Personal Injuries Claim: High Court Draws Inference from Failure to Call GP Witnesses

The High Court has dismissed a personal injuries claim arising from a 2016 road traffic accident.

In Daly v Ryans Investments Limited T/A Hertz [2024] IEHC 703, the court had particular regard to the  plaintiff’s decision not to call as witnesses her treating GPs and the GP whose report was submitted to the Personal Injuries Resolution Board (PIAB).

Background

The defendant admitted liability for the road traffic accident in which his vehicle collided into the passenger side of the plaintiff’s vehicle at a roundabout.

The plaintiff claimed that her right shoulder was injured in the collision and that she reported pain to her GP within a few days of the accident. As a result of ongoing symptoms, she was required to have surgery in 2022.

The defendant argued that the shoulder injury was not caused by the road traffic accident. There was no reference in the plaintiff’s medical records to any right shoulder symptoms until ten months post-accident and thereafter, when the right shoulder was being treated, there was no mention of the accident in either a 2017 referral letter from the GP for an MRI, or in the radiological report following the MRI.

Treatment

The plaintiff’s evidence was that two days after the accident her GP directed that she should take pain relief medication in respect of her right shoulder. In July 2016, the plaintiff was referred for an MRI in respect of her left shoulder (which was not claimed to have resulted from the accident) and she was referred to physiotherapy treatment in respect of her right shoulder. Her GP administered cortisone injections on two occasions in 2017. An MRI followed which demonstrated a partial tear of the supraspinatus tendon. In 2018, she was referred by her GP to a Consultant Orthopaedic Surgeon, who administered four injections to her right shoulder and in 2022, an arthroscopic subacromial decompression was carried out on her right shoulder.

Court Findings

The court noted that the plaintiff was a frequent attendee at her GP practice on account of inter alia injuries suffered in a prior workplace accident. The court found that the GP practice kept good records and had the plaintiff mentioned that she had symptoms in her right shoulder and that symptoms were referable to the accident, it would have been recorded in the GP notes.

In addition, the fact that there was no mention of the accident in the MRI referral note and the MRI report stated “no history of trauma” support the contention that as of February 2017, the plaintiff and her GP were operating on the assumption that the right shoulder injury was not related to the road traffic accident in April 2016. The first documented association of the plaintiff’s right shoulder symptoms with the accident appeared in a note taken by the physiotherapist in September 2018.

The court took account of the fact the plaintiff also had a spontaneous onset of pain in her left shoulder in July 2016 (with medical evidence given that symptoms of this nature in one shoulder could lead to similar symptoms in the other) and to the expert evidence that while there could be a delay in the onset of symptoms in a shoulder injury following a road traffic accident, a delay of ten months made it difficult to relate the onset of symptoms to the collision.

It is well established that a court can have regard to the fact that a party chooses not to call a witness who is likely to be in a position to give relevant evidence, where that witness is available and it noted that the plaintiff elected not to call either her treating GPs or the GP to whom she was referred for the purpose of preparing a report for submission to PIAB.  Her own GP practice doctors were in an ideal position to give evidence in relation to the onset of symptoms and to furnish an opinion on whether those symptoms were related to the road traffic accident, while the personal injury summons was drafted on the basis of the report produced for PIAB. The court held that it was entitled to draw the inference that in deciding not to call these doctors, the plaintiff made a conscious decision not to rely on their evidence.

Conclusion

The court held that having regard to the findings of fact and the inferences that the court is entitled to draw from the failure on the part of the plaintiff to call relevant witnesses, the injury to the plaintiff’s shoulder was not caused by the 2016 road traffic accident and the case against the defendant was dismissed.