The Supreme Court dismissed Eilish Hardiman’s appeal in a medical negligence case, with O’Donnell J agreeing that the proceedings were not statute barred. His judgment, delivered on 2 July 2019, addressed when the plaintiff had sufficient knowledge that his injury was attributable to an act or omission alleged to constitute negligence.
The plaintiff had undergone surgery, including a laparotomy, and later suffered serious illness and a hernia. O’Donnell J said that after consultations in March 2008 and January 2009, the plaintiff had been led to understand that his condition was an unfortunate but relatively common consequence of necessary surgery. Those consultations did not give him reason to question the competence of his original treatment.
Hardiman’s counsel argued that the plaintiff should be treated as having sufficient knowledge soon after the surgery, when he became seriously ill and experienced a significant impact on his health and lifestyle. On that argument, he either knew enough from what had happened or should reasonably have sought expert advice then. If time began to run at that point, the proceedings would have been brought too late.
O’Donnell J considered the limitation test under section 2 of the Statute of Limitations (Amendment) Act 1991, including knowledge that an injury was attributable in whole or in part to the act or omission alleged to constitute negligence. He explained that the necessary knowledge did not require the plaintiff to identify the precise alleged negligence. But, in this case, the unexpected outcome of the operation made it reasonable to seek advice to understand what had happened and what could be done.
The judge concluded that the consultations with the treating surgeon and the later consultant did not provide the necessary knowledge. Instead, their explanations pointed away from concern about the original treatment. He said the plaintiff acquired sufficient knowledge for the statutory test when he received an expert report in May 2012. Although appropriate medical or expert advice might have given him that information earlier, O’Donnell J said he could not be fixed with earlier knowledge when he reasonably obtained and acted on the advice available to him.
O’Donnell J therefore considered the proceedings were not statute barred and agreed the appeal should be dismissed. The source gives no further detail about any separate orders made by the Court.