O'Sullivan v Ireland, the Attorney General

JurisdictionIreland
JudgeMr Justice Peter Charleton,O'Donnell J.,Ms. Justice Finlay
Judgment Date23 May 2019
Neutral Citation[2019] IESC 33
CourtSupreme Court
Docket Number[S.C. No. 34 of 2018],Supreme Court appeal number: S:AP:IE:2018:000034 Court of Appeal record number: 2014 no 383 [2018] IECA 8 High Court record number: 2008 no 6906P
Date23 May 2019
Between/
Oliver O'Sullivan
Plaintiff/Respondent
- and -
Ireland, the Attorney General, The Minister for Health and Children, the Health Service Executive, the Bon Secours Health System Limited trading as Bon Secours Hospital
Defendant/Appellant

[2019] IESC 33

Charleton J.

O'Donnell Donal J.

Finlay Geoghegan J.

O'Donnell Donal J.

McKechnie J.

Dunne J.

Charleton 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 (Amendment) Act 1991 s. 3 – Appellant seeking to appeal against judgments of the High Court and the Court of Appeal – Whether the limitation period had been breached

Facts: At issue on this appeal to the Supreme Court was the interpretation and application of s. 3 of the Statute of Limitations (Amendment) Act 1991. In attempting to address the 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 arose. The purpose of this judgment was both to decide the individual appeal and to set out the relevant principles. While the alleged injury to Mr O’Sullivan, the plaintiff/respondent, occurred in this case in September 2005 in the Bon Secours Hospital in Cork, the defendant/appellant, the plaintiff and defendant had only a judgment of the High Court and three judgments, one dissenting, of the Court of Appeal on the limitation issue. By a determination dated 29 June 2018, the Supreme Court enabled a further appeal. While the Bon Secours Hospital had accepted any liability which may arise on behalf of all defendants, but which was contested, no decision on liability had been made. It was more than 13 years since Mr O’Sullivan contracted Methicillin-resistant Staphylococcus aureus (MRSA) during the course of what might otherwise have been an uncomplicated operation in that Cork hospital.

Held by Charleton J that, on the facts as found by the trial judge, the plaintiff did not delay in seeking out such facts through consulting an expert when it was reasonable for him to do so. Charleton J noted that the fact came to the plaintiff’s knowledge in February 2007; that was within two years of the issue of the plenary summons on 19 August 2008. Charleton J’s judgment thus concurred with the separate judgment of Finlay Geoghegan J.

Charleton J held that the judgment of the High Court and the judgment of the majority in the Court of Appeal should be upheld.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton of Thursday 23 May 2019
1

At issue on this appeal is the interpretation and application of section 3 of the Statute of Limitations (Amendment) Act 1991 as amended. This 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 instead is 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. The purpose of this judgment is both to decide the individual appeal and to set out the relevant principles.

2

In these cases, very often the issue of whether the limitation period has been breached or not is tried on a preliminary basis; thus potentially without all of the full facts being heard. This does not always help. While the alleged injury to the plaintiff occurred in this case in September 2005 in the Bon Secours Hospital in Cork, the plaintiff and defendant, to date, have only a judgment of the High Court and three judgments, one dissenting, of the Court of Appeal on the limitation issue. By a determination dated 29 June 2018, this Court enabled a further appeal. While the Bon Secours Hospital has accepted any liability which may arise on behalf of all defendants, but which is contested, no decision on liability has been made. It is now more than 13 years since the plaintiff Oliver O'Sullivan contracted Methicillin-resistant Staphylococcus aureus, commonly called MRSA, during the course of what might otherwise have been an uncomplicated operation in that Cork hospital.

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. It would be sensible, as O'Donnell J points out in his dissenting judgment, for the entire corpus of limitations law to be subject to statutory revision and restatement. Any analysis of where the plaintiff and the defendant stand as regards limitations requires that the relevant section of the current 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.

(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.

4

In aid of construction, it is helpful to strip away from the section all of the wording that does not impact on this case, or indeed on the generality of actions. Thus, the plaintiff in this case, and in most such cases, did not suffer a brain injury and nor was he put in a coma in consequence of which he was not in a position to know that someone had treated him negligently; hence subsection (3)(b) is not relevant here and is rarely relevant. While a breach of duty may give rise to a cause of action in tort for damages where a specific legislative provision is for the benefit of a sufficiently defined class, for instance industrial regulations requiring that prim movers such as saws or the dangerous internal mechanisms of machines be fenced, what is applicable here and in almost all medical negligence allegation cases is the common law concept of negligence. While it may be that a nuisance, such as noise emanating from one house into another, can both cause damage and can give rise to the delayed realisation of a wrong, such as hearing loss, only years after such an obvious annoyance has been continuing, that is not the case here or in any of the decided cases. Any issue of an apparently concealed defendant does not arise here. But, making no reference to contractual obligations as to fitness for purpose, such an issue might arise in a case of harm resulting from use or consumption of a product, the noxious element of which was reasonably bought by the primary supplier from a reputable source: see for instance Fleming v Henry Denny & Sons Ltd (Supreme Court, unreported, 29 July 1955), Mason v Williams & Williams Ltd [1955] 1 WLR 549 and Taylor v Rover Co Ltd [1966] 1 WLR 1491. Nor is this defendant unknown, since the standard practice, whether for right or wrong is not commented on here, is to sue all potential defendants. Section 8 of the Civil Liability and Courts Act 2004 provides for certain potential adverse consequences for a plaintiff where they fail ‘without reasonable cause, to serve a notice in writing, before...

To continue reading

Request your trial
19 cases
  • ELG (a minor suing by her mother and next friend SG) v Health Service Executive (No. 2)
    • Ireland
    • Supreme Court
    • 11 March 2022
    ...to say that any particular part of the Act was either clear or ambiguous.” 96 . More recently Charleton J. in O'Sullivan v. Ireland [2019] IESC 33, [2020] 1 I.R. 413 (at p. 443) made the following observation which is clearly on point: “Construction of a section of a statute should take pla......
  • Green v Hardiman
    • Ireland
    • Supreme Court
    • 2 July 2019
    ...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 misadvent......
  • Gannon Maguire v O'Callaghan
    • Ireland
    • Court of Appeal (Ireland)
    • 6 October 2020
    ...of law under O. 25, noting that in subsequent decisions of the Supreme Court those principles had been applied. In O'Sullivan v. Ireland [2019] IESC 33 Charleton J. had endorsed the principle that a unitary trial would, in the normal way, be the default option and he approved the judgment o......
  • Irish Life & Permanent Plc t/a Permanent TSB v Beades
    • Ireland
    • High Court
    • 24 May 2019
    ...given of Mr. Beades” attempt to frustrate the orders for possession made so many years ago now. 18 Charleton J. in O'Sullivan v. Ireland [2019] IESC 33, (unreported, Supreme Court, 23rd May, 2019), delivered only yesterday, reminded everyone, at para. 40, that the Supreme Court had identifi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT