Cunningham v Neary and Others

 
FREE EXCERPT

[2004] IESC 43

THE SUPREME COURT

McGuinness J.

Hardiman J.

Fennelly J.

399/03 & 403/03
CUNNINGHAM v. NEARY & ORS

BETWEEN

ROSEMARY CUNNINGHAM
PLAINTIFF

and

MICHAEL NEARY, MARGARET QUINN, VERONICA TARPEY, ANN MARIEO'GORMAN, KATHERINE MARY SHEA AND BARNEY McENEANEY
DEFENDANTS

Citations:

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3

GOUGH V NEARY 2003 3 IR 92

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2

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

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

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

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(3)

Synopsis:

- [2004] 2 ILRM 498

Facts: This was an appeal from a judgment and order of O'Caoimh J. in which he determined, as a preliminary point of law, that the claim of the plaintiff for damages for negligent removal by the first defendant of an ovary was not barred by the provisions of s. 3 of the Statute of Limitations (Amendment) Act 1991.

Held by the Supreme Court (McGuinness, Hardiman and Fennelly JJ) in allowing the appeal and determining the preliminary point of law to the effect that the plaintiff's claim was statute barred that if the plaintiff had gone to a solicitor in December 1998 she would have obtained the sort of advice which would have made out a case in negligence. The key fact that the removal of the ovary had been unnecessary was 'ascertainable' and, for the purpose of the section, the plaintiff was deemed to have had knowledge of it as of that date.

Reporter: R.W.

1

20th day of July 2004byMcGuinness J.

McGuinness J.
2

I have had the advantage of reading the judgment of Fennelly J. and Iagree with his reasoning and the conclusion reached by him. I wish toadd a few brief comments.

3

The factual background to the proceedings has been fully set out byFennelly J. in his judgment. The plaintiff in her evidence in the HighCourt swore that she was unaware that the removal of her ovary by thefirst named defendant in 1991 had been unnecessary until she receivedthe report of her independent medical expert, Dr. Porter, in April 2001.In the High Court Ó Caoimh J. held that the plaintiff's claim wasnot barred by the provisions of section 3 of the Statute of Limitations(Amendment) Act, 1991. In so holding the learned High Court judge relied on the decision ofthis court in Gough v Neary [2003] 3 I.R. 92.

4

In Gough v Neary it was held that the plaintiff inthat case did not know that the hysterectomy performed on her by thedefendant was unnecessary until late 1998. It was only when shediscovered that the operation was unnecessary that time started to runfor the purposes of the Statute. The relevant knowledge in that caseincluded knowledge that the operation was unnecessary and that thatknowledge did not exist more than three years before the commencement ofthe action. In his judgment Geoghegan J. stated (at page 65):-

"The plaintiff did not know that contrary to the falseinformation given to her the hysterectomy was unnecessary until late1998 or, indeed, some time after that when as a consequence of mediacoverage in relation to Dr. Neary and hysterectomies which he hadcarried out on a number of patients in connection with birth deliveries,she acquired the knowledge that the operation was unnecessary. Thatbeing so and in the absence of authorities, I would be of opinion thatthe plea of statute bar must fail."

5

In the present appeal senior counsel for the plaintiff relied heavily onthe above passage in Gough v Neary.

6

In his judgment, in that case, however, Geoghegan J. went on to say (atpage 68):-

"While it may not be necessary for the purposes of startingthe statute to run to know enough detail to draft a statement of claim,a plaintiff in my opinion must know enough facts as would be capable ofat least upon further elaboration of establishing a cause of action evenif the plaintiff has no idea that those facts of which he has knowledgedo in fact constitute a cause of action as that particular knowledge isirrelevant under the Act."

7

It is in this context that one must, in my view, consider and comparethe facts of the two cases. It is accepted that in or about December1998 there were widespread reports in the media in regard to unnecessarygynaecological operations which had been carried out by Dr. Neary. Atthe time of their respective operations both the plaintiff in Gough v Neary and the plaintiff in the present casehad been assured on medical authority that the operations were necessaryand they seem to have accepted that this was so. In Gough vNeary in seems clear that the plaintiff's "knowledge" that her operation was unnecessaryderived solely from the December 1998 reports in the media. This was thefact that was "capable at least upon further elaboration ofestablishing a cause of action". There is no indication thatshe had an expert medical report available to her before she initiatedproceedings against the defendant. Knowledge based on media reportsrather than full medical knowledge was the "knowledge that herhysterectomy was unnecessary" which was held by this court tomark the point at which the Statute started to run.

8

In the present case also the plaintiff became aware of the media reportsin or about December 1998. Even prior to that date, however, she hadreason at least to question the necessity for the removal of her ovary.She had at an early stage queried the need for the operation andreceived no very satisfactory answer. In October 1998, when sheunderwent a hysterectomy in the Coombe Hospital, Dublin, her thengynaecologist raised critical queries about the scarring which hadresulted from her previous operation carried out by the defendant and,as pointed out by Fennelly J. in his judgment, she was encouraged by anurse to complain to the Medical Council about her general treatment bythe defendant. It is significant that she wrote her letter of complaintto the Medical Council not in October1998, when she had herconversation with the nurse, but in December 1998 at the time of themedia reports of which she was aware. In her letter she refers to theexperiences of "many other women" and she alsorefers in her affidavit to her knowledge of these media reports.

9

Under cross examination in the High Court the plaintiff said that thereason she had not initiated proceedings in December 1998 was that she "had nothing to go on". While it is, of course,true that she had no definitive medical report indicating that theremoval of her ovary was not necessary she had if anything rather moreinformation available to her in December 1998 than had Mrs Gough. Shehad, in the words of Geoghegan J., "enough facts as would becapable at least upon further elaboration of establishing a cause ofactionrdquo;. Nevertheless she did not consult her solicitor untilMay 2000.

10

It was argued on behalf of the plaintiff that she as an ordinary layperson did not have the required medical knowledge to take immediateaction in December 1998. It is perhaps understandable in thecircumstances that she may have been hesitant about taking the step ofconsulting her solicitor. However, once she had done so she not only hadthe information already available to her but also had the benefit oflegal advice. It must be presumed that this legal advice includedknowledge of the operation of the Statute. In May 2000 proceedingsinitiated by the plaintiff would have been within the statutorylimit.

11

It was submitted on behalf of the plaintiff in this court that it wouldbe unwise for a solicitor to embark upon a medical negligence actionwithout convincing or at least persuasive, independent medical evidenceto establish the claim. Such a practice, it was argued, would haveunnecessary and harmful effects on the medical profession. In generalterms this is true but, as was pointed out by senior counsel for thedefendant, in a case where there is a danger of the Statute runningagainst theplaintiff it is perfectly possible and legitimate to issue a plenarysummons and to delay serving it on the proposed defendant whileinvestigating the available medical evidence.

12

Even apart from this argument, the plaintiff's medical expert, Dr.Porter, presented his report to her solicitor in April 2001. If oneaccepts, as I do, that the plaintiff did not acquire the requisiteknowledge that the removal of her ovary was unnecessary until December1998 her claim would not be statute barred until December 2001. Had herproceedings been initiated promptly after the receipt of Dr. Porter'sreport the present problem would not have arisen. In these circumstancesit is difficult to understand why the plaintiff's plenary summons wasnot issued until 22 nd March 2002.

13

From the point of view of the plaintiff it is very unfortunate that theissue of her proceedings was so long delayed. One cannot but havesympathy for her position. In the light of the statutory provisions andof the decision of this court in Gough v Neary,however, there appears to me to be no doubt but that her claim is barredby the provisions of section 3 of the Statute of Limitations (Amendment)Act 1991. The plaintiff's claim should, therefore, be dismissed.

14

20th day of July,2004by FENNELLY J.

FENNELLY J.
15

This is an appeal from a judgment and order of O'Caoimh J, in which hedetermined, as a preliminary point of law, that the claim of theplaintiff/respondent for damages for the negligent removal by thefirst-named defendant/appellant (hereinafter "thedefendant") of an ovary was not barred by the provisions ofsection 3 of the Statute of Limitations (Amendment) Act, 1991(hereinafter...

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