Cunningham v Neary and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: McGuinness J.,FENNELLY J.
• Judgment Date: 20 July 2004
• Neutral Citation: [2004] IESC 43
• Date: 20 July 2004

[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 I agree with his reasoning and the conclusion reached by him. I wish to add a few brief comments.

3 The factual background to the proceedings has been fully set out by Fennelly J. in his judgment. The plaintiff in her evidence in the High Court swore that she was unaware that the removal of her ovary by the first named defendant in 1991 had been unnecessary until she received the report of her independent medical expert, Dr. Porter, in April 2001. In the High Court Ó Caoimh J. held that the plaintiff's claim was not 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 of this court in Gough v Neary [2003] 3 I.R. 92.

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

"The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail."

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

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

"While it may not be necessary for the purposes of starting the 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 of at least upon further elaboration of establishing a cause of action even if the plaintiff has no idea that those facts of which he has knowledge do in fact constitute a cause of action as that particular knowledge is irrelevant under the Act."

7 It is in this context that one must, in my view, consider and compare the facts of the two cases. It is accepted that in or about December 1998 there were widespread reports in the media in regard to unnecessary gynaecological operations which had been carried out by Dr. Neary. At the time of their respective operations both the plaintiff in Gough v Neary and the plaintiff in the present case had been assured on medical authority that the operations were necessary and they seem to have accepted that this was so. In Gough vNeary in seems clear that the plaintiff's "knowledge" that her operation was unnecessary derived solely from the December 1998 reports in the media. This was the fact that was "capable at least upon further elaboration of establishing a cause of action". There is no indication that she had an expert medical report available to her before she initiated proceedings against the defendant. Knowledge based on media reports rather than full medical knowledge was the "knowledge that her hysterectomy was unnecessary" which was held by this court to mark the point at which the Statute started to run.

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

9 Under cross examination in the High Court the plaintiff said that the reason 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 the removal of her ovary was not necessary she had if anything rather more information available to her in December 1998 than had Mrs Gough. She had, in the words of Geoghegan J., "enough facts as would be capable at least upon further elaboration of establishing a cause ofactionrdquo;. Nevertheless she did not consult her solicitor until May 2000.

10 It was argued on behalf of the plaintiff that she as an ordinary lay person did not have the required medical knowledge to take immediate action in December 1998. It is perhaps understandable in the circumstances that she may have been hesitant about taking the step of consulting her solicitor. However, once she had done so she not only had the information already available to her but also had the benefit of legal advice. It must be presumed that this legal advice included knowledge of the operation of the Statute. In May 2000 proceedings initiated by the plaintiff would have been within the statutorylimit.

11 It was submitted on behalf of the plaintiff in this court that it would be unwise for a solicitor to embark upon a medical negligence action without convincing or at least persuasive, independent medical evidence to establish the claim. Such a practice, it was argued, would have unnecessary and harmful effects on the medical profession. In general terms this is true but, as was pointed out by senior counsel for the defendant, in a case where there is a danger of the Statute running against theplaintiff it is perfectly possible and legitimate to issue a plenary summons and to delay serving it on the proposed defendant while investigating 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 one accepts, as I do, that the plaintiff did not acquire the requisite knowledge that the removal of her ovary was unnecessary until December 1998 her claim would not be statute barred until December 2001. Had her proceedings been initiated promptly after the receipt of Dr. Porter's report the present problem would not have arisen. In these circumstances it is difficult to understand why the plaintiff's plenary summons was not issued until 22 ^nd March 2002.

13 From the point of view of the plaintiff it is very unfortunate that the issue of her proceedings was so long delayed. One cannot but have sympathy for her position. In the light of the statutory provisions and of the decision of this court in Gough v Neary,however, there appears to me to be no doubt but that her claim is barred by 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 he determined, as a preliminary point of law, that the claim of the plaintiff/respondent for damages for the negligent removal by the first-named defendant/appellant (hereinafter "the defendant") of an ovary was not barred by the provisions of section 3 of the Statute of Limitations (Amendment) Act, 1991(hereinafter "the 1991 Act"). The case involves some consideration of the decision of this Court in Gough v Neary [2003] 3 I.R. 92, involving the same defendant. In that case, the claim was held not to be statute-barred, but the appellant...