Green v Hardiman

Factual and Procedural Background

The Plaintiff, then in his late sixties, underwent surgery at The Hospital on 11 December 2007 to repair a colovesical fistula. During that procedure the bowel was inadvertently perforated. The Plaintiff’s post-operative condition deteriorated, but no computed-tomography (CT) scan was performed and he was sent home. He returned in a worsened state and, on 19 December 2007, required an emergency laparotomy with the creation of a stoma. A ventral hernia subsequently developed.

After discharge, the Plaintiff attended Surgeon A (March 2008) and later Surgeon B (January 2009). Both advised that the hernia was an unfortunate but ordinary consequence of abdominal surgery rather than negligence. Believing this to be the position, the Plaintiff took no immediate action.

He consulted solicitors on 31 January 2011. Full hospital records were obtained on 31 March 2011, and an expert report dated 3 May 2012 concluded that an omission to carry out a CT scan and timely re-operation (14–15 December 2007) constituted negligent care, leading to prolonged infection and a larger incision which in turn caused the hernia.

Proceedings issued in the High Court on 7 August 2012. Judge Cross found for the Plaintiff, assessing general and special damages at €96,403 and rejecting the Defendant’s limitation defence. The Court of Appeal (Judge Peart) affirmed that decision in [2018] IECA 205. The Defendant appealed to the Supreme Court, contending that the claim was statute-barred under s. 3 of the Statute of Limitations (Amendment) Act 1991.

Legal Issues Presented

1. Whether the action was commenced outside the two-year limitation period prescribed by s. 3 of the Statute of Limitations (Amendment) Act 1991.
2. Whether, within the meaning of s. 2 of that Act, the Plaintiff had (or ought reasonably to have had) “knowledge” that his significant injury was attributable to an act or omission alleged to constitute negligence before August 2010.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff experienced severe complications immediately after surgery and therefore had actual knowledge of significant injury from December 2007.
• By January 2009 the Plaintiff “began to question” his outcome and expressed a desire for expert medical advice; reasonable diligence required him to seek such advice then, meaning time began to run at the latest on 10 August 2010.
• Section 2(2) imputes constructive knowledge because the omission to perform a CT scan was discoverable with reasonable inquiry.

Plaintiff's Arguments

• Until the expert report of May 2012 (or, at the earliest, receipt of records in March 2011), the Plaintiff could not know that the hernia was attributable to the failure to scan and re-operate on 14–15 December 2007.
• Advice from Surgeons A and B, both acting in good faith, pointed away from negligence and “assuaged” concerns, rendering further inquiry unreasonable at that time.
• The statutory test requires knowledge of the particular act or omission alleged to constitute negligence, not merely knowledge that some injury followed surgery.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Charleton (majority): The statutory definition of “knowledge” is specific and includes facts a plaintiff might reasonably acquire. The High Court’s critical factual finding—that only the medical records and subsequent expert report revealed the causal omission—was unassailable. The Plaintiff had sought professional advice in January 2009 and, relying on that advice, believed the hernia to be a natural progression of a pre-existing condition. Requiring him to disregard that medical reassurance would undermine the balance struck by s. 2(2)–(3) of the 1991 Act.

The two-year hiatus (January 2009–January 2011) therefore did not evidence unreasonable inertia; instead it reflected acceptance of expert opinion. Only when contradictory expert evidence emerged in 2012 did the Plaintiff acquire or could reasonably have acquired knowledge attributing significant injury to an actionable omission.

Judge O’Donnell (concurring) distinguished the present facts from O’Sullivan: whereas MRSA infection is an obvious extraneous injury, post-operative hernia can be an ordinary sequel to abdominal surgery. Both the treating and independent surgeons had assured the Plaintiff of this. In such circumstances, the Plaintiff was entitled to rely on that reassurance; constructive knowledge could not be imputed earlier.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court affirmed the Court of Appeal and High Court findings that the action was not statute-barred. The matter of liability and damages therefore stands as determined by the High Court. The decision underscores that, in medical-negligence cases, reliance on contemporaneous professional advice may legitimately defer the accrual of “knowledge” for limitation purposes. No new legal test was created, but the case illustrates the nuanced application of the principles elaborated in O’Sullivan v Bon Secours Hospital to fact-specific scenarios.