The High Court has stayed Brian O’Donovan’s personal injury proceedings against Cork County Council pending his examination by a second orthopaedic surgeon retained by the council.
Mr Justice David Holland made the order on 16 January 2024, after hearing the council’s motion the previous day. The case had been listed for trial. The judge said he would hear the parties on the detailed terms of the order and costs; he did not decide those matters in the judgment.
The council admits liability for Mr O’Donovan’s fall on 25 August 2018, in which he fractured the tip of his left ankle’s lateral malleolus. The dispute relevant to the motion concerned whether he also developed complex regional pain syndrome (CRPS) as a result. His experts diagnosed CRPS and attributed it to the accident. The council’s anaesthetist, Dr MacSullivan, reported seeing no signs of the condition in 2022. Its orthopaedic surgeon, Mr Mulcahy, first reported symptoms consistent with CRPS in July 2023.
The council sought an examination by Professor Harty to address the differing opinions. It argued that it needed evidence from both an anaesthetist and an orthopaedic surgeon, but that its experts’ views conflicted. It said it would call only one orthopaedic surgeon at trial. The plaintiff objected to a second examination, arguing that it was unfair and would facilitate “expert-shopping”.
The judge accepted that retaining more than one expert to investigate a case is distinct from calling multiple experts of the same speciality to give evidence. He said the governing question was fairness in all the circumstances. He found the council had a genuine difficulty arising from its experts’ contrasting views and concluded that asking Mr O’Donovan to attend one additional examination was not unreasonable or unfair.
The claimed special damages had risen to €352,521.98, including claimed past and future care costs. The judge said the size of the claim did not determine the medical diagnosis, but made it more important that the diagnosis be correct. He also considered that an updated orthopaedic examination would likely have been needed before trial in any event.
The stay is conditional on the examination; the judgment did not resolve whether Mr O’Donovan has CRPS or whether it was caused by the fall. The council undertook that Professor Harty would not receive the plaintiff’s expert reports before reporting. If the council withdraws Mr Mulcahy as a witness, it also agreed to waive privilege over his reports so they can be put to witnesses at trial. The judge noted the council’s repeated failure to explain earlier why it sought a second orthopaedic opinion as a relevant matter for costs.