issued a plenary summons. The Supreme Court held that for the limitation period to start, a plaintiff must have the state of knowledge as quoted at paragraph 26 above; that is know enough facts as would be capable, at least upon further elaboration, of establishing a cause of action even if the plaintiff has no idea that these facts of which she has knowledge do in fact constitute a cause of action. In Fortune, the plaintiff suffered a brain injury in the course of giving birth. As she did not have knowledge of attribution, her action had been commenced in time. In Cunningham v Neary [2004] IESC 43, the plaintiff had an emergency operation in consequence of an ectopic pregnancy. Her ovary was also removed. The advice from her family practitioner was that her treatment was appropriate. Some years later, however, the issue as to the unnecessary aspects of operations carried out by Dr Neary became widely discussed. She lost her case due to a failure to seek timely advice, the relevant section fixing her with knowledge as time ran from when it was reasonable for her to seek such expert advice.

Summary

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.

The present case

36. On the facts as found by the trial judge, and that is what the Court is bound by, if the plaintiff had been in a fit state following the second emergency operation to appreciate that he had caught MRSA and that this was the cause of his potentially devastating situation, he would then have been under an obligation to seek expert advice as to whether that was attributable to some want of care, either by act or omission, on the part of the hospital. But, on those facts, he was physically and mentally unable to receive or process that information. On suspecting that he had suffered from MRSA, which emerged as a real possibility in consequence of his mother alerting him to a television programme, he rang a man interviewed on screen through a telephone number to which she had referred him. The plaintiff then sought his hospital records. When his solicitor inspected the records, MRSA was mentioned as a positive swab result. That fact, however, was not enough to start time running. As Finlay Geoghegan states at paragraph 78 of her separate judgment, a plaintiff must identify acts or omissions that are alleged to constitute negligence. An MRSA infection can be caught in a hospital, in any event, and without negligence on the part of any treating medical person and despite care in the hygiene management of the hospital. On his solicitor having the hospital records analysed, an outbreak of the disease in the hospital from which he should have been protected became the broad knowledge which he had and on which he was to base his case. That was the point at which time began to run. Then there was a later expert report which clarified the particular alleged wrongs, but it was from the receipt of the family practitioner’s report on 22 February 2007 that time began to run. That constituted the relevant broad knowledge. Nothing prior did. On the facts as found by the trial judge, the plaintiff did not delay in seeking out such facts through consulting an expert when it was reasonable for him to do so. The fact came to his knowledge in February 2007. That was within two years of the issue of the plenary summons on 19 August 2008. This judgment thus concurs with the separate judgment of Finlay Geoghegan J.

37. The judgment of the High Court and the judgment of the majority in the Court of Appeal should therefore be upheld.

Unitary trial

38. It is disservice to the administration of justice that more than 13 years have passed since the wrong complained of. It is now over 10 years since the plenary summons was issued. Yet, all that has now been decided after a hearing in the High Court and on appeal to the Court of Appeal and to this Court is that this step in the litigation was taken by the plaintiff in time. When this happened, the plaintiff was a young man of 25. When it is eventually decided he will be a middle aged man over 40.

39. The general principle in litigation in this jurisdiction centres around the concept of the unitary trial; see Weavering Macro Fixed Income Fund Ltd (In Liquidation) v PNC Global Investment Servicing (Europe) Ltd [2012] 4 IR 681, where at pages 699-700 Clarke J identified the fundamental principles in which there should be any departure from the unitary trial principle thus:

As is clear from those authorities the trial of a preliminary issue under the rules is concerned with circumstances where it is possible to separate out a legal issue which can be determined on the basis of facts agreed either generally or for the purposes of the preliminary issue. It is also possible, under O.35, to have an issue of fact tried where the case will almost completely depend on a resolution of that factual question. What is, however, clear from all of the authorities is that the trial of an issue, formally separated out as a preliminary issue in the sense in which that term is used in the rules, is a practice which is to be adopted with great care by virtue of the experience of the courts that "the longest round is often the shortest way home". Where issues, such as the question of liability and/or causation, are tried first in a modular trial then the court is simply hearing all matters relevant to those issues, be it fact or law, and coming first to a conclusion on those issues. It is, of course, the case that if, while hearing such a module, the court comes to the view that it cannot safely reach a final conclusion on some or all of the issues to be determined in that module without also entering into evidence and legal argument relevant to some issue originally intended to be tried at a later stage, then the court can act in an appropriate way to ensure that no injustice is caused.

40. In Talbot v Hermitage Golf Club [2014] IESC 57, this Court identified that there was a limit as to the time and resources that any case could command. Since other cases awaited attention by the courts, judges could and, in appropriate cases, should intervene to ensure the efficient disposal of litigation. Cases should move on and judges are cloaked with sufficient authority to take such decisions as would ensure that this happened. Judges are entitled to move cases on, to ask for and to enforce reasonable time limits.

41. In the Fortune case, McCracken J remarked at page 534 that an issue as to knowledge and as to the stage at which a plaintiff is put on enquiry “must be a matter to be determined in each case”. He considered that it “should be emphasised that the plaintiff's knowledge of these matters is largely a question of fact.”

42. The proper application of the principles as to when the severing of the unitary trial principle is appropriate and the benefits in terms of facilitating a decision within a reasonable time should be seriously considered where it is proposed to isolate facts and to leave parties without a decision on liability. Whether litigation is taken into case management on a formal basis or not, it remains the responsibility of trial judges in every case to ensure that steps proposed to the court actually facilitate the necessity to move the case towards a final decision. That can include the steps detailed in Talbot, but must include the overriding obligation to use the resources of the courts to efficient purpose. In that respect, counsel for a plaintiff should be in a position to tell any court at any stage as to what their case broadly is and a defendant should be able to elucidate the nature of the contest joined.

43. This case illustrates how a departure from the unitary trial principle has not aided the administration of justice. There is still a case to be heard. Since, on this appeal, it is accepted by both sides that MRSA infections can occur within hospitals without negligence on the part of those running medical treatment, the focus of the case should always have been on what the plaintiff says was wrong in the way he was cared for and which led to his devastating infection. That case should now move ahead with dispatch.

Burden of proof

44. Ordinarily, the burden of demonstrating the application of a statutory provision as to limitations to the plaintiff is on the defendant. Here, there was no dispute that more than two years had passed since the injury. The exception to that bar is the knowledge test. It has not been contested that the burden of demonstrating the exception based on knowledge is on the plaintiff; see Farrell v Ryan [2015] IEHC 275 at paragraph 15 and London Congregational Union v Harriss & Harriss [1988] 1 All ER 15. In that, however, it should be borne in mind that litigation is not a game and that the function of a judge is at all times to ascertain the truth and to do justice.

Result

45. In the result, the appeal should be dismissed.