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Published 20 abril 2023
The recent case of Sarah Cahill v Brian Forristal concerned a claim for compensation in respect of injuries following a road traffic accident.
The Circuit Court had rejected the claim and it was appealed to the High Court. The High Court also rejected the case on appeal. Of note, there were a number of inconsistent claims made by the Plaintiff.
The Plaintiff’s solicitor had referred his client to two medical consultants- a consultant psychiatrist and a consultant orthopaedic surgeon. In delivering his judgment, Mr Justice Twomey highlighted the ‘inappropriate’ practice of solicitors referring their clients to medical specialists.
The High Court had previously found that such referrals are ‘inappropriate’ in the Dardis case ’. The finding in Dardis was not appealed so represents the current state of law in Ireland on solicitor referrals. The issue was highlighted again in subsequent cases .
The following are some of the key takeaway points from Mr Justice Twomey’s judgment regarding solicitor referrals:-
O There are no medical grounds for such referrals since the Plaintiff’s solicitor is not a GP. As a solicitor does not have medical expertise- these referrals can only have a legal basis, namely to procure evidence which will support a claim for damages.
O Continuity of treatment and communication were highlighted as important factors as to why GPs rather than solicitors should be making medical referrals.
O Solicitor referrals may lead to a lesser award, or the rejection of the claim entirely as it impacts the credibility of the Plaintiff regarding the injuries the subject of the referral and could also potentially impact the credibility of the Plaintiff regarding other injuries and claims.
O The Court highlighted that there may be an issue of whether such solicitor referred medical reports are admissible in the first place . While the court did not decide this issue, Mr Justice Twomey noted that it seems to be arguable that a medical report which has been procured by a solicitor without any medical grounds for same is not ‘reasonably required’ to determine the proceedings regarding that alleged injury.
O The public interest element of the issue was noted since it concerns the waste of resources including medical resources
O Overuse of expert evidence was also criticised
It is hoped that by this issue being highlighted once again, this will bring an end to this practice. It is an important issue for the defence to be live to on cases where the only reports (PIAB or submitted) are from ‘reporting’ rather than treating doctors.
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