Fortune v McLoughlin
Jurisdiction | Ireland |
Judge | Mr Justice McCracken |
Judgment Date | 09 June 2004 |
Neutral Citation | [2004] IESC 34 |
Docket Number | [S.C. Nos. 163 and 164 of 2003] |
Court | Supreme Court |
Date | 09 June 2004 |
Between:
AND
[2004] IESC 34
Keane CJ
Murray J
McCracken J
THE SUPREME COURT
Synopsis:
- [2004] 1 IR 526
Facts: The Plaintiff brought a negligence action against the defendant midwife relating to an incident in 1993. The plenary summons was issued in 2000. The Defendant appealed against the order of the High Court that the case was not statute barred by the Statute of Limitations. The issue was whether the Plaintiff at the relevant time knew that her injury was attributable to the act or omission which was alleged to constitute negligence.
Held by the Supreme Court (Keane CJ, Murray and McCracken JJ) in dismissing the appeal that that the word "attributable" was not satisfied by the Plaintiff's knowledge of the factual situation. The Plaintiff had to have knowledge of a connection between the injury and the matters complained of sufficient to put her on inquiry as to whether the injury had been caused by the matters complained of.
Reporter: R.W.
Citations:
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S48
STATUTE OF LIMITATIONS 1957 S49(2)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S5
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(c)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(3)(b)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(b)
GOUGH V NEARY & CRONIN 2003 3 IR 92 2004 1 ILRM 35
SPARGO V NORTH ESSEX DISTRICT HEALTH AUTHORITY 37 BMLR 99
Mr Justice McCracken delivered the 9th day of June 2004
There are two separate appeals before the Court, but both have relevance as to whether the Plaintiff's claim in these proceedings is statute barred. The first appeal is from an order of Kearns J made on 12 th February 2003 allowing an amendment by the Plaintiff to her reply to plead as follows:-
"Further or in the alternative it is denied that the plaintiff's cause of action is barred by the provisions of the Statute of Limitations 1957 as alleged or at all but on the contrary on the date of the accrual of the cause of action and/or on the date of knowledge the plaintiff was of unsound mind within the meaning of section 48 of the Statute of Limitations (Amendment) Act 1991and from that tune was never of sound mind. Accordingly the plaintiff will rely on section 49(2) of the Statute of Limitations 1957 as extended by section 5 of the Statute of Limitations (Amendment) Act 1991."
The second appeal before the Court is from an order of Kearns J made on 14 th February 2003 on a preliminary issue whereby he held that independently of the amended reply, the Plaintiff's case was not barred by the Statute of Limitations 1957 as amended.
In 1993 the Plaintiff, who was pregnant, had engaged the Respondent, who is a registered midwife, to provide midwifery services during her pregnancy, with the intention that the birth would take place at home. On 7 th June 1993 in the middle of the night the Plaintiff had convulsions and lost consciousness. It is alleged by the Plaintiff that her partner telephoned the Defendant and asked should he call an ambulance and that the Defendant told him not to, but that she would come to see the Plaintiff. In fact the Plaintiff's partner called an ambulance and the Plaintiff was taken to Holles Street Maternity Hospital in Dublin where she was treated and the baby was delivered by caesarean section. After the birth, the Plaintiff had further seizures and was transferred to Beaumont Hospital where she remained for some four weeks.
The Plaintiff alleges that she sustained serious brain injuries during this period and has been left with significant permanent brain damage with intellectual impairment, and that these injuries are due to the negligence of the Defendant. The detailed particulars of the negligence claimed are not relevant to the issues that were before this Court, and are denied in the defence. It is sufficient to say that the Plaintiff's case in substance is that the Defendant did not adequately monitor her condition during the pregnancy and failed to have regard to her own clinical findings which should have indicated to a reasonable competent midwife the onset of pre-eclampsia and the need for increased monitoring and early delivery of the child.
The plenary summons was issued on 2 nd June 2000 and the statement of claim was issued on 11 th July 2000. In the defence delivered on 12 th July 2001, the Defendant pleads that the proceedings are time barred by the Statute of Limitations 1957 and should be dismissed. The Court ordered a preliminary trial of that issue.
By notice of motion dated 7 th February 2003 the Plaintiff sought an order giving liberty to serve an amended reply, and both issues were heard together before Kearns J. The hearing was partly based on affidavit evidence and partly based on oral evidence.
The relevant provisions of the Statute of Limitations (Amendment) Act 1991are:-
"2.—(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:"
(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;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) 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 it jury.
3.—(1) An action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.
5.—(1) Notwithstanding anything in section 49(1) (a) of the Principal Act, if, in the case of—
(a) an action of the kind to which section 3 of this Act applies,
...
the person having the right to bring the action was under a disability either at the time when that right accrued to him or at the date of his knowledge, the action may be brought at any...
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