Gough v Neary & Cronin

• Jurisdiction: Ireland
• Judge: Justice Hardiman,GEOGHEGAN J.,Justice McCracken
• Judgment Date: 04 July 2003
• Neutral Citation: [2003] IESC 39
• Court: Supreme Court
• Docket Number: [S.C. No. 400 of 2002]
• Date: 03 July 2003

Supreme Court

Dr Michael Neary

Our Lady of Lourdes Hospital

Appellants

v.

Alison Gough

Abstract:

A Drogheda gynaecologist and a hospital yesterday lost their Supreme Court appeal in the case of a young mother who claimed her womb was unnecessarily removed after she gave birth to her only child.

[2003] IESC 39

THE SUPREME COURT

Hardiman J.

Geoghegan J.

McCracken J.

400/02

GOUGH v. NEARY & CRONIN

Between:

ALISON GOUGH

Plaintiff

and

MICHAEL NEARY and BASIL CRONIN

Defendants/Appellants

Citations:

STATUTE OF LIMITATIONS ACT 1957 S71(1)

STATUTE OF LIMITATIONS ACT 1957 S71(1)(A)

STATUTE OF LIMITATIONS ACT 1957 S71(1)(B)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)

DUNNE V NATIONAL MATERNITY HOSPITAL 1989 IR 91

MAITLAND V SWAN 1992 PNLR 368

LAW REFORM (PERSONAL INJURIES) ACT 1948 (UK) S14

MAGUIRE V SMITHWICK UNREP GEOGHEGAN 27.6.1997 1998/25/10091

BROADLEY V GUY CLAPHAM & CO 1994 4 AER 439

LAW REFORM COMMISSION REPORT ON THE STATUTE OF LIMITATIONS & LATENT PERSONAL INJURIES 1987

DOBBIE V MEDWAY HEALTH AUTHORITY 1994 1 WLR 1234 1994 4 AER 450

CARTLEDGE V JOPLING & SONS LTD 1963 AC 758 1963 1 AER 341

IRISH CURRENT LAW STATUTES ANNOTATED 1991–1992

LAW REFORM (PERSONAL INJURIES) ACT 1948 (UK) S14(1)

STATUTE OF LIMITATIONS ACT 1957 S71

MCDONALD V MCBAIN 1991 1 IR 284

KING V VICTOR PARSONS & CO 1973 1 WLR 29

KITCHEN V ROYAL AIRFORCE ASSOC 1958 1 WLR 563

BEAMAN V ARTS LTD 1949 1 KB 550

LAWRANCE V NORREYS 1890 15 AC 210

LAW REFORM (PERSONAL INJURIES) ACT 1948 (UK) S14(1)(B)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(C)

HALLAM-EAMES V MERRETT SYNDICATES LTD 1996 7 MED LR 122

SMITH HOGG & CO LTD V BLACK SEA & BALTIC GENERAL INSURANCE CO LTD 1940 AC 997

STATUTE OF LIMITATIONS ACT 1957 S11

HEGARTY V O'LOUGHRAN 1990 1 IR 148

LIMITATION ACT 1980 S14 (UK)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(1)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(A)

LIMITATION ACT 1975 (UK)

NASH V ELI LILLY & CO 1993 1 WLR 782

FORBES V WANDWORTH HEALTH AUTHORITY 1996 3 WLR 1108

SPARGO V NORTH ESSEX DISTRICT HEALTH AUTHORITY 37 BMLR 99

SNIEZEK V BUNDY (LETCHWORTH) LTD [2000] PIQR 213

CHAPLIN V MOSS UNREP 17.7.2001 (UK)

MIRZA V BIRMINGHAM HEALTH AUTHORITY UNREP EADY 31.7.2001 QBD

ROWBOTTOM V MASONIC HOSPITAL 65 BMLR 103

GILLICK V ROTUNDA HOSPITAL UNREP SUPREME 15.5.1998 1998/20/7453

ROSSITER V DUN LAOGHAIRE RATHDOWN CO COUNCIL 2001 3 IR 578

FITZGERALD V TREACY 2001 4 IR 405

KEALY V MIN HEALTH 1999 2 IR 456

MCGRATH V BOURNE 1876 IR 10 CL 160

REDDY V BATES 1983 IR 141

SINNOTT V QUINNSWORTH LTD 1984 ILRM 523

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3

Synopsis:

LIMITATION OF ACTIONS

Statute of limitations

Date of knowledge of injury - Unnecessary operation performed on plaintiff - Whether date plaintiff discovered that operation unnecessary date of knowledge of injury - Whether knowledge that medical procedure unnecessary equivalent to knowledge that procedure involved negligence - Whether claim statute barred - Statute of Limitations (Amendment) Act 1991, sections 2 and 3 (400/2002 - Supreme Court - 3/7/2003)

Gough v Neary - [2003] 3 IR 92 - [2004] 1 ILRM 35

section 3 of the Statute of Limitations (Amendment) Act 1991 provides that "an action,...claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty...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 of the person injured". Section 2 of the Act of 1991 provides, inter alia, that: "references to...date of knowledge are references to the date on which [the plaintiff] first had knowledge of the following facts: (a) that the person alleged to have been injured had been injured;...(c) that the injury was attributable...to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;...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". The plaintiff had had a hysterectomy unnecessarily performed on her by the first defendant in October 1992. The plaintiff did not know until 1998 that, contrary to false information given to her by the first defendant to the effect that the operation had been necessary to save her life, the hysterectomy had been unnecessary. In December, 1998, she issued proceedings against the defendants claiming damages for pain and suffering caused by their negligence in the performance of the unnecessary hysterectomy. The proviso in section 2(1) of the Act of 1991 refers to acts or omissions which did or did not as a matter of law involve negligence . The High Court found that the defendants were negligent and awarded the plaintiff EUR150,000 for pain and suffering to date and EUR100,000 for pain and suffering into the future in general damages. The defendants appealed that decision on the grounds that the claim was statute barred as the plaintiff's knowledge, gained in 1998, that the hysterectomy had been unnecessary was irrelevant in that, per the final two lines of section 2(1) of the Act of 1991, it amounted to knowledge that the defendant's acts, as a matter of law, involved negligence. The defendants also claimed that the damages awarded by the High Court were excessive.

Held by the majority of the Court, in refusing the appeal and declaring that the claim was not statute barred, that the adequacy of knowledge had to be considered in context and in this case the plaintiff who was of limited education was entitled to assume that the operation had been necessary until 1998. Accordingly, the act which was alleged to constitute negligence was not the hysterectomy itself but rather the unnecessary hysterectomy. That the word "negligence" used in section 2 of the Act of 1991 was intended as being the name of a specific tort and to have knowledge that an operation was unnecessary was not the same thing as knowledge that, in carrying out the operation, the tort of negligence was committed. Accordingly, knowledge that the hysterectomy was unnecessary was not "irrelevant" for the purposes of section 2 of the Act of 1991.

Obiter dictum: the word "injury" as used in section 2 of the Act of 1991 refers to a non-consensual injury.

The Court, in allowing that part of the appeal in relation to quantum of general damages and reducing the sum awarded for pain and suffering into the future from EUR100,000 to EUR50,000 held that the test to be applied by an appellate court in deciding whether to alter an award of damages is to consider if there was any reasonable proportion between the actual award of damages and what the court, sitting on appeal, would be inclined to give.

Held by Hardiman J, dissenting, that neither the statutory definition of "personal injuries" nor an interpretation of section 2(1) of the Act of 1991, which gives proper weight to its concluding words, admitted of the importation into the concept of "injury" of any element of wrongfulness or blameworthiness. Accordingly, knowledge of fault or negligence was not needed to start time running under the Statute of Limitations. However, it would have been open to the plaintiff to plead that her cause of action had been concealed from her by fraud within the meaning of section 71 of the Statute of Limitations Act 1957.

1 Justice Hardimandelivered the 3rd day of July,2003.

2 In October, 1992, the plaintiff was a 27 year old woman who was awaiting the birth of her first child. This was expected on the 15 ^thOctober, 1992, but did not occur then. On the 25 ^th October, 1992, she was admitted to the hospital of which the second-named defendant is a trustee under the care of the first-named defendant who is a consultant obstetrician/gynaecologist. Various steps were taken to induce the birth. When these were unsuccessful it was decided in the early hours of the morning of the 27 ^th October, 1992, that she should have a Caesarean section. Her child was born by thisprocedure.

3 This action relates to the circumstances in which, after the Caesarian section, an emergency hysterectomy was performed.

4 On the 21 ^st December, 1998, the plaintiff commenced proceedings against the defendants in respect of the hysterectomy. The plaintiff alleged that the sub-total hysterectomy performed on her was unnecessarily performed and that alternative treatments were not attempted, or not adequately attempted. Both defendants pleaded the Statute of Limitations, amongst other defences.

5 The plaintiff's action was heard in the High Court (Johnson J.) on the17 ^th, 18 ^th, 19 ^th and 23 ^rdApril, 2002 and on the 14 ^th May, 2002. Judgment was given on the 15 ^th November, 2002. The plaintiff succeeded in her action and was awarded a total of £273,223.27. Argument in relation to the Statute of Limitations had taken place on the23 ^rd April, 2002, at the end of the plaintiff's evidence. In an ex-tempore judgment the learned trial judge ruled against each defendant's defence under the Statute of Limitations.

6 By notice of appeal filed on the 18 ^th December, 2002, the defendants appealed from the judgment and order of the High Court. The appeal was limited to the defence under the Statute, and to the question of damages.

The Statute of Limitations.

7 There is no dispute that if the Statute of Limitations, 1957 had not been amended this action would be statute barred since it was instituted outside the three year limitation period provided by that Act, unless it was saved by the provisions of s.71 in relation to fraud. This section, insofar as relevant provides:- "71(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either -

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

9 (b) the right of action is concealed by the fraud of any suchperson,

10 the...