THE HIGH COURT
[2002 No. 4423P]

Between:
ROSMARY CUNNINGHAM
Plaintiff
-and-

MICHAEL NEARY, MARGARET QUINN, VERONICA TARPEY, ANN MARIE O’GORMAN, KATHERINE MARY SHEA and BARRY McENEANEY
Defendants

Judgment of Mr Justice Aindrias Ó Caoimh delivered the 28th October 2003.

The issue before this Court is whether the plaintiff’s claim against the defendants arising out of tortious activity alleged against the first defendant and in respect of which it is pleaded that the remaining defendants are vicariously liable is statute barred.
	The plaintiff alleges tortious activity on the part of the defendant in July, 1991 and commenced these proceedings on the 22nd March, 2002, nearly eleven years after the events complained of.
	It is complained of that the first defendant showed aggression and rudeness towards her and in particular that the first defendant wrongfully performed a left oophorectomy and that she suffered and continues to suffer great distress which she would not otherwise have endured and that she has suffered loss and damage.
	The essential claim of the plaintiff is that the first defendant carried out an unnecessary removal of her left ovary.  It is pleaded that she suffered great mental upset, pain and suffering and that she is deeply traumatised by the experience and by the unnecessary ugly and disfiguring scar.  It is complained that the plaintiff underwent additional pain and suffering by the operation performed and that she has 
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suffered and continues to suffer a significant amount of psychological, emotional and physical stress.
	It is pleaded that the personal injuries, loss and damage complained of were caused by the negligence and breach of duty of the defendants and each or either of them, their servants or agents.
	A defence to the plaintiff’s claim has been filed on behalf of the first defendant, who admits that in his capacity as a consultant obstetrician and gynaecologist he afforded certain medical care, treatment and advice to the plaintiff but it is pleaded that at all material times he did so with due professional skill, care and diligence and not otherwise.
	This defendant pleads that the plaintiff’s claim is barred by virtue of the operation of s. 11 of the Statute of Limitations Act, 1957, as amended (‘the Statute of Limitations’).
	By order of this Court (Johnson, J) of the 10th February 2003 it was ordered on consent of the first defendant and the plaintiff that a preliminary issue be tried wherein the first named defendant would be plaintiff and the plaintiff defendant of the issue as to whether the plaintiff’s claim is barred by virtue of the operation of s.11 of the Statute of Limitations. By further order of this Court (O’Neill J.) of the 14th July, 2003, a similar issue was directed to be tried between the remaining defendants and the plaintiff.  Both of these issues were tried simultaneously before me.
	By virtue of the provisions of s. 3 of the Statute of Limitations (Amendment) Act, 1991 (‘the Act of 1991’) it is provided, inter alia, as follows:
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 three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.
	The date of knowledge for the purposes of the Statute of Limitations is defined by reference to s. 2 of the Act of 1991 which provides as follows:

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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.”

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	The plaintiff has sworn an affidavit setting out her involvement with the plaintiff in July 1991 and thereafter.
	In her affidavit the plaintiff states that that in July 1991 she was referred by her general practitioner to go to the casualty department of her local hospital being Our Lady of Lourdes Hospital in Drogheda. At the time the plaintiff was haemorrhaging and believed that she was pregnant.  She says that she went there at the time and that the first defendant was on duty and that he examined her internally and said that he could feel a lump.  She was told by Dr. Neary at the time that she was not pregnant and was unlikely to become pregnant thereafter.  The plaintiff states that she again attended the hospital on the 14th August, 1991 and she states that on the 15th August 1991 she was operated on by the first defendant who informed her that she had an ectopic pregnancy and that he had removed a tube and her ovary.  The plaintiff states that some days later she asked the first defendant why he removed her ovary and she alleges that he replied “I did not like your bloody ovary anyway.”
	The plaintiff complains of rudeness on the part of the first defendant when she and her husband attended for her six week check up after the operation.  The plaintiff states that she subsequently attended her general practitioner who informed her that on the basis of what he had learned from the first defendant it was necessary to remove her ovary.  She states that at no time did she know or was she informed that there had been no necessity to remover her ovary.  She says that the advice from her general practitioner was to put the whole affair behind her and to get on with her life.
	The plaintiff states that in October, 1998 she had a hysterectomy at the Coombe Hospital (in Dublin).  She says that while there she told a nurse about her experiences with the first defendant.  She says that she was encouraged to send the complaint about him to the Medical Council.  She says that she did not know of the defendant’s “history” at the time.  She says that subsequently she became aware of rumours about the first defendant’s practice, how some expecting mothers had experiences with him that were far worse than hers and that some of them were contemplating suing him.  She says that this caused her to address the question of whether it had been necessary to remove her ovary and she says that she decided to seek legal and medical advice.
	The plaintiff says that it was only when she saw a report prepared by a Dr. Porter that she first knew that this procedure had been unnecessary.  She does not 
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refer in her affidavit to when she first saw this report or when it was sought. She says that prior to that she did not know this procedure was unnecessary and should never have been carried out.
	Evidence has been given as to the terms off a complaint made by the plaintiff to the Medical Council dated the 19th December, 1998.
	In her complaint the plaintiff stated that when she spoke to the first defendant in July, 1991 about the ‘lump’ which the first defendant said he could feel he told her not to worry about it and that he did not know what it was.  She states that she felt that she might have cancer as her sister in law was dying at the time with cancer of the womb.
	The complaint written by the plaintiff details the first defendant’s manner towards her.  In her letter she states at the outset:
“I am at last putting pen to paper to tell you my story which has troubled me for a long time now.  Several occasions I started this letter before but ended putting it in the dustbin instead of posting it.”
Towards the end of her letter the plaintiff wrote:
	“Many nights and days I have thought about Dr. Neary and relived those dreadful days.  My biggest regret is I didn’t write this letter in 1991 and I might have saved many other women from going through the same kind of treatment.
Three weeks ago while as a patient in the Coombe after a hysterectomy the nursing staff whom I told my story to persuaded me to write this letter to get it “off my chest” as the recent operation brought it all back to me.
	….
	I am very lucky to be alive today.  I could have so easily have (sic) died after been (sic) left so long after the tube had ruptured. I have my own g.p. to thank who kept pressure on Dr Neary to get me to theatre and the very good staff nurse who put pressure on Dr Neary to eventually attend me.
I hope no other person goes through what I have suffered. A dog would have received better treatment.”
	
	The plaintiff was cross examined at some length on her affidavit.  The plaintiff indicated that the reason she asked Dr. Neary why he removed her left ovary was because he had found a lump on a previous visit and she asked him about the lump 
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also.  She was afraid she had cancer as her sister-in-law was dying of cancer at the time.  She accepted that she had no satisfactory explanation for that.
	It is clear from the plaintiff’s evidence that what continued to trouble her over the years was Dr. Neary’s mannerism and not the operation itself.
	The plaintiff indicated that it was sometime after writing her letter in December, 1998 that she decided to seek legal and medical advice but she was unsure as to when this was that she decided to seek such advice.  She believed that it was later than the time of writing the complaint to the Medical Council in December, 1998.
	The plaintiff indicated that she subsequently sought her notes from the Lourdes Hospital and she believes that before that she went to her solicitor.
	The plaintiff stated that she believed that in December, 1998 she did not have all the information upon which she based her decision to seek legal and medical advice. 
	It was indicated by the plaintiff that she was unsure as to the date when she consulted her solicitor but this date was confirmed as the 3rd May, 2000.  When asked why she waited 18 months before going to a solicitor she said she had “nothing to go on”.  She confirmed that she had no further information concerning her claim against Dr. Neary or his treatment of her.
	Under further examination the plaintiff confirmed that there was further media coverage of Dr. Neary between December, 1998 and May, 2000.  She said that she heard that Dr. Neary was under investigation.  She heard people speak of this.  She said “I would have heard that Dr. Neary had performed unnecessary hysterectomies.”  She was asked when was the first time she ever heard that Dr. Neary may have performed an unnecessary removal of her ovary.  She replied that she did not hear this until Dr. Richard Porter’s report.
	Dr. Porter’s report is dated April, 2001 and was furnished to me during the hearing.  It appears to have information excised from it in the nature of the information made available to him for the purposes of preparing his report.

	Submissions:

	On behalf of the first defendant it is submitted by Mr. Charles Meenan S.C. that the relevant knowledge for the purposes of s. 2 (1) of the Act of 1991 is not the 
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report of the expert.   It is submitted that the clock did not start to run when Dr. Porter’s report was received.  
	Counsel referred this court to the decision of the Supreme Court in the case of Gough v. Neary (Unreported, Supreme Court, 3rd July, 2003) and submits that knowledge that the operation was unnecessary is not knowledge derived from an expert report. It is submitted that in Gough v. Neary the knowledge in question was derived from press reports.
	Counsel submits by reference to the judgment of Geoghegan J. in that case that while it may not be necessary for the purpose of starting the statute to run to know enough detail to draft a Statement of Claim, a plaintiff must know enough facts as would be capable of at least, upon further elaboration, establishing a cause of action, even if the plaintiff had 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.
	Counsel submits that when the plaintiff sought advice from her general practitioner in 	1991 on the medical treatment which Dr. Neary had given, this was sufficient knowledge, applying the Act.  Without prejudice to this submission, counsel submits that by December 1998 the plaintiff had all the knowledge, which she had accumulated in the hospital and at the six week check up. In addition from media reports she had heard complaints against Dr. Neary.
	Counsel submits that on the evidence it is established that the plaintiff acquired no fresh information from December,1998 to May, 2000, when she saw her solicitor.  On this basis it is submitted that at the latest time began to run in December, 1998 when she had that information.  Proceedings did not issue until March, 2002, which is in excess of the three year period.
	By further reference to the judgment of Geoghegan J. counsel refers to principles outlined in English case law on s. 14 (1) (b) of the English statute which corresponds to s. 2 (1) (c) of the Act of 1991, to be found in the authority of Spargo v. North Essex District Health Authority (1997) 37 B.M.L.R. 99 in the judgment of Brooke L.J. where he outlined four principles.
(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; 

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(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.”
Applying these principles it is submitted that the first was satisfied at the outset when the plaintiff knew of the ovariectomy and that rather than explaining same Dr. Neary was rude.   Counsel submits that the second test is also satisfied where the word “attributable” means ‘capable of being attributed’ in the sense of being a real possibility that it was Dr. Neary who did the left overiectomy.
	With regard to the third test it is submitted that the 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 cause against the defendant.  Counsel submits that shortly after her six week check up the plaintiff was beginning to investigate whether or not she had a case against the defendant.  Counsel submits that there is no essential distinction between asking why the ovariectomy was necessary as opposed to whether it was necessary.
	Counsel refers to the advice given in 1991 by the plaintiff’s general practitioner who was independent at the time. Counsel submits that the plaintiff sought the opinion of her medical practitioner at the time in the context of investigating the matter against Dr. Neary.  Counsel submits that time began to run at that stage.

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	Counsel refers to 1998 and submits that at that time there were media reports concerning Dr. Neary’s treatment of other women.  It is submitted that she then decided to see her solicitor.  Counsel submits that the plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she had a case against the defendant.  She will have such knowledge if she so firmly believes that her condition is capable of being attributable to an act or omission which she can identify in broad terms - which, it is submitted, is undoubtedly the case here - such that she goes to a solicitor to seek legal advice.
	Counsel submits that time begin to run when the plaintiff has enough knowledge that she decides she is going to see a solicitor.  It is immaterial if the plaintiff puts off going to the solicitor.  The time does not commence when she goes to a solicitor but when she had enough knowledge to seek legal advice.  In this case it is submitted that the time began to run against the plaintiff when she saw her general practitioner in 1991 or at the latest in 1998.
	Counsel submits that the plaintiff must have had reason to believe that she needed advice at the time or else she would not have sought the advice of her general practitioner and, secondly, given the further knowledge which she acquired in December, 1998 she clearly had sufficient knowledge at that time.
	It is submitted that in the instant case the relevant knowledge of the plaintiff must have been that from media reports and not the report of Dr. Porter, her expert.
	It is submitted that in the instant case the plaintiff had specific information concerning Dr. Neary’s alleged treatment of other women and in addition she was never given an explanation as to why she had to undergo a left ovariectomy.
	James O’Donnell, counsel for the second to fifth defendants adopted the submissions made by Mr. Meenan on behalf of the first defendant.
	Mr. Seán Moylan, Senior Counsel, on behalf of the plaintiff submits that the requisite knowledge for the plaintiff is that the removal of her ovary was unnecessary.  She was told by her general practitioner that it was necessary in 1991 and to put the matter behind her.
	Counsel for the plaintiff refers to the evidence that there were other complaints against Dr. Neary but refers to the fact that the nature of these complaints has not been established in evidence.  They may have related to his rudeness or something more serious.  There were three days of media coverage in December, 1998 of Dr. Neary but the substance of this was not put to the plaintiff in cross-examination. 

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	Counsel refers to the decision in the case of Cooke v. Neary (Unreported, Supreme Court, 14th July, 1999) in regard to whether an action should be taken for professional negligence in the absence of credible evidence to support the plaintiff’s case. 
	Counsel stresses that the requisite knowledge for the plaintiff is that the operation had been unnecessarily performed.  Counsel submits that the plaintiff issued these proceedings within the statutory time limit from the time that she first had this knowledge.  In this context counsel also refers to the judgment of Geoghegan J. in Geogh v. Neary (Unreported, Supreme Court, 3rd July, 2003) and submits that this indicates that the relevant knowledge is that the removal of the ovary was unnecessary.  It is submitted that the necessary knowledge for the plaintiff is that she was injured by an unnecessary operation and that the removal of her left ovary was totally unnecessary.
	With reference to s. 2 (2) of the Act of 1991 counsel submits that the plaintiff had no knowledge which at the time would have been reasonable for her to seek in the light of what she was allegedly told by Dr. Neary and by her general practitioner. 
	Counsel refers to the evidence and submits that the same shows that the plaintiff’s concern up until at least 1998 was Dr. Neary’s manner in the way she treated her rather than the medical treatment at the time.
	In reply counsel for Dr. Neary submits that Cooke v. Neary addresses a different issue and that the plaintiff in this case, on whom the onus of satisfying this court that the proceedings were initiated within time, does not pinpoint any particular time as from when time began to run. Counsel submits that if time only begins to run on receipt of the expert report that one might have to wait forever before obtaining such a report.
	
Conclusions:

	From a consideration of the judgments in the case of Gough v. Neary (Unreported, Supreme Court, 3rd July, 2003), I am satisfied that the necessary knowledge for the purposes of s. 2 (1) of the Act of 1991 is that the operation had been unnecessarily performed.
	It is clear that once the plaintiff knew this fact it is irrelevant whether she was aware that the act in question constituted negligence, nuisance or breach of duty.

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	In Gough v. Neary (Unreported, Supreme Court, 3rd July, 2003) McCracken J. at page 8 of his judgment stated, inter alia, as follows:
	“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 advice.  They are clearly two different things.”
At page 10 of the judgment of Geoghegan J. he stated, inter alia, as follows:
	“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.”
At page 16 of his judgment Geoghegan J. stated:
“While it may not be necessary for the purpose 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. 
He added further towards the end of the page:
“Mere knowledge that the hysterectomy was carried out therefore is irrelevant. Nor do the pieces of additional information that she did have from her 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.
	With reference to the case of Spargo v. North Essex District Health Authority (1997) 37 B.M.L.R. 99 and the judgment of  Brook L.J., and the four principles outlined in his judgment, it is to be noted that in Gough v. Neary (Unreported, Supreme Court, 3rd July, 2003) Geoghegan J. stated at the end of page 20 of his judgment:
	“But I do not think on the facts of this particular case the first of Brooke L.J.’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 
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‘a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable.’”
	At page 22 of his judgment Geoghegan J. said in reference to Spargo v. North Essex District Health Authority (1997) 37 B.M.L.R. 99:
	“There is no doubt that the case is now the “gospel” in England as far as this branch of the law is concerned.”
	In the instant case I am satisfied that the relevant knowledge that the plaintiff had to have before time began to run under the statute was that the removal of the left ovary was unnecessary and I am satisfied on the evidence before me that she had neither actual nor constructive knowledge of that fact until she obtained a report from Dr. Porter.
	In all of the circumstances, therefore, I must rule in favour of the plaintiff and hold that the plaintiff’s claim is not barred by virtue of the operation of s. 11 of the Statute of Limitations.
	In so holding I am satisfied that at no time in 1991 did the plaintiff contemplate any legal action against the first defendant and her essential complaint related to the manner in which he treated her,  including the rudeness referred to.  The evidence in relation to the events in 1998 and the letter of 19th December, 1998, do further the matter.  I am satisfied from the terms of the letter that the same does not suggest that the plaintiff knew at that time of the relevant fact for these proceedings whether on the basis of actual or constructive knowledge.
	While the terms of paragraph 9 of the plaintiff’s affidavit leave matters unclear as to what rumours existed and when they came to the plaintiff’s knowledge these details were not explored in cross-examination.  I am satisfied that the plaintiff did not have the necessary knowledge in 1998 or thereafter until the report from Dr. Porter and I am satisfied that she had no constructive knowledge at any earlier time of the fact that an unnecessary operation to remove her left ovary had been performed on her.