Court allows defendant's appeal, holding that knowledge of unnecessary symphysiotomy in 2010 barred the claim.

THE COURT OF APPEAL

Neutral Citation Number: [2016] IECA 281

Record No. 2015/311

Peart J.

Irvine J.

Hanna J.

BETWEEN:

LINDA FARRELL

PLAINTIFF/APPELLANT

- AND -

JOHN RYAN

DEFENDANT/RESPONDENT

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 14TH DAY OF OCTOBER 2016:

1. This judgment relates only to the respondent’s cross-appeal against the finding of the trial judge (Cross J.) that the appellant’s

claim for damages for personal injury was not statute-barred.

2. I have read the judgment of Ms. Justice Irvine on the appellant’s appeal against the dismissal of her claim on the merits, and I

agree with her conclusion that her appeal fails. Given that conclusion, it is not strictly necessary to address the respondent’s appeal

in relation to the statute, but lest it be of benefit to other plaintiffs situated similarly to Mrs Farrell, it may be helpful to determine it

also.

3. For the reasons that appear below, I believe that the trial judge fell into error when he concluded that the appellant’s claim was

not statute barred.

4. Section 3(1) of the Statute of Limitations (Amendment) Act, 1991, as amended by s. 7 of the Civil Liability and Courts Act, 2004

(“the statute”) introduced a special limitation period for actions in respect of personal injuries. It provides, as amended:-

"3.(1) An action other than one to which section 6 of this Act applies, 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 a statute or independently of any contract or any such provision) shall not be brought after

the expiration of two years from the date on which the cause of action accrued or the date of knowledge (if later) of

the person injured.”

5. Whether the appellant’s claim is statute barred depends on what is as a matter of probability the earliest date on which she had

sufficient knowledge that she might have a cause of action in respect of injury sustained as a result of the ante-natal symphysiotomy

performed on her on the 25th September 1963 at the Coombe Hospital some twelve days prior to giving birth to her first child. There

are three competing dates to be considered.

6. The first date is 18th February 2010 when a Prime Time programme was broadcast by RTE on the subject of symphysiotomies that

had been carried out in Dublin hospitals in the 1960s. The trial judge concluded that this was the date on which her friend, Monica

Teeling, who was watching the programme, had contacted her to tell her that there was a lady being interviewed about something

which she thought sounded very like what the appellant had described as having happened to her at the Coombe Hospital when she

had her first child. The appellant then switched on her television, but apparently was just too late as the credits were going up. She

did not have time to write down a telephone number which was flashing across the bottom of the screen for anybody who wanted to

get further information on the topic. Two days later, however, on the 20th February 2010, she wrote to the Coombe Hospital looking

for her medical records in respect of the time she was there for the birth of her first child in 1963. Though that letter was received by

the hospital on the 26th February 2010 she did not receive her records at that time. It appears that the hospital contacted her for

more information as they could not trace her records with the brief information that she had provided in her letter. However, the

appellant failed to provide the further information sought.

7. The second possible date is 21st June 2011 when she watched the Vincent Browne programme on TV3 which was dealing with the

same subject matter. This is the date on which the plaintiff in her evidence said she had been contacted by Monica Teeling. But, as

found by the trial judge, she was mistaken in that regard. That contact was made during the Prime Time programme as stated in the

previous paragraph. I should perhaps add that the appellant and Monica Teeling had become friends in 1979 and later years through

their employment in Jurys Hotel, and there had been conversations between them and other ladies there from time to time about their

experiences of childbirth. The appellant knew that something had been done to her twelve days before the birth at the Coombe

Hospital because she remembered that she had been brought to the theatre, had been anaesthetised, and had later woken up in her

hospital bed in a most uncomfortable state which she described in her evidence. She had a number of physical difficulties thereafter

about which she gave clear evidence. Many of those difficulties remained with her for years, and in fact some endure to this day. But

it is clear from her evidence nonetheless that she was not familiar with the term ‘symphysiotomy’ and that this is what had been done

to her.

8. The third possible date for the accrual of her cause of action, and the one which the trial judge found to be the date from which

time started to run is August 2011 when she first received her medical records from the Coombe hospital following a further request

for them which she made after the Vincent Browne programme in June 2011.

9. If the date on which her cause of action first accrued for the purpose of the statute is the 18th February 2010, then her claim is

clearly statute barred because she commenced her proceedings more than two years from that date on the 6th September 2012.

Conversely, if the date of first accrual is 21st June 2011, or any date later than that on which she actually received her medical

records, her proceedings are commenced within time, and are not statute barred.

10. In her Replies to Notice for Particulars the appellant had stated that she first became aware that she had had an unnecessary

symphysiotomy after she had seen the Vincent Browne programme on the 22nd June 2011. She made no mention of the earlier Prime

Time programme. Further particulars were sought in relation to this reply, and by way of further reply the appellant stated that having

seen that programme she suspected that she may have undergone an unnecessary symphysiotomy operation, and stated that this

was the first time that she recalled hearing the name of the operation.

11. Some doubt as to the accuracy of her statement that it was the Vincent Browne programme in 2011 which first alerted her to any

knowledge that she may have undergone an unnecessary symphysiotomy in September 1963 arose because of a comment in a report

obtained by her from a psychiatrist, Veronica O’Kane. That report when giving a narrative of the plaintiff’s history stated: “A friend

rang Mrs Farrell following a Prime Time programme on RTE about symphysiotomies that had been conducted in Ireland” [emphasis

added]. That is the programme that went out on the 18th February 2010. The plaintiff’s evidence established that the only reason

she had first sought her medical records was because she had been alerted by her friend to the broadcast about symphysiotomies

and wished to establish if her symptoms were due to that procedure. There is no doubt that she first sought her medical records on

the 20th February 2010.

12. In relation to this controversy as to which programme first prompted the appellant to seek her medical records, the trial judge

concluded at para. 6.7:-

“As a matter of probability, I believe that the plaintiff was contacted by Ms. Teeling after the Prime Time programme

because by letter dated 20th February 2010, shortly after the Prime Time programme, the plaintiff first sought her

medical records from the Coombe. This letter was received by the Coombe on the 26th February 2010”.

13. Nevertheless, the trial judge went on to state that it was not until the appellant actually received her medical records from the

Coombe Hospital some time in August 2011 following the Vincent Browne programme on TV3 when she had again written to the

Coombe looking for them that her date of knowledge commenced for the purposes of the statute, and that she could not have had

sufficient information until then to justify the commencement of proceedings. He stated the following:-

“It is only at that stage when she had the hospital notes that the plaintiff could be said to have knowledge to ‘justify

embarking on the preliminary to issue a writ’. I believe that up to her obtaining the requisite notes from the hospital, the

plaintiff’s position was as in sub-paragraph (4) of the judgment in Spargo i.e. she may have thought that she knew the

acts or omissions that she should investigate but it was quite possible that she was barking up the wrong tree. She may

have been aware by that stage, in 2010, that the procedure carried out on her was indeed a symphysiotomy but she

was not armed with any information that could have justified her issuing proceedings against the defendants until the

furnishing of the records. The plaintiff’s date of knowledge commences in August 2011 when she was furnished the

records [and] is inside the two year period and accordingly the defendant’s plea under the Statute of Limitations must

fail.”

14. The respondent points firstly that the fact that the trial judge was satisfied that the plaintiff’s friend had contacted her during

the Prime Time programme in February 2010, and not the Vincent Browne programme in June 2011. Secondly, the respondent points

to the fact that it was always the plaintiff’s case on the pleadings and in her evidence that it was on foot of her friend’s contact that

she saw the programme which first caused her to immediately write to the Coombe for her records. Indeed, it is evident that no other

explanation was offered by the plaintiff as to why she might have sought her records on the 20th February 2010. It is submitted also

that the date for the accrual of the cause of action cannot be the date upon which records are actually received, since that would

mean that the period under the statute could be indefinitely prolonged by the plaintiff’s own inactivity, and dependent entirely upon a

plaintiff’s own actions in seeking her medical records. It is submitted that such an indefinite and uncertain method of determining

when the cause of action accrued could not be what the Oireachtas intended when enacting the amendment of the statute in

relation to a date of knowledge test for personal injuries.

15. It is submitted by the respondent that it is clear that the appellant knew that on the 25th September 1963 something had been

done to her in the Coombe and that she had the difficulties thereafter that she was well able to give details of in evidence. It is

submitted that she was able to describe to her friend, Monica Teeling, enough about what had been done and the effect it had on her

for Monica Teeling to suspect when she saw the Prime Time programme that what had been done to her was a symphysiotomy. It is

clear that this is what Monica Teeling told her, since she immediately sought her hospital records from the Coombe hospital. The

respondent submits that the fact that she failed to supply the information sought by the hospital to help them trace her records is

not something from which she can benefit by way of postponing the date of accrual of her cause of action, if at that date she knew

enough to appreciate that she might have a claim. It is submitted that the trial judge was wrong to conclude that the knowledge that

she needed to have was “knowledge justifying the issue of the writ” and that the medical records were required by her before that

point was reached.

16. As to what the appellant knew by the 18th February 2010 the respondents identify the following from the evidence which she

gave:-

• She was able to describe to her friend and work colleagues her experience of childbirth and knew that what she had

gone through was not normal.

• She knew that in 1963 she had undergone some form of operation on the 25th September 1963, twelve days before her

daughter was born, and that it was done to her pelvis.

• She knew that she had a scar which was supra-pubic at the lower end of the abdomen which she did not have prior to

the 25th September 1963.

• She knew that she had been unable to walk for a considerable period after the birth of her daughter, that she had never

been able to again ride a bicycle (something that she had done a lot previously), had a pain in her back that prevented

her from doing her job properly at Jurys, and her friends helped her out with carrying heavy trays and so forth.

• She knew that thereafter she had never been able to cross her legs.

• She must be taken to have considered/known that she had suffered a significant injury as a result of what had

happened to her at the Coombe in 1963.

• She knew from her conversations that the others to whom she spoke had not experienced these symptoms after their

childbirths.

• She recalled during her evidence a particular conversation in 2006 with Monica Teeling when she had discussed what

had happened to her in the Coombe and the effect it had had on her life, and said also that she had not had another

conversation with her between that date and Monica Teeling’s contact on the 18th February 2010.

• She knew nevertheless that Monica Teeling had been able to tell her after the Prime Time programme that what she had

told her about, four years previously therefore, sounded like she had had a symphysiotomy.

• She knew enough from that conversation to decide that there was something she ought to inquire into, and that she

should write to the hospital for her records for that purpose.

• While she denied in her evidence that she knew the word ‘symphysiotomy’ before 2011, a number of doctors whom she

visited with other complaints in 2001, 2003 and 2007 have noted the history given by her as including ‘a symphysiotomy’.

She denies that she used that word as she had not heard of it, and the doctors in question gave evidence that if that

word had not been used by her they would not have noted it. Even if one accepts her evidence, it is clear that she was

able to say sufficient about what procedure she had had for each of these doctors to understand it to have been a

symphysiotomy.

17. It is submitted by the respondent that this all makes clear that the appellant had ample information perhaps by 2006 but certainly

by the time Monica Teeling had spoken to her on the 18th February 2010 about what she had seen on Prime Time to be taken as

knowing that she had suffered personal injuries as a result of the symphysiotomy, and that this is borne out by the fact that within

48 hours of that conversation she had written a letter to the Coombe seeking her medical records.

18. The respondent has identified a particular passage of evidence given by the plaintiff about her conversation with Monica Teeling

as the Prime Time programme was ending. It is submitted that the appellant’s case had been predicated upon this conversation taking

place only in June 2011 after the Vincent Browne programme. The state of knowledge that the appellant was saying therefore that

she had as of only June 2011 must be attributed to her as of the 18th February 2010 as it must be the same conversation since she

gave no evidence of another such conversation. It is just that she had got that date wrong. The passage to which particular

reference has been made in this regard on Day 2 and appears at pages 19-20 of the transcript as follows:-

“A. I didn’t actually see the programme. It was what Monica told me that I referred to that. I saw the end of the

programme where the credits were going.

Q. But you were aware what the programme was about?

A. Yes – because Monica told me what the programme was about.

Q. After that programme you suspected that you may have undergone an unnecessary symphysiotomy operation?

A. That is correct.

Q. Why did you suspect that?

A. Because of the description that Monica was giving that I had similar, what do you call it, effects.”

19. Given the trial judge’s clear finding that this conversation occurred not in June 2011 as the appellant had pleaded and relied upon

for the date of her first knowledge for statute purposes, but on the 18th February 2010, the respondent submits that the trial judge

erred in his conclusion that it was not until she received her medical reports in August 2011 that she had sufficient knowledge for the

statute to start to run against her.

20. The appellant counters these submissions by urging the Court to have regard to the very limited state of her knowledge of what

had been done to her in 1963, and her attribution during her evidence of many of the symptoms which she described as being simply a

consequence of a forceps delivery. It is submitted that the preponderance of the evidence, and which was accepted by the trial

judge, was that she did not know the word ‘symphysiotomy’ on the dates on which she was said to have used that word when visiting

the three doctors referred to in 2001, 203 and 2007, and that it was not until she received her records in August 2011 that she first

was aware of the word, and that even at that point what had struck her most when she read the records was that her daughter had

been difficult to revive, and she even saw what appeared to be the word ‘symphysiotomy’ crossed out on the records.

21. It is submitted that at best her state of knowledge was more like a state of confusion, and that the most that can be said

following her conversation on the 18th February 2010 with Monica Teeling is she had a suspicion that she had undergone a

symphysiotomy, but that she could not have known that it was an unnecessary procedure until she obtained her hospital records, nor

that it had caused the symptoms that she was able to describe as having eventuated following the birth of her daughter.

22. The evidence is clear that the appellant knew that in 1963 prior to the birth of her first child some procedure had been done to

her. She was able to give very graphic evidence of what she was aware of in the immediate aftermath of that operation, and of the

very difficulty and traumatic effect that it had on her thereafter. But it is clear also that at that time she did not know it had been a

symphysiotomy, nor had she even heard that word. Indeed it is perfectly understandable that she would not have heard of the

procedure, let alone what it entailed. It follows that she could not at that time have been in a position to know or even suspect that

what had been done to her may have been unnecessary.

23. As I have already stated above, the appellant in her Replies to Particulars had stated that she only became aware that her

symphysiotomy was unnecessary after the Vincent Browne programme in June 2011, and later clarified in further particulars that it

was only after seeing that programme that she suspected that she may have undergone an unnecessary symphysiotomy. She clarified

also that this was the first time she recalled ever hearing the name of the procedure.

24. Given the finding by the trial judge that in fact it was the Prime Time programme in February 2010 and not the Vincent Browne

programme in June 2011 that first alerted her to these matters, since she had immediately afterwards written to the Coombe hospital

for her records, those Replies to Particulars must be read mutatis mutandis by reference to the earlier programme.

25. The question that then arises is whether the information which the appellant had by 18th February 2010, which made her to want

to obtain her medical records from the hospital, was sufficient “to mark the point at which the statute started to run” as it is put by

McGuinness J. in Cunningham v. Neary [2004] IESC 43, or whether as the trial judge concluded, that point was not reached until she

actually received her medical records in August 2011 having again requested them in the aftermath of the Vincent Browne programme.

26. As the respondent has submitted, information from media sources can be sufficient to provide enough information for the clock to

start running for the purpose of the statute. It was submitted also that this is the very reason why the plaintiff in her Replies to

Particulars associated her first knowledge as being the date on which she saw the Vincent Browne programme (that must now be

taken to have been the Prime Time programme). In that regard, McGuinness J. stated in Cunningham v. Neary [supra]:-

“In Gough v. Neary [it] seems clear that the plaintiff’s ‘knowledge’ that her operation was unnecessary derived solely

from the December 1998 reports in the media. This was the fact that was ‘capable at least upon further elaboration of

establishing a cause of action’. There is no indication that she had an expert medical report available to her before she

initiated proceedings against the defendant. Knowledge based on media reports rather than full medical knowledge was

the ‘knowledge that her hysterectomy was unnecessary’ which was held by the court to mark the point at which the

statute started to run”.

27. It is incorrect as a general proposition that a plaintiff may wait until she receives her medical records before time starts to run

against her under the statute. That would give a plaintiff control over when time starts to run, as it would be dependent on how long

the plaintiff chooses to wait before seeking her records. If a plaintiff has had an operation or some procedure carried out, and

thereafter has suffered adverse sequelae in the nature of a personal injury reasonably attributable to what was done, she does not

need to wait for her hospital records or other records to arrive before she can be taken to know that she has a cause of action.

28. Moving from that general comment to the present case, the question is whether what the appellant knew by the time she wrote

to the Coombe Hospital on the 20th February 2010 was sufficient to start time running against her. We know from her evidence that

she did not actually see the Prime Time programme. Therefore she did not gain any particular information from that programme itself.

What caused her to seek her records was clearly the combination of what she knew had happened to her, the after effects of what

had been done and which she had told Monica Teeling all about over the years, and the information that Monica Teeling was able to

impart following what she had seen on the programme, and which suggested to Monica Teeling that what the appellant had had done

to her was a symphysiotomy.

29. Whatever she knew at that point in time was sufficient for her to want to seek her medical records. I consider that the

respondent is correct to identify the matters to which I have referred at para. 15 above as being at least some of what the appellant

knew by the 18th February 2010. In my view the trial judge was incorrect to conclude that she needed to know more than that

before time started to run under the statute, and in particular that she needed her medical records before she could be said to have

enough knowledge to justify the commencement of proceedings. In my view that was the wrong test. She did not need to know at

that point that she had a good case. It was sufficient if she had enough knowledge to connect her injuries to the procedure which

she knew had been carried out on her in 1963, and as she admitted herself in her evidence, she knew on the 10th February 2010 that

the symphysiotomy she underwent was unnecessary. I believe that the evidence is clear that she had that knowledge as of the 18th

February 2010. Medical records would no doubt elaborate upon the knowledge that she had, but were not a prerequisite to time

commencing to run.

30. I would therefore allow the defendants’ cross appeal, and would dismiss the plaintiff’s claim also on the ground that the statutory

limitation period had passed by the date of commencement of these proceedings.