Connolly v The Health Service Executive
Jurisdiction | Ireland |
Judge | Mr. Justice Gilligan |
Judgment Date | 22 March 2013 |
Neutral Citation | [2013] IEHC 131 |
Court | High Court |
Date | 22 March 2013 |
[2013] IEHC 131
THE HIGH COURT
BETWEEN
AND
CIVIL LIABILITY & COURTS ACT 2004 S2
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3
CIVIL LIABILITY & COURTS ACT 2004 S7
BOLGER v O'BRIEN 1999 2 ILRM 372
GOUGH v NEARY 2003 3 IR 92
SPARGO v NORTH ESSEX HEALTH AUTHORITY 1997 8 MED LR 125
CUNNINGHAM v NEARY & ORS UNREP SUPREME MCGUINNESS 20.7.2004 2004/11 /25402004 IESC 43
CIVIL LIABILITY & COURTS ACT 2004 S2(C)
RSC 1986 O.1 r1
RSC O.19 r26
BANK OF IRELAND v LADY LISA IRELAND LTD 1992 1 IR 404
MEARES v CONNOLLY 1930 IR 333
DELANY & MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 3ED 2012
RSC O.124 r1
WICKLOW CO COUNCIL v FENTON 2002/28 /7317 2002 IR 583 2002 ILRM 469
EARL (LIQUIDATOR FOR CEDARLEASE LTD) v CREMIN & ORS 2007/22/4468 2008 1 ILRM 226 2007 IEHC 69
RSC O.74 r49
RSC O.74 r136
High Court - Litigation - Medical negligence - Personal injury - Negligence - Duty of care - Trespass to the person - Statute of Limitations (Amendment) Act 1991 - Date of knowledge - Prejudicial effect - Discretion - Superior Court Rules 1986
Facts: On the 18 th May 2006, the plaintiff attended the outpatients department at Tullamore Hospital for the purposes of a review of a keratotic lesion on his right ear and where he consented to a biopsy procedure. It was his claim that the lesion was instead completely excised by wedge resection without his consent which caused him a great deal of pain as well as leaving him scarring of which he was extremely conscious. Results on the 29 th May 2006 showed the lesion to be benign. Following the receipt of legal advice in July 2006, he issued a Personal Injuries summons against the respondent on the 15 th September 2008 for negligence, breach of duty and trespass to the person with loss and damage caused to him.
The defendant brought a motion for the claims of negligence and breach of duty to be struck out on the basis that they were initiated outside the time limit prescribed in the statute of limitations and that the claim for trespass to the person be struck out as it should have been issued by plenary summons pursuant to O.1 r. 1 of the Superior Court Rules 1986.
Held by Gilligan J that s. 3 of the Statute of Limitations (Amendment) Act 1991, as amended by s.7 of the Civil Liability and Courts Act 2004, clearly stated an action claiming damages for personal injuries must be brought within two years of the cause of action having occurred or the date on which the injured person came into that knowledge. The plaintiff”s date of knowledge in this case was held to be immediately after the procedure when the extent of the injury he suffered would have been apparent to him. It was certainly no later than July 2006 when he received legal advice. As proceedings were therefore not issued within two years of this date, the claims of negligence and breach of duty were held to be statute barred.
In terms of the claim for trespass to the person, which was issued within the prescribed time, it was held that O.124 of the Superior Court Rules 1986 gave the court discretion when deciding whether to strike out proceedings for it being in an incorrect form. It was held that the claim for trespass against the person should not be struck out on the basis that no prejudice was caused to the defendant, as well as the fact that the claim resulted from the same incident as the personal injury claims.
Claims for negligence and breach of duty struck out. Claim for trespass against the person allowed to proceed.
1. By notice of motion filed on 25 th June, 2012, the defendant seeks "An Order directing that the Defence raised by the Defendant that the Plaintiff's within proceedings are barred pursuant to the Statute of Limitations Acts 1957-1991 (as amended) be heard and determined as a preliminary matter in accordance with the directions of this Honourable Court" and also, or alternatively, "an Order striking out the Plaintiff's claim in respect of an alleged trespass to the person in accordance with s.2 of the Civil Liability Act 2004, which precludes relief being sought in proceedings commenced by way of Personal Injuries Summons".
2. During 2006 the plaintiff was referred by his GP for review of a keratotic lesion on his right ear to the outpatients department at Tullamore Hospital. On 18 th May, 2006, the plaintiff consented to a biopsy procedure which he claims he was told would take a minute or two. It is alleged that contrary to the agreed procedure, the surgeon excised the entire legion by wedge resection without the plaintiffs consent. The plaintiff states that he suffered horrendous pain and that he has been left with a permanent cosmetic defect of which he is extremely conscious and that he has suffered loss and damage as a result. Results of a histology exam showed that the lesion was benign and were sent to the plaintiffs GP on 29 th May, 2006.
3. On or about 22 nd May, 2006, the plaintiff made a complaint to the Hospital and it is alleged that on 29 th May, 2006, the plaintiff was informed by Mr. Ashraf Tawfik, Surgeon, that "All would be ok". In July, 2006 the plaintiff discussed the incident with his solicitor. In September, 2006 the plaintiff met consultant surgeon Mr. Kieran O'Driscoll who apologised for what had occurred.
4. On 15 th September, 2008, legal proceedings were commenced by way of Personal Injuries Summons. This summons alleged negligence and breach of duty and trespass to the person against the defendant. The respondents now seek to have these proceedings struck out on the basis that they were commenced outside the time prescribed by the statute of limitations and that the trespass to the person claim was not, as it should have been, commenced by plenary summons. I will now consider each of these matters in turn.
5. Section 3 of the Statute of Limitations (Amendment) Act 1991, as...
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