Commentary
One of the important differences between Ireland and other British Isles jurisdictions is in the procedures followed in personal injury litigation. This case is illustrative. If the plaintiff had brought his case in England or Wales, how would this case have progressed?
First, his solicitors would have referred him to an orthopaedic surgeon for a report (whereas what happened was that the choice of expert orthopaedic evidence depended not even on the choice of his general practitioner, as usually happens in Ireland, but on the choice of the first orthopaedic surgeon to whom his general practitioner had referred him). It is unlikely that he would have been given permission to adduce expert evidence from a general practitioner, an emergency medicine consultant and a second orthopaedic surgeon.
Second, it is very likely indeed that the orthopaedic surgeon would have been provided with copies of his general practitioner records so he would have been aware of the symptoms reported to, and signs found by, medical practitioners before and after the accident.
Third, as well as having regard to the history obtained by any other experts, the orthopaedic expert would have taken a history from the claimant rather than relying on what turned out to be the incomplete history in the referral letter from the first orthopaedic expert.
Fourth, it is likely that the defendant would have obtained its own expert orthopaedic evidence.
Fifth, unless there was complete agreement between the claimant’s and defendant’s orthopaedic experts, there would very likely have been an experts’ discussion and joint statement and it would probably have resolved the left-right issue.
Sixth, if the case had gone to trial, the claimant’s orthopaedic expert would have seen the other expert reports before the trial and not have been caught unawares by their contents.
Seventh, insofar as the Particulars of Claim would have been based on the expert orthopaedic evidence it is highly unlikely that there would have been inconsistency between the expert orthopaedic opinion and the contents of the Particulars of Claim. Any such inconsistency would have been detected by the solicitor or counsel in the draft Particulars of Claim.
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