PI Disclosure Issues

Special PI Disclosure

Personal injury actions are subject to special disclosure obligations.  They require the exchange of the reports on the part of the party’s experts and certain other information. This obligation is in addition to the general obligation to disclose applicable and civil action.

The statute and rules placed the practice of exchanging expert’s reports in personal injury actions on a statutory basis.  The principle is reflected in the rules of court that have been made to give effect to the obligation.

The special disclosure rules apply to personal injury claims, howsoever caused. If personal injury is one of the elements which must be proved in the claim, then the rules apply. The rules apply to fatal injuries claims.  Most such claims are based on negligence. The rule does not apply to actions to which a party is entitled a to trial by jury. This includes claims which may involve personal injuries such as battery in medical cases and false imprisonment.

Pre-Trial Notice

Within one month of the service of notice of trial, the claimant must furnish the other parties which a schedule listing all reports from expert witnesses intended to be called.  Within seven days of that schedule being sent, the defendant or other parties must furnish an equivalent schedule to the claimant.  Within seven days after that, the parties must exchange copies of the listed reports.

Statements detailing the following must be served within one month of the service of the notice of trial.

• names and addresses of all witnesses intended to be called to give evidence as to facts;
• a full statement of all items of special damage together with appropriate vouchers or statements from witnesses by whose evidence the loss may be proved;
• a written statement from the department of social and family protection, social protection showing payments made subsequent to the accident or authorization to the defendant to procure such information;

It appears that negative opinion on the part of a witness must be disclosed even if it is harmful to the defendant’s case if it relates to the substance of the written evidence.  It appears that all written opinions are to be disclosed.  The courts have sometimes required disclosure of preliminary opinions even if the report is later altered or modified provided, the first report formed the part of the substance of the expert’s opinion. Not all documents referred to must be disclosed.  The court will consider the nature of the documents.

Other documents, that fall outside the category of maps, drawings, photographs, calculations, et cetera need not necessarily be disclosed.  Like matter referred to in the report must be disclosed. The court will consider the nature of the matters referred to.  They must be in the nature of the above type of matters.

The parties are to exchange copies of reports within a set period.  The exchange should be contemporaneous.  A sequential exchange may be required by the courts in some cases where practically necessary.  The court may direct that one party disclose a report first so that the other expert may address the issues raised in it. Later reports must also be disclosed.

There is a procedure under the Court Rules for application for an order that in the interest of justice the obligation should not apply.

Experts’ Reports

Expert’s reports include accountants, architects, actuaries, dentists, doctors, engineers, psychologist, psychiatrists, scientists, psychologist, expert witnesses whatsoever.  Expert reports include evidence in whatsoever form dealing only or mainly with matters in respect of which the person is to give expert evidence.

An expert is someone whose qualification or expertise gives added weight or authority to opinions or statements given within his relevant area of expertise.  It does not matter whether the expert is employed or otherwise by one party. This does not affect his status as an expert.

A report is a statement from an expert intended to be given in evidence in relation to an issue in action containing the substance of the evidence to be offered.  It shall include photographs, maps, drawings, charts, calculations and like matter included in the report. Reports need not be in any particular form. The substance of the refers to the factual summary, the assumptions made and the expert opinion based on them.

Court Applications

A party who claims that the other party has failed to comply with his obligations may apply by motion on notice for the court’s directions.  The court may direct compliance within such time as it direct, as the justice of the case dictates.  It may provide that in default of compliance, that the claim may be dismissed., It may make appropriate orders as to costs. The court may make an order to the effect that defence would be struck out unless the disclosure is made within a set time limit.

Where at any stage during in the hearing of the matter, it appears to the court that the disclosure rules have not been complied with, the court may, having heard the evidence of the parties, may make such order as it sees fit.  This may involve the prohibition of evidence and/or an order as to costs.

Where the rules have not been complied with, a party may apply on motion for an order granting leave to adduce the evidence notwithstanding that it has not been disclosed.

Medical Records I

The most important disclosure in a personal injury action is generally the medical report regarding the personal injuries, the subject of the claim.  They will deal with the physical injuries, their extent and their impact on his or her life, including the physical and mental consequences.

Although it is not recognised by the rules, the claimant will commonly attend the defendant’s doctor for examination on request. If the claimant refuses to attend, it is unlikely that the court will compel him to do so.  However, the court may prohibit the defendant from proceeding with his claim, if he fails to submit the medical examination.  The claim may be stayed indefinitely.

The claimant who sues for personal injuries, of necessity waives his rights of privacy insofar as necessary for the claim.  He is, in effect, obliged to attend a medical examination with the defendant’s doctor and cooperate with the doctor for the purpose of that examination.  He must in effect disclose all relevant medical records.  He must allow the defendant’s doctor to request his doctor to disclose his appropriate records, including details of treatment relevant to the condition.

It appears that the claimant is not entitled to require his own doctor to attend the examination. There must be reasonable grounds for any special requirements. He may require a friend to assist him, due to a physical or mental condition.  He must act reasonably in the circumstances.

Medical Records II

A claimant is generally obliged to disclose all of his relevant medical records.  He is under a general obligation to disclose documents relating to any matter in question.  The exact scope of the obligation may be disputed.  Discovery of the complete pre-accident medical history is not necessarily justified unless there is something to indicate that the claimant may have been suffering from another condition that is relevant or there are separate but serious medical conditions that impact on the claim.

Where the defendant claims that claimant would have been incapacitated by some other unconnected condition, he must give some evidence to support the same.  Generally, a complete trawl through records is not be permitted In accordance with general principles, the evidence be disclosed must be of relevance to the particular proceeding. It may be appropriate that following examination by the defendant’s doctor which discloses some pre-existing condition, the medical evidence relevant to it, might be appropriately required.

Medical records are in principle, confidential.  It is argued that the disclosure should be to the defendant’s advisor.  However, the Irish court do not support will not support this proposition.

Workplace Records

In personal injury claims against employers, safety statements and documentation of relevant procedures may be appropriately sought.  It might be argued that the procedures contemplated by the safety statement that is actually implemented are the only ones that are relevant.  In some cases, the safety statement is regarded as of little weight as it will not necessarily indicate what happened in fact, in terms of the actual health and safety arrangements.

An accident report form is commonly prepared by employers after an accident.  In some cases a statutory report must be made to the Health and Safety Authority, This may be relevant in relation to matters in the case.  Discovery of the document will frequently be necessary for the fair disposal of the case.

The Master of the High Court has refused discovery of the accident reports in some cases on the basis that claimant is in a better position to offer evidence as to what has occurred.  The discovery of videos and other probative evidence would be available in accordance with general principles.

Discovery may be sought of particulars of previous accidents and actions if it is relevant to whether the defendant knew or ought to have been known of the particular type of risk or accident or.  It may also be relevant in terms of personal injury and the development of symptoms.