O'Sullivan v Ireland
| Jurisdiction | Ireland |
| Judge | the President,Ms. Justice Irvine,Mr. Justice Edwards |
| Judgment Date | 24 January 2018 |
| Neutral Citation | [2018] IECA 8 |
| Docket Number | Neutral Citation Number: [2018] IECA 8 Record No. 2014/383 [Article 64 Transfer] |
| Court | Court of Appeal (Ireland) |
| Date | 24 January 2018 |
[2018] IECA 8
THE COURT OF APPEAL
Ryan P.
Irvine J.
Edwards J.
The President
Ryan P.
Irvine J.
Edwards J.
Neutral Citation Number: [2018] IECA 8
Record No. 2014/383
[Article 64 Transfer]
Limitation period - Statute-barred - Struck out - Appellant seeking to have proceedings struck out - Whether respondent's action was statute-barred
Facts: The plaintiff/respondent, Mr O'Sullivan, contracted MRSA while he was undergoing abdominal surgery in the Bon Secours Hospital in Cork on 20th September 2005. On 19th August 2008, he issued a personal injury summons claiming damages from the hospital and other defendants. The relevant limitation period for the action was two years from the accrual of the cause of action or from the date of knowledge, if later, within the meaning of the Statute of Limitations (Amendment) Act 1991; if the starting point was the contraction of the disease, the summons was out of time by some 11 months. The defendant hospital appealed to the Court of Appeal against the judgment and order of Kearns P made on 10th February 2012 whereby the High Court held that the plaintiff's claim was not statute-barred and dismissed the hospital's motion to have the proceedings struck out. The question before the President of the High Court and on appeal in the Court of Appeal concerned the date of knowledge provisions in s. 2 of the 1991 Act.
Held by Ryan P that Kearns P was correct to hold that the plaintiff's action was not statute-barred and to dismiss the application. Ryan P held that Mr O'Sullivan did not have the information required by s. 2 (1)(c) as to relevant acts or omissions on the part of the hospital and concerning the connection thereof with his injury; as such, for limitation purposes, the time only began upon his receipt of the expert report.
Ryan P held that the appeal should be dismissed. Edwards J concurred and also handed down a judgment, with Irvine J issuing a dissenting judgment.
Appeal dismissed.
This is an appeal by the defendant hospital against the judgment and order of Kearns P. made on 10th February 2012 whereby the High Court held that the plaintiff's claim was not statute-barred and dismissed the hospital's motion to have the proceedings struck out.
Mr. O'Sullivan contracted MRSA while he was undergoing abdominal surgery in the Bon Secours Hospital in Cork on 20th September 2005. On 19th August 2008, he issued a personal injury summons claiming damages from the hospital and other defendants. The relevant limitation period for this action was two years from the accrual of the cause of action or from the date of knowledge, if later, within the meaning of the Statute of Limitations (Amendment) Act 1991, as amended by s. 7(a) of the Civil Liability and Courts Act 2004. If the starting point was the contraction of the disease, clearly the summons was out of time by some 11 months. The question before the President of the High Court and on appeal in this Court concerned the date of knowledge provisions in s. 2 of the 1991 Act.
The period of limitation for bringing an action for personal injuries was originally fixed by the Statute of Limitations 1957 at three years from the date when the cause of action accrued. The time limit was absolute; the courts had no discretion in the absence of fraud or disability to extend time irrespective of the circumstances. This gave rise to results that were unjust. For example, a person who sustained latent injuries that were not discovered until after the statutory period had elapsed fell victim to the time limit. Thus, as it was said, the person's right of action was barred before he knew he had a cause of action. The answer to this and other problems, uncertainties and injustices was the 1991 (Amendment) Act. Section 3 of the 1991 Act provided that an action for personal injuries caused by negligence, nuisance or breach of duty shall not be brought after the expiration of three years (two years in this case because of amending legislation) from when the cause of action accrued or the date of knowledge, if later, of the person injured.
The appeal concerns the interpretation and application of the date of knowledge provisions in s. 2 of the Statute of Limitations (Amendment) Act 1991, which is as follows:
'2.'(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.
(3) Notwithstanding subsection (2) of this section'
(a) a person shall not be fixed under this section with knowledge of a 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 a fact relevant to the injury which he has failed to acquire as a result of that injury.'
The defendant's motion to dismiss the plaintiff's case on the ground that it was statute barred was heard on oral evidence. The plaintiff, Mr. O'Sullivan, his solicitor Mr. Simon, and Dr. Olivia Murphy, consultant bacteriologist at the hospital, gave evidence. There was dispute between Mr. O'Sullivan and Dr. Murphy about a conversation on 4th October 2005 on which occasion she said that she told the plaintiff that he had contracted MRSA. Kearns P. accepted the doctor's evidence as to that conversation in preference to Mr. O'Sullivan's recollection, but I do not think that was important in the reasoning of the President. He was satisfied that Mr. O'Sullivan was in a very distressed condition and was extremely ill. For her part, Dr. Murphy in her evidence accepted that Mr. O'Sullivan's capacity to absorb information at that time was impaired by his condition.
The following summary chronology is the background to the issue on the hospital's motion and the appeal.
- 20th September 2005 is the date when Mr. O'Sullivan contracted MRSA in the while undergoing a hemicolectomy procedure.
- 28th September 2005: discharged from hospital.
- 30th September 2005 readmitted for laparotomy and an ileostomy was performed.
- 4th October 2005: conversation above mentioned.
- 22nd October 2005: discharged.
- October 2005 to January 2006: Mr. O'Sullivan had a number of in-patient stays at the hospital.
- March 2006: Mr O'Sullivan's mother told him about a television programme; he followed up a contact who recommended a solicitor. This is described and discussed further below.
- 20th March 2006: Mr O'Sullivan contacted the solicitor, Mr Simon.
- 26th March 2006: Re-admitted to hospital when ileostomy was
reversed.
- 2nd May 2006: On solicitor's advice Mr O'Sullivan made FOI request to the hospital for his records.
- 21st June 2006: solicitor wrote to hospital about request for records.
- 17th July 2006: solicitor Mr Simon received the hospital records.
- 22nd February 2007: solicitor received a doctor's preliminary report following consideration of the records.
- 16th May 2008: solicitor received report from a consultant surgeon and microbiologist.
- 19th August 2006: date of issue of Personal Injuries Summons.
This skeleton needs to be supplied with some detail about the critical period from March 2006. The plaintiff's account was that he did not have any idea as to the reason why he had contracted MRSA in hospital or that it might have happened because something went wrong. Then, in March 2006, his mother told him about a television programme dealing with hospital MRSA infections. In regard to this evidence, Kearns P. concluded as follows:
'… and, in a sense, things only started to take a meaningful focus following a TV programme which his mother was watching in March 2006 where other MRSA sufferers were identified and it became clear that legal redress might be obtained for persons who had become infected in this way in hospitals. These being people who went in with no infection and came out infected. And a certain gentleman, I think Tony Kavanagh was his name, was identified on that TV programme and the plaintiff decided to contact Mr. Kavanagh and in that way came into contact with his solicitor.'
Mr. Kavanagh recommended a solicitor, Mr. Simon, whom Mr. O'Sullivan contacted on 20th March 2006. Mr. Simon prepared an FOI request for Mr. O'Sullivan to send,...
To continue reading
Request your trial
-
O'Sullivan v Ireland, the Attorney General
...J. Finlay Geoghegan J. Supreme Court appeal number: S:AP:IE:2018:000034 [2019] IESC 000 Court of Appeal record number: 2014 no 383 [2018] IECA 8 High Court record number: 2008 no 6906P An Chúirt Uachtarach The Supreme Court Statutory construction – Limitation period – Statute of Limitations......
-
Coughlan v The Minister for Defence
...knowledge of it as of that date.’ 15 This issue has more recently been considered by the Court of Appeal in O'Sullivan v. Ireland & Ors. [2018] IECA 8. This case concerned a plaintiff who contracted MRSA in September 2005. The following March the plaintiff's mother informed him of a televi......