Two personal injuries cases, Sarah Cahill v Brian Forristal and Rachel O’Riordan v Brian Forristal [2022] IEHC 705, recently came before Mr Justice Twomey in the High Court on appeal from the Circuit Court, which rejected the plaintiffs’ claims.
Twomey J dismissed the appeals and expressed strong criticism of “inappropriate” referrals made by the plaintiffs’ solicitor to medical specialists.
Background
The cases involved two sisters who were commuting by car, albeit in a line of traffic, when the defendant, who was travelling behind them, knocked into the back of their car. Ms Cahill was the driver, and Ms O’Riordan was seated in the passenger seat. The parties inspected the cars, and as there appeared to be no visible signs of damage, no insurance details were exchanged. The plaintiffs reported the incident to An Garda Síochána, claiming significant damage to the car and reporting that the defendant had smelt of alcohol and had fled the scene. There was no evidence of damage to the plaintiffs’ car upon Garda inspection. The defendant also denied the allegations against him, and the Court accepted that those allegations were false.
Ms Cahill had informed her GP that the defendant had “walloped into the back of her car” and that “her bumper was damaged”. Critically, however, it was Ms Cahill’s solicitor who referred her to an orthopaedic surgeon and a consultant psychiatrist for medical assessment rather than her GP.
High Court Judgment
Both cases were heard together by the Circuit Court and on appeal by the High Court (Court). Twomey J referred to earlier findings in Dardis v. Poplovka (No. 1) [2017] IEHC 149, which deemed it “inappropriate” for a plaintiff to be referred for medical assessment by their solicitor, as they lack the medical expertise to make such a referral. The key considerations in this regard were as follows:
- Noting the decision in Harty v. Nestor [2022] IEHC 108, Twomey J was of the view that the plaintiff’s GP should make medical referrals, as the Consultant to whom they are being referred would have the benefit of the plaintiff’s medical history. Twomey J opined that referrals made by solicitors amounted to prima facie evidence that there was no medical basis for the referral, thereby affecting a plaintiff’s credibility and their alleged injuries.
- An argument could be made that solicitor-referred expert evidence may not be admissible under Order 39 Rules 58(1) of the Superior Court Rules, which provides that “Expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings”. The Court, however, did not decide on this issue.
- Solicitor referrals place a strain on medical resources.
Mr Justice Twomey did accept that solicitor referrals may be appropriate in certain circumstances. He noted that a defendant would be entitled to refer a plaintiff to a different consultant, of the same speciality, for a second opinion.
The Court ultimately held that there were “false and inconsistent” claims made by Ms Cahill regarding the road traffic accident, which cast doubt on the events presented to support both plaintiffs’ claims. The Court found that the plaintiffs’ failed to satisfy it that the incident occurred as they claimed, or that it caused their alleged injuries. The Court agreed with the decision of the Circuit Court and dismissed both appeals.
For more details, please contact Mary Cooney or your usual William Fry contact.
