The Supreme Court has upheld a ruling that Leo Green’s medical negligence action was not barred by the limitation period. The Court dismissed Eilish Hardiman’s appeal, leaving in place the High Court decision and Court of Appeal judgment.
The dispute before the Supreme Court concerned when the two-year limitation period began under the Statute of Limitations (Amendment) Act 1991. The defendant did not challenge the High Court’s finding that Tallaght hospital had been negligent or that the negligence caused Mr Green significant injury. The appeal addressed whether his action had been brought too late.
Mr Green underwent surgery at Tallaght University Hospital in December 2007. The High Court found that the hospital negligently failed to investigate his condition with a scan on 14 December and to operate by 14 or 15 December. He later developed a hernia. In 2017, the High Court awarded him €96,403 in total damages, including €60,000 for pain and suffering to date and €35,000 for future pain and suffering.
Mr Green consulted another surgeon in January 2009. That surgeon advised that the hernia was mainly due to a pre-existing abdominal condition, with recent surgery contributing only to a limited extent. The trial judge found that this advice assuaged Mr Green’s concerns and that he hoped his condition would improve. His solicitor requested his hospital records in February 2011; they arrived in March. An expert report received in May 2012 identified the alleged failures to scan and operate as the cause of his problems. Proceedings had been issued in August 2012.
The Supreme Court said the limitation period can begin when a plaintiff knows, or could reasonably be expected to know, the broad facts linking a significant injury to an alleged act or omission. Knowledge of whether those facts amount to negligence in law is not required. The Court considered the two-year period during which Mr Green took no further steps after the January 2009 consultation, but held that he had reasonably relied on the surgeon’s professional advice that the hernia arose from a natural progression of his existing condition. In those circumstances, he was not required to reverse that assessment and investigate further during that period.
The Court upheld the Court of Appeal’s judgment. It did not revisit the finding of negligence or the damages award; the appeal’s issue was whether the action was statute-barred.