High Court of Ireland Decisions

1. The issue before the Court is whether or not the Plaintiffs claim herein is statute barred.

The Affidavits on the Motion disclose a most unfortunate state of affairs. The Plaintiff had a relatively slight accident on the 31 July, 1977 while alighting from a bus. She was taken to Barrington's Hospital, Limerick, where she was treated by Surgeon McCarthy. Apparently Surgeon McCarthy undertook work which was "well outside his normal sphere and activity". The view of Surgeon KC Condon, this treatment has "converted what was, in effect, a straightforward fracture of the ankle region into an unmitigated disaster". She is left with gross scaring of a most disfiguring sort and a continuing tendency, even after so many years, to wound breakdown and with incurable bone infections. She is still trying to get redress for these matters 21 years after the events. Subsequent to her accident on the 31 July, 1977, she was taken to Barrington's Hospital and treated by Surgeon McCarthy. She was readmitted to Barrington's Hospital on the 8 December, 1977 and was there until the 31 December, 1977.

In or about the 15 December, 1980, the Plaintiff instructed the Defendant to act for her in respect of the proposed action as against Barrington's Hospital and Surgeon McCarthy. No proceedings were instituted against either party before the end of December 1983. It is on the basis of this failure that the Plaintiff seeks damages against the Defendant.

A Plenary Summons against the Defendant issued on the 31 July, 1990 which was eventually followed by a Statement of Claim on the 1 February, 1996. At paragraph 1 of the defence dated 18 April, 1996, the Defendant pleaded the Statute of Limitations and by Order dated the 24 June, 1996, the Honourable Mr Justice Morris directed a preliminary trial upon the statutory point.

The Defendant contends that any claim for professional negligence against himself or his practice is statute barred by virtue of the fact that the Plaintiff failed to institute proceedings within 6 years from the date on which a cause of action accrued against the Defendant. The Plaintiff in her Statement of Claim concedes that any cause of action against Barrington's Hospital or Surgeon McCarthy accrued on or before the 31 December, 1983. Subsequently, the Defendant submits that proceedings against him had to be issued on or prior to the 31 December, 1989. Nevertheless, proceedings were not issued until the 31 July, 1990. The Defendant apparently received instructions from the Plaintiff on the 15 December, 1980. The Plaintiff states that she instructed the Defendant in 1979. The Defendant alleges that he knew that the Plaintiffs action against the hospital and Surgeon McCarthy had expired and this belief was supported by Counsel's opinion in February 1981. He alleges that at all times he informed the Plaintiff of this difficulty and of all other difficulties attendant in suing for medical negligence. The Plaintiff asserts that the Defendant, subsequent to the 31 December, 1983, concealed from her the fact that no proceedings against the hospital or Surgeon McCarthy had been instituted and in so doing concealed his alleged breach of contract.

The causes of action for breach of contract accrue when the breach occurs and not when the damage is suffered. (The Limitation of Actions, 2nd Ed, Brady & Kerr, 1994 p 46). There is no doubt that the action in tort against the hospital and Surgeon McCarthy had expired by the end of 1980. The Statute of Limitations has a long and honoured history. It is designed to protect people against stale claims to avoid the injustices which may occur to them when they are asked to defend themselves from claims which were not notified to them within a reasonable time. A great deal of this is accepted by the Plaintiff and she claims that she is entitled to extend the relevant Statute of Limitation period by virtue of the Statute of Limitations (Amendment) Act, 1991 and in particular she relies on Section 71 of the Act which reads:-

(1) Wherein in the case of an accident in which a period of limitation is fixed by this Act, either:-

(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agents; or

(b) the right of action is concealed by the fraud of any such person.

The period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it."

Consideration of the requisite conduct was discussed by Denning MR in Keane v Victor Parsons & Company, [1973] 1 WLR 29 at pp 33-34 in discussing the United Kingdom Limitations Act, 1929 (S 26(b)) (similar in wording to Section 71(1)(b)) he stated:-

"In order to show that he concealed the right of action by fraud, it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he kept it secret. He conceals the right of action. He conceals it by fraud as those words have been interpreted in the cases. To this word 'knowingly' there must be added recklessly."

At p 34 the Master of the Rolls continues:-

"If however the defendant was quite unaware that he was committing a wrong or a breach of contract it would be different. So if by an honest blunder he unwittingly commits a wrong . . ., or a breach of contract . . . then he could avail himself of the Statute of Limitations."

This decision has been approved in this jurisdiction in McDonald v McBain, [1991] ILRM 764 and because of the wide ambit produced by judicial interpretation there was another in the United Kingdom in the Limitation Act (UK), 1980 and now a plaintiff must show 'any facts relevant to the plaintiff's right of claim has been deliberately concealed from him by the defendant'.

It was contended on behalf of the Defendant that the Plaintiff should have used reasonable diligence and that a minimum of investigation such as a search in the Central Office would have shown that no proceedings had been issued against the hospital or Surgeon McCarthy. I do not think there is a person employing a competent Solicitor who would check on him by going to the Central Office.

The Plaintiff's accident and operation took place on the 31 July, 1977. It was not immediately apparent that her medical treatment had been an "unmitigated disaster" and efforts were made to rectify the position over the next year or so but it became increasingly evident that the Plaintiff's medical treatment was seriously deficient, certainly by May 1979. The Plaintiff insists that she instructed the Defendant in 1979. He states it was 1980. Unfortunately, it was not possible to get his evidence taken on commission, due to his ill health. The Defendant corresponded with the Surgeon and with Barrington's Hospital where the operation had taken place and also took an opinion of Counsel which was not communicated to the Plaintiff. He never issued a Plenary Summons.

Despite this the Defendant corresponded with the Plaintiff over the next number of years on the basis that her action against the hospital and the surgeon was on-going.

On the 11 August, 1982 the Defendant wrote to the Plaintiff and said:-

"In relation to the claim itself I would confirm that we are proceeding with same."

This letter was written at a time when the Defendant had been actively in touch with Counsel and with a medical advisor, clearly with a view to pursuing an action. The correspondence from that date on contains numerous complaints of inactivity and non-communication by the Plaintiff and numerous excuses along the lines of ill-health, absence from the office and other commitments from the Defendant. However, it was never communicated or suggested that the case was not on-going. On the contrary, the impression is given strongly that the case was proceeding. For example, on the 1O August, 1984, the Defendant wrote to the Plaintiff and told her:-

"In relation to a medical examination in Belfast. I have not been able to arrange same but I am attempting to do so."

It is also significant that this letter's title reads "Re High Court Claim" and the Defendant makes specific reference to this title. On the 27 July, 1984 the Defendant wrote to the Plaintiff and told her that:-

"The up to date position in this matter is that I am awaiting the reports of the medical consultants from England."

In the same letter the Defendant asked the Plaintiff to "write out a full statement setting out the history of the matter as you saw it from the beginning". She replied by letter dated the 20 August, 1984 arranging to go over the history at a consultation and stating that "if there is anything else I can do to help speed things up, please let me know". She sent him a reminder on the 12 April, 1985 complaining of having heard nothing and stating that:-

"I can make myself available at any time to come to Cork to discuss the case with you if you think this is necessary as I am anxious to have it settled one way or the other as soon as possible."

The Defendant replied to this letter on the 13 May, 1985 and stated:-

I regret to inform you that as the matter now presently stands it would be unlikely if your claim will succeed and accordingly we should make a decision whether or not to proceed with the matter."

On the 30 May, 1986 the Plaintiff, having again complained of inactivity, the Defendant wrote to her and alleged that she had indicated that she did not wish the claim to proceed. She replied on the 9 June, 1986 that she did wish to proceed and never stated the contrary.

It is further noteworthy that when the Plaintiff's present Solicitors wrote to the Defendant on the 30 July, 1987 to take up the file, they enquired "What progress has been made in relation to the case?".

The Defendant in his reply of the 21 August, 1987 simply enclosed medical reports. It was reasonable that the Plaintiff having been told that her claim was proceeding was left under the impression that it was in fact proceeding when to the Defendant's knowledge he had not issued a Summons and the claim had been statute barred. It was only when her present Solicitors investigated the matter, having got nothing more than a cryptic reply from the Defendant sending on medical reports, he would possibly have known that she had a cause of action against her Solicitor as a matter of probability. The Court is satisfied that the Defendant's failure to commence proceedings was concealed from the Plaintiff that it was fraud for the purposes of Section 71(1) of the Statute of Limitations, 1957 and accordingly the time does not run against her until she discovered that fraud or could with reasonable diligence have discovered it. The Court is satisfied that neither the Plaintiff nor her new Solicitors could be put on enquiry as to whether or not a Summons had been issued until at the very earliest the Defendant had replied to the present Solicitors letter from the 30 July, 1987 and his reply was the 21 August, 1987 which merely enclosed medical reports. He does not even then admit that no Plenary Summons had been issued. Accordingly, the Court finds the Plaintiff's claim founded on the Plenary Summons of the 31 July, 1990 and alleging both negligence and breach of contract was commenced within time with regards to the provisions of Section 71(1) as aforesaid.