61 In cross-examination, Mr Huysing sought to qualify that part of his affidavit by stating that he understood the cardiologist to have been saying that the heart defect should have been picked up by the ultrasound "in a perfect world". I do not accept that that qualification accurately reflects Mr Huysing's state of mind. It was something which emerged in the heat of cross-examination. Both Mr Huysing and his wife, in their affidavits, recited the advice given to them by the cardiologist without any qualification such as that advanced by Mr Huysing in cross-examination. While I consider that Ms Caven and Mr Huysing were fundamentally honest and candid witnesses, who endeavoured to do their best in their evidence, nonetheless I do consider that that part of Mr Huysing's evidence was an exercise by him in rationalisation rather than an accurate reflection of what he recalls being told by the cardiologist in January 1998. It follows that I accept that the plaintiffs were informed by a cardiologist, in January 1998, that Jared's heart defect which had then been diagnosed should have been disclosed on the ultrasound of May 1997.
62 Mr Noonan submitted that the plaintiffs' knowledge of the sixth fact, which I set out above, was based on two pieces of evidence given by each plaintiff. First, in cross-examination, Ms Caven stated that shortly after Jared was born she was given a book on Down's Syndrome. On page 69 the book stated that approximately 40 to 45 percent of babies with Down's Syndrome are born with heart defects. Ms Caven stated that she had read part of the book at Jared's bedside in hospital. She agreed that she most certainly read the chapter about heart defects and she assumed that she read the passage to which I have just referred. In cross-examination Mr Huysing agreed that he had read and notated with his own handwriting the section of the book relating to atresia. Although he could not specifically recall reading the section relating to heart defects, he agreed that he may have read the book to ascertain the problems which were then facing Jared. Mr Huysing was a secondary school science teacher. He struck me as an intelligent person. At the time the plaintiffs received the book, Jared's principal problem was his heart defect. In those circumstances, on the balance of probabilities, I do accept that that both plaintiffs either read or knew of the contents of the part of a book which stated that about 40 to 45 percent of children affected by Down's Syndrome also have heart defects.
63 The second item of evidence on which Mr Noonan relies to establish the sixth fact arises from the ultrasound conducted on Ms Caven in March 2000 by Dr Lachlan De Crespny, when Ms Caven had become pregnant with her third child. Ms Caven, in cross-examination, agreed that at the time she was undergoing that ultrasound in Dr De Crespny's rooms, she understood that if the ultrasound identified a defect in the baby's heart, there was a possibility that the child might be affected by Down's Syndrome. In the course of cross-examination Mr Huysing also made a similar concession, but subsequently contradicted it. Mr Huysing was present when Ms Caven underwent the ultrasound. In those circumstances, on the balance of probabilities, I do accept that Mr Huysing also understood that if the baby then carried by Ms Caven was shown by the ultrasound to have a heart defect, that might be an indication that the child could be affected by Down's Syndrome.
64 Mr Noonan submitted that, based on those six facts, it was "inevitable", and I should find, that the plaintiffs realised, by at least March 2000 that the defendant had failed to advise them that the ultrasound of March 1997 demonstrated the evidence of a heart defect in the foetus which was an indicator that the baby might be affected by Down's Syndrome. He submitted that both plaintiffs are intelligent people who were well alert to the nature of Jared's problems after he was born. He therefore submitted that I should conclude that both plaintiffs had become aware, at least by 2000, of the fact that that after the ultrasound the defendant had failed to disclose to the plaintiffs that Jared had a heart defect which, if disclosed to the plaintiffs in May 1997, would have indicated the possibility that the baby might suffer from Down's Syndrome.
65 In their evidence, both plaintiffs swore that until their solicitor, Mr Henderson, told them of the report of Dr Phillipa Ramsey, they did not know whether the cardiac views of Jared on the ultrasound conducted in May 1997 should have alerted the radiographer to the potential that the baby suffered from Down's Syndrome. In other words both plaintiffs swore that they did not draw the inference which Mr Noonan has submitted inevitably must have been drawn by them, based on all the facts with which they were seized. Both plaintiffs were skilfully and thoroughly cross-examined by Mr Noonan. I closely observed both of them under cross-examination. Subject to the one qualification which I have already mentioned, I consider that both plaintiffs were candid and reliable witnesses. I do not accept that they have untruthfully denied knowing that the cardiac views of the ultrasound should have alerted the radiographer, in May 1997, to the potential that the baby had Downs's syndrome. Indeed, it would seem to me that if that circumstance had dawned on the plaintiffs during those years, it is most unlikely that they would have done nothing about it. Neither plaintiff struck me as being an entirely passive person. Ms Caven, despite her heavy load at home, has returned to the work force, involved herself in part time study, and continued her duties as a Sergeant in the Army Reserve. I consider it most unlikely that she, or her husband, would have simply remained inactive had either of them realised that the defendant had failed to advise them of a critical fact which might have alerted to them to the fact that the baby carried by Ms Caven in May 1997 might be affected by Down's Syndrome.
66 There is of course a fundamental difference between facts which the plaintiff might have known, and facts which they might have simply suspected.[40] Furthermore, there is an important and substantial difference between, on the one hand, knowing a fact in question, and, on the other hand, being seized of certain other facts which are capable of leading to an inference or suspicion as to the existence of the fact in question. In other words it is one thing for the plaintiffs to have had in their possession and known of the six facts relied upon by Mr Noonan. It is another matter for them to have subjectively drawn the inference on which Mr Noonan relies, namely, that the ultrasound in May 1997 should have disclosed to the plaintiffs a heart defect which was commonly associated with Down's Syndrome. In hindsight the drawing of such an inference might be logical and even obvious. However that does not mean that the plaintiffs themselves did, in the circumstances in which they found themselves, subjectively draw that inference or, to adopt the phrase used in the course of argument, "join the dots".
67 Accordingly I reject the proposition advanced on behalf of the defendant that by January 1998 or March 2000 the plaintiffs knew that the continued pregnancy of Ms Caven, which resulted in the birth of Jared, was "caused by the fault of the defendant".
68 The question which then arises is whether, before December 2001, the plaintiffs ought to have known that the personal injury of which they complain was caused by the "fault" of the defendant. As I have stated, the personal injury relied on by the plaintiffs is the continued pregnancy of Ms Caven, which she lost the opportunity to terminate after the ultrasound in 1997. The question is whether, before December 2001, the plaintiffs ought to have known that the cardiac views of the ultrasound should have alerted the radiographer to the possibility that the baby might suffer from Down's Syndrome. In turn, s.27F(2) raises the question whether that fact would have been ascertained by the plaintiffs had they taken all reasonable steps before December 2001 to ascertain it.
69 The answer to this question is not easy. It involves an exercise obscured by the wisdom of hindsight. It requires me, as a judge, to postulate what reasonable steps ought have been taken by the plaintiffs in the circumstances in which they found themselves, and what they might have learnt, had they taken such reasonable steps.
70 Mr Noonan submitted to me that, at least by March 2000, the plaintiffs ought reasonably to have consulted a solicitor. Certainly had the plaintiffs done so, then it would be open to conclude that, ultimately, they would have gained the knowledge which they have subsequently derived from the report of Dr Ramsey, namely, that the cardiac views shown on the ultrasound should have alerted the radiographer to the potential for Down's Syndrome, because 50 percent of Down's Syndrome foetuses have some sort of heart defect.
71 The question is, then, given the information in the possession of the plaintiffs in January 1998 or alternatively March 2000, should they have then consulted a solicitor, as a consequence of which they would have, ultimately, gained the knowledge which is contained in the report of Dr Ramsey. In my view it would be setting too high a standard of reasonableness to have expected the plaintiffs to have made inquiries of the solicitor when the cardiologist first spoke to them in January 1998. At that time they were under considerable pressure. Jared was gravely ill. They were adjusting their lives with a seriously ill young baby with Down's Syndrome. In my view they did not, at that time, fail to take the reasonable steps postulated by Mr Noonan, namely, to instruct a solicitor to inquire whether the hospital had failed to inform them that the ultrasound disclosed a cardiac defect which might have alerted them to the potential for the baby to have Down's Syndrome.
72 However, the position did change somewhat by March 2000. By then, although Jared's health was still poor, they were not confronted with the immediate and pressing health crises of Jared's earlier days. Further, in March 2000, their knowledge as to the link between heart defects and Down's Syndrome, which they had gained from a book, was reinforced by what they learnt when consulting Dr De Crespny. By then they knew that if the ultrasound of the next baby indicated a heart defect, that was a potential indication that that baby was affected with Down Syndrome. By then they knew each of the six facts on which Mr Noonan has relied. In particular they knew that Jared had a heart defect, that he had Down's Syndrome, and that they had not been informed that the ultrasound performed in 1997 had disclosed either such matter. They also knew, from what they were told by the radiologist in January 1998, that the heart defect should have been disclosed by the ultrasound. Finally, their knowledge as to the potential link between the detection of a heart defect, and the detection of Down's Syndrome, had been reinforced. In those circumstances, and even allowing for judicial wisdom of hindsight, it would seem to me that ordinary reasonable parents would have been particularly curious as to why, after the ultrasound, they had not been informed that Jared might have a heart defect, which might be a pointer to the existence of the Down's Syndrome. In my view it would not be unreasonable to have expected persons in the position of the plaintiffs to have consulted a solicitor, at least with a view to making inquiries as to whether the ultrasound did in fact disclose a heart defect, and if so whether that the heart defect might have been a pointer to the baby then carried by Ms Caven being affected with Down's Syndrome. If the plaintiffs had made such inquiries, then it is probable that a prudent solicitor would have done just what Mr Henderson did, namely, consult an appropriately qualified obstetric radiologist.
73 Dr Ramsey, when consulted, advised that the cardiac view should have alerted the radiographer to the potential for Down Syndrome's because 50 percent of Down's Syndrome foetuses have some sort of heart defect. Dr Ramsey does not state that that knowledge only lay within the expertise of any particular narrow specialty. In those circumstances I consider it appropriate to infer that, if the plaintiffs had consulted a solicitor in 2000, then the solicitor would have received the type of advice obtained by Mr Henderson, which would have informed the plaintiffs of the fact that the defendant had failed to inform the plaintiffs that the ultrasound conducted in May 1997 showed a heart defect which was commonly associated with Down's Syndrome. Thus I conclude that at some time after March 2000 the plaintiffs ought to have known that the personal injury which is the basis of their action (the continued pregnancy of Ms Caven) was caused by the fault of the defendant under s.27F(1)(b) of the Limitation of Actions Act.
74 It thus becomes necessary to determine, for the purposes of s.27D, when it was that those facts ought to have been ascertained by the plaintiffs. The answer to that question lies in determining when information of the type contained in Dr Ramsey's report would have been available to the plaintiffs, had they consulted a solicitor shortly after March 2000.
75 The affidavits of Ms Caven and of the plaintiffs' solicitor, Mr Henderson, set out the events which occurred after the plaintiffs first consulted the solicitors in April 2004. In the upshot it was not until 29 November 2005 that the solicitors received Dr Ramsey's report. The delay was not of the making of either the plaintiffs or the solicitors. A substantial part of the delay until February 2005 occurred in obtaining funding for the plaintiffs from Law Aid. Dr Ramsey was instructed in April 2005, but her report was not received for a further seven months. If the plaintiffs had consulted solicitors shortly after March 2000, it does not necessarily follow that there would have ensued the same period of delay until they received a report similar to that of Dr Ramsey. However, the delay which occurred between April 2004 and November 2005 does provide some guide as to the type of period which would have lapsed between the plaintiffs' first consultation with solicitors, and the receipt of an appropriate expert's report, if the plaintiffs had consulted a solicitor shortly after March 2000. In the absence of any other evidence, on the balance of probabilities I would infer that such a delay would have been in the order of some 12 months or so. It therefore follows that if, shortly after March 2000, the plaintiffs had consulted solicitors, then they would have ascertained the relevant facts set out in s.27F by approximately April 2001. In the terms of s.27D, it was then that the cause of action relied on by the plaintiffs was "discoverable". The writ in this proceeding was not issued until December 2004. I therefore conclude that the proceedings have commenced more than three years after the expiration from the date on which the cause of action of the plaintiffs was discoverable by them.
76 Accordingly it is necessary for me to determine whether I should grant the plaintiffs' application to extend the period of limitation applicable to the plaintiffs' cause of action pursuant to s.27K(2) of the Limitation of Actions Act.
Section 27K(2): Application to extend period of limitation
77 Section 27K(1) provides that a person claiming to have a cause of action to which Part 2A applies may apply to a Court for an extension of a period of time applicable to that cause of action. Section 27K(2)(b) provides that the Court may "if it decides that it is just and reasonable to do so" order the extension of the period of limitation applicable to the cause of action for such period as the Court determines. Section 27L provides that in exercising the powers provided by s.27K the Court shall have regard to all the circumstances including (but not limited to) the set of factors numerated in s.27L(1). It is convenient if I consider the application by the plaintiff by reference to those factors.