Supreme Court dismisses appeal on statute of limitations where plaintiff lacked knowledge of causal connection to defendant's negligence.

THE SUPREME COURT

163/03 &

164/03

Keane CJ

Murray J

McCracken J

Between:

Angela Fortune (A person of unsound mind not so found)

Plaintiff/ Respondent

AND

Cliona McLoughlin

Defendant/ Appellant

Judgment of Mr Justice McCracken delivered the 9th day of June 2004

The Background

There are two separate appeals before the Court, but both have relevance as to whether the Plaintiff’s claim in these proceedings is

statute barred. The first appeal is from an order of Kearns J made on 12th February 2003 allowing an amendment by the Plaintiff to

her reply to plead as follows:-

“Further or in the alternative it is denied that the plaintiff’s cause of action is barred by the provisions of the Statute of

Limitations 1957 as alleged or at all but on the contrary on the date of the accrual of the cause of action and/or on the date

of knowledge the plaintiff was of unsound mind within the meaning of section 48 of the Statute of Limitations (Amendment)

Act 1991 and from that time was never of sound mind. Accordingly the plaintiff will rely on section 49(2) of the Statute of

Limitations 1957 as extended by section 5 of the Statute of Limitations (Amendment) Act 1991.”

The second appeal before the Court is from an order of Kearns J made on 14th February 2003 on a preliminary issue whereby he held

that independently of the amended reply, the Plaintiff’s case was not barred by the Statute of Limitations 1957 as amended.

In 1993 the Plaintiff, who was pregnant, had engaged the Respondent, who is a registered midwife, to provide midwifery services

during her pregnancy, with the intention that the birth would take place at home. On 7th June 1993 in the middle of the night the

Plaintiff had convulsions and lost consciousness. It is alleged by the Plaintiff that her partner telephoned the Defendant and asked

should he call an ambulance and that the Defendant told him not to, but that she would come to see the Plaintiff. In fact the

Plaintiff’s partner called an ambulance and the Plaintiff was taken to Holles Street Maternity Hospital in Dublin where she was treated

and the baby was delivered by caesarean section. After the birth, the Plaintiff had further seizures and was transferred to Beaumont

Hospital where she remained for some four weeks.

The Plaintiff alleges that she sustained serious brain injuries during this period and has been left with significant permanent brain

damage with intellectual impairment, and that these injuries are due to the negligence of the Defendant. The detailed particulars of

the negligence claimed are not relevant to the issues that were before this Court, and are denied in the defence. It is sufficient to

say that the Plaintiff’s case in substance is that the Defendant did not adequately monitor her condition during the pregnancy and

failed to have regard to her own clinical findings which should have indicated to a reasonable competent midwife the onset of pre-

eclampsia and the need for increased monitoring and early delivery of the child.

The plenary summons was issued on 2nd June 2000 and the statement of claim was issued on 11th July 2000. In the defence

delivered on 12th July 2001, the Defendant pleads that the proceedings are time barred by the Statute of Limitations 1957 and should

be dismissed. The Court ordered a preliminary trial of that issue.

By notice of motion dated 7th February 2003 the Plaintiff sought an order giving liberty to serve an amended reply, and both issues

were heard together before Kearns J. The hearing was partly based on affidavit evidence and partly based on oral evidence.

The Statutory Provisions

The relevant provisions of the Statute of Limitations (Amendment) Act 1991 are:-

“2.—(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be

brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant

of the person injured) references to that person's date of knowledge are references to the date on which he first had

knowledge of the following facts:

( a ) that the person alleged to have been injured had been injured,

( b ) that the injury in question was significant,

( c ) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence,

nuisance or breach of duty,

( d ) the identity of the defendant, and

( e ) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person

and the additional facts supporting the bringing of an action against the defendant;

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

irrelevant.

(2) For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected

to acquire—

( a ) from facts observable or ascertainable by him, or

( b ) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable

for him to seek.

(3) Notwithstanding subsection (2) of this section—

( a ) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert

advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and

( b ) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has

failed to acquire as a result of that injury.

3.—(1) 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 (whether the duty exists by virtue of a contract or of a provision

made by or under a 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.

5.—(1) Notwithstanding anything in section 49 (1) (a) of the Principal Act, if, in the case of—

( a ) an action of the kind to which section 3 of this Act applies,

………

the person having the right to bring the action was under a disability either at the time when that right accrued to him or at

the date of his knowledge, the action may be brought at any time before the expiration of three years from the date when he

ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period specified in the said

section 3 has expired, but section 49 (1) (c) of the Principal act shall apply accordingly.”

The Evidence

The Plaintiff herself gave oral evidence, and in addition the Court had before it an affidavit of Dr David Moorehouse, a consultant

neurologist, a medical report from Dr Michael O’Keefe consultant eye surgeon, several reports from Dr Martina O’Connor-McEnroe, a

consultant neuro- psychologist, and an affidavit of Josephine Campion, a clinical psychologist on behalf of the Plaintiff. In addition,

both Dr O’Connor- McEnroe and Ms Campion gave oral evidence on behalf of the Plaintiff. The Court also heard oral evidence from Dr

Simone Cartan for the Defendant. It is noteworthy that Counsel for the Defendant declined an opportunity to cross-examine Dr

Moorehouse and stated that he could not dispute anything in his affidavit. In his affidavit Dr Moorehouse had stated:-

“In view of the pattern of irreversible organic damage to brain tissue demonstrated on the MRI scan, in my view it is

reasonable to conclude that the plaintiff’s neurological injuries would, as a matter of probability, have prevented and/or

hampered her ability to fully investigate or maintain proper inquiries as whether her injuries were caused by lack of care.”

Similar views were expressed by Dr O’Connor-McEnroe and by Ms Campion.

The Decision

The learned trial Judge stated that insofar as the implications and ramifications of the Plaintiff’s severe brain injury were concerned,

he preferred the evidence of Dr O’Connor-McEnroe and Dr Moorehouse. He also emphasised that he had had the benefit of observing

the Plaintiff’s demeanour both in giving evidence and of seeing her sit in the back of the Court. He held that the requirement in

section 2(1)(c) of the 1991 Act was unsatisfied in that the Plaintiff did not at the relevant time have knowledge that the injury was

attributable in whole or in part to any act or omission of the Defendant, but rather that her view was that “it was one of those

things”. He also held that the Plaintiff fell within section 2(3)(b) of the Act in that the consequences of her injury prevented her from

acquiring knowledge of facts relevant to the injury.

The Defendant’s Case

The Defendant argues that the judgment of the learned trial Judge does not give any reasons for preferring the evidence of Dr

Moorehouse and Dr O’Connor-McEnroe, and that this in itself if a ground of appeal. In my view the learned trial Judge quite clearly

gave reasons for preferring the evidence of these experts, firstly on the basis that Dr Moorehouse’s evidence had not been

challenged, secondly on the basis of his own assessment of the Plaintiff in the witness box and thirdly on his acceptance of the

results of a number of tests carried out by Dr O’Connor- McEnroe.

It is also argued on behalf of the Defendant that the Plaintiff knew all the relevant facts. In one sense this is quite correct, the

Plaintiff knew that she had had a caesarean section, she knew that she had suffered from convulsions, she may well have known, at

least to some degree, that she had become somewhat mentally impaired, and she knew that her sight had been seriously impaired.

The effect of this is that she clearly knew that the injury in question was significant for the purposes of section 2(1)(b). However,

the question is not whether the Plaintiff knew the physical facts of her injuries, but whether she knew that the injury was attributable

in whole or in part to the act or omission which is alleged to constitute the negligence, which basically was the failure of the

Defendant to monitor her properly during the latter part of her pregnancy. The learned trial Judge held that the Plaintiff herself did not

make the connection between her injuries and the actions or omissions of the Defendant. It is quite clear from the evidence that the

proceedings were ultimately issued as a result of advice from a general practitioner in September 1999, and even at that stage, she

believed that any relevant blame would lie on Holles Street Hospital. At this stage she sought advice from her solicitor who obtained

her medical records from the hospital. It was only when the relevant records were obtained and advice was received by her from an

independent medical expert based on those records that the facts now relied upon by the Plaintiff in relation to her treatment by the

Defendant came to light.

The Defendant also argues that the Plaintiff was aware of the facts in that she was aware of the number and nature of the visits by

the Defendant to her. Counsel for the Defendant sought to argue that the word “attributable” in the section is satisfied by the

Plaintiff’s knowledge of the acts or omissions which it is now contended gave rise to liability. However, the evidence of the Plaintiff

under cross-examination in relation to her condition was that “I thought it was one of those things” and she recalled that a nurse in

the Rehabilitation Centre had said to her husband that for a woman of her age with a first time pregnancy these things could happen.

This question was considered in a recent case before this Court of Goff v. Neary (unreported 3rd July 2003). In that case the

plaintiff’s claim was that the defendant had performed an unnecessary hysterectomy and in answer to a plea that the claim was

statute barred, the plaintiff relied on the fact, that, while she knew she had had a hysterectomy, she did not know that it was

unnecessary, and on the contrary believed that it had been necessary. After reviewing some of the English authorities, Geoghegan J

said at page 16 of the judgment:-

“While it may not be necessary for the purposes of starting the statute to run to know enough detail to draft a statement of

claim, a plaintiff in my opinion must know enough facts as would be capable of at least upon further elaboration of establishing

a cause of action even if the plaintiff has no idea that those facts of which he had knowledge do in fact constitute a cause of

action as that particular knowledge is irrelevant under the Act. But the adequacy of the knowledge must be related to the

context and in this case the plaintiff, who was a person of limited education was entitled to assume that the hysterectomy

was carried out by Dr Neary to save her life at the time of childbirth because that is what she was told by him. Mere

knowledge that a hysterectomy was carried out therefore is irrelevant. Nor do the pieces of additional information that she did

have from the doctor provide her with any relevant knowledge. It was only when she discovered that the operation was

unnecessary that the period started to run. Of course, constructive knowledge under the Act that the operation was

unnecessary would suffice. But this plaintiff, in my view, had neither actual nor constructive notice within the ordinary period

‘that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence’. That

cannot be the hysterectomy itself but rather the unnecessary hysterectomy.”

In the same case Geoghegan J quoted with approval the principle set out in Spargo v. North Essex District Health Authority 37 BMLR

99. In that case Brooke LJ said:-

“(1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge of the essence of the causally relevant act or

omission to which the injury is attributable:

(2) ‘Attributable’ in this context means capable of being attributed to, in the sense of being a real possibility;

(3) a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate

whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge

if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad

terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should

investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or

general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks

her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about

this, and would need to check with an expert before she could be properly said to know that it was.”

Conclusion

I cannot accept the Defendant’s contention that the word “attributable” in section 2(1)(c) of the Act is satisfied by the Plaintiff’s

knowledge of the factual situation. The knowledge referred to in that subparagraph is knowledge of attribution, in other words

knowledge that there was a connection between the injury and the matters now alleged to have caused the injury. This is a

connection which the Plaintiff did not make in this case. If a plaintiff is to have knowledge within the meaning of the sub-clause, she

must have knowledge at least of a connection between the injury and the matters now complained of sufficient to put her on some

inquiry as to whether the injury had been caused by the matters complained of. At what stage she is put on inquiry must be a matter

to be determined in each case, but in the present case the Plaintiff quite clearly did not make the connection at all, as even when

she was alerted to the fact that there might have been negligence, her reaction was to attribute her injuries to the actions of Holles

Street Hospital rather than of the Defendant. It should be emphasised that the Plaintiff’s knowledge of these matters is largely a

question of fact. The learned trial Judge in this case heard and placed reliance on, not only the expert evidence, but also the

evidence of the Plaintiff herself. As has frequently been said, this Court should be very slow to interfere with findings of fact in such

circumstances. In my view the trial Judge was quite correct in holding that the Plaintiff did not have the relevant knowledge under

section 2(1)(c).

The learned trial Judge also held, as he expressed it, for the avoidance of doubt, that in any event the Plaintiff would not be statute

barred because of the provisions of section 2(3)(b), namely that she should not be fixed with knowledge of a fact relevant to the

injury which she had failed to acquire as a result of the injury. While it is not necessary for me to decide this point, I would comment

that in my view subsection 3(a) and subsection 3(b) are not to be read cumulatively, as was contended for on behalf of the Plaintiff

but rather that each subsection stands alone. That being so, and the learned trial Judge having found as a fact on the evidence

before him, as he was clearly entitled to do, that section 2(3)(b) applied, the Plaintiff’s argument that this subsection also prevents

the statute from running is correct.

Accordingly, I would dismiss this appeal and affirm the judgment of the learned High Court Judge.

In the light of this finding, it does not seem necessary to consider whether the learned trial Judge was correct in allowing the

amendment to the reply. As the claim is not statute barred in any event, the amendment would seem irrelevant.