Cahill v Forristal; O'Riordan v Forristal

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 15 December 2022
• Neutral Citation: [2022] IEHC 705
• Court: High Court
• Docket Number: Record No. 2019/00426

Between

Sarah Cahill

Plaintiff

and

Brian Forristal

Defendant

Between

Rachel O'Riordan

Plaintiff

and

Brian Forristal

Defendant

[2022] IEHC 705

Record No. 2019/00426

Record No. 2019/00407

THE HIGH COURT

JUDGMENT OF Mr. Justice Twomey delivered on the 15 ^th day of December, 2022

INTRODUCTION

1 . This case concerns a tip in stationary traffic to the first plaintiff's (“Ms. Cahill's”) car, which was so inconsequential that it caused no damage to her car. Nonetheless her solicitor decided that Ms. Cahill should be referred to two consultants, including a consultant psychiatrist. This was for the purpose of her being assessed/treated for the psychiatric injuries which she allegedly suffered as a result of this tip in stationary traffic. There were clearly no medical grounds for this referral since Ms. Cahill's solicitor is not as GP.

2 . In addition, this referral was made despite the High Court finding that such referrals should not be made, as they are ‘ inappropriate’ ( Dardis v. Poplovka (No. 1) [2017] IEHC 149 at para. 156 per Barr J.). Such referrals are ‘ inappropriate’ since it is not the role of a legal practitioner to decide which medical issues a client has, which speciality is appropriate for that client, and which specialist, within that speciality, is appropriate for him to see. These are matters for the client's GP. It follows that such solicitor-referrals amount to medical evidence being procured by legal practitioners even though there is no medical basis for this evidence. As a legal practitioner has legal expertise, there can only be a legal basis for a referral by a legal practitioner in these circumstances, i.e. to support a claim for damages. For this reason, while the legal practitioner might see the referral as being in his client's best legal (and financial) interests, these referrals are still ‘inappropriate’ and should not be made. The means do not justify the ends and so, just because a client might be in a better position to seek a greater settlement/court award with a consultant's report, this does not make those solicitor-referrals appropriate.

3 . Although Barr J. sought in 2017 to bring the ‘ inappropriate’ practice of referrals of clients by solicitors to medical specialists to an end, by highlighting that issue in Dardis, this did not have the desired effect amongst legal practitioners. This is because Barr J. had to highlight the issue once again five years later in Harty v. Nestor [2022] IEHC 108 at para. 24.

4 . Unfortunately, Ms. Cahill's case illustrates that this practice has still not ended, and so the High Court is required to highlight once again why this practice is ‘ inappropriate’, in the hope that legal practitioners will stop referring their clients to medical specialists (and in the hope that medical specialists will stop accepting those referrals).

5 . It is important that this issue is highlighted. This is because the courts play an important role in highlighting concerning practices in order to seek to bring those practices to an end. A recent example of this approach by the courts is provided by the judgment in Duffy v. McGee [2022] IECA 254, where the Court of Appeal highlighted the overuse of expert evidence, in order to bring about a change in the approach of legal practitioners in this area. Ms. Cahill's case is noteworthy for the fact that it also provides an example of the over-use of expert evidence, which was criticised in Duffy v. McGee. This is because, even though there was no accident scene to inspect, or damaged car to inspect, Ms. Cahill's solicitor engaged the services of an engineer to give expert evidence to the Court regarding the ‘accident’ in which Ms. Cahill was involved. In fact, there were 18 different professionals (lawyers, doctors, engineers etc.) engaged, at no doubt considerable cost, in supporting, and defending, two personal injury claims for up to €60,000 – all arising from a tip in stationary traffic which led to no damage to Ms. Cahill's car.

6 . Since Ms. Cahill's case is one of the tiny percentage of personal injury claims that are ever heard in court (3% per the Statement of the President of the High Court, 10 ^th July, 2020), it is impossible to know how common these solicitor-referrals are in the 97% of personal injury claims that settle on the basis of consultant's reports. Indeed, if Ms. Cahill's claim had not been the exceptional case to be heard in open court, the issue of solicitor-referrals, and the other issues of concern in this case, would not have come to light. These issues are of public interest since they concern the waste of Gardaí resources, medical resources and court resources, since:

In addition, this case also considers a series of false and inconsistent claims that were made in this action for damages. It is also important to highlight these issues, so that litigants in other cases are aware of the attitude of the courts regarding these matters, which may facilitate settlement in those other cases.

• • The Gardaí had to waste scarce resources investigating a false claim by Ms. Cahill that the defendant (“Mr. Forristal”) had left the scene of an ‘accident’.

• • The State's medical care system, which is under well-publicised strain, was subject to unnecessary referrals to consultants by Ms. Cahill's solicitor on three occasions, contrary to the High Court judgment by Barr J. that these referrals are ‘ inappropriate’.

• • There was an unjustified use of expert evidence (medical evidence and engineering evidence), which is an issue that has been highlighted by the Court of Appeal in Duffy v. McGee and which uses up scarce court resources.

SUMMARY

7 . The most concerning of the issues which arose in this case are contained in the following summary of the key facts:

• • Ms. Cahill was sitting in the driver's seat of her car with the second plaintiff (“Ms. O'Riordan”) in the passenger seat. They were stationary in heavy traffic on Emmet Street, Clonmel, just opposite the Garda station, when the front of Mr. Forristal's car inadvertently came into contact with Ms. Cahill's car. Ms. Cahill's engineer described this type of case as a ‘minimal impact’ case.

• • Mr. Forristal was a credible witness and he gave evidence that he had just taken off from a stationary position about a foot and a half behind Ms. Cahill's car and that he was travelling at circa 5–8 km per hour. He also confirmed under oath that he does not drink.

• • The parties get out of their cars and Mr. Forristal immediately acknowledged to the plaintiffs that he had made contact with Ms. Cahill's car. He also apologised to them. Mr. Forristal says that Ms. Cahill bent down and rubbed her bumper and she said there was no damage to the car. He also gave evidence that both sisters said that they were fine. When this was put to Ms. Cahill, she said that she did not remember this exchange. In her statement to Gardaí, Ms. Cahill stated that there was no damage to her car. Yet in her evidence to this Court, she stated that there was damage to her car.

• • Neither Ms. Cahill nor Ms. O'Riordan looked for any insurance details from Mr. Forristal and all parties got back into their cars and continued on their way, with Ms. Cahill driving off first and Mr. Forristal driving off behind her.

• • Within minutes, Ms. Cahill decided to pull her car in. As Mr. Forristal overtook them, he stated that he saw them appearing to take the details of his car registration. After Mr. Forristal had moved off, Ms. Cahill and Ms. O'Riordan called into the Garda station. Ms. Cahill reported the incident and claimed to Garda Con O'Leary that there was a smell of alcohol off Mr. Forristal's breath (thus clearly implying that he might be guilty of the criminal offence of driving under the influence).

• • Most seriously of all, Ms. Cahill claimed that Mr. Forristal left the scene of an accident, when it is clear from her own evidence that they talked and they then got into their respective cars and that she had to drive off first, as he was in traffic behind her. This allegation against Mr. Forristal was therefore clearly false.

• • Garda O'Leary examined Ms. Cahill's car and he could see no damage to the back of the car and as an independent witness, his evidence is compelling.

• • To support her claim for psychiatric injuries resulting from this tip to her car in stationary traffic, Ms. Cahill's solicitor, who has no medical training, referred her to a consultant psychiatrist, Dr. Aisling Campbell. This action by her solicitor is in clear breach of the finding of Barr J. in Dardis v. Poplovka (No. 1) [2017] IEHC 149 and in Harty v. Nestor [2022] IEHC 108 that such referrals are ‘inappropriate’.

• • Ms. Cahill must have known that she was only referred to a psychiatrist for legal reasons (i.e. to support her claim for damages), because her solicitor could not have had any medical basis for making the referral. In these circumstances, it is relevant to note that this consultant's report notes that Ms. Cahill claimed to her that the ‘ driver smelled of alcohol’, even though Mr. Forristal does not drink. This report also notes Ms. Cahill's claim that Mr. Forristal ‘left the scene of the accident’. In addition, the report notes Ms. Cahill's claim regarding the effect of the ‘minimal impact’ in the following terms: ‘she thought that she had heard “an explosion”’. (Emphasis added)

• • It is important to remember that Ms. Cahill, on the basis of a referral by her solicitor (and not on the basis of any medical advice by her GP) is claiming that this tip in stationary traffic caused her psychiatric injuries. This is why she saw the consultant psychiatrist that her solicitor, for legal reasons, recommended she see. This meant that it was necessary for the Personal Injuries Assessment Board (“PIAB”) to engage a consultant psychiatrist to assess Ms. Cahill. At the consultation with PIAB's consultant psychiatrist, Ms....