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Statute of Limitations - Case law update

  • Ireland
  • General

08-05-2017

Under current personal injuries legislation, legal proceedings must be initiated within two years of when the cause of action accrued or when the injured party had the requisite knowledge to take proceedings.1

a. Green v Hardiman [2017] IEHC 17. Cross J delivered judgement on 20 January 2017.

The Plaintiff alleged that he suffered personal injuries as a result of the Defendant’s negligence and breach of duty. This case arose out of the occurrence of a tear during the course of a laparotomy on 11 December 2007, following a period of infection the Plaintiff subsequently developed a hernia. The Plaintiff alleged that the treatment provided by the Defendant was inadequate and that he had been forced into a prolonged stay at the hospital as a result of the Defendant’s management of his condition.

The Plaintiff issued his claim on 7 August 2012, almost 5 years after the alleged acts of negligence of the Defendant. Accordingly, the Defendant raised the Statute of Limitations in his defence, pleading that the Plaintiff’s claim was statute barred. Cross J held that the Plaintiff was reasonably aware of his injuries shortly after the procedure, this was because the Plaintiff developed a hernia in July 2009. A consultant from whom the Plaintiff was seeking a second opinion on treatment had advised the Plaintiff that his July 2007 hernia arose from (i) of a pre-existing hernia and (ii) a small contribution from the procedure carried out in 2007. It must be noted that the Consultation’s opinion was given in the absence of access to the Plaintiff’s original notes. Following the Plaintiff contacting his Solicitor a second expert opinion was sought and obtained in May 2012.

Cross J. held that the Plaintiff’s action against the Defendant would not be barred by virtue of the Statute of Limitations. Cross J. accepted that the Plainitff was discontent in respect of his procedure before August 2010. The Court observed that the medical records were required in order to attribute the injuries of the Plaintiff to the failure of the Defendant to investigate the matter properly. The Court accepted that the Plaintiff was not and could not have been aware that he had suffered an injury due to the failure of the Defendant until he had received the report of his expert or arguably when he received the hospital records, both of which was within the statute.

b. Hewitt -v- HSE [2016] IECA 19

This case involved an appeal from a decision of the High Court in respect of the interpretation of the Statute of Limitations in a fatal injuries claim death taken by the deceased’s husband pursuant to section 48 of the Civil Liability Act 1961 (the Act). The husband’s claim was brought less than two years after death of his wife.

The Plaintiff’s wife had been diagnosed with breast cancer, following which she appeared to have made a full recovery. However, a subsequent ultrasound scan in February 2007 showed two lesions appearing on her liver, but no action was taken. In July 2007 the Plaintiff was informed that these cancerous lesions had spread and she subsequently died in June 2010. The deceased did not issue proceedings alleging a delayed diagnosis of the recurrence of her cancer during her lifetime.

The Plaintiff subsequently initiated proceedings in January 2012, within two years of his wife’s death but almost 5 years following the February 2007 ultrasound scan that had not been acted upon. The trial judge held that although the deceased’s cause of action had expired in July 2009 (when she became aware that there had been a delayed diagnosis of the recurrence of her cancer), the fatal injuries claim taken by her husband was not statute barred as it had been issued within two years of the date of the deceased’s death.

During the course of the appeal it was contended by the Defendant that having regard to the wording in the legislation, once the deceased’s cause of action had become statute barred it must follow that the Plaintiff’s claim would also be statute barred. The Plaintiff argued that his action on behalf of the deceased’s dependants was a stand-alone action. The Court determined that if the deceased had taken an action at the time of her death, her claim would have been statute barred and accordingly it followed that the Plaintiff could not maintain his proceedings under S.48 of the Civil Liability Act 1961. The Court of Appeal added that if the Plaintiff was allowed to proceed with his cause of action, this could have “startling implications” on claims that were statute barred but could be revived at a later date by a personal representative or family members.

c. Murphy v HSE [2016] IEHC 694

This case considered the meaning of the ‘date of knowledge’ in respect of the Statute of Limitations of a personal injuries claim as defined by Section 2 of the Statute of Limitations (Amendment) Act 1991.

This case involved a claim for personal injuries claim taken by the Plaintiff arising from care she received at one of the Defendant’s hospitals. The Plaintiff underwent an emergency caesarean surgery in University CollegeHospital Galway for the birth of her third child, and subsequently required emergency repair surgery for a tear in her womb on 30 December 2008. She remained in intensive care and was discharged on 22 January 2009.  At this point the Plaintiff began to make enquiries into her care.

The Defendant contested that this action was statute barred as the Personal Injury Summons was issued on 17 August 2011, more than two years after the date of the alleged negligence [the relevant limitation period].

The Court discussed the interpretation of ‘date of knowledge’ as defined by Section 2 of the Statute of Limitation:

“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”.2

In addition the Court referenced the judgment in the English decision of Halford v Brookes3  where Donaldson M.R. stated that knowledge can be construed as to “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 advices, and collecting evidence. Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice”.4

Having regard to the above judgements and in considerations of the relevant sections of the Act, the Court determined that the date of knowledge of the Plaintiff was the date that she had sufficiently recovered from the trauma of her son’s birth and was fixed as 22 January 2009, the date of discharge from hospital.

Accordingly the Plaintiff’s claim was statute barred and the proceedings were dismissed.  


1. The Legal Services Regulation Act 2015 proposes extending the statute of limitations to
three years in clinical negligence cases but this provision is not yet enacted.
2. [2003] 3 I.R. 92 p. 126
3. [1991] W.L.R. 428
4. Ibid P. 443

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