Supreme Court upholds Court of Appeal decision on limitation period interpretation under Statute of Limitations (Amendment) Act 1991.

THE SUPREME COURT

[S:AP:IE:2018:000034]

O’Donnell J.

McKechnie J.

Dunne J.

Charleton J.

Finlay Geoghegan J.

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 T/A BON SECOURS HOSPITAL

Defendants/Appellants

Judgment of O’Donnell J delivered on the 23rd day of May, 2019.

1 This difficult case has led to a difference of opinion both between the majority and minority in the Court of Appeal, and between the approach of the

majority in the Court of Appeal and that of the trial judge in the High Court, whose decision they upheld. My colleagues have come to a conclusion that the

decision of the majority of the Court of Appeal should be upheld. I regret that I cannot agree, but since the objective of this appeal is to provide guidance to

courts facing the sometimes difficult task of interpreting the Statute of Limitations (Amendment) Act 1991 (“the 1991 Act”), as amended by s.7 of the Civil

Liability and Courts Act 2004, and since that objective is achieved by the majority judgments in this case, I will set out as briefly as possible the reasons

which have led me to a different conclusion.

2 While on close analysis of the terms of the 1991 Act, it is apparent that ss. 2 and 3 are unsatisfactorily opaque, it is clear that the 1991 Act is an

improvement on the position under the Statute of Limitations Act 1957 (“the 1957 Act”), and addresses some of the more obvious injustices that could be

seen to occur with a single fixed limitation period running from the date of accrual of a cause of action. Furthermore, while it is apparent that the there is

room for disagreement as to the precise method of analysis to be applied, it does not appear to be suggested that any difference in the analysis should

have led to different conclusions in the series of cases that have been decided by the Superior Courts and reported since the coming into force of the 1991

Act. The approach is well illustrated by two of the most important cases to come before this court, both involving the same defendant: Gough v. Neary

[2003] 3 I.R. 92, and Cunningham v. Neary [2004] IESC 43, [2004] 2 I.L.R.M. 498. In one case the plaintiff’s claim was found not to be statute barred, but in

the other the defence succeeded. In Gough the plaintiff had no reason to belief the hysterectomy was unnecessary until 1998 when she commenced

proceedings. In Cunningham, while the plaintiff had no reason to consider that the removal of her ovary in 1991 was unnecessary, she had by 1998 enough

knowledge to make a complaint to the Medical Council both in relation to the procedure and the defendant’s treatment of her, but did not issue proceeding

until well after three years from that point. Broadly speaking, therefore, the courts can be seen to have adopted a practical approach of determining when it

might be considered reasonable for time to have commenced to run. To that extent, the application of the section in practice has not been perhaps unduly

problematic. Nevertheless, the interpretation of the provision, particularly in borderline cases, is undoubtedly difficult.

3 It is to be noted that s. 2 of the 1991 Act follows almost word for word the provisions of s. 14 of the Limitation Act 1980 (“the 1980 Act”) applicable in

England and Wales. As Geoghegan J. observed in Gough v. Neary [2003] 3 I.R. 92, at p. 118:-

“The plaintiff is not relying on any “concealed fraud” argument nor on any novel interpretation of the Statute of Limitations 1957 which in reality

would not have been open having regard to the judgments of this court in Hegarty v. O'Loughran [1990] 1 I.R. 148 which approved the well

known English House of Lords decision in Cartledge v. E. Jopling & Sons Ltd. [1963] A.C. 758. The problem of the plaintiff who becomes

statute barred in circumstances where he or she could not reasonably have known that he or she had a cause of action within the statutory

period first became highlighted in these islands in that last mentioned case. It led to statutory law reform in England which proved

unsatisfactory and there had to be further reform. The further reform itself has given rise to a large number of cases some of which were cited

in this appeal. I think that it can be safely asserted that the current English statutory framework is by no means satisfactory.”

4 As the decision of a closely divided UK Supreme Court in A.B. v. Ministry of Defence [2012] UKSC 9, [2013] 1 A.C. 78 illustrates that the provisions of

the section continue to give rise to difficulties in that jurisdiction. It is, however, important to observe that, although the provisions of ss. 2 and 3 of the 1991

Act are identical to the provisions of s. 14 of the 1980 Act in England and Wales, there is no equivalent in Ireland to s. 33 of the 1980 Act, which gives the

court a discretionary power to exclude the application of the time limit to actions in respect of personal injuries or death, if it appears to the court that it

would be equitable to allow the action to proceed having regard to the degree to which it would prejudice the parties to the action or any person whom they

represent. It may also be regarded as unsatisfactory that Irish law only makes provision for an extended limitation period by reference to a date of

knowledge in cases concerning personal injuries. Furthermore, it is apparent that the section gives rise to particular difficulties in the field of medical

negligence actions, which form the largest single cohort of the decided cases. There is, in my view, a strong argument for a reconsideration of the statutory

provision in the light of developments of the past almost 30 years with a view to ensuring that the law effects the best balance between the interests of

plaintiffs and defendants in light of the experience of the operation of the limitation periods over the last 30 years.

5 I gratefully adopt, and will not therefore repeat, the lucid accounts of the facts contained in the judgments of Charleton and Finlay Geoghegan JJ.

However, there are two dates which can I think usefully be added to the chronology already set out, that is, first the date of the expiry of the original

limitation period being two years from the accrual of the cause of action herein, being the 19th of September 2007, and second the further date of the 19th

of August 2006, being the date two years before the issuance of the proceedings, and therefore the date after which any cause of action must have

accrued, or any requisite knowledge must have been acquired, if the action is not statute barred. Put the other way around, if the cause of action accrued,

and the requisite knowledge was acquired or must be deemed to have been acquired before this date, then the action will be statute barred.

6 A short hand version of the chronology contained in the judgments of my colleagues, would appear to be as follows:-

20 September 2005: the plaintiff became infected with MRSA during the course of the first operation in the fifth defendant’s hospital.

4 October 2005: the plaintiff was informed of this fact while ill.

March 2006: the plaintiff’s mother saw a TV programme about MRSA infection in hospitals in Ireland and takes down contact number for Tony

Kavanagh and passes it to plaintiff.

20 March 2006: Tony Kavanagh recommended the plaintiff get in touch with a solicitor “specialising in MRSA cases”.

2 May 2006: freedom of information request submitted by plaintiff, drafted by his solicitor.

21 June 2006: the plaintiff’s solicitor asks the hospital to waive fees requested for the documentation because the plaintiff “contracted a

hospital acquired infection in your hospital”.

17 July 2006: the plaintiff’s solicitor receives notes running to 800 pages including a note indicating that “MRSA (heavy growth) isolated”.

19 August 2006: two years before the issuance of the proceedings.

22 February 2007: a preliminary filtering report was received from a retained by the plaintiff’s solicitor. [This was the point at which the

requisite knowledge was acquired and the limitation period commenced according to Kearns J. in the High Court].

19 September 2007: expiry of limitation period of two years running from the accrual of the cause of action.

16 May 2008: receipt of report from Mr. Scurr [This was the point at which the requisite knowledge was acquired and the limitation period

commenced majority in the Court of Appeal].

19 August 2008: plenary summons issued.

7 This chronology illustrates a noteworthy feature of the case. The shortest possible limitation period in this case, that is, two years from the date of

accrual of the cause of action, expired at a point when the case had been in the hands of the plaintiff’s solicitors for a period of almost 18 months. That

solicitor was contacted because he claimed to specialise in such claims. While it is entirely unsatisfactory that the case is still in abeyance, and there has

as of yet been no determination of the merits of the plaintiff’s claim almost 14 years since his admission to the fifth defendant’s hospital and his contraction

of MRSA, it is, I think, unfortunate but necessary to observe that had proceedings issued at any stage during that 18 month period then the lengthy detour

through the tangled undergrowth of the 1991 Act could, and indeed would, have been avoided. The clearest possible lesson to emerge from this difficult

case, therefore, should not be the question of the interpretation of difficult provisions in the 1991 Act in the unusual facts of this case, but rather the obvious

guidance that, when proceedings can be issued within a timescale which precludes any limitation argument, then it is an obvious counsel of prudence to do

so.

8 The chronology also illustrates another feature of the case, which is that the conclusion of the court, while finding that the claim is not statute barred,

does not identify the point at which the extended limitation period began to run. I understand that it is often simpler to say that the limitation period only

commenced on any view after the 19 August 2006, and therefore the proceedings cannot be statute barred. This may often suffice to determine many

cases. But in giving guidance to other courts on the application of the section, it would, I think, be helpful if the point at which the extended limitation period

commenced in this case was identified. More importantly, however, in my view, any attempt to explain why the limitation period commenced either on the

receipt of the preliminary filter report from the GP received on 22 February 2007 (as the High Court found) or when the specialist report of Mr. Scurr was

received on 16 May 2008 (as the majority in the Court of Appeal found) focusses attention on the central question of whether the fact (since under the

statute the relevant knowledge is knowledge of a fact) which is necessarily asserted became known to the plaintiff on either date. The identification of that

knowledge is perhaps the clearest illustration of the question raised in this case as to what type of knowledge the 1991 Act requires.

9 The provisions of the 1991 Act are set out at para. 3 and paras. 15 and 16 of the judgments of Charleton and Finlay Geoghegan JJ. respectively, and it is

not useful to repeat them here. It is, however, important to observe, first, that ss. 2 and 3 of the 1991 Act are not limited to medical negligence actions,

although that is the area which has given rise to the greatest amount of contention and litigation. In approaching the interpretation of the section, it is useful

thereto to look at all the possible situations to which the sections are addressed in order to consider the proper interpretation of the individual subsections.

Second, I agree that, while the initial impetus of statutory change in this area may have been the obvious problem which emerged in the mid-20th century of

latent personal injuries such as pneumoconiosis, asbestosis and silicosis (where the symptoms of serious injury may only become apparent many years

after the initial injury, and after it could be said that any cause of action had accrued), the section is clearly addressed to other fact situations since the

classic situation is addressed by ss. 2(1)(a) and (b), and clearly subsections (c), (d) and (e) must be addressed to other matters. That observation is also

relevant in another way. It is apparent that this case concerns in particular the true interpretation of s. 2(1)(c) relating to attribution (i.e. that knowledge of

the fact 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”),

and it is in this context that the argument has focussed upon the question of knowledge under s. 2(2). However, the provisions relating to knowledge in s.

2(2) and s. 2(3) apply equally to the situations arising under ss. 2(1)(a), (b), (d) and (e), and therefore the interpretation of the knowledge provision can, in

my view, benefit from a consideration of how the section is to apply in those contexts as well. If, for example, there were two equally plausible

interpretations and applications of s. 2(2) in respect of knowledge in the context of one of the subsections of s. 2(1), but it was apparent that only one of

those interpretations could apply in the context of the other subsections, then that will resolve the question of interpretation in favour of that version.

10 I agree that the beginning, and, in many cases, the end, of any inquiry as to the meaning of a statutory provision, is the words used in the relevant

provisions. In most cases which do not reach court, the meaning is plain and unambiguous, even taking the relevant section in isolation. But here, the core

question is what is meant by s. 2(1)(c) in requiring knowledge of the fact that the injury was attributable in whole or in part to the act or omission which it is

alleged to constitute negligence, nuisance or breach of duty. In particular, at what level of generality must the relevant knowledge be of the fact which is

required to known (or which is deemed to be known, if s.2(2) comes into play)? Does it involve knowledge at a granular level of the precise act of

negligence, nuisance or breach of duty? Perhaps at the other extreme, is it sufficient to know that the injury is attributable to some act or omission, such

as the care, or lack of it, afforded to the plaintiff, or, indeed, as Irvine J. considered (dissenting) in the Court of Appeal, the fact of transmission of MRSA in

the hospital? That question is not answered by any consideration of the literal words of s. 2(1)(c) taken in isolation. It is necessary to consider the section

in its context, having regard to the purpose for which it was enacted. This is not, nor should it be, controversial. For example, it is now accepted as a

matter of interpretation that the attribution required by s. 2(1)(c) is not that the injury may be attributable to the act or omission in the sense that it is to be

attributed to it in fact. In ordinary language, a court giving judgment might conclude the plaintiff’s accident was “attributable” to a failure of the defendant to

take some precaution. However, it is accepted that this is not the meaning with which the word is to be understood in this section. Instead, it is said,

adopting the language of the Court of Appeal of England and Wales in Spargo v. North Essex District Health Authority [1997] 8 Med. L.R. 125, that

“attributable” means “capable of being attributed to the act or omission”, meaning that it is potentially capable of being attributed to such act or omission.

But that conclusion is only reached by an understanding of the structure of the 1991 Act, its objective, and the legal context in which the words are used

and by reference to which it must be understood.

11 Before addressing the question of interpretation in a little more detail, I should say that I agree with the structure of the analysis of the section set out in

the judgment of Finlay Geoghegan J., and in particular the emphasis it places upon the operation of s.2(2) in the overall understanding of the functioning of

the 1991 Act. Thus, I agree that a claimant seeking to rely on the extended limitation period created by the knowledge provision introduced by the 1991

Act, will have to show knowledge of the matters set out in s. 2(1)(a) to (e). It is relevant, however, that s. 2(2) provides for a form of what is properly

described as constructive knowledge: that is, knowledge either from facts observable or ascertainable (meaning capable of being observed or ascertained)

or from such facts as are capable of being ascertained by the prospective claimant with the help of other appropriate expert advice, which, moreover it is

reasonable for him or her to seek. I also agree with Finlay Geoghegan J.’s approval of the approach taken to the section in Cunningham v. Neary [2004]

IESC 43, [2004] 2 I.L.R.M. 498 by Fennelly J., subject to the qualification added by Finlay Geoghegan J., with which I also agree in principle. Therefore, I

agree that knowledge of certain facts may be said to put a person on inquiry and they are then deemed to know such facts as might reasonably be

expected to be acquired with the help of other appropriate expert advice which it was reasonable to seek. This analysis provides a step by step process

that is linked to facts which are known, or capable of being known, at each relevant stage, and thus provides a more structured, and therefore reviewable

approach, rather than a more general assessment of whether it is reasonable for time to start to run. In the Cunningham case, on this analysis, the plaintiff

was put on inquiry by media reports, and communications with others. She did not, however, seek advice at that point, and was therefore deemed under s.

2(2) to have acquired the relevant knowledge that she would have acquired had she sought it. Accordingly, time ran from that point, and the claim was

statute barred. I agree, however, with Finlay Geoghegan J. that, strictly speaking, the date of knowledge establishing the point at which time begins to run

is the date from which the relevant advice would have been obtained, and, moreover, that a reasonable time must be allowed for that, since it is only when

the relevant advice is received, or deemed to be received, that a person has knowledge, actual or constructive. However, I do not think that that time period

can necessarily be treated as the time period in which a claimant seeks and receives advice more generally on liability: the relevant advice which a person

is deemed to receive under s. 2(2) is advice in relation to the matters set out at s. 2(1)(a) to (e). Otherwise, the distinction which was accepted in Gough v.

Neary [2003] 3 I.R. 92, between, for example, knowledge of attribution, and knowledge sufficient to permit the drafting of an endorsement of claim, would

collapse. This is a matter to which I will return. I should also say that subject to the different views I express hereafter as to the application of s. 2(1)(c), I

agree with the approach of Charleton J. at paragraphs 33 to 35 of his judgment.

12 Even this progress does not answer the central, and what I agree is the difficult, question of what it is under s. 2(1)(c), that a prospective plaintiff must

know (or be deemed to know under s. 2(2). The subsection says that it is knowledge that the injury is attributable in whole or in part “to the act or omission

which is alleged to constitute negligence […]”. As was pointed out by Hoffman L.J. in Hallam-Eames v. Merrett Syndicates Ltd. (No. 1) [1996] 7 Med. L.R.

122, the section does not say attributable to an act of the defendant but rather, using the definitive article, refers to the act or omission, and more over the

act or omission which is alleged to constitute negligence. On one literal reading of the section, this could mean the specific particular of negligence

asserted by the plaintiff in the proceedings. But this raises difficulties. In even the most routine personal injuries action, there are multiple particulars of

negligence and breach of duty alleged. In this case, the particulars run from A to Z, with an additional 50 subheads of particulars, as well as reliance on the

doctrine of res ipsa locquitur, and a reservation of the right to furnish further and better particulars, and to rely on such further and other particulars as may

be adduced at the hearing of the action. Is it the case that the parties and the court are meant to conduct an inquiry as to when the plaintiff knew or is

deemed to have known of each such particular? If so, there could be multiple different limitation periods for different particulars, and a claim could be found

to be statue barred on some, but not on others. Furthermore, this is only the outset of the claim. It is inevitable, particularly in a case such as this, that

discovery would be sought and obtained, and then reviewed by experts. It is commonplace for particulars of negligence to be updated in the light of such

discovery. Indeed, as already anticipated by the pleadings, some matters may emerge in evidence. If incorporated in the pleadings, or otherwise introduced

into the case, would such matters all have separate limitation periods? If so, then the limitation period is capable of being extended very considerably, well

after the commencement and prosecution of the proceedings, and furthermore is capable of being altered, and, to that extent, manipulated, by events and

decisions made long after the proceedings have been commenced. Furthermore, there remains the stubborn question of the level generality at which the

claim is stated. Most pleadings make claims at increasing levels of specificity. There may be a general allegation of lack of appropriate care in providing a

safe system of work, and then, especially as facts emerge and discovery is analysed, more specific allegations. When is it to be said the plaintiff acquired

the relevant knowledge?

13 It is partly because of these difficulties that it is said, and I agree, that “broad knowledge of the causally relevant acts and omissions” is what is required.

That, however, involves an interpretation of the words of s. 2(1)(c). Broad knowledge is required that the injury is capable of being attributed to a causally

relevant act, and the knowledge required of the attribution is not of certainty, but rather of potential. I agree that this is the correct approach to the section,

but it is arrived at only by considering the section, its object and purpose, and the broader context of the law of limitations of actions in which it is placed.

That approach is, in my view, also the appropriate approach to the difficult issue at the centre of this case, which is the level or degree of knowledge which

it is necessary for a potential plaintiff to have under s. 2(1)(c) for the limitation period to commence.

14 Taking that approach, it is important not to lose sight of the fact that the point to be identified is the point at which the limitation period starts to run, and

not the point at which the proceedings must be commenced, or still less the point at which the proceedings, if commenced, could be defeated by a

limitation claim. The limitation period is designed to allow a party sufficient time to investigate whether there is sufficient merit in commencing proceedings,

and engaging in the process of subsequent investigation and prosecution of the claim. Second, while the section is undoubtedly complex and difficult to

apply, the language used is both carefully chosen and instructive. As Finlay Geoghegan J. points out, the 1991 Act repeals s. 11(2)(b) of the 1957 Act,

which set the traditional rule of commencement of the limitation period as three years from accrual of the cause of action. Section 3 of the 1991 Act

replaced that section, however, with a section in similar terms, also fixing a commencement of the limitation period at three years from the date of accrual,

but crucially adding the words “or the date of knowledge (if later) of the person injured”. It is an important feature of this case that s. 11 maintains the

accrual of a cause of action as the commencement of a limitation period. Indeed, it is, I think, legitimate to treat this as the basic limitation period and the

limitation period commencing with knowledge, as the extended limitation period. The fact that the limitation period commencing with accrual of a cause of

action was retained, and not simply replaced with a general rule of date of knowledge, is significant.

15 “Knowledge” in turn is defined in s. 2 of the 1991 Act as both actual knowledge and the form of constructive knowledge identified in s. 2(2). Such

knowledge, whether actual or constructive, must be of facts. This is clear from the terms of s. 2(1), which provides that references to the date of knowledge

are references to the date upon which he or she “first had knowledge of the following facts”, and from s. 2(2), which provides that knowledge includes

knowledge which might reasonably have been expected to be acquired from facts observable or ascertainable by him, or ascertainable with the help of

medical or other appropriate expert advice. It is therefore a useful approach to ask at each point what are the facts that the plaintiff knew, or is to be

deemed to have known, and which establish the matters required under s.2(1)(a) to (e).

16 It is also clear, as set out in the judgment of Hardiman J. in Gough v. Neary [2003] 3 I.R. 92, that the 1991 Act was enacted to address the perceived

injustice that could arise if the only limitation period was that contained in s. 11(2)(b) of the 1957 Act, and effectively re-enacted in the first portion of s. 3 of

the 1991 Act. As set out above, I agree that the section is by no means limited to the question of latent injuries that were the most obviously identified

potential injustice. That situation is sought to be addressed by s. 2(1)(a), and possibly s. 2(1)(b) (it is noteworthy that both the matters dealt with under s.

2(1)(a) and (b) are dealt with in a single subsection in the Limitation Act 1980 in England and Wales, from which the 1991 Act is clearly drawn). Passing

over s.2(1)(c) for the moment, s. 2(1)(d) addresses a different problem which arises where an injured party and his advisors may know that they have all the

components of a potential claim, but cannot identify the defendant. Section 2(1)(e) is a variant on that where, although the injured party may be able to

assemble all the features of a claim and identify a potential defendant, but is not aware that the acts or omissions of that potential defendant (who may not

have the assets to satisfy any judgment) may be attributable in law to another person (whether on principles of vicarious lability or the law of agency) whose

identity or legal connection to the act of the first defendant the plaintiff is unaware.

17 In each of the above cases, there is an obvious possibility of injustice, in that a claim may become statute barred before the potential plaintiff has

obtained the basic information which might allow him to consider the possibility of proceedings, or, in the case of s. 2(1)(d) or (e), proceeding against the

particular defendant. Section 2(1)(c) fits relatively neatly into this structure. The person may know that they have been injured and might have no difficulty in

identifying a potential defendant, but lack the critical knowledge that the injury or illness they are suffering from is capable of being attributed to any act or

omission, of any person.

18 In broad terms, therefore, I think s. 2(1) can be seen as proceeding sequentially. It requires that a person should know, first, that he or she has suffered

an injury (even in the sense of some general illness); second, that such illness or injury is significant, and therefore warrants the investigation of a potential

claim; third, that it is capable of being attributed to the act or omission of someone; fourth, the identity of that person; and fifth, if possible, the facts

capable of showing that another person may be in law liable for the acts of the principal actor.

19 The relevant provision must be understood against a background of the knowledge routinely available to a person to whom the standard limitation period

under s. 11(2)(b) of the 1957 Act, and re-enacted in s. 3 of the 1991 Act. As Hardiman J. observed in Gough v. Neary [2003] 3 I.R. 92, the section should

perhaps be interpreted as being designed to address the identified injustices which are capable of occurring in any of the situations covered by s. 2(1)(a) to

(e), when compared with the operation of the standard limitation period in other cases. I agree with Charleton J., therefore, when he states at para. 23 of his

judgment that “it is beyond argument the purpose of s. 2(1) of the 1991 Act was to establish a reasonable degree of uniformity as between the ordinary

case … and the case where there was a hidden element” and further that “the amendment as to the delay in time is not to be construed as putting the

unaware plaintiff in a better position than the ordinary and aware plaintiff”. While I consider that this conclusion follows from the structure of the section as

understood against the background of the pre-existing law, it also, in my view, follows clearly from the specific language used. Section 3, which should

perhaps logically precede s. 2, certainly casts an instructive light upon it. The limitation period is expressed to run “from the date on which the cause of

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

20 It is noteworthy, as already observed, that the section retained the accrual of the cause of action test, and did not simply elect to replace it with a date

of knowledge test which would be applicable in every case. The date of knowledge test is capable of extending, and is designed to extend, the primary

limitation period. It can usefully be understood, therefore, in the light of the effects of the accrual of cause of action test in the primary limitation provision. It

follows logically from the section, in my view, that it contemplates that the date of knowledge will not always be later but will (in perhaps many if not most

cases) be contemporaneous with the accrual of the cause of action. It follows therefore that in cases not falling within s. 2(1)(a) to (e), a claimant had the

necessary and requisite knowledge as of the date of accrual of a cause of action. That is the significance of the words in parenthesis in the section. Date of

knowledge may be the date of accrual of the cause of action, or later. If so, then the knowledge that such a person has in such circumstances, and who

does not encounter any of the difficulties sought to be addressed by s. 2(1)(a) to (e), is a clear guide to the central and difficult issue in this case, of the

level of knowledge which is required under s.2(1)(c).

21 It is plain that in a standard case, governed by the date of accrual of the cause of action, a plaintiff need not know anything more than that the injury he

or she has suffered is capable of being attributed in general terms to the driving of the defendant’s car, the operation of the employer’s plant or machinery,

or the state of an occupier’s premises. As observed at the outset of this judgment, the 1991 Act is intended to operate these fields, and indeed the genesis

for the Act lay in the field of industrial accidents. Clearly, it is not necessary for such a plaintiff (that is, a plaintiff in the standard case), to have knowledge

at the more granular level of the specific acts alleged to constitute negligence (or nuisance, or breach of duty). If that were so, then the limitation period

would always be postponed to the date of knowledge which would occur in most cases on the receipt of an expert report. This approach also explains what

might otherwise be a puzzling provision, that a party must have knowledge of the act or omission which constitutes negligence, but not the act or omission

that constitutes negligence as a matter of law. Unless the act or omission in question is understood at a very broad level of generality, the qualification

would be virtually meaningless, since the knowledge would almost always be acquired at the same time as the knowledge of the act or omission was

capable of constituting negligence, since it would be acquired through the medium of an expert report on liability. It is one thing to say, and I agree, that the

required knowledge of attribution under s. 2(1)(c) may sometimes be obtained at the same time as the knowledge that the act is capable of constituting

negligence, but quite another to say that this would become the invariable norm, which would be the case if the requirement of knowledge was to be

understood at any detailed or granular level. I appreciate that this interpretation is open to the observation made by Hoffman L.J. in Hallam-Eames v. Merrett

Syndicates Ltd. (No. 1) [1996] 7 Med. L.R. 122, that “if all that was necessary was that the plaintiff should have known that the damage was attributable to

an act or omission of the defendant, the statute would have said so”. However, as an approach to interpretation, this is not dispositive of the meaning to be

attributed to a section. Unless it can be shown that the alternative formulation was available, considered, and rejected, it does not necessarily follow that,

because something is clumsily expressed, it cannot bear a meaning that could be more clearly and economically expressed.

22 This leads to the further consideration of what is meant by the provisions relating to knowledge. As McCracken J. observed in Gough v. Neary [2003] 3

I.R. 92, knowledge of attribution (that is, that an injury or illness is capable of being attributed to the actions of a defendant), is logically distinct from

knowledge that any such action may be considered wrongful, erroneous, or even negligent. It follows, therefore, that it is only knowledge of that first

component which a party must have, and which it is reasonable to seek and which a party may be deemed to have. The terms of s. 2(2) apply “for the

purposes of the section”. Accordingly, such knowledge applies equally to s. 2(1)(a), (b), (d), and (e) as it does to s. 2(1)(c). Once again, it is necessary,

therefore, to consider this question in a much broader context than the particular area of medical negligence. The relevant advice may not be directed

towards a possible claim, but may simply be the information that a person is suffering from an illness or injury, and the expertise is not limited to medical

expertise. There are a number of different ways in which the relevant fact may become known. For the purposes of s. 2, however, the relevant fact and

relevant knowledge is only that which establishes any of the matters under s. 2(1)(a) to (e).

23 It is relevant to pose the following question in any case where reliance is based on the extended limitation period under the 1991 Act: what is the

knowledge which was acquired, and when was it acquired? In this case, we know that a GP’s report was obtained on a general scoping or filtering basis,

and a later expert report was received from a Mr. Scurr. The date of receipt of both reports have been suggested as possible dates upon which knowledge of

a relevant fact was acquired for the purpose of s. 2(1)(c). Neither report has been furnished to the court. It appears, however, that the GP’s report was a

negative and filtering exercise to eliminate claims which were not viable, where it was evident that the MRSA was not hospital acquired. Since MRSA can

be acquired in a hospital without negligence on the part of the hospital, such a report could not be the positive identification of any act or omission on the

part of the hospital to which the MRSA was attributable. Again, it is to be assumed that on receipt of the Scurr report, it had become clear that an expert in

microbiology was willing to offer an opinion that something done or not done by the hospital may have been the cause of the MRSA contracted by the

plaintiff. While that is undoubtedly a significant step forward in the prosecution of the proceedings and its prospects of success, and a significant comfort to

the plaintiff, it does not, it appears, identify any specific thing done or not done by the hospital, since that would be dependent on discovery and evidence

as to the management of the hospital. Nor, on the other hand, can it be said to establish for the first time what is required under s. 2(1)(c), namely that the

MRSA suffered by the plaintiff was capable of being attributed to any act or omission in the care of the plaintiff by the relevant hospital. Indeed, it is

because the MRSA contracted by the plaintiff was capable of being attributed to want of care on the part of the hospital that each report was sought. That

was also why the freedom of information request was made for the plaintiff’s hospital records, and arguably why the plaintiff consulted a solicitor

specialising in MRSA cases. If, however, it is considered that this was not the case, the approach of Fennelly J. in Cunningham v. Neary [2004] IESC 43,

[2004] 2 I.L.R.M. 498 must be applied to this case. The information given to the plaintiff on 4 October 2005, either on its own or in conjunction with the

television programme, if not providing the plaintiff with the relevant knowledge under s.2(1)(c), at least put him on inquiry. The advice which is it reasonable

to seek is, however, not general advice, or indeed specific advice designed to establish liability, but rather the advice directed towards s. 2(1)(c) Taking the

approach to interpreting the section that I do, any such advice is advice which could have been readily and speedily given: it is quite clear that MRSA

acquired in a hospital is capable of being attributed in broad and general terms, to the act or omission of a hospital in caring for a patient, and, accordingly,

time begins to run from that point. The limitation period which commences at that point permits investigation to be carried out as to whether the plaintiff and

his advisors have a sufficient degree of confidence that the injury may be attributed in fact to the act or omission which can constitute negligence so as to

initiate proceedings. This is the same position that many plaintiffs face when they consult a solicitor. In their case, however, time has already begun to run.

However, if the approach of the majority of the Court of Appeal is correct, then time did not run for at least 18 months after the plaintiff consulted a solicitor

specialising in the area, seeking advice as to whether he had a possible claim against the hospital. The approach of the majority of the Court of Appeal not

only significantly delays the commencement of the limitation period, but risks collapsing the distinction between sufficient knowledge to start time running,

and sufficient knowledge to draft, and indeed institute, proceedings. It also raises the prospect of variable limitation periods, and, indeed, the further

possibility that the limitation period may not yet have commenced in respect of certain aspects of a claim which may be advanced against the hospital. For

the reasons I have set out, I do not think that that is the correct interpretation and application of the 1991 Act.

24 I accept, however, that my views in this regard are in a minority, and I have only set them out because it is possible that the question of the limitation

periods may require to be reconsidered and a fresh approach taken. In that regard, it is plain that medical negligence cases pose particular difficulties. The

two-year limitation period for the commencement of actions is short, given the necessity to obtain expert advice on lability, normally from witnesses with

sufficient expertise to provide an authoritative opinion, and who are often based outside the jurisdiction. I note that it is proposed to extend the general

period to three years, but in any consideration of the limitation period for personal injuries actions or other claims more generally, specific attention could

usefully be addressed to the difficulties posed by claims arising from alleged medical negligence.