knowledge 24 July 2019 |

Supreme Court Rules Expert Advice Can Stop the Limitations Clock in Certain Circumstances

Background

In Green v Hardiman,¹ the plaintiff had an operation in December 2007 during which his bowel was accidentally perforated.  Standard checks for perforation were not done and the perforation was undiscovered.  The plaintiff became ill and he had two subsequent surgeries, consequent on which he developed a hernia during 2008.  In January 2009, the plaintiff was examined by a new surgeon, who did not have sight of the plaintiff’s earlier hospital notes.  Absent knowledge of the perforation, the surgeon’s advice was the hernia was due to natural causes and no new treatment was advised.  In January 2011 the plaintiff consulted a solicitor, who received the plaintiff’s hospital records on 31 March 2011.  A report from an expert was received on 3 May 2012, which gave evidence that the failure of intervention on the bowel perforation and testing for perforation in December 2007 were the cause of the plaintiff’s subsequent health problems.  Proceedings were issued on 7 August 2012.

Statutory Limitation Period

Section 3 of the Statute of Limitations (Amendment) Act 1991 provides a plaintiff has two years to bring an action for a personal injury.  For undiscovered injuries, the period runs from the date of “knowledge”, meaning, as set out in section 2, when the plaintiff first had knowledge of the identity of the defendant, the fact of significant injury, and that the injury was allegedly attributable in whole or in part to a negligent act of the defendant.  The key issue for the court to resolve was the date on which the plaintiff had “knowledge” for the purposes of section 3 of the 1991 Act and the two year limitation period started to run.  The plaintiff put the date of knowledge on 3 May 2012 while the defendant argued the claim was statute barred.

Approach Taken

Charleton J referred to his judgment on undiscovered injuries in O'Sullivan v Bon Secours Hospital.² In that judgment, Charleton J’s approach was that the date of knowledge started once the plaintiff knew both of the injury and that it was attributable to the defendant in broad terms.  It was not necessary for the plaintiff to have knowledge that this attribution constituted legal negligence in law.  In the present case, he identified the core issue as being at what stage a plaintiff might have such broad knowledge from the facts known to them, or might reasonably have been expected to acquire such facts, from either facts knowable to them or on the basis of consulting an expert.

On the facts before him, Charleton J took the view that the plaintiff had not failed to make reasonable inquiries on the cause of his injury but rather was turned in the wrong direction consequent on professional advice.  It was only later, following the inquiries made by his solicitor and the expert opinion then obtained, that it became reasonable for the plaintiff to act.

Commentary

This decision presents an interesting development the role of professional advice.  As set out in a concurring judgment by O’Donnell J, there is a broad spectrum for "knowledge" in cases of medical negligence and cases can fall further and closer to a dividing line.  Here, the crucial factor in placing the plaintiff on the right side of the limitations line was that he had sought medical advice in January 2009 and been told his health issues were unrelated to his December 2007 surgery.  In the judgments of both Charleton and O’Donnell JJ, the plaintiff being turned in the wrong direction by professional advice was key to him not having knowledge for the purposes of section 2 of the 1991 Act in January 2009.  Both judgments discuss how it would have been unrealistic to expect the plaintiff to immediately question the professional advice and that it was reasonable for him to take time before approaching a solicitor.

As a practical consequence, the two year limitation period for an injury incurred in December 2007 did not start to run until four and a half years later in May 2012 and would not have expired until May 2014.  The importance of professional advice to a plaintiff is clearly seen here, as the impact of the incorrect advice was effectively to extend the limitation period for the plaintiff for a number of years.  This extension shows the court’s recognition of the significant degree of reliance that is placed on professional advice by plaintiffs, particularly in cases of undiscovered injuries.

How we can help 

The Litigation and Dispute Resolution Group at McCann FitzGerald has significant experience of providing strategic advice to plaintiffs and defendants on limitation and other procedural issues in litigation. 

Your usual contact in McCann FitzGerald would be happy to provide further information.