Limitation – a fact-specific assessment

Monaghan v Molony [2024] IEHC 287

Section 3 of the Statute of Limitations (Amendment) Act 1991 (as amended by s.7 of the Civil Liability and Courts Act 2004) permits a prospective Plaintiff a period of two years from the date of the alleged negligence to bring a personal injuries action. However, in clinical negligence claims, it is not unusual for Plaintiffs to rely upon s.2 of the 1991 Act, which allows an exception to the two-year rule in circumstances where the Plaintiff was not aware, at the material time, that a tort had been committed, and knowledge of this only came to light at a later date. This case illustrates again the fact-specific nature of any assessment of limitation periods.

In the present case, the Plaintiff suffered an injury in May 2015 after jumping over a wall to escape a cow. He attended his GP, the Defendant, who advised the Plaintiff that he had sustained a tear to his pec major muscle. He was treated with an intra-muscular analgesic and told to go home and come back the following day. When he returned the Defendant informed him that he had torn a muscle, and it would take two weeks to recover.

The Plaintiff attended the Defendant again in June 2015 with ongoing discomfort and was advised to go to physiotherapy, but that it could take up to 6 weeks to be seen as a public patient. Three months later, in September 2015, the Plaintiff reattended the Defendant advising that he had attended a private physiotherapist and had an MRI scan which confirmed a 50% partial rupture to his pec major. The Defendant referred him to an orthopaedic surgeon who carried our repairing surgery in January 2016.

The Plaintiff was acting as a lay litigant and issued his Personal Injuries Summons in May 2018 (three years’ post-injury), naming the Health Service Executive as the sole Defendant. In January 2019, the Plaintiff amended the Summons pursuant to a High Court Order obtained in December 2018, replacing the HSE with the GP Defendant. Further amendments were then made in July 2022, pursuant to High Court Orders. The crux of the Plaintiff’s claim was that, as a result of the delay in diagnosing his ruptured muscle (by not referring the Plaintiff for an MRI/orthopaedic assessment at an earlier stage), the Plaintiff lost the opportunity to undergo a successful direct repair (which was attempted and failed), and instead suffered the adverse consequences of an allograft reconstruction.

In support of his claim for personal injuries arising from the Defendant’s negligence, the Plaintiff relied on expert medical reports received in January 2017, April 2019 and May 2019. It was on receipt of either of these reports that the Plaintiff argued that he acquired the requisite “date of knowledge” for the purposes of the Statute of Limitations. The Plaintiff raised other arguments in relation to his “date of knowledge”, but in essence, if the Court accepted that the time for determining “date of knowledge” commenced, at the earliest, upon receipt of his expert report in January 2017, the Plaintiff’s claim would survive as, at this earliest possible date, the Plaintiff issued his Summons within 16 months of receipt of his first expert report.

Whilst it is not disclosed within the content of the judgment, by discovery the Defendant’s Solicitors obtained copies of correspondence issued by the Plaintiff to the Medical Council, as part of a complaint made to the Council by the Plaintiff. Within this discovery, and the amended Summons, the Plaintiff disclosed that he had attended an orthopaedic surgeon in October 2015, at which time he was informed of the significance of his injury and the effect the delay of diagnosis would have on his recovery. The Plaintiff subsequently used what he had learned from this attendance to inform the complaints he filed to the Medical Council. Further, correspondence with his former solicitors between October 2015 and April 2016 was disclosed, within which the Plaintiff expressed his intention to bring legal proceedings against the Defendant on more than one occasion.

The Court examined, briefly, the lead cases on limitation in clinical negligence actions, O’Sullivan -v- Bon Secours Hospital[1] and Green -v- Hardiman[2], highlighting that the question to determine, as a matter of fact, is what a Plaintiff knew, or did not know, on a given date. Whilst a Plaintiff may know that a procedure was or was not done by a clinician at the relevant time, they may not know that any injury arising was as a result of the act/omission without the direction of expert opinion. That said, a Plaintiff may attain such knowledge without obtaining expert opinion for the purpose of investigating potential negligence/liability, during the course of their subsequent clinical treatment/management, as it was in the present case. The High Court found that the Plaintiff was aware, following his attendance with the orthopaedic surgeon October 2015, and long before he had obtained his expert reports, that his injuries were significant, and that he believed they were caused by the Defendant’s negligence in not referring him for further investigations/assessment at an early stage. As such, the limitation period expired prior to his initiation of legal proceedings and his claim was, therefore, statute-barred.

Conclusion: For the purposes of determining the date of limitation, a Plaintiff needs to know, at the relevant time, that: (i) an injury has been sustained; and, (ii) the injury is attributable to the acts/omissions of an identifiable party. The Plaintiff does not need to know that such acts/omissions satisfy the tests for negligence. Expert opinion may be required to assist a Plaintiff in such enquires, as was the case in both the O’Sullivan and Green cases. This present case, however, reinforces the point that, when assessing the issue of limitation of a claim, one cannot simply equate the date of receipt of an expert opinion (sufficient to ground their claim) as the requisite date of knowledge for the purposes of limitation – it is a fact-specific analysis, emphasising the necessity of a detailed examination of the relevant medical records, not only to investigate liability, but also to assess limitation.

If you would like any further information or advice, please contact Sam Francey from our Healthcare team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice.

[1] [2019] IESC 33

[2] [2019] IESC 51