Recent media coverage of personal injury litigation and the knock on effect of awards on premium holders has yet again highlighted the need for change and reform in our courts in both the determination of wrong doing and the awards ultimately handed down. The recent case of O'Connell v Martin; Ali v Martin has marked a step in the right direction by the courts in this regard by illustrating the significant and influential role of medical experts in personal injury proceedings and re-iterating the longstanding principles to be considered in assessing fair and appropriate awards.
Twomey J delivered Judgment on 10 May 2019 dismissing one fraudulent and one exaggeraged personal injury claim, both arising out of a minimal impact incident between two cars.
The role of medical experts
The claims were undermined by a common factor; the referral to consultants for a medical/psychological examination of the alleged injuries of each plaintiff were by the solicitor and not, as is usual practice, by a GP. The Court concluded that there was no medical need for the referral, only a legal need to support a claim for damages.
To compound the Court's suspicions, both plaintiffs had attended their GP some days after the alleged accident but prior to the referral, and neither mentioned anything about the back and neck pain they later alleged was as a result of the impact. Ms O'Connell did not inform the GP of her attribution of back pain to the impact until nine GP visits later.
The O'Connell case, the dismissal of which supports the Defendant's claim that the plaintiff had not even been in the car at the time of impact, highlights the need for professionals to be wary of the possibility of their services being used to facilitate fraudulent claims.
The Court noted that it would be good practice in order to avoid being misled that where medical reports are being relied upon by plaintiffs, the court should be advised if they came into existence for legal rather than medical reasons. This could then influence the court's determination of whether the claims were fraudulent or exaggerated.
The Court also noted it is not good practice, therefore, for solicitors to refer clients to medical specialists. In fact, the making of such a referral by a person with no medical expertise, and duly accepted by the consultant, risks devaluing personal injury litigation for those who are genuinely injured and deserving of compensation.
The Court considered the special position...