Green v Hardiman

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 02 July 2018
• Neutral Citation: [2018] IECA 205
• Date: 02 July 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 205 Record Number: 2017/84

BETWEEN:

LEO GREEN

PLAINTIFF/RESPONDENT

- AND -

EILISH HARDIMAN

DEFENDANT/APPELLANT

[2018] IECA 205

Neutral Citation Number: [2018] IECA 205

Record Number: 2017/84

THE COURT OF APPEAL

Litigation - Tort - Medical negligence - Personal injury - Limitation – ‘Date of Knowledge’ test - Statute of Limitations (Amendment) Act 1991 - Civil Liability and Courts Act 2004

Facts: This appeal concerned a claim for damages as a consequence of personal injuries that were said to have been caused to the respondent/plaintiff as a result of the medical negligence of the appellant/defendant in respect of surgery that was carried out on 11th December 2007 and the care and treatment that was delivered thereafter. The respondent/plaintiff issued proceedings on 7th August 2012, which the appellant/defendant argued was outside the two year limitation period as specified by s. 3 of the Statute of Limitations (Amendment) Act 1991. The respondent/plaintiff relied upon s. 2 of the Statute of Limitations (Amendment) Act 1991, which provides a ‘date of knowledge’ test, and argued that the proceedings were commenced within two years from the date when he first had the requisite knowledge of the act or omission alleged to constitute negligence. In Green v. Hardiman [2017] IEHC 17, the trial judge rejected the appellant/defendant’s argument and upheld that of the respondent/plaintiff. The appellant/defendant appealed.

It was undisputed that during the respondent/plaintiff’s surgery, the surgeon had failed to notice that the plaintiff’s small bowel had accidentally suffered a full tear, which allowed faecal matter to enter the abdominal cavity. When the respondent/plaintiff began to experience symptoms of this injury, the surgeon treated the respondent/plaintiff in accordance with his belief that he had suffered a serosal tear and not a full tear. It was undisputed that a CT scan or similar imaging would have revealed immediately the full tear of the small bowel. The question for the Court was to determine when the respondent/plaintiff first had the requisite knowledge of this act or omission that he alleged constituted negligence. The respondent/plaintiff had obtained an expert report on 20th May 2012 in which the failure of the surgeon to obtain a CT scan or similar imaging of the respondent/plaintiff’s small bowel was noted.

Held by Peart J. that on the particular facts of this case, the appeal would be dismissed. The Court held that the trial judge was entitled on the evidence to conclude that despite the symptoms experienced by the respondent/plaintiff following his surgery, he could not reasonably have been expected to have known that the surgeon had failed to obtain a CT scan or similar imaging after having performed the surgery given the particular observations that were available to him. The first time the respondent/plaintiff would have known such an omission had occurred was when his solicitor acquired his hospital records in March 2011.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 2ND DAY OF JULY 2018

Introduction

1 In these proceedings the plaintiff seeks damages for negligence arising from surgery he underwent at Tallaght Hospital on the 11th December 2007 and the care and treatment he received in its aftermath. He issued his personal injury summons on the 7th August 2012. He was therefore outside the two year limitation period now provided in respect of such proceedings by s. 3 of the Statute of Limitations (Amendment) Act 1991 (‘the statute’ or ‘the 1991 Act’), as amended by s. 7 of the Civil Liability and Courts Act 2004 (‘the 2004 Act’).

2 By way of defence to these proceedings the defendant pleaded the statute against the plaintiff who, in response, has sought to rely s. 2 of the 1991 Act, as amended by s. 7 of the 2004 Act, which provides for a so-called “date of knowledge” test for determining whether the plaintiff has commenced his proceedings within the period permitted.

3 Section 2 of the 1991 Act provides:

‘(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) 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 purpose of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire:

(a) from facts of 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):

(a) a person shall not be fixed under this section with knowledge of the 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 the fact relevant to the injury which he has failed to acquire as a result of that injury.’

4 By way In the High Court Cross J. ruled against the defendant's limitation defence in a judgment delivered on the 20th January 2017: see Green v. Hardiman [2017] IEHC 17. The trial judge was satisfied on the facts established by the evidence that the plaintiff's proceedings were commenced within two years from the date when he first had the requisite knowledge for the purposes of s. 2 above, and that his proceedings were not statute barred. The trial judge went on to assess damages. The defendant now appeals to this Court but his appeal is confined to the statute issue.

Some Factual background

5 On the 11th December 2007 the plaintiff underwent abdominal surgery at Tallaght Hospital to eradicate problems with his colon and his bladder caused by a colovesical fistula, which is an abnormal connection between the colon and the bowel. This surgery involved a repair by way of laparaotomy, and was carried out by Prof. N who, as noted by the trial judge, is a widely respected expert surgeon.

6 During this surgery, but unnoticed by Prof. N. at the time, the plaintiff's small bowel accidentally suffered a full tear, which allowed faecal matter to enter the abdominal cavity. By the 14th December 2007 the plaintiff was very unwell. Blood tests revealed a raised white cell count, and in addition there were significantly elevated C-reactive protein (CRP) levels, indicating infection. His abdomen had become distended and was uncomfortable.

7 Prof. N. believed that the injury to the small bowel was a serosal tear and not a full tear, and he closed this defect with 3/0 suture material. T his appears from the operation notes. Prior to the completion of the surgery on the 11th December 2007 Prof. N had palpated the small bowel to ensure that there was no escape of gas which would have indicated a full tear. The trial judge accepted Prof. N's evidence that he did in fact palpate the small bowel to test for gas. However, Prof. K, the plaintiff's expert, considered that if Prof. N did in fact properly palpate the small bowel as he said he did, this would have revealed the fact of a full tear. Notwithstanding Prof K's evidence in that respect, the trial judge was satisfied that he could not conclude that the failure by Prof. N to detect the full tear by his palpation of the small bowel amounted to negligence. His conclusion is explained thus in his written judgment at para. 4.10 of his judgment:

‘4.10 In answer to one of my questions to the effect that if a [palpation] test were done and a full tear was missed, whether it is something that Prof. K could understand, he replied “yes – these things happen”. Accordingly, I believe that the plaintiff has not established, on the balance of probabilities, negligence in relation to the first ground complained of by Prof. K.’

8 But the plaintiff made another allegation of negligence. This was based on the fact that after he became very unwell following the surgery on the 11th December 2007, no CT scan or other imaging of the plaintiff's small bowel was undertaken to discover the cause of the plaintiff's post-operative infection. Prof. N said in evidence that he was satisfied that as of the 14th December there was no real evidence of infection from his reading of the plaintiff's chart, and was reassured by the fact that there was no tear at the site of the operation performed on the 11th December 2007, and that it was only later that the plaintiff's symptoms developed more significantly. As appears from para. 4.11 of his judgment, the trial judge rejected that evidence in favour of that of Prof. K. whose view was that there was sufficient and significant evidence of infection on that date as described above, and that when it was discovered that there was no tear at the site of the operation itself the small bowel ought to have been examined by CT scan or similar to establish the next most likely cause of the infection.

9 The trial judge also noted other expert evidence contained in an agreed report of the defendant's expert that ‘the failure to provide a CT scan on the 14th cannot be defended’. That opinion was...