Experts are ‘independent’ in personal injury cases, solicitor says after judge criticism

Solicitor Cian O’Carroll has said he was shocked at criticism by High Court judge Justice Michael Twomey of the “inappropriate practice” of solicitors referring clients to medical professionals as he dismissed two personal injury claims following what he described as a minor “tip”.

Justice Twomey also criticised the over-use of expert evidence in the case.

The comments were “a bolt out of the blue”, Mr O’Carroll told Newstalk’s Pat Kenny show, presented on Thursday by Ivan Yates. “In this case the issues were not discussed during the trial and submissions were not sought. “The reality is that both sides in such cases seek medical examination of an injured person or claimant to give an independent, professional, expert report – it is not partisan. They are independent – to suggest otherwise impugns the doctor as much as it impugns the solicitor or any other lawyer involved in preparing the case.”

Any injury has to be correctly documented for the Court, he explained. Experts also have to be in a position to attend court.

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“Why should the injured party be put at a disadvantage to the insurance company who can pick and choose their witnesses as they see fit and according to their availability?” he asked.

“To fail to document your client’s injuries would effectively amount to professional negligence on my part.”

[ ‘Hired gun syndrome’ a risk with expert witnesses, judges warn ]

Mr O’Carroll denied that the plaintiff in the case had 18 experts – there was an orthopaedic consultant and a psychiatrist and there was a GP involved as well, he said. “That’s it. The number 18 is looking at all the other people involved – solicitors and barristers, doctors for the insurance company, the Personal Injuries Assessment Board, who by the way independently sent the person to a psychiatrist – there’s nothing wrong with doing that it seems. Yet there is something wrong with us doing that to ensure that the injury is fully understood and documented. These are independent experts.”

The number of cases being taken has reduced over the past three years, because steps have been taken to address concerns of insurance industry, added the solicitor. The number of actions taken has dropped from 33,000 in 2019 to 18,000 in this current year. “That is partly as a result all of these various reforms coming in. The most important reform has been the slashing of the level of damages awarded to injured parties.”

However, Peter Boland, director of the Alliance for Insurance Reform said there was no evidence that the awards in court have dropped yet. “What we’re seeing is plenty of evidence that PIAB assessments are dropping, but no evidence that the courts are complying with the judicial guidelines. We’re waiting to see such evidence,” he said.

“The detail in the judgment did not come as a bolt out of the blue for us, it reflects issues that have been repeated in the High Court on numerous occasions and ultimately it boils down to the same figures that we have been trawling through for a number of years now.”

“The latest update from the Central Bank last month on motor personal injury claims, of which this was one, [said that] if a case is settled by PIAB and delivers an award for someone with a minor injury and it does so for a total cost of €917 – that’s the total legal fees applicable to the average claim through PIAB. The heart of the matter is that when that case is litigated there’s only a minor uplift for the claimant, but the legal fees rocket to €16,685 and the claimant has to wait a further two years beyond the PIAB assessment.”

“Society cannot afford that. The evidence is all around us of voluntary and community groups not able to afford insurance.”