Judgment
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: | Finlay Geoghegan J. |
Status: | Approved |
Result: | Appeal dismissed |
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| Judgments by | Link to Judgment | Concurring | Finlay Geoghegan J. | | McKechnie J., Dunne J., Charleton J. | Charleton J. | | Dunne J. | O'Donnell Donal J. | | | |
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THE SUPREME COURT[Appeal No: 2018/34]
O’Donnell J.
McKechnie J.
Dunne J.
Charleton J.
Finlay Geoghegan J.
Oliver O’Sullivan
Plaintiff/Respondent
and
Ireland, the Attorney General, the Minister for Health and Children, The Health Services Executive, The Bon Secours Health System Limited t/a Bon Secours Hospital
Defendants/Appellants
Judgment of Ms. Justice Finlay Geoghegan delivered on the 23rd day of May 2019.
1. This appeal once again raises difficult questions in relation to the proper interpretation and application of ss. 2 and 3 of the Statute of Limitations (Amendment) Act 1991, as amended by s. 7(a) of the Civil Liability and Courts Act 2004 (“the 1991 Act”), to a claim for personal injuries suffered by reason of alleged negligence and a breach of duty of the defendant.
2. The plaintiff issued a personal injuries summons on 19 August 2008, making, inter alia, a claim against the hospital defendant (“the hospital”) that he had contracted MRSA during surgery on 20 September 2005 by reason of alleged negligence and breach of duty of the hospital.
3. In the High Court, the hospital brought a motion seeking to have the proceedings struck out as statute barred, as it was not commenced within two years of accrual of the cause of action or from the date of knowledge, if later, within the meaning of ss. 2 and 3 of the 1991 Act, as amended.
4. In the High Court, Kearns P. dismissed the defendant’s motion. The hospital appealed and the Court of Appeal, by a majority (Ryan P., and Edwards J., Irvine J. dissenting), dismissed the appeal. Three judgments were delivered by the judges of the Court of Appeal.
5. The hospital applied for leave to appeal to this Court and in its determination of 29 June 2018, the Court concluded that the proper interpretation and application of s. 2 of the 1991 Act raises questions of general public importance and requires consideration of a number of prior authorities: Gough v. Neary [2003] IESC 39, [2003] 3 I.R. 92, Fortune v. McLoughlin [2004] IESC 34; [2004] 1 I.R. 526, Cunningham v. Neary [2004] IESC 43, [2004] 2 I.L.R.M. 498; Byrne v. Hudson [2007] IESC 53; [2008] 3 I.R. 106, Farrell v. Ryan [2016] IECA 281, and the United Kingdom authority of Spargo v. North Essex District Health Authority [1997] 8 Med L.R. 125.
6. In all courts, the single issue for determination concerned whether or not the plaintiff’s date of knowledge within the meaning of s. 2 of the 1991 Act was on or after 20 August 2006, such that the personal injury summons issued on 19 August 2008 was within the permitted two year limitation period.
7. I have had the opportunity of reading in draft the judgment of Charleton J. I am in agreement with the decision he reaches that the appeal should be dismissed. I wish, however to set out some matters in relation to the interpretation and application of ss. 2 and 3 of the 1991 Act, as amended, which I hope may be of assistance in future claims in which the provisions are relevant. I have also considered in draft the dissenting judgment of O’Donnell J. As appears, whilst there is much agreement I respectfully disagree with the interpretation he proposes for s. 2(1) (c) of the 1991 Act and its application to the agreed facts of this appeal.
8. The dates and primary facts relevant to the appeal are no longer in dispute. The parties submitted a statement of agreed facts for the appeal:-
- 20 September 2005: The plaintiff became infected with MRSA during the course of the first operation in the appellant’s hospital
- 4 October 2005: the plaintiff, who was very ill at the time, was informed by Dr. Olive Murphy, that he had been infected with MRSA during the course of the first surgery at the appellant’s hospital.
- March 2006: the plaintiff’s mother watched a T.V. programme concerning people who had become infected with MRSA in hospitals in Ireland. She told the plaintiff about this programme and gave him the number of one of the participants, Tony Kavanagh, who had contracted an MRSA infection.
- 20 March 2006: the plaintiff contacted Tony Kavanagh, who recommended he get in touch with Ian Simon of Brian Lynch & Associates Solicitors in Galway, who specialised in MRSA cases.
- The plaintiff got in touch with Mr. Simon on 20 March 2006 and explained that he had ‘picked up’ MRSA in hospital and had been given leaflets about it. The plaintiff contacted Mr. Simon because he wanted to find out what happened to him and what went wrong.
- 2 May 2006: the plaintiff sent a ‘freedom of information’ request to the appellant hospital seeking his medical records, which said request was drafted by his solicitor, Mr. Simon.
- 21 June 2006: Mr. Simon sent a letter to the appellant hospital in which he requests that the hospital waive their fee for furnishing the plaintiff’s records and it is stated, ‘Our client has made this request for medical notes because he contracted a hospital-acquired infection in your hospital’.
- 17 July 2006: Mr Simon received the plaintiff’s medical records. The records included a report on a swab from the peritoneum collected on 30 September 2005 which reported ‘MRSA (heavy growth) isolated’. The records amounted to 800 pages.
- 22 February 2007: A preliminary report from Dr. Cummins, a G.P. whom Mr. Simon used to essentially filter potential medical negligence cases was received. While this report raised the possibility of negligence on the part of the surgeon who had performed the first operation on the plaintiff, the only issue being investigated by the plaintiff and Mr. Simon was the plaintiff’s MRSA infection, no issue was ever taken with the performance of the surgery at issue.
- June 2008: A final report dated 16 May 2008 was then received from a Mr. John Scurr, a consultant surgeon and microbiologist. A preliminary report had previously been received from him in or around September/October 2007. Mr. Scurr indicated that he did not believe there was any negligence on the part of the surgeon who performed the first operation.
- 19 August 2008: The respondent issued his personal injuries summons.
9. The motion in the High Court was heard on oral evidence, Kearns P., in an ex tempore judgment, found the date of knowledge to be 22 February 2007, when Dr. Cummins, the General Practitioner, furnished his report and concluded that there was then “a congruence of all the requisite elements under the statute to start the clock ticking”. That appears to have been date contended for on behalf of the plaintiff in the High Court.
10. In the Court of Appeal, Ryan P., upholding the decision of the High Court, disagreed, however, with the date of receipt of Dr. Cummins’ report as being the date of knowledge for the purpose of s. 2 of the 1991 Act. At para. 74, he stated:-
“74. Although it does not matter to the outcome of the appeal, I would respectfully disagree as to the date of knowledge. The judge identified the date of receipt of Dr. Cummins’s report as being the date of knowledge, as submitted on the plaintiff’s behalf. That meant that the summons was issued in time. However, I would go further and say that it was the receipt of Professor Scurr’s report that provided the last piece or pieces of the jigsaw of required information. When did Mr. O’Sullivan know that the injury he sustained was the MRSA infection, not a defective operation or some other issue, and that the injury was attributable to the acts or omissions of the Bon Secours Hospital? In my opinion that was on 16th May 2008 when his solicitor Mr. Simon received the expert medical report from the consultant surgeon Mr. John Scurr.”
11. Edwards J., in his concurring judgment, also considered the date of knowledge to be the date upon which Dr. Scurr produced his report in May 2008. Whilst he recognised that there were arguments in favour of the earlier date of February 2007, as found by Kearns P., he indicated that he did not agree with the same but it was unnecessary to set out his reasons, as both dates were within the statutory period.
12. Irvine J., in dissent, concluded that the trial judge had not applied the correct test and that if he had done so on the facts, he was obliged “as a matter of fact and law to conclude that, at latest as of 17 July, 2006 Mr. O’Sullivan had actual or constructive notice of all of the facts sufficient to meet the requirements of s.2(1)(a) to (e) of the 1991 Act”.
13. Prior to considering the authorities and, in greater detail, the judgments of the Court of Appeal and submissions, it is appropriate to consider the relevant statutory provisions, the background thereto and principles applicable to their interpretation.
Statutes of Limitation for Personal Injury Actions
14. Section 2(1) of the Statute of Limitations Act 1957 (“the 1957 Act”) defines personal injuries as including “any disease and any impairment of a person’s physical or mental condition”. Since 1957, the time limit for the commencement of such actions has differed from other actions claiming damages, inter alia, for negligence or breach of duty. Section 11(2)(b) of the 1957 Act provided:-
“An action claiming damages for 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), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty 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 time limit applied without any general provision for extension where a plaintiff was not aware of either an injury or its cause within the limitation period.
15. In 1991, that section was deleted and in substance replaced with a new limitation period provided for in s. 3(1) of the 1991 Act, which then provided:-
“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 three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”
16. The date of knowledge for the purposes of the 1991 Act is set out in s. 2 of the 1991 Act:-
17. The period of three years referred to in s. 3(1) of the 1991 Act was amended by s. 7(a) of the Civil Liability and Courts Act 2014 to a period of two years. This two year period applies to this claim.
Background to 1991 Act
18. As set out more fully by Charleton J., in Gough v. Neary, Hardiman J., in a dissenting judgment, set out in some detail the background to the 1991 Act. This included the Law Reform Commission report of 1987 and a proposed scheme of a Bill and certain English judgments referring to the origin of, as put by Hardiman J., “the strikingly similar English statutory provision” in the Limitation Act 1980 which, in turn, was based upon a 1971 report of the English Law Commission. Whilst the Irish Law Reform Commission Report referred to claims in respect of “latent personal injuries”, it is clear that the concerns being addressed were not only where the injury itself might be latent but also where a person is not aware of the cause of the injury. In Gough v. Neary, Hardiman J. cited, inter alia, the explanation given by Bingham M.R. in Dobbie v. Medway H.A. [1994] 1 W.L.R. 1234, at p. 1238, of the need for the exception provided in English section, where he stated:-
“The exception relevant for present purposes affects personal injury claimants. The need for an exception became clear when it was found that employees disabled by industrial disease did not know (and could not have known) that they suffered from the disease, still less that it was caused by their employers’ process, until well after the three year limitation period for personal injuries had expired.”
That the need for the exception was grounded by potential plaintiffs’ perceived lack of knowledge of both the fact that they suffered from the disease and the factual cause of the disease is of some relevance to the interpretation of s. 2(1) of the 1991 Act. I respectfully agree with Bingham M.R. (as he then was) on the two-pronged basis of the need for an exception.
Applicable Interpretation Principles
19. The proper approach to the interpretation of statutes of the Oireachtas is now well established. I only need refer briefly to those principles relevant to the interpretation of the 1991 Act, as amended. The starting point is the ordinary and natural meaning of the words used by the Oireachtas: Howard v. Commissioners of Public Works [1994] 1 I.R. 101. In aid of construction or interpretation of the particular words used by the Oireachtas, the courts may look to the scheme and purpose of the provisions in issue as disclosed by the statute or a relevant part: McCann Limited v. Ó Culacháin (Inspector of Taxes) [1986] 1 I.R. 196 per McCarthy J. at p. 201. The purpose and policy of the Act may be informed, inter alia, by the pre-Act law, but reliance upon same is limited by the words used by the Oireachtas in the provision under consideration: B v. Governor of the Training Unit Glengarriff Parade Dublin [2002] IESC 16 and A.B. v. Minister for Justice Equality and Law Reform and ors [2002] 1 I.R. 296. Finally, it is to be presumed that words are not used in a statute without a meaning and, accordingly, effect must be given, if possible, to all the words used: Goulding Chemicals Limited v. Bolger [1977] I.R. 211 per O’Higgins C.J. at p. 226.
Interpretation of Section 2 of 1991 Act
20. The definition of “date of knowledge” in s. 2 of the 1991 Act is not straightforward. The decided cases make this patently clear. It only arises where a defendant pleads by way of defence to a personal injuries claim that it is statute barred; the claim was not brought within two years of the date upon which the cause of action accrued and the plaintiff contends that his “date of knowledge” was not prior to a date within two years of the date of issue of proceedings. The limitation period in s. 3 of the 1991 Act, as amended, of two years from the “date of knowledge” if later than the accrual of the cause of action is an exception to the general limitation period of two years from the date of accrual of the cause of action. Whilst s. 2 is a definition section, and not either a limitation section or an exception to a general limitation section as such, nevertheless, it is a definition for the purpose of limitation period provided in s. 3, the effect of which may be to defeat a claim not brought within the relevant period, which may have some bearing on its interpretation, though, in my view, this is limited.
21. It is well established that the Oireachtas, in legislating for time limits on the bringing of actions, is essentially engaged in a balancing of constitutional rights and duties in the interests of the parties and the wider common good. In Tuohy v. Courtney [1994] 3 I.R. 1, Finlay C.J., in delivering the judgment of the Court on the challenge to the constitutional validity of the time limit in s. 11 of the 1957 Act, having made that point, stated at p. 47:-
“What has to be balanced is the constitutional of the plaintiff to litigate against two other contesting rights or duties, firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and, secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.”
22. The Oireachtas has, in my view, sought to achieve that constitutional balance in s. 2 of the 1991 Act in setting out, in subs. (1), the relevant facts of which a plaintiff must have knowledge before the limitation period commences to run, whilst at the same time in subs. (2) making provision for the imputation to a plaintiff of constructive knowledge of such relevant facts, subject to the provisions of subs. (3). This approach seeks to protect the interests of a plaintiff by requiring knowledge of the facts identified relevant to the injury and its cause and to protect the interests of a defendant by providing that, in certain circumstances, such factual knowledge may be imputed to a plaintiff.
23. Applying the interpretive principles set out earlier, having regard to the words used in the context of the scheme and purpose of ss. 2 and 3 of the 1991 Act, as amended, the following approach may be of assistance and appears to me correct. Section 2 is concerned with ascertaining the “date of knowledge” of the plaintiff for the purposes of the claim(s) made in the proceedings against the relevant defendant, who has pleaded that the claim against it is statute barred.
24. Next, it is important to emphasise that s. 2 of the 1991 Act is concerned with ascertaining the date upon which the plaintiff first had knowledge, actual or constructive, of certain “facts”. Those facts, regardless of whether the knowledge is actual or constructive, are the cumulative facts set out in s. 2(1)(a) – (e), insofar as each is relevant to the particular claim(s) made by the plaintiff against the defendant who has pleaded the statute. The focus is on knowledge of relevant facts and not on the legal consequences of those facts, which is irrelevant, as is made clear by the final phrases of subs. (1) and the authorities referred to below.
25. Section 2 refers to two types of knowledge of the relevant facts, to which I will refer for the purposes of clarity as “actual knowledge” and “constructive knowledge”. I appreciate that s. 2 of the 1991 Act does not refer in terms to “actual knowledge” or “constructive knowledge”. However, that is the effect of the express terms of the section. In Cunningham v. Neary, Fennelly J., referring to the earlier majority judgments of Geoghegan and McCracken JJ. in Gough v. Neary, stated at p. 507:-
“While Geoghegan J. and McCracken J. refer, in their judgments, to ‘constructive’ knowledge, that expression does not appear in the section. Nonetheless it is clear that they are referring to the provisions of subs.(2)”.
Section 2(1) refers to the date upon which the person (a plaintiff) “first had knowledge of the following facts…”. If the section contained no further provision as to what is to be included in the knowledge a person has for the purposes of the section, then the words used by the Oireachtas, require a court to ascertain when a plaintiff first had actual knowledge of the following facts i.e. those referred to in paras (a) – (e) in s. 2(1), insofar as relevant.
26. However, s. 2(2) provides that, for the purposes of the section:-
This subsection includes in a person’s knowledge for the purpose of determining the date of knowledge, knowledge of relevant facts which he did not have (that is, actual knowledge which he did not have) but which “he might reasonably have been expected to acquire”. This is what I term “constructive knowledge”.
27. I would respectfully suggest that in certain prior decisions, confusion has arisen as a result of a failure by the parties and, consequently, the court to make clear whether that which was at issue was a date of knowledge by reference to actual knowledge acquired by a plaintiff in accordance with s. 2(1) alone, or constructive knowledge such that, in application of s. 2(2)(a) or (b) (possibly taking into account s. 2(3)(a)), a plaintiff must be imputed to have acquired knowledge (i.e. has constructive knowledge) of the relevant facts in s. 2(1)(a)-(e), on a date earlier than his date of actual knowledge of such facts.
28. I would suggest, therefore, in a personal injury claim where a defendant pleads by way of defence that a claim is statute barred and the plaintiff contends for a “date of knowledge”, in the sense of actual knowledge, not earlier than a date within two years of the date of issue of the proceedings, a defendant should then make clear to the court whether or not it is contending for an earlier date of constructive knowledge in application of s. 2(2)(a) or (b) of the 1991 Act. The first factual issue to be determined by the court should probably be the date upon which the plaintiff first had actual knowledge of the cumulative relevant facts in paras. (a) – (e) of s. 2(1) of the 1991 Act. If the date of actual knowledge is outside of the two year period, then the claim is statute barred. There was no dispute in this appeal that the onus rests on the plaintiff to satisfy the Court that the date of first actual knowledge of the facts specified in s. 2(1) of the 1991 Act, as amended, is not earlier than 2 years prior to the date of issue of the summons, in accordance with the judgment in Farrell v. Ryan [2016] IECA 281.
29. If, however, the plaintiff’s date of first actual knowledge of the relevant facts set out in s. 2(1)(a) - (e) is within 2 years of the date of issue of the proceedings and the defendant contends that, in accordance with s. 2(2)(a) or (b), the plaintiff must be imputed to have constructive knowledge of all the relevant facts at an earlier date, then the court will have to continue and determine that issue.
30. Where a court is required to determine the date upon which a plaintiff is to be imputed with constructive knowledge of the relevant facts, it must be recalled that such knowledge is that “which he might reasonably have been expected to acquire”. Hence, it is the date upon which, on the evidence, the court decides that “he might reasonably have been expected to acquire” the relevant factual knowledge if he had taken steps to ascertain the facts with or without expert advice. That is the “date of knowledge” for the purposes of s. 2, and not simply the date upon which he might reasonably have been expected to set about ascertaining the relevant facts, with or without the assistance of medical or other expert advice.
31. The inclusion of constructive knowledge in accordance with subs. (2) is, however, subject to subs. (3). It essentially provides that a person is not to be fixed with constructive knowledge of a fact in accordance with subs. (2), where it is “ascertainable only with the help of expert advice for so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice”. There is also a preclusion where the injury itself prevents a plaintiff acquiring knowledge of a fact relevant to the injury, as was referred to in Fortune v McLoughlin. If, on the evidence, a plaintiff has acquired actual knowledge of the relevant facts with the assistance of expert advice, then it may be appropriate for a court to determine whether the plaintiff took all reasonable steps to obtain the advice and acted on it and if it so concludes, s. 2(3)(a) precludes the imputation of constructive knowledge at a date earlier than the date of actual knowledge.
32. The advantage, in practical terms, of the two or three step approach I am suggesting in determining a plaintiff’s date of knowledge for the purposes of s. 2 of the 1991 Act and distinguishing between actual knowledge and constructive knowledge, if necessary, is that the Court in the first step, in relation to the date of actual knowledge, is not required to consider issues such as whether or not a plaintiff was put on inquiry of certain facts or whether the plaintiff acted reasonably in ascertaining facts or seeking expert advice. Those are issues which may have to be considered but only if, a court is required to determine the date upon which a plaintiff is to be imputed with first having constructive knowledge, i.e. knowledge of facts he might reasonably have been expected to acquire in accordance with subs. (2). The issues which a court has to consider in determining the date upon which a plaintiff first had actual knowledge are all questions of fact as to what a plaintiff did or did not know on a given date.
33. I am not seeking to suggest that the questions of fact which a court is required to determine even for the purpose of deciding the date upon which a plaintiff first had actual knowledge of the matters set out in paras. (a) – (e) of s. 2(1) of the 1991 Act are easy. Certain are easier than others. The most difficult is that specified in para. (c), the fact “that the injury was attributable in whole or in part to the act or omission which is allege to constitute negligence, nuisance or breach of duty”. This is considered further below.
34. I wish to make clear that in referring to “actual knowledge”, I am not seeking to indicate a level of knowledge different to that which has been set out in the earlier judgments of this Court including Gough v. Neary in the majority judgments and the English cases referred to therein.
The Authorities
35. I now turn to consider the Irish authorities, commencing with Gough v. Neary. It is important to consider what is stated in each of the authorities, having regard to the particular facts and the issues identified for decision. As appears, the decisions reached in each relate to the particular facts. Similarly, the approach taken to the interpretation of s. 2 of the 1991 Act appears to be influenced by the factual issues which required decision.
36. In Gough v. Neary, the defendant obstetrician had delivered the plaintiff’s baby by caesarean section on 27 October 1992. Immediately following this, he had carried out what was termed an “emergency hysterectomy”. The defendant informed the plaintiff a few days later that he had carried out the hysterectomy. The facts are set out most fully in the dissenting judgment of Hardiman J. at pp. 97-104. In the period immediately after the operation in 1992 and the months thereafter, the defendant had informed the plaintiff that by carrying out the hysterectomy he had saved her life by reason of the bleeding which had occurred. The plaintiff, whilst distressed by what had occurred, did not take any further steps until she heard a radio programme in 1998 which referred to a doctor being investigated “for performing unnecessary hysterectomies” and gave the number of a helpline. The plaintiff called the helpline and was told that the doctor being investigated was the defendant. The plaintiff contacted her solicitor on the morning of her conversation with the helpline who requisitioned the hospital notes, instructed an expert and generally took the necessary steps to investigate whether she had a stateable action. The plenary summons was issued on 21 December 1998.
37. In the High Court, the full action was heard by Johnson J., as he then was, in April and May 2002. The plaintiff succeeded in her action and was awarded a total of €273,223.27. It appears that argument in relation to the plea of statute bar was taken during the trial at the end of the plaintiff’s evidence and the trial judge, in an ex tempore judgment, ruled against the defendant’s defence under the Statute of Limitations.
38. The subsequent appeal to the Supreme Court was limited to the defence under the Statute of Limitations and to the question of damages.
39. On the facts of the case, in the Supreme Court the issue appears to have been whether the plaintiff had the requisite actual broad factual knowledge to satisfy s. 2(1) of the 1991 Act in the period shortly after the hysterectomy was carried out in 1992, or whether she only acquired that knowledge in 1998. It was not in dispute that in 1992, she knew that the defendant had performed a hysterectomy. However, she only acquired the knowledge that the hysterectomy was unnecessary in 1998. It appears that the plaintiff contended that she did not know, until 1998, that she had an “injury” within the meaning of s. 2(1)(a) of the 1991 Act or that the injury was attributable, in whole or in part, to the act or omission which was alleged to constitute negligence on the part of the defendant, within the meaning of s. 2(1)(c).
40. The Supreme Court judgments indicate that in the High Court, Johnson J. expressly adopted the reasoning of Barr J. in Maitland v. Swan [1992] P.N.L.R. 368 (Unreported, High Court, Barr J., 6th April, 1992), equating “injured” with “harmed” for the purposes of s. 2(1) of the 1991 Act and in particular, relied upon the following passage:-
“In my view a person who undergoes necessary surgery which is skillfully (sic) performed and is successful does not thereby suffer an injury in the context of the act. Such an operation is a curative, beneficial process and has no element of harmfulness in it, even if the procedure involves removal of an important organ with inconsequence a degree of permanent disablement for the patient.”
41. That approach was rejected by Hardiman J. at p. 106, as the word “harmed” has a connotation of wrongful injury which is not to be imported into the meaning of injury in s. 2(1) of the 1991 Act. It was also expressly rejected by McCracken J. in his majority judgment at p. 136, where he stated:-
“In the present case, the plaintiff undoubtedly knew that a hysterectomy had been performed. The act of performing the hysterectomy in my view inflicted an injury on her within the meaning of the Act, and she undoubtedly knew that this injury had been inflicted as early as a few days after the operation. As I have already said, if that is so, she clearly knew that it was a significant injury.”
42. Geoghegan J., in the other majority judgment, at p. 121 expressed “very considerable doubts” about the validity of a submission based upon the approach taken in the High Court, but found it unnecessary to express a definitive view by reason of the decision reached on the knowledge required by s. 2(1)(c) of the 1991 Act.
43. All three judges in Gough v. Neary considered that injury in s. 2 of the 1991 Act should be interpreted consistent with the definition of the term “personal injuries” in the Statute of Limitations 1957. As already stated, that includes “any disease and any impairment of a person’s physical or mental condition”.
44. The second issue in Gough v. Neary, on which Hardiman J. dissented, was the date upon which the plaintiff had the requisite factual knowledge to satisfy s. 2(1)(c) of the 1991 Act, i.e. the fact that the injury (the hysterectomy) was “attributable in whole or in part to the act or omission which is alleged to constituted negligence…” on the part of the defendant. This turned on the question as to whether, as contended by the plaintiff, the relevant causal act alleged to constitute negligence was the carrying out of an unnecessary hysterectomy or, as alternatively put, that the requisite relevant factual knowledge included that the operation was unnecessary or was carried out unnecessarily.
45. The conclusion on this issue reached by the majority judges were in the following terms. Geoghegan J. at p. 130 put it thus:-
“Notwithstanding counsel for the first defendants’ forceful submissions therefore, I am firmly of the view that the relevant knowledge in this case included knowledge that the operation was unnecessary and that knowledge did not exist more than three years before the commencement of the action. I therefore believe that the plea of statute bar must fail and in that respect I would dismiss the appeal.”
McCracken J. at p. 138 concluded:-
“What is in this action alleged to constitute negligence, nuisance or breach of duty is the unnecessary hysterectomy. As I have said, there could be no allegation against the defendants had the operation been necessary. Therefore, in my view the only normal and sensible meaning of this provision as applied to the facts of the present case is that the requisite knowledge was that the operation had been unnecessarily performed. The plaintiff has issued these proceedings within the statutory time limit dating from the time she first had this knowledge.”
46. Prior to considering the reasoning which led to each of the majority judgments to a conclusion that knowledge that the hysterectomy was, as a fact, unnecessary or, perhaps more precisely, alleged to be unnecessary, I wish to draw attention to the fact that neither of the majority judgments determined precisely when the plaintiff acquired knowledge of the fact that the hysterectomy carried out on her was unnecessary. This is of importance as, in Cunningham v. Neary, McGuinness J. appears to have understood that there was a determination in Gough v. Neary that the information which the plaintiff had obtained from the media that the defendant was being investigated for carrying out unnecessary hysterectomies gave the plaintiff the requisite factual knowledge for the purposes of s. 2(1)(c) that her hysterectomy was unnecessary. It must be recalled that the time between the plaintiff hearing the radio report referring the investigation into the carrying out of unnecessary hysterectomies by the defendant in late 1998 and the issue of proceedings on 21 December 1998 was only a matter of weeks or months.
47. Geoghegan J., at p. 122, stated in relation to the timing at which the plaintiff had knowledge of the fact that the hysterectomy carried out on her was unnecessary: -
“The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed sometime after that when as a consequence of media coverage in relation to the first defendant and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary…”
48. McCracken J., delivering the other majority judgment, simply said this of the facts at p. 138, immediately after his conclusion already cited and in the context of distinguishing between knowledge of the fact that the hysterectomy was unnecessary and knowledge that it was negligently carried out:-
“The defendants seek to argue that knowledge that the operation was unnecessary must necessarily imply that it was negligently carried out. I cannot agree with this argument. Knowledge that the hysterectomy was unnecessary and knowledge that it was negligently carried out are two different things. In the present case, the plaintiff’s knowledge that the operation was, or may possibly have been, unnecessary appears to have been from comments on the radio in relation to other cases, while her knowledge that it may have been negligent presumably only came when she went to her solicitor, or upon seeking professional medical advice. They are clearly two different things.”
49. As appears, neither judge determined precisely when or how the plaintiff acquired the factual knowledge sufficient to trigger the commencement of the limitation period. It was unnecessary to do so, as it was never in dispute that if it occurred in 1998, it was within the then three year limitation period prior to the commencement of proceedings.
50. I now wish to turn to the reasoning in the majority judgments which led to the conclusion that, on the facts of Gough v. Neary, s. 2(1)(c) of the 1991 Act did require the plaintiff to have knowledge of the fact that the carrying out of the hysterectomy by the defendant on her was unnecessary. As I have already indicated, the term “was unnecessary” was used in the judgments, although, as will appear below, the level of knowledge required is not one of certainty and in so referring, I do not wish to so imply such. The factual knowledge required is perhaps more strictly that the operation was potentially unnecessary or capable of being considered unnecessary. Both judgments consider and follow a number of English judgments of the Court of Appeal relating to the similar section in the corresponding English statute, the Limitation Act 1980. They include, in particular, the judgments of the Court of Appeal in Dobbie v. Medway HA, Hallam-Eames v. Merrett Syndicates Limited [1996] 7 Med. L. R. 122, Forbes v. Wandsworth HA [1997] Q.B. 402 and Spargo v. North Essex Health Authority. As pointed out by McCracken J., there are inconsistencies within those judgments and a firm line of authority was not easy to discern.
51. Gough v. Neary, and the English judgments referred to therein, indicate that one of the causes of the difficulty of interpretation of s. 2(1)(c) of the 1991 Act (and the equivalent English sections) is the express requirement that a plaintiff must have knowledge of the fact “that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence…”, whilst at the same time each statutory provision further states that “knowledge that any acts or omissions did or did not as a matter of law involve negligence… is irrelevant”.
52. Gough v. Neary, and the authorities referred to, make clear that the phrase “the injury was attributable to” must be interpreted as meaning “capable of being attributed to” or “potentially attributable to”.
53. The more difficult questions are; (1) the identification of the facts of which a plaintiff must have knowledge; (2) what level of certainty is required, and (3) what level of detail is required to have “knowledge” of those facts for the purposes of the section.
54. First, in relation to the identification of the relevant facts, the words enacted by the Oireachtas in s. 2(1)(c) of the 1991 Act expressly provide that the injury must be potentially attributable or capable of being attributed to “the act or omission which is alleged to constitute negligence, nuisance or breach of duty”. Interpreting that express requirement in accordance with the principle that effect should be given to all the words used by the Oireachtas, it follows that it is not sufficient, as has sometimes been suggested, that a person has knowledge of the fact that the injury is capable of being attributed to an act or omission of the defendant, but rather knowledge must be of the fact that the injury is capable of being attributed to an act or omission of the defendant alleged to constitute negligence. This is also the view taken in the later English authorities, as explained in the following passage from Hoffman L.J., delivering the judgment of the Court of Appeal in Hallam-Eames, cited with approval in the majority judgments of both Geoghegan and McCracken JJ. in Gough v. Neary. Having referred to what he considered to be an incorrect view formed by the trial judge, Hoffman L.J. stated at p. 177:-
“In our judgment this is an oversimplification of the reasoning in Broadley v. Guy Clapham & Co. [1994] 4 All E.R. 439 and Dobbie v. Medway H. A. [1994] 1 W.L.R. 1234. If all that was necessary was that a plaintiff should have known that the damage was attributable to an act or omission of the defendant, the statute would have said so. Instead, it speaks of the damage being attributable to ‘the act or omission which is alleged to constitute negligence’. In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence....”
55. As pointed out by McCracken J., Bingham M.R., who had given the earlier judgment in Dobbie v. Medway, which the trial judge in Hallam-Eames had understood as only requiring knowledge of the fact that the injury was attributable to an act or omission of the defendant, agreed with the judgment delivered by Hoffman L.J. in Hallam-Eames.
56. The approach of the English Court of Appeal in Hallam-Eames has since been considered and upheld by the House of Lords in Haward v. Fawcetts (a Firm) [2006] UKHL 9, [2006] 1 W.L.R. 682. That decision concerns the application of s. 14A of the Limitation Act 1980, as inserted by the Latent Damage Act 1986, which refers to claims for damages for negligence other than those in respect of personal injuries. The claim in question was a claim for damages for allegedly negligent investment advice. Section 14A(8)(a) at issue includes, as a fact of which a plaintiff must have knowledge, that “the damage was attributable in whole or in part to the act of omission which is alleged to constituted negligence” and s. 14A(9), similar to the English personal injury provision and the Irish provision, provides that “knowledge or any acts or omissions did or did not as a matter of law involve negligence is irrelevant…” The speeches of the Law Lords in Haward consider in some detail the earlier English decisions, including those referred to in Gough v. Neary, in relation to personal injury claims and other decisions, including Hallam-Eames, in relation to the facts required to satisfy the test set out in the relevant English provisions, which is in the same terms as s. 2(1)(c) of the 1991 Act. Lord Nicholls resolved the difficulties and distinction between the facts which are relevant and the irrelevance of knowing that an act or omission did or did not amount to negligence, by succinctly stating at para. 12:-
“Difficulties may sometimes arise over the interaction of these ‘knowledge’ provisions and the statutory provision rendering ‘irrelevant’ knowledge that, as a matter of law, an act or omission did, or did not, amount to negligence: s.14A(9). By the latter provision Parliament has drawn a distinction between facts said to constitute negligence and the legal consequence of those facts. Knowledge of the former (the facts) is needed before time begins to run, knowledge of the latter (the legal consequence of the facts) is irrelevant. . . .”
57. Lord Mance, at para. 113 of the judgment, expanded a little and put the distinction between the factual knowledge which is relevant and the legal consequences of such factual knowledge which is irrelevant thus:-
“Turning to the phrase "the act or omission which is alleged to constitute negligence", the word "constitute" is in my view significant. It indicates that the claimant must know the factual essence of what is subsequently alleged as negligence in the claim. Once such knowledge has been acquired, it is under subsection (9) irrelevant whether or not the claimant knew that the relevant act or omission "did or did not, as a matter of law, involve negligence". So, there must be knowledge of the act or omission allegedly constituting negligence, but there need not be knowledge that, as a matter of law, such act or omission involved negligence. Whether an act or omission involves negligence is a matter of law for the court, even though a court may of course hear a good deal of evidence (e g, about accountancy principles and practices) in order to determine it...” (Emphasis in original)
58. Whilst the authorities clearly distinguish between relevant factual knowledge of the causally relevant acts or omissions alleged to constitute negligence and irrelevant legal consequences that such acts or omissions may constitute negligence, they also recognise, correctly in my view, that in practice, and perhaps quite often in medical negligence claims, a plaintiff may not obtain the requisite factual knowledge (even in the broad terms next referred to) of the causally relevant acts or omissions of the defendant alleged to constitute negligence, until such time as the plaintiff has also received advice in relation to the probable or potential negligence of the defendant. In Gough v. Neary, Geoghegan J. at p. 127 cites and expresses “complete agreement” with a passage to this effect from Stuart Smith L.J. in Forbes v. Wandsworth HA at p. 411:-
“In many medical negligence cases the plaintiff will not know that his injury is attributable to the omission of the defendant alleged to constitute negligence, in the sense that it is capable of being attributable to that omission, until he is also told that the defendant has been negligent. But that does not alter the fact that there is a distinction between causation and negligence; the first is relevant to s. 14(1), the second is not. The fact that in such cases it may be necessary for the plaintiff also to know of the negligence before he can identify the omission alleged to have been negligent is nothing to the point. It does not mean that he falls foul of the closing words of s. 14(1). For these reasons, I consider that the judge was correct in holding that there was no actual knowledge.”
59. Next, the degree of detail of the acts or omissions alleged to constitute negligence required before a plaintiff is to be considered, as having knowledge of same has been the subject of consideration in many judgments. In Gough v. Neary, Geoghegan J. considered in some detail the then contemporaneous English decisions, including the decision of the Court of Appeal in Spargo v. North Essex Health Authority, in which Brooke L.J. attempted to set out the principles elicited from earlier decisions.
60. It does not appear to me helpful to repeat many of the earlier citations. What I suggest is made clear by them is that a plaintiff must have broad knowledge of the causally relevant acts or omissions which are alleged to constitute negligence and to which the injury is potentially attributable. The phrase “broad knowledge” has been used in a number of the English decisions, including Broadley and Spargo, both cited and relied upon in Gough v. Neary, and was the phrase used by Geoghegan J. in Gough v. Neary. The same phrase continues to be referred to in England including by Lord Nicholls in Haward. Some of the decisions referred to “broad knowledge of the essence of the facts” or the “factual essence” of the acts or omissions alleged to constitute negligence.
61. What all the decisions make clear is that it is not necessary for a person to have knowledge of facts detailed enough to enable a statement of claim to be drafted. However, the way that has been further explained in some decisions in connection also with the level of certainty next referred has given rise to some confusion.
62. The third question in relation to knowledge which has been addressed in the previous decisions is the degree of certainty required in order to constitute knowledge of any relevant fact for the purposes of s. 2(1)(c) of the 1991 Act or the equivalent English provisions. Many of the decisions, including Gough v. Neary, refer to the test set out by Donaldson M.R. in Halford v. Brookes [1991] 1 W.L.R. 428 at p. 443:-
“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.”
63. Where confusion, in my view, has arisen, is that certain of the decisions which seek to express both the level of detail required of the acts or omissions alleged to constitute negligence to which the injury is potentially attributable or capable of being attributed and the level of certainty required in order that a plaintiff may be considered to have knowledge of the causally relevant facts, do so by stating either that a person “must know enough for it to be reasonable to begin to investigate further”, per Lord Nicholls at para. 9 in Haward, or that a person must know “enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant” per Brooke L.J. at p. 129 of Spargo. The reason for which I suggest that this formulation has given rise to some confusion is the separate and distinct test which a court may be required to apply when deciding, in application of s. 2(2) of the 1991 Act whether or when it was reasonable for a person to make inquiries about facts ascertainable by him, either on his own or with the assistance of an expert, such that if he has not done so, he may be imputed with constructive knowledge of facts which he might reasonably have been expected to acquire if he had made such inquiries.
64. The authorities relating to the definition of date of knowledge in s. 2 of the 1991 Act appear to envisage two separate and distinct types of inquiries or investigations with different legal consequences. First, as has just been referred to, a person may be considered to have a broad factual knowledge of the causally relevant acts or omissions of the defendant alleged to constitute negligence to which the injury may be capable of being attributed, and may be expressed to be a person that “knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant”. This may involve going to a solicitor, or seeking other further advice as to whether she has a stateable cause of action. Such a person is one who already has the requisite broad factual knowledge referred to in s. 2(1) of the 1991 Act such that it is reasonable that he or she pursue the further inquiries about a cause of action and commencing proceedings. Time will begin to run as this person has the requisite actual broad factual knowledge to meet the definition of a “date of knowledge”.
65. The second situation in which the authorities speak of it being reasonable that a person make further inquiries is where the person does not already have the broad factual knowledge of the causally relevant acts or omissions of the defendant alleged to constitute negligence but, by reason of identified circumstances, it is reasonable that the person commences to seek to ascertain that factual knowledge either by himself or with the appropriate expert assistance. That is a test for the purposes of the application of s. 2(2) of the 1991 Act. Where the circumstances are held to be such that it is reasonable that a person make such further inquiries, then time will not normally begin to run immediately, but will begin to run on the date a court determines that if such inquiries had been carried out, the person might have acquired the factual knowledge required to satisfy s. 2(1). That is the date upon which the person will be imputed to have constructive knowledge, although he does not have actual knowledge of the facts set out in s. 2(1), and it therefore constitutes the “date of knowledge”.
66. The next judgments I wish to consider are those of this Court in Cunningham v. Neary, and which I respectfully suggest are difficult to fully reconcile with each other and have created some confusion in relation to both that which was decided in Gough v. Neary and to the interpretation and application of s. 2 of the 1991 Act. The essential facts were that the defendant, in the course of an operation for an ectopic pregnancy in August 1991, had also removed one of the plaintiff’s ovaries. The plaintiff on two occasions after the operation asked the defendant why he had removed her ovary and did not get an explanation, having been told on one occasion that he did not like her “bloody ovary anyway” and on a second occasion, that he had saved her life and that she “should be grateful”. The plaintiff subsequently discussed the matter with her G.P. and was informed by her G.P. that on the basis of what he had learned from the defendant, it had been necessary to remove the ovary. In October 1998, the plaintiff had a hysterectomy in the Coombe hospital, in the course of which a nurse told her of her experience with the defendant and encouraged the plaintiff to complain the defendant to the Medical Council. On 19 December 1998, the plaintiff wrote a letter to the Medical Council making, it would appear, a number of grave allegations against the defendant and including complaints about the absence of an explanation for the removal of her ovary. The plaintiff did not go to a solicitor until May 2000. A report then sought from an independent expert obstetrician was received in April 2001, in which he advised that the removal of the plaintiff’s ovary had been unnecessary and represented incompetent medical practice. The judgments record that the “plaintiff swore in the High Court that she then learned that fact for the first time”. Proceedings were commenced on 22 March 2002 and the claim made in negligence alleged the unnecessary removal of an ovary in the 1991 operation. There were two judgments delivered by McGuinness and Fennelly JJ. Hardiman J. is recorded on the judgments on the Court Service website as concurring with both judgments, whilst the report in the Irish Law Reports Monthly only records his concurrence with McGuinness J. Which is correct does not appear to matter, by reason of the opening sentence of the judgment of McGuinness J., stating “I have had the advantage of reading the judgment of Fennelly J. and I agree with his reasoning and the conclusion reached by him. I wish to add a few brief comments.” Hence, Hardiman J either directly or indirectly agreed with Fennelly J., as did McGuinness J., in his reasoning and conclusion.
67. It is clear that Fennelly J. decided the appeal in application of s. 2(2) of the 1991 Act, by imputing constructive knowledge to the plaintiff. However, notwithstanding that, as already stated, McGuinness J. expressly agreed with his reasoning, it does not appear that in her own added comments she decided the appeal on the basis of imputed constructive knowledge. Rather, she accepted a submission of the defendant that, inter alia, the judgments in Gough v. Neary decided that the plaintiff’s “knowledge” that her operation was unnecessary in that case derived solely from the December 1998 reports in the media, and that such knowledge from media reports was sufficient to satisfy s. 2(1)(c) of the 1991 Act. At pp. 501-502, McGuinness J. stated:-
“In Gough v Neary in seems clear that the plaintiff’s “knowledge” that her operation was unnecessary derived solely from the December 1998 reports in the media. This was the fact that was “capable at least upon further elaboration of establishing a cause of action”. There is no indication that she had an expert medical report available to her before she initiated proceedings against the defendant. Knowledge based on media reports rather than full medical knowledge was the “knowledge that her hysterectomy was unnecessary” which was held by this court to mark the point at which the Statute started to run.” (emphasis added)
68. From the extracts already set out in this judgment, I would respectfully suggest that no decision was reached on the facts in Gough v. Neary by either Geoghegan or McCracken JJ., delivering the majority judgments that Ms Gough’s knowledge that her hysterectomy was unnecessary was “derived solely” from media reports or that it was upon receipt of the information from the media reports that marked “the point at which the Statute started to run”. What was clearly determined was that the plaintiff did not have the requisite knowledge before 1998. Geoghegan J., in the passage at p. 122 set out above at para. 42, refers to the knowledge that her hysterectomy was unnecessary, not having been acquired until “late 1998 or, indeed sometime after that when as a consequence of media coverage in relation to the first defendant and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary” (emphasis added). McCracken J. at p. 138, in the passage cited above, stated “In the present case, the plaintiff’s knowledge that the operation was, or may possibly have been, unnecessary appears to have been from comments on the radio in relation to other cases...” (emphasis added). Those statements must be considered in the context of what the Court was required to decide in that case, as the proceedings issued in December 1998, namely whether the plaintiff only acquired the knowledge that the hysterectomy was unnecessary at some time in 1998. The Court was not required in Gough v Neary to decide whether the information “derived solely” from the media reports was requisite broad factual knowledge that her own hysterectomy was unnecessary or possibly unnecessary for the purposes of s. 2(1)(c) or whether she later acquired that factual information with the assistance of her solicitor from medical records or reports.
69. In Cunningham v. Neary, as appears, the separate decision of McGuinness J., in application of what she understood had been decided in Gough v. Neary, was that the knowledge of the plaintiff, Ms. Cunningham, as derived solely from media reports in 1998 in relation to the defendant, met the requirement of actual broad factual knowledge that the removal of her ovary was unnecessary or possibly unnecessary as required by s.2(1)(c), and was, as explained by Geoghegan J., “enough facts as would be capable at least upon further elaboration of establishing a cause of action”
70. However, Fennelly J. clearly took a different approach. He initially considered the judgment in Gough v. Neary, which was against the same defendant, and identified certain differences between the situation of each plaintiff and then continuing at p. 507, he stated:-
“The important point of principle decided in Gough v Neary was that knowledge “that that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence…” for the purpose of section 2 (1)(c) includes knowledge that the operation was unnecessary. Consequently, time did not commence to run until she had knowledge of the latter fact. Geoghegan J drew a distinction between that knowledge and knowledge that the act in question was, as a matter of law, a negligent act, which is, of course, rendered irrelevant by the proviso to sub-section 1. On that particular matter, Hardiman J dissented and the matter may be open to debate in a future case. However, it seems clear to me that the Court may not, in this case, reopen that issue and, as I have said, it has not been invited to do so. In fact, however, this case can be decided by reference to sub-section 2. While both Geoghegan J and McCracken J refer, in their judgments, to “constructive” knowledge, that expression does not appear in the section. Nonetheless, it is clear that they are referring to the provisions of sub-section 2.
I am prepared to accept that the plaintiff was entitled reasonably to rely on the advice of her GP, given some time after the operation, probably in late 1991, that the removal of her ovary had been unnecessary. The question is whether she took “all reasonable steps” to obtain advice and to act upon it. The GP is the natural first port of call for a patient. He is the expert, so far as the lay person is concerned, in choosing consultants and explaining the results of their work. On that basis, the plaintiff did not have knowledge of the fact that the operation was unnecessary in 1991 and the statute did not commence to run.
However, the position changed significantly in late 1998. While the plaintiff had understandably been greatly upset by the rude behaviour, as she saw it, of the defendant, she clearly carried with her unhappy memories of her medical treatment at the hands of the defendant. I do not, by phrasing my reference to rude behaviour in a conditional way, mean to cast any doubt on the veracity of the plaintiff’s account. This is not a matter, however, that can be decided on this appeal. Counsel for the defendant has informed the Court that the defendant disputes the plaintiff’s version. Returning to the point of the case, it seems clear that the plaintiff had a conversation with a nurse in the Coombe hospital which revived her own unhappiness at the way she had been treated both medically and personally by the defendant. The nurse encouraged her to complain about the defendant to the Medical Council, a very serious step. The letter of 19th December 1998 makes a number of grave allegations against the defendant. Among them is an account of two separate complaints about the absence of an explanation for the removal of an ovary. In addition, the plaintiff learned from media reports that a number of women had made serious complaints about the defendant. This is confirmed by the statement in her letter that, if she had complained earlier, “she might have saved many other women from going through the same kind of treatment.” It was suggested at the hearing that this sentence did not necessarily mean any more than that she had been badly treated herself. However, given the other evidence of the plaintiff’s knowledge, from media reports that “some expecting mothers had experiences with him that were far worse than mine,” I think it highly likely that the plaintiff was referring in her letter to these cases.
Thus, at the stage when the plaintiff wrote to the Medical Council, she had knowledge of the fact that the defendant had removed her ovary in 1991, that she had twice asked him why he had done so, that she had received no explanation at all and that other women had made serious complaints about the defendant. This knowledge was such that it was then “reasonable” for her to seek medical or other expert advice. When she went to her solicitor in May 2000, it took a further eleven months to obtain the report of Dr Porter. This can, no doubt, be explained by the time needed to obtain the plaintiff’s medical records from the hospital. It shows, however, that, if the plaintiff had gone to a solicitor in December 1998, she would have obtained the sort of advice which would have made out a case in negligence against the defendant. Therefore, the key fact that the removal of the ovary had been unnecessary was “ascertainable” and, for the purposes of the section, the plaintiff is deemed to have had knowledge of it as of that date. I would add that I also fully agree with the analysis of the subsequent events in the judgment of McGuinness J.
Consequently, the three-year period commenced to run against the plaintiff’s claim not later than 19th December 1998 and her claim is out of time. For these reasons, I would allow the appeal and determine the preliminary point to the effect that the claim is barred by the provisions of section 3 of the Statute of Limitations (Amendment) Act, 1991. The plaintiff’s claim should, therefore, be dismissed.” (emphasis added)
71. As is clear from the above, Fennelly J. was applying s. 2(2) of the 1991 Act and imputing to the plaintiff knowledge which she might reasonably have been expected to acquire from facts ascertainable with the assistance of her solicitor and possibly a doctor instructed by him. As appears, Fennelly J. does not hold that the plaintiff had actual broad factual knowledge in 1998 after the media reports that the removal of her ovary was unnecessary. She did have knowledge that the defendant had removed her ovary in 1991, that she had received no explanation at all and that other women had made serious complaints against Dr. Neary. His finding is that it was reasonable to have then expected the plaintiff to have gone to her solicitor in December 1998, and to have sought medical and other advice. This finding must be considered in the context of the decision by Fennelly J. at the outset of the above citation that the requisite knowledge for s. 2(1)(c) “includes knowledge that the operation was unnecessary”. The finding of Fennelly J. is that it was reasonable to have expected the plaintiff to have gone to her solicitor in December 1998 and, with his assistance, to have ascertained that fact. On the evidence before the Supreme Court, which they appear to have accepted, it took eleven months to obtain the report from Dr. Porter after she went to her solicitor in May 2000 and it is this report which disclosed to the plaintiff that her operation had been unnecessary.
72. The finding by Fennelly J. that it was reasonable to expect the plaintiff to go to her solicitor in December 1998 for the purpose, inter alia, of ascertaining the facts of which she required broad knowledge is a clear and a correct application of s. 2(2) of the 1991 Act. What I would respectfully suggest may be in error is the consequent decision of Fennelly J. that, as the key fact that the removal of her ovary had been unnecessary was “ascertainable”, for the purposes of the section, by going to a solicitor in December 1998, the plaintiff “is deemed to have had knowledge of it as of that date”. What I suggest has been overlooked by that conclusion is the fact that even if the plaintiff had gone to her solicitor in December 1998, on the facts before the Supreme Court and not in dispute, as a matter of probability it would have taken a further eleven months before the key fact would have been ascertained. Hence, in accordance with s. 2(2), the plaintiff should only reasonably have been expected to acquire such knowledge of the key fact eleven months after she went to her solicitor and hence, this later date is the date upon which the plaintiff should be imputed with constructive broad knowledge of all the relevant facts required by s. 2(1).
73. Unfortunately, the misunderstanding in the judgment of McGuinness J. in Cunningham v. Neary of what had been decided on the facts by the majority judgments in Gough v. Neary has been followed by Peart J. in Farrell v. Ryan in the Court of Appeal.
74. I refer to this for the purposes of emphasising that the assessment by a court as to whether an individual plaintiff has acquired actual broad knowledge of relevant causal facts alleged to constitute negligence to which the injury is potentially attributable must be determined in accordance with the individual facts of the claim made and the evidence before it. Gough v. Neary does not establish any rule or principle that the acquisition of information or facts through media coverage may be sufficient and, similarly, it does not exclude it. It also does not determine that a plaintiff does not need to obtain his medical reports or even the assistance of expert advice prior to having broad factual knowledge which satisfies the requirements of s. 2(1)(c) of the 1991 Act. Any such finding must be made in light of the individual facts and evidence pertaining to the claim, and in application of the principles set out.
75. The judgment of Fennelly J. in Cunningham v. Neary identifies an approach to what may require to be determined where a defendant contends that the date of knowledge for the purposes of s. 2 of the 1991 Act is not the date upon which the plaintiff acquired actual knowledge of the facts sufficient to satisfy s. 2(1), but rather, should be an earlier date upon which the plaintiff might reasonably have been expected to acquire such factual knowledge, such that constructive knowledge of those facts on that date will be imputed to him. However, I suggest that caution needs to be exercised in reliance upon the judgment of Fennelly J. as he may have overlooked, probably by reason of the fact that no submission was made to that effect, that it is necessary to consider the date upon which the plaintiff might reasonably have been expected to acquire the knowledge, as distinct from the date upon which it was reasonable for him to take steps to either ascertain by himself the facts, or to seek the help of medical or other appropriate expert advice to obtain the facts.
Application of Principles to this Appeal
76. It is not in dispute that the injury suffered by the plaintiff was the MRSA infection. The dispute relates to what broad factual knowledge the plaintiff was required to have of the causally relevant acts or omissions of the hospital alleged to constitute negligence to which the transmission to him of the MRSA was capable of being attributed. Irvine J., in dissent, considered at para. 51 of her judgment that the causally relevant act or omission for the purposes of s. 2(1)(c) was “the transmission to Mr. O’Sullivan of the MRSA infection in the course of his hospitalisation…” On the other hand, the majority, Ryan P. and Edwards J. considered that the requisite knowledge was broad factual knowledge of acts or omissions of the hospital to which the transmission of the MRSA to him was capable of being attributed. Edwards J. spoke at para. 20 of the knowledge that the MRSA had:-
“…likely been transmitted to him in the defendant’s hospital due to some inadequacy or insufficiency of infection control procedures. He was not required to be in a position to specify or identify the particular inadequacy or insufficiency of infection control procedures that led to his acquiring MRSA in the defendant’s hospital – it was sufficient that he had ‘a broad knowledge of the causally relevant act or omission’.”
77. Ryan P., in seeking to identify the acts or omissions of the hospital alleged to constitute negligence of which the plaintiff required broad knowledge, considered the allegations of negligence made in the personal injuries summons and sought to identify when the plaintiff acquired broad knowledge of those facts. This approach is in accordance with that identified by Hoffman L.J. in Broadley, requiring that that the court “… 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”.
78. In my view, the majority judges are correct in their approach to this issue. Transmission of MRSA to the plaintiff is not the causally relevant act or omission alleged to constitute negligence. As Kearns P. identified, this is not a case of res ipsa loquitur. It was common case before this Court on appeal that, unfortunately, a person may acquire MRSA infection during a hospital stay without any act or omission by a hospital which would constitute negligence. The plaintiff must therefore in his claim identify acts or omissions of the hospital alleged to have caused the transmission of the MRSA to him and to constitute negligence.
79. The plaintiff, on the facts of this appeal, is required to establish that his date of knowledge for the purposes of s. 2 of the 1991 Act is no earlier than 20 August 2006. There was undoubtedly limited direct evidence given by the plaintiff or even by his solicitor on his behalf as to when he did acquire broad knowledge of the causally relevant acts or omissions of the hospital alleged to constitute negligence. It is somewhat similar to Gough v. Neary, in that the plaintiff essentially had to establish that he did not have the requisite knowledge on any date prior to 20 August 2006, such that the first acquisition of that knowledge may be held to have occurred on or after that date.
80. The first issue is whether the plaintiff has satisfied the Court that he did not have the actual requisite factual knowledge required by s. 2(1) of the 1991 Act prior to 20 August 2006. I am satisfied, on a consideration of the facts, and as was held in substance by Kearns P. and the majority in the Court of Appeal, that he has done so. He knew from October 2005 that he had MRSA. He certainly appears to have been aware at the time he got in touch with the solicitor, Mr. Simon, in March 2006 that it was potentially attributable to something that happened during his stay in the Bon Secours hospital. There was the complication of an earlier stay in a different hospital. However, he had no knowledge even on a broad basis of the factual essence of any causally relevant acts or omissions of the hospital now alleged to constitute negligence at the time he made contact with his solicitor. As is recorded in the agreed facts, “the plaintiff contacted Mr. Simon because he wanted to find out what happened to him and what went wrong”.
81. The only additional information obtained by the plaintiff with the assistance of Mr. Simon between March 2006 and 20 August 2006 were the plaintiff’s medical records amounting to 800 pages, received on 17 July 2006. Counsel for the hospital properly accepted before this Court that those records did not of themselves disclose broad knowledge of any acts or omissions of the hospital to the plaintiff or his solicitor. It provided the information that a swab was taken on 30 September 2005 which reported “MRSA (heavy growth) isolated”. Accordingly, I am satisfied that the plaintiff only acquired broad knowledge of the causally relevant acts or omissions of the hospital alleged to constitute negligence, to which his MRSA was capable of being attributed, on a date after 20 August 2006. By reason of this conclusion it is unnecessary to consider on what later date the plaintiff acquired the requisite factual knowledge.
82. The submissions made on behalf of the hospital in the courts below and to this Court included a submission that at an earlier date, and on a date between March 2006 and July 2006, the plaintiff was put on inquiry as to the circumstances of the transmission to him of the MRSA in the hospital. Hence that, in accordance with the judgment of McGuinness J. in Cunningham v. Neary, following the information given to him by way of the television programme seen by his mother and the knowledge that other people in Ireland who had suffered a similar injury to the plaintiff were seeking legal redress, he had acquired sufficient knowledge for the purposes of s. 2(1)(c) of the 1991 Act such that time should begin to run against him. That submission is not either factually or legally correct in accordance with the principles and reasoning already set out.
83. Whilst not expressly made as a submission that, in accordance with s. 2(2), constructive knowledge of the facts required to satisfy s. 2(1)(c) of the 1991 Act is to be imputed to the plaintiff on a date prior to 19 August 2006, it appears to me, in substance, to be such a submission. Ryan P. did consider whether or not the plaintiff, following the information given to him by his mother of the television programme and speaking with the identified person, Mr. Kavanagh, was put on inquiry such that, if acting reasonably he should have sought expert medical or other advice to assist him in ascertaining the necessary facts to give him the broad factual knowledge required of the causally relevant acts or omissions of the hospital to which his MRSA was capable of being attributed.
84. On the facts of this case the plaintiff did require the assistance of expert advice to ascertain the facts and did commence seeking such expert advice by contacting the solicitor Mr. Simon in March 2006. Ryan P. concluded at para. 66 that the plaintiff did take all reasonable steps to obtain (and where appropriate, to act on) expert advice within the meaning of s. 2(3)(a) of the 1991 Act. Whilst Ryan P. then indicated that it followed that the claim was not statute-barred, I think this was simply a synthesis of, or short hand way of stating, the consequences which follow from such a conclusion. Where a plaintiff satisfies a court that he did take steps to obtain advice and act upon the advice for the purposes of s. 2(3)(a), then what appears to follow is that he is not to be imputed with having constructive knowledge pursuant to s. 2(2) on a date earlier than the date upon which, with the assistance of the expert advice, he acquired the actual factual knowledge required by s. 2(1) of the 1991 Act.
85. Hence, I am satisfied that the defendant is not correct in its submission that there is a basis for imputing to the plaintiff constructive knowledge of the causally relevant acts or omissions of the hospital alleged to constitute negligence on any date prior to 20 August 2006. I am in agreement with the conclusions reached by Ryan P. and Kearns P. that the plaintiff did take all steps to obtain (and where appropriate, to act upon) expert advice within the meaning of s. 2(3)(a) of the 1991 Act. Hence, there is no basis for imputing to the plaintiff constructive knowledge of the requisite facts sufficient to satisfy s. 2(1) of the 1991 Act on a date earlier than the date upon which he acquired actual knowledge of such facts. That, as I have already concluded, was a date after 20 August 2006.
86. I would wish to emphasise that in upholding the decision of the Court of Appeal, I am not holding or intending to hold or decide as a matter of principle that a plaintiff in a personal injuries claim for medical negligence requires either medical records or the assistance of a medical expert to acquire the requisite broad factual knowledge to satisfy s. 2(1) of the 1991 Act. Whether he does or does not will depend upon the individual facts pertaining to the injury and the causally relevant acts or omissions of the defendant alleged to constitute negligence.
Conclusion
87. For the reasons set out in this judgment I have concluded that the plaintiff has established that his date of knowledge for the purposes of s.3 of the Statute of Limitations (Amendment) Act, 1991 as amended by s.7(a) of the Civil Liability and Courts Act, 2004 was not earlier than 20 August, 2006 and accordingly the hospital’s appeal from the decision of the Court of Appeal should be dismissed.
Further Observations
88. I agree with the observations made by Charleton J. in relation to the dangers of departing from the unitary trial principle in a claim such as this. I also recognise that it may be appropriate sometimes to determine a limitation issue as a preliminary issue. The Statute of Limitations inter alia protects a defendant against being required to defend a stale claim. In many instances, however, the limitation period is a period from the date of accrual of the cause of action and capable of being established with limited evidence.
89. However, as this appeal demonstrates, where reliance is placed on the later date of knowledge in s.3(1) of the 1991 Act the limitation issue may not be capable of being determined on limited evidence. Any decision to try such a limitation issue in advance of a full hearing requires very careful consideration to decide if it is in the interests of justice.
90. As O’Donnell J. observes, this appeal also demonstrates the importance of a solicitor who receives personal injury instructions within the limitation period from the date of the accrual of the cause of action always considering carefully whether a summons may, in accordance with law and professional obligations, properly be issued within such limitation period. This is appropriate to avoid exposing the client to a potential defence that the claim is statute barred with inevitable complex issues, potential delays and added expense.
91. I am also in agreement with my colleagues that a reconsideration of the statutory limitation periods applicable to personal injury actions would be desirable. These judgments identify again the complexity of the current provisions. In the meantime, I have set out in this judgment, in particular, at paragraphs 28 – 32 guidance on an approach to the trial and determination of a plaintiff’s date of knowledge for the purposes of s. 2 of the 1991 Act distinguishing between actual knowledge and constructive knowledge.