O'Donovan v Cork County Council

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 16 January 2023
• Neutral Citation: [2024] IEHC 33
• Court: High Court
• Docket Number: Record No. 2020/1765P

Between:

Brian O'Donovan

Plaintiff

and

Cork County Council

Defendant

[2024] IEHC 33

Record No. 2020/1765P

THE HIGH COURT

Personal injury – Stay – Medical examination – Defendant seeking to stay the plaintiff’s personal injury proceedings pending the plaintiff’s submission to medical examination by a second orthopaedic surgeon retained by the defendant – Whether it was unfair to ask the plaintiff to submit to examination by an additional expert

Facts: The plaintiff, Mr O’Donovan, on the 25th of August 2018, fell and was injured. The defendant, Cork County Council, admitted liability for the fall. The plaintiff’s medical experts made the diagnosis of chronic regional pain syndrome (CRPS) and attributed it to the accident. Dr MacSullivan, an anaesthetist and pain management expert, who examined the plaintiff for the defendant in May 2022, saw no sign of CRPS. Mr Mulcahy, an orthopaedic surgeon, who also examined the plaintiff for the defendant, in his earlier reports made no finding of CRPS but, in a report postdating Dr MacSullivan’s, did find evidence of CRPS in July 2023. The defendant sought to stay the plaintiff’s personal injury proceedings pending the plaintiff’s submission to medical examination by a second orthopaedic surgeon retained by the defendant. The plaintiff resisted the motion on the basis that to require him to submit to such an examination, when he had already submitted to examination by the defendant’s first orthopaedic surgeon, would be unfair. The defendant intended to make the case, if it could, that absent a diagnosis of CRPS the claim for care fell away, substantially if not entirely. The defendant said that it was put in a practical difficulty by the conflicting views of Dr MacSullivan and Mr Mulcahy given it required them both as witnesses. Accordingly, it wanted to have another orthopaedic surgeon, Professor Harty, examine the plaintiff and report.

Held by the High Court (Holland J) that while the significant increase in the special damages claimed could not affect the medical diagnosis, it did make it more important that the diagnosis be correct; thereby it may render proportionate investigations seeking to verify the diagnostic position which might be disproportionate in another case. Holland J thought that, if he granted a stay, delay could be dealt with adequately by an appropriate form of order. He held that what was at issue imposed little, if any, additional burden on the plaintiff. Holland J thought the plaintiff likely faced the reality of an updating pre-trial orthopaedic examination in any event. Holland J did not see that, as to the plaintiff’s rights of privacy and to litigate, anything turned on the identity of the examining orthopaedic surgeon. Even if the proposed examination could be regarded as additional to those which would otherwise have occurred, Holland J did not see that the burden thereby imposed came close to being unreasonable or an abuse of process. He considered that the defendant had a genuine difficulty arising from its experts’ contrasting views; as matters stood on the expert reports available to it, the defendant, at least tactically and arguably as a matter of law, was put in the position of having to decide whether to dispute the CRPS or the orthopaedic situation despite having discrete expert opinions entitling it to dispute both. On balance and in the interests of justice, he did not think it was unreasonable or unfair to ask the plaintiff to submit to examination by one additional expert; that was so where the plaintiff would be able at trial to mobilise any conflicting opinion of Mr Mulcahy. Holland J considered that any degree of unfairness in staying the proceedings could be appreciably ameliorated by the defendant’s waiver of privilege as to the reports of Mr Mulcahy if he was withdrawn as a witness, such that his reports, not least as to CRPS, could be put in cross-examination to such medics as the defendant did tender in evidence and, indeed, any other witness. In that regard, Holland J adopted the objective of O’Farrell J of ensuring that Mr Mulcahy's contribution was available to the court and all parties: Avantage (Cheshire) Ltd and others v GB Building Solutions [2023] EWHC 802.

Holland J stayed the plaintiff’s proceedings pending his examination by Professor Harty.

Proceedings stayed.

Ex Tempore Judgment of Mr Justice David Holland, delivered on 16 January 2023.

Contents

Introduction	1
Chronology	3
Discussion	12
Decision	17

Introduction

1 While the Defendant's notice of motion was not phrased in precisely these terms, this is in substance a motion in which the Defendant seeks to stay the Plaintiff's personal injury proceedings pending the Plaintiff's submission to medical examination by a second orthopaedic surgeon retained by the Defendant. The Plaintiff resists the motion on the basis that to require him to submit to such an examination, when he has already submitted to examination by the Defendant's first orthopaedic surgeon, would be unfair. The case is listed for trial today and this motion was argued yesterday.

2 The Plaintiff is a computer technician. He was born on the 9 ^th of May 1970. On the 25 ^th of August 2018 he fell and was injured. The Defendant admits liability for the fall.

3 The Plaintiff's primary and initial injury was an avulsion fracture of the tip of the lateral malleolus of his left ankle. Afterwards, he developed bilateral multiple pulmonary emboli, for which he was treated. That injury is of little significance for the purpose of this motion.

4 A major issue in the case is whether he also developed chronic regional pain syndrome (“CRPS”) and, if so, whether it was caused by the fall. The Plaintiff's medical experts make the diagnosis and attribute it to the accident. Dr MacSullivan, an anaesthetist and pain management expert, who examined the Plaintiff for the Defendant in May 2022, says,

In contrast, Mr Mulcahy, orthopaedic surgeon, who also examined the Plaintiff for the Defendant, in his earlier reports made no finding of CRPS but, in a report postdating Dr MacSullivan's, did in July 2023 find evidence of CRPS.

• • CRPS “ is a collection of symptoms and signs believed to be caused by malfunction of the central and peripheral nervous system. The main characteristics are prolonged pain, changes in colour and temperature, skin changes with associated swelling and in severe cases diffuse atrophy”. It may also involve nerve damage.

• • she saw no sign of CRPS.

5 Of note:

• • It is common case that avulsion fracture of the tip of the lateral malleolus is a relatively minor injury compared to others which come before these courts.

• • It is common case that while CRPS is an unusual sequela to such a fracture, it can occur.

• • The alleged CRPS is the basis for a considerable claim for past and future care – the total special damages claim is now €352,521.98.

6 The Defendant intends to make the case, if it can, that absent a diagnosis of CRPS the claim for care falls away, substantially if not entirely. I have no view on whether that case will be made out. The question is whether the Defendant must be permitted to take steps to show, if it can, that the Plaintiff's experts' diagnosis of CRPS and its causation is mistaken.

7 The Defendant put its position quite straightforwardly. It says that it is put in a practical difficulty by the conflicting views of Dr MacSullivan and Mr Mulcahy given it requires them both as witnesses. It requires the evidence of Dr MacSullivan to counter the allegation of CRPS and requires Mr Mulcahy to address, from the point of view of his expertise, what is primarily an orthopaedic injury. But Mr Mulcahy will contradict Dr MacSullivan on the issue of CRPS. Accordingly, it wants to have another orthopaedic surgeon, Professor Harty, examine the Plaintiff and report. However, the Defendant makes clear that its position does not reflect any dissatisfaction with, or lack of confidence in, Mr Mulcahy or his expertise. Its purpose is merely to try, if it can, to resolve an internal and entirely proper disagreement as between its present experts.

8 The Defendant accepts that:

• • It will call only one orthopaedic surgical witness – in accordance with the rules in that regard. It did not suggest any difference between the expertises of Mr Mulcahy and Professor Harty.

• • Professor Harty may or may not confirm the diagnosis of CRPS and attribute it to the accident.

• • Professor Harty should see the Plaintiff on foot of a “Harrington undertaking” 1 by the Defendant that he will not be given the Plaintiff's expert reports before he reports.

• • If Professor Harty confirms the diagnosis of CRPS and attributes it to the accident, the Defendant will be in essentially the same bind as it is in now. But it accepts that it will not be in a position to take the matter any further in terms of further orthopaedic opinion. It will simply have to decide which medical experts to call.

• • If Professor Harty disputes the diagnosis of CRPS, and the Defendant calls him to testify, the Defendant, having withdrawn its disclosure of Mr Mulcahy's reports, will nonetheless waive its privilege as to those reports so their content can be put to Professor Harty and Dr MacSullivan and, indeed, any other witness.

9 Counsel for both sides were content to leave to trial a determination whether the Defendant would be entitled to call expert witnesses to give conflicting evidence: i.e. whether any possibility arises of its calling both Mr Mulcahy and Dr MacSullivan. This question may arise given that the premise of tendering evidence is that the court is invited to accept it as truthful, accurate and worthy of acceptance. That is the reason, for example, why ordinarily one may not cross-examine one's own witness.

10 At the heart of this dispute lies a simple question. It is surprising that there seems to be no...