High Court: Specific diagnosis of back injury not necessary for personal injury claim

About this case:

• Citation:
  [2018] IEHC 486
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Donald Binchy

Background

In January 2013, prison officer Robert Mullins was involved in a ‘control and restraint’ incident which involved removing a prisoner to hospital. In the course of restraining and then picking the prisoner up from the floor, Mr Mullins claimed that he injured his back, and was immediately brought to the surgery in the prison where he was seen by a nurse. Upon seeing his own GP he was certified unfit for work for ten days.

Mr Mullins had previously had back problems, and in a report from his GP in July 2015, it was stated that the incident at work had aggravated his pre-existing lumbar disc disease which had been identified in June 2012. Mr Mullins continued to attend his GP with back pain, taking medication and getting physiotherapy, but by October 2013 his condition worsened and he ‘had great difficulty in walking’.

In November 2014, Mr Mullins was referred to specialist Mr Poynton, who wrote a report which dealt with Mr Mullins’ pre and post-accident condition. Mr Poynton had first treated Mr Mullins in August 2012, at which point he recommended an epidural steroid injection. Mr Poynton’s evidence was that Mr Mullins’ condition improved considerably after this, losing weight and returning to training – but that he was ‘injured during the course of his occupation’ in January 2013, developing right sided leg pain which was a new symptom. Mr Poynton said that the symptoms did not respond to treatment, and that an MRI scan showed a new ‘large right sided disc protrusion’.

Mr Poynton stated that Mr Mullins could not have had any awareness prior to November 2014 that his injury was significant, requiring surgery, nor would he have ‘gained knowledge of the extent of his symptoms until his pain had recurred and an MRI was performed’.

In March 2016, Mr Mullins, as a litigant in person, issued the present proceedings by way of plenary summons. He then served a statement of claim in July 2016. Mr Mullins had previously made an application to the Injuries Board, but the State defendants (the Irish Prison Service, the Minister for Justice and Equality, and Ireland) declined to have the claim dealt with by the injuries Board.

Claim statute barred

In June 2017, the State defendants issued a notice of motion seeking, inter alia, orders dismissing Mr Mullins claim on the grounds of being statute barred pursuant to the Statute of Limitations Act 1957, as amended and/or pursuant to the Civil Liability Act 1961.

Mr Mullins accepted that the incident in January 2013 was clearly defined, that he completed an accident report form afterwards and that lifting a prisoner was something he was required to do by his employer in the course of his duties. Mr Mullins said that he only decided to issue proceedings when he found how significant his injury was and that up to that point he thought it was an exacerbation of a pre-existing injury.

Counsel for the State defendants argued that Mr Mullins had the knowledge required to issue the proceedings on the date of the incident in January 2013. Specifically, it was submitted that Mr Mullins was aware that:

1. He had sustained an injury at work
2. The injury was significant
3. The injury occurred owing to an action he was required to take, in respect of which he alleges his employer was negligent
4. He was aware of the identity of his employer

As such, the State defendants submitted that the proceedings should have been issued within two years of the incident on the 8^th of January 2013; unless stayed by reason of an application to the Injuries Board within that period. Since it was two years and eight months after the incident that Mr Mullins made an application to the Injuries Board, it followed that the proceedings were statute barred.

In response, Mr Mullins submitted that medical advice prior to November 2014 was that he had exacerbated a previous injury – and that he did not know that he had sustained a new injury until an up-to-date MRI scan on 12 November 2014 revealed the new disc herniation.

Specific diagnosis from MRI was ‘immaterial’

Considering all of the above, Justice Binchy said that since Mr Mullins had been certified unfit for work for ten days after the incident, was prescribed painkillers and attended physiotherapy – all of this suggested that the injury was significant for the purposes of s.2 of the Statute of Limitations (Amendment) Act 1991. Furthermore, given the worsening of his condition by October 2013 – he would have had sufficient knowledge by this time at the very latest. Justice Binchy noted that this part of Mr Mullin’s oral evidence was at odds with his affidavit in which he said he was not aware of the ‘extent, severity, or indeed nature of the injuries involved until November 2014’.

Considering whether Mr Mullins needed a diagnosis in the level of detail given by the MRI to be able to issue the proceedings, Justice Binchy noted that Mr Mullins had not made any reference to the condition diagnosed in November 2014 – and the detail provided could have readily been provided in proceedings issued immediately after the incident.

Justice Binchy said that even making allowance for Mr Mullins being a lay litigant, the fact was that ‘he did not need the outcome of the MRI in November 2014 in order to issue to proceedings as issued’. Justice Binchy said that whether it was an exacerbation of a pre-existing injury or a new injury was ‘neither here nor there’ – the back injury was of sufficient significance to have warranted the institution of proceedings or at least inquiry as to his legal entitlements. Justice Binchy stated that the fact that a more detailed diagnosis was not yet available to him was immaterial.

Finding that Mr Mullins had the necessary knowledge no later than October 2013, Justice Binchy held that the proceedings were statute-barred at the time of their issue.