The Supreme Court majority upheld the Court of Appeal’s decision that Oliver O’Sullivan’s claim over an MRSA infection acquired in hospital was not statute barred. In a dissenting judgment delivered on 23 May 2019, O’Donnell J said he disagreed with that conclusion and considered the claim was out of time under his interpretation of the limitation legislation.
The case concerned an infection the plaintiff contracted during an operation at Bon Secours Hospital on 20 September 2005. He was informed of the infection on 4 October 2005. His mother later saw a television programme about hospital-acquired MRSA and passed him a contact number. On 20 March 2006, Tony Kavanagh recommended that he contact a solicitor specialising in MRSA cases.
The plaintiff’s solicitor sought hospital records in May 2006. The records, received in July, included a note recording “MRSA (heavy growth) isolated”. A preliminary filtering report was received on 22 February 2007. The High Court treated that as the point when the plaintiff acquired the knowledge that started the limitation period. The Court of Appeal majority instead treated receipt of a later report from Mr Scurr, on 16 May 2008, as the relevant date.
The proceedings were issued on 19 August 2008. O’Donnell J noted that this was more than two years after the infection and that the original limitation period had expired on 19 September 2007. He said the majority’s conclusion that the claim was not barred did not identify when the extended limitation period began.
O’Donnell J’s central disagreement concerned how much a claimant must know for the limitation period to start. He considered that broad knowledge that an injury could be attributed to an act or omission was enough; a claimant did not need an expert opinion identifying a specific negligent act. In his view, the information given to the plaintiff in October 2005, alone or alongside the later television programme, either supplied the relevant knowledge or at least put him on inquiry. He concluded that reasonable expert advice on that point could have been obtained quickly, so time began to run then.
The judgment is a dissent on the limitation issue, not a decision on whether the hospital was negligent or liable for the infection. O’Donnell J observed that the merits of the claim had still not been determined. He also called for reconsideration of the limitation legislation, particularly in medical negligence cases. The majority’s decision, as described in the judgment, was to uphold the Court of Appeal’s finding that the claim was not statute barred.