Conway v The Bon Secours Hospital (Galway)

• Jurisdiction: Ireland
• Judge: Mr Justice Binchy
• Judgment Date: 20 February 2018
• Neutral Citation: [2018] IEHC 93
• Court: High Court
• Docket Number: [Record No. 2013/12794 P.]
• Date: 20 February 2018

[2018] IEHC 93

THE HIGH COURT

Binchy J.

[Record No. 2013/12794 P.]

BETWEEN

GINA CONWAY

PLAINTIFF

AND

THE BON SECOURS HOSPITAL (GALWAY), THE BON SECOURS IRELAND LIMITED, THE BON SECOURS HEALTH SYSTEM LIMITED, THE BON SECOURS FOUNDATION, THE BON SECOURS TRUSTEES, SISTERS OF THE BON SECOURS

AND

PADRAIG REGAN

DEFENDANTS

Practice & Procedure – O. 19, r. 28 of the Rules of the Superior Court – Dismissal of proceedings – Tort – Personal injury – The Statute of Limitations Act 1957 – The Statute of Limitations (Amendment) Act, 1991 – Limitation period – Statute-barred proceedings

Facts: The plaintiff sought compensation for personal injuries from the defendants. The defendants, too, sought an order for the dismissal of the plaintiff's claim against them. The defendants contended that the plaintiff had taken action for the proceedings outside the limitation period provided under the Statute of Limitations Act 1957. The plaintiff contended that she had taken the action after obtaining the reports of the injuries confirming the negligence of the defendants.

Mr. Justice Binchy made an order for striking out the plaintiff's claim against the defendants. The Court stated that it was not necessary for the plaintiff to have in her possession a report confirming the negligence of the defendants as the plaintiff already knew that she had suffered significant injuries, owing to the negligence of the defendants while performing the surgeries. The Court noted that the plaintiff had sufficient knowledge within the meaning of s. 2(1) of the Statute of Limitations (Amendment) Act, 1991 to issue the proceedings within the prescribed time limits.

JUDGMENT of Mr Justice Binchy delivered on the 20th day of February, 2018

1 In these proceedings the plaintiff seeks compensation for personal injuries from the defendants, arising out of a procedure performed in May, 2009 while the plaintiff was a patient under the care of the defendants. The seventh named defendant was the consultant plastic surgeon who carried out the procedure, and the first to sixth named defendants operate and provide the hospital at which the procedure was carried out by the seventh named defendant. For the purpose of the proceedings, the first to sixth named defendants (the 'hospital defendants') are represented by one firm of solicitors and the seventh named defendant (the 'consultant') is represented by another. The motions issued on behalf of the hospital defendants and the consultant are to the same effect, although not expressed in identical terms. The first in time is that issued on behalf of the consultant, and although undated it appears to have been filed on 27th January, 2017. This seeks the following reliefs:-

'(a) An order pursuant to Order 19, Rule. 28 of the Rules of the Superior Court or in the alternative pursuant to the inherent jurisdiction of the Honourable Court striking out the Plaintiff's claim against the First Defendant on the grounds that it is unsustainable or in the alternative bound to fail, in circumstances where proceedings issued outside the time laid down by the Statute of Limitations Act 1957 (as amended);

(b) An order pursuant to Order 25 and/or Order 34 and/or order 35 of the Rules of the Superior Court or in the alternative pursuant to the inherent jurisdiction of this Honourable Court, directing the trial of a preliminary issue of law and/or fact, namely the question of whether the Plaintiff's claim is statute barred pursuant to the provisions of the Statute of Limitations Act 1957 (as amended).'

2 The reference in para. (a) of the motion to the first defendant is an error and was clearly intended to refer to the seventh named defendant, on whose behalf the motion was issued.

3 The second motion in time is that of the hospital defendants and seeks the following reliefs:-

'1. An Order striking out/dismissing the Plaintiff's action as against the First, Second, Third, Fourth, Fifth and Sixth Named Defendants ('the defendants') on the grounds that the action is clearly barred by the provisions of the Statute of Limitations 1957, as amended, and is bound to fail.

2. In the alternative, an Order pursuant to O. 25 and/or O. 35 and/or O. 36 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court directing that the question as to whether the Plaintiff's action as against the defendants is barred by the provisions of the Statute of Limitations 1957, as amended, be tried as a preliminary issue.'

Background

4 On 15th May, 2009, the plaintiff underwent surgery at the hospital operated by the hospital defendants. This surgery was performed by the consultant. The procedure in question is known as an abdominoplasty. Almost immediately thereafter the plaintiff appears to have developed a post-operative infection.

5 In his affidavit grounding his application, the consultant avers that the plaintiff remained in hospital for 15th-17th May, because of this infection, and was again seen on 18th May at an out-of-hours G.P. service for the same reason. She was seen and assessed by the consultant on 6th June, 3rd September and 18th September, 2009. On this last date the consultant performed a liposuction procedure on the plaintiff. The consultant says that on 17th December, 2009 the plaintiff contacted the office of the National Treatment Purchase Fund expressing dissatisfaction with the scarring on her abdomen. By reason of this complaint, she was given an appointment with the consultant for 14th January, 2010. This appointment was cancelled and the plaintiff instead attended with the consultant on 11th February, 2010. The consultant's clinical notes state that the plaintiff on this date '... expressly stated to me (and I recorded in my clinical notes) that she was unhappy with the outcome of the surgery on 15th May, 2009. I noted that the plaintiff's scar had evidence of delayed healing given that it was a little bit stretched. I advised the plaintiff that her scar could be improved with (sic) and would require further adjustment.' On the following day, the consultant wrote to the plaintiff's G.P. a letter which he avers was, to the best of his recollection, '... dictated in the presence of the plaintiff in accordance with my invariable practice' stating:-

'I reviewed Gina in my rooms today. She is not completely happy with the outcome of her abdominoplasty despite the fact that she had 2kg of skin removed from her lower abdomen. One of the problems is that she has a scar, which is a little bit slow to heal. This may require further adjustment. Her BMI is over 30 at the moment and I had suggested that she loses some weight and I will review her in six months time. She is also complaining some protuberance of her upper abdomen and I am sure this is related to the fact that she has quiet (sic) a lot of skin and subcutaneous tissue here.'

6 The consultant further avers that he sent a further letter to the National Treatment Purchase Fund on 12th October, 2010 referring to delayed healing and advising that the plaintiff would now benefit from scar revision. He avers that to the best of his recollection, this was dictated in the presence of the plaintiff.

7 Before that, in March 2010, the plaintiff had consulted a solicitor. The plaintiff refers to this in her affidavit sworn in reply to these applications. Paragraph 10 of this affidavit is of some importance and in it the plaintiff avers as follows:-

'For the avoidance of doubt, I say that from May 2009 onwards I became increasingly concerned and dissatisfied with the results of the initial and second procedures. It is common case and known that I consulted with a solicitor (Mr. Christopher Lynch) on or about March 2010 precisely because of the concerns as to substandard care which I then had. I attended Mr. Lynch in order to obtain expert advices not just from a solicitor but from appropriate medical experts as to whether potentially adverse outcome of the procedures and treatments at issue arose from negligent care and treatment on the part of the Defendants. I say that it is clearly recorded in correspondence that upon meeting Mr. Lynch I authorised him to commence enquiries by seeking my medical records and clinical notes. Ultimately, it appears that Mr. Lynch did not progress the matter and/or issue proceedings and further mislaid my file which inter alia contained crucial information and contemporaneous photographs of my injuries at the time.'

8 On 10th December, 2011, the plaintiff had a third surgical procedure which on this occasion was performed by a Dr Ishmael. In replies to particulars delivered on her behalf on 15th April, 2015, it is stated:-

'The plaintiff was first advised that her injuries arose from or were contributed to by the treatment and care of the 7th named Defendant when she received a report on liability from Mr Chapman dated 14th April, 2014. Prior to this the plaintiff suspected her treatment by the seventh named Defendant may have amounted to substandard care when she left Mr Regan's care and came under the care of Dr Ishmael in or around 10th December 2011. At that time Dr Ishmael informed the Plaintiff that the scarring was particularly bad and only a slight improvement could be achieved by cosmetic surgery.'

9 The solicitor whom the plaintiff instructed in March, 2010 failed to take any action on her behalf. The plaintiff eventually instructed the solicitors now on record in the proceedings and it was only then that she became aware that she had an obligation to issue proceedings within two years from the date upon which her cause of action accrued. Her new solicitors caused a personal injury summons to issue on 21st November, 2013. In the proceedings, the plaintiff claims that following the treatment and care received by the plaintiff on 23rd December, 2008, she suffered a severe infection at the site where the operative procedure was carried out. That...