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.

Case

On 27 September 2018 the Plaintiff was driving his VW Golf and slowly exiting a roundabout when rear-ended by a vehicle driven by the Defendant. The Plaintiff, having disagreed vehemently with two firms of solicitors successively, ran his trial as a litigant in person, assisted by a McKenzie friend.

The Plaintiff at trial asserted, essentially, a neck injury which had resulted in radiating neurological symptoms. At points in his evidence, he suggested symptoms radiating bilaterally to his upper limbs after the accident but at the trial it was clear that his alleged symptoms were in his right upper limb. He had a cervical decompression and vertebral fusion at C5/6/7 levels in September 2020 done by Mr Ashley Poynton, orthopaedic surgeon, who testified and was the only witness for the Plaintiff, other than himself.

The Plaintiff was born on 11 July 1959, was aged 59 at the time of the accident and was 65 at the time of the trial. In early 2003, he suffered a stroke. Pre-accident, its residual symptoms were a neurological symptom which felt like scalding in his face, torso, thighs and right upper limb and a loss of upper limb strength by about 20% on the right and about 80% on the left. However, the court formed the impression from what he said at trial that from even this level of disability he had significantly recovered pre-accident such that his residual loss of left upper limb strength was about 20% and he referred to having been able to lift weights such as gas bottles.

Expert evidence

While the only medical witness called was Mr Poynton, the Plaintiff exhibited four medico-legal reports: Dr Kenny, general practitioner, 16 October 2018; Dr Coetzer, emergency medicine consultant, 13 June 2019; Mr Kingston, orthopaedic surgeon, 8 October 2020; and Mr Poynton, 26 October 2021. Also exhibited was an A&E Discharge letter of 29 September 2018 and a radiology report by Dr Thornton on MRIs of 27 October 2018.

A month after the accident, on 27 October 2018, the Plaintiff had cervical and thoracic MRIs reported by Dr Thornton. The latter showed only minor disc degenerative disease. The cervical MRI showed moderately severe disc degenerative disease at vertebrae levels C3 to C7 with disc bulging and osteophyte formation. There was resulting indentation of the thecal sac and mild to moderate canal stenosis but no spinal cord compression. There was quite marked foraminal stenosis - bilateral at C5/6 and on the right at C3/4 and C6/7. There was mild to moderate foraminal stenosis at the remaining levels. Mr Poynton later described this MRI similarly - though he added a finding of some significance -  right-sided foraminal compression of the exiting C6 and C7 nerve roots. Mr Kingston in his report observed that the degree of disc wear was fairly age-typical.

Mr Poynton confirmed in oral evidence, inter alia given the presence of osteophytes within a month of the accident but in any event on the general evidence of the MRI of 27 October 2018, that it was clear that the Plaintiff had significant pre-accident cervical disc degenerative disease. Indeed, the pre-accident cervical disc degenerative disease was, radiologically, no worse, by the time Mr Poynton operated, two years post-accident.

The Plaintiff said that immediately after the impact he was initially dazed and in ‘shock’ and for which reason he said he was unaware of pain. In the garage, awaiting his insurer's response, he began to feel stiff and uncomfortable. He was taken an emergency department. From the discharge letter that day, it was clear that a diagnosis of soft tissue injury to the neck ensued and muscle relaxants and anti-inflammatories were prescribed. The discharge letter advised GP follow-up in two weeks if pain persisted in the left shoulder.

It was clear that the Plaintiff also suffered radiation of symptoms from his neck. At trial, he insisted that the radiation had always been, and remained, to his right upper limb and not, at least primarily, to his left upper limb but his evidence was not entirely consistent. On occasion he said his left upper limb was unaffected by the accident and that he had not complained of left-sided injury. On other occasions said that his symptoms had been bilateral. Whether the injury caused left-sided or bilateral or right-sided upper limb injury was significant as the Plaintiff asserted that his injuries due to the accident resulted in surgery for right-sided symptoms in September 2020.

The Plaintiff saw his GP, Dr Kenny, on 16 October 2018, complaining of a new creaking in his neck, pain like " hot honey travelling from his neck to his left shoulder", pins and needles in his left arm, which was weaker than usual and since the accident he could no longer lift a bottle of gas due to the worsening of his pre-existing left hand weakness. He emphasised also that the sensations which post-dated the accident were notably different to those which had preceded it, and he distinguished therefore those symptoms from his pre-existing symptoms.

By the date of her report of 30 November 2018, Dr Kenny had seen the Plaintiff again. She recorded, inter alia,

·         Clinical findings of lower cervical and mid-thoracic tenderness and slightly reduced left-sided power.

·         Neuropathic pain from his neck to his left shoulder with weakness and pins and needles in the left arm.

·         Worsening, due to the injury, of prior residual left-sided weakness since his stroke. He now struggled lifting heavy objects.

Treatment to date consisted of anti-inflammatories, pregabalin, and physiotherapy. She anticipated a further left shoulder MRI and full recovery in six months at most. Notably, Dr Kenny did not record any right upper limb symptoms.

The Plaintiff later told Dr Coetzer that improvement had been slow to December 2018 but thereafter was good with physiotherapy and exercises. In evidence he said he had had medications for about two or three weeks post-accident and physiotherapy for about three months.

The Plaintiff saw Mr Kingston on 14 January 2019 at Dr Kenny's request. He told Mr Kingston of neck pain radiating down the back of his left shoulder and into his left little and ring fingers since the accident. His arm was weak. His symptoms had improved significantly with physiotherapy. On examination, Mr Kingston found neck pain and left arm pain emanating from the nerve roots in the neck. He interpreted the cervical MRI of 27 October 2018 as showing several disc bulges, particularly on the left at C5/6. He referred the Plaintiff for a left shoulder MRI. Notably, Mr Kingston did not record any right upper limb symptoms on 14 January 2019.

On 17 January 2019, the usual "Form A" claim form was submitted to the Personal Injuries Assessment Board (PIAB). The "Brief details of the Injury" in that form read as follows:

"Soft tissue injury to neck.

Shoulder injury.

Injury to left arm and hand."

The Form A had answers "no" to the question relating to prior medical conditions. Notably again, the Form A recorded left-sided but no right-sided symptoms.

In cross-examination, the Plaintiff denied he had ever alleged injury to his left arm. He said of his injury "It was all down the right side". In that regard he made unspecified allegations of fraud against a former solicitor on record for him and said he had asked her, but she had failed, to correct the Form A and that she was trying to "railroad" him as to other proceedings in which she acted for him. He said he was signing a lot of documents for the solicitor's firm at the time for purposes of those other matters.

It was observed that the Plaintiff's denial that he had ever complained of symptoms in his left upper limb necessarily implied error in recording his injuries - indeed his complaints of his injuries - by all, independently, of the A&E doctor, Dr Kenny, Mr Kingston and as would be seen, Dr Coetzer. All recorded his complaint of symptoms in his left upper limb. It also implied error by the Plaintiff himself in signing the Form A, which recorded "Injury to left arm and hand." Overall, such a confluence of errors was inherently unlikely. The court accepted that, as his own doctors and the PIAB Form A he signed recorded, his initial complaints were of left-sided, not right sided, symptoms.

Dr Coetzer saw the Plaintiff on 24 April 2019 - seven months post-accident. He recorded as follows:

·         The injuries in the accident were "strain and sprain, cervical spine and left shoulder".

·         The Plaintiff had seen his GP four times, had had four physiotherapy sessions and had been prescribed home exercises.

·         A left shoulder MRI had been done on 29 January 2019 - but Dr Coetzer did not describe the findings.

·         Progress since accident reads: "Initial progress slow until December 2018. Good improvement with physiotherapy and ongoing exercises."

·         Present complaints were of "left neck and shoulder stiffening up when driving long distances. Uncomfortable".

·         Current condition was stated as "Ongoing stiffness to left neck and shoulder".

·         As to "Aggravation of pre-existing condition", the entry reads "Left arm shoulder not as strong as before." But it is also stated that his pre-existing condition was not symptomatic before the accident.

·         Findings on examination were: "Tenderness with muscle spasm over left cervical spine and right shoulder over trapezius and supraspinatus muscle."

·         Functional assessment was normal save for mild effect on reaching, lifting and carrying.

·         Anticipated treatment was physiotherapy.

·         Prognosis was that occasional muscle stiffness would improve with physiotherapy and exercises over about a year to recovery. No permanent symptoms or complications were anticipated.

Dr Coetzer was the first to record of any right-sided findings - though it was not reflected in the rest of the report which related entirely to the left side. In particular, it was not reflected in the Plaintiff's complaints to Dr Coetzer, which related entirely to the left side. Dr Coetzer's was also the last record of any left-sided findings. It was also notable that that Dr Coetzer's finding of normal functional assessment, save for mild effect on reaching, lifting and carrying, was made seven months post-accident and that his prognosis was for recovery over the ensuing year.

Mr Kingston again saw the Plaintiff on 13 August 2020 - 19 months after his first examination. He did not describe symptoms, complaints, or his examination on that occasion but he referred the Plaintiff to Mr Poynton, who had booked him for surgery by the time of Mr Kingston's report two months later. Mr Kingston in that report recorded that the Plaintiff had regained full strength after his stroke before developing progressive right-hand weakness due to his right-sided disc prolapse. The degree of disc wear was fairly age-typical but, Mr Kingston said, "may have been exacerbated by the collision." He deferred to Mr Poynton as a neck expert - in particular as to the prognosis from surgery.

Surprisingly, Mr Kingston's report of 8 October 2020 did not comment on the fact that, whereas on his first seeing the Plaintiff on 14 January 2019 his recorded symptoms were entirely left-sided, on 13 August 2020 his complaints were entirely right-sided. Nor did Dr Coetzer's report comment on the left-sided/right-sided issue.

The foregoing reports were essentially recited in the particulars of injury in the Circuit Court personal injury summons issued on 19 November 2020. As has been seen, they record left-sided symptoms due to the accident. The summons did not plead right-sided injury or symptoms due to the accident. In cross-examination, the Plaintiff said he had never before seen the personal injury summons. While that was possible but, one would hope, unlikely while he was represented, it seemed highly unlikely to have been the case since he became a litigant in person. In any event, he was responsible for its contents.

Mr Poynton first saw the Plaintiff on 14 September 2020, three years post-accident. The Plaintiff complained that right-sided symptoms started after the accident and had progressed. They consisted at that time of neck pain and associated pain and pins and needles in the right arm, hand and fingers with reduced right-sided manual dexterity and fine movement. Pre-accident, he had had some residual symptoms from his stroke but the symptoms which he had just described were new and related to the accident. Mr Poynton found adequate cervical motion but neurologically there was reduced right grip strength and finger extension. He reviewed the October 2018 MRI in terms set out above - including right-sided foraminal compression of the C6 and C7 nerve roots. He recommended a further MRI which was done in September 2020 and showed no significant change.

In evidence, the Plaintiff said that by this time his right-sided pain was constant and the constant cold sensation was different to his pre-accident residual stroke symptoms on the right side. He said he had been having physiotherapy up to the surgery done in September 2020 and had been taking Ponstan or Solpadeine up to three times daily as well as using a TENS machine he had had since his stroke.

Mr Poynton did an uneventful surgical anterior decompression and fusion at C5/6/7 on 30 September 2020. On 4 January 2021, the Plaintiff told him that his right arm was now symptom-free, his grip strength and dexterity had significantly improved and he was doing very well. On examination, he had good pain-free cervical movement and was neurologically intact. He was given an exercise programme and referred to physiotherapy. Mr Poynton's opinion, as recorded in this report was that,

·         the Plaintiff had been injured in a road traffic accident "and developed right arm and hand symptoms which progressed over time necessitating surgical intervention".

·         he had had a good result and on last review was symptom-free. He was expected to do well into the future.

The Plaintiff said in evidence that after the surgery he felt immensely better. His pain was gone and his mobility was fine. He returned home but was isolated due to the Covid pandemic restrictions. He was unable to see his GP but his pharmacy delivered his medications. And he kept up his home exercises. The improvement lasted about two years - from when he went gradually downhill again with headache, right-sided pins and needles, numbness and weakness and episodic stiffness which was stopping him moving for a few days. He couldn't keep his head up watching TV or use a computer for too long. He returned to physiotherapy in 2024, every week or fortnight, and he used a gym. He could still throw a ball for his dog.

Updated particulars of injury delivered on 2 October 2023 essentially repeated the content of Mr Poynton's report of 26 October 2021 as set out above. They also pled that

·         Mr Poynton saw the Plaintiff on 27 February 2023 for an updated report in which he said that the Plaintiff said that

o   prior to the accident he did not have neck or arm pain, but after it had persistent pain requiring surgical intervention, from which he had significant benefit,

o   he still had residual right-sided pain and pins and needles down the right arm into the right hand and, more recently, some increase in neck pain, and

o   activities such as driving and long duration of computer operation (he seems to have been involved in voluntary research work for the HSE) increased his pain.

·         An MRI of 12 January 2023 showed adequate surgical decompression at C5/7 but a central disc protrusion at C3/4 had deteriorated since the last scan, causing moderate stenosis and bilateral foraminal stenosis.

·         On examination, cervical spinal movement was globally reduced, but neurological examination was normal.

·         Of the C3/4 deterioration, Mr Poynton said that the Plaintiff had now developed a new issue above the fusion, which was unfortunately an inevitability in the context of a two-level fusion. Adjacent segment breakdown does occur and whilst the situation was currently stable, the plaintiff might require further surgery at C4/5 level in due course. He later clarified that the further surgery would be required sooner rather than later.

Testimony

Mr Poynton’s reports of October 2021, March 2023 and May 2023 were admitted as evidence-in-chief. His oral evidence changed completely the landscape of the case. It became apparent that,

·         Until trial, the history which had been available to Mr Poynton was limited to that set out in his report of October 2021 and derived primarily from a referral letter from Mr Kingston.

·         That referral letter from Mr Kingston had cited right-sided symptoms only and the view that they derived from the accident.

·         The Plaintiff had complained to Mr Poynton of right-sided symptoms only and did not complain of left-sided symptoms.

·         Mr Poynton's view that the Plaintiff's right-sided symptoms had been caused by the accident derived from that referral letter from Mr Kingston and from the history given him orally by the Plaintiff.

·         Mr Poynton had until trial been unaware of the content of other medical reports or of their record of left-sided complaints and symptoms and not right-sided complaints and symptoms.

·         More generally, he had been unaware that for a significant period post-accident, the Plaintiff's complaints were of left-sided and not right sided symptoms.

·         The MRI done at his request in September 2023 disclosed degenerative disc disease which was significant but no worse than that seen in the MRI done a month after the accident. In other words, he said that the radiological indication on which he proceeded to surgery predated the accident.

Mr Poynton's oral evidence was that the degree of degenerative disc disease disclosed in the MRIs might be symptomatic or asymptomatic and that, if it was asymptomatic, symptoms might commence either spontaneously and independently of accident or injury or by being provoked by accident or injury. He considered that a conclusion of causation of symptoms by accident or injury, to be valid, would have to be supported by temporal coincidence with the accident  – symptom onset "relatively close" to the accident - and more or less continuous symptoms thereafter. As to what temporal coincidence was required, he broadly indicated symptom onset within about three months of the accident or injury.

Mr Poynton was taken in oral testimony through the content of the reports of Dr Kenny, Mr Kingston and Dr Coetzer and the PIAB Form A. He specifically noted that the earliest mention of right-sided findings was by Dr Coetzer, seven months post-accident, and that was of findings absent complaint of right-sided symptoms as the complaints to Dr Coetzer were of left-sided symptoms. As a result, Mr Poynton explicitly and clearly altered the view he had expressed in his reports, in which he had causatively linked the right-sided symptoms, which were the clinical indication for the surgery he performed, to the accident. He said that had he had the information contained in those earlier reports he would not have formed the opinion that the Plaintiff's right-sided symptoms had been caused by the accident. His view in oral evidence was that, by reason of the absence of temporal association between the accident and the onset of the Plaintiff's right sided symptoms, they could not be attributed to the accident, were not caused by the accident and had come on spontaneously. He maintained that position despite re-examination by the Plaintiff.

Submissions

The Defendant's case, essentially, was that

·       the Plaintiff had suffered a moderate soft tissue injury to his neck, perhaps exacerbating prior degenerative change and in any event involving only left-sided symptoms, which resolved in the year or so post-accident. The Defendant allows a two-year duration of accident-related symptoms to the first examination by Dr Poynton - in which no left-sided symptoms were mentioned.

·       the right-sided symptoms and resultant surgery were not due to the accident and therefore no damages are recoverable in respect thereof.

Issues

Clearly, the significant issue in this case was whether the Plaintiff's right-sided symptoms and the consequent need for surgery in September 2020 were due to the accident. In the court’s view, Mr Poynton's evidence, adduced for the Plaintiff, was decisive. It could not find that the Plaintiff had discharged the onus of proof that his right-sided symptoms, and hence the surgery they required, were caused by the accident. Mr Poynton was of the directly contrary view and the court accepted that view.

Outcome

The court awarded general damages of €37,500. Instead of €38,568 for special damages (€19,568 relating to the surgery in September 2020 and €19,000 as the estimated cost of future surgery), as neither of these were recoverable, he was awarded just €1,300 in special damages.