The High Court has struck out negligence and breach of duty claims brought by a man over an ear procedure at Tullamore Hospital, finding they were statute barred. It allowed his separate claim of trespass to the person to proceed in the same case, despite a procedural error in how it was brought.
The judgment, delivered by Mr Justice Gilligan on 22 March 2013, concerned a procedure on 18 May 2006. The plaintiff said he had consented to a biopsy that he was told would take a minute or two, but alleged the surgeon instead removed the lesion by wedge resection without his consent. He described severe pain and a lasting cosmetic defect. The judgment records that histology showed the lesion was benign.
The Health Service Executive asked the court to determine its limitation defence as a preliminary matter and also sought to strike out the trespass claim because it had been brought by Personal Injuries Summons rather than plenary summons.
Under the limitation law considered by the court, personal injury proceedings had to be brought within two years of the cause of action or the injured person’s later date of knowledge. The judge found the plaintiff knew almost immediately after the procedure, and no later than July 2006, when he sought legal advice, that he had suffered a significant injury. Proceedings had begun on 15 September 2008, outside that period. The judge therefore struck out the negligence and breach of duty claims.
The trespass claim had been brought within the statutory time limit, but in the wrong form of summons. The judge found the error was not fatal: the claim arose from the same incident, was clearly set out, and had caused the HSE no prejudice. Exercising the court’s discretion, he allowed that claim to proceed in the existing proceedings.
The judgment addressed the preliminary applications and the claims’ procedural status. It did not determine whether the alleged lack of consent or other allegations about the procedure were proved.