Supreme Court allows claim not statute-barred; reduces future damages for psychological injury recovery.

THE SUPREME COURT

400/02

Hardiman J.

Geoghegan J.

McCracken J.

BETWEEN

ALISON GOUGH

Plaintiff / Respondent

and

MICHAEL NEARY AND BASIL CRONAN

Defendants / Appellants

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

I have had the advantage of reading the judgments being handed down by my colleagues Mr. Justice Hardiman and Mr. Justice

Geoghegan in which the background to these proceedings is set out in detail, and it would seem unnecessary for me to do so again.

This case turns on the interpretation of s. 2 and s. 3 of the Statute of Limitations (Amendment) Act, 1991. There is no doubt that,

where it not for these provisions, the appellant’s claim would certainly be statute barred. Section 3(1) reads:-

“An action, … claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty

(whether the duty exists by virtue of a contract or of a provision made by or under statute or independently of any contract

or any such provision) shall not be brought after the expiration of three years from the date on which the cause of action

accrued or the date of knowledge (if later) of the person injured.”

Section 2 of the Act then deals with the expression “date of knowledge”, and provides as follows:-

“2(1) For the purposes of any provision of this Act whereby 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 dependent 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 a bringing of an action against the defendant;

Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is

irrelevant.”

This case is only concerned with the knowledge referred to at (a) and (c) above, for if the respondent knew that she had been

injured within the meaning of the section, she clearly knew that the injury was significant, and she also knew the identity of the

defendant.

The first question which arises, therefore, is whether the respondent knew that she had been “injured”. This is turn depends upon the

meaning of the word “injured” in the section. In considering this matter the learned trial judge relied largely on the judgment of Barr J.

in Maitland –v- Swan (Professional Negligence Law Reports 1968 – 1993) p. 368. In that case Barr J. said at p. 384:-

“The key to the interpretation of s. 2 is the meaning of the word “injured”. It seems to me that in the context of the Act it is

synonymous with the word “harmed”. In my view a person who undergoes necessary surgery which is skillfully 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 involved removal of an important organ with in consequence a

degree of permanent disablement for the patient.”

I think it is relevant that s. 3 of the Act relates to a claim for “damages in respect of personal injuries to a person caused by

negligence, nuisance of breach of duty …”. This is the section which is the basis for the claim that this action is statute barred, and

it is a section which relates to “personal injuries” and not just “injuries”. Furthermore, it is clear that this section does not relate to

all “personal injuries”, but only to those caused by negligence, nuisance or breach of duty. Clearly therefore in the Act itself the word

“injuries” is used in relation to “personal injuries”, and I do not think it is helpful to try to equate the word “injury” with “harm”. To do

so would then of necessity involve an inquiry into the meaning of the word “harm”. Normally the use of the word “harmed” implies

something caused by the actions of a third party or by an outside influence. If a person slips on a piece of ice and breaks his ankle,

he has undoubtedly suffered an injury, but can it be said that he has been harmed? I think there is a distinction between the two

words, and that “injured” has a much wider meaning than “harmed”.

In the present case, the respondent undoubtedly knew that a hysterectomy had been performed. The act of performing the

hysterectomy in my view inflicted an injury on her within the meaning of the Act, and she undoubtedly knew that this injury had been

inflicted as early as a few days after the operation. As I have already said, if that is so, she clearly knew that it was a significant

injury.

The other aspect of the case to be considered is when the respondent first had knowledge “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”.

There were a number of United Kingdom authorities on the equivalent section in the legislation in that jurisdiction. They are dealt with

at length in the judgments of my colleagues, but unfortunately they are somewhat inconsistent and it is hard to say that a firm line of

authority has been developed in that jurisdiction.

The high point of the appellant’s case undoubtedly is Dobie –v- Medway Health Authority (1994) 4 All ER 450. The facts of that case

bear considerable similarity to the present case. An unnecessary masectomy had been carried out on the plaintiff in the belief that

she had a malignant lump in her breast where as in fact it was benign. The procedure was carried out before the results of a biopsy

on the lump where known. The plaintiff was reassured by her surgeon that in fact she was very fortunate that it had not proved to

be malignant, and she did not realize that that there was any question of him being negligent. In his judgment in the Court of Appeal,

Sir Thomas Bingham M.R., said at p. 459:-

“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 time,

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

attributed to, or more bluntly, that was the clear and direct result of, an act or omission of the health authority. What she did

not appreciate until later was that the Health Authorities act or omission was (arguably) negligent or blameworthy. But her

want of that knowledge did not stop time beginning to run.”

The effect of this case was greatly diluted by a decision of the Court of Appeal in Hallam-Eames –v- Merrett Syndicates Ltd (1995) 7

Med L.R. 122. In that case the trial judge had interpreted the earlier cases, including the Dobie case as meaning that the plaintiff only

needs to have known that the damage was caused by an act or omission by the defendant. In his judgment Hoffmann L.J. said at p.

125:-

“In our judgment this is an over simplification of the reading in Broadley and Dobie. If all that was necessary was that a

plaintiff should have known that the damage was attributable to an act or omission of the defendant, the statute would have

said so. Instead, it speaks of the damage being attributable to “the act or omission which is alleged to constitute negligence”.

In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the

purposes of an allegation of negligence. 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 purposes.”

Later on in the judgment at p. 126 he said:-

“The plaintiff does not have to know that he has a cause of action or that the defendant’s acts can be characterized in law as

negligent or as falling short of some standard of professional or other behaviour. But, as Hoffmann L.J. said in Broadley, the

words “which is alleged to constitute negligence” serve to identify the facts of which the plaintiff must have knowledge. He

must have known the facts which can fairly be described as constituting the negligence of which he complains. It may be that

knowledge of such facts will also serve to bring home to him the fact that the defendant has been negligent or at fault. But

that is not in itself a reason for saying that he need not have known them.”

It should be noted that Sir Thomas Bingham M.R. who gave the judgment in the Dobie case agreed with the judgment in Hallam-

Eames.

These cases are, of course, of assistance as, if nothing else, they show the differing views which may be held. However, I prefer to

go back to the wording of the Act itself in considering its proper interpretation. I think it is worth repeating that the relevant

knowledge which is to be considered:-

“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.”

In the present case, what is the act or omission which is alleged to constitute negligence, nuisance or breach of duty? I do not think

it can be the act of performing a hysterectomy simplicitor. Performing a hysterectomy where it is necessary could not be said to

constitute an act of negligence, nuisance or breach of duty. The “knowledge” which the respondent had in the present case was that

a hysterectomy had been necessarily performed. She was told that by her surgeon in graphic terms and had no reason whatever to

disbelieve it. Therefore, the knowledge that she had was false knowledge, knowledge of something that was not in fact true. It was

also knowledge of something, if it had been true, which would not have constituted negligence, nuisance or breach of duty.

What is in this action alleged to constitute negligence, nuisance or breach of duty is the unnecessary hysterectomy. As I have said,

there could be no allegation against the appellant had the operation been necessary. Therefore, in my view the only normal and

sensible meaning of this provision as applied to the facts of the present case is that the requisite knowledge was that the operation

had been unnecessarily performed. The respondent has issued these proceedings within the statutory time limit dating from the time

she first had this knowledge.

The appellant also places some reliance on the provisal at the end of s. 2(1) of the Act, namely 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.”

The appellant seeks to argue that knowledge that the operation was unnecessary must necessarily imply that it was negligently

carried out. I cannot agree with this argument. Knowledge that the hysterectomy was unnecessary and knowledge that it was

negligently carried out are two different things. In the present case, the respondent’s knowledge that the operation was, or may

possibly have been, unnecessary appears to have been from comments on the radio in relation to other cases, while her knowledge

that it may have been negligent presumably only came when she went to her solicitor, or upon professional medical advice. They are

clearly two different things.

For these reasons, I am satisfied that the respondent has brought herself within the exception in s. 3 of the Act, and that her claim is

not statute barred.

There is also an appeal against the quantum of the damages awarded in this case. The respondent was awarded general damages of

€150,000.00 for loss and suffering to date and €100,000.00 for loss in the future.

There is no doubt whatever that the respondent suffered serious psychological trauma from the time she realized what had happened

to her. She suffered feelings of guilt that she should perhaps have realized earlier what the true situation was, and might have saved

other ladies from that same fate. She suffered severe depression, and while she was able to look after her family and hold a job, this

must have been with great difficulty for her. I am quite satisfied that the award of €150,000.00 for general damages to the date of

the trial was correct.

I think the situation is somewhat different in relation to future times. Her own psychiatrist gave evidence, not just under cross-

examination, but also as an addendum to his report, that if the respondent continued her current rate of progress, he expected her to

make a full recovery from her clinical depression, and indeed would be able to stop taking anti-depressants a few weeks after the final

judgment as she would then proceed justice had been done. I think all courts now accept that there are many cases, particularly of

psychological injury, where the condition of a plaintiff improves enormously after the final outcome of the case. I should immediately

say that this is not to imply any form of malingering of the part of the respondent in this case, as I am quite satisfied that her

complaints were totally genuine. However, by the nature of psychological complaints they can be, and frequently are affected, by the

outcome of a case, and in my view an award of €100,000.00 for general damages into the future is not sustainable in light of her own

psychiatrist’s evidence. She will, of course, still have to bear the burden of having gone through an unnecessary hysterectomy with

all of its connotations, and this will last for the rest of her life. However, I feel that the award of €100,000.00 is not justified in the

circumstances and I would reduce the general damages into to future to €50,000.00.