Supreme Court allows appeal, holding claim barred by statute of limitations due to knowledge of facts in 1998.

THE SUPREME COURT

399/03 & 403/03

McGuiness J

Hardiman J

Fennelly J

BETWEEN

ROSEMARY CUNNINGHAM

Plaintiff

and

MICHAEL NEARY MARGARET QUINN VERONICA TARPEY ANN MARIE O’GORMAN KATHERINE MARY SHEA and BARNEY

McENEANEY

Defendants

JUDGMENT delivered on the 20th day of July, 2004 by FENNELLY J.

1. This is an appeal from a judgment and order of O’Caoimh J, in which he determined, as a preliminary point of law, that the claim of

the plaintiff/respondent for damages for the negligent removal by the first-named defendant/appellant (hereinafter “the defendant”)

of an ovary was not barred by the provisions of section 3 of the Statute of Limitations (Amendment) Act, 1991 (hereinafter “the 1991

Act”). The case involves some consideration of the decision of this Court in Gough v Neary [2003] 3 I.R. 92, involving the same

defendant. In that case, the claim was held not to be statute-barred, but the appellant argues that the facts are quite different in

the present case.

The facts

2. The plaintiff, who is a Dental Nurse, commenced her action by Plenary Summons on 22nd March 2002, alleging professional

negligence in the year 1991 against the defendant who was, at the material time, a consultant obstetrician and gynaecologist in the

employment of the second, third, fourth and fifth-named defendants/appellants. Those defendants operate Our Lady of Lourdes

Hospital, Drogheda, County Louth.

3. The plaintiff already had two children, when, in July and August 1991 she was attended by the defendant at the Our Lady of

Lourdes Hospital. In her Statement of Claim, she makes a number of criticisms of the defendant, including allegations of extremely

rude behaviour. This last aspect for a time preoccupied her to an even greater extent than the acts of medical malpractice which she

attributes to the defendant. However, since this appeal is concerned only with the question of the applicability of the Statute of

Limitations to her claim, it will suffice to identify the only real complaint now being made, namely the unnecessary removal of an

ovary.

4. The plaintiff had a ruptured ectopic pregnancy, when she was admitted to the hospital on 14th August 1991. She was in great

pain. She was operated on for this condition on 15th August. On recovery from anaesthetic, the plaintiff says that the defendant told

her that he had removed a fallopian tube, which she accepts was necessary to deal with the ectopic pregnancy. However, he also

told her that he had removed one of her ovaries. Her central complaint against the defendant at present is that it was completely

unnecessary and therefore negligent to remove the ovary.

5. In an affidavit sworn for the purpose of the preliminary issue, the plaintiff says that, some days later, she asked the defendant why

he had removed the ovary and that he answered: “I did not like your bloody ovary anyway.” She says that, when she attended for a

six-weeks check up, the defendant was again extremely rude, telling her, in effect, that: “By Church law, I should not have laid a

finger on you and you should be six feet under. I saved your life and you should be grateful.”

6. She subsequently discussed the entire matter with her GP, who informed her that, in the circumstances, she was lucky to be alive

and that, on the basis of what he had learned from the defendant, it had been necessary to remove the ovary. She says that, at no

stage did she realise that the removal of the ovary had been unnecessary. She trusted her GP and accepted what he told her.

7. Thus, the plaintiff took no action against the defendant during the normal three-year period from the date of the injury of which

she complains.

8. In October 1998, the plaintiff was admitted to the Coombe hospital in Dublin, where she had a hysterectomy. While there, she told

a nurse about her experience with the defendant. The nurse encouraged the plaintiff to complain about the defendant to the Medical

Council. This she did in December 1998. Before examining this letter in greater detail, I should mention that the plaintiff says in her

affidavit that she “subsequently” became aware of rumours about the defendant’s practice and of “how some expecting mothers had

experiences with him that were far worse than mine and that some of them were contemplating suing him.” She says that this

caused her “to address the question of whether indeed it had been necessary to remove my ovary and I decided to seek legal and

medical advice.”

9. In fact, the plaintiff did not go to a solicitor until May 2000, some eighteen months later. However, it seems probable that, when

using the word, “subsequently” in relation to learning of rumours of the defendant’s practice, that she was referring to the period

following her hysterectomy operation at the Coombe hospital, that is towards the end of 1998. The word, “subsequently,” appears at

the point in her affidavit after her reference to the nurse in the Coombe hospital. In cross-examination in the High Court, she said

that she became aware of rumours when she heard it “on the local station.”

10. The plaintiff’s letter of 19th December 1998 to the Medical Council ran to some three and a half pages and retailed all her

complaints against the defendant. She mentioned the two occasions in 1991, the first when in hospital and the second six weeks later

when she had asked the defendant why he had removed her ovary.

11. Although the plaintiff consulted a solicitor on May 2000, proceedings were not commenced until 22nd March 2002. In April 2001,

Dr Richard Porter, an independent expert obstetrician, provided a report in which he advised that the removal of the plaintiff’s ovary

had been unnecessary and represented incompetent medical practice. The plaintiff swore in the High Court that she then learned that

fact for the first time.

The Statute of Limitations (Amendment) Act, 1991.

12. As a result of the amendment, by the 1991 Act, of the Statute of Limitations, 1957, time now begins to run in cases of actions

for damages for personal injury from “the date on which the cause of action accrued or the date of knowledge (if later) of the person

injured.” In the present case, the plaintiff’s claim is defeated by the statute unless she can show that she first had “knowledge” of

her injury within the period of three years before 22nd March 2002. This has to be considered in the light of section 2 of the Act,

which provides:

“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.”

13. O’Caoimh J held that the plaintiff’s claim was not statute-barred. Based on Gough v Neary, he held that the relevant knowledge

for the purposes of section 2(1) was “that the operation had been unnecessarily performed.” He held that she had neither actual nor

constructive knowledge of this fact in 1998 or at any time prior to the receipt of the report of Dr Porter in April 2001.

14. Three aspects of this section were discussed in the course of the written and oral submissions of the parties.

15. Firstly, Mr Charles Meenan, Senior Counsel for the defendant said that the plaintiff had knowledge of the fact identified in section

2(1)(c) at least as early as December 1998, when she wrote to the Medical Council. He accepted that the Court, as constituted for

this appeal, could not overrule Gough v Neary, but contended that the plaintiff actually knew that the operation was unnecessary in

the sense that she was dissatisfied with the lack of explanation from the defendant and he argued that her lack of knowledge that

the operation was necessary was equivalent to knowledge that it was unnecessary. The facts of this case are different from Gough v

Neary. Dr Forde, Senior Counsel, for the plaintiff relied on Gough v Neary and said that this was reinforced by the reference in section

2(1)(b) to knowledge that the injury is significant.

16. Secondly, Mr Meenan relied, as an alternative on sub-section 2. The plaintiff ought reasonably to have knowledge of matters

which were ascertainable with the help of medical or other expert advice which it would have been reasonable for her to obtain. Dr

Forde submitted that sub-section 3 had the effect of excluding subsection 2 in this case. The plaintiff had obtained the advice of her

GP back in 1991. It was reasonable to rely on that. Mr Meenan, however, argued that, even if that were so at the time when she

consulted her GP, that state of affairs did not survive the events of late 1998, when her letter to the Medical Council showed her

consciousness that she had no explanation of the reason for the operation.

17. Thirdly, Mr Meenan contended, contrary to the submission of Dr Forde on the point, that the plaintiff could not in any event rely

on sub-section 3 to give her the right to rely totally on the advice of her GP, when she was conscious herself of the fact that she

had no explanation from the defendant.

Discussion and Conclusion

18. I will begin with a brief discussion of Gough v Neary. The first thing to say is that there is an important difference between the

facts of the two cases. To the extent that the plaintiff in that case complained that the defendant had unnecessarily performed a

hysterectomy on her in 1992, the essential facts are quite similar to start with. Both plaintiffs complained of an unnecessarily

performed operation, one in 1991, the other in 1992. However, the plaintiff in Gough v Neary, commenced her action in December

1998, when, according to Geoghegan J at page 122 of the report, “as a consequence of media coverage in relation to the defendant

and a number of hysterectomies which he had carried out in connection with birth deliveries, she acquired the knowledge that the

operation was unnecessary.” Clearly, that plaintiff, unlike the plaintiff in the present case, issued proceedings immediately after the

media coverage in 1998. Therefore, the remark of Geoghegan J that the plaintiff had actual knowledge that her own operation was

unnecessary based on media reports has to be seen in context. Once the proceedings were issued in that case, there was no further

issue as to whether the plaintiff had constructive knowledge. Personally, I doubt whether knowledge of media reports that other

women had had unnecessary operations should be equated with actual knowledge that her own operation had also been unnecessary.

Media reports of complaints that the defendant had performed unnecessary operations on other women may certainly have put the

plaintiff on inquiry, but it can scarcely be said that, from such reports alone, she knew rather than suspected that her own operation

had been unnecessary.

19. The important point of principle decided in Gough v Neary was that knowledge “that that the injury was attributable in whole or in

part to the act or omission which is alleged to constitute negligence…” for the purpose of section 2 (1)(c) includes knowledge that

the operation was unnecessary. Consequently, time did not commence to run until she had knowledge of the latter fact. Geoghegan J

drew a distinction between that knowledge and knowledge that the act in question was, as a matter of law, a negligent act, which is,

of course, rendered irrelevant by the proviso to sub-section 1. On that particular matter, Hardiman J dissented and the matter may be

open to debate in a future case. However, it seems clear to me that the Court may not, in this case, reopen that issue and, as I

have said, it has not been invited to do so. In fact, however, this case can be decided by reference to sub-section 2. While both

Geoghegan J and McCracken J refer, in their judgments, to “constructive” knowledge, that expression does not appear in the section.

Nonetheless, it is clear that they are referring to the provisions of sub-section 2.

20. I am prepared to accept that the plaintiff was entitled reasonably to rely on the advice of her GP, given some time after the

operation, probably in late 1991, that the removal of her ovary had been unnecessary. The question is whether she took “all

reasonable steps” to obtain advice and to act upon it. The GP is the natural first port of call for a patient. He is the expert, so far as

the lay person is concerned, in choosing consultants and explaining the results of their work. On that basis, the plaintiff did not have

knowledge of the fact that the operation was unnecessary in 1991 and the statute did not commence to run.

21. However, the position changed significantly in late 1998. While the plaintiff had understandably been greatly upset by the rude

behaviour, as she saw it, of the defendant, she clearly carried with her unhappy memories of her medical treatment at the hands of

the defendant. I do not, by phrasing my reference to rude behaviour in a conditional way, mean to cast any doubt on the veracity of

the plaintiff’s account. This is not a matter, however, that can be decided on this appeal. Counsel for the defendant has informed the

Court that the defendant disputes the plaintiff’s version. Returning to the point of the case, it seems clear that the plaintiff had a

conversation with a nurse in the Coombe hospital which revived her own unhappiness at the way she had been treated both medically

and personally by the defendant. The nurse encouraged her to complain about the defendant to the Medical Council, a very serious

step. The letter of 19th December 1998 makes a number of grave allegations against the defendant. Among them is an account of

two separate complaints about the absence of an explanation for the removal of an ovary. In addition, the plaintiff learned from media

reports that a number of women had made serious complaints about the defendant. This is confirmed by the statement in her letter

that, if she had complained earlier, “she might have saved many other women from going through the same kind of treatment.” It

was suggested at the hearing that this sentence did not necessarily mean any more than that she had been badly treated herself.

However, given the other evidence of the plaintiff’s knowledge, from media reports that “some expecting mothers had experiences

with him that were far worse than mine,” I think it highly likely that the plaintiff was referring in her letter to these cases.

22. Thus, at the stage when the plaintiff wrote to the Medical Council, she had knowledge of the fact that the defendant had

removed her ovary in 1991, that she had twice asked him why he had done so, that she had received no explanation at all and that

other women had made serious complaints about the defendant. This knowledge was such that it was then “reasonable” for her to

seek medical or other expert advice. When she went to her solicitor in May 2000, it took a further eleven months to obtain the report

of Dr Porter. This can, no doubt, be explained by the time needed to obtain the plaintiff’s medical records from the hospital. It shows,

however, that, if the plaintiff had gone to a solicitor in December 1998, she would have obtained the sort of advice which would have

made out a case in negligence against the defendant. Therefore, the key fact that the removal of the ovary had been unnecessary

was “ascertainable” and, for the purposes of the section, the plaintiff is deemed to have had knowledge of it as of that date. I would

add that I also fully agree with the analysis of the subsequent events in the judgment of McGuinness J.

23. Consequently, the three-year period commenced to run against the plaintiff’s claim not later than 19th December 1998 and her

claim is out of time. For these reasons, I would allow the appeal and determine the preliminary point to the effect that the claim is

barred by the provisions of section 3 of the Statute of Limitations (Amendment) Act, 1991. The plaintiff’s claim should, therefore, be

dismissed.