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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Gough v. Neary & Anor [2003] IESC 39 (3 July 2003) URL: http://www.bailii.org/ie/cases/IESC/2003/39.html Cite as: [2003] 3 IR 92, [2003] IESC 39, [2004] 1 ILRM 35

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THE SUPREME COURT

Hardiman J. 400/02

Geoghegan J.

McCracken J.

Between:

ALISON GOUGH

Plaintiff

and MICHAEL NEARY and BASIL CRONIN

Defendants/Appellants

[Judgments delivered by all members of the court]

JUDGMENT of Mr. Justice Hardiman delivered the 3^rd day of July, 2003.

In October, 1992, the plaintiff was a 27 year old woman who was awaiting the birth of her first child. This was expected on the 15^th October, 1992, but did not occur then. On the 25^th October, 1992, she was admitted to the hospital of which the second-named defendant is a trustee under the care of the first-named defendant who is a consultant obstetrician/gynaecologist. Various steps were taken to induce the birth. When these were unsuccessful it was decided in the early hours of the morning of the 27^th October, 1992, that she should have a Caesarean section. Her child was born by this procedure.

This action relates to the circumstances in which, after the Caesarian section, an emergency hysterectomy was performed.

On the 21^st December, 1998, the plaintiff commenced proceedings against the defendants in respect of the hysterectomy. The plaintiff alleged that the sub-total hysterectomy performed on her was unnecessarily performed and that alternative treatments were not attempted, or not adequately attempted. Both defendants pleaded the Statute of Limitations, amongst other defences.

The plaintiff's action was heard in the High Court (Johnson J.) on the 17^th, 18^th, 19^th and 23^rd April, 2002 and on the 14^th May, 2002. Judgment was given on the 15^th November, 2002. The plaintiff succeeded in her action and was awarded a total of €273,223.27. Argument in relation to the Statute of Limitations had taken place on the 23^rd April, 2002, at the end of the plaintiff's evidence. In an ex-tempore judgment the learned trial judge ruled against each defendant's defence under the Statute of Limitations.

By notice of appeal filed on the 18^th December, 2002, the defendants appealed from the judgment and order of the High Court. The appeal was limited to the defence under the Statute, and to the question of damages.

The Statute of Limitations.

There is no dispute that if the Statute of Limitations, 1957 had not been amended this action would be statute barred since it was instituted outside the three year limitation period provided by that Act, unless it was saved by the provisions of s.71 in relation to fraud. This section, insofar as relevant provides:-

"71(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either –

(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or

(b) the right of action is concealed by the fraud of any such person,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it."

In this case the plaintiff did not rely on fraud in the sense in which the term is used in s.71 and the fraud itself was not pleaded in the replies delivered.

The plaintiff strongly relies, however, on the terms of the Statute of Limitations (Amendment) Act, 1991 and in particular on s.2(1) thereof. This sub-section provides:-

"For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge… references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:

(a) that the person alleged to have been injured had been injured,

(b) that the injury in question was significant,

(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

(d) the identity of the defendant, and

(e) –

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

The plaintiff's state of knowledge.

The plaintiff's knowledge that she had been subjected to a hysterectomy, and her knowledge of why that procedure had been carried out on her, derived wholly from what the first-named defendant told her. The learned trial judge unreservedly accepted the plaintiff's evidence about what she was told. The plaintiff continued to accept what she was told by the first-named defendant until 1998, a time well after the expiration of three years from the date of the operation, when she came to question it in circumstances discussed below.

What Dr. Neary told the plaintiff.

The plaintiff described her recovery from the birth and her state of pain and discomfort. She said that on the afternoon of the day after the operation Dr. Neary walked by her bed and she said to him "I didn't sleep last night, I was very upset". He said "If you didn't sleep, how do you think I slept?."

There was no further conversation on that occasion, which was on Tuesday 28^th October, 1992. Coming to Thursday 30^th she described her further recovery and her delight in her new born son. She remarked to the nurses that if she were to have another child she would like to have a planned Caesarean section. A nurse advised her to discuss this with the doctor who would be around to see her. When he came she expressed her preference for a Caesarean section to him and asked if it would be possible. He said "No". She asked what he meant and he said "[I] had to remove your womb, you had a hysterectomy". She was very disturbed and incredulous. Dr. Neary said to her that he had saved her life. He said he could have sent her son out to her husband without a mammy, but he had saved her life. He said she had lost so much blood, he never witnessed anything like it. He said he had used all the top drugs. He said he had left the ovaries and that she would come to terms with her situation.

She had no further significant conversation with Dr. Neary while in hospital. On the 23^rd December, 1992, she attended him for her check up. He examined her. A nurse asked her to wait until he was free so that she could ask him questions. She told him that she was very upset over what had happened and asked "[W]hat did I do wrong?." She asked could he explain. This remark, in context, has to be interpreted as a request for an explanation of the hysterectomy. She added that, due to her distress, she could not sleep at nights. She said that she could not come to terms with what had happened to her.

Dr. Neary said that if he were to tell her what had happened on the night of the operation she would never sleep again. He said she was better off not knowing and advised her to just go home and get on with her life.

The plaintiff was subsequently attended by her general practitioner who referred her for counselling which she did not find helpful. She continued to be preoccupied with the fact of her hysterectomy. In 1996 she was in her solicitor's office in connection with a mortgage transaction and she said something to the solicitor along the lines whether she (the solicitor) could explain what had happened which of course she could not. She said "[All] I wanted was an explanation. That's all I wanted".

Significance of what the doctor said.

It is apparent from the foregoing that, in informing the plaintiff of the hysterectomy and the reasons for it, the doctor spoke in terms that were very dramatic but also very general. He made the following things quite clear:-

(1) That, by performing the hysterectomy, he had saved her life. He said this in terms that were colloquial and emotive, saying that he could have sent the newborn child out to his father without a mammy. On the evidence, the risk from which he "saved her life" was that of exsanguination.

(2) That the reason for this state of affairs related to her bleeding after the section. He said the bleeding was such that he had never witnessed anything like it. The remark, coming from an experienced consultant, can only connote some very rare and dramatic development of an appalling nature.

(3) That the hysterectomy had been necessary despite the fact that "he had used all the top drugs". This was a plain indication that he had attempted to avoid the necessity for a hysterectomy by using all appropriate means to stop the bleeding.

(4) That it would not be in her own interest to enquire further about what had happened on the night when the Caesarean section and the subsequent hysterectomy were performed. This was indicated at the meeting of the 23^rd December, 1992. The context of this meeting was quite different to the earlier encounter in the hospital. It was nearly two months since the hysterectomy had occurred. The plaintiff had specifically asked for an explanation as to why it had occurred and had graphically indicated the distress of which it was causing her. She said that she couldn't come to terms with what had happened and in answer to that Dr. Neary stated that if he told her what had happened on the night she would never sleep again. Accordingly, he said she was better off not knowing and just going home and getting on with her life.

All of this was said to a young lady who had been a healthy prima gravida and who had been employed as a hospital domestic.

What the doctor told the plaintiff must be seen in the context of what actually occurred on the night of the operation.

Events of the morning of the 28^th October, 1992.

No appeal has been taken against the learned trial judge's findings in relation to these events. These findings were based on extensive discussion of the events which were proved in evidence, and recorded in clinical notes, by a number of highly qualified experts who gave evidence at the trial.

The learned trial judge accepted uncontradicted evidence that Caesarean hysterectomy in the case of a prima gravida was an enormously rare event. A series of 100,000 births in Dublin showed only one such case, in which there was a specific reason for severe haemorrhage (placenta praevia) which was not present here.

The explanation given by Dr. Neary for the hysterectomy, in writing to the plaintiff's general practitioner, was "continuous massive bleeding". Commenting on this, the distinguished obstetrician Dr. John Bonner said:-

"The definitions of massive haemorrhage, you know, are arbitrary, but generally speaking it means that your life is in danger from exsanguinations. This lady, looking at her records, was never in any danger from exsanguination, and that is from the anaesthetic and the operation records".

He justified this opinion in considerable detail having regard to the timing of events on the night, the vital signs, and the anaesthetic record. He said:-

"I can't see any obstetrician justifying the removal of the uterus of a woman with totally stable blood pressure and with a blood loss of only 1500 mls."

Both Dr. Bonner and another expert, Dr. Mary Wingfield, also considered that the quantity of blood actually transfused into the plaintiff was dramatically low for a patient bleeding so profusely as actually to require a Caesarean hysterectomy. Dr. Wingfield quoted figures from the National Maternity Hospital showing no case of Caesarean hysterectomy in a prima gravida patient between 1990 and 1998. Moreover, 74% of women who had this procedure required ten or more units of blood as opposed to three units given in the present case. This figure was consistent with the requirements of the Caesarean section. Nor did the plaintiff's vital signs, which were continuously monitored, suggest catastrophic bleeding.

Apart from the question of whether the critical situation described by Dr. Neary in very dramatic, almost apocalyptic terms, existed at all, there was considerable dispute as to the alternative means of treating the plaintiff. None of the eight medical personnel other than Dr. Neary who were present in the operating theatre were called to give evidence.

Much emphasis was placed on the tight sequence of events on the morning of the operation. On the evidence, this was as follows:-

1.35am: commencement of Caesarean section,

1.44am: delivery of baby,

1.46/7am: placenta delivered and bleeding commenced,

2.10am: cross matched blood left the laboratory,

2.25/30am: hysterectomy operation began,

3.05am: hysterectomy operation ended.

Dr. Neary's evidence was that the delivery of the placenta took two or three minutes after the birth: the plaintiff bled for twelve minutes after that and about 2.am he considered the bleeding abnormal. He regarded this as the "crisis point". Transfusion could not have begun until after 2.10 a.m. and the hysterectomy was commenced fifteen minutes later.

The learned trial judge made a number of findings of significance in relation to this period.

Dr. Neary associated the uncontrollable bleeding which led to the hysterectomy with the fact that the uterus was "totally atonic". This meant that its constituent muscle fibres did not contract down on delivery, thereby tying off the blood vessels, which had been supplying the placenta, by natural process. In this event, on the evidence, it is standard and essential that the patient be commenced with forty units of oxytocin. There was no record of this being administered. Dr. Neary said that this was done but no-one was called to corroborate it. Dr. Neary himself conceded that to fail to administer forty units of oxytocin would be falling below acceptable standards. The learned trial judge was satisfied that "[On] the balance of probabilities… such an infusion of forty units of oxytocin was not given to the plaintiff".

A number of other techniques were discussed in evidence as being available for use in an effort to avoid a hysterectomy. These included ligating the uterine arteries, prolonged massaging of the uterus and packing the uterus to stem the bleeding. Issues were raised as to whether certain techniques were appropriate, had been adopted at all, or had been given sufficient time to work before proceeding to hysterectomy. The learned trial judge held that the defendant "...did not use the necessary conservative methods, particularly ligating the uterine arteries" and in that and in omitting "…to persist for long enough in the massaging of the uterus, in the packing of the uterus and in failing to administer the dosage of oxytocin…" that he was negligent as that term is explained in the judgment of Finlay C.J. in Dunne v. National Maternity Hospital [1989] IR 91.

It must also be recorded that, on any view of the evidence, there were extraordinary omissions in the allegedly contemporary operation notes. Neither the massaging of the uterus, the use of packing, or the administration of oxytocin is recorded. No sense of urgency, let alone crisis, appears to have been communicated to the anaesthetist, the pathologist responsible for the blood supply, or any other person.

Moreover, even if one accepts the main features of the defendant's evidence as to the time at which serious bleeding took place, and as to the measures, short of hysterectomy, adopted to stop it, the sequence of events suggests great haste in proceeding to the drastic remedy. The evidence on these points is nothing short of chilling. Both Dr. Bonner and Dr. Wingfield gave evidence of the period of time for which they would expect more conservative measures to be attempted before proceeding to hysterectomy. The learned trial judge asked Dr. Bonner whether the sequence of the termination of the Caesarean section and the commencement of the hysterectomy allowed time for the various steps which he said ought to be taken by an obstetrician to stop bleeding before proceeding to hysterectomy to be taken. Dr. Bonner replied:-

"No, it doesn't allow for that. It is a precipitated decision that has been made… The impression I would get from the timings is that there was considerable haste in proceeding to the hysterectomy".

He also said that:-

"Generally speaking, before you would remove the uterus of a woman after her first child, you would use every conservative measure to try and conserve the uterus because that would be the standard practice… you would finish the operation and the patient would then be continuing to bleed and it would be a case of usually going back to theatre and often when a hysterectomy is done after Caesarean section, it is quite often, maybe, within twelve or twenty-four hours later. It is not usually done just as an immediate decision making… I don't think the appropriate care was provided surgically for this patient or her management in labour".

Dr. Wingfield was asked how long she would treat a patient conservatively before proceeding to hysterectomy. She noted the availability of ample blood for transfusion in the hospital and said:-

"… I certainly think at least an hour's extra time could have been bought for that woman, in which time you would try these other procedures… and possibly longer. In my experience any of the cases of major obstetric haemorrhage that I have seen, the hysterectomy has never happened for a couple of hours following the delivery and sometimes patients will go to theatre, have a procedure performed such as a pack inserted. They will then be sent back to the recovery room still critically ill but being monitored and being transfused and often that is all you need. But quite regularly, they will end up continuing to bleed and needing to go back to theatre two or three hours later for a subsequent procedure and a hysterectomy at that stage. I have never seen it happen in a short time frame as it is described in this case".

Similarly, Dr. Wingfield was of the view that if the oxytocin had been administered in the appropriate dosage (and the learned trial judge held that it had not) then "… I would be very surprised if that would not have arrested the haemorrhage". Moreover, dealing with Dr. Neary's estimate of 40 to 45 minutes during which he employed conservative measures, and discussing the uterine packing which he said he did, she said:-

"Even packing the uterus, I am amazed that there was time to do that procedure and give it time to work in that short period of forty minutes because packing the uterus takes time to do".

She thought that, after packing, a period of "certainly an hour or two hours" should have been allowed to see if the bleeding would stop, assuming, as here, that the patient was stable and there was blood available to transfuse. She did not think it was possible to ascertain whether the packing procedure was working or not in a shorter period. Asked whether any obstetrician exercising reasonable care would have performed a hysterectomy in the time scale featured in this case she replied "no".

Dr. Neary's subsequent comments in context

I have already set out what Dr. Neary said about the hysterectomy to the plaintiff at the two meetings which they had after the operation. He also wrote to her general practitioner saying:-

"The patient had continuous massive bleeding and although the patient was pregnant for the first time, a hysterectomy had to be performed eventually." (Emphasis added)

It appears to me that neither of the two brief accounts given by Dr. Neary to the plaintiff and to her general practitioner respectively describes what occurred adequately, accurately, or fairly. It is possible to say this with considerable confidence, having regard to the unappealed findings of the learned trial judge. There is no objective medical support for the view that there was "continuous massive bleeding". If this had occurred it would have been witnessed by eight medical persons, none of whom were called in evidence. There is no support for it in the records, and none in the continuous monitoring of the plaintiff. There are positive findings firstly that the most obvious conservative step – the administration of forty units of oxytocin – was not taken at all and uncontradicted evidence that it would probably have stopped the bleeding. There is grave doubt as to whether the uterine packing alleged took place at all (it was not put to Dr. Bonner when he gave evidence and entered the case only later). There is uncontradicted evidence that, if it did occur, no sufficient time was allowed for it or any measure which may have been employed to work. What the doctor told the patient after the operation was inaccurate, incomplete and, worst of all, self-serving. His statement that he had "used all the top drugs" in an effort to avoid hysterectomy, was untrue. Moreover, in the interview of the 23^rd December, 1992, the doctor did all he could, by the use of melodramatic language, to discourage his patient from further inquiry, expressly saying that it would be better for her not to know what went on, on the night of the operation, because if she did she would never sleep again. The doctor denied using this phrase but the learned trial judge accepted the patient's account of the interview and commented unfavourably on the doctor's general demeanour and credibility. The phrase in question was, as the doctor himself said, the stuff of which nightmares are made. In employing it to forestall further inquiry he was again serving his own interest and actively seeking to ensure that the patient did not seek the further information and explanation which she very badly wanted and to which she was entitled.

All this took place between doctor and patient. Having regard to that relationship I consider that the content and language of the doctor's communications and the express discouragement of further inquiry were, prima facie, unconscionable on his part and capable of amounting to an intentional imposition on her, a deliberate concealment of the true facts of what occurred, and an attempt, both overbearing and underhand, to forestall further inquiry on her part.

The possible legal significance of the foregoing will be considered below.

The plaintiff's further inquiries.

The plaintiff was employed in the kitchen of another hospital in the same general area. In the course of 1998 she heard rumours in that hospital that there was a local consultant in trouble of some unspecified sort. Later in the year she began to see media reports dealing with other patients of the defendants' hospital in precisely her situation. She reacted very emotionally to this because she concluded "…that there were some more women, that I could have stopped it. I could have stopped it. If I had spoken up, I could have. I couldn't believe the amount of people".

She heard a radio programme at that time which gave the phone number for the "Lourdes Hospital Helpline". This was a service provided by the hospital for anyone who was affected by the media items which they had seen or read. She said that she contacted them because "I wanted them to tell me that it wasn't true, it wasn't true… that Dr. Neary wasn't the doctor being investigated". The helpline however told her that he was the doctor being investigated "…for performing unnecessary hysterectomies". It appears that she was deeply distressed in particular because of the number of patients involved. She had thought that she was only the third person who had a hysterectomy in those circumstances. She now felt "[M]aybe I should have stopped it, I could have said something".

The plaintiff said that she contacted her solicitor on the morning of her conversation with the helpline. The solicitor requisitioned the hospital notes, instructed an expert and generally took the necessary steps to investigate whether she had a statable action.

It follows from the foregoing that the plaintiff's state of knowledge as it now is originated from information she received through the media, and from the Lourdes Hospital Helpline. Its effect was to make her doubt the account of the events leading to her hysterectomy which the first-named defendant had given to her. This occurred specifically because she became aware that Dr. Neary was under investigation for performing unnecessary hysterectomies. This led her to consult a solicitor in relation to the hysterectomy. The information obtained by her solicitor led her to believe that the hysterectomy had not, in fact, been medically indicated and that appropriate conservative steps to avoid it had not been taken. Prior to that neither she nor her general practitioner had had any reason to doubt what Dr. Neary had told them.

High Court decision on this limitation issue.

The learned High Court judge expressly adopted the reasoning of Barr J. in Maitland v. Swan [1992] PNLR 368. He recorded that the order of the High Court in that case had, on appeal been set aside in its entirety on consent and that the allegations of negligence were withdrawn. But he found the reasoning persuasive as he was wholly entitled to do. He adopted in particular Barr J's equation of "injured" with "harmed". He further adopted the following passage:-

"In my view a person who undergoes necessary surgery which is skillfully (sic) performed and is successful does not thereby suffer an injury in the context of the Act. Such an operation is a curative, beneficial process and has no element of harmfulness in it, even if the procedure involves the removal of an important organ with in consequence a degree of permanent disablement for the patient".

"Injured" and "injury" are two of the words used in s.2(1) of the Act of 1991 to describe certain matters knowledge of which on the part of the plaintiff fixes his "date of knowledge". The most relevant sub-paragraphs are:-

"(a) that the person alleged to have been injured had been injured,

(b) that the injury in question was significant,

(c) that the injury was attributable in whole or in part to the act or omission which has alleged to constitute negligence, nuisance or breach of duty".

Comment on this approach.

I am by no means convinced that the word "injured" and cognate words are usefully defined by reference to the word "harmed". The most useful source in seeking a meaning for the word "injured" is the partial definition of the term "personal injuries" in the Statute of Limitations, 1957. This definition derives in turn from the United Kingdom Law Reform (Personal Injuries) Act, 1948 and is used in many other United Kingdom statutes. The term "…includes any disease and any impairment of a person's physical or mental condition". In this, I agree with the judgment of Geoghegan J. in Maguire v. Smithwick (unreported, High Court, Geoghegan J., 27^th June, 1997). I also agree with what is said at p. 8 of that judgment:-

"First of all I accept the view taken by the English Court of Appeal in Broadley v. Guy Clapham & Co. [1994] 4 All E.R. 439 that the words 'which is alleged to constitute negligence, nuisance or breach of duty' are merely words of identification. Therefore it does not mean that there has to be any knowledge of fault and indeed such an interpretation would be inconsistent with the provision later on in s.2 that knowledge that any acts or omissions did or did not as a matter of law involve negligence, nuisance or breach of duty is irrelevant".

Specifically, I agree with the interpretation of the last words of s.2(1) as excluding from the things of which there must be knowledge in order for the plaintiff's "date of knowledge" reached any question of fault.

It was on the basis of an equation between the term "injured" and the term "harmed", as made by Barr J. in the case mentioned, that the learned trial judge rejected the defendant's submissions on the statute. In my view, however, the word"harmed" has a connotation of wrongful injury. Indeed, it is on the basis of this connotation that he distinguishes between injury which is the inevitable by-product of an operation which is medically indicated and other injury. In my view, however, neither the statutory definition of "personal injuries", nor an interpretation of s.2(1) which gives proper weight to its concluding words, admit of the importation into the concept of "injury" of any element of wrongfulness or blameworthiness. There is no qualitative element in the statutory formulation of the matters of which the plaintiff must have knowledge to set time running.

Statutory Context.

This interpretation, in my opinion, is consistent with the context and purpose of the Act of 1991. The Act itself substantially follows the scheme of a Bill to amend the Act of 1957 Act which was included in a Law Reform Commission Report of 1987. This was entitled "Report on the Statute of Limitations: Claims in respect of latent personal injuries". This, I think, actually epitomised the principal (though not of course the only) concern leading to the request to the Commission to formulate suggestions for reform.

This, indeed, was the origin of the strikingly similar English statutory provision, based on a 1971 report of the English Law Reform Commission. In Dobbie v. Medway Health Authority, [1994] 1 WLR 1234 cited above, Beldam L.J. referred to the history of the limitation of actions and continued:-

"By 1963 it had become apparent that in actions for personal injury circumstances could occur which made it equally unfair to hold a plaintiff to the normal period of limitation. The injustice of such an inflexible period was demonstrated by Cartledge v. E Jopling & Sons Ltd. [1963] 1 All E.R. 341. Due to the acts or omissions of the defendant, the plaintiffs contracted an insidious disease which was symptomless until after the period of limitation had expired. Then catastrophic symptoms developed for which they had no remedy."

Similarly, Bingham M.R. in the same case said:-

"The exception relevant for present purposes affects personal injury claimants. The need for an exception became clear when it was found that employees disabled by industrial disease did not know (and could not have known) that they suffered from the disease, still less that it was caused by their employers' process, until well after the three-year limitation period for personal injuries had expired".

The Commission recommended in favour of a "discoverability test". Specifically, they said:-

"We consider that time should begun to run only where the plaintiff becomes or ought to become aware that the injury is attributable, in at least some degree, to the conduct of another".

It appears that these considerations led to the last words in s.2(1). Commenting on them in the annotation of the Act of 1991 in "Irish Current Law Statutes Annotated" (1991-1992), Mr. Tony Kerr, one of the authors of the standard book on the subject, quotes the relevant words and says:-

"Consequently knowledge that the injury was as a matter of fact attributable to an act or omission of the defendant triggers the limitation period, since knowledge that these facts constitute negligence … on the part of the defendant is a matter of law and is thus irrelevant".

This approach is also consistent with that of the English Court Appeal in Dobbie v. Medway Health Authority [1994] 1 WLR 1234. There, Sir Thomas Bingham M.R. said:-

"The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she, at all times, reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear direct result of, an act or omission of the health authority. What she did not appreciate until later that the health authority's act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run".

(Emphasis added)

In so finding Bingham M.R. was critical of the approach of the trial judge in that case, and of certain earlier judgments, in that they incorporated into the matters of which the plaintiff had to have knowledge an element, if not of negligence per se at least some element of shortcoming or absence of necessity. Dobbie was a case where the plaintiff had had a mastectomy in 1973. Microscopic examination of the growth which was the indicator for the mastectomy, carried out subsequent to the operation, showed the lump was benign. The plaintiff, however, accepted the view of the doctor that she was fortunate that the growth had not proved to be malignant. She came to doubt this view in 1988 after reading certain media reports. On those facts, the trial judge held that she:-

"… had broad knowledge of sufficient facts to describe compendiously that her breast had been unnecessarily removed, that something had gone wrong, and that this was due to the defendants' negligence…".

Emphasis added.

Commenting on this, Bingham M.R. said:-

"The judge's reasoning is in my view open to criticism in two respects. (1) He was wrong to refer to the breast being 'unnecessarily' removed, to something going wrong and to the health authority's negligence. These matters were on a correct construction of s.14 irrelevant".

Section 14 is the British equivalent to s.2(1).

Bingham M.R. also observed:-

"The situation is complicated when, as often happens, the plaintiff learns of the defendant's act or omission and of the criticism that it was negligent at the same time. But it is necessary to emphasise that knowledge of fault or negligence is not needed to start time running".

In a case already referred to in this judgment, Broadley v. Guy Chapman and Company, words in the English s.14(1) which are identical to the concluding words of s.2(1) of our Act, were addressed by two of the Lords Justices. Leggatt L.J. said:-

"It is plain from the concluding words of s.14(1) that 'knowledge that any acts or omissions did or did not, as a matter of law, involve negligence' is irrelevant. In my judgment the only function of the words 'which is alleged to constitute negligence' is to point to the relevant act or omission to which the injury was attributable".

Hoffmann L.J. came to a similar conclusion. He expressed it, however, in words which were later used to gloss the Dobbie decision in a manner very significant for this case. He said:-

"I think [counsel] was right when he said that the words 'which is alleged to constitute negligence…' serve to identify the facts of which the plaintiff must have knowledge without implying that he should know that they constitute a breach of a rule, whether of law or some other code of behaviour. Section 14(1)(b) requires that one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based".

(Emphasis in original)

It will also be observed that the approach exemplified by these

citations is quite sufficient to effectuate a statutory policy of providing relief to plaintiffs' complaining of "latent" diseases or impairments.

Application to the present case.

In this case the plaintiff of course knew from late 1992 that she had had a hysterectomy. This represented, of course, a very significant impairment and she was deeply distressed about it. She did not know that it was unnecessary because she accepted the false information to the contrary given to her by the doctor.

In my view, the most obvious way to set up an action on those facts would be to explore the possibility that her cause of action was concealed by fraud within the meaning of s.71 of the Act of 1957. Since this contention was not pleaded or argued I will make no finding on it, but having regard to my findings above about what the doctor said and the interpretation of it in light of the now established facts, there is plainly a strong case for this view. This is particularly so in light of the decision of the High Court in McDonald v. McBain [1991] 1 I.R. 284. There, Morris J. (as he then was) was dealing with an action for the malicious destruction by fire of the plaintiff's premises. The fire, however, took place more than eleven years before proceedings were issued. On the facts, the defendant was successful in defeating the claim on the basis of the statute, even though he had subsequently admitted causing the fire. The plaintiff relied on a dictum of Denning M.R. in King v. Victor Parsons and Company [1973] 1 W.L.R. 29 where it was said:-

"In order to show that he 'concealed' the right to action 'by fraud', it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he kept it secret. He conceals the right of action. He conceals it by 'fraud' as those words have been interpreted in the cases. To this word 'knowingly' there must be added 'recklessly' ".

Commenting on this passage Morris J. said:-

"It is my opinion that if the circumstances were such that the plaintiff in the present case had her property destroyed by fire deliberately by a third party and that third party, either by stealth or silence, succeeded in hiding that fact from the plaintiff, and she was left in complete and total ignorance of the identity of the wrongdoer, then that conduct on the part of the wrongdoer would amount to fraud within the meaning of the Statute of Limitations. I would in such circumstances find no difficulty in adopting, in the main, the approach of Lord Denning M.R. in King v. Victor Parsons & Co. [1937] 1 W.L.R. 29."

I can see no difficulty in applying the same approach to the other constituents of the information required to constitute the plaintiff's state of knowledge.

It may be that there is a certain improbability, in most circumstances, expecting a person who has acted wrongfully to admit as much to the victim of his wrongdoing. Such a person may indeed be entitled or constrained (as by an arrangement with insurers) to make no admission. That, however, does not entitle him to conceal pieces of factual information to which another person is entitled, to positively misrepresent the true facts, or to use his professional position to seek to divert further inquiry. It must also be recalled that in this case as in many others there are two defendants, the hospital as well as the doctor. Of the eight medical personnel other than Dr. Neary present at the operation in this case all but one were employees or agents of the hospital who are in an excellent position to see what was going on, whether there was catastrophic bleeding, whether the indicated dose of oxytocin was administered and what other measures were taken prior to hysterectomy.

It should be emphasised that "fraud" within the meaning of s.71 carries a much broader meaning than the same word either in its criminal law connotation or in its connotation in other branches of civil law. In Kitchen v. Royal Air Forces Association, [1958] 1 W.L.R. 563 Lord Evershead M.R. said:-

"But it is now clear that the word fraud in (the English

equivalent of s.71), is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S. Limited [1949] 1 K.B. 550 that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define 200 years ago, and I certainly shall not attempt to do so now, but it is clear I think, is clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned is an unconscionable thing for the one to do towards the other".

It is however clear that if fraud within the meaning of s.71 is to be relied upon it must be very specifically pleaded. In the frequently cited case of Lawrance v. Lord Norreys [1890] 15 AC 210 it was held that general averments of fraud are not sufficient: the statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that fraud was the cause of the concealment. The current edition of Halsbury Laws of England cites the case as authority for the proposition that "[W]here fraud, concealment or mistake is relied upon as postponing the limitation period, it must be sufficiently alleged in the pleading to bring the case within the statutory provision".

This has not been done here. The omission, of course, did not arise by inadvertence but as a deliberate decision, on the basis that an allegation of fraud was a very serious matter and that the doctor may possibly have had a subjective belief in what he said. The last matter does not strike me as determinative of the issue of fraud in any way. It must also be recalled that, in cross-examination of Dr. Neary, it was expressly put to him that he had altered a contemporaneous note in "an effort by you to defend yourself, to put yourself in the best possible light in the circumstances". It was also put to him in relation to his notes that "[T]hey are not accurate contemporaneous notes made to describe the operation you performed but, rather, a defensive and coloured account to try to extricate yourself from the position in which you find yourself". This, it seems to me, is indeed an allegation of deliberate concealment of what actually occurred. It is not clear to me that an express allegation of fraud in the pleadings would be a more serious allegation than what was actually put.

However, the case was advanced on another basis to which I now turn.

"Negligent" and "Unnecessary".

In para. 11 of the plaintiff's written submissions it is said:-

"The act which constitutes negligence in this case is this: the performance of an unnecessary hysterectomy".

On that basis, it is argued that it is not enough to trigger the plaintiff's date of knowledge that she knew of the hysterectomy; she must also have known that it was unnecessary. It was strongly submitted that this view is open notwithstanding the concluding words of s.2(1) because there is a difference between knowing that a surgical procedure was, or turned out to be, unnecessary and knowing that it was negligent.

I accept that there is, at least in theory a distinction between the concepts of an "unnecessary" surgical procedure and a "negligent" one. For example in circumstances of an emergency a procedure may appear necessary which with hindsight, and perhaps after biopsy or similar investigations, is demonstrated not to have been so. But that does not mean that the exercise of the surgeon's clinical judgement on limited information was negligent. It is however quite hard to give examples of such procedures outside the context of emergencies. The surgeon in Dobbie no doubt felt sufficiently confident that the lump on the patient's breast was malignant that he thought it suitable to proceed to mastectomy without biopsy. But, there being no circumstances of emergency, he was not justified in doing so. In many cases (as Bingham M.R. remarks) the factual circumstances are such that to become aware that a procedure is unnecessary necessarily involves becoming simultaneously aware that it was negligent. This, I believe, is such a case.

However, I would find against the plaintiff's submission quoted above on a different and more fundamental ground. Accepting, for this purpose, that there is real and significant difference between the concepts of "unnecessary" and the concept of "negligence", I do not believe that the existence of this difference avails the plaintiff in demonstrating that she did not know "that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence…".

It is certainly true that, by reason of the final words of sub-section 2(1), knowledge of negligence as such is irrelevant to the question of whether she had the necessary state of knowledge. But the fact that knowledge of negligence is irrelevant does not mean that knowledge of something else, such as that the operation was unnecessary, is necessarily relevant. On the contrary, the question is whether the plaintiff had the state of knowledge set out in the words quoted.

The meaning of the identical words in the English statute was illuminatingly addressed by Steyn L.J. (as he then was) in Dobbie's case. The words are found in s.14(1)(b) of the English statute. Steyn L.J. said:-

"Again, the application of these words causes no difficulty in this case. Attributability does not mean legal responsibility. It can only refer to causation. It is alleged in the action that the surgeon was negligent in removing the plaintiff's breast. She knew in April 1973 that her injury (the removal of the breast) was caused by the act of the surgeon, or in the words of the Statute was attributable to him. She therefore had the necessary knowledge of fact (b) at the end of 1973… Applying the plain meaning of the words of Section 14(1) to straightforward and indisputable facts, the consequence seems to follow that the claim became statute-barred at the end of April 1976."

Steyn L.J. then set out in some detail the argument addressed to the Court of Appeal by the plaintiff's counsel. It was submitted:-

… that the injured party must also know that "something had gone wrong". Pertinent to the present case he said that the injured party must know that the mastectomy was "unnecessary". He said that the injured party must appreciate the possibility that the operation was negligently performed… And he also said that the word "omission" in Section 14(1)(b) is capable of indicating what he described as "a qualitative element", that is, something which possibly ought to have been done".

There is a striking similarity between portion of the argument thus summarised and the argument advanced in this case on behalf of the plaintiff. In particular the interpolation of the adjective "unnecessary" to qualify the statutory word "act" is common to the submissions in both cases. Steyn L.J. rejected the submission on the following grounds:-

"The simple answer to this construction is to be found in the ordinary meaning of the words of Section 14(1). The contextual meaning of 'injury' in Section 14(1) is a personal injury without any further gloss other than by the express definition of 'significant' in Section 14(2). The word 'act' does not by itself describe something which ought not to have been done. And it would have been impossible to attach a qualitative element to 'omission' but not

to 'act'. (Emphasis added)

Stripped to its essentials counsel's argument is simply an attempt to argue that the injured party must know that he has a possible cause of action. That is not a requirement of Section 14(1). Moreover in 1974 the Law Reform Committee rejected a proposal that the injured party must have knowledge 'that he has a worthwhile cause of action': See paragraph 53. The present argument is simply a thinly veiled variant of a possible solution which was rejected by the Law Reform Committee in 1974 and by Parliament in 1975 and 1980."

(Emphasis added)

It should be noted that, in the Irish statute, there is no definition of the word 'significance' such as Steyn L.J. refers to in the English equivalent. With that exception, I believe the relevant parts of this statute are directly comparable. I believe that it is inadmissible to import the notions of non-necessity, or of something having gone wrong, into the plain words of s.2(1)(c). Importing the concept of negligence would clearly fly in the face of the final words of the sub-section. But the fact that the concept of negligence is excluded by express words does not justify the importation of some other, extra statutory, requirement to the sub-section simply on the basis that it is something short of negligence.

I would also observe, though it is unnecessary to the approach I have adopted, that the Irish Law Reform Commission did not advocate that time should not start running until the plaintiff was or ought to have been aware 'that something had gone wrong' or anything of the kind. It advocated only, in a passage quoted above "That time should begin to run only where the plaintiff becomes or ought to become aware that the injuries attributable, in at least some degree, to the conduct of another".

Subsequent English Authority.

I agree with, and would follow, the statements of the Lords Justices of Appeal in Dobbie. The plaintiff, however, relies strongly and with considerable effect on the later judgment of the Court of Appeal in the neighbouring jurisdiction; Hallam-Eames v. Merrett Syndicates Limited [1996] 7 Med L.R. 122.

There is no doubt that this case, which purports to explain Dobbie has given rise to a series of cases which are now authoritative in the neighbouring jurisdiction. I must frankly say that I do not consider that it "explains" Dobbie's case. I believe it simply departs from that case on a basis which (as I hope to show) is wholly unconvincing and indeed illogical.

Hallam-Eames concerned the question of whether an action by certain Lloyds "Names" against their managing agent were statute-barred. It is not the least remarkable feature of the case that a considerably more indulgent view was taken of what was needed to constitute a Lloyds member's "date of knowledge" of commercial matters than of a housewife's state of knowledge of matters surgical.

The High Court judgment in Hallam-Eames was that of Gatehouse J. who found against the plaintiffs on an application of the judgments of the Court of Appeal in Broadley and Dobbie, both cited above. The learned judge cited extensively from both cases. In addition to quotations already given above, he quoted Balcombe L.J. "qualitative knowledge is irrelevant"; Hoffman L.J. "[T]his case is concerned with the identification of the act which caused the injury…" and again "… it seems to me clear that the essence of Mrs. Broadley's complaint is that her nerve was damaged in the course of the operation… in my judgment this was all the knowledge or imputed knowledge which she needed to have".

Despite this extensive citation the Court of Appeal took the view that the judge was guilty of "… an over-simplification of the reasoning in Broadley and Dobbie."

There follows a truly remarkable passage in which Hoffman L.J., citing extensively from himself in the third person, introduces several new concepts, short of negligence, which the Court now ordains are to be added the statutory provision in respect of what a plaintiff must know to set time running. These are the following:-

(1) One must ask "what is the essential thrust of the plaintiff's case"?

(2) In Dobbie, this essential thrust 'was that the plaintiff had removed a healthy breast'. One can only comment that this is not a qualification the learned judges felt called upon to make in Dobbie itself.

(3) "If one asks what is the principle of common sense which would identify Mrs. Dobbie's complaint as the removal of a healthy breast rather than simply the removal of a breast, it is that the additional fact is necessary to make the act something of which she would prima facie seem entitled to complain". This concept, of facts giving rise to an entitlement to complain being an essential component of a plaintiff's state of knowledge, is wholly novel.

(Emphasis added)

(4) A few lines later the learned Lord Justice, referring to the potential plaintiff says "[H]e must have known the facts which can fairly be described as constituting the negligence of which he complains ".

Hoffman L.J. summarises the contention of the defendant's counsel in Hallam-Eames as being that the approach just outlined was wrong because it was "a back door way of introducing a requirement that the plaintiff must have known that the defendant had been negligent…". Hoffman L.J.'s approach may indeed go so far, and there is evidence in the immediately following passage that it does. But for our purposes it is unnecessary to consider whether or not it is a back door way of introducing a requirement of negligence: it is quite sufficient if it introduces some concept, whether of entitlement to complain, of something having gone wrong, or however one expresses it, which is supplementary to the statutory requirement contained in s.2(1)(c).

No argument or logical process is advanced in favour of Lord Justice Hoffman's formulation other than what he describes as "common sense principles". These are very inarticulately described. For example:-

"There may be many acts, omissions or states which can be said to have a causal connection with a given occurrence, but when we make causal statements in ordinary speech, we select on common sense principles the one which is relevant for our purpose. In a different context it could be said that a Name suffered losses because some Members Agent took him to lunch and persuaded him to join Lloyd's. But this is not causally relevant in the context of an allegation of negligence".

This is reductio ad absurdam. The invitation to lunch in Hoffman L.J.'s example is in no way an operative cause of the financial loss suffered much later. Indeed, Hoffman L.J. concedes as much but suggests that it is saved from being so regarded only by some process of commonsense employed in the relevant context, which alone can arrest the seamless chain of causation at a meaningful point.

But the invitation to lunch is at most a causa sine qua non and is probably not even that, but merely incidental background. Even if it were a causa sine qua non, that would merely mean that it was "… a cause which does not, in the sense material to the particular case, cause, but is merely an incident which precedes in the history or narrative of events, but as a cause is not in it at the death, and is hence irrelevant." (per Lord Wright in Smith, Hogg and Co. Limited v. Black Sea & Baltic General Insurance Co. Ltd. [1940] A.C. 997. The statutory words, referring to an injury "attributable" to an act or omission requires a closer and an operative connection, a causa causans as the old logicians put it. To "attribute" is defined in the Shorter Oxford English Dictionary as "to ascribe to as an effect or consequence". Whether or not this can be done is determined by a rigorous inquiry which, however, is confined to causality: is the injury the effect or consequence of the act? It does not depend on a more or less intuitive process described as "common sense".

But it is on this basis of what is said to be robust common sense that the learned Lord Justice supplants what the Court had previously articulated as a purely causal criterion without any qualitative dimension with a criterion of, prima facie, entitlement to complain, which is wholly qualitative. No basis for this augmentation of the criteria to be met before time starts running has been advanced, either in logical or legal terms. The Court of Appeal in Hallam-Eames criticised Gatehouse J. for "oversimplification"of Broadley and Dobbie: the reality is that Gatehouse J. followed those cases faithfully. The Court of Appeal, decided for some reason which does not appear significantly to reduce the burden on a plaintiff seeking to sue out of time. I cannot agree that the seeds of this reduced burden are anywhere to be found in their previous decision. I would not follow Hallam-Eames or the cases which follow it because I think they read into the statute more than it contains.

The kernel of the present case.

The kernel of the present case, in my view, is that the first-defendant performed an unnecessary hysterectomy on the plaintiff; made false representations to the effect that the operation had been necessary; and used his professional position in an overbearing and melodramatic manner to prevent her, until the limitation period had run, from making

further enquiries. To my mind this amounted to concealing her cause of action from her, a state of affairs for which the law provides a remedy, in the form of s.71 of the Act of 1957.

The plaintiff has however pursued her remedy along other lines. It is not, in my view, a matter of merely technical significance whether she achieves her remedy by reason of s.71 or on the basis of what I regard as a novel interpretation of s.2(1) of the Act of 1991.

The Act of 1991 was a considerable easing in the position of plaintiffs suing in respect of diseases or impairments which were latent in their nature or their true significance. Its wording is apt to meet the difficulties of such persons. It does not, in my view, extend to circumstances where the disease or impairment is all too painfully patent but some qualitative aspect of it has been concealed. In such circumstances the law provides a remedy in respect of equitable fraud but not otherwise.

I am of course fully aware that in reaching a different conclusion the learned Geoghegan J. does not ground himself on the English cases which have been so much discussed but on an independent construction of the Act of 1991. But the English cases, dealing with statutes which are not merely similar to ours but which proceed from a conscious effort to address the same perceived mischief, that of latent injuries, illustrate in my view the necessity for a literal construction of s.2, and especially s.2(1)(c). I cannot read the sub-section as incorporating a reference to any knowledge of a qualitative kind, and I cannot see that it needs to do so to address the mischief at which it is aimed. On the contrary, if the sub-section is read to incorporate any reference to non-necessity or to something having gone wrong, its meaning would be extended to cover cases where the plaintiff at all material times knew the facts of what occurred but viewed those facts in a different light to that which she later adopts. I do not believe, on a construction of s.2, that it was intended to extend to such cases. Section 71, on the other hand is intended to extend to such cases where the plaintiff's right of action is concealed by equitable fraud. The question of whether, and to what extent, litigation should be permitted in respect of alleged injuries outside the normal statutory period is a weighty one with serious implications for potential plaintiffs, service providers, and the community as a whole. It is emphatically one for legislative decision and there has been considerable legislative activity in the area, both here and in the neighbouring jurisdiction. It is for these reasons that the question of whether a plaintiff, such as the plaintiff here, who has undoubtedly been wronged, recovers by virtue of s.71 of the Act of 1957 or of the interpretation advanced of s.2 of the Act of 1991 is a question of substantive importance and not a mere technicality.

Conclusion.

I would allow the appeal and set aside the order of the High Court on the basis that I consider the plaintiff's claim to be statute-barred.
THE SUPREME COURT

Hardiman J.

Geoghegan J.

McCracken J.

400/2002

BETWEEN/

ALISON GOUGH

Plaintiff/Respondent

and MICHAEL NEARY AND BASIL CRONIN

Defendants/Appellants

JUDGMENT delivered on the 3rd day of July 2003 by

GEOGHEGAN J.

This appeal arises out of an action for damages for personal injuries in the High Court for negligence on the part of the defendants and in the case of the second-named defendant of his servants and agents in unnecessarily carrying out a hysterectomy on the plaintiff/respondent in the course of a birth delivery. The first-named defendant/appellant was the relevant consultant obstetrician and gynaecologist. The second-named defendant/appellant was sued in his capacity as trustee of Our Lady of Lourdes Hospital in Drogheda where the delivery took place. Judgment was obtained against both defendants in the High Court and they have appealed both on the grounds that a plea of statute bar was not upheld by the learned High Court judge and on the grounds that the damages awarded were too high. There is no separate issue involving the two defendants and, therefore, for convenience throughout this judgment I will refer mainly to the plaintiff and to Dr. Neary.

The unnecessary hysterectomy was carried out on the 27^th of October, 1992. The action was not commenced until the 21^st of December, 1998. Paragraph 8 of Dr. Neary's defence contained the following plea:

"… the plaintiff's claim herein against the first-named defendant is barred by virtue of the operation of section 11 of the Statute of Limitations 1957."

In an amended defence delivered on behalf of the second-named defendant the following plea is contained in paragraph 6:

"The plaintiff's claim herein against the second-named defendant is barred by virtue of the operation of section 11 of the Statute of Limitation 1957 as amended."

The respective replies delivered to both defences in so far as they related to statute bar merely traversed the pleas in the defences. It is not in dispute that if the Statute of Limitations 1957 had remained unamended, this action would be clearly statute barred unless of course a case of concealed fraud could have been made. The plaintiff is not relying on any "concealed fraud" argument nor on any novel interpretation of the Statute of Limitations 1957 which in reality would not have been open having regard to the judgments of this court in Hegarty v. O'Loughran [1990]1 IR 148 which approved the well-known English House of Lords decision in Cartledge v. E. Jopling and Sons Limited [1963] A.C. 758. The problem of the plaintiff who becomes statute barred in circumstances where he or she could not reasonably have known that he or she had a cause of action within the statutory period first became highlighted in these islands in that last mentioned case. It led to statutory law reform in England which proved unsatisfactory and there had to be further reform. The further reform itself has given rise to a large number of cases some of which were cited in this appeal. I think that it can be safely asserted that the current English statutory framework is by no means satisfactory.

In relation to personal injury actions statutory reform came in this jurisdiction by way of the Statute of Limitations (Amendment) Act, 1991 and that is the Act on which the plaintiff relies for the purposes of escaping statute bar. In the time honoured fashion large parts of the wording of the 1991 Act are copied directly from the English Limitation Act, 1980. But for reasons which I will explain in the course of this judgment I am of opinion that the similarities are in wording rather than in substance and that there are important differences between the Irish 1991 Act and the English 1980 Act which render it unsafe to attach too much significance to English case law interpreting provisions in the 1980 Act which might be similar in wording to provisions in the Irish Act.

The statutory provision on which the plaintiff relies is contained in section 3(1) of the 1991 Act. That subsection reads as follows:

"An action, … claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under statute or independently of any contract or any such provision) shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured."

The meaning of the expression "date of knowledge" is given in section 2 of the Act. That section reads as follows:

"2.—(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:

(a ) that the person alleged to have been injured had been injured,

( b) that the injury in question was significant,

( c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

(d ) the identity of the defendant, and

(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2) For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire—

( a ) from facts observable or ascertainable by him, or

( b ) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.

     (3) Notwithstanding subsection (2) of this section—

( a ) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and

( b ) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury."

The issues which arise on the statute bar question in this case are both correctly stated and placed in a correct context in the written submissions lodged in this court on behalf of the plaintiff. It is not in controversy that the action is not statute barred if there was an absence of relevant knowledge on the part of the plaintiff within the ordinary statutory period of either of the following facts.

(1) That she "had been injured" within the meaning of the 1991 Act or (2) that the "injury" was attributable in whole or in part to "the act or

omission" which was "alleged to constitute negligence" on the part

of Dr. Neary.

The problem is that the words and phrases in quotation marks are capable of more than one meaning. The first requirement of knowledge of the injury itself is a novelty in the Irish Act and is not copied from the English legislation. Even though the learned trial judge seems to have taken a different view, I do not think that it was seriously contested at the hearing of this appeal that the word "injured" in section 2(1)(a) of the 1991 Act has to be given a meaning which is cognate to the expression "personal injuries" defined though not comprehensively in the Statute of Limitations, 1957. However, in the opinion of Barr J. expressed in Maitland v. Swan Professional Negligence Law Reports 1968-1993 p. 368 and with which I agreed in an unreported judgment of mine in the High Court in Maguire v. Smithwick delivered the 27^th of June 1997, the "injury" must be a non-consensual injury. There may be nuances of difference between the views expressed by Barr J. and my own views as expressed in the Maguire case as to what would be covered by such an expression and although I am still satisfied that my decision in the Maguire case was correct, I would be very much open to argument as to whether I correctly stated the general principle. Each individual case throws up its own facts and my comments on the relevance of side effects may not fit neatly into every case. Indeed, in this particular case the following bold assertion is made in paragraph 9 of the written submissions on behalf of the plaintiff:

"A life saving hysterectomy is a 'curative medical operation' in our submission and 'absolutely necessary damage caused in a medical operation' and is not a 'side effect of a damaging nature'."

I would have very considerable doubts about the validity of this submission but as I believe that the plaintiff must succeed on the second aspect of knowledge for reasons which I will be expounding in some detail I do not find it necessary to express a definitive view as to when the plaintiff had knowledge of an injury for the purposes of the 1991 Act.

I move therefore to the second "knowledge" issue. This arises out of section 2(1)(c) of the 1991 Act and there is an identical equivalent provision in the English Limitation Act, 1980 (a consolidating Act) which in turn was derived from the English Limitation Act, 1975. What was the "act or omission" which was "alleged to constitute negligence" in this case? The plaintiff in the written submissions at paragraph 11 puts it quite simply.

"The act which constitutes negligence in this case is this: the performance of an unnecessary hysterectomy."

At the hearing of this appeal Mr. Meenan, S.C. counsel for Dr. Neary argued forcefully that that statement cannot be correct because he says that if it is correct there is a breach of the so called "proviso". The "proviso" to which he is referring is contained in the last two lines of section 2(1) of the 1991 Act. Those lines read as follows:

"and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

Mr. Meenan says that knowledge that the hysterectomy was unnecessary is irrelevant in that, in his submission, it is the same thing as knowledge that the surgeon's acts did, as a matter of law, involve negligence.

Mr. Nugent, S.C. counsel for the plaintiff, no doubt out of some apprehension that this submission of Mr. Meenan's might fall on fertile ground reformulated the alleged deficiency in the plaintiff's relevant knowledge. Mr. Nugent while conceding that obviously the plaintiff knew at all material times that a hysterectomy had been carried out argued that that knowledge was not enough in that she did not know that she was not in point of fact bleeding to death. The evidence was that Dr. Neary had explained to the plaintiff that she had lost so much blood that he had never witnessed anything like it, that her life had been in danger and that he, Dr. Neary, had saved her life by the performance of the hysterectomy. This alternative formulation of his argument by Mr. Nugent is superficially attractive and at one stage I was certainly tempted to accept it. But on reflection I have come to the conclusion that I must resist any such temptation. Knowledge of whether bleeding in a particular given situation was sufficient or not sufficient to justify a hysterectomy is the kind of detailed medical knowledge which, on the English authorities (and in this respect I agree with them), was not intended by the legislation. One can argue indeed that the legislation was primarily designed to help lay people who could only be expected to have a very general knowledge of what might or might not have caused a mishap to them. I would prefer to return to the original formulation by the plaintiff contained in the written submission. In my opinion, it does not make sense to argue, as Mr. Meenan does, that the only knowledge required was the knowledge that a hysterectomy was carried out plus the pieces of information given to the plaintiff at the time. It is essential to place this in context. If, as was the case, the plaintiff was led to believe that the hysterectomy was absolutely necessary to save her life, then, the question of litigation could not even remotely arise. The important gap in her knowledge was that the hysterectomy was unnecessary and that in the context that the plaintiff had been assured that it was absolutely necessary. To have knowledge that an operation was unnecessary is not the same thing as knowledge that in proceeding to carry out the operation, the tort of negligence was committed. There may be all sorts of circumstances where an unnecessary medical procedure is regrettably carried out but where, for one reason or another, there was no actionable negligence on the part of the defendant who is sued or indeed in some instances on the part of anyone. Negligence and unnecessariness are not synonyms. Indeed, even if they were, the ordinary English word "negligence" is not necessarily the same thing as the tort of negligence. Yet the so called proviso refers to acts or omissions which did or did not "as a matter of law" involve negligence.

The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail.

I am conscious, however, that Mr. Meenan would argue and, indeed, did argue that my approach is contrary to the English authorities. In deference to Mr. Meenan's strong submissions in relation to the English body of case law (which includes cases not cited) I intend to review some of the English cases as briefly as I can.

Chronologically, the first case relied on by Mr. Meenan was Broadley v. Guy Clapham & Co. [1994] 4 All ER 439. That was a case where a plaintiff had a knee operation to remove a foreign body. The Court of Appeal held that a person who alleged that medical negligence had occurred in the course of a surgical operation was fixed with a cause of action for the purposes of the equivalent provision of the English 1980 Act when he knew or could have known with the help of medical advice reasonably obtainable that his injury had been caused by damage resulting from something done or not done by the surgeon during the operation. Knowledge detailed enough to enable a statement of claim to be drawn up was not required to start the period running and on the facts of that case the court held that it was clear that within a year of the operation the plaintiff had both "broad knowledge" that the operation had caused an injury to her foot and "specific knowledge" that the operation had been carried out in such a way as to damage a nerve in her leg thereby causing foot drop. It is unnecessary to go beyond that brief summary to demonstrate that it is a wholly different case from the case, the subject of this appeal. But Mr. Meenan's reliance on it largely relates to the observations of both Leggatt LJ and Hoffmann LJ to the effect that the only function of the words "which is alleged to constitute negligence" is to point to the relevant act or omission to which the injury was attributable. In other words they are words of identification only. Subject to qualifications to which I will refer I do not quarrel with that view and, indeed, I had endorsed it in my judgment in the Maguire v. Smithwick case cited above.

The next English case cited by Mr. Meenan is probably the one on which he places most reliance. It is Dobie v. Medway Health Authority [1994] 4 All ER 450. In that case an unnecessary mastectomy had been carried out on the plaintiff in the belief that she had a malignant lump in her breast whereas in fact it was benign. For a long time it did not occur to the plaintiff that the surgeon was negligent and she accepted the view of the surgeon that she was fortunate that the growth had not proved to be malignant. After she had heard of a similar case she realised for the first time that her breast need not have been removed until a microscopic examination of the lump had been carried out. In the leading judgment Sir Thomas Bingham MR (as he then was) upheld findings of fact made by the High Court judge and went on to observe as follows:

"The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she, at all times, reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributable to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority's act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run."

Some of the wording in that passage is in my view somewhat unfortunate because, for instance, the relevant section (which is the same as the Irish provision in this respect) does not contain either the word "negligent" or the word "blameworthy". What is irrelevant under the statutory provision is knowledge that the act or omission did or did not as a matter of law (my emphasis) involve "negligence, nuisance or breach of duty". Those three words are plainly intended as being the names of torts. The important factual matter in the Dobie case is that at a very early stage the plaintiff knew that the growth was in fact benign. Therefore, there was immediately the possibility that the removal of the breast was unnecessary. There is no equivalent state of affairs in this case.

But at any rate Dobie has been explained (I would almost say explained away) by Hoffmann LJ in delivering a judgment of the Court of Appeal in which he was sitting with Sir Thomas Bingham MR and Saville LJ. The case which was cited at the hearing of this appeal is Hallam-Eames v. Merrett Syndicates Limited [1995] 7 Med LR 122. Commenting on Dobie at p. 125 of the report Hoffmann LJ said the following:-

"In Dobie the plaintiff was admitted to hospital for the removal of a lump in her breast. The surgeon who excised the lump formed the view that it was cancerous and removed the breast. Afterwards on microscopic examination the lump turned out to be benign. She knew shortly after the operation that the breast had been removed before the microscopic examination but was not advised until seventeen years later that it may have been negligent to do so. Again, this court held that she knew enough at the earlier stage to satisfy section 14(1)(b)."

Hoffmann LJ goes on to refer to the interpretation of the trial judge in Hallam-Eames, Gatehouse J., of the judgments in the Dobie case and the earlier case of Broadley, Gatehouse J. had, in the view of Hoffmann LJ, interpreted those cases to mean that a plaintiff need only have known that his damage had been caused by an act or omission of the defendant. Hoffmann LJ goes on to observe:

"In our judgment this is an oversimplification of the reasoning in Broadley and Dobie. If all that was necessary was that a plaintiff should have known that the damage was attributable to an act or omission of the defendant, the statute would have said so. Instead, it speaks of the damage being attributable to 'the act or omission which is alleged to constitute negligence'. In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence. There may be many acts, omissions or states which can be said to have a causal connection with a given occurrence, but when we make causal statements in ordinary speech, we select on common sense principles the one which is relevant for our purpose."

Further on the following observation appears in the judgment.

"It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know 'the essence of the act or omission to which the injury is attributable' (Purchas LJ in Nash v. Eli Lilly & Co. [1993] 1 WLR 782, 789) or 'the essential thrust of the case' (Sir Thomas Bingham MR in Dobie [1994] 1 WLR 1238) or that one should '… look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based'. (Hoffmann LJ in Broadley …)

If one asks on common sense principles what Mrs. Dobie was complaining about, the answer is that the surgeon had removed a healthy breast. It would in our view be a seriously incomplete statement of her case to say that it was simply that the surgeon had removed her breast. This is not a matter of elaborating the detail by requiring knowledge of precisely how he had come to do the act complained of, such as this court rejected in Broadley. It was part of the essence of her complaint. Nor is it requiring knowledge of fault or negligence. The court's emphatic rejection of such a requirement is entirely consistent with characterising the act complained of (and of which knowledge was therefore required) as the removal of a healthy breast. But the judge, as it seems to us has read Dobie to mean that knowledge that the surgeon had removed her breast would have been enough.

If one asks what is the principle of common sense on which one would identify Mrs. Dobie's complaint as the removal of a healthy breast rather than simply the removal of a breast, it is that the additional fact is necessary to make the act something of which she would prima facie seem entitled to complain. She was suspected of having a cancerous lump and if this had been the case, the removal of her breast would not have been a matter for complaint."

It is appropriate to pause at this stage in the review of the English case law and consider those principles in relation to this particular case. While it may not be necessary for the purposes of starting the statute to run to know enough detail to draft a statement of claim, a plaintiff in my opinion must know enough facts as would be capable of at least upon further elaboration of establishing a cause of action even if the plaintiff has no idea that those facts of which he has knowledge do in fact constitute a cause of action as that particular knowledge is irrelevant under the act. But the adequacy of the knowledge must be related to the context and in this case the plaintiff who was a person of limited education was entitled to assume that the hysterectomy was carried out by Dr. Neary to save her life at the time of childbirth because that is what she was told by him. Mere knowledge that a hysterectomy was carried out therefore is irrelevant. Nor do the pieces of additional information that she did have from the doctor provide her with any relevant knowledge. It was only when she discovered that the operation was unnecessary that the period started to run. Of course, constructive knowledge under the act that the operation was unnecessary would suffice. But this plaintiff, in my view, had neither actual nor constructive notice within the ordinary period "that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence". That cannot be the hysterectomy itself but rather the unnecessary hysterectomy. As I have already mentioned the fact that the hysterectomy was unnecessary does not necessarily mean there was negligence and, therefore, knowledge that the hysterectomy was unnecessary is not "irrelevant" under the last part of s. 2.

Mr. Meenan also relied on Forbes v. Wandsworth Health Authority [1996] 3 WLR 1108. In that case the plaintiff's leg had been amputated following two unsuccessful bypass operations performed at the defendants' hospital. Ten years later the plaintiff received medical advice that the amputation was attributable to an omission to perform the second bypass operation earlier. The trial judge held that the plaintiff had no actual or constructive knowledge of the omission within the meaning of s. 14 of the Limitation Act, 1980 until he received the medical advice and that, therefore, the action was not statute barred. The Court of Appeal, Stuart-Smith, Evans and Roch L.JJ. (Roch L.J. dissenting) allowed the appeal but only on the grounds that on the facts of that case the plaintiff would have had constructive knowledge. In my view, therefore, the case is not particularly helpful if helpful at all to Mr. Meenan. In fact on the aspect of actual knowledge there is a significant passage in the judgment of Stuart-Smith LJ at 115 which is worth citing.

"In many medical negligence cases the plaintiff will not know that his injury is attributable to the omission of the defendant alleged to constitute negligence, in the sense that it is capable of being attributable to that omission, unless he is also told that the defendant has been negligent. But that does not alter the fact that there is a distinction between causation and negligence; the first is relevant to section 14(1), the second is not. The fact that in such cases it may be necessary for the plaintiff also to know of the negligence before he can identify the omission alleged to have been negligent is nothing to the point. It does not mean that he falls foul of the closing words of section 14(1). For these reasons, I consider that the judge was correct in holding that there was no actual knowledge."

I am in complete agreement with that passage. It would seem to me that as a matter of common sense certain facts which in so far as they might be referred to for the purposes of establishing that the tort of negligence was committed, would be irrelevant might nevertheless be relevant for the purposes of establishing causation or more accurately attributability for the purposes of s. 2(1)(c). It has been pointed out in a number of English authorities though not I think the particular cases cited in this appeal that "attributable" must be given the meaning potentially attributable if the section is to be workable. This would seem to me to be probably correct but makes no difference to the "overlap" point referred to by Stuart-Smith LJ.

Since the hearing of this appeal it has come to my notice via the internet that there are quite a number of later English cases relevant to this limitation provision. As in a broad way they range over the same issues which have been debated at the hearing of this appeal I think that I can safely refer to a few points in them without introducing any new matter that has not been the subject of argument before this court. The principal authority to which I want to refer is Spargo v. North Essex District Health Authority 37 BMLR 99 and the judgment of the Court of Appeal (Nourse, Brooke, Waller LJJ) delivered the 13^th of March, 1997. The judgment of the court is the judgment of Brooke LJ in which he asks himself the rhetorical question, what does the law require in order that actual knowledge is established? He observes that "this branch of the law is already so grossly overloaded with reported cases, … that I see no reason to add to the overload by citation from earlier decisions." He then cites a large number of the reported cases and draws from them certain principles. I think it important to mention this because these principles have ever since been regularly referred to in later English judgments and have almost been interpreted as though they were statutory. As formulated by Brooke LJ they are as follows:

"(1) The knowledge required to satisfy s. 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2) 'attributable' in this context means capable of being attributed to, in the sense of being a real possibility;

(3) a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was."

One of the judges in a later case observed that while this summary of the case law by Brooke LJ was helpful up to a point, the application of the four principles in a given case was by no means easy. Certainly, there is no merit in my view in casting them as stone. But I do think that on the facts of this particular case the first of Brooke LJ's principles is relevant. The plaintiff would have to know or be expected to know that the hysterectomy was unnecessary before she could be said to have "a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable". I am, of course, referring to the context in which the hysterectomy was carried out in this case. I am not referring to a situation where a particular operation was carried out negligently which would be quite different.

There are a number of English cases on the subject of more recent origin. One of them is Sniezek v. Bundy (Letchworth) Limited (Court of Appeal unreported judgment delivered 7^th of July, 2000). I mention this case for two reasons. First of all, it is an example of quite a number of English cases in which the judges of the Court of Appeal have clearly regarded the summary of the case law given by Brooke LJ in the Spargo case, cited above as being correct and that the principles as set out by him were applicable. But of interest also is the following passage contained in the judgment of Judge LJ:

"The word (knowledge) has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context 'knowledge' clearly does not mean know for certain and beyond possibility of contradiction.' It does, however, mean 'know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence', suspicion particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice."

Again, in Chaplin v. Moss in an unreported judgment delivered on the 17^th of July, 2001 by Mr. R. Marrey Q.C. (sitting as a deputy judge of the High Court) the Spargo case and in particular those principles set out by Brooke LJ were taken as the correct principles to apply in relation to "knowledge". Yet again in Mirza v. Birmingham Health Authority Eady J. in an unreported judgment of the 31^st of July, 2001 in the Queen's Bench Division observed as follows:

"It is probably now unnecessary to go further than applying the guidance afforded by Brooke LJ in North Essex District Health Authority v. Spargo [1997] 8 Ned LR 125, 129-130 in the light of the earlier authorities he there reviewed".

The judge then sets out those principles already cited.

In a further judgment of the Court of Appeal in Rowbottom v. Royal Masonic Hospital 65 BMLR 103, it was held that the question for the court was when had the appellant known that his injuries were capable of being attributed to something done, or not done by the staff of the defendants' hospital? Again, the court was purporting to apply the principles as set out in Spargo. There is no doubt that that case is now the "gospel" in England as far as this branch of the law is concerned.

For the reasons which I have indicated, I think that the plaintiff in this case did not have the relevant "knowledge" under the principles set out in Spargo within the ordinary statutory period. But even if I am wrong in my view that the plaintiff is entitled to rely on Spargo, I would still be of opinion that the plea of statute bar must fail. While the English cases are obviously of some assistance they must be read and interpreted with caution. There are two important reasons in particular why this is so. First of all in the English Act there is a special definition relating to what in the Irish Act is the second requirement i.e. knowledge that the injury is significant. Secondly, there is a special provision in the English Act which allows the court in certain circumstances to extend the limitation period as a matter of discretion even though the case would otherwise be statute barred. There is no doubt that on a careful reading of a number of the judgments this latter fallback provision has had some effect on the way the courts have interpreted and applied the "knowledge" provision.

Notwithstanding Mr. Meenan's forceful submissions therefore, I am firmly of the view that the relevant knowledge in this case included knowledge that the operation was unnecessary and that knowledge did not exist more than three years before the commencement of the action. I, therefore, believe that the plea of statute bar must fail and in that respect I would dismiss the appeal.

I turn now to the second aspect of the appeal which relates to the amount of the damages awarded. The defendants/appellants submit that the award of €250,000 for general damages was excessive, to an extent that this court should interfere. The appellants in criticising the amount of the damages primarily rely on three decisions of this court namely, Gillick v. The Rotunda Hospital an ex tempore judgment of the Supreme Court delivered the 15^th of May, 1998; Rossiter v. Dún Laoghaire Rathdown County Council [2001] 3 IR 578 and Fitzgerald v. Treacy [2001] 4 I.R. 405. The respondent on the other hand primarily relies on the High Court judgment of Morris P. in Kealy v. The Minister for Health [1999] 2 I.R. 456.

There is no doubt that as a matter of fact what happened to the respondent was devastating. As a consequence of the negligence of Dr. Neary she was never going to be able in the future to give birth to a child and at the time of the hysterectomy she was just under twenty-eight years of age. As is the case so often with serious personal injury, in one sense, no money could compensate the respondent. But the learned High Court judge nevertheless was obliged to arrive at a figure and to do so by reference to the kind of damages that would normally be awarded for other injuries that might be more or less serious. It is clear now that the test to be applied by this court as to whether it will alter an award of damages either upwards or downwards is a test of proportionality as explained in the judgment of Fennelly J. in this court in the case of Rossiter v. Dún Laoghaire Rathdown County Council cited above. At p. 583 of the report Fennelly J. said the following:

"The more or less unvarying test has been, therefore, whether there is any 'reasonable proportion' between the actual award of damages and what the court, sitting on appeal, 'would be inclined to give'."

The words of the inner quotations were taken from Palles CB in McGrath v. Bourne (1876) I.R. 10 C.L.160. The "twenty-five per cent discrepancy" test suggested by McCarthy J. in Reddy v. Bates [1983] I.R. 141 at 151 was merely a useful pragmatic rule of thumb. The points on which the appellant primarily relied were that while the plaintiff was undoubtedly upset by her loss of capacity to reproduce coupled with a sense of guilt she was nevertheless able to continue with her normal activities looking after her husband and her child and keeping down a responsible job. Although she had her operation as far back as October, 1992 she never came under the care of a psychiatrist until October, 1999. By that stage she had issued High Court proceedings by a plenary summons dated the 21^st of December, 1998. She had undoubtedly been under the care of different GPs and had some counselling from a psychologist. In the written submissions it is pointed out that the evidence of Dr. McCarthy, a competent psychiatrist was to the effect that the plaintiff was likely to make a full recovery when she perceived that "justice had been done". This seems clear from Dr. McCarthy's answers under cross-examination.

The respondent on the other hand strongly challenges what she perceives as an underplaying of her injury. I think it useful here to reproduce a list of ill-effects relied on by the respondent and in respect of which transcript references are given in the written submissions. As listed in the written submissions they are as follows:

"(a) She had major surgery unnecessarily.

(b) She thereby lost her ability to have children.

(c) She was devastated by this.

(d) She had a sense that this was caused by something she had done wrong.

(e) She was unable to sleep.

(f) She felt like crawling into a hole.

(g) She had irrational feelings that if she lost her womb she could lose her son.

(h) She could not think.

(i) She did not 'feel like a woman'.

(j) She had a sense of guilt about the way she was feeling.

(k) The counselling she received was of no help to her.

(l) Her external appearance of getting on with her life masked an internal turmoil.

(m) She assumed a guilt about the patients of the defendant who has hysterectomies after hers.

(n) In 1998 when she heard that the defendant was being investigated for carrying out unnecessary hysterectomies she 'just cried and cried'.

(o) She had been on medication since 1998.

(p) She required psychiatric help.

(q) She was ashamed to admit depression in case she would be deemed unfit to mind her son."

Even if one is to view the respondent's injuries and ill-effects exclusively in the way she and her lawyers see them, I do not find it possible to justify an award of €250,000 having regard to the levels of award in relation to different types of physical injuries. The learned High Court judge arrived at that figure by awarding €150,000 for general damages to date together with another €100,000 for pain and suffering into the future. Without in any way minimising the respondent's injuries and ill-effects they do not, in my view, compare with physical injuries of a kind that would attract that kind of damages. I say this without having any regard to a Sinnott v. Quinnsworth "cap" and I will return to that matter as it featured at the hearing. I am simply considering what would be a reasonable figure for general damages without reference to any maximum figure which might be allowed in particular types of cases. In my opinion €200,000 is the maximum figure which would be reasonable in the circumstances. Bearing in mind and paying respect to the view which the learned High Court judge took after having had the benefit of seeing the respondent in the witness box etc., I would not interfere with the amount of €150,000 damages for pain and suffering to date but I consider that having regard to Dr. McCarthy's evidence in particular, a figure of €50,000 is appropriate for pain and suffering in the future. I should mention that in this case the special damages are relatively low being a sum of €23,223.27. I would, therefore, allow the appeal on quantum to the extent of reducing the award for general damages of €250,000 to an award of €200,000. The total award would, therefore, be €223,223.27.

I have already made it clear that in arriving at that figure I am not having regard to the so-called "cap" figure which is awarded as a maximum for general damages in certain types of cases. But as there appears to be confusion and ambiguity about whether the maximum figure for general damages suggested in Sinnott v. Quinnsworth but now updated applies in all cases of personal injury irrespective of whether there are high special damages or not, I would like to make some observations of my own. In suggesting that it applies to all cases the appellant especially relied on the judgment of the Chief Justice in the decision of this court in Fitzgerald v. Treacy cited above. Although, through an error I am not named in the head note, it can be seen from the report itself that I sat on that court and I recall the case. I have always understood that the principle of the "cap" first enunciated in Sinnott v. Quinnsworth Limited [1984] ILRM 523 applied only to very substantial damages cases where there was a high element of special damages particularly loss of earnings. I do not think that it was ever intended in Fitzgerald v. Treacy to extend the principle to every case of general damages. The "cap" figure was undoubtedly considered relevant by this court in considering what was the appropriate damages in the particular case and what the Chief Justice would have had in mind was that the question of the "cap" arises in the case of what he called "catastrophic" injuries which result in high special damages but which also by necessity would attract high general damages. As far as I can recall there was never an issue in that case as to whether capping had to be applied in a case of low special damages but substantial general damages. Such a principle would certainly be an extension of the original rule enunciated by O'Higgins C.J.

To understand the principle it is necessary to go back to Reddy v. Bates [1983] I.R. 141. Griffin J. at p. 148 said the following:

"The fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded… In a case of this nature where damages are to be assessed under several headings, the jury, having added the various amounts awarded and having arrived at a total figure for damages, should consider the total sum (as should this court on any appeal) for the purpose of ascertaining whether the total sum is, in the circumstances of the case, fair compensation for the plaintiff for the injury suffered or whether it is out of all proportion to such circumstances. In my view, the income which that capital sum would generate with reasonably careful and prudent investment is a factor which the jury (and this court on appeal) should take into consideration in arriving at a conclusion in this behalf."

O'Higgins C.J. after citing that passage in his judgment in Sinnott v. Quinnsworth goes on to point out that the injury which the plaintiff Sinnott had suffered had changed him from being an active healthy young man on the threshold of adult life into a helpless dependent paralysed being conscious of what he has lost and facing a bleak uncertain and limited future. The former Chief Justice went on to observe as follows:

"To talk of compensating him for such a terrible transformation is to talk of assaying the impossible."

I do not want to lengthen this judgment unnecessarily by giving the full quote from the judgment of O'Higgins C.J. but it is sufficient to state that he formed the view that a limit of €150,000 should be applied to the general damages "in a case of this nature". But the words that precede that opinion make it perfectly clear that he is talking of a case where all the future needs etc. of the plaintiff had been covered by special damages.

In my view, Morris P. correctly stated the position in Kealy v. Minister for Health cited above at p. 458. He said the following:

"It may well be that the Tribunal considers that the maximum award available to it in respect of personal injuries was the sum of £150,000 to which reference is made in, among other cases, Sinnott v. Quinnsworth Ltd. [1984] I.L.R.M. 523. In my view, the cap on general damages to which the Supreme Court refers in that and other cases has only limited relevance to an award of this type. In his judgment O'Higgins C.J. makes reference to the fact that in Sinnott v. Quinnsworth Ltd. and indeed other cases of that nature where there are very large sums awarded for loss of earnings, medical care, house renovations etc., the court should have regard to the total of the sums when considering whether the award is fair and reasonable."

The former President goes on to refer to the passage from the judgment of Griffin J. in Reddy v. Bates already referred to and pointed out that in the Kealy case there was no "omnibus sum" to be taken into account.

I do not believe that there is any inconsistency between Kealy v. The Minister for Health and Fitzgerald v. Treacy. Indeed, the present Chief Justice refers to Kealy in the Treacy case. In my view, there is no compulsory "cap" if there is no "omnibus sum" or in other words if the special damages are low. On the other hand that does not mean that the "cap" figure cannot be taken into account in a general way in assessing the appropriate general damages in a non-cap case. In my view, that is what was done in Fitzgerald v. Treacy. But as I have already made clear, irrespective of whether one takes the "cap" figure into account or not the figure for general damages awarded by the learned High Court judge is in my view disproportionately high and I would reduce it to €200,000.

THE SUPREME COURT

400/02

Hardiman J.

Geoghegan J.

M^cCracken J.

BETWEEN

ALISON GOUGH

Plaintiff / Respondent

and MICHAEL NEARY AND BASIL CRONAN

Defendants / Appellants

JUDGMENT of Mr. Justice M^cCracken delivered on the 3^rd day of July, 2003

I have had the advantage of reading the judgments being handed down by my colleagues Mr. Justice Hardiman and Mr. Justice Geoghegan in which the background to these proceedings is set out in detail, and it would seem unnecessary for me to do so again.

This case turns on the interpretation of s. 2 and s. 3 of the Statute of Limitations (Amendment) Act, 1991. There is no doubt that, where it not for these provisions, the appellant's claim would certainly be statute barred. Section 3(1) reads:-

"An action, … claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under statute or independently of any contract or any such provision) shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured."

Section 2 of the Act then deals with the expression "date of knowledge", and provides as follows:-

"2(1) For the purposes of any provision of this Act whereby time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependent of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:-

(a) that the person alleged to have been injured had been injured,

(b) that the injury in question was significant,

(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

(d) the identity of the defendant, and

(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting a bringing of an action against the defendant;

Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

This case is only concerned with the knowledge referred to at (a) and (c) above, for if the respondent knew that she had been injured within the meaning of the section, she clearly knew that the injury was significant, and she also knew the identity of the defendant.

The first question which arises, therefore, is whether the respondent knew that she had been "injured". This is turn depends upon the meaning of the word "injured" in the section. In considering this matter the learned trial judge relied largely on the judgment of Barr J. in Maitland –v- Swan (Professional Negligence Law Reports 1968 – 1993) p. 368. In that case Barr J. said at p. 384:-

"The key to the interpretation of s. 2 is the meaning of the word "injured". It seems to me that in the context of the Act it is synonymous with the word "harmed". In my view a person who undergoes necessary surgery which is skillfully performed and is successful does not thereby suffer an injury in the context of the Act. Such an operation is a curative, beneficial process and has no element of harmfulness in it, even if the procedure involved removal of an important organ with in consequence a degree of permanent disablement for the patient."

I think it is relevant that s. 3 of the Act relates to a claim for "damages in respect of personal injuries to a person caused by negligence, nuisance of breach of duty …". This is the section which is the basis for the claim that this action is statute barred, and it is a section which relates to "personal injuries" and not just "injuries". Furthermore, it is clear that this section does not relate to all "personal injuries", but only to those caused by negligence, nuisance or breach of duty. Clearly therefore in the Act itself the word "injuries" is used in relation to "personal injuries", and I do not think it is helpful to try to equate the word "injury" with "harm". To do so would then of necessity involve an inquiry into the meaning of the word "harm". Normally the use of the word "harmed" implies something caused by the actions of a third party or by an outside influence. If a person slips on a piece of ice and breaks his ankle, he has undoubtedly suffered an injury, but can it be said that he has been harmed? I think there is a distinction between the two words, and that "injured" has a much wider meaning than "harmed".

In the present case, the respondent undoubtedly knew that a hysterectomy had been performed. The act of performing the hysterectomy in my view inflicted an injury on her within the meaning of the Act, and she undoubtedly knew that this injury had been inflicted as early as a few days after the operation. As I have already said, if that is so, she clearly knew that it was a significant injury.

The other aspect of the case to be considered is when the respondent first had knowledge "that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty".

There were a number of United Kingdom authorities on the equivalent section in the legislation in that jurisdiction. They are dealt with at length in the judgments of my colleagues, but unfortunately they are somewhat inconsistent and it is hard to say that a firm line of authority has been developed in that jurisdiction.

The high point of the appellant's case undoubtedly is Dobie –v- Medway Health Authority (1994) 4 All ER 450. The facts of that case bear considerable similarity to the present case. An unnecessary masectomy had been carried out on the plaintiff in the belief that she had a malignant lump in her breast where as in fact it was benign. The procedure was carried out before the results of a biopsy on the lump where known. The plaintiff was reassured by her surgeon that in fact she was very fortunate that it had not proved to be malignant, and she did not realize that that there was any question of him being negligent. In his judgment in the Court of Appeal, Sir Thomas Bingham M.R., said at p. 459:-

"The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she, at all time, reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly, that was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the Health Authorities act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run."

The effect of this case was greatly diluted by a decision of the Court of Appeal in Hallam-Eames –v- Merrett Syndicates Ltd (1995) 7 Med L.R. 122. In that case the trial judge had interpreted the earlier cases, including the Dobie case as meaning that the plaintiff only needs to have known that the damage was caused by an act or omission by the defendant. In his judgment Hoffmann L.J. said at p. 125:-

"In our judgment this is an over simplification of the reading in Broadley and Dobie. If all that was necessary was that a plaintiff should have known that the damage was attributable to an act or omission of the defendant, the statute would have said so. Instead, it speaks of the damage being attributable to "the act or omission which is alleged to constitute negligence". In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence. There may be many acts, omissions or states which can be said to have a causal connection with a given occurrence, but when we make causal statements in ordinary speech, we select on common sense principles the one which is relevant for our purposes."

Later on in the judgment at p. 126 he said:-

"The plaintiff does not have to know that he has a cause of action or that the defendant's acts can be characterized in law as negligent or as falling short of some standard of professional or other behaviour. But, as Hoffmann L.J. said in Broadley, the words "which is alleged to constitute negligence" serve to identify the facts of which the plaintiff must have knowledge. He must have known the facts which can fairly be described as constituting the negligence of which he complains. It may be that knowledge of such facts will also serve to bring home to him the fact that the defendant has been negligent or at fault. But that is not in itself a reason for saying that he need not have known them."

It should be noted that Sir Thomas Bingham M.R. who gave the judgment in the Dobie case agreed with the judgment in Hallam-Eames.

These cases are, of course, of assistance as, if nothing else, they show the differing views which may be held. However, I prefer to go back to the wording of the Act itself in considering its proper interpretation. I think it is worth repeating that the relevant knowledge which is to be considered:-

"That the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty."

In the present case, what is the act or omission which is alleged to constitute negligence, nuisance or breach of duty? I do not think it can be the act of performing a hysterectomy simplicitor. Performing a hysterectomy where it is necessary could not be said to constitute an act of negligence, nuisance or breach of duty. The "knowledge" which the respondent had in the present case was that a hysterectomy had been necessarily performed. She was told that by her surgeon in graphic terms and had no reason whatever to disbelieve it. Therefore, the knowledge that she had was false knowledge, knowledge of something that was not in fact true. It was also knowledge of something, if it had been true, which would not have constituted negligence, nuisance or breach of duty.

What is in this action alleged to constitute negligence, nuisance or breach of duty is the unnecessary hysterectomy. As I have said, there could be no allegation against the appellant had the operation been necessary. Therefore, in my view the only normal and sensible meaning of this provision as applied to the facts of the present case is that the requisite knowledge was that the operation had been unnecessarily performed. The respondent has issued these proceedings within the statutory time limit dating from the time she first had this knowledge.

The appellant also places some reliance on the provisal at the end of s. 2(1) of the Act, namely that:-

"Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

The appellant seeks to argue that knowledge that the operation was unnecessary must necessarily imply that it was negligently carried out. I cannot agree with this argument. Knowledge that the hysterectomy was unnecessary and knowledge that it was negligently carried out are two different things. In the present case, the respondent's knowledge that the operation was, or may possibly have been, unnecessary appears to have been from comments on the radio in relation to other cases, while her knowledge that it may have been negligent presumably only came when she went to her solicitor, or upon professional medical advice. They are clearly two different things.

For these reasons, I am satisfied that the respondent has brought herself within the exception in s. 3 of the Act, and that her claim is not statute barred.

There is also an appeal against the quantum of the damages awarded in this case. The respondent was awarded general damages of €150,000.00 for loss and suffering to date and €100,000.00 for loss in the future.

There is no doubt whatever that the respondent suffered serious psychological trauma from the time she realized what had happened to her. She suffered feelings of guilt that she should perhaps have realized earlier what the true situation was, and might have saved other ladies from that same fate. She suffered severe depression, and while she was able to look after her family and hold a job, this must have been with great difficulty for her. I am quite satisfied that the award of €150,000.00 for general damages to the date of the trial was correct.

I think the situation is somewhat different in relation to future times. Her own psychiatrist gave evidence, not just under cross-examination, but also as an addendum to his report, that if the respondent continued her current rate of progress, he expected her to make a full recovery from her clinical depression, and indeed would be able to stop taking anti-depressants a few weeks after the final judgment as she would then proceed justice had been done. I think all courts now accept that there are many cases, particularly of psychological injury, where the condition of a plaintiff improves enormously after the final outcome of the case. I should immediately say that this is not to imply any form of malingering of the part of the respondent in this case, as I am quite satisfied that her complaints were totally genuine. However, by the nature of psychological complaints they can be, and frequently are affected, by the outcome of a case, and in my view an award of €100,000.00 for general damages into the future is not sustainable in light of her own psychiatrist's evidence. She will, of course, still have to bear the burden of having gone through an unnecessary hysterectomy with all of its connotations, and this will last for the rest of her life. However, I feel that the award of €100,000.00 is not justified in the circumstances and I would reduce the general damages into to future to €50,000.00.