A Court of Appeal judge said he would dismiss an appeal by the State, health authorities and Bon Secours Hospital against a ruling in Oliver O’Sullivan’s case, finding that the evidence did not establish that he had the required knowledge to start the limitation period by August 2006.
Mr Justice Edwards delivered a dissenting judgment on 24 January 2018. He agreed with the President on the applicable law and the essential facts, but disagreed with Ms Justice Irvine’s conclusion about when Mr O’Sullivan knew enough to pursue a claim. The source contains Edwards J’s judgment only; it does not state the court’s overall order on the appeal.
The case concerned a claim arising from an MRSA infection Mr O’Sullivan developed during treatment at Bon Secours Hospital. Edwards J said the relevant question was when he knew, or could reasonably have been expected to know, that the infection and its effect on his recovery might be attributable to an act or omission amounting to negligence or breach of duty. He said the patient did not need to identify a specific infection-control failure, but needed broad knowledge of a potentially causative act or omission.
Edwards J accepted that Mr O’Sullivan knew by October 2005 that MRSA was slowing his recovery. By March 2006, when he instructed a solicitor to obtain his medical records, he understood that his illness and suffering were significant. But Edwards J said those facts did not establish that Mr O’Sullivan knew enough about a possible failure in infection control to be put on enquiry.
The solicitor received the records in July 2006. They included a report showing that a swab taken during surgery on 30 September 2005 later grew MRSA. Edwards J said the records alone did not show that the patient or solicitor could infer an inadequate infection-control or screening procedure. The records were about 800 pages, and he also said a reasonable period would have been needed to review them.
In Edwards J’s view, the relevant knowledge was acquired when an expert report was produced in May 2008. He acknowledged that February 2007, when a preliminary report was produced, could be argued as an earlier date, but said either date meant the claim was not time-barred. He concluded that the appeal should be dismissed. That was Edwards J’s proposed outcome in dissent, not the stated disposition of the Court of Appeal as a whole.