High Court of Ireland Decisions

1. This is an action brought by the Plaintiff for damages for personal injury allegedly arising from negligent medical and nursing care in the Coombe Lying-In Hospital in the City of Dublin during the period 12th June, 1987 to the 2nd July, 1987. The Defendant is an agreed representative of the hospital. The action was commenced on the 10th September, 1992 with a Statement of Claim being delivered on 30th September, 1993. In a Defence delivered the 23rd March, 1994 the Defendant has pleaded (inter alia) that the Plaintiff's claim is statute barred by virtue of the Statute of Limitations.

2. The Defendant brought an Application by Motion on Notice seeking an Order that the statute bar issue should be tried separately as a preliminary issue. It was then agreed between the parties that this Motion would be put into the non-jury list and that the hearing of the preliminary issue would take place at the hearing of the Motion. The Motion duly came before me and it was agreed that the hearing of the issue should thereupon proceed and I made a formal Order directing the hearing of the separate issues. The issue is now the subject matter of this Judgment.

3. It is obvious from the dates which I have already given that in order to defeat the plea of the Statute of Limitations, the Plaintiff has to rely on alleged non-discoverability and the extended period to which that gives rise under the Statute of Limitations (Amendment) Act, 1991.

4. The history of the case can be briefly summarised as follows. The Plaintiff had miscarriages in both 1975 and 1978 due in each case to a severe toxaemia or high blood pressure condition. She was warned that any further pregnancy would be dangerous but she was still anxious to have a baby. She changed gynaecologist and went to Dr. Bowman, a Consultant in the Coombe Hospital. Under him she successfully gave birth to two children. In the case of the second child, the expected date of confinement was the 4th September, 1987 but she had to be admitted into the care of the Coombe Hospital on 2nd June, 1987. On 12th June, 1987 a classical caesarean section operation was performed by Dr. Bowman and a premature baby was delivered. The Plaintiff remained in hospital until the 2nd July, 1987 and the baby much longer. The baby ultimately grew into a normal child. The Plaintiff alleges however, that as a result of negligent treatment of her in the hospital she developed a troublesome hernia which remained with her for many years afterwards. She claims that she did not know that the lump which she identified was in fact a hernia and that at any rate she thought that it was a normal sequela of the caesarean section operation and would go away in due course. She claims that the action was brought well within the statutory period if the knowledge issue was taken into account and indeed on one view that she puts forward the period did not even commence to run until after the proceedings were instituted. I should mention at this stage that Dr. Bowman not merely contests any allegation of negligence against him or the hospital but denies that there ever was a hernia. In determining the preliminary issue however, it is I think accepted by all parties that this Court must approach the matter from the Plaintiff's point of view and the allegations that she is making. For the purposes of the issue therefore it must be assumed that a hernia and adverse symptoms did arise as a consequence of the classical caesarean section operation on 12th June, 1987. The Plaintiff, Mrs. Maguire says that on 14th June, 1987 i.e. two days after the caesarean section she felt a bit sick. Part of her wound opened up as she went to the toilet to vomit. The nurse came and put her to bed and the doctor on duty that evening put a dressing on the wound. On the following day the wound was opened and Dr. Bowman came to see it. Some two weeks later what she described as a red ball came out of her stomach when the wound was open and the nurse rang for Dr. Bowman. He arrived and with the palm of his hand he pushed it back. On the way out Dr. Bowman told the Plaintiff's husband that she was "grand". She said the ball was the size of a golf ball and a pressure bandage was applied. The wound was still open and Dr. Bowman saw it each day. The Plaintiff was in hospital for three weeks in all and was finally discharged on 2nd July. At that stage, according to her, the wound was still open but thereafter she had to do the dressings herself. She did this for six weeks at home. The wound then began to close up. She went back to Dr. Bowman on 14th August, 1987 when the wound was closed but was still tender. There was however, an unsightly lump which Dr. Bowman examined and said it was "o.k.". The word hernia was not mentioned. The Plaintiff never went back after that to Dr. Bowman and she claims that she thought that the lump was due to the caesarean section operation and that it would eventually go down. She did not think there was any reason to go to any doctor. She did however, go to her G.P. from time to time and she claims that neither she nor any doctor mentioned the word "hernia". This does not seem to be correct, however, because on the notes emanating from the medical practice of her G.P. where there were a number of partners working, one of the partners on the 17th October, 1988 made the entry "Abd hernia" and another of the doctors, Dr. Devitt on 21st August, 1989 made the note "incisional hernia, Post-C.S. - no pain" . The C.S. stood for caesarean section. There is nothing to indicate from the notes that the respective doctors gave her any further advice as to what she was to do about the hernia nor is there any suggestion from Dr. Devitt, herself in her oral evidence that she gave any such advice and it is clear that she remembers nothing other than the note that is written down. The Plaintiff still did nothing about the lump or hernia until an incident arose in September, 1991 when she was lifting a child up from a buggy and, as she describes it, part of her stomach came out. She contacted her mother who came to help her. Even at that stage she claims that she did not really worry as she thought it would go away. However, instead of going to any doctor a rather odd decision was made to go to a solicitor. Revealingly in my view, the Plaintiff said that she did not want a doctor to look at her stomach.

5. However, once the Solicitor came into the picture it would seem obvious to me that there was a query as to whether something went wrong in connection with the caesarean section or the treatment afterwards. The Solicitor arranged for the Plaintiff to be seen by a number of specialists. Ultimately a report was obtained from an English specialist which allegedly justified a negligence action. But before that report was available, proceedings were instituted. It was explained that in all the circumstances this was reasonable as the Solicitor was afraid of the limitation period running out. The Plenary Summons was followed up by a Statement of Claim containing a number of allegations of negligence. As I have already briefly indicated, Dr. Bowman disputes the Plaintiff's version of events. Indeed not only does he deny that there was a hernia but he totally disputes her account of his attendances in the hospital. If, however, the action were to come to a hearing, the Plaintiff would be placing some reliance on a nursing note dated 16th June, 1987 at 11.45 p.m. in the following terms:-

6. Dr. Bowman does not agree with the nursing note and as of the 18th June, 1987 his notes simply says "Well. No problems B.P. o.k. Wound o.k." . At 8 o'clock that evening however, Dr. Bowman made the following note

7. On the 19th June, 1987. Dr. Bowman entered the note.

8. Finally on the 20th June, 1987, Dr. Bowman entered the note

9. In one sense, the nursing note and Dr. Bowman's notes are irrelevant to the statute bar issue because I had to consider the case from the Plaintiff's point of view but I have recited them merely to indicate that there was at a very early stage some problem in relation to the wound albeit in the view of Dr. Bowman not of any consequence and which according to him cleared up. The hernia is totally disputed by him.

10. In the light of the foregoing facts I now turn to consider the Plaintiff's relevant state of knowledge by reference to Section 2 of the Statutes of Limitations (Amendment) Act, 1991. The time would not have run until three years have elapsed from the first date on which the Plaintiff would have had knowledge of each of the facts set out at paragraphs (a), (b), (c), (d) and (e) of sub-section (1) of Section 2 of 1991 Act. I will therefore deal with each of these facts in turn.

11. In the context of a medical negligence action I accept what Barr J. pointed out in Maitland v. Swan and Sligo County Council unreported judgment delivered 6th April, 1992. A person who had had necessary damage done to his body in the course of a curative medical operation could not have been said to have been injured because he had not in any sense been harmed. I think however, that a sharp distinction must be drawn between absolutely necessary damage to the body in an operation on the one hand and damage which may be a frequent side effect without there being any negligence on the part of the surgeon but which would be always hoped to be avoided. A person who undergoes surgery consents to the necessary damage and he accepts the risk of side effect damage which is hoped to be avoided but which does not involve negligence. But the fact that he accepts the risk of being damaged does not mean that if the damage does in fact arise it does not constitute "injury". In considering the meaning of the word "injured" in paragraph (a) it is essential in the first instance to have regard to the definition of "personal injuries" in the Statute of Limitations, 1957 because in my view the word "injured" must be regarded as a cognate word. There is of course no comprehensive definition of "personal injuries" in the 1957 Statute but it is stated that the expression "includes any disease and any impairment of a person's physical or mental condition" . In the context in which the expression appears it was intended to cover in my view non-consensual impairment only. Therefore the absolutely necessary damage caused in a medical operation would not be a "personal injury" . But anything that went beyond that including common but not necessary side effects of a damaging nature would be included in the expression. I cannot accept and do not accept that the Plaintiff could have thought that a lump of the kind she described was a necessary consequence of the caesarean section or at the very least that it would have necessarily lasted any great length of time. At a reasonably early stage therefore after the operation (and it is not necessary to specify a precise date) I am satisfied that Mrs. Maguire knew that she had been "injured" within the meaning of Section 2 of the 1991 Act.

12. It is not necessary for me to attempt a precise definition of what would be "significant" but obviously any lump of the kind described by the Plaintiff would have been a significant injury. It follows, therefore, that insofar as she had knowledge of the injury as I have held that she had, she had knowledge also that it was significant.

13. First of all I accept the view taken by the English Court of Appeal in Broadley v. Guy Clapham and Co. 1994 4. All E.R. 439 that the words "which is alleged to constitute negligence, nuisance or breach of duty" are merely words of identification. Therefore it does not mean that there has to be any knowledge of fault and indeed such an interpretation would be inconsistent with the provision later on in Section 2, that knowledge that any acts or omissions did or did not as a matter of law involve negligence, nuisance or breach of duty is irrelevant. But the acts or omissions alleged in the Statement of Claim are not acts or omissions of which the Plaintiff within any relevant period could have had actual knowledge. It is not necessary for me to express any definitive view as to whether I wholly accept the approach to the knowledge issue taken by the English Court of Appeal in the Broadley case. The very precise words "act or omission which is alleged to constitute negligence" present difficulties of interpretation and in my view do suggest some kind of reasonably precise knowledge even if it did not have to be as detailed as would be required for a reply to a notice for particulars. But in this case a Statement of Claim has in fact been drafted containing precise allegations of negligence arising out of specified acts and omissions. These allegations derive presumably from expert advice obtained by the Plaintiff. Any reasonable person in my view who had the symptoms described by the Plaintiff would have obtained expert advice probably not later than twelve months from the caesarean section. It is only fair to say that somebody like the Plaintiff might be slower to do so than somebody of a higher education level. But even if one were to extend the time in her case, I think that it would have been reasonable to expect her to have obtained expert advice at latest from about the time that the hernia was diagnosed by the G.P. on 17th October, 1988. If she had done so and if her complaints could have been attributable to particular acts or omissions in her treatment in the Coombe she would have had that knowledge by late 1988 or early 1989. The period would have run from that time when she must be deemed to have had constructive knowledge of attributable acts and omissions. A Plenary Summons was in fact issued more than three years from that time because the information giving rise to the constructive knowledge would have reached her long before the 10th September, 1989.

14. No problem arises in relation to knowledge of the facts set out at paragraphs (d) and (e) in subsection (1) of Section 2 of the 1991 amending Statute.

15. Accordingly I would determine the issue in favour of the Defendant and hold that the action is statute barred.