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Gough -v- Neary & anor
Neutral Citation:
[2003] IESC 39
Supreme Court Record Number:
High Court Record Number:
1998 13660 P
Date of Delivery:
Supreme Court
Composition of Court:
Hardiman J., Geoghegan J., McCracken J.
Judgment by:
Geoghegan J.
Allow And Vary
Judgments by
Link to Judgment
Hardiman J.
Geoghegan J.
McCracken J.

Hardiman J.
Geoghegan J.
McCracken J.
JUDGMENT delivered on the 3rd day of July 2003 by GEOGHEGAN J.

This appeal arises out of an action for damages for personal injuries in the High Court for negligence on the part of the defendants and in the case of the second-named defendant of his servants and agents in unnecessarily carrying out a hysterectomy on the plaintiff/respondent in the course of a birth delivery. The first-named defendant/appellant was the relevant consultant obstetrician and gynaecologist. The second-named defendant/appellant was sued in his capacity as trustee of Our Lady of Lourdes Hospital in Drogheda where the delivery took place. Judgment was obtained against both defendants in the High Court and they have appealed both on the grounds that a plea of statute bar was not upheld by the learned High Court judge and on the grounds that the damages awarded were too high. There is no separate issue involving the two defendants and, therefore, for convenience throughout this judgment I will refer mainly to the plaintiff and to Dr. Neary.

The unnecessary hysterectomy was carried out on the 27th of October, 1992. The action was not commenced until the 21st of December, 1998. Paragraph 8 of Dr. Neary’s defence contained the following plea:

    “… the plaintiff’s claim herein against the first-named defendant is barred by virtue of the operation of section 11 of the Statute of Limitations 1957.”

In an amended defence delivered on behalf of the second-named defendant the following plea is contained in paragraph 6:

    “The plaintiff’s claim herein against the second-named defendant is barred by virtue of the operation of section 11 of the Statute of Limitation 1957 as amended.”

The respective replies delivered to both defences in so far as they related to statute bar merely traversed the pleas in the defences. It is not in dispute that if the Statute of Limitations 1957 had remained unamended, this action would be clearly statute barred unless of course a case of concealed fraud could have been made. 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 IR 148 which approved the well-known English House of Lords decision in Cartledge v. E. Jopling and Sons Limited [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.

In relation to personal injury actions statutory reform came in this jurisdiction by way of the Statute of Limitations (Amendment) Act, 1991 and that is the Act on which the plaintiff relies for the purposes of escaping statute bar. In the time honoured fashion large parts of the wording of the 1991 Act are copied directly from the English Limitation Act, 1980. But for reasons which I will explain in the course of this judgment I am of opinion that the similarities are in wording rather than in substance and that there are important differences between the Irish 1991 Act and the English 1980 Act which render it unsafe to attach too much significance to English case law interpreting provisions in the 1980 Act which might be similar in wording to provisions in the Irish Act.

The statutory provision on which the plaintiff relies is contained in section 3(1) of the 1991 Act. That subsection reads as follows:

    “An action, … 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 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.”

The meaning of the expression “date of knowledge” is given in section 2 of the Act. That section reads as follows:

    “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.

The issues which arise on the statute bar question in this case are both correctly stated and placed in a correct context in the written submissions lodged in this court on behalf of the plaintiff. It is not in controversy that the action is not statute barred if there was an absence of relevant knowledge on the part of the plaintiff within the ordinary statutory period of either of the following facts.

(1) That she “had been injured” within the meaning of the 1991 Act or (2) that the “injury” was attributable in whole or in part to “the act or omission” which was “alleged to constitute negligence” on the part of Dr. Neary.

The problem is that the words and phrases in quotation marks are capable of more than one meaning. The first requirement of knowledge of the injury itself is a novelty in the Irish Act and is not copied from the English legislation. Even though the learned trial judge seems to have taken a different view, I do not think that it was seriously contested at the hearing of this appeal that the word “injured” in section 2(1)(a) of the 1991 Act has to be given a meaning which is cognate to the expression “personal injuries” defined though not comprehensively in the Statute of Limitations, 1957. However, in the opinion of Barr J. expressed in Maitland v. Swan Professional Negligence Law Reports 1968-1993 p. 368 and with which I agreed in an unreported judgment of mine in the High Court in Maguire v. Smithwick delivered the 27th of June 1997, the “injury” must be a non-consensual injury. There may be nuances of difference between the views expressed by Barr J. and my own views as expressed in the Maguire case as to what would be covered by such an expression and although I am still satisfied that my decision in the Maguire case was correct, I would be very much open to argument as to whether I correctly stated the general principle. Each individual case throws up its own facts and my comments on the relevance of side effects may not fit neatly into every case. Indeed, in this particular case the following bold assertion is made in paragraph 9 of the written submissions on behalf of the plaintiff:

    “A life saving hysterectomy is a ‘curative medical operation’ in our submission and ‘absolutely necessary damage caused in a medical operation’ and is not a ‘side effect of a damaging nature’.”

I would have very considerable doubts about the validity of this submission but as I believe that the plaintiff must succeed on the second aspect of knowledge for reasons which I will be expounding in some detail I do not find it necessary to express a definitive view as to when the plaintiff had knowledge of an injury for the purposes of the 1991 Act.

I move therefore to the second “knowledge” issue. This arises out of section 2(1)(c) of the 1991 Act and there is an identical equivalent provision in the English Limitation Act, 1980 (a consolidating Act) which in turn was derived from the English Limitation Act, 1975. What was the “act or omission” which was “alleged to constitute negligence” in this case? The plaintiff in the written submissions at paragraph 11 puts it quite simply.

    “The act which constitutes negligence in this case is this: the performance of an unnecessary hysterectomy.”

At the hearing of this appeal Mr. Meenan, S.C. counsel for Dr. Neary argued forcefully that that statement cannot be correct because he says that if it is correct there is a breach of the so called “proviso”. The “proviso” to which he is referring is contained in the last two lines of section 2(1) of the 1991 Act. Those lines read as follows:

    “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.”

Mr. Meenan says that knowledge that the hysterectomy was unnecessary is irrelevant in that, in his submission, it is the same thing as knowledge that the surgeon’s acts did, as a matter of law, involve negligence.

Mr. Nugent, S.C. counsel for the plaintiff, no doubt out of some apprehension that this submission of Mr. Meenan’s might fall on fertile ground reformulated the alleged deficiency in the plaintiff’s relevant knowledge. Mr. Nugent while conceding that obviously the plaintiff knew at all material times that a hysterectomy had been carried out argued that that knowledge was not enough in that she did not know that she was not in point of fact bleeding to death. The evidence was that Dr. Neary had explained to the plaintiff that she had lost so much blood that he had never witnessed anything like it, that her life had been in danger and that he, Dr. Neary, had saved her life by the performance of the hysterectomy. This alternative formulation of his argument by Mr. Nugent is superficially attractive and at one stage I was certainly tempted to accept it. But on reflection I have come to the conclusion that I must resist any such temptation. Knowledge of whether bleeding in a particular given situation was sufficient or not sufficient to justify a hysterectomy is the kind of detailed medical knowledge which, on the English authorities (and in this respect I agree with them), was not intended by the legislation. One can argue indeed that the legislation was primarily designed to help lay people who could only be expected to have a very general knowledge of what might or might not have caused a mishap to them. I would prefer to return to the original formulation by the plaintiff contained in the written submission. In my opinion, it does not make sense to argue, as Mr. Meenan does, that the only knowledge required was the knowledge that a hysterectomy was carried out plus the pieces of information given to the plaintiff at the time. It is essential to place this in context. If, as was the case, the plaintiff was led to believe that the hysterectomy was absolutely necessary to save her life, then, the question of litigation could not even remotely arise. The important gap in her knowledge was that the hysterectomy was unnecessary and that in the context that the plaintiff had been assured that it was absolutely necessary. To have knowledge that an operation was unnecessary is not the same thing as knowledge that in proceeding to carry out the operation, the tort of negligence was committed. There may be all sorts of circumstances where an unnecessary medical procedure is regrettably carried out but where, for one reason or another, there was no actionable negligence on the part of the defendant who is sued or indeed in some instances on the part of anyone. Negligence and unnecessariness are not synonyms. Indeed, even if they were, the ordinary English word “negligence” is not necessarily the same thing as the tort of negligence. Yet the so called proviso refers to acts or omissions which did or did not “as a matter of law” involve negligence.

The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail.

I am conscious, however, that Mr. Meenan would argue and, indeed, did argue that my approach is contrary to the English authorities. In deference to Mr. Meenan’s strong submissions in relation to the English body of case law (which includes cases not cited) I intend to review some of the English cases as briefly as I can.

Chronologically, the first case relied on by Mr. Meenan was Broadley v. Guy Clapham & Co. [1994] 4 All ER 439. That was a case where a plaintiff had a knee operation to remove a foreign body. The Court of Appeal held that a person who alleged that medical negligence had occurred in the course of a surgical operation was fixed with a cause of action for the purposes of the equivalent provision of the English 1980 Act when he knew or could have known with the help of medical advice reasonably obtainable that his injury had been caused by damage resulting from something done or not done by the surgeon during the operation. Knowledge detailed enough to enable a statement of claim to be drawn up was not required to start the period running and on the facts of that case the court held that it was clear that within a year of the operation the plaintiff had both “broad knowledge” that the operation had caused an injury to her foot and “specific knowledge” that the operation had been carried out in such a way as to damage a nerve in her leg thereby causing foot drop. It is unnecessary to go beyond that brief summary to demonstrate that it is a wholly different case from the case, the subject of this appeal. But Mr. Meenan’s reliance on it largely relates to the observations of both Leggatt LJ and Hoffmann LJ to the effect that the only function of the words “which is alleged to constitute negligence” is to point to the relevant act or omission to which the injury was attributable. In other words they are words of identification only. Subject to qualifications to which I will refer I do not quarrel with that view and, indeed, I had endorsed it in my judgment in the Maguire v. Smithwick case cited above.

The next English case cited by Mr. Meenan is probably the one on which he places most reliance. It is Dobie v. Medway Health Authority [1994] 4 All ER 450. In that case an unnecessary mastectomy had been carried out on the plaintiff in the belief that she had a malignant lump in her breast whereas in fact it was benign. For a long time it did not occur to the plaintiff that the surgeon was negligent and she accepted the view of the surgeon that she was fortunate that the growth had not proved to be malignant. After she had heard of a similar case she realised for the first time that her breast need not have been removed until a microscopic examination of the lump had been carried out. In the leading judgment Sir Thomas Bingham MR (as he then was) upheld findings of fact made by the High Court judge and went on to observe as follows:

    “The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she, at all times, reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributable to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority’s act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run.”

Some of the wording in that passage is in my view somewhat unfortunate because, for instance, the relevant section (which is the same as the Irish provision in this respect) does not contain either the word “negligent” or the word “blameworthy”. What is irrelevant under the statutory provision is knowledge that the act or omission did or did not as a matter of law (my emphasis) involve “negligence, nuisance or breach of duty”. Those three words are plainly intended as being the names of torts. The important factual matter in the Dobie case is that at a very early stage the plaintiff knew that the growth was in fact benign. Therefore, there was immediately the possibility that the removal of the breast was unnecessary. There is no equivalent state of affairs in this case.

But at any rate Dobie has been explained (I would almost say explained away) by Hoffmann LJ in delivering a judgment of the Court of Appeal in which he was sitting with Sir Thomas Bingham MR and Saville LJ. The case which was cited at the hearing of this appeal is Hallam-Eames v. Merrett Syndicates Limited [1995] 7 Med LR 122. Commenting on Dobie at p. 125 of the report Hoffmann LJ said the following:-

    “In Dobie the plaintiff was admitted to hospital for the removal of a lump in her breast. The surgeon who excised the lump formed the view that it was cancerous and removed the breast. Afterwards on microscopic examination the lump turned out to be benign. She knew shortly after the operation that the breast had been removed before the microscopic examination but was not advised until seventeen years later that it may have been negligent to do so. Again, this court held that she knew enough at the earlier stage to satisfy section 14(1)(b).”

Hoffmann LJ goes on to refer to the interpretation of the trial judge in Hallam-Eames, Gatehouse J., of the judgments in the Dobie case and the earlier case of Broadley, Gatehouse J. had, in the view of Hoffmann LJ, interpreted those cases to mean that a plaintiff need only have known that his damage had been caused by an act or omission of the defendant. Hoffmann LJ goes on to observe:

    “In our judgment this is an oversimplification of the reasoning in Broadley and Dobie. If all that was necessary was that a plaintiff should have known that the damage was attributable to an act or omission of the defendant, the statute would have said so. Instead, it speaks of the damage being attributable to ‘the act or omission which is alleged to constitute negligence’. In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence. There may be many acts, omissions or states which can be said to have a causal connection with a given occurrence, but when we make causal statements in ordinary speech, we select on common sense principles the one which is relevant for our purpose.”

Further on the following observation appears in the judgment.

    “It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know ‘the essence of the act or omission to which the injury is attributable’ (Purchas LJ in Nash v. Eli Lilly & Co. [1993] 1 WLR 782, 789) or ‘the essential thrust of the case’ (Sir Thomas Bingham MR in Dobie [1994] 1 WLR 1238) or that one should ‘… look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based’. (Hoffmann LJ in Broadley …)

    If one asks on common sense principles what Mrs. Dobie was complaining about, the answer is that the surgeon had removed a healthy breast. It would in our view be a seriously incomplete statement of her case to say that it was simply that the surgeon had removed her breast. This is not a matter of elaborating the detail by requiring knowledge of precisely how he had come to do the act complained of, such as this court rejected in Broadley. It was part of the essence of her complaint. Nor is it requiring knowledge of fault or negligence. The court’s emphatic rejection of such a requirement is entirely consistent with characterising the act complained of (and of which knowledge was therefore required) as the removal of a healthy breast. But the judge, as it seems to us has read Dobie to mean that knowledge that the surgeon had removed her breast would have been enough.

    If one asks what is the principle of common sense on which one would identify Mrs. Dobie’s complaint as the removal of a healthy breast rather than simply the removal of a breast, it is that the additional fact is necessary to make the act something of which she would prima facie seem entitled to complain. She was suspected of having a cancerous lump and if this had been the case, the removal of her breast would not have been a matter for complaint.”

It is appropriate to pause at this stage in the review of the English case law and consider those principles in relation to this particular case. 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 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. As I have already mentioned the fact that the hysterectomy was unnecessary does not necessarily mean there was negligence and, therefore, knowledge that the hysterectomy was unnecessary is not “irrelevant” under the last part of s. 2.

Mr. Meenan also relied on Forbes v. Wandsworth Health Authority [1996] 3 WLR 1108. In that case the plaintiff’s leg had been amputated following two unsuccessful bypass operations performed at the defendants’ hospital. Ten years later the plaintiff received medical advice that the amputation was attributable to an omission to perform the second bypass operation earlier. The trial judge held that the plaintiff had no actual or constructive knowledge of the omission within the meaning of s. 14 of the Limitation Act, 1980 until he received the medical advice and that, therefore, the action was not statute barred. The Court of Appeal, Stuart-Smith, Evans and Roch L.JJ. (Roch L.J. dissenting) allowed the appeal but only on the grounds that on the facts of that case the plaintiff would have had constructive knowledge. In my view, therefore, the case is not particularly helpful if helpful at all to Mr. Meenan. In fact on the aspect of actual knowledge there is a significant passage in the judgment of Stuart-Smith LJ at 115 which is worth citing.

    “In many medical negligence cases the plaintiff will not know that his injury is attributable to the omission of the defendant alleged to constitute negligence, in the sense that it is capable of being attributable to that omission, unless he is also told that the defendant has been negligent. But that does not alter the fact that there is a distinction between causation and negligence; the first is relevant to section 14(1), the second is not. The fact that in such cases it may be necessary for the plaintiff also to know of the negligence before he can identify the omission alleged to have been negligent is nothing to the point. It does not mean that he falls foul of the closing words of section 14(1). For these reasons, I consider that the judge was correct in holding that there was no actual knowledge.”

I am in complete agreement with that passage. It would seem to me that as a matter of common sense certain facts which in so far as they might be referred to for the purposes of establishing that the tort of negligence was committed, would be irrelevant might nevertheless be relevant for the purposes of establishing causation or more accurately attributability for the purposes of s. 2(1)(c). It has been pointed out in a number of English authorities though not I think the particular cases cited in this appeal that “attributable” must be given the meaning potentially attributable if the section is to be workable. This would seem to me to be probably correct but makes no difference to the “overlap” point referred to by Stuart-Smith LJ.

Since the hearing of this appeal it has come to my notice via the internet that there are quite a number of later English cases relevant to this limitation provision. As in a broad way they range over the same issues which have been debated at the hearing of this appeal I think that I can safely refer to a few points in them without introducing any new matter that has not been the subject of argument before this court. The principal authority to which I want to refer is Spargo v. North Essex District Health Authority 37 BMLR 99 and the judgment of the Court of Appeal (Nourse, Brooke, Waller LJJ) delivered the 13th of March, 1997. The judgment of the court is the judgment of Brooke LJ in which he asks himself the rhetorical question, what does the law require in order that actual knowledge is established? He observes that “this branch of the law is already so grossly overloaded with reported cases, … that I see no reason to add to the overload by citation from earlier decisions.” He then cites a large number of the reported cases and draws from them certain principles. I think it important to mention this because these principles have ever since been regularly referred to in later English judgments and have almost been interpreted as though they were statutory. As formulated by Brooke LJ they are as follows:

    “(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.”

One of the judges in a later case observed that while this summary of the case law by Brooke LJ was helpful up to a point, the application of the four principles in a given case was by no means easy. Certainly, there is no merit in my view in casting them as stone. But I do think that on the facts of this particular case the first of Brooke LJ’s principles is relevant. The plaintiff would have to know or be expected to know that the hysterectomy was unnecessary before she could be said to have “a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable”. I am, of course, referring to the context in which the hysterectomy was carried out in this case. I am not referring to a situation where a particular operation was carried out negligently which would be quite different.

There are a number of English cases on the subject of more recent origin. One of them is Sniezek v. Bundy (Letchworth) Limited (Court of Appeal unreported judgment delivered 7th of July, 2000). I mention this case for two reasons. First of all, it is an example of quite a number of English cases in which the judges of the Court of Appeal have clearly regarded the summary of the case law given by Brooke LJ in the Spargo case, cited above as being correct and that the principles as set out by him were applicable. But of interest also is the following passage contained in the judgment of Judge LJ:

    “The word (knowledge) has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context ‘knowledge’ clearly does not mean know for certain and beyond possibility of contradiction.’ It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence’, suspicion particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.”

Again, in Chaplin v. Moss in an unreported judgment delivered on the 17th of July, 2001 by Mr. R. Marrey Q.C. (sitting as a deputy judge of the High Court) the Spargo case and in particular those principles set out by Brooke LJ were taken as the correct principles to apply in relation to “knowledge”. Yet again in Mirza v. Birmingham Health Authority Eady J. in an unreported judgment of the 31st of July, 2001 in the Queen’s Bench Division observed as follows:

    “It is probably now unnecessary to go further than applying the guidance afforded by Brooke LJ in North Essex District Health Authority v. Spargo [1997] 8 Ned LR 125, 129-130 in the light of the earlier authorities he there reviewed”.

The judge then sets out those principles already cited.

In a further judgment of the Court of Appeal in Rowbottom v. Royal Masonic Hospital 65 BMLR 103, it was held that the question for the court was when had the appellant known that his injuries were capable of being attributed to something done, or not done by the staff of the defendants’ hospital? Again, the court was purporting to apply the principles as set out in Spargo. There is no doubt that that case is now the “gospel” in England as far as this branch of the law is concerned.

For the reasons which I have indicated, I think that the plaintiff in this case did not have the relevant “knowledge” under the principles set out in Spargo within the ordinary statutory period. But even if I am wrong in my view that the plaintiff is entitled to rely on Spargo, I would still be of opinion that the plea of statute bar must fail. While the English cases are obviously of some assistance they must be read and interpreted with caution. There are two important reasons in particular why this is so. First of all in the English Act there is a special definition relating to what in the Irish Act is the second requirement i.e. knowledge that the injury is significant. Secondly, there is a special provision in the English Act which allows the court in certain circumstances to extend the limitation period as a matter of discretion even though the case would otherwise be statute barred. There is no doubt that on a careful reading of a number of the judgments this latter fallback provision has had some effect on the way the courts have interpreted and applied the “knowledge" provision.

Notwithstanding Mr. Meenan’s forceful submissions therefore, I am firmly of the view that the relevant knowledge in this case included knowledge that the operation was unnecessary and that knowledge did not exist more than three years before the commencement of the action. I, therefore, believe that the plea of statute bar must fail and in that respect I would dismiss the appeal.

I turn now to the second aspect of the appeal which relates to the amount of the damages awarded. The defendants/appellants submit that the award of €250,000 for general damages was excessive, to an extent that this court should interfere. The appellants in criticising the amount of the damages primarily rely on three decisions of this court namely, Gillick v. The Rotunda Hospital an ex tempore judgment of the Supreme Court delivered the 15th of May, 1998; Rossiter v. Dún Laoghaire Rathdown County Council [2001] 3 I.R. 578 and Fitzgerald v. Treacy [2001] 4 I.R. 405. The respondent on the other hand primarily relies on the High Court judgment of Morris P. in Kealy v. The Minister for Health [1999] 2 I.R. 456.

There is no doubt that as a matter of fact what happened to the respondent was devastating. As a consequence of the negligence of Dr. Neary she was never going to be able in the future to give birth to a child and at the time of the hysterectomy she was just under twenty-eight years of age. As is the case so often with serious personal injury, in one sense, no money could compensate the respondent. But the learned High Court judge nevertheless was obliged to arrive at a figure and to do so by reference to the kind of damages that would normally be awarded for other injuries that might be more or less serious. It is clear now that the test to be applied by this court as to whether it will alter an award of damages either upwards or downwards is a test of proportionality as explained in the judgment of Fennelly J. in this court in the case of Rossiter v. Dún Laoghaire Rathdown County Council cited above. At p. 583 of the report Fennelly J. said the following:

    “The more or less unvarying test has been, therefore, whether there is any ‘reasonable proportion’ between the actual award of damages and what the court, sitting on appeal, ‘would be inclined to give’.”

The words of the inner quotations were taken from Palles CB in McGrath v. Bourne (1876) I.R. 10 C.L.160. The “twenty-five per cent discrepancy” test suggested by McCarthy J. in Reddy v. Bates [1983] I.R. 141 at 151 was merely a useful pragmatic rule of thumb. The points on which the appellant primarily relied were that while the plaintiff was undoubtedly upset by her loss of capacity to reproduce coupled with a sense of guilt she was nevertheless able to continue with her normal activities looking after her husband and her child and keeping down a responsible job. Although she had her operation as far back as October, 1992 she never came under the care of a psychiatrist until October, 1999. By that stage she had issued High Court proceedings by a plenary summons dated the 21st of December, 1998. She had undoubtedly been under the care of different GPs and had some counselling from a psychologist. In the written submissions it is pointed out that the evidence of Dr. McCarthy, a competent psychiatrist was to the effect that the plaintiff was likely to make a full recovery when she perceived that “justice had been done”. This seems clear from Dr. McCarthy’s answers under cross-examination.

The respondent on the other hand strongly challenges what she perceives as an underplaying of her injury. I think it useful here to reproduce a list of ill-effects relied on by the respondent and in respect of which transcript references are given in the written submissions. As listed in the written submissions they are as follows:

    “(a) She had major surgery unnecessarily.

    (b) She thereby lost her ability to have children.

    (c) She was devastated by this.

    (d) She had a sense that this was caused by something she had done wrong.

    (e) She was unable to sleep.

    (f) She felt like crawling into a hole.

    (g) She had irrational feelings that if she lost her womb she could lose her son.

    (h) She could not think.

    (i) She did not ‘feel like a woman’.

    (j) She had a sense of guilt about the way she was feeling.

    (k) The counselling she received was of no help to her.

    (l) Her external appearance of getting on with her life masked an internal turmoil.

    (m) She assumed a guilt about the patients of the defendant who has hysterectomies after hers.

    (n) In 1998 when she heard that the defendant was being investigated for carrying out unnecessary hysterectomies she ‘just cried and cried’.

    (o) She had been on medication since 1998.

    (p) She required psychiatric help.

    (q) She was ashamed to admit depression in case she would be deemed unfit to mind her son.”

Even if one is to view the respondent’s injuries and ill-effects exclusively in the way she and her lawyers see them, I do not find it possible to justify an award of €250,000 having regard to the levels of award in relation to different types of physical injuries. The learned High Court judge arrived at that figure by awarding €150,000 for general damages to date together with another €100,000 for pain and suffering into the future. Without in any way minimising the respondent’s injuries and ill-effects they do not, in my view, compare with physical injuries of a kind that would attract that kind of damages. I say this without having any regard to a Sinnott v. Quinnsworth “cap” and I will return to that matter as it featured at the hearing. I am simply considering what would be a reasonable figure for general damages without reference to any maximum figure which might be allowed in particular types of cases. In my opinion €200,000 is the maximum figure which would be reasonable in the circumstances. Bearing in mind and paying respect to the view which the learned High Court judge took after having had the benefit of seeing the respondent in the witness box etc., I would not interfere with the amount of €150,000 damages for pain and suffering to date but I consider that having regard to Dr. McCarthy’s evidence in particular, a figure of €50,000 is appropriate for pain and suffering in the future. I should mention that in this case the special damages are relatively low being a sum of €23,223.27. I would, therefore, allow the appeal on quantum to the extent of reducing the award for general damages of €250,000 to an award of €200,000. The total award would, therefore, be €223,223.27.

I have already made it clear that in arriving at that figure I am not having regard to the so-called “cap” figure which is awarded as a maximum for general damages in certain types of cases. But as there appears to be confusion and ambiguity about whether the maximum figure for general damages suggested in Sinnott v. Quinnsworth but now updated applies in all cases of personal injury irrespective of whether there are high special damages or not, I would like to make some observations of my own. In suggesting that it applies to all cases the appellant especially relied on the judgment of the Chief Justice in the decision of this court in Fitzgerald v. Treacy cited above. Although, through an error I am not named in the head note, it can be seen from the report itself that I sat on that court and I recall the case. I have always understood that the principle of the “cap” first enunciated in Sinnott v. Quinnsworth Limited [1984] ILRM 523 applied only to very substantial damages cases where there was a high element of special damages particularly loss of earnings. I do not think that it was ever intended in Fitzgerald v. Treacy to extend the principle to every case of general damages. The “cap” figure was undoubtedly considered relevant by this court in considering what was the appropriate damages in the particular case and what the Chief Justice would have had in mind was that the question of the “cap” arises in the case of what he called “catastrophic” injuries which result in high special damages but which also by necessity would attract high general damages. As far as I can recall there was never an issue in that case as to whether capping had to be applied in a case of low special damages but substantial general damages. Such a principle would certainly be an extension of the original rule enunciated by O’Higgins C.J.

To understand the principle it is necessary to go back to Reddy v. Bates [1983] I.R. 141. Griffin J. at p. 148 said the following:

    “The fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded… In a case of this nature where damages are to be assessed under several headings, the jury, having added the various amounts awarded and having arrived at a total figure for damages, should consider the total sum (as should this court on any appeal) for the purpose of ascertaining whether the total sum is, in the circumstances of the case, fair compensation for the plaintiff for the injury suffered or whether it is out of all proportion to such circumstances. In my view, the income which that capital sum would generate with reasonably careful and prudent investment is a factor which the jury (and this court on appeal) should take into consideration in arriving at a conclusion in this behalf.”

O’Higgins C.J. after citing that passage in his judgment in Sinnott v. Quinnsworth goes on to point out that the injury which the plaintiff Sinnott had suffered had changed him from being an active healthy young man on the threshold of adult life into a helpless dependent paralysed being conscious of what he has lost and facing a bleak uncertain and limited future. The former Chief Justice went on to observe as follows:

    “To talk of compensating him for such a terrible transformation is to talk of assaying the impossible.”

I do not want to lengthen this judgment unnecessarily by giving the full quote from the judgment of O’Higgins C.J. but it is sufficient to state that he formed the view that a limit of €150,000 should be applied to the general damages “in a case of this nature”. But the words that precede that opinion make it perfectly clear that he is talking of a case where all the future needs etc. of the plaintiff had been covered by special damages.

In my view, Morris P. correctly stated the position in Kealy v. Minister for Health cited above at p. 458. He said the following:

    “It may well be that the Tribunal considers that the maximum award available to it in respect of personal injuries was the sum of £150,000 to which reference is made in, among other cases, Sinnott v. Quinnsworth Ltd. [1984] I.L.R.M. 523. In my view, the cap on general damages to which the Supreme Court refers in that and other cases has only limited relevance to an award of this type. In his judgment O'Higgins C.J. makes reference to the fact that in Sinnott v. Quinnsworth Ltd. and indeed other cases of that nature where there are very large sums awarded for loss of earnings, medical care, house renovations etc., the court should have regard to the total of the sums when considering whether the award is fair and reasonable.”

The former President goes on to refer to the passage from the judgment of Griffin J. in Reddy v. Bates already referred to and pointed out that in the Kealy case there was no “omnibus sum” to be taken into account.

I do not believe that there is any inconsistency between Kealy v. The Minister for Health and Fitzgerald v. Treacy. Indeed, the present Chief Justice refers to Kealy in the Treacy case. In my view, there is no compulsory “cap” if there is no “omnibus sum” or in other words if the special damages are low. On the other hand that does not mean that the “cap” figure cannot be taken into account in a general way in assessing the appropriate general damages in a non-cap case. In my view, that is what was done in Fitzgerald v. Treacy. But as I have already made clear, irrespective of whether one takes the “cap” figure into account or not the figure for general damages awarded by the learned High Court judge is in my view disproportionately high and I would reduce it to €200,000.

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