Court of Appeal: Man who contracted MRSA in 2005 is not statute barred from pursuing damages

About this case:

• Judgment:
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The Hospital argued that the personal injury summons issued in 2008 was statute barred pursuant to the Statute of Limitations (Amendment) Act 1991, however the Court of Appeal in a 2:1 majority dismissed the Hospital’s appeal and upheld the finding of the High Court that the clock did not start ticking until after 2007 when a medical report was furnished.

Background

Mr Oliver O’Sullivan contracted MRSA while he was undergoing surgery in the Bon Secours Hospital in Cork on 20th September 2005.

On 19th August 2008, he issued a personal injury summons claiming damages from the hospital and other defendants.

Pursuant to the Statute of Limitations (Amendment) Act 1991, as amended by s. 7(a) of the Civil Liability and Courts Act 2004, the relevant limitation period for this action was two years from the accrual of the cause of action or from the date of knowledge, if later.

If, as argued by the hospital, the starting point was the contraction of the disease, the summons would have been out of time by some 11 months.

The question before the Court concerned the date of knowledge provisions in s. 2 of the Statute of Limitations (Amendment) Act 1991.

In the High Court, President Kearns identified the date of knowledge as the 22nd February 2007 when Mr O’Sullivan’s solicitor received Dr Cummins’s preliminary report following consideration of the records. As such, Mr O’Sullivan’s claim was not statute barred.

Court of Appeal

Delivering the leading judgment of the Court, President Ryan was satisfied that Mr. O’Sullivan took all reasonable steps to obtain advice as required by s. 2(3)(a). Geogh v Neary 3 I.R. 92 and Cunningham v Neary IESC 43; and Farrell v Ryan IECA 281 considered.

Considering the hospital’s submissions, President Ryan asked whether it was “enough that Mr. O’Sullivan had been alerted to the fact that other people who contracted MRSA in hospitals had brought claims; that he had consulted Mr Kavanagh who put him in touch with Mr. Simon, a solicitor dealing with MRSA cases; that he had looked for his hospital records; that Mr. Simon had written on his behalf in the terms quoted; and that he had made the statements above quoted?”

President Ryan stated that such arguments put forward by the hospital were not a “correct application of the terms of the section; neither are they consistent with the jurisprudence in Ireland and England. Thinking that you might have a claim is not knowledge that you have a claim. Still less, is it actual knowledge that your claim is based on a causal connection that you understand to exist between acts or omissions of the defendant and the injury that you sustained”.

Accordingly, President Ryan stated that the High Court judge was correct to dismiss the motion.

Furthermore, while noting that it did not change the outcome of the appeal, President Ryan added that he disagreed with the date of knowledge identified in the High Court, i.e. 22nd February 2007 when Mr O’Sullivan’s solicitor received Dr Cummins’s report. On this point, President Ryan stated that he “would go further and say that it was the receipt of Professor Scurr’s report” on 16th May 2008 “that provided the last piece or pieces of the jigsaw of required information”.

In a concurring judgment, Justice Edwards agreed with President Ryan in finding that the appeal should be dismissed and that Mr O’Sullivan’s claim was not barred.

Dissenting judgment

In a dissenting judgment, Justice Irvine stated that she would allow the appeal, finding that “it could be said in nearly every case that proceedings may be postponed until the delivery of an expert report, regardless of the interval between knowledge of the injured party and the circumstances in which it was sustained.”

As such, according to Justice Irvine, “there was no legal or evidential basis upon which the trial judge could have concluded that Mr. O’Sullivan’s knowledge of the facts required by s. 2(1) of the 1991 Act were only capable of being ascertained with the assistance of expert advice from Dr. Cummins. Likewise, there was no legal or evidential basis for the trial judge’s conclusion that Dr. Cummins’ report had provided Mr. O’Sullivan with knowledge of the facts required to trigger the statute under s. 2(1)”.