JUDGMENT of Ms. Justice Irvine delivered on the 24th day of January 2018
1. This is an appeal by the fifth named defendant/appellant from a judgment and order of Kearns P. in the High Court dated the 10th February, 2012 in which he determined, as a preliminary point of law, that the claim of the plaintiff/respondent for damages for negligence was not barred by the provisions of s. 3 of the Statute of Limitations (Amendment) Act 1991 as amended (hereinafter “the 1991 Act”).
Uncontested background facts
2. On the 20th September, 2005 the plaintiff, a cafÉ manager who resides in Cork, underwent a hemicolectomy in the Bon Secours Hospital, Cork (“the hospital”). Following his surgery, he became severely unwell. Following his discharge from hospital, he was readmitted on the 30th September when an emergency laparotomy and an ileostomy were performed. On the 4th October, 2005, Mr. O’Sullivan was informed by Dr. Olive Murphy, a consultant microbiologist at the hospital, that he had contracted Methicillin Resistant Staphylococcus Aureus (“MRSA”). He remained in hospital because of this infection until the 22nd October, 2005.
3. In March 2006, the plaintiff’s mother, who was aware that her son had suffered severe complications as a result of his MRSA infection, happened upon a television programme concerning MRSA infection. The trial judge concluded that the programme had made clear that it was possible that legal redress might be sought by persons who had contracted MRSA in a hospital setting. Mrs. O’Sullivan noted the telephone number of Mr. Tony Kavanagh, an individual who had participated in the programme, and she gave this number to her son.
4. Shortly thereafter, Mr. O’Sullivan made contact with Mr. Kavanagh who in turn put him in touch with Mr. Ian Simon, a solicitor in the firm of Brian Lynch & Associates who was at the time specialising in MRSA cases. The following is a brief chronology of the events that followed:-
20th March 2006: Mr. O’Sullivan contacted Mr. Simon concerning his MRSA infection and the complications that it had caused. He told Mr. Simon that he had been advised that he had “picked up” MRSA in hospital and had been given leaflets about it. He instructed Mr. Simon that he was unwilling at that point to seek his medical records because he was awaiting treatment in the hospital later that month and he did not want to upset his medical team.
2nd May 2006: Mr. O’Sullivan wrote to the hospital requesting his medical records. That letter was drafted by Mr. Simon.
21st June 2006: Mr. Simon wrote to the hospital further to Mr. O’Sullivan’s letter of the 2nd May 2006. He requested that the hospital waive its fee for furnishing the medical records. In doing so, he stated:-
“Our client has made this request for his medical notes because he contracted a hospital-acquired infection in your hospital.”
3rd July 2006: The hospital manager wrote to Mr. O’Sullivan enclosing his medical records.
17th July 2006: Mr. Simon received some 800 pages of medical records. These included a report on a swab test taken in the course of the surgery on the 30th September, 2005 which had a heavy growth of MRSA.
17th August 2006: Mr. Simon sought a preliminary medical report from a Dr. Cummins, general practitioner. Dr. Cummins had been retained by Mr. Simon to filter cases given the complexity of hospital acquired infections. At that time Mr. Simon was aware of Mr. O’Sullivan’s positive MRSA swab result.
22nd February 2007: A preliminary report was received from Dr. Cummins. From this report Mr. Simon, according to his evidence, learned (i) that Mr. O’Sullivan had had a helicolectomy and (ii) that a swab taken during his second surgery on 30th September was positive for MRSA.
In addition, Dr. Cummins had criticised Mr. O’Sullivan’s first surgery and had advised that it was possibly negligent. Mr. Simon also stated that Dr. Cummins was not an expert and “we were not going to rely upon him.”
September/October 2007: Mr. Simon requisitioned and later received a preliminary report from Mr. John Scurr, consultant surgeon. He confirmed that Mr. O’Sullivan had contracted MRSA during the first surgery. Mr. Simon reverted seeking a definitive report.
16th May 2008: Final report received from Mr. Scurr.
19th August 2008: Personal injury summons issued.
5. The personal injury summons is a lengthy document with over seventy particulars of negligence wherein it is maintained that Mr. O’Sullivan contracted MRSA in the course of his surgery on the 20th September, 2005. It is pleaded that Mr. Scurr, in his report of the 16th May, 2008, had advised that Mr. O’Sullivan was not identified as a carrier of MRSA prior to his admission to hospital on the 12th September, 2005 and that the swab taken from him following his illness had confirmed that he had contracted MRSA of a type commonly associated with a hospital-acquired infection. It was pleaded that, with the appropriate standard of care, Mr. O’Sullivan would not have contracted this infection and if it had been appropriately identified and treated, his injuries would have been of a significantly lesser extent than had in fact occurred.
The hearing of the preliminary issue and the judgment of Kearns P.
6. The preliminary issue was heard on oral evidence. Mr. O’Sullivan gave evidence, as did his solicitor, Mr. Simon. On behalf of the hospital, the court heard evidence from Dr. Olive Murphy.
7. In the course of his judgment, the trial judge stated that he accepted Dr. Murphy’s evidence rather than Mr. O’Sullivan’s evidence as to what he had been told by her post operatively. The substance of her evidence was that she had informed Mr. O’Sullivan that (i) he had contracted MRSA, (ii) he had contracted it in the hospital, and (iii) all of the investigations in the hospital were in keeping with that view.
8. The trial judge next observed that Mr. Simon had looked through Mr. O’Sullivan’s medical records and had sent them to Dr. Cummins who was filtering cases of this nature following which he had received a report of the 22nd February 2007 indicating a “pathway for any possible litigation to take”. Then the trial judge said the following:-
“Marrying that up with the section, unless this was a case where one could say that the doctrine of res ipso [sic] loquitur were to apply, and I don’t take Mr. Meenan [counsel for the hospital] as making that case, it seems to me that facts had to be clarified to enable the case 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?”
9. The trial judge went on to conclude that reasonable steps were taken, albeit that several months passed before Dr. Cummins’ report was obtained. Thus he was satisfied that, as a matter of law, the clock started ticking for the purpose of the 1991 Act from the receipt of his report of the 22nd February, 2007 when there was, as he described it, “a congruence of all the requisite elements under the statute”.
10. I would pause to observe that at no stage in his judgment did the trial judge identify precisely what facts he considered needed to be clarified to “enable the case proceed”, if that be the correct test, which I doubt is the case. Neither did he identify the facts that had emerged from the report of Dr. Cummins that had previously been unknown and which he relied upon to conclude that Mr. O’Sullivan on the 22nd February, 2007 was then in possession of all of the facts required for the purposes of s. 2 of the 1991 Act such that time should start to run against him from that day.
The appeal
The appellants’ submissions
11. While the notice of appeal sets out eight grounds of appeal, the principal submission advanced on behalf of the hospital is that on the facts as found by the trial judge, he erred in law when he concluded that time, for the purposes of s. 2 of the 1991 Act, commenced on 22nd February, 2007. The hospital submits that the latest possible date upon which the court could have been satisfied that Mr. O’Sullivan had the appropriate knowledge for the purposes of s. 2 was the 17th July, 2006, that being the date upon which Mr. O’Sullivan’s medical records had been received by Mr. Simon. The earlier dates proposed by the hospital included (i) the date upon which Mr. O’Sullivan first consulted Mr. Simon, 20th March, 2006, (ii) the date when Mr. Simon wrote to the hospital concerning the fee charged for providing copies of the medical records, 21st June, 2006 and (iii) the date he received his medical records, 3rd July, 2006.
12. The hospital further argues that the trial judge erred in law insofar as he failed to distinguish between facts which were ascertainable by Mr. O’Sullivan for the purposes of the date of knowledge from facts which were actually ascertained at that date. It submits that applying s. 2 to the facts of the present case, the trial judge was incorrect in concluding that time should not begin to run until the preliminary report was obtained from Dr. Cummins on the 22nd February, 2007. In addition, the hospital maintains that the High Court judge erred in law in finding that unless the doctrine of res ipsa loquitur applied, facts only observable or ascertainable by the plaintiff with the help of the medical expert had to be clarified before the statutory limitation period could run. Finally, the hospital submits that the effect of the decision of the High Court judge was to permit a plaintiff to await receipt of an expert report prior to issuing proceedings, and this is not in accordance with the prevailing jurisprudence.
The respondent’s submissions
13. Counsel for Mr. O’Sullivan submits that the trial judge applied the correct principles to the facts as found by him and that he did not err in law in concluding that, for the purposes of s. 3 of the 1991 Act, time started to run on the 22nd February, 2007. Counsel argues that he was correct to conclude that Mr. O’Sullivan had required the assistance of a medical expert in order to ascertain the facts necessary to enable him proceed with his case. Counsel submits that what Mr. O’Sullivan received from Mr. Simon was advice as to how the necessary facts could be ascertained, and that these facts were to be obtained by having the medical records scrutinised by an expert.
14. It is submitted on behalf of the respondent that given that the trial judge concluded that the necessary facts were not observable or ascertainable by Mr. O’Sullivan or Mr. Simon and could only be ascertained with expert advice, the only question was whether Mr. O’Sullivan had taken all reasonable steps to obtain the advice and the trial judge was correct to conclude that he had met his obligations in this regard.
Statutory Provisions
15. Core to this appeal is s. 3(1) of the Statute of Limitations (Amendment) Act 1991, as amended by s. 7(a) of the Civil Liability and Courts Act 2004, which provides that an action claiming damages in respect of personal injuries caused by negligence, nuisance or breach of duty shall not be brought after the expiration of two years from the date upon which the cause of action accrued or the date of knowledge (if later) of the person injured. It may be noted that the limitation period has now been increased to three years for claims in respect of clinical negligence as of the coming into force of s. 221 of the Legal Services Regulation Act 2015.
16. As to when the aforementioned statutory period is to commence that is to be a date determined in accordance with s. 2 of the 1991 Act which provides as follows:-
17. Notwithstanding the aforementioned provision, the Rules of the Superior Courts anticipate that proceedings in personal injuries actions may commence from a position of imperfect knowledge. Thus, Ord. 1 A, r. 6 provides that:-
“Where a plaintiff alleges that he was unable, at the time at which a personal injuries summons was issued, to include in the personal injuries summons any of the information required by this order to be specified in the personal injury summons, he shall include in the personal injuries summons a statement of the reasons why it is claimed that any such information could not be provided at the time of issue of the summons. The plaintiff shall, at the time the personal injuries summons is served or as soon as may be thereafter (whether by amendment or otherwise) provide such of the information required by this Order as was not included in the personal injuries summons.”
18. The following is what is stated concerning this rule by Mills and Mulligan at paragraph 10.07 of Mills and Mulligan, Medical Law in Ireland, 3rd Ed., (Dublin, 2017):
“Accordingly, where a personal injuries summons is issued before expert evidence is to hand, it is not unusual for that summons to contain a paragraph setting out (i) that expert evidence is awaited, (ii) that the summons is issued to protect the plaintiff’s position (whether by reason of avoiding delay or the operation of the Statute of Limitations) and (iii) that full particulars will be provided in such a report is to hand.”
19. It is, I believe, worthwhile to address briefly the mischief which s. 2 of the 1991 Act was intended to address. Under the Statute of Limitations of 1957, the Oireachtas had fixed a period of three years from the date when the cause of action accrued for those wishing to bring an action for personal injuries. The circumstances in which the 1991 Act was enacted is helpfully described in the following extract from the judgment of Hardiman J. in Gough v. Neary [2003] 3 IR 92. It is immaterial in this context that his was the dissenting judgment delivered in respect of the defence raised in those proceedings under s. 3 of the 1991 Act. The following is what he said at p. 106 of the reports:-
“The Act itself substantially follows the scheme of a Bill to amend the Act of 1957 which was included in a Law Reform Commission Report of 1987. This was entitled ‘Report on the Statute of Limitations: Claims in respect of latent personal injuries’. This, I think, actually epitomised the principal (though not of course the only) concern leading to the request to the Commission to formulate suggestions for reform.
This, indeed, was the origin of the strikingly similar English statutory provision, based on a 1971 report of the English Law Reform Commission. In Dobbie v. Medway H.A. [1994] 1 WLR 1234 Beldam L.J. referred to the history of the limitation of actions and continued at p. 1245:-
‘By 1963 it had become apparent that in actions for personal injury circumstances could occur which made it equally unfair to hold a plaintiff to the normal period of limitation. The injustice of such an inflexible period was demonstrated by Cartledge v. E. Jopling & Sons Ltd. [1962] 1 Q.B. 189 & [1063] A.C. 758. Due to the acts or omissions of the defendant, the plaintiffs contracted an insidious disease which was symptomless until after the period of limitation had expired. Then catastrophic symptoms developed for which they had no remedy.’
Similarly, Bingham M.R. in the same case said at p. 1238:-
‘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.’
The Commission recommended a "discoverability test". Specifically, they said:-
‘We consider that time should begin to run only where the plaintiff becomes or ought to become aware that the injury is attributable, in at least some degree, to the conduct of another.’
It appears that these considerations led to the last words in s. 2(1). Commenting on them in the annotation of the Act of 1991 in "Irish Current Law Statutes Annotated" (1991-1992), Mr. Tony Kerr, one of the authors of the standard book on the subject, quotes the relevant words and says:-
‘Consequently knowledge that the injury was as a matter of fact attributable to an act or omission of the defendant triggers the limitation period, since knowledge that these facts constitute negligence … on the part of the defendant is a matter of law and is thus irrelevant.’”
20. As is apparent from these helpful observations, the injustice which s. 2 of the 1991 Act was intended to address was the case in which a plaintiff could have no way of knowing that they had been injured during the limitation period and thus would fall foul of the statutorily imposed limitation period. The case of the factory worker who contracts asbestos and does not develop symptoms for many years thereafter is one that readily springs to mind.
Application of section 2
21. Key to the within appeal is, of course, the proper interpretation of s. 2 of the 1991 Act and precisely when, on the facts of this case, Mr. O’Sullivan may be taken to have had knowledge of those facts identified in the section.
22. It is clear from the judgment of the trial judge that he resolved the preliminary issue on the basis that Mr. O’Sullivan did not have knowledge of the requisite facts “to enable his case to proceed” (emphasis added). This, in my view, was an incorrect approach because, before a case proceeds, the plaintiff will invariably want to be in possession of a supportive expert report in respect of both causation and negligence whereas negligence and breach of duty are specifically stated to be irrelevant for the purposes of knowledge of those facts identified in s. 2(1) of the 1991 Act. What is required under s. 2(1)(c) is that Mr. O’Sullivan should have knowledge that his injury “was attributable in whole or in part to the act or omission which it is alleged to constitute negligence, nuisance or breach of duty”. However, given that no such argument was advanced on the hearing of the appeal, I will assume for the purposes of this judgment that the trial judge was not satisfied that Mr. O’Sullivan had knowledge of the facts as described in s. 2(1)(c) prior to the 22nd February, 2007.
23. There was no oral argument on the part of Mr. O’Sullivan to contest his earlier knowledge of the fact that he had been injured as per s. 2(1)(a). However, in the respondent’s written submissions, it is asserted that as a matter of law, for a person to know they have been injured they must know they have been “harmed” in the sense of having sustained an injury or an insult which was unnecessary and should not have happened. I do not believe that to be a correct interpretation of the section.
24. This precise issue was addressed by Hardiman J. in Gough where he stated he was not convinced that the word “injured” could be usefully defined by reference to the word “harmed”. He was satisfied that the word “injured” should best be defined by reference to the definition of the term “personal injuries” in the Statute of Limitations 1957 where the words are stated to include “any disease and any impairment of a person’s physical or mental condition”. He referred also to the very last words in s. 2(1) of the 1991 Act which clearly excludes from the facts in respect of which a plaintiff must have knowledge for the purposes of triggering the Statute any question of fault. Thus he concluded at p. 106 of the Irish Reports:-
“In my view, however, neither the statutory definition of ‘personal injuries’, nor an interpretation of s. 2(1) which gives proper weight to its concluding words, admit of the importation into the concept of ‘injury’ of any element of wrongfulness or blameworthiness. There is no qualitative element in the statutory formulation of the matters of which the plaintiff must have knowledge to set time running.”
25. As to s. 2(1)(c), what is clear from the authorities is the distinction to be drawn is between knowledge of acts and/or omissions on the one hand and knowledge of negligence, nuisance or breach of duty on the other. Only the former are relevant for the purposes of assessing when time starts to run against a potential claimant as was observed by Stuart-Smith L.J. in Forbes v. Wandsworth H.A. [1997] QB 402 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 section 14(1), the second is not.”
26. 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.
27. Of particular importance concerning knowledge of the facts identified in s. 2(1)(a) to (e) of the 1991 Act is s. 2(2) which provides that a person’s knowledge includes knowledge which they “might reasonably” have been expected to acquire from facts “observable” or “ascertainable” by them or from facts “ascertainable” with the help of medical or other appropriate expert advise which it is reasonable for them to seek. However, whether a plaintiff will be excused, for the purposes of computing the statutory period provided for in s. 3 of the 1991 Act, the period required to obtain such an expert report will depend upon whether they can establish, as per s. 2(3) that such advice was sought in order to ascertain a fact only ascertainable with the help of expert advice.
English Limitation Act 1980
28. It is perhaps appropriate at this point to note that the test of what is required to have knowledge for the purposes of s. 2(1) of the 1991 Act is the same as that provided for in s. 14 of the English Limitation Act 1980. That being so, there are a number of English decisions which are of some assistance when it comes to assessing whether any particular plaintiff may be found to have knowledge of the facts sufficient to satisfy s. 2(1) of the 1991 Act. One such decision is that of Brooke L.J. in Spargo v. North Essex District Health Authority [1997] 8 Med LR 125, a decision relied upon by Geoghegan J. in Gough, albeit that he considered that the principles therein advised were not cast in stone and not necessarily easy to apply in every case.
29. The principles that emerge from Spargo were the result of a rhetorical question which Brooke L.J. proposed for his own consideration, namely; what does the law require in order that actual knowledge be established? The answer to this question appears at p. 129 of the reports:-
“(1) The knowledge required to satisfy s. 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) ‘Attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;
(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”
Irish Case law
30. Before moving to consider the decision of the trial judge in the light of the statutory provisions, it is necessary to refer very briefly to a number of relatively well known decisions in this jurisdiction concerning the 1991 Act. I do so notwithstanding the very clear statements that emerge from almost every judgment concerning s. 2 of the 1991 Act, namely that each case must be decided upon its own particular facts.
31. In Gough v. Neary, the meaning of s. 2(1)(c) was analysed in considerable depth by Geoghegan J. Briefly stated, the facts of the case were as follows. The plaintiff was admitted to hospital under the care of Dr. Michael Neary in October 1992 for the delivery of her first child. Following the birth, Dr. Neary performed an emergency hysterectomy which he told the plaintiff had been necessary to save her life. In 1998, she became aware from reports in the media that her hysterectomy may have been unnecessary. She contacted a help line that had been set up by the Lourdes Hospital in the aftermath of the media reports after which she contacted her solicitor. He requisitioned her hospital notes, instructed an expert and generally took the necessary steps to investigate whether she had a stateable action.
32. Geoghegan J., in the course of his judgment, held that in order for the statute to run, a plaintiff had to know “enough facts as would be capable of, at least upon further elaboration, establishing a cause of action” even if they had no idea that those facts of which they had knowledge did in fact constitute a cause of action. He held, on the facts of the case before him, that the plaintiff had the requisite knowledge when, as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients, she realised that her hysterectomy had been unnecessarily performed. Interestingly, Geoghegan J. did not identify the precise date upon which he was satisfied Ms. Gough had acquired that knowledge and neither did he state that he was postponing the commencement of the statutory period to the date upon which she received an expert report to that effect. Perhaps some guidance is to be found from what he stated at p. 126 of the reports, following his review of the English authorities concerning when a plaintiff should be considered to have knowledge of the facts for the purposes of triggering the statutory period, namely:-
“It is appropriate to pause at this stage in the review of the English case law and consider those principles in relation to this particular case. While it may not be necessary for the purposes of starting the statute to run to know enough detail to draft a statement of claim, 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 those facts of which he has knowledge do in fact constitute a cause of action as that particular knowledge is irrelevant under the Act.”
33. The approach of Geoghegan J. in Gough v. Neary is not dissimilar to that advised by Donaldson M.R. in Halford v. Brooks [1991] 1 W.L.R. 428 where at p. 443 concerning knowledge he stated the following:-
“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.”
34. Before leaving the decision of Geoghegan J. in Gough v. Neary, I would observe that, in my view, it would have been equally valid for Geoghegan J. to have made his decision based upon the plaintiff’s knowledge of her injury, as required by s. 2(1)(a) of the Act. On the facts of the case, he could well have concluded that she could not have known that she had been seriously injured until such time as she had reason to believe that her hysterectomy may have been unnecessary and had not, as she had been told by Dr. Neary, been performed to save her life.
35. The decision of Fennelly J. in Cunningham v. Neary [2004] IESC 43 also focuses upon the proper approach to the issue of knowledge for the purposes of s. 2 of the 1991 Act. In that case, Ms. Cunningham, a dental nurse, had suffered a ruptured ectopic pregnancy and was admitted to hospital in August 1991 under the care of Dr. Michael Neary. In the course of surgery, Dr. Neary removed a fallopian tube and also one of her ovaries. Six week after surgery, in an unpleasant exchange with Dr. Neary as to why he had removed her ovary, he is alleged to have answered that question by stating “I did not like your bloody ovary anyway”. Ms. Cunningham was also told by her general practitioner at the time that it had been necessary for Dr. Neary to remove her ovary and that she was lucky to be alive. Thus Ms. Cunningham had no reason to believe that the removal of her ovary had been unnecessary at that time.
36. In 1998, however, as a result of a conversation with a staff member at the Coombe Hospital concerning the conduct of Dr. Neary in 1991, she was encouraged to make a complaint to the Medical Council regarding his conduct. Further, towards the end of that year, she also became aware of rumours circulating concerning Dr. Neary’s practices and these caused her to question whether it had been necessary for him to remove her ovary. She ultimately decided to make a complaint to the Medical Council which she did by letter of the 19th December, 1998.
37. While she approached the Medical Council in December 1998, Ms. Cunningham did not go to a solicitor until May 2000. In April 2001, Dr. Richard Porter, an independent expert provided a report advising that the removal of her ovary had been unnecessary. Ms. Cunningham maintained that this was the date upon which she learned as a matter of fact that the removal of her ovary had been unnecessary. She commenced her proceedings on the 22nd March, 2002 and the defendant later maintained that her claim was statute barred.
38. In his judgment, Fennelly J. expressed himself satisfied that when Ms. Cunningham had written to the Medical Council in December 1998 she knew that Dr. Neary had removed her ovary in 1991. She also knew that she had never received a proper explanation from Dr. Neary as to why he had removed her ovary. She was also aware of the fact that a number of other women had made serious complaints against him. Fennelly J. concluded that, armed with this knowledge, it was “reasonable” for her to seek medical or other expert advice. Had she done so, she would have found out that the removal of her ovary had in fact been unnecessary. The following is what he stated concerning her letter to the Medical Council namely:-
“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.”
In other words, all of the relevant facts were “ascertainable” by Ms. Cunningham for the purposes of s. 2(2) of the Act as of December 1998 when she ought to have gone to a solicitor. One of the principles that emerge from this decision is that the word “ascertainable” is to be distinguished from the word “ascertained”.
39. Of some relevance also is the decision of McGuinness J. in Cunningham in which she noted that the reason Ms. Cunningham had advanced for not commencing her proceedings in December 1998 was that she “had nothing to go on”, that being a reference to the fact that she did not have an expert report. This prompted McGuinness J. to refer back to the decision of Geoghegan J. in Gough v. Neary, where the court had not postponed the commencement of the statute to await receipt by the plaintiff of an expert report. Concerning that decision she stated as follows:-
“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.”
40. In relation to this last observation, it is clear from the decision of Fennelly J. in Cunningham that he did not agree with the conclusion of Geoghegan J. in Gough v. Neary that actual knowledge that her hysterectomy was unnecessary could be imputed to Ms. Gough as a result of reports in the media that Dr. Neary had carried out unnecessary hysterectomies on other women. However, that was not, in my opinion, a finding that was central to his judgement. What appears was key to his judgement was his conclusion that, armed with the knowledge of what was in the media reports, Ms. Gough had sufficient information to allow her to ascertain whether her own hysterectomy had been unnecessary.
41. What seems reasonably clear from the facts in Gough and Cunningham is that the court opted to trigger the statutory period on a date when neither potential claimant had received an expert report. Further, in the case of Ms. Cunningham, the date selected pre dated her attendance with a solicitor or indeed sight of her medical records.
42. Of some marginal relevance are three further matters referred to by McGuinness J. in the course of her judgment. The first of these is the fact that once a plaintiff attends a solicitor they must be presumed to have knowledge of the operation of the Statute. The second is the entitlement of a plaintiff to issue a plenary summons and to delay its service on a proposed defendant while investigations are continued. The third matter, which was specific to the facts under consideration, was that whilst the plaintiff had relied upon her asserted need to obtain a medical report prior to issuing the proceedings, she did not issue her proceedings until March 2002 notwithstanding the fact that she had received that report in April 2001. This observation is of some significance in the context of the date of knowledge relied upon by Mr. O’Sullivan insofar as the trial judge held that the date of knowledge for the purposes of s. 2 of the 1991 Act was the date when he received the report of Dr. Cummins in February 2007 yet his personal injury summons did not issue for a further period of eighteen months.
43. Another more recent decision, again concerning ss. 2 and 3 of the 1991 Act, is that of Peart J. in Farrell v. Ryan [2016] IECA 281. The facts of that case were that on the 25th September, 1963 an ante-natal symphysiotomy was performed on Ms. Farrell at the Coombe Hospital. From the outset, she had been aware that some type of medical procedure had been performed on her but she was not aware of its precise nature and, at all stages, she had been advised that it had been necessary for the purposes of safely delivering her baby. Very many years later, the symphysiotomy procedures that had been carried out in Dublin hospitals in the 1960s became the subject matter of two television broadcasts. The first was in February 2010 and the second in June 2011. Between these two dates, and as a result of what she had heard concerning symphysiotomy, the plaintiff had sought her medical records concerning the birth of her child in 1963. She did not receive her records at that time because the hospital needed further information to locate them and she had failed to respond to its correspondence. However, Ms. Farrell ultimately obtained her records in August 2011 following the second of the aforementioned television programmes. On these facts, Cross J. in the High Court had concluded that it was only on the receipt of her medical records that she could be said to have had sufficient knowledge to “justify embarking on the preliminary [sic] to issue a writ”. That decision was appealed by the hospital which contended that he had erred in law in failing to conclude that time had started to run against Ms. Farrell on the date she had first sought copies of her medical records.
44. Peart J. concluded that the question to be answered on the appeal was whether the information which Ms. Farrell had at the time she first requested her medical records was sufficient to mark the point at which the Statute started to run or whether, as the trial judge had concluded, that point had not been reached until she actually received her medical records in August 2011.
45. In the course of his judgment, Peart J. relied to some extent on the decision in Spargo insofar as he stated that the only reason behind Ms. Farrell’s first request for copies of her medical records was that she had been alerted by her friend to a broadcast about symphysiotomies and wished to establish if her symptoms were due to that procedure. That being so, whilst she may have thought that she knew the acts or omissions that she should investigate, it was, as per the decision of Spargo, quite possible that she was barking up the wrong tree.
46. At paras. 25 and 26 of his judgment, Peart J. made it clear that information from media sources could be sufficient to trigger “knowledge” for the purposes of the Statute and he referred to that part of the judgment of McGuinness J. in Cunningham where, in referring to the decision in Gough v. Neary she had stated as follows:-
“In Gough v Neary [it] 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’.”
47. Of further relevance is the following observation made by Peart J. at para 27 of his judgment concerning delay as a consequence of seeking an expert report:-
“It is incorrect as a general proposition that a plaintiff may wait until she receives her medical records before time starts to run against her under the statute. That would give a plaintiff control over when time starts to run, as it would be dependent on how long the plaintiff chooses to wait before seeking her records. If a plaintiff has had an operation or some procedure carried out, and thereafter has suffered adverse sequelae in the nature of a personal injury reasonably attributable to what was done, she does not need to wait for her hospital records or other records to arrive before she can be taken to know that she has a cause of action.”
48. At para. 29 of his judgment, Peart J. criticised the test which had been applied by the High Court judge, in the following terms:-
“In my view the trial judge was incorrect to conclude that she needed to know more than that before time started to run under the statute, and in particular that she needed her medical records before she could be said to have enough knowledge to justify the commencement of proceedings. In my view that was the wrong test. She did not need to know at that point that she had a good case. It was sufficient if she had enough knowledge to connect her injuries to the procedure which she knew had been carried out on her in 1963, and as she admitted herself in her evidence, she knew on the 10th February 2010 that the symphysiotomy she underwent was unnecessary. I believe that the evidence is clear that she had that knowledge as of the 18th February 2010. Medical records would no doubt elaborate upon the knowledge that she had, but were not a prerequisite to time commencing to run.”
Application of the principles to these proceedings
49. In circumstances where the trial judge did not identify the facts that he considered were unknown by Mr. O’Sullivan until the 22nd February, 2007, I propose first of all to consider the facts as found by the trial judge, and where necessary the evidence in the court below, in light of the principles outlined in Spargo which received at least tentative approval from Geoghegan J. in his decision in Gough. In so doing, I will only consider the outermost date of knowledge proposed by the hospital, namely the 17th July, 2006, that being the date upon which Mr. Simon received Mr. O’Sullivan’s medical records.
50. As of the 17th July the following circumstances are, I believe, relevant to Mr. O’Sullivan’s actual or constructive knowledge:
(i) He had been told by Dr. Murphy on the 4th October, 2005 that he had contracted MRSA whilst in hospital;
(ii) He knew he had suffered very serious consequences as a result of his infection;
(iii) He was aware from his mother that there had been a programme on television concerning patients who had contracted MRSA in a hospital setting;
(iv) He had furthered his investigations concerning his infection by contacting Mr. Tony Kavanagh, a participant in the aforementioned television programme;
(v) He had been referred to Mr. Simon, a solicitor specialising in MRSA cases, had attended with Mr. Simon and had given him instructions to act on his behalf.
(vi) He had sought, with the assistance of Mr. Simon, his medical records to investigate the circumstances in which he had developed the life threatening complications of MRSA and when he had received those records he had delivered them to Mr. Simon.
(vii) Mr. Simon was aware from Mr. O’Sullivan’s medical records that the pathology report on a swab taken in the course of Mr. O’Sullivan’s stay in hospital was positive for MRSA.
51. In these circumstances, I am satisfied that Mr. O’Sullivan must be considered to have had “a broad knowledge of the essence of the causally relevant act or omission” to which his injury was attributable. In my view, 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 and which he knew was responsible for his injuries. Whether he had any reason to believe that the transmission was as a result of the negligence or breach of duty on the part of the hospital is an irrelevant consideration by reason of the concluding words in s. 2(1).
52. I am also satisfied that, as of the date of the receipt by Mr. Simon of Mr. O’Sullivan’s medical records containing as they did confirmation that he had in the course of his hospitalisation contracted MRSA, Mr. O’Sullivan must be deemed to have had knowledge sufficient to make it reasonable for him to begin to investigate whether or not he had a case against the defendant. Indeed the evidence would suggest that Mr. O’Sullivan had already embarked upon that process at the time when Mr. Simon first drafted the letter for him to send to the hospital seeking his records and from the fact that when those records arrived he delivered them to Mr. Simon for his further consideration. Mr. Simon was, after all, a solicitor who was then specialising in cases for individuals who had contracted MRSA in a hospital setting.
53. There is no suggestion that Mr. O’Sullivan or Mr. Simon were, to use the words of Brooke L.J. in Spargo, “barking up the wrong tree” in their investigations having received Mr. O’Sullivan’s medical records. Neither can it be said that Mr. O’Sullivan’s knowledge concerning his injury was so vague or general that he could not be expected to know what he should investigate. In light of what he already knew, all that needed to be investigated following receipt of Mr. O’Sullivan’s medical records was whether his MRSA could be ascribed to the negligence and/or breach of duty on the part of the hospital, its servants or agents.
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.
55. Assessing then the facts of the present case in the light of the Irish authorities to which I have already referred, the first matter of some significance is the fact that, as per the decision of McGuinness J. in Cunningham, once Mr. O’Sullivan attended his solicitor he is presumed to have knowledge of the operation of the Statute. Further, under s. 2(2) of the 1991 Act he is to be considered to have knowledge of facts which Mr. Simon was in a position to ascertain on his behalf with or without expert advice.
56. Another matter of significance is that in each of the three Irish authorities to which I have referred, the plaintiffs had sustained what might be described as latent injuries. They had no reason to believe they had been injured because they had been told that what they had suffered was a natural consequence of the medical emergency that had arisen in each case. That is not the position here. Mr. O’Sullivan was given no such assurance. This is important in circumstances were Geoghegan J. made clear in the course of his decision in Gough v. Neary that the court had to evaluate the date of knowledge having regard to the context in which the injury had been sustained and the circumstances of the case. This puts Mr. O’Sullivan in a somewhat different position. He had been clearly informed of the MRSA infection on 4th October, 2005 and had received no assurance that this infection was a natural consequence of his treatment for Crohn’s disease.
57. In none of the three Irish cases to which I have earlier referred did the court postpone the plaintiff’s date of knowledge to the date upon which they received an expert report. This is because s. 2(2), in its use of the words “observable” or “ascertainable” has the effect of fixing a plaintiff with constructive knowledge of what they might reasonably ascertain with or without the benefit of an expert report. Thus, in Cunningham, Fennelly J. concluded that time had to run against the plaintiff from the date she wrote to the Medical Council in December 1998, at which time she clearly suspected her ovary had been unnecessarily removed. Armed with this knowledge, Fennelly J. concluded that it was “reasonable” for her to seek medical or other expert advice and had she done so, she would have found out that the removal of her ovary had been unnecessary. In other words, Fennelly J. gave Ms. Cunningham the benefit of the whole of the statutory period commencing from the date upon which she clearly knew what she had to ascertain or investigate.
58. Applying this approach to the facts of the present case, Mr. O’Sullivan certainly knew what he had to investigate as of the time he received his medical records. Indeed, on the 17th July, 2006, he was in a much more advantageous position than that enjoyed by Ms. Cunningham on the date she wrote to the Medical Council, that being the date upon which Fennelly J. deemed time had commenced to run. Mr. O’Sullivan knew of his injury and its cause, he had a solicitor acting on his behalf and was already, unlike Ms. Cunningham, in possession of his medical records. On the facts of this case it is difficult to see how, remaining consistent with the decision in Cunningham, the Court could conclude that time only started to run following receipt of Dr. Cummins’ report
59. I am also not satisfied that, on the basis of the evidence before the High Court judge it can be said that Mr. O’Sullivan did not, as of the 17th July, 2006, have actual knowledge of facts sufficient to satisfy the statutory requirements of s. 2(1)(a) to (d) of the 1991 Act given that the cause of his injury was clear namely the transmission to him of an MRSA infection in the course of his hospitalisation. All that remained to be questioned at that point was whether his MRSA infection could be ascribed to non negligent causes, a matter irrelevant to s. 2.(1)(c). The fact that he had not explicitly been told in an expert report that his injuries had been caused by an infection of MRSA which had been transmitted to him in the hospital is, in my view, immaterial.
60. Neither am I satisfied that, on the evidence before him, the trial judge was entitled to afford Mr. O’Sullivan any leeway based upon the provisions of s. 2(3) of the 1991 Act. He did not identify in his judgment any facts of which Mr. O’Sullivan did not have actual or constructive notice which, at the time Dr. Cummins’ report was sought, he considered necessary to satisfy the test of knowledge provided for in s. 2(1) of the 1991 Act. What were the facts that were only ascertainable with the benefit of expert advice?
61. Further, the High Court judge did not state what he considered to be the facts that had emerged from Dr. Cummins’ report concerning the “act or omission” alleged to constitute negligence or breach of duty that had been previously unascertained or were unascertainable without his assistance. Neither was there any evidence given to the High Court by Mr. Simon as to the facts which were made known in Dr. Cummins’ report which only he as an expert was in a position to provide. The only obviously new information to emerge from that report, according to the evidence of Mr. Simon, was Dr. Cummins’ belief that it was possible that there had been negligence on the part of the surgeon in the course of Mr. O’Sullivan’s initial surgery. As we know, any act or omission on the part of the surgeon is not the basis upon which liability is advanced in these proceedings. Thus, in my opinion, the date of receipt of Dr. Cummins’ report simply cannot be the correct date of knowledge for the purposes of the section.
62. Accordingly, I do not accept that there was a reasoned basis upon which the trial judge could have concluded that on the date that Dr. Cummins’ report was received there “was a confluence of events” such that Mr. O’Sullivan was then to be deemed to have knowledge of the facts relevant to the provisions of s. 2(1)(c) which he did not have on the 17th July, 2006. That the missing knowledge was to be found in Dr. Cummins’ report is certainly not supported by the evidence to which I have earlier referred. Further, any such finding is clearly unsupported by the fact that proceedings were then not issued for a further period of eighteen months during which Mr. Simon obtained two further medical reports from Mr. Scurr.
63. It seems to me that in interpreting the provisions of s. 2 of the 1991 Act, the trial judge may have lost sight of the mischief which s. 2(1) was intended to address. The plaintiff in this case did not suffer any latent injury. He knew with almost immediate effect that he had contracted MRSA whilst in hospital and that this was the cause of the very serious complications which he developed post his surgery which Mr. Simon set out to investigate with immediate effect in May 2006. Neither did he pay much regard to the prevailing context. Mr. O’Sullivan had been told of his MRSA infection whilst he was in the hospital and he always knew that the life threatening injuries which he had experienced were related to that infection. He had never been given any assurance that his infection was to be expected or was not to be attributed to the acts or omissions on the part of the hospital whilst he was in its care. Thus Mr. O’Sullivan was in a completely different position to the plaintiffs in Gough, Cunningham and Farrell, each of whom had good reason not to understand that they had suffered injury until many years after the event in question.
64. While it might well be said, in the context of s. 2(2) of the Act, that it was “reasonable” for Mr. O’Sullivan to seek expert advice from Dr. Cummins, as was the view of the trial judge, there are significant problems with this conclusion. First, the trial judge said that it was reasonable as Mr. O’Sullivan needed the facts to be clarified to proceed with his case. The Act does not allow time to be postponed to get reports considered necessary to “enable a case proceed” (see for example the decision of Peart J. in Farrell v. Ryan). Quite understandably, most solicitors like to have a supportive report concerning liability to hand prior to issuing clinical negligence proceedings. However, lack of knowledge that the act or omission alleged to constitute negligence was in fact negligent or in breach of duty does not stop the Statute running. That this is so is clear from the decisions in Gough, Cunningham and Farrell where time for the purposes of the Act of 1991 was not postponed to await the receipt of an expert report on the liability issue.
65. Further, whilst it might well have been “reasonable” to seek a report from Dr Cummins, the question under the Act, if s. 2 (3) is of relevance to circumstances such as those that present here, is whether that report was necessary to establish facts that were “only” ascertainable with his assistance. If it was not necessary for that purpose, any report later received from him could have no influence on the statutory time frame within which proceedings had to be issued. As already advised, the trial judge did not identify the facts that were unascertained as of the 17th July, 2006 which were necessary to meet the knowledge requirements of s. 2(1)(a) to (e) or the facts that were ascertained on receipt of Dr. Cummins’ report that had not earlier been ascertained.
66. Whilst I do not wish to be unnecessarily critical of the approach taken by Mr. Simon in this case, I have to agree with what McGuinness J. stated in Cunningham concerning solicitors retained to act in cases such as this, namely that they must be deemed to have knowledge of the statutory time limit governing proceedings of the nature under consideration. It might well have been a convenient approach to litigation of the type in question, given that he was acting for a considerable number of clients who had contracted MRSA, for him to ask a general practitioner, such as Dr. Cummins, to provide a type of screening service in all of these cases and then, depending upon the outcome of that inquiry, to later seek specialist advice. However, in my view, that will not stop the clock running if the plaintiff has actual or constructive knowledge of the facts identified in s. 2(1) of the Act. In the context of what was known as of the date upon which Mr. Simon received Mr. O’Sullivan’s medical records, he needed to be mindful of the risk that if the proceedings were not issued, at the latest, within a period of two years that the defendant might claim that the proceedings were statute barred. Mr. Simon should have been particularly alert to the statute having regard to his evidence that it was never his intention to rely upon Dr. Cummins’ expertise in any proceedings as might later issue.
67. Given that state of affairs it is surprising that it was not for several months following the receipt of Dr. Cummins’ report that Mr. Simon decided to seek the expert advice of Mr. Scurr. He apparently provided a provisional report in late 2007 and a final report on the 16th May, 2008. Yet the summons was not issued until the 19th August, 2008, three months after Mr. Scurr’s final report was received and more than two years after Mr. Simon had received Mr. O’Sullivan’s medical records. Had the summons been issued within two months of the receipt of Mr Scurr’s final report, the proceedings would have been within time on the case made by the hospital.
68. Finally, if the date of knowledge for the purposes of s. 2 were to be postponed in a case such as this to the date upon which a plaintiff such as Mr. O’Sullivan received his report from Dr. Cummins, or indeed, Mr. Scurr, I feel that it could be said in nearly every case that proceedings may be postponed until the delivery of an expert report, regardless of the interval between knowledge of the injured party and the circumstances in which it was sustained. This approach was condemned by Peart J. in Farrell v. Ryan. The reason it was so condemned is that such an approach gives a plaintiff control over when time starts to run and will lead to proceedings being postponed to a hearing at a time when, by reason of the passage of time, there is a greater risk of injustice to both parties.
Conclusion
69. I am first of all not satisfied that the trial judge applied the correct test when he based his decision as to the date time started to run on the facts which he considered Mr. O’Sullivan needed to know before his case could proceed, rather than on the facts required to meet the knowledge requirements of s. 2(1) (a) to (e) of the 1991 Act.
70. However, given that the aforementioned point was not argued on the appeal, I am also satisfied that had the trial judge applied the correct test, he was, in my opinion, obliged as a matter of fact and law to conclude that, at the latest as of 17th 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.
71. In my opinion, for the reasons elaborated upon earlier, there was no legal or evidential basis upon which the trial judge could have concluded that Mr. O’Sullivan’s knowledge of the facts required by s. 2(1) of the 1991 Act were only capable of being ascertained with the assistance of expert advice from Dr. Cummins. Likewise, there was no legal or evidential basis for the trial judge’s conclusion that Dr. Cummins’ report had provided Mr. O’Sullivan with knowledge of the facts required to trigger the statute under s. 2(1).
72. For all of the reasons earlier set forth, I would allow this appeal.
JUDGMENT of Mr. Justice Edwards delivered on the 24th day of January 2018
1. I have had the benefit of reading in draft the judgments in this matter delivered by the President and by Ms Justice Irvine, respectively. I am in agreement with the President Irvine and must respectfully dissent from the conclusion expressed by the Ms Justice Irvine for reasons that I feel compelled to briefly elaborate upon.
2. It seems to me that there is a great measure of agreement between both of my colleagues (i) concerning the applicable law and (ii) concerning the essential facts as established in evidence. To the extent that my colleagues’ views diverge it is with respect to the application of the agreed legal principles to the facts of the case as established in evidence.
3. It is agreed with respect to the law that the applicable statutory provisions are s.2, and s.3(1), respectively, of the Statute of Limitations (Amendment) Act 1991 (the Act of 1991), as amended; and that these have been interpreted and applied by the Supreme Court in relevant jurisprudence including Geogh v Neary [2003] 3 IR 92 and Cunningham v Neary [2004] IESC 43; and by this court in Farrell v Ryan [2016] IECA 281.
4. Moreover, the essential chronology, which is set out in both judgments, is uncontroversial, save in respect of the key question as to precisely when, on the facts of the case, the plaintiff may be taken to have first had knowledge of the requisite facts specified in s.2(1)(a) to 2(1)(e) inclusive of the Act of 1991, as amended, namely knowledge:
(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.
5. Crucial to ensuring that these questions are addressed correctly is an appreciation of the import of subss (2) and (3), respectively, of s.2 of the Act of 1991 which provide:
“(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.”
6. In Geogh v Neary (the essential facts of which are set in the judgments of both of my colleagues rendering it unnecessary for me to repeat them) Geoghegan J, in delivering the principal judgment on the majority side in the Supreme Court, noted that the wording of s. 2(1)(c) of the Act of 1991 is in identical terms to the wording of a corresponding clause (i.e., s.14(1)(b)) of the English Limitation Act 1980. There being no Irish authority directly in point, Geoghegan J reviewed relevant English jurisprudence that had been brought to his attention, or had come to his attention in the course of his research on the issue, for its persuasive influence. He was careful, however, to stress that the two pieces of legislation were not identical in every respect and that “[w]hile the English cases are of some assistance they must be read and interpreted with caution”. He considered, inter alia, the case of Spargo v North Essex Health Authority [1997] 8 Med LR 125, and in doing so noted with ostensible approval (at p.127/128 of the report) that, in Spargo, Brook L.J had asked himself the rhetorical question, what does the law require in order that actual knowledge is established? Brook L.J had answered his own question by enunciating the following four principles:
“(1) The knowledge required to satisfy s. 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) 'attributable' in this context means 'capable of being attributed to', in the sense of being a real possibility;
(3) a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”
7. Geoghegan J, while noting that these principles were perhaps easier to state than to apply in practice, and while not willing to treat them as being cast in stone, was nonetheless prepared to apply them. He noted, incidentally, that “There is no doubt that that case (Spargo) is now the ‘gospel’ in England as far as this branch of the law is concerned.”
8. Geoghegan J was satisfied from his review of relevant jurisprudence that:
“While it may not be necessary for the purposes of starting the statute to run to know enough detail to draft a statement of claim, 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 those 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 … .”
9. Geogh v Neary, Cunningham v Neary and Farrell v Ryan were all cases in which the plaintiffs did not appreciate for a significant time that they had been injured at all, much less appreciate the causally relevant act or omission to which their injury was attributable. In each case the realisation that they had been, or may have been injured, and the causation of that injury, was arrived at gradually but a tipping point was reached at which that knowledge was either imputed to them or it could be said that it was at that point reasonable for the plaintiff to take steps to ascertain for herself whether she had in fact been injured and by what means. It was not necessary in order to arrive at the tipping point in any of the cases in question that the plaintiff should have had the benefit of expert advice, or of having had sight of medical records. Suspicion based on anecdotal information, media reports and promptings from a concerned and knowledgeable person (e.g., in Cunningham the nurse in whom the plaintiff confided) were regarded as sufficient, in the circumstances of those cases, to fix the plaintiff with knowledge of the requisite facts at a point in time, on the basis that they were ascertainable at that point.
10. In Geogh v Neary, notwithstanding that Mrs Geogh had not the benefit of a expert report, Geoghegan J concluded that actual knowledge that her hysterectomy was unnecessary could be imputed to Mrs Geogh in circumstances where she was aware of media reports of unnecessary hysterectomies being carried by Dr Neary on other women. The Supreme Court determined, on the facts of that case, that the relevant date of knowledge to be imputed to her on the basis of the media reports meant that Mrs Gough’s proceedings were commenced in time. In Cunningham v Neary (again, the essential facts of which have been set out by my colleagues) the plaintiff, Mrs Cunningham was not so fortunate. Fennelly J, applying Geogh v Neary principles, took a somewhat more nuanced approach in his assessment of the evidence to that of Geoghegan J in Gough, concluding that Mrs Cunningham, knowing what was being said about Dr Neary in media reports, and having decided at a certain point to make a complaint about Dr Neary to the medical council at the urging of a nurse in whom she had confided, both about her concerns and about the way in which she perceived she had been treated, had sufficient information to render it reasonable for her to take steps to ascertain for herself whether the removal of her ovary had indeed been necessary. Time had begun to run at that point, but the plaintiff failed to issue her proceedings before the expiry of the limitation period.
11. In Farrell v Ryan, a symphysiotomy case, Peart J concluded that it was sufficient if the plaintiff:
“had enough knowledge to connect her injuries to the procedure which she knew had been carried out on her in 1963, and as she admitted herself in her evidence, she knew on the 10th February 2010 that the symphysiotomy she underwent was unnecessary. I believe that the evidence is clear that she had that knowledge as of the 18th February 2010. Medical records would no doubt elaborate upon the knowledge that she had, but were not a prerequisite to time commencing to run.”
12. Unfortunately, from her perspective, the statutory limitation period having been triggered at the point identified by the court, the plaintiff Ms Farrell did not issue her proceedings in time.
13. As Irvine points out at para 41 of her judgment in this case, in both Geogh and Cunningham, the commencement of time running was triggered on a date when neither plaintiff had an expert report and, in the case of Mrs Cunningham, ever before she had consulted a solicitor or had sight of her medical records. The same was true in Farrell.
14. I find myself in disagreement with Irvine J that the evidence establishes that the plaintiff in the present case was in possession of most, if not all, of the key information from a relatively early stage, and certainly that he was in possession of all of the requisite information for the purposes of s.2(1)(a) to 2(1)(e) inclusive of the Act of 1991, as amended, from the date that he received his medical records, ie., on the 17th of July 2006 which is the date of knowledge contended for by the hospital.
15. Irvine J at paragraph 50 of her judgment, bases her conclusion on the following:
i. He had been told by Dr. Murphy on the 4th October, 2005 that he had contracted MRSA whilst in hospital;
ii. He knew he had suffered very serious consequences as a result of his infection;
iii. He was aware from his mother that there had been a programme on television concerning patients who had contracted MRSA in a hospital setting;
iv. He had furthered his investigations concerning his infection by contacting Mr. Tony Kavanagh, a participant in the aforementioned television programme;
v. He had been referred to Mr. Simon, a solicitor specialising in MRSA cases, had attended with Mr. Simon and had given him instructions to act on his behalf.
vi. He had sought, with the assistance of Mr. Simon, his medical records to investigate the circumstances in which he had developed the life threatening complications of MRSA and when he had received those records he had delivered them to Mr. Simon.
vii. Mr. Simon was aware from Mr. O’Sullivan’s medical records that the pathology report on a swab taken in the course of Mr. O’Sullivan’s stay in hospital was positive for MRSA.
16. Following the hearing in this matter I had initially been concerned that the plaintiff did not fully appreciate that his protracted recovery from surgery was attributable, to a major extent, to his MRSA infection, and that he had been focusing to such an extent on the possibility that his problems might have been the result of surgical misadventure that might indeed have been fairly said to have been “barking up the wrong tree”, to quote Brook L.J., in Spargo. He had said in his evidence “My main concern was the colostomy bag. MRSA wasn’t even a second thought.” However, having thoroughly reviewed the transcript of the proceedings in the court below, the evidence does not bear the suggestion that he was unaware that MRSA was a significant factor in his protracted recovery.
17. In particular, in the course of examination by his own counsel, the transcript contains the following question and answer, which appears in the segment of his evidence where he was describing the first time he was told he had MRSA, which was by Dr Olive Murphy on the 4th of October 2005:
COUNSEL: Q. “So you knew that the MRSA was causing a problem in the sense that it was slowing down your recovery?”
WITNESS: A “Yes.”
18. It is clear the plaintiff knew at that point that he had an injury – the s.2(1)(a) requirement was therefore satisfied from an early stage.
19. He had a very protracted and difficult recovery. Even if it had not been immediately conscious that his injury was significant, he had arrived at that realisation by the following March (i.e., March 2006) when, having been told about the television program, he contacted Mr Simon and, having initially been reticent to do so, instructed him to take up his medical records. His gave an explanation for doing so in the course of his evidence in chief:
COUNSEL: Q. “You said you wanted to get your medical records?”
WITNESS: A. “Myself and my girlfriend at the time had a brief conversation saying, like, you went through hell, like,.maybe you should go about it and find out what happened, why did you go through so much pain and so much suffering.”
COUNSEL: Q. “Right?”
WITNESS: A. “So I said there's no harm in getting my records. So I gave him the go ahead.”
It is clear that by this point the plaintiff had an appreciation that his injury was significant: in his own words he had been “through hell”, and so we can be sure that by March 2006 the s. 2(1)(b) requirement was satisfied.
20. In relation to the s.2(1)(c) requirement we are concerned with when the plaintiff appreciated, or ought to have appreciated, that his injury was attributable in whole or in part to the act or omission that is alleged to constitute negligence and breach of duty. Relating that to the facts of this case, it is when it was that he appreciated that the MRSA infection which had so protracted his recovery 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 had led to his acquiring MRSA in the defendant’s hospital – it was sufficient if he had “a broad knowledge of the causally relevant act or omission”.
21. Although the plaintiff gave evidence that Dr Murphy had sought to implicate the South Infirmary as being the source of his MRSA, the trial judge rejected his evidence in that regard and accepted Dr Murphy’s testimony that she had made no such suggestion. It was Dr Murphy’s evidence that she told the plaintiff on the 4th of October 2005 that it was her view “that he had acquired the infection in the hospital” (my emphasis), that it was “a hospital acquired infection.” On the plaintiff’s own evidence he appears not to have appreciated what he had been told by Dr Murphy, and indeed, as found by the trial judge, to have had a wholly inaccurate recall of what she said.
22. While some allowances might be made in that regard on the basis that he was very very ill at the time that this conversation took place, there seems little doubt but that the plaintiff’s solicitor Mr Simon, from the outset once he was instructed, understood that the plaintiff had acquired his infection in the Bon Secours hospital. It was Mr Simon’s testimony that the plaintiff told him that he had surgery for a bowel obstruction in the Bon Secours hospital and that “I picked up MRSA”. When cross-examined about this, he added “when he spoke to me on 20th of March 2006, he didn’t tell me ‘I was told I picked up MRSA in the Bon Secours hospital, but because he had been in the hospital I made that connection.”
23. The issue really is as to at what point did the plaintiff have sufficient information to be put on his enquiry as to whether his acquisition of MRSA could have been the result of some act or omission that is now alleged to constitute negligence or breach of duty – in broad terms that there had been some failure or inadequacy of infection control procedures. On that issue, I cannot agree with Irvine J that that point was when his medical records were received on the 17th of July 2006. Even if it was correct in principle to isolate that as the crucial date, and in the circumstances of this case I believe it is not correct to do so,, a point would in justice have to be stretched in plaintiff’s favour, allowing him and his solicitor at least some weeks to go through the material and assimilate it. The records in this instance comprised some 800 pages and the plaintiff and his solicitor would have required a reasonable time to go through them.
24. In any event, the transcript does not reveal whether those records contained anything to indicate that the plaintiff had been identified as a carrier of MRSA prior to, or upon, his admission to the Bon Secours hospital, although it is clear that they did contain a report of a swab test taken in the course of surgery on the 30th of September 2005 which later in the laboratory grew a heavy growth of MRSA. It is clear from the evidence that the records had been gone through by the 17th of August 2006 when Mr Simon wrote to Dr Cummins requesting a preliminary medical report, and that, as Irvine J specifically notes in her judgment, at that time Mr Simon was aware of the positive MRSA swab result.
25. Be that as it may, the crucial issue to my mind is whether there was sufficient information available to the plaintiff at that point to justify a concern in his mind that the MRSA infection that he acquired in the Bon Secours hospital was due to “some act or omission alleged to constitute negligence and breach of duty”, and to put him on his enquiry. I do not believe that there was. The plaintiff as a lay person, and even Mr Simon as a solicitor with some experience of MRSA cases (and I agree with the President’s comments about the characterisation of him as an “MRSA solicitor”), could not be imputed on the basis of the records alone with “a broad knowledge of the causally relevant act or omission”. Would the records have suggested to the plaintiff that, “because a swab was taken during my surgery, which later when cultured in a laboratory grew the MRSA bacterium, I must conclude that I might well have suffered my injury, ie., a raging post operative MRSA infection that significantly slowed my recovery from surgery, due to some inadequacy of hospital infection control procedures, or pre-operation infection screening procedures in the Bon Secours hospital?” There is no suggestion that the records would have told him, or his solicitor, or that they would have appreciated, that there were or ought to have been such procedures, much less have identified any failures or inadequacies in that regard. At most he would have been left with a vague suspicion that something had not been done right in his case, leaving him with a hospital acquired infection, but he would not have been able to know whether it was the hospital, or the surgeon, or both, had been responsible for his injury, whether a post operative MRSA infection might not be just an ordinary risk of major abdominal surgery (i.e., just one of those things that can arise) or, if not, what acts or omissions (even in general terms) of the responsible party or parties might have caused it and form the basis of a claim by him. In my view the single television program of which evidence was given, which the plaintiff only heard about second hand and did not see himself, and his subsequent conversations with Mr Kavanagh and Mr Simons, would not in themselves have provided a sufficient basis for imputing the required lnowledge to Mr O’Sullivan. That being so, learning of the existence of a lab report which, from the plaintiff’s layman’s perspective, would merely have confirmed that which he already knew, namely that his hospital acquired infection was MRSA, would not have advanced his state of knowledge.
26. The President makes the point that in some cases, and this is one of them, it may be 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. Section 2 (2)(b) and s.2 (3)(a) of the Act of 1991, respectively, (set out at paragraph 5 of this judgment) make express provision for that. I agree with the President that this was such a case.
27. Accordingly, in my view, on the evidence, the s.(2)(1)(c) and (d) requirements were not satisfied on the 17th of July 2006 (or even by the 17th of August 2006), and were only satisfied when, the plaintiff having sought expert advice, Dr Scurr produced his report in May of 2008. The s. 2(1)(e) requirement does not arise on the facts of this case. While I accept that an argument can be made that an earlier date of knowledge might be imputed to the plaintiff, namely the date in February 2007 when Dr Cummins produced his preliminary report, I do not personally agree that such an argument is sustainable. It is not necessary to explain why I hold that view in circumstances where, regardless of whether the |February 2007 date, or the May 2008 date, is the date of knowledge, either date would mean that the plaintiff’s claim was not barred and would see the appeal being dismissed.
28. I would dismiss the appeal.
