Commentary
This is an important judgment for experts who prepare personal injury reports in the Republic of Ireland but also for all experts, in all of the jurisdictions in the British Isles, for its description of the judicial analysis of expert evidence. It deals with procedure in Ireland for the instruction of specialist medical experts through plaintiffs’ general practitioners.
The judgment includes an extract from McGrath’s Evidence (3rd edn, 2020) about how the weight of expert evidence is tested by the court. Most of the factors enumerated can be used to form a useful framework for the case-based discussion of an expert report in peer review.
The judgment includes some implicit criticism of two of the experts but, as the judge acknowledged, his evaluation of the medical evidence had been complicated in the absence of oral evidence.
Learning points:
A healthcare expert approached by a solicitor acting for a plaintiff in personal injury litigation in Ireland ought not accept instructions without first asking if the plaintiff’s general practitioner has either refused to refer the plaintiff to a healthcare specialist or has failed within 21 days to respond to a request to do so. In the event that this is not so, it is likely that the solicitor will explain why a direct referral is being made to the expert.
It is appropriate for a healthcare expert to adopt an attitude of professional scepticism in their assessment of the subject of their report.
A bald assertion that preexisting problems were aggravated by approximately x% is not enough. Such an opinion calls for an analysis of the evidence upon which it is based.
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