The High Court dismissed a husband and wife’s claims against the estate of a consultant histopathologist, who is alleged to have acted negligently in the testing and reporting of a histology sample carried out in January 2014.  The claim was part of medical negligence proceedings taken against numerous defendants relating to an alleged delayed diagnosis of cervical cancer.

In what was undisputed evidence, the plaintiffs’ solicitors did not become aware of the doctor’s date of death until after the two-year statutory period for issuing proceedings under s. 9(2)(b) of the Civil Liability Act, 1961 (1961 Act) had expired.  The plaintiffs contended that:-

• the personal representative of the late doctor and/or his indemnifiers omitted to supply the plaintiffs’ solicitor with his date of death prior to the expiry of the statute;
• this omission was sufficient to satisfy the test for estoppel set by the Supreme Court in the seminal decision of Doran v Thompson IR 233; and
• if the Court was not satisfied that the threshold for estoppel had been met, it should, on the exceptional facts of the case, apply the wider equitable doctrine of unconscionability to prevent the defendant from invoking the statute defence, referencing Murphy v Grealish 3 IR 366 and Traynor v Fegan IR 586.

In the absence of a representation inducing the plaintiff not to issue proceedings within the requisite statutory period, the High Court held that unconscionability in the behaviour of the relevant defendant would need to be found before it could consider disapplication of any statute defence pleaded.

In distinguishing the facts of Traynor v Fegan, the Court held that there were no false representations or inequitable behaviour on the part of the personal representative of the late doctor or his indemnifiers. Indeed, the uncontested evidence was that the deceased indemnifiers had promptly responded to correspondence directed to them which had not sought information as to the date of death. 

The Court expressed its “considerable regret” in concluding that the plaintiffs’ claim was statute barred.

Conclusion

The Court observed that while the Irish legislature amended aspects of the Statute of Limitations relating to personal injuries actions, including in the Statute of Limitations (Amendment) Act, 1991, which introduced the concept of “date of knowledge”, no similar amendment to incorporate a “date of knowledge” provision has been made to s.9(2)(b) of the 1961 Act, which the Court noted could operate harshly in certain circumstances. 

The judgment reinforces settled case law as to the interpretation of s. 9(2)(b) of the 1961 Act in that a defendant will be entitled to rely on its provisions save for in limited circumstances where the threshold for estoppel or unconscionability has been met with reference to its behaviour.
 

Contributed by Barry Murphy