Supreme Court allows appeal dismissing claim as statute-barred due to equitable fraud concealment by defendants.

[2003] IESC 39

THE SUPREME COURT

400/02

Hardiman J.

Geoghegan J.

McCracken J.

Between:

ALISON GOUGH

Plaintiff

and

MICHAEL NEARY and BASIL CRONIN

Defendants/Appellants

JUDGMENT of Mr. Justice Hardiman delivered the 3rd day of July, 2003.

1. In October, 1992, the plaintiff was a 27 year old woman who was awaiting the birth of her first child. This was expected on the

15th October, 1992, but did not occur then. On the 25th October, 1992, she was admitted to the hospital of which the second-

named defendant is a trustee under the care of the first-named defendant who is a consultant obstetrician/gynaecologist. Various

steps were taken to induce the birth. When these were unsuccessful it was decided in the early hours of the morning of the 27th

October, 1992, that she should have a Caesarean section. Her child was born by this procedure.

2. This action relates to the circumstances in which, after the Caesarian section, an emergency hysterectomy was performed.

3. On the 21st December, 1998, the plaintiff commenced proceedings against the defendants in respect of the hysterectomy. The

plaintiff alleged that the sub-total hysterectomy performed on her was unnecessarily performed and that alternative treatments were

not attempted, or not adequately attempted. Both defendants pleaded the Statute of Limitations, amongst other defences.

4. The plaintiff’s action was heard in the High Court (Johnson J.) on the 17th, 18th, 19th and 23rd April, 2002 and on the 14th May,

2002. Judgment was given on the 15th November, 2002. The plaintiff succeeded in her action and was awarded a total of

€273,223.27. Argument in relation to the Statute of Limitations had taken place on the 23rd April, 2002, at the end of the plaintiff’s

evidence. In an ex-tempore judgment the learned trial judge ruled against each defendant’s defence under the Statute of Limitations.

5. By notice of appeal filed on the 18th December, 2002, the defendants appealed from the judgment and order of the High Court.

The appeal was limited to the defence under the Statute, and to the question of damages.

The Statute of Limitations.

6. There is no dispute that if the Statute of Limitations, 1957 had not been amended this action would be statute barred since it was

instituted outside the three year limitation period provided by that Act, unless it was saved by the provisions of s.71 in relation to

fraud. This section, insofar as relevant provides:-

“71(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either –

(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent,

or

(b) the right of action is concealed by the fraud of any such person, the period of limitation shall not begin to run until

the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.”

7. In this case the plaintiff did not rely on fraud in the sense in which the term is used in s.71 and the fraud itself was not pleaded in

the replies delivered.

8. The plaintiff strongly relies, however, on the terms of the Statute of Limitations (Amendment) Act, 1991 and in particular on s.2(1)

thereof. This sub-section provides:-

“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…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) –

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.

The plaintiff’s state of knowledge.

9. The plaintiff’s knowledge that she had been subjected to a hysterectomy, and her knowledge of why that procedure had been

carried out on her, derived wholly from what the first-named defendant told her. The learned trial judge unreservedly accepted the

plaintiff’s evidence about what she was told. The plaintiff continued to accept what she was told by the first-named defendant until

1998, a time well after the expiration of three years from the date of the operation, when she came to question it in circumstances

discussed below.

What Dr. Neary told the plaintiff.

10. The plaintiff described her recovery from the birth and her state of pain and discomfort. She said that on the afternoon of the day

after the operation Dr. Neary walked by her bed and she said to him “I didn’t sleep last night, I was very upset”. He said “If you didn’t

sleep, how do you think I slept?.”

11. There was no further conversation on that occasion, which was on Tuesday 28th October, 1992. Coming to Thursday 30th she

described her further recovery and her delight in her new born son. She remarked to the nurses that if she were to have another child

she would like to have a planned Caesarean section. A nurse advised her to discuss this with the doctor who would be around to see

her. When he came she expressed her preference for a Caesarean section to him and asked if it would be possible. He said “No”. She

asked what he meant and he said “[I] had to remove your womb, you had a hysterectomy”. She was very disturbed and incredulous.

Dr. Neary said to her that he had saved her life. He said he could have sent her son out to her husband without a mammy, but he had

saved her life. He said she had lost so much blood, he never witnessed anything like it. He said he had used all the top drugs. He said

he had left the ovaries and that she would come to terms with her situation.

12. She had no further significant conversation with Dr. Neary while in hospital. On the 23rd December, 1992, she attended him for

her check up. He examined her. A nurse asked her to wait until he was free so that she could ask him questions. She told him that

she was very upset over what had happened and asked “[W]hat did I do wrong?.” She asked could he explain. This remark, in

context, has to be interpreted as a request for an explanation of the hysterectomy. She added that, due to her distress, she could

not sleep at nights. She said that she could not come to terms with what had happened to her.

13. Dr. Neary said that if he were to tell her what had happened on the night of the operation she would never sleep again. He said

she was better off not knowing and advised her to just go home and get on with her life.

14. The plaintiff was subsequently attended by her general practitioner who referred her for counselling which she did not find helpful.

She continued to be preoccupied with the fact of her hysterectomy. In 1996 she was in her solicitor’s office in connection with a

mortgage transaction and she said something to the solicitor along the lines whether she (the solicitor) could explain what had

happened which of course she could not. She said “[All] I wanted was an explanation. That’s all I wanted”.

Significance of what the doctor said.

15. It is apparent from the foregoing that, in informing the plaintiff of the hysterectomy and the reasons for it, the doctor spoke in

terms that were very dramatic but also very general. He made the following things quite clear:-

(1) That, by performing the hysterectomy, he had saved her life. He said this in terms that were colloquial and emotive,

saying that he could have sent the newborn child out to his father without a mammy. On the evidence, the risk from

which he “saved her life” was that of exsanguination.

(2) That the reason for this state of affairs related to her bleeding after the section. He said the bleeding was such that

he had never witnessed anything like it. The remark, coming from an experienced consultant, can only connote some very

rare and dramatic development of an appalling nature.

(3) That the hysterectomy had been necessary despite the fact that “he had used all the top drugs”. This was a plain

indication that he had attempted to avoid the necessity for a hysterectomy by using all appropriate means to stop the

bleeding.

(4) That it would not be in her own interest to enquire further about what had happened on the night when the

Caesarean section and the subsequent hysterectomy were performed. This was indicated at the meeting of the 23rd

December, 1992. The context of this meeting was quite different to the earlier encounter in the hospital. It was nearly

two months since the hysterectomy had occurred. The plaintiff had specifically asked for an explanation as to why it had

occurred and had graphically indicated the distress of which it was causing her. She said that she couldn’t come to terms

with what had happened and in answer to that Dr. Neary stated that if he told her what had happened on the night she

would never sleep again. Accordingly, he said she was better off not knowing and just going home and getting on with her

life.

16. All of this was said to a young lady who had been a healthy prima gravida and who had been employed as a hospital domestic.

17. What the doctor told the plaintiff must be seen in the context of what actually occurred on the night of the operation.

Events of the morning of the 28th October, 1992.

18. No appeal has been taken against the learned trial judge’s findings in relation to these events. These findings were based on

extensive discussion of the events which were proved in evidence, and recorded in clinical notes, by a number of highly qualified

experts who have evidence at the trial.

19. The learned trial judge accepted uncontradicted evidence that Caesarean hysterectomy in the case of a prima gravida was an

enormously rare event. A series of 100,000 births in Dublin showed only one such case, in which there was a specific reason for

severe haemorrhage (placenta praevia) which was not present here.

20. The explanation given by Dr. Neary for the hysterectomy, in writing to the plaintiff’s general practitioner, was “continuous massive

bleeding”. Commenting on this, the distinguished obstetrician Dr. John Bonner said:-

“The definitions of massive haemorrhage, you know, are arbitrary, but generally speaking it means that your life is in

danger from exsanguinations. This lady, looking at her records, was never in any danger from exsanguination, and that is

from the anaesthetic and the operation records”.

21. He justified this opinion in considerable detail having regard to the timing of events on the night, the vital signs, and the

anaesthetic record. He said:-

“I can’t see any obstetrician justifying the removal of the uterus of a woman with totally stable blood pressure and with a

blood loss of only 1500 mls.”

22. Both Dr. Bonner and another expert, Dr. Mary Wingfield, also considered that the quantity of blood actually transfused into the

plaintiff was dramatically low for a patient bleeding so profusely as actually to require a Caesarean hysterectomy. Dr. Wingfield quoted

figures from the National Maternity Hospital showing no case of Caesarean hysterectomy in a prima gravida patient between 1990

and 1998. Moreover, 74% of women who had this procedure required ten or more units of blood as opposed to three units given in the

present case. This figure was consistent with the requirements of the Caesarean section. Nor did the plaintiff’s vital signs, which were

continuously monitored, suggest catastrophic bleeding.

23. Apart from the question of whether the critical situation described by Dr. Neary in very dramatic, almost apocalyptic terms,

existed at all, there was considerable dispute as to the alternative means of treating the plaintiff. None of the eight medical personnel

other than Dr. Neary who were present in the operating theatre were called to give evidence.

24. Much emphasis was placed on the tight sequence of events on the morning of the operation. On the evidence, this was as

follows:-

- 1.35am: commencement of Caesarean section,

- 1.44am: delivery of baby,

- 1.46/7am: placenta delivered and bleeding commenced,

- 2.10am: cross matched blood left the laboratory,

- 2.25/30am: hysterectomy operation began,

- 3.05am: hysterectomy operation ended.

25. Dr. Neary’s evidence was that the delivery of the placenta took two or three minutes after the birth: the plaintiff bled for twelve

minutes after that and about 2.am he considered the bleeding abnormal. He regarded this as the “crisis point”. Transfusion could not

have begun until after 2.10 a.m. and the hysterectomy was commenced fifteen minutes later.

26. The learned trial judge made a number of findings of significance in relation to this period.

27. Dr. Neary associated the uncontrollable bleeding which led to the hysterectomy with the fact that the uterus was “totally atonic”.

This meant that its constituent muscle fibres did not contract down on delivery, thereby tying off the blood vessels, which had been

supplying the placenta, by natural process. In this event, on the evidence, it is standard and essential that the patient be

commenced with forty units of oxytocin. There was no record of this being administered. Dr. Neary said that this was done but no-

one was called to corroborate it. Dr. Neary himself conceded that to fail to administer forty units of oxytocin would be falling below

acceptable standards. The learned trial judge was satisfied that “[On] the balance of probabilities such an infusion of forty units of

oxytocin was not given to the plaintiff”.

28. A number of other techniques were discussed in evidence as being available for use in an effort to avoid a hysterectomy. These

included ligating the uterine arteries, prolonged massaging of the uterus and packing the uterus to stem the bleeding. Issues were

raised as to whether certain techniques were appropriate, had been adopted at all, or had been given sufficient time to work before

proceeding to hysterectomy. The learned trial judge held that the defendant “...did not use the necessary conservative methods,

particularly ligating the uterine arteries” and in that and in omitting “…to persist for long enough in the massaging of the uterus, in the

packing of the uterus and in failing to administer the dosage of oxytocin…” that he was negligent as that term is explained in the

judgment of Finlay C.J. in Dunne v. National Maternity Hospital [1989] IR 91.

29. It must also be recorded that, on any view of the evidence, there were extraordinary omissions in the allegedly contemporary

operation notes. Neither the massaging of the uterus, the use of packing, or the administration of oxytocin is recorded. No sense of

urgency, let alone crisis, appears to have been communicated to the anaesthetist, the pathologist responsible for the blood supply, or

any other person.

30. Moreover, even if one accepts the main features of the defendant’s evidence as to the time at which serious bleeding took place,

and as to the measures, short of hysterectomy, adopted to stop it, the sequence of events suggests great haste in proceeding to

the drastic remedy. The evidence on these points is nothing short of chilling. Both Dr. Bonner and Dr. Wingfield gave evidence of the

period of time for which they would expect more conservative measures to be attempted before proceeding to hysterectomy. The

learned trial judge asked Dr. Bonner whether the sequence of the termination of the Caesarean section and the commencement of the

hysterectomy allowed time for the various steps which he said ought to be taken by an obstetrician to stop bleeding before

proceeding to hysterectomy to be taken. Dr. Bonner replied:-

“No, it doesn’t allow for that. It is a precipitated decision that has been made. The impression I would get from the

timings is that there was considerable haste in proceeding to the hysterectomy”.

31. He also said that:-

“Generally speaking, before you would remove the uterus of a woman after her first child, you would use every conservative measure

to try and conserve the uterus because that would be the standard practice you would finish the operation and the patient would

then be continuing to bleed and it would be a case of usually going back to theatre and often when a hysterectomy is done after

Caesarean section, it is quite often, maybe, within twelve or twenty-four hours later. It is not usually done just as an immediate

decision making I don’t think the appropriate care was provided surgically for this patient or her management in labour”.

32. Dr. Wingfield was asked how long she would treat a patient conservatively before proceeding to hysterectomy. She noted the

availability of ample blood for transfusion in the hospital and said:-

“ I certainly think at least an hour’s extra time could have been bought for that woman, in which time you would try these

other procedures… and possibly longer. In my experience any of the cases of major obstetric haemorrhage that I have

seen, the hysterectomy has never happened for a couple of hours following the delivery and sometimes patients will go to

theatre, have a procedure performed such as a pack inserted. They will then be sent back to the recovery room still

critically ill but being monitored and being transfused and often that is all you need. But quite regularly, they will end up

continuing to bleed and needing to go back to theatre two or three hours later for a subsequent procedure and a

hysterectomy at that stage. I have never seen it happen in a short time frame as it is described in this case”.

33. Similarly, Dr. Wingfield was of the view that if the oxytocin had been administered in the appropriate dosage (and the learned trial

judge held that it had not) then “I would be very surprised if that would not have arrested the haemorrhage”. Moreover, dealing with

Dr. Neary’s estimate of 40 to 45 minutes during which he employed conservative measures, and discussing the uterine packing which

he said he did, she said:-

“Even packing the uterus, I am amazed that there was time to do that procedure and give it time to work in that short

period of forty minutes because packing the uterus takes time to do”.

34. She thought that, after packing, a period of “certainly an hour or two hours” should have been allowed to see if the bleeding

would stop, assuming, as here, that the patient was stable and there was blood available to transfuse. She did not think it was

possible to ascertain whether the packing procedure was working or not in a shorter period. Asked whether any obstetrician exercising

reasonable care would have performed a hysterectomy in the time scale featured in this case she replied “no”.

Dr. Neary’s subsequent comments in context

35. I have already set out what Dr. Neary said about the hysterectomy to the plaintiff at the two meetings which they had after the

operation. He also wrote to her general practitioner saying:-

“The patient had continuous massive bleeding and although the patient was pregnant for the first time, a hysterectomy

had to be performed eventually.” (Emphasis added)

36. It appears to me that neither of the two brief accounts given by Dr. Neary to the plaintiff and to her general practitioner

respectively describes what occurred adequately, accurately, or fairly. It is possible to say this with considerable confidence, having

regard to the unappealed findings of the learned trial judge. There is no objective medical support for the view that there was

“continuous massive bleeding”. If this had occurred it would have been witnessed by eight medical persons, none of whom were called

in evidence. There is no support for it in the records, and none in the continuous monitoring of the plaintiff. There are positive findings

firstly that the most obvious conservative step – the administration of forty units of oxytocin – was not taken at all and

uncontradicted evidence that it would probably have stopped the bleeding. There is grave doubt as to whether the uterine packing

alleged took place at all (it was not put to Dr. Bonner when he gave evidence and entered the case only later). There is

uncontradicted evidence that, if it did occur, no sufficient time was allowed for it or any measure which may have been employed to

work. What the doctor told the patient after the operation was inaccurate, incomplete and, worst of all, self-serving. His statement

that he had “used all the top drugs” in an effort to avoid hysterectomy, was untrue. Moreover, in the interview of the 23rd December,

1992, the doctor did all he could, by the use of melodramatic language, to discourage his patient from further inquiry, expressly saying

that it would be better for her not to know what went on, on the night of the operation, because if she did she would never sleep

again. The doctor denied using this phrase but the learned trial judge accepted the patient’s account of the interview and commented

unfavourably on the doctor’s general demeanour and credibility. The phrase in question was, as the doctor himself said, the stuff of

which nightmares are made. In employing it to forestall further inquiry he was again serving his own interest and actively seeking to

ensure that the patient did not seek the further information and explanation which she very badly wanted and to which she was

entitled.

37. All this took place between doctor and patient. Having regard to that relationship I consider that the content and language of the

doctor’s communications and the express discouragement of further inquiry were, prima facie, unconscionable on his part and capable

of amounting to an intentional imposition on her, a deliberate concealment of the true facts of what occurred, and an attempt, both

overbearing and underhand, to forestall further inquiry on her part.

38. The possible legal significance of the foregoing will be considered below.

The plaintiff’s further inquiries.

39. The plaintiff was employed in the kitchen of another hospital in the same general area. In the course of 1998 she heard rumours in

that hospital that there was a local consultant in trouble of some unspecified sort. Later in the year she began to see media reports

dealing with other patients of the defendants’ hospital in precisely her situation. She reacted very emotionally to this because she

concluded “that there were some more women, that I could have stopped it. I could have stopped it. If I had spoken up, I could

have. I couldn’t believe the amount of people”.

40. She heard a radio programme at that time which gave the phone number for the “Lourdes Hospital Helpline”. This was a service

provided by the hospital for anyone who was affected by the media items which they had seen or read. She said that she contacted

them because “I wanted them to tell me that it wasn’t true, it wasn’t true that Dr. Neary wasn’t the doctor being investigated”. The

helpline however told her that he was the doctor being investigated “for performing unnecessary hysterectomies”. It appears that she

was deeply distressed in particular because of the number of patients involved. She had thought that she was only the third person

who had a hysterectomy in those circumstances. She now felt “[M]aybe I should have stopped it, I could have said something”.

41. The plaintiff said that she contacted her solicitor on the morning of her conversation with the helpline. The solicitor requisitioned

the hospital notes, instructed an expert and generally took the necessary steps to investigate whether she had a statable action. It

follows from the foregoing that the plaintiff’s state of knowledge as it now is originated from information she received through the

media, and from the Lourdes Hospital Helpline. Its effect was to make her doubt the account of the events leading to her

hysterectomy which the first-named defendant had given to her. This occurred specifically because she became aware that Dr. Neary

was under investigation for performing unnecessary hysterectomies. This led her to consult a solicitor in relation to the hysterectomy.

The information obtained by her solicitor led her to believe that the hysterectomy had not, in fact, been medically indicated and that

appropriate conservative steps to avoid it had not been taken. Prior to that neither she nor her general practitioner had had any

reason to doubt what Dr. Neary had told them.

High Court decision on this limitation issue.

42. The learned High Court judge expressly adopted the reasoning of Barr J. in Maitland v. Swan [1992] PNLR 368. He recorded that

the order of the High Court in that case had, on appeal been set aside in its entirety on consent and that the allegations of

negligence were withdrawn. But he found the reasoning persuasive as he was wholly entitled to do. He adopted in particular Barr J’s

equation of “injured” with “harmed”. He further adopted the following passage:-

“In my view a person who undergoes necessary surgery which is skillfully (sic) performed and is successful does not

thereby suffer an injury in the context of the Act. Such an operation is a curative, beneficial process and has no element

of harmfulness in it, even if the procedure involves the removal of an important organ with in consequence a degree of

permanent disablement for the patient”.

43. “Injured” and “injury” are two of the words used in s.2(1) of the Act of 1991 to describe certain matters knowledge of which on

the part of the plaintiff fixes his “date of knowledge”. The most relevant sub-paragraphs are:-

“(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 has alleged to constitute negligence,

nuisance or breach of duty”.

Comment on this approach.

44. I am by no means convinced that the word “injured” and cognate words are usefully defined by reference to the word “harmed”.

The most useful source in seeking a meaning for the word “injured” is the partial definition of the term “personal injuries” in the

Statute of Limitations, 1957. This definition derives in turn from the United Kingdom Law Reform (Personal Injuries) Act, 1948 and is

used in many other United Kingdom statutes. The term “…includes any disease and any impairment of a person’s physical or mental

condition”. In this, I agree with the judgment of Geoghegan J. in Maguire v. Smithwick (unreported, High Court, Geoghegan J., 27th

June, 1997). I also agree with what is said at p. 8 of that judgment:-

“First of all I accept the view taken by the English Court of Appeal in Broadley v. Guy Clapham & Co. [1994] 4 All E.R. 439

that the words ‘which is alleged to constitute negligence, nuisance or breach of duty’ are merely words of identification.

Therefore it does not mean that there has to be any knowledge of fault and indeed such an interpretation would be

inconsistent with the provision later on in s.2 that knowledge that any acts or omissions did or did not as a matter of law

involve negligence, nuisance or breach of duty is irrelevant”.

45. Specifically, I agree with the interpretation of the last words of s.2(1) as excluding from the things of which there must be

knowledge in order for the plaintiff’s “date of knowledge” reached any question of fault.

46. It was on the basis of an equation between the term “injured” and the term “harmed”, as made by Barr J. in the case mentioned,

that the learned trial judge rejected the defendant’s submissions on the statute. In my view, however, the word “harmed” has a

connotation of wrongful injury. Indeed, it is on the basis of this connotation that he distinguishes between injury which is the

inevitable by-product of an operation which is medically indicated and other injury. In my view, however, neither the statutory

definition of “personal injuries”, nor an interpretation of s.2(1) which gives proper weight to its concluding words, admit of the

importation into the concept of “injury” of any element of wrongfulness or blameworthiness. There is no qualitative element in the

statutory formulation of the matters of which the plaintiff must have knowledge to set time running.

Statutory Context.

47. This interpretation, in my opinion, is consistent with the context and purpose of the Act of 1991. The Act itself substantially

follows the scheme of a Bill to amend the Act of 1957 Act which was included in a Law Reform Commission Report of 1987. This was

entitled “Report on the Statute of Limitations: Claims in respect of latent personal injuries”. This, I think, actually epitomised the

principal (though not of course the only) concern leading to the request to the Commission to formulate suggestions for reform.

48. This, indeed, was the origin of the strikingly similar English statutory provision, based on a 1971 report of the English Law Reform

Commission. In Dobbie v. Medway Health Authority, [1994] 1 W.L.R. 1234 cited above, Beldam L.J. referred to the history of the

limitation of actions and continued:-

“By 1963 it had become apparent that in actions for personal injury circumstances could occur which made it equally

unfair to hold a plaintiff to the normal period of limitation. The injustice of such an inflexible period was demonstrated by

Cartledge v. E Jopling & Sons Ltd. [1963] 1 All E.R. 341. Due to the acts or omissions of the defendant, the plaintiffs

contracted an insidious disease which was symptomless until after the period of limitation had expired. Then catastrophic

symptoms developed for which they had no remedy.”

49. Similarly, Bingham M.R. in the same case said:-

“The exception relevant for present purposes affects personal injury claimants. The need for an exception became clear

when it was found that employees disabled by industrial disease did not know (and could not have known) that they

suffered from the disease, still less that it was caused by their employers’ process, until well after the three-year

limitation period for personal injuries had expired”.

50. The Commission recommended in favour of a “discoverability test”. Specifically, they said:-

“We consider that time should begun to run only where the plaintiff becomes or ought to become aware that the injury is

attributable, in at least some degree, to the conduct of another”.

51. It appears that these considerations led to the last words in s.2(1). Commenting on them in the annotation of the Act of 1991 in

“Irish Current Law Statutes Annotated” (1991-1992), Mr. Tony Kerr, one of the authors of the standard book on the subject, quotes

the relevant words and says:-

“Consequently knowledge that the injury was as a matter of fact attributable to an act or omission of the defendant

triggers the limitation period, since knowledge that these facts constitute negligence on the part of the defendant is a

matter of law and is thus irrelevant”.

52. This approach is also consistent with that of the English Court Appeal in Dobbie v. Medway Health Authority [1994] 1 W.L.R.

1234. There, Sir Thomas Bingham M.R. said:-

“The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and

physical harm which followed. She knew of this injury within hours, days or months of the operation and she, at all times,

reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being

attributed to, or more bluntly was the clear direct result of, an act or omission of the health authority. What she did not

appreciate until later that the health authority’s act or omission was (arguably) negligent or blameworthy. But her want

of that knowledge did not stop time beginning to run”. (Emphasis added)

53. In so finding Bingham M.R. was critical of the approach of the trial judge in that case, and of certain earlier judgments, in that

they incorporated into the matters of which the plaintiff had to have knowledge an element, if not of negligence per se at least some

element of shortcoming or absence of necessity. Dobbie was a case where the plaintiff had had a mastectomy in 1973. Microscopic

examination of the growth which was the indicator for the mastectomy, carried out subsequent to the operation, showed the lump

was benign. The plaintiff, however, accepted the view of the doctor that she was fortunate that the growth had not proved to be

malignant. She came to doubt this view in 1988 after reading certain media reports. On those facts, the trial judge held that she:-

“had broad knowledge of sufficient facts to describe compendiously that her breast had been unnecessarily removed,

that something had gone wrong, and that this was due to the defendants’ negligence”. (Emphasis added).

54. Commenting on this, Bingham M.R. said:-

“The judge’s reasoning is in my view open to criticism in two respects. (1) He was wrong to refer to the breast being

‘unnecessarily’ removed, to something going wrong and to the health authority’s negligence. These matters were on a

correct construction of s.14 irrelevant”.

55. Section 14 is the British equivalent to s.2(1).

56. Bingham M.R. also observed:-

“The situation is complicated when, as often happens, the plaintiff learns of the defendant’s act or omission and of the

criticism that it was negligent at the same time. But it is necessary to emphasise that knowledge of fault or negligence is

not needed to start time running”.

57. In a case already referred to in this judgment, Broadley v. Guy Chapman and Company, words in the English s.14(1) which are

identical to the concluding words of s.2(1) of our Act, were addressed by two of the Lords Justices. Leggatt L.J. said:-

“It is plain from the concluding words of s.14(1) that ‘knowledge that any acts or omissions did or did not, as a matter of

law, involve negligence’ is irrelevant. In my judgment the only function of the words ‘which is alleged to constitute

negligence’ is to point to the relevant act or omission to which the injury was attributable”.

58. Hoffmann L.J. came to a similar conclusion. He expressed it, however, in words which were later used to gloss the Dobbie decision

in a manner very significant for this case. He said:-

“I think [counsel] was right when he said that the words ‘which is alleged to constitute negligence’ serve to identify the

facts of which the plaintiff must have knowledge without implying that he should know that they constitute a breach of a

rule, whether of law or some other code of behaviour. Section 14(1)(b) requires that one should look at the way the

plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts

on which that complaint is based”. (Emphasis in original)

59. It will also be observed that the approach exemplified by these citations is quite sufficient to effectuate a statutory policy of

providing relief to plaintiffs’ complaining of “latent” diseases or impairments.

Application to the present case.

60. In this case the plaintiff of course knew from late 1992 that she had had a hysterectomy. This represented, of course, a very

significant impairment and she was deeply distressed about it. She did not know that it was unnecessary because she accepted the

false information to the contrary given to her by the doctor.

61. In my view, the most obvious way to set up an action on those facts would be to explore the possibility that her cause of action

was concealed by fraud within the meaning of s.71 of the Act of 1957. Since this contention was not pleaded or argued I will make no

finding on it, but having regard to my findings above about what the doctor said and the interpretation of it in light of the now

established facts, there is plainly a strong case for this view. This is particularly so in light of the decision of the High Court in

McDonald v. McBain [1991] 1 I.R. 284. There, Morris J. (as he then was) was dealing with an action for the malicious destruction by

fire of the plaintiff’s premises. The fire, however, took place more than eleven years before proceedings were issued. On the facts,

the defendant was successful in defeating the claim on the basis of the statute, even though he had subsequently admitted causing

the fire. The plaintiff relied on a dictum of Denning M.R. in King v. Victor Parsons and Company [1973] 1 W.L.R. 29 where it was

said:-

“In order to show that he ‘concealed’ the right to action ‘by fraud’, it is not necessary to show that he took active steps

to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner

anything about it. He did the wrong or committed the breach secretly. By saying nothing he kept it secret. He conceals

the right of action. He conceals it by ‘fraud’ as those words have been interpreted in the cases. To this word ‘knowingly’

there must be added ‘recklessly’ ”.

62. Commenting on this passage Morris J. said:-

“It is my opinion that if the circumstances were such that the plaintiff in the present case had her property destroyed by

fire deliberately by a third party and that third party, either by stealth or silence, succeeded in hiding that fact from the

plaintiff, and she was left in complete and total ignorance of the identity of the wrongdoer, then that conduct on the part

of the wrongdoer would amount to fraud within the meaning of the Statute of Limitations. I would in such circumstances

find no difficulty in adopting, in the main, the approach of Lord Denning M.R. in King v. Victor Parsons & Co. [1937] 1

W.L.R. 29.”

63. I can see no difficulty in applying the same approach to the other constituents of the information required to constitute the

plaintiff’s state of knowledge.

64. It may be that there is a certain improbability, in most circumstances, expecting a person who has acted wrongfully to admit as

much to the victim of his wrongdoing. Such a person may indeed be entitled or constrained (as by an arrangement with insurers) to

make no admission. That, however, does not entitle him to conceal pieces of factual information to which another person is entitled,

to positively misrepresent the true facts, or to use his professional position to seek to divert further inquiry. It must also be recalled

that in this case as in many others there are two defendants, the hospital as well as the doctor. Of the eight medical personnel other

than Dr. Neary present at the operation in this case all but one were employees or agents of the hospital who are in an excellent

position to see what was going on, whether there was catastrophic bleeding, whether the indicated dose of oxytocin was

administered and what other measures were taken prior to hysterectomy.

65. It should be emphasised that “fraud” within the meaning of s.71 carries a much broader meaning than the same word either in its

criminal law connotation or in its connotation in other branches of civil law. In Kitchen v. Royal Air Forces Association, [1958] 1 W.L.R.

563 Lord Evershead M.R. said:-

“But it is now clear that the word fraud in (the English equivalent of s.71), is by no means limited to common law fraud or

deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S. Limited [1949] 1 K.B. 550 that no degree

of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which

Lord Hardwicke did not attempt to define 200 years ago, and I certainly shall not attempt to do so now, but it is clear I

think, is clear that the phrase covers conduct which, having regard to some special relationship between the two parties

concerned is an unconscionable thing for the one to do towards the other”.

66. It is however clear that if fraud within the meaning of s.71 is to be relied upon it must be very specifically pleaded. In the

frequently cited case of Lawrance v. Lord Norreys [1890] 15 A.C. 210 it was held that general averments of fraud are not sufficient:

the statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that

fraud was the cause of the concealment. The current edition of Halsbury Laws of England cites the case as authority for the

proposition that “[W]here fraud, concealment or mistake is relied upon as postponing the limitation period, it must be sufficiently

alleged in the pleading to bring the case within the statutory provision”.

67. This has not been done here. The omission, of course, did not arise by inadvertence but as a deliberate decision, on the basis

that an allegation of fraud was a very serious matter and that the doctor may possibly have had a subjective belief in what he said.

The last matter does not strike me as determinative of the issue of fraud in any way. It must also be recalled that, in cross-

examination of Dr. Neary, it was expressly put to him that he had altered a contemporaneous note in “an effort by you to defend

yourself, to put yourself in the best possible light in the circumstances”. It was also put to him in relation to his notes that “[T]hey

are not accurate contemporaneous notes made to describe the operation you performed but, rather, a defensive and coloured

account to try to extricate yourself from the position in which you find yourself”. This, it seems to me, is indeed an allegation of

deliberate concealment of what actually occurred. It is not clear to me that an express allegation of fraud in the pleadings would be a

more serious allegation than what was actually put.

68. However, the case was advanced on another basis to which I now turn.

“Negligent” and “Unnecessary”.

69. In para. 11 of the plaintiff’s written submissions it is said:-

“The act which constitutes negligence in this case is this: the performance of an unnecessary hysterectomy”.

70. On that basis, it is argued that it is not enough to trigger the plaintiff’s date of knowledge that she knew of the hysterectomy;

she must also have known that it was unnecessary. It was strongly submitted that this view is open notwithstanding the concluding

words of s.2(1) because there is a difference between knowing that a surgical procedure was, or turned out to be, unnecessary and

knowing that it was negligent.

71. I accept that there is, at least in theory a distinction between the concepts of an “unnecessary” surgical procedure and a

“negligent” one. For example in circumstances of an emergency a procedure may appear necessary which with hindsight, and perhaps

after biopsy or similar investigations, is demonstrated not to have been so. But that does not mean that the exercise of the surgeon’s

clinical judgement on limited information was negligent. It is however quite hard to give examples of such procedures outside the

context of emergencies. The surgeon in Dobbie no doubt felt sufficiently confident that the lump on the patient’s breast was

malignant that he thought it suitable to proceed to mastectomy without biopsy. But, there being no circumstances of emergency, he

was not justified in doing so. In many cases (as Bingham M.R. remarks) the factual circumstances are such that to become aware

that a procedure is unnecessary necessarily involves becoming simultaneously aware that it was negligent. This, I believe, is such a

case.

72. However, I would find against the plaintiff’s submission quoted above on a different and more fundamental ground. Accepting, for

this purpose, that there is real and significant difference between the concepts of “unnecessary” and the concept of “negligence”, I

do not believe that the existence of this difference avails the plaintiff in demonstrating that she did not know “that the injury was

attributable in whole or in part to the act or omission which is alleged to constitute negligence…”.

73. It is certainly true that, by reason of the final words of sub-section 2(1), knowledge of negligence as such is irrelevant to the

question of whether she had the necessary state of knowledge. But the fact that knowledge of negligence is irrelevant does not

mean that knowledge of something else, such as that the operation was unnecessary, is necessarily relevant. On the contrary, the

question is whether the plaintiff had the state of knowledge set out in the words quoted.

74. The meaning of the identical words in the English statute was illuminatingly addressed by Steyn L.J. (as he then was) in Dobbie’s

case. The words are found in s.14(1)(b) of the English statute. Steyn L.J. said:-

“Again, the application of these words causes no difficulty in this case. Attributability does not mean legal responsibility.

It can only refer to causation. It is alleged in the action that the surgeon was negligent in removing the plaintiff’s breast.

She knew in April 1973 that her injury (the removal of the breast) was caused by the act of the surgeon, or in the words

of the Statute was attributable to him. She therefore had the necessary knowledge of fact (b) at the end of 1973…

Applying the plain meaning of the words of Section 14(1) to straightforward and indisputable facts, the consequence

seems to follow that the claim became statute-barred at the end of April 1976.”

75. Steyn L.J. then set out in some detail the argument addressed to the Court of Appeal by the plaintiff’s counsel. It was

submitted:-

“that the injured party must also know that “something had gone wrong”. Pertinent to the present case he said that the

injured party must know that the mastectomy was “unnecessary”. He said that the injured party must appreciate the

possibility that the operation was negligently performed. And he also said that the word “omission” in Section 14(1)(b) is

capable of indicating what he described as “a qualitative element”, that is, something which possibly ought to have been

done”.

76. There is a striking similarity between portion of the argument thus summarised and the argument advanced in this case on behalf

of the plaintiff. In particular the interpolation of the adjective “unnecessary” to qualify the statutory word “act” is common to the

submissions in both cases. Steyn L.J. rejected the submission on the following grounds:-

“The simple answer to this construction is to be found in the ordinary meaning of the words of Section 14(1). The

contextual meaning of ‘injury’ in Section 14(1) is a personal injury without any further gloss other than by the express

definition of ‘significant’ in Section 14(2). The word ‘act’ does not by itself describe something which ought not to

have been done. And it would have been impossible to attach a qualitative element to ‘omission’ but not to ‘act’.

(Emphasis added)

Stripped to its essentials counsel’s argument is simply an attempt to argue that the injured party must know that he has

a possible cause of action. That is not a requirement of Section 14(1). Moreover in 1974 the Law Reform Committee

rejected a proposal that the injured party must have knowledge ‘that he has a worthwhile cause of action’: See

paragraph 53. The present argument is simply a thinly veiled variant of a possible solution which was rejected by the Law

Reform Committee in 1974 and by Parliament in 1975 and 1980.” (Emphasis added)

77. It should be noted that, in the Irish statute, there is no definition of the word ‘significance’ such as Steyn L.J. refers to in the

English equivalent. With that exception, I believe the relevant parts of this statute are directly comparable. I believe that it is

inadmissible to import the notions of non-necessity, or of something having gone wrong, into the plain words of s.2(1)(c). Importing

the concept of negligence would clearly fly in the face of the final words of the sub-section. But the fact that the concept of

negligence is excluded by express words does not justify the importation of some other, extra statutory, requirement to the sub-

section simply on the basis that it is something short of negligence.

78. I would also observe, though it is unnecessary to the approach I have adopted, that the Irish Law Reform Commission did not

advocate that time should not start running until the plaintiff was or ought to have been aware ‘that something had gone wrong’ or

anything of the kind. It advocated only, in a passage quoted above “That time should begin to run only where the plaintiff becomes or

ought to become aware that the injuries attributable, in at least some degree, to the conduct of another”.

Subsequent English Authority.

79. I agree with, and would follow, the statements of the Lords Justices of Appeal in Dobbie. The plaintiff, however, relies strongly

and with considerable effect on the later judgment of the Court of Appeal in the neighbouring jurisdiction; Hallam-Eames v. Merrett

Syndicates Limited [1996] 7 Med L.R. 122.

80. There is no doubt that this case, which purports to explain Dobbie has given rise to a series of cases which are now authoritative

in the neighbouring jurisdiction. I must frankly say that I do not consider that it “explains” Dobbie’s case. I believe it simply departs

from that case on a basis which (as I hope to show) is wholly unconvincing and indeed illogical.

81. Hallam-Eames concerned the question of whether an action by certain Lloyds “Names” against their managing agent were

statute-barred. It is not the least remarkable feature of the case that a considerably more indulgent view was taken of what was

needed to constitute a Lloyds member’s “date of knowledge” of commercial matters than of a housewife’s state of knowledge of

matters surgical.

82. The High Court judgment in Hallam-Eames was that of Gatehouse J. who found against the plaintiffs on an application of the

judgments of the Court of Appeal in Broadley and Dobbie, both cited above. The learned judge cited extensively from both cases. In

addition to quotations already given above, he quoted Balcombe L.J. “qualitative knowledge is irrelevant”; Hoffman L.J. “[T]his case is

concerned with the identification of the act which caused the injury” and again “ it seems to me clear that the essence of Mrs.

Broadley’s complaint is that her nerve was damaged in the course of the operation in my judgment this was all the knowledge or

imputed knowledge which she needed to have”.

83. Despite this extensive citation the Court of Appeal took the view that the judge was guilty of “ an over-simplification of the

reasoning in Broadley and Dobbie.”

84. There follows a truly remarkable passage in which Hoffman L.J., citing extensively from himself in the third person, introduces

several new concepts, short of negligence, which the Court now ordains are to be added the statutory provision in respect of what a

plaintiff must know to set time running. These are the following:-

(1) One must ask “what is the essential thrust of the plaintiff’s case”?

(2) In Dobbie, this essential thrust ‘was that the plaintiff had removed a healthy breast’. One can only comment that this

is not a qualification the learned judges felt called upon to make in Dobbie itself.

(3) “If one asks what is the principle of common sense which would identify Mrs. Dobbie’s complaint as the removal of a

healthy breast rather than simply the removal of a breast, it is that the additional fact is necessary to make the act

something of which she would prima facie seem entitled to complain”. This concept, of facts giving rise to an

entitlement to complain being an essential component of a plaintiff’s state of knowledge, is wholly novel. (Emphasis

added)

(4) A few lines later the learned Lord Justice, referring to the potential plaintiff says “[H]e must have known the facts

which can fairly be described as constituting the negligence of which he complains ”.

85. Hoffman L.J. summarises the contention of the defendant’s counsel in Hallam-Eames as being that the approach just outlined was

wrong because it was “a back door way of introducing a requirement that the plaintiff must have known that the defendant had been

negligent”. Hoffman L.J.’s approach may indeed go so far, and there is evidence in the immediately following passage that it does. But

for our purposes it is unnecessary to consider whether or not it is a back door way of introducing a requirement of negligence: it is

quite sufficient if it introduces some concept, whether of entitlement to complain, of something having gone wrong, or however one

expresses it, which is supplementary to the statutory requirement contained in s.2(1)(c).

86. No argument or logical process is advanced in favour of Lord Justice Hoffman’s formulation other than what he describes as

“common sense principles”. These are very inarticulately described. For example:-

“There may be many acts, omissions or states which can be said to have a causal connection with a given occurrence,

but when we make causal statements in ordinary speech, we select on common sense principles the one which is relevant

for our purpose. In a different context it could be said that a Name suffered losses because some Members Agent took

him to lunch and persuaded him to join Lloyd’s. But this is not causally relevant in the context of an allegation of

negligence”.

87. This is reductio ad absurdam. The invitation to lunch in Hoffman L.J.’s example is in no way an operative cause of the financial

loss suffered much later. Indeed, Hoffman L.J. concedes as much but suggests that it is saved from being so regarded only by some

process of commonsense employed in the relevant context, which alone can arrest the seamless chain of causation at a meaningful

point.

88. But the invitation to lunch is at most a causa sine qua non and is probably not even that, but merely incidental background. Even

if it were a causa sine qua non, that would merely mean that it was “ a cause which does not, in the sense material to the particular

case, cause, but is merely an incident which precedes in the history or narrative of events, but as a cause is not in it at the death,

and is hence irrelevant.” (per Lord Wright in Smith, Hogg and Co. Limited v. Black Sea & Baltic General Insurance Co. Ltd. [1940] A.C.

997. The statutory words, referring to an injury “attributable” to an act or omission requires a closer and an operative connection, a

causa causans as the old logicians put it. To “attribute” is defined in the Shorter Oxford English Dictionary as “to ascribe to as an

effect or consequence”. Whether or not this can be done is determined by a rigorous inquiry which, however, is confined to causality:

is the injury the effect or consequence of the act? It does not depend on a more or less intuitive process described as “common

sense”.

89. But it is on this basis of what is said to be robust common sense that the learned Lord Justice supplants what the Court had

previously articulated as a purely causal criterion without any qualitative dimension with a criterion of, prima facie, entitlement to

complain, which is wholly qualitative. No basis for this augmentation of the criteria to be met before time starts running has been

advanced, either in logical or legal terms. The Court of Appeal in Hallam-Eames criticised Gatehouse J. for “oversimplification”of

Broadley and Dobbie: the reality is that Gatehouse J. followed those cases faithfully. The Court of Appeal, decided for some reason

which does not appear significantly to reduce the burden on a plaintiff seeking to sue out of time. I cannot agree that the seeds of

this reduced burden are anywhere to be found in their previous decision. I would not follow Hallam-Eames or the cases which follow it

because I think they read into the statute more than it contains.

The kernel of the present case.

90. The kernel of the present case, in my view, is that the first-defendant performed an unnecessary hysterectomy on the plaintiff;

made false representations to the effect that the operation had been necessary; and used his professional position in an overbearing

and melodramatic manner to prevent her, until the limitation period had run, from making further enquiries. To my mind this amounted

to concealing her cause of action from her, a state of affairs for which the law provides a remedy, in the form of s.71 of the Act of

1957.

91. The plaintiff has however pursued her remedy along other lines. It is not, in my view, a matter of merely technical significance

whether she achieves her remedy by reason of s.71 or on the basis of what I regard as a novel interpretation of s.2(1) of the Act of

1991.

92. The Act of 1991 was a considerable easing in the position of plaintiffs suing in respect of diseases or impairments which were

latent in their nature or their true significance. Its wording is apt to meet the difficulties of such persons. It does not, in my view,

extend to circumstances where the disease or impairment is all too painfully patent but some qualitative aspect of it has been

concealed. In such circumstances the law provides a remedy in respect of equitable fraud but not otherwise.

93. I am of course fully aware that in reaching a different conclusion the learned Geoghegan J. does not ground himself on the English

cases which have been so much discussed but on an independent construction of the Act of 1991. But the English cases, dealing with

statutes which are not merely similar to ours but which proceed from a conscious effort to address the same perceived mischief, that

of latent injuries, illustrate in my view the necessity for a literal construction of s.2, and especially s.2(1)(c). I cannot read the sub-

section as incorporating a reference to any knowledge of a qualitative kind, and I cannot see that it needs to do so to address the

mischief at which it is aimed. On the contrary, if the sub-section is read to incorporate any reference to non-necessity or to

something having gone wrong, its meaning would be extended to cover cases where the plaintiff at all material times knew the facts

of what occurred but viewed those facts in a different light to that which she later adopts. I do not believe, on a construction of s.2,

that it was intended to extend to such cases. Section 71, on the other hand is intended to extend to such cases where the plaintiff’s

right of action is concealed by equitable fraud. The question of whether, and to what extent, litigation should be permitted in respect

of alleged injuries outside the normal statutory period is a weighty one with serious implications for potential plaintiffs, service

providers, and the community as a whole. It is emphatically one for legislative decision and there has been considerable legislative

activity in the area, both here and in the neighbouring jurisdiction. It is for these reasons that the question of whether a plaintiff,

such as the plaintiff here, who has undoubtedly been wronged, recovers by virtue of s.71 of the Act of 1957 or of the interpretation

advanced of s.2 of the Act of 1991 is a question of substantive importance and not a mere technicality.

Conclusion.

94. I would allow the appeal and set aside the order of the High Court on the basis that I consider the plaintiff’s claim to be statute-

barred.