EWJ 60 April 2025 web - Journal - Page 20
Personal Injuries Claim: High
Court Draws Inference from Failure
to Call GP Witnesses
The High Court has dismissed a personal injuries claim arising from a 2016 road traffic
accident.
In Daly v Ryans Investments Limited T/A Hertz [2024] IEHC 703, the court had particular
regard to the plaintiff’s decision not to call as witnesses her treating GPs and the GP whose
report was submitted to the Personal Injuries Resolution Board (PIAB).
that as of February 2017, the plaintiff and her GP were
operating on the assumption that the right shoulder
injury was not related to the road traffic accident in
April 2016. The first documented association of the
plaintiff ’s right shoulder symptoms with the accident
appeared in a note taken by the physiotherapist in
September 2018.
Background
The defendant admitted liability for the road traffic
accident in which his vehicle collided into the passenger side of the plaintiff ’s vehicle at a roundabout.
The plaintiff claimed that her right shoulder was
injured in the collision and that she reported pain to
her GP within a few days of the accident. As a result of
ongoing symptoms, she was required to have surgery
in 2022.
The court took account of the fact the plaintiff also
had a spontaneous onset of pain in her left shoulder
in July 2016 (with medical evidence given that symptoms of this nature in one shoulder could lead to similar symptoms in the other) and to the expert evidence
that while there could be a delay in the onset of symptoms in a shoulder injury following a road traffic accident, a delay of ten months made it difficult to relate
the onset of symptoms to the collision.
The defendant argued that the shoulder injury was
not caused by the road traffic accident. There was no
reference in the plaintiff ’s medical records to any
right shoulder symptoms until ten months post-accident and thereafter, when the right shoulder was
being treated, there was no mention of the accident
in either a 2017 referral letter from the GP for an
MRI, or in the radiological report following the MRI.
It is well established that a court can have regard to
the fact that a party chooses not to call a witness who
is likely to be in a position to give relevant evidence,
where that witness is available and it noted that the
plaintiff elected not to call either her treating GPs or
the GP to whom she was referred for the purpose of
preparing a report for submission to PIAB. Her own
GP practice doctors were in an ideal position to give
evidence in relation to the onset of symptoms and to
furnish an opinion on whether those symptoms were
related to the road traffic accident, while the personal
injury summons was drafted on the basis of the report
produced for PIAB. The court held that it was entitled
to draw the inference that in deciding not to call these
doctors, the plaintiff made a conscious decision not to
rely on their evidence.
Treatment
The plaintiff ’s evidence was that two days after the
accident her GP directed that she should take pain relief medication in respect of her right shoulder. In July
2016, the plaintiff was referred for an MRI in respect
of her left shoulder (which was not claimed to have resulted from the accident) and she was referred to
physiotherapy treatment in respect of her right shoulder. Her GP administered cortisone injections on two
occasions in 2017. An MRI followed which demonstrated a partial tear of the supraspinatus tendon. In
2018, she was referred by her GP to a Consultant Orthopaedic Surgeon, who administered four injections
to her right shoulder and in 2022, an arthroscopic
subacromial decompression was carried out on her
right shoulder.
Conclusion
The court held that having regard to the findings of
fact and the inferences that the court is entitled to
draw from the failure on the part of the plaintiff to call
relevant witnesses, the injury to the plaintiff ’s shoulder was not caused by the 2016 road traffic accident
and the case against the defendant was dismissed.
Court Findings
The court noted that the plaintiff was a frequent attendee at her GP practice on account of inter alia injuries suffered in a prior workplace accident. The
court found that the GP practice kept good records
and had the plaintiff mentioned that she had symptoms in her right shoulder and that symptoms were
referable to the accident, it would have been recorded
in the GP notes.
Authors
Lorna Kennedy,
Partner, Dublin, Dillon Eustace
In addition, the fact that there was no mention of the
accident in the MRI referral note and the MRI report
stated “no history of trauma” support the contention
Audrey Burke,
Senior Associate, Dublin, Dillon Eustace
www.dilloneustace.com
EXPERT WITNESS JOURNAL
18
APRIL 2025
