THE COURT OF APPEAL Neutral Citation Number:  IECA 8
Record No. 2014/383
IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR HEALTH AND CHILDREN, THE HEALTH SERVICES EXECUTIVE, THE BON SECOURS HEALTH SYSTEM LIMITED TRADING AS BON SECOURS HOSPITAL
JUDGMENT of Mr. Justice Edwards delivered on the 24th day of January 2018
1. I have had the benefit of reading in draft the judgments in this matter delivered by the President and by Ms Justice Irvine, respectively. I am in agreement with the President and must respectfully dissent from the conclusion expressed by the Ms Justice Irvine for reasons that I feel compelled to briefly elaborate upon.
2. It seems to me that there is a great measure of agreement between both of my colleagues (i) concerning the applicable law and (ii) concerning the essential facts as established in evidence. To the extent that my colleagues’ views diverge it is with respect to the application of the agreed legal principles to the facts of the case as established in evidence.
3. It is agreed with respect to the law that the applicable statutory provisions are s.2, and s.3(1), respectively, of the Statute of Limitations (Amendment) Act 1991 (the Act of 1991), as amended; and that these have been interpreted and applied by the Supreme Court in relevant jurisprudence including Geogh v Neary  3 I.R. 92 and Cunningham v Neary  IESC 43; and by this court in Farrell v Ryan  IECA 281.
4. Moreover, the essential chronology, which is set out in both judgments, is uncontroversial, save in respect of the key question as to precisely when, on the facts of the case, the plaintiff may be taken to have first had knowledge of the requisite facts specified in s.2(1)(a) to 2(1)(e) inclusive of the Act of 1991, as amended, namely knowledge:
5. Crucial to ensuring that these questions are addressed correctly is an appreciation of the import of subss (2) and (3), respectively, of s.2 of the Act of 1991 which provide:
(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.
6. In Geogh v Neary (the essential facts of which are set in the judgments of both of my colleagues rendering it unnecessary for me to repeat them) Geoghegan J, in delivering the principal judgment on the majority side in the Supreme Court, noted that the wording of s. 2(1)(c) of the Act of 1991 is in identical terms to the wording of a corresponding clause (i.e., s.14(1)(b)) of the English Limitation Act 1980. There being no Irish authority directly in point, Geoghegan J reviewed relevant English jurisprudence that had been brought to his attention, or had come to his attention in the course of his research on the issue, for its persuasive influence. He was careful, however, to stress that the two pieces of legislation were not identical in every respect and that “[w]hile the English cases are of some assistance they must be read and interpreted with caution”. He considered, inter alia, the case of Spargo v North Essex Health Authority  8 Med L.R 125, and in doing so noted with ostensible approval (at p.127/128 of the report) that, in Spargo, Brook L.J had asked himself the rhetorical question, what does the law require in order that actual knowledge is established? Brook L.J had answered his own question by enunciating the following four principles:
“(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.”
7. Geoghegan J, while noting that these principles were perhaps easier to state than to apply in practice, and while not willing to treat them as being cast in stone, was nonetheless prepared to apply them. He noted, incidentally, that “There is no doubt that that case (Spargo) is now the ‘gospel’ in England as far as this branch of the law is concerned.”
“(1) The knowledge required to satisfy s. 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.”
8. Geoghegan J was satisfied from his review of relevant jurisprudence that:
9. Geogh v Neary, Cunningham v Neary and Farrell v Ryan were all cases in which the plaintiffs did not appreciate for a significant time that they had been injured at all, much less appreciate the causally relevant act or omission to which their injury was attributable. In each case the realisation that they had been, or may have been injured, and the causation of that injury, was arrived at gradually but a tipping point was reached at which that knowledge was either imputed to them or it could be said that it was at that point reasonable for the plaintiff to take steps to ascertain for herself whether she had in fact been injured and by what means. It was not necessary in order to arrive at the tipping point in any of the cases in question that the plaintiff should have had the benefit of expert advice, or of having had sight of medical records. Suspicion based on anecdotal information, media reports and promptings from a concerned and knowledgeable person (e.g., in Cunningham the nurse in whom the plaintiff confided) were regarded as sufficient, in the circumstances of those cases, to fix the plaintiff with knowledge of the requisite facts at a point in time, on the basis that they were ascertainable at that point.
“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 has 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 … .”
10. In Geogh v Neary, notwithstanding that Mrs Geogh had not the benefit of a expert report, Geoghegan J concluded that actual knowledge that her hysterectomy was unnecessary could be imputed to Mrs Geogh in circumstances where she was aware of media reports of unnecessary hysterectomies being carried by Dr Neary on other women. The Supreme Court determined, on the facts of that case, that the relevant date of knowledge to be imputed to her on the basis of the media reports meant that Mrs Gough’s proceedings were commenced in time. In Cunningham v Neary (again, the essential facts of which have been set out by my colleagues) the plaintiff, Mrs Cunningham was not so fortunate. Fennelly J, applying Geogh v Neary principles, took a somewhat more nuanced approach in his assessment of the evidence to that of Geoghegan J in Gough, concluding that Mrs Cunningham, knowing what was being said about Dr Neary in media reports, and having decided at a certain point to make a complaint about Dr Neary to the medical council at the urging of a nurse in whom she had confided, both about her concerns and about the way in which she perceived she had been treated, had sufficient information to render it reasonable for her to take steps to ascertain for herself whether the removal of her ovary had indeed been necessary. Time had begun to run at that point, but the plaintiff failed to issue her proceedings before the expiry of the limitation period.
11. In Farrell v Ryan, a symphysiotomy case, Peart J concluded that it was sufficient if the plaintiff:
12. Unfortunately, from her perspective, the statutory limitation period having been triggered at the point identified by the court, the plaintiff Ms Farrell did not issue her proceedings in time.
“had enough knowledge to connect her injuries to the procedure which she knew had been carried out on her in 1963, and as she admitted herself in her evidence, she knew on the 10th February 2010 that the symphysiotomy she underwent was unnecessary. I believe that the evidence is clear that she had that knowledge as of the 18th February 2010. Medical records would no doubt elaborate upon the knowledge that she had, but were not a prerequisite to time commencing to run.”
13. As Irvine points out at para 41 of her judgment in this case, in both Geogh and Cunningham, the commencement of time running was triggered on a date when neither plaintiff had an expert report and, in the case of Mrs Cunningham, ever before she had consulted a solicitor or had sight of her medical records. The same was true in Farrell.
14. I find myself in disagreement with Irvine J that the evidence establishes that the plaintiff in the present case was in possession of most, if not all, of the key information from a relatively early stage, and certainly that he was in possession of all of the requisite information for the purposes of s.2(1)(a) to 2(1)(e) inclusive of the Act of 1991, as amended, from the date that he received his medical records, ie., on the 17th of July 2006 which is the date of knowledge contended for by the hospital.
15. Irvine J at paragraph 50 of her judgment, bases her conclusion on the following:
16. Following the hearing in this matter I had initially been concerned that the plaintiff did not fully appreciate that his protracted recovery from surgery was attributable, to a major extent, to his MRSA infection, and that he had been focusing to such an extent on the possibility that his problems might have been the result of surgical misadventure that might indeed have been fairly said to have been “barking up the wrong tree”, to quote Brook L.J., in Spargo. He had said in his evidence “My main concern was the colostomy bag. MRSA wasn’t even a second thought.” However, having thoroughly reviewed the transcript of the proceedings in the court below, the evidence does not bear the suggestion that he was unaware that MRSA was a significant factor in his protracted recovery.
i. He had been told by Dr. Murphy on the 4th October, 2005 that he had contracted MRSA whilst in hospital;
ii. He knew he had suffered very serious consequences as a result of his infection;
iii. He was aware from his mother that there had been a programme on television concerning patients who had contracted MRSA in a hospital setting;
iv. He had furthered his investigations concerning his infection by contacting Mr. Tony Kavanagh, a participant in the aforementioned television programme;
v. He had been referred to Mr. Simon, a solicitor specialising in MRSA cases, had attended with Mr. Simon and had given him instructions to act on his behalf.
vi. He had sought, with the assistance of Mr. Simon, his medical records to investigate the circumstances in which he had developed the life threatening complications of MRSA and when he had received those records he had delivered them to Mr. Simon.
vii. Mr. Simon was aware from Mr. O’Sullivan’s medical records that the pathology report on a swab taken in the course of Mr. O’Sullivan’s stay in hospital was positive for MRSA.
17. In particular, in the course of examination by his own counsel, the transcript contains the following question and answer, which appears in the segment of his evidence where he was describing the first time he was told he had MRSA, which was by Dr Olive Murphy on the 4th of October 2005:
18. It is clear the plaintiff knew at that point that he had an injury – the s.2(1)(a) requirement was therefore satisfied from an early stage.
COUNSEL: Q. “So you knew that the MRSA was causing a problem in the sense that it was slowing down your recovery?”
WITNESS: A “Yes.”
19. He had a very protracted and difficult recovery. Even if it had not been immediately conscious that his injury was significant, he had arrived at that realisation by the following March (i.e., March 2006) when, having been told about the television program, he contacted Mr Simon and, having initially been reticent to do so, instructed him to take up his medical records. His gave an explanation for doing so in the course of his evidence in chief:
It is clear that by this point the plaintiff had an appreciation that his injury was significant: in his own words he had been “through hell”, and so we can be sure that by March 2006 the s. 2(1)(b) requirement was satisfied.
COUNSEL: Q. “You said you wanted to get your medical records?”
WITNESS: A. “Myself and my girlfriend at the time had a brief conversation saying, like, you went through hell, like,.maybe you should go about it and find out what happened, why did you go through so much pain and so much suffering.”
COUNSEL: Q. “Right?”
WITNESS: A. “So I said there's no harm in getting my records. So I gave him the go ahead.”
20. In relation to the s.2(1)(c) requirement we are concerned with when the plaintiff appreciated, or ought to have appreciated, that his injury was attributable in whole or in part to the act or omission that is alleged to constitute negligence and breach of duty. Relating that to the facts of this case, it is when it was that he appreciated that the MRSA infection which had so protracted his recovery had likely been transmitted to him in the defendant’s hospital due to some inadequacy or insufficiency of infection control procedures. He was not required to be in a position to specify or identify the particular inadequacy or insufficiency of infection control procedures that had led to his acquiring MRSA in the defendant’s hospital – it was sufficient if he had “a broad knowledge of the causally relevant act or omission”.
21. Although the plaintiff gave evidence that Dr Murphy had sought to implicate the South Infirmary as being the source of his MRSA, the trial judge rejected his evidence in that regard and accepted Dr Murphy’s testimony that she had made no such suggestion. It was Dr Murphy’s evidence that she told the plaintiff on the 4th of October 2005 that it was her view “that he had acquired the infection in the hospital” (my emphasis), that it was “a hospital acquired infection.” On the plaintiff’s own evidence he appears not to have appreciated what he had been told by Dr Murphy, and indeed, as found by the trial judge, to have had a wholly inaccurate recall of what she said.
22. While some allowances might be made in that regard on the basis that he was very very ill at the time that this conversation took place, there seems little doubt but that the plaintiff’s solicitor Mr Simon, from the outset once he was instructed, understood that the plaintiff had acquired his infection in the Bon Secours hospital. It was Mr Simon’s testimony that the plaintiff told him that he had surgery for a bowel obstruction in the Bon Secours hospital and that “I picked up MRSA”. When cross-examined about this, he added “when he spoke to me on 20th of March 2006, he didn’t tell me ‘I was told I picked up MRSA in the Bon Secours hospital, but because he had been in the hospital I made that connection.”
23. The issue really is as to at what point did the plaintiff have sufficient information to be put on his enquiry as to whether his acquisition of MRSA could have been the result of some act or omission that is now alleged to constitute negligence or breach of duty – in broad terms that there had been some failure or inadequacy of infection control procedures. On that issue, I cannot agree with Irvine J that that point was when his medical records were received on the 17th of July 2006. Even if it was correct in principle to isolate that as the crucial date, and in the circumstances of this case I believe it is not correct to do so,, a point would in justice have to be stretched in plaintiff’s favour, allowing him and his solicitor at least some weeks to go through the material and assimilate it. The records in this instance comprised some 800 pages and the plaintiff and his solicitor would have required a reasonable time to go through them.
24. In any event, the transcript does not reveal whether those records contained anything to indicate that the plaintiff had been identified as a carrier of MRSA prior to, or upon, his admission to the Bon Secours hospital, although it is clear that they did contain a report of a swab test taken in the course of surgery on the 30th of September 2005 which later in the laboratory grew a heavy growth of MRSA. It is clear from the evidence that the records had been gone through by the 17th of August 2006 when Mr Simon wrote to Dr Cummins requesting a preliminary medical report, and that, as Irvine J specifically notes in her judgment, at that time Mr Simon was aware of the positive MRSA swab result.
25. Be that as it may, the crucial issue to my mind is whether there was sufficient information available to the plaintiff at that point to justify a concern in his mind that the MRSA infection that he acquired in the Bon Secours hospital was due to “some act or omission alleged to constitute negligence and breach of duty”, and to put him on his enquiry. I do not believe that there was. The plaintiff as a lay person, and even Mr Simon as a solicitor with some experience of MRSA cases (and I agree with the President’s comments about the characterisation of him as an “MRSA solicitor”), could not be imputed on the basis of the records alone with “a broad knowledge of the causally relevant act or omission”. Would the records have suggested to the plaintiff that, “because a swab was taken during my surgery, which later when cultured in a laboratory grew the MRSA bacterium, I must conclude that I might well have suffered my injury, ie., a raging post operative MRSA infection that significantly slowed my recovery from surgery, due to some inadequacy of hospital infection control procedures, or pre-operation infection screening procedures in the Bon Secours hospital?” There is no suggestion that the records would have told him, or his solicitor, or that they would have appreciated, that there were or ought to have been such procedures, much less have identified any failures or inadequacies in that regard. At most he would have been left with a vague suspicion that something had not been done right in his case, leaving him with a hospital acquired infection, but he would not have been able to know whether it was the hospital, or the surgeon, or both, had been responsible for his injury, whether a post operative MRSA infection might not be just an ordinary risk of major abdominal surgery (i.e., just one of those things that can arise) or, if not, what acts or omissions (even in general terms) of the responsible party or parties might have caused it and form the basis of a claim by him. In my view the single television program of which evidence was given, which the plaintiff only heard about second hand and did not see himself, and his subsequent conversations with Mr Kavanagh and Mr Simons, would not in themselves have provided a sufficient basis for imputing the required lnowledge to Mr O’Sullivan. That being so, learning of the existence of a lab report which, from the plaintiff’s layman’s perspective, would merely have confirmed that which he already knew, namely that his hospital acquired infection was MRSA, would not have advanced his state of knowledge.
26. The President makes the point that in some cases, and this is one of them, it may be reasonable for a plaintiff to seek expert assistance in understanding his medical records, not for the purposes of identifying specific negligence or breach of duty, but for the purpose of identifying broadly the causally relevant act or omission that resulted in his injury, where that cannot be otherwise imputed to him, or he cannot be fixed with constructive knowledge of it. Section 2 (2)(b) and s.2 (3)(a) of the Act of 1991, respectively, (set out at paragraph 5 of this judgment) make express provision for that. I agree with the President that this was such a case.
27. Accordingly, in my view, on the evidence, the s.(2)(1)(c) and (d) requirements were not satisfied on the 17th of July 2006 (or even by the 17th of August 2006), and were only satisfied when, the plaintiff having sought expert advice, Dr Scurr produced his report in May of 2008. The s. 2(1)(e) requirement does not arise on the facts of this case. While I accept that an argument can be made that an earlier date of knowledge might be imputed to the plaintiff, namely the date in February 2007 when Dr Cummins produced his preliminary report, I do not personally agree that such an argument is sustainable. It is not necessary to explain why I hold that view in circumstances where, regardless of whether the |February 2007 date, or the May 2008 date, is the date of knowledge, either date would mean that the plaintiff’s claim was not barred and would see the appeal being dismissed.
28. I would dismiss the appeal.