The Gazette 1988

GAZETTE

JUNE 1988

and middle stages. It is only when serious damage begins to show that the cause can be identified. The Plaintiff's claim was for compensation under the Federal Employer's Liability and Boiler Inspection Acts. The U.S. Supreme Court did avert to the concept behind the Statute of Limitations and came down heavily in favour of a date of discoverability rule as can be seen from the following extract from the judgment of Judge Rutledge at p. 169: " I f Urie were held to be barred from prosecuting this action because he must be said, as a matter of law, to have contracted silicosis prior to November 25, 1938, it would be clear that the federal legislation afforded Urie only a delusive remedy. It would mean that at some past moment in time, unknown and inherently unknowable, even in retrospect, Urie was charged w i th knowledge of the slow and tragic disintegration of his lungs; under this view Urie's failure to diagnose, within the applicable statute of limitations, a disease whose symptoms had not yet obtruded on his consciousness, would constitute a waiver of his right to compensation at the ultimate day of discovery and disability . . . We do not think the humane legislative plan intended such c on s equen c es to a t t r a ct a blameless ignorance nor do we think those consequences can be reconciled wi th the traditions of the Statute of Limitations which conventionally required the assertion of a claim within a specified period of notice of the invasion of the legal rights." The American case that took on board the "blameless ignorance" criterion as set out in Urie is that of Quinton -v- United States 304.S 2d. 234 (1968). There the case involved an action under the Federal Courts Claims Act for medical malpractice. Torle C. J. stated that: " The . . . rule . . . that a cause of action for malpractice accrues on the date of the negligent act, even though the injured patient is unaware of his plight, has been subjected to every criticism over the years. It has also uniformly been condemned as an unnecessarily harsh and

success and by 1976 the matter had begun to deteriorate. From then until 1978 the Plaintiff mentioned the matter to a Dr. Browne though not apparently as her doctor. From 1978, the Plaintiff attended Dr. Browne as her General Practitioner. She did not go to him for specific advice about her nose, but did, when attending him for other purposes, indicate that her nose was c au s i ng cons i de r ab le discomfort. His advice was for her to leave her nose alone. In 1980 the Plaintiff went to London. Whilst there her nose deteriorated even further. She returned home whereupon she had a further successful operation. Proceedings were commenced against both Defendants by the issue of a Summons on 19th December, 1980. The Plaintiff claimed damages for negligence. The Defendants in their defence pleaded inter alia that her claim was statute barred by virtue of S.11 (2)(b) of the 1957 Statute. T h r o u g h o ut t he j u d gme n t, Barron J. was at pains to point out that no question of the uncons- titutionality of S.11 was raised and in fact goes so far as to say that at p.605 of the judgment: "Suppo rt for this proposition is to be found in Morgan -v- Park Developments [ 1983] ILRM 156. In that case, Carroll J. held that the date of accrual in an action for negligence in the building of a housing estate is the date of discoverability. I agree that this should be the law and for the reasons given. Further, I see no reason why such a proposition, if valid, should not apply to all a c t i ons for damages for

"unjust rule of law . . . Since this . . . rule, so far as we can d i sce r n, has no significant redeeming virtue, we declined to apply it but rather we think that by far the most sensible and just rule to be applied under that section is that a claim for malpractice accrues against the Government when the claimant discovers or w i th reasonable diligence should have discovered, the acts constituting the alleged malpractice." The final American case to be considered is that of the Supreme Court case of the United States -v- Kubrick 444 U.S. 111 (1979). In that case Kubrick had been given an an t i b i o t i c, Neomy c i n, by t he Veterans Administration Doctors w h en t hey we re c o n d u c t i ng surgery on his right femur. The drug had been negligently administered and caused a ringing sensation and loss of hearing in Kubrick. Although Kubrick lost his action on the grounds of being statute barred, the Court, feeling at the time that he had sufficient information inside the limitation period to put a reasonable person on notice, nonetheless indicated their view for the purposes of the Statute of Limitations. Justice White for the majority stated on p.122 of the report: We are unconvinced, for Statute of Limitations purposes, that a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause shou ld receive i den t i cal treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the c o n t r ol of t he pu t a t i ve defendant, or available to the plaintiff or at least very difficult to obtain." The High Court decision that would appear to conflict w i th the American case is the Hegarty -v- O'Loughran case where the facts were as follows: The De f endan ts we re bo th surgeons; the first-named of which performed an operation on the Plaintiff's nose in 1973. Soon after the operation the nasal bridge collapsed. A remedial operation was performed in June, 1974, by the second-named Defendant. The second ope r a t i on was not a

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