Personal injury claim dismissed for time bar but costs suspended due to defendant's failure to act.

THE HIGH COURT

[2025] IEHC 694

[Record No. 2023/1362 P]

BETWEEN

MAGDALENA KMIEC

PLAINTIFF

AND

NOONAN SERVICES GROUP LIMITED

DEFENDANT

EX TEMPORE JUDGMENT of Mr. Justice O’Higgins delivered on the 10th day of November 2025

1. This is my ex tempore judgment on the defendant’s application to dismiss the plaintiff’s personal injury proceedings on grounds that they have no reasonable chance of success in circumstances where it is said the proceedings issued outside the time limit laid down by the Statute of Limitations Act of 1957 as amended by the Statute of Limitations (Amendment) Act 1991 (as amended).

2. The application is grounded on the affidavit of Neal Boland, solicitor in Smith Foy & Partners LLP, solicitors for the defendant sworn on 30th May 2024. Initially, the replying affidavit from the plaintiff’s side was an affidavit from Kieran O’Brien, solicitor in O’Brien & Associates on Barrington Street in Limerick when the matter was initially before me on 3rd June of this year. Counsel for the plaintiff sought an adjournment for the purpose of putting before the court an affidavit from the plaintiff herself. The defendant in written submissions had observed at para. 29 that the plaintiff had chosen for unknown reasons not to file an affidavit sworn in her own name to oppose the motion. The defendant submitted that this omission, therefore, limited the strength of any evidence or opposition advanced on her behalf. Subsequently, having obtained an adjournment on certain stipulated terms, the plaintiff did in fact file her own affidavit which improves matters somewhat, though it has to be said the plaintiff’s affidavit sworn on 19th June 2025 is in virtually identical terms to her solicitor’s affidavit, duly modified to reflect the change in deponent.

3. I do not propose to repeat at any great length the legal submissions made by both sides. However, the parties can take it that I have had a further opportunity to review the reasonably extensive papers in the matter, the affidavits filed prior to the index motion and the affidavits exchanged for the purposes of the motion. I have also reviewed the booklet contained within Exhibit NB1 to Mr. Boland’s affidavit grounding the motion.

4. The parties have also provided helpful written submissions which further focus the issues. I will start by setting down some context.

5. The plaintiff was employed as a cleaner by the defendant since in or around 2009. She left work at University Hospital Limerick on 21st March 2022 following what was phrased as a sudden onset of respiratory symptoms and shortness of breath and has not returned to work since. The plaintiff is originally from Poland. Her English is satisfactory, but she is not fluent. The plaintiff issued personal injury proceedings against the defendant on 27th March 2023 seeking damages, interest and costs. The plaintiff’s personal injury summons at para. 4 states as follows: “On or about the 21st March 2022 and into 22nd March 2022 the Plaintiff was at work as a cleaner for the Defendant at University Hospital, Limerick when she had a sudden onset of respiratory symptoms and shortness of breath as a result of ongoing respiratory issues including, inter alia, recurrent cough, wheeze and shortness of breath at minimal exertion, as a result of being exposed over a continuous period, to chemical agents during the course of her employment with the Defendant.”

6. As the plaintiff’s summons shows, the claim is that the injuries were sustained on 21st March 2022 into 22nd March by way of “sudden onset of respiratory symptoms and shortness of breath as a result of ongoing respiratory issues”. On the alleged accident date on her own case, the plaintiff suffered symptoms as a result of then ongoing respiratory issues, and that is an important contextual matter.

7. In addition, the plaintiff appears to plead that this is not, if you like, an exacerbation type case and, in that connection, the defendants point to the replies to particulars and also her PIAB Form A where she confirms the alleged injuries stand alone and that there is no prior existing or relevant injuries.

8. The statutory provisions which are engaged here are, firstly, s. 3(1) of the Statute of Limitations (Amendment) Act 1991 (“the Act of 1991”) which prevents the plaintiff from bringing proceedings in respect of her injuries after the expiration of two years from the date on which the cause of action accrued or her date of knowledge: “An action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty … shall not be brought after the expiration of 2 years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured”.

9. That brings me then to the section which is likely to be the main battleground of the case, s. 2 of the Act of 1991, where date of knowledge is defined as follows in subsection (1): “For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person’s date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person’s date of knowledge are references to the date on which he first had knowledge of the following facts:” And the subsection then sets out from (a) to (e) a number of facts, and these 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 is alleged to constitute negligence, nuisance or breach of duty,

(d) the identity of the defendant, and

(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the Defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”

10. The battleground of this case, it is clear from submissions, is a dispute around what the evidence says about the facts described at sections 2(1)(b) and 2(1)(c) of the 1991 Act. Section 2(1)(b) is the date on which the plaintiff first had knowledge of the fact that the injury in question was significant. Section 2(1)(c) is the date on which the plaintiff 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. So it is appropriate to take each of those in turn and obviously the defendant must succeed in respect of both - it must meet all limbs of section (2)(1). On the plaintiff’s pleadings at para. 4, her case is that the injuries arose “as a result of ongoing respiratory issues … as a result of being exposed over a continuous period, to chemical agents during the course of her employment with the Defendant”.

11. The plaintiff therefore pleads her case on the basis that her state of mind was that she knew she had ongoing respiratory issues over the indicated continuous period as a result of exposure at work to irritants.

12. On 28th February 2020 which is over two years prior to the indicated accident date, the plaintiff was diagnosed with “reactive airways Disease asthma” on foot of her own GP’s referral arising from the fact that the plaintiff then worked as a cleaner and was “exposed to lots of chemicals” during her work. The GP further states, “[c]hronic cough or wheeze may be related to chemical exposure at work”. Asthma then appears to be diagnosed in February 2020 which as I have said was over two years prior to the alleged accident date.

13. The plaintiff’s treating consultant physician in a letter on 18th March 2020, which again is over two years prior to the indicated accident date, there described the plaintiff’s chronic cough and wheeze which “may be related to chemical exposure at work”. This note from Dr. Heather Holloway, Consultant Physician, indicates that in an x-ray of 21st February 2020 the plaintiff’s lungs appeared hyper inflated, but otherwise the x-ray was normal. The note indicates the plaintiff was commenced on oral steroids and an asthmatic inhaler containing asthmatic medication was prescribed following this x-ray of 21st February 2020.

14. Another important document is a letter from the plaintiff’s GP which was written directly to the defendant. On 3rd March 2020, the plaintiff’s general practitioner wrote directly to the plaintiff's employer who is the defendant here, documenting shortness of breath for “the last 6 months”. The letter indicated that it would be helpful if the plaintiff could avoid exposure to respiratory irritants and sought that the defendant would carry out a review of the chemical agents with which the plaintiff worked. And again, to make clear, that was on the 3rd March 2022 which again is outside the two years. Earlier in February 2019, sometime before that, the plaintiff was prescribed asthmatic anti-inflammatory medication for chest soreness and a significant cough. The discharge diagnosis at that point was asthma exacerbation.

15. The defendant also relies upon the plaintiff’s replies to particulars (which I need not read out) but in particular reply number 1, number 6 and number 7 in which it is pleaded that the plaintiff was exposed to chemical agents for years working for the defendant and that she first reported her alleged injuries to the defendant and first sought medical attention in 2018.

16. The defendant submits that, notwithstanding that the plaintiff’s affidavit at para. 19 avers that she only learned of having a significant injury or cause of action against the defendant on 25th September 2022 when her GP wrote to Professor Conor Burke, the plaintiff’s own medical records, says the defendant, rebuts this evidence directly. That submission is made with respect to a number of discrete documents, principally her consultant physician’s letter of 18th March 2020 which I have already referenced, her own GP’s letter to the defendant of 3rd March 2020, and her own GP’s notes back from February 2019 documenting a diagnosis of asthma exacerbation. In these circumstances, says the defendant, on the available evidence, the plaintiff clearly on the balance of probabilities subjectively knew and/or was on constructive notice that her injury for which she now claims damages was significant and was causally or potentially causally connected to the defendant and her employment, outside of the statutory time period. That perhaps in inelegant form is a reasonable summary of the defendant’s case in this motion as to why the plaintiff’s case is doomed to fail.

17. I would like now to say something about the legal principles to be applied in an application such as this. There is a considerable measure of agreement between the parties on the principles to be applied. The court’s attention was drawn to the following authorities which were of particular assistance. Firstly, the leading case, the decision of the Supreme Court in O’Sullivan v. Bon Secours Health System Limited [2020] 1 I.R. 413; secondly an earlier

decision of the Supreme Court in Gough v. Neary [2003] 3 I.R. 92; a decision of Mr. Justice Binchy in the High Court in a case called Conway v. Bon Secours Hospital [2018] IEHC 93 and a more recent decision of the High Court (Ms. Justice Jackson), Kepa v. Noonan Services Group Limited [2024] IEHC 659 involving coincidentally the same defendant. Jackson J.'s judgment was delivered on 16th October 2024.

18. There were a number of other authorities provided to the court, but I think these were the most relevant. I was also provided with the relevant rules of court which need not detain us unduly.

19. Looking at the pinch-point of the timeline with respect to the statute, the plaintiff at para. 10 of the affidavit sworn in her own name avers that the claim was put on hold by PIAB on 3rd November 2022 so that the relevant date for the purpose of the statute is 4th November 2020. The plaintiff submits that the date she was aware that she had a significant injury which was caused by the negligence of the defendant was the date she left work for the last time on 21st March 2022, where according to the plaintiff she had “a sudden onset of respiratory symptoms and shortness of breath as a result of ongoing respiratory issues”.

20. The plaintiff contends that this episode necessitated her going to the Accident and Emergency Department in University Hospital Limerick. She was kept in hospital overnight which was her first overnight stay in hospital in relation to her symptoms. She was prescribed an inhaler, steroids and codeine. It was after this time, with the knowledge that she had a significant injury that was likely to have been caused by the defendant, that she went to her solicitor. A letter of claim was sent on 22nd September 2022 and papers were lodged with the Injuries Board on 2nd November 2022.

21. The evidence before me tends to indicate that there is a considerable degree of conflict on the question as to the first date it was apparent to the plaintiff that the injury was significant. In other words, a conflict on the subjective question as to what was the plaintiff’s state of mind at the particular time in terms of the significance of the injury. The defendant accepts, as it must, the general proposition that the plaintiff's affidavit should be taken at its height, subject to any purely subjective claims being wholly undermined by objective records. It is appropriate therefore to examine in some detail the plaintiff’s affidavit as well as the inner details of the medical records before the court.

22. At para. 14 of her affidavit, the plaintiff responds to the defendant’s submission that the medical records show she was intermittently chesty around the end of 2019. The plaintiff avers she was not unduly bothered by a cough and chest tightness sometimes with a wheeze. She says these are common symptoms of a chest infection or a flu and she did not think at that time she had anything more than that and she says certainly did not think it was significant. She acknowledges she attended the A&E department at University Hospital Limerick but says this occurred in February 2020 and again was prior to any realisation on her part that she had significant injury. She avers she was simply prescribed tablets and went back to work as normal.

23. At para. 15 the plaintiff references the mention in the medical records to having to stop during a 10K run in 2019 because of breathlessness. The plaintiff avers that she did she did not know at the time that she was breathless and certainly did not know she had a significant injury.

24. At para. 16 of her affidavit, the plaintiff refers to her first attendance at UHL which she clarifies occurred in February 2020 not March 2019. She says of this visit to hospital that she was unaware she had any significant injury at that time as she was simply prescribed tablets and went back to work as normal. She also says she was unaware that the injury was attributable to the failures of her employer. She avers that her GP wrote to the A&E Department in Limerick in February 2019 referring her for “chest soreness, and sore to breathe-out [through] back, and still the cough … a [very] harsh cough … dx atypical chest infection … letter for ed if worse (fever or increasing sob).” I take the reference to “SOB” to be shortness of breath.

25. The plaintiff says that again she was unaware this was a significant injury or that she would have any cause of action at this time. She thought she simply had a chest infection or something similar. At para. 17 she says that this was the first time she was prescribed an inhaler and again she returned to work. At no point did any doctor tell her to leave work or go out on sick leave.

26. The plaintiff then in her affidavit deals with a referral from her GP to Professor Burke dated 28th February 2020 which the parties agree was outside the two-year period for bringing a claim measured against the PIAB application. This document is at tab 6.2, page 18 of the defendant’s booklet of exhibits, and I will refer to it in some detail as it seems to me to be quite important. The relevant entry reads “GP referral for SOB x3/12 becomes SOB/ wheeze on 40 [minutes] exertion, works as a cleaner”. Of this document the plaintiff says “[t]his is what my GP stated to Professor Burke and not to me. My GP did however state to Professor Burke that it may be related to chemical exposure at work”.

27. The plaintiff says she was not on clear notice at this time of any diagnosis of asthma or the alleged acts constituting a cause of her diagnosis or the identity of the wrongdoer. She says that at this stage the doctors were even unsure if her injuries were linked to her work. She was not told to leave work or give up work by any doctor.

28. At para. 18 the plaintiff deals with another important document, namely the letter from her general practitioner Dr. Holmes to the defendant directly. It is dated 3rd March 2020 and is on Kilmurry Medical Centre notepaper and it is a letter from Dr. Holmes to the plaintiff’s employer, the present defendant. I will read it out because it is one of the key documents. It’s at tab 6.4, page 60 of the main booklet of exhibits.

“Dear Sir/Madam,

The above is a patient of our Medical Centre. She complains of shortness of breath for the last 6 months. I have referred her [to] the Medical Assessment Unit at St Johns Hospital for further investigation. Currently, she is being followed by the specialist. However, the shortness of breath issue remains a problem, and we do not yet have a diagnosis. It would be helpful if she could avoid exposure to respiratory irritants. In this respect, I would be grateful if a review of the chemical agents that she works with could be completed, and a restriction applied to any agents that are identified as respiratory irritants.

Yours sincerely,

Dr. Liam Holmes.”

29. The plaintiff avers that although the defendants were put on notice of this by her GP, they did not ensure she avoided irritants and secondly, did not send her GP a review of the chemical agents. Therefore, she carried on with her work as normal and again was unaware she had a significant injury. She says if her employer did not deem it necessary to change her job or put her on sick leave after getting that letter, it is unlikely that she would have known the seriousness of it.

30. I won’t read further from the plaintiff's affidavit, but it can be taken that I have read and digested all of the affidavits including that important affidavit from the plaintiff herself. I will now move to my consideration of the issues.

31. Firstly, from my review of the case law, the following legal principles in particular have a bearing on the battleground issues in this case. The first issue to determine is the date upon which the plaintiff first had actual knowledge of the cumulative relevant facts in subsections

(a) to (e) of section 2(1) of the Act of 1991. It seems to me the first difficultly for the plaintiff is that the Act and the case law makes clear, and this is particularly apparent from the decision of Ms. Justice Finlay Geoghegan in O’Sullivan v. Bon Secours, that even if the date of first actual knowledge of the relevant facts is within two years of the date of issuance of proceedings, or in this case the application to PIAB, that does not dispose of the statute issue because the next question to consider is the question whether the plaintiff should be imputed with constructive knowledge of all relevant facts at an earlier date and, if so, when.

32. The court’s task in these circumstances is to ascertain the date upon which the plaintiff on the evidence “might reasonably have been expected to acquire” the relevant factual knowledge if she had taken steps to ascertain the facts with or without expert advice. It seems to me that that is the second core principle that I have to apply.

33. Thirdly, the decision of Ms. Justice Jackson in Kepa v. Noonan Services Group demonstrates that s. 2(1)(b) of the Act of 1991 speaks to significant injuries and not to “full significance or realisation of the full extent of injury”. This also appears to be clear from the earlier decision of Hamilton C.J. in Bolger v. O’Brien [1999] 2 I.R. 431 at page 440.

34. The fourth principle of relevance, which I think in fact is crucial in this case, is a principle that is clear from the decision of the Supreme Court in Gough v. Neary and also clear from O’Sullivan v. Bon Secours where those authorities tell us that the phrase in s. 2(1)(c) “that the injury was attributable … to” is to be interpreted as meaning “capable of being attributed or potentially attributable to”. O'Donnell J. (as he then was) observed at para. 13 that “‘broad knowledge of the causally relevant acts and omissions’ is what is required… 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.” And again, that is a quotation from now Chief Justice O’Donnell. In my view, the key weakness in the plaintiff's submission on the motion is a failure to address this proposition.

35. With considerable regret, particularly having regard to something I will say at the end of my judgment, I have come to the view that there are simply too many objective indicators in the medical records and reports for the plaintiff and the plaintiff’s doctors to have even the slightest chance of withstanding the onslaught of questions regarding the date the plaintiff first had knowledge of the core facts, specifically knowledge within the meaning of s. 2(1)(b) that the injury was significant and knowledge within the meaning of s. 2(1)(c) that the injury was attributable in whole or in part to the acts or omissions which are alleged to constitute negligence. In my view, for the reasons summarised at para. 59 in particular of the written submissions of the defendant, the date of knowledge question as to the attribution dates under s. 2(1)(c) is sufficiently clearcut to warrant it being appropriate to dismiss the plaintiff's claim at this juncture.

36. I am also satisfied that the date of knowledge that the injury was significant has been established to have crystallised more than two years outside of the application to PIAB. In my view the following key documents put the matter beyond serious doubt and render it appropriate to grant the dismissal order sought in this application at this stage. Firstly, the replies to particulars 5, 6 and 7. Secondly, the plaintiff’s GP records from February/March of 2020. Thirdly, the letter from Dr. Heather Holloway, Consultant Physician, to Dr. Liam Holmes dated 19th March 2020. That letter notes the plaintiff describing a “chronic cough and wheeze which may be related to chemical exposure at work. She works as a cleaner”. Fourthly, the plaintiff’s diagnosis in February 2019 of exacerbation of asthma. And fifthly, the letter from Dr. Holmes directly to the defendant dated 3rd March 2020 in which the plaintiff’s GP says it would be helpful if the plaintiff could avoid exposure to respiratory irritants and also references the plaintiff at that point in time complaining of shortness of breath for the previous six months.

37. While I take on board counsel for the plaintiff’s submission that at that point Dr. Holmes would say she didn’t yet have a diagnosis, or they didn’t yet have a diagnosis, I don’t think that saves the proceedings having regard to the legal principles that I have identified above. In my view, by March 2020, if not before, that the injury was significant and that it was potentially attributable to exposure to chemicals in her employment was or should have been apparent.

38. I also take into account the appropriately candid medical history taken by the plaintiff’s consultant respiratory physician, Professor Conor Burke, who states, inter alia, in his report dated 12th November 2022:

• “[c]learly her symptoms were well-established by the winter 2019”;

• “by March 2019, she felt very breathless and attended the Emergency Department in Limerick University Hospital” albeit at that stage she went back to work a short time later;

• At the last page of the report Professor Burke refers to the plaintiff’s first symptoms occurring in late 2018 and “her first significant attack in March 2019”, albeit Dr. Holloway’s letter indicates she had improved after that by 18th of February 2020.

39. Taking these objective pointers cumulatively, I take the view that the claim unfortunately is doomed and that it would not be in the interests of justice to allow the matter proceed to trial. Even taking the plaintiff’s pleadings and affidavits at their height, the objective evidence warrants the dismissal of the proceedings.

40. Finally, there are two important matters which I want to mention which to my mind may be relevant to the question of costs, subject to any submissions I may hear. Firstly, the contents of Professor Burke’s report of 12th November 2022 indicates that (a) the plaintiff likely had asthma; (b) on the plaintiff’s instructions she was exposed to significant irritant chemicals;

(c) was so exposed without any industrial hygiene protective measures such as a mask; (d) was so exposed often in confined spaces with poor ventilation; and (e) the absence of other risk factors to any other cause of asthma. Professor Burke’s conclusion was that the combination of these factors implicated her occupational exposure as the likely cause of her asthma condition. In my view, while I am of course not making findings in this matter in the way one would make findings at trial, all of that is a cause of particular concern to the court.

41. The second discreet matter which is causing me concern is what appears to be unchallenged evidence that, despite the clarity of the letter from Dr. Holmes to the defendant itself dated 3rd March 2020 which I have read out, the defendant appears not to have sent a review of the chemical agents to Dr. Holmes as he requested and secondly, according to the plaintiff’s affidavit, did not ensure that she avoided exposure to irritants after March 2020, as specifically requested in the letter from the GP. It seems to me, subject of course to the submissions that the parties may wish to make on this issue, these factors may have an important bearing on the question of costs.

Application for costs by defendant

42. I will now deal with the question of costs. The parties will be aware from ss. 168 and

169 of the Legal Services Regulation Act of 2015 that costs are now provided for in statute. It seems to me to be clear from case law and indeed in terms of the statute itself that the court retains a discretion, albeit it is clear particularly from the Supreme Court's decision in Little v. Chief Appeals Officer [2024] IESC 53 that the strong default position is that where a party has been wholly successful, all things being equal, that party should be entitled to recover their costs. The section also indicates that it is open to the court to exercise its discretion to depart from that strong default rule where there are reasons - and I am paraphrasing here - that warrant such departure. The section makes clear, and I recall that it is necessary that the court should identify such reasons, if departing from the general default rule.

43. There are a number of matters to bear in mind here. Against the plaintiff’s position is the core fact that she has lost, and lost entirely. All things being equal, applying the normal rule of costs following the event, that would ordinarily point to a costs ruling in favour of the successful defendant. A further matter I have to take into account on the debit side of the ledger from the plaintiff’s point of view, is that the matter had to be adjourned previously on the plaintiff’s application for the purpose of putting in an affidavit that really, putting it bluntly, should have been before the court on the first occasion. In fairness to the plaintiff, she was given an opportunity and she put in the affidavit.

44. This was a keenly fought matter which was engaged with fully by both sides with considerable concision and skill. There were a lot of documents to go through. The booklet itself was from the second exhibit of the grounding affidavit and was quite voluminous and substantial and it was necessary to trawl back through a number of documents. It is clear from the plaintiff’s reporting to her various specialists and medical attendants that she was anxious to give as full a picture as is possible. The court would expect nothing less. There is no sense in this case of an avoidance or an obfuscation or of an intended misleading or of anything untoward of that nature. Far from it. The plaintiff has lost a case which, on one view, appears rather strong by dint of the information she provided to her doctors. I think that is a matter I am entitled to take into account.

45. The second matter that I feel is relevant concerns the two points that I made at the foot of the substantive judgment. I do have a concern that the defendant was written to with great clarity by a clearly committed general practitioner who was endeavouring to do the best he could for his patient and who wrote a clear letter in the English language, well put together, to say two things: firstly, putting the defendant on alert about the exposure to chemical irritants, seeking a review of that; and secondly, requesting most of all that the exposure should stop, if they were chemical irritants.

46. The court is left in a situation of not knowing what level of engagement that letter prompted. There appears to be unchallenged evidence from the plaintiff herself that there was no proper engagement with that letter. The review was not passed on, she continued in work.

47. The second point is what appears to me to be the strength of the plaintiff’s case. That gives rise, it seems to me, to a most unfortunate situation where the substance of the plaintiff’s case appears strong and yet the case is knocked out under the laws of the land, by reason of falling outside the statutory period.

48. In all these circumstances, it seems to me that the plaintiff unfortunately has to take the consequences of failing to act. As a matter of justice, I should take into account what appears to be unchallenged evidence that the defendant also failed to act and secondly, that that failure to act may have had adverse consequences on the health of this plaintiff. I take these matters into account.

49. The court would be slow to depart from the normal rule that costs follow the event by reason of the fact the Oireachtas has made clear that that is something that must be to the forefront of the court’s mind. However, in the unusual circumstances of this case I think that justice requires that I should make an exception here and that I should depart from the normal rule.

50. I also take into account that in the second phase of the case, I only reserved the defendant’s costs over to today by reason of the unavailability of the affidavit at the initial stage. In all the circumstances, I feel that justice warrants that I make no order as to costs in the proceedings, and that is the order that I will make.

Signed: Micheál O’Higgins