Green v Hardiman

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Mr Justice Peter Charleton
• Judgment Date: 02 July 2019
• Neutral Citation: [2019] IESC 51
• Date: 02 July 2019
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2018:000116 [2019] IESC 051 Court of Appeal record number: 2017/84 [2018] IECA 205 High Court record number: 2012/7800P [2017] IEHC 17 [S:AP:IE:2018:000116]

[2019] IESC 51

An Chúirt Uachtarach

The Supreme Court

Charleton J.

O'Donnell Donal J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

Supreme Court appeal number: S:AP:IE:2018:000116

[2019] IESC 051

Court of Appeal record number: 2017/84

[2018] IECA 205

High Court record number: 2012/7800P

[2017] IEHC 17

[S:AP:IE:2018:000116]

Between

Leo Green

Plaintiff/Respondent

- and -

Eilish Hardiman

Defendant/Appellant

Medical neglience – Personal injury – Statute of Limitations (Amendment) Act 1991 s. 3 – Plaintiff seeking damages – Whether action was statute barred

Facts: The plaintiff/respondent, Mr Green, issued proceedings on 7 August 2012, some four years and eight months after negligent treatment. As explained in the analysis as to the relevant limitation legislation in the Supreme Court’s judgment in O’Sullivan v Bon Secours Hospital [2019] IESC 33, proceedings should have been issued within two years of the cause of the wrong, the wrong normally being the accident or medical misadventure in such tort cases. That time can be extended for such concealed facts as might broadly establish negligence but which were unknown to a plaintiff. Time does not begin to run until such facts come to the knowledge of the plaintiff. But time will run from a time when a fact would have come to the plaintiff by him or her acting reasonably and finding a fact from expert advice or analysis. Thus, the plaintiff said that such fact only came to him as of the report of the expert of 3 May 2012, which was received by his solicitors on 20 May 2012. That report claimed negligence under two different prongs. At trial, the first of these, (a) was accepted by the expert not to necessarily arise by negligence but simply by misadventure, while Tallaght hospital did not challenge or contradict (b) and (c). These were set out by the trial judge at paragraph 2.24 of his judgment: (a) failing to test the apparent serosal tear in the small bowel so as to show what on the balance of probability was the case that this was not a serosal tear but a full tear which caused leakage of matter and infection to the plaintiff; (b) failing to investigate the elevated CRP which are associated with infection on 14th December, 2007, when studies show that the original colon was sound, a CT scan or similar ought to have been carried out on 14th or 15th to determine the source of the contamination especially given the fact that there had been a recognised injury to the small bowel; (c) failing to operate on 15th December at the latest and if the CT scan and other investigations had taken place on 14th that an operation could have taken place at the latest on 15th which caused a further four to five days delay increased the level of infection increased the prospect of a large scar and increased the likelihood of the hernia which developed taking place. In the High Court judgment delivered in January 2017, the plaintiff was awarded general damages of €60,000 for pain and suffering to date and €35,000 for pain and suffering into the future, amounting to general and special damages totalling €96,403. Even though Tallaght University Hospital did not contest negligence, it claimed that the action always was statute barred. The High Court (Cross J) did not accept that contention. The Court of Appeal (Peart J) did not take a different view.

Held by the Supreme Court (Charleton J) that the limitation period was delayed in the exceptional circumstances of the plaintiff being given, in good faith and on the basis of a professional assessment, an incorrect set of facts in consequence of taking the reasonable step of consulting expert medical advice. Charleton J held that, in consequence, it would not be within s. 3 of the Statute of Limitations (Amendment) Act 1991 for the plaintiff to be required to reverse the conclusion, based on expert advice, that what was involved was a natural progression of his existing condition; what he had not been aware of until much later was the facts which were within s. 3 identifying an act or omission on the part of the treating surgeons as having caused his significant injury. Charleton J noted that it was only later that it became reasonable for him to act, when he became aware that the delay in treating him on second presentation was the operative cause of the hernia problem; had he not been assured by the surgeon he consulted after the treatment in question that his hernia problem was due to an existing condition, it would have been reasonable for him to have earlier pursued the case, by obtaining medical records and consulting with an expert. Charleton J noted that the first independent expert he consulted thought that the hernia resulted from natural causes.

Charleton J held that, on the facts, the judgment of the Court of Appeal should be upheld.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton of Tuesday 2 July 2019

1 At issue on this medical negligence appeal is the application of section 3 of the Statute of Limitations (Amendment) Act 1991 as amended to the facts of this case as found by the trial judge. This section provides that a plaintiff has two years to bring an action for a personal injury. This timespan runs either from the occurrence of the wrong, which is the ordinary rule, or exceptionally, from the date of knowledge, meaning when the plaintiff ‘first had knowledge’ of the identity of the defendant and of the fact of significant injury and that the wrong ‘was attributable in whole or in part to the act or omission which is alleged to constitute negligence’. Knowledge is not left undefined, thus to be construed in accordance with its ordinary meaning, but is instead given a specific statutory meaning. In attempting to address the very difficult question of obtaining justice for those who have an undiscovered injury while still maintaining the limitation period that, in various forms, is universal in ensuring that actions are commenced within a reasonable time, a recurring issue of proper statutory construction arises. That has been separately considered in this Court's judgments in O'Sullivan v Bon Secours Hospital [2019] IESC 33, with submissions from both the present case and that case forming the basis of that judgment.

2 All of these decisions as to when an apparent wrong was discovered, or as to when it should be deemed that an apparent wrong would have been discovered because it became at a particular point in time reasonable for the plaintiff to seek expert advice in order to discover a fact, are based upon the assessment of evidence. The facts as found by the trial judge are thus crucial. In attempting to get to the truth of any situation, one often compounded by the complex relationship of trust between a patient and a treating physician or surgeon, the trial judge should seek out the narrative from the plaintiff of what is alleged to be negligence. As regards the defendant, the circumstances in which a wrong was allegedly committed should be examined from the point of view of whether there was a want of care that caused the plaintiff wrong and what representations, if any, were made by the treating medical personnel or staff as to what outcome from treatment had been effected. While the burden of proving the lack of knowledge exception is on the plaintiff, the reality of these cases is that they must be seriously engaged with in order to uncover where the truth lies.

Summary of the law

3 The law is as stated by this Court in O'Sullivan. Two sections of that judgment should be quoted. The first is the passage which quotes and then removes unnecessary words from the Statute of Limitations (Amendment) Act 1991. Paragraphs 3 to 6 of the judgment of Charleton J states:

3. The legislation is approached from the point of view of the ordinary principles of statutory interpretation. These are set out in the separate judgment of Finlay Geoghegan J. Any analysis of where the plaintiff and the defendant stand as regards limitations requires that the relevant section of the legislation now be quoted. Analysis of the section, and of the decisions based on it, will follow later. A personal injuries action must be commenced within two years of the injury, unless the fact of significant injury and that the wrong ‘was attributable in whole or in part to the act or omission which is alleged to constitute negligence’ only becomes known to the plaintiff at a later date. Section 2 of the 1991 Act deals with the issue of ‘date of knowledge for the purposes of this Act’ and states:

(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) from 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.

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