About this case:

• Citation:
  [2025] IECA 221
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Senan Allen

Delivering judgment for the Court of Appeal, Mr Justice Senan Allen said: “Mr Poynton had expressed the opinion that the need for the appellant’s spinal fusion had been precipitated by the injuries for which the respondent was liable. That opinion was based on the temporal connection between the accident and the presenting reporting. When, in the course of cross-examination, the theretofore supposed temporal connection fell away, Mr Poynton’s original opinion fell with it.”

Background

In September 2018, the appellant was injured in a road traffic accident when his car was rear-ended by the respondent’s car.

Initially, the appellant had reported left-sided symptoms including pain in his left shoulder and arm, which complaints were recorded in the reports of a number of the appellant’s doctors.

The first mention of any right-sided symptoms occurred in the report of Mr Coetzer, consultant in emergency medicine, which report was based on an examination of the appellant occurring seven months after the accident.

The appellant then attended Mr Poynton, spinal specialist, in September 2020, to whom he reported ongoing issues with his right arm, hand and his neck. Mr Poynton recorded that the appellant stated that the right-sided symptoms had begun after the accident, and carried out decompression and fusion procedure on 30 September 2020. The appellant reported that following the surgery, his right arm was symptom-free. 

However, on 10 March 2023, Mr Poynton provided a further report to the appellant’s solicitors to the effect that updated MRI scans performed on the appellant indicated that further surgery would be required.

The High Court

The appellant, appearing without representation at trial, asserted that the surgery which he had undergone and his prospective surgery were attributable to the injuries that he suffered in the accident. The appellant’s contention in this regard was supported by the reports of Mr Poynton.

During cross-examination, counsel for the respondent brought Mr Poynton through his colleagues’ medical reports which recorded complaints of left-sided symptoms, leading him to confirm that the appellant had never made a complaint to him of left-sided symptoms and that he had not been aware of the appellant’s previous complaints of left-sided pain. 

In those circumstances, Mr Poynton revised his opinion, expressing that for the appellant’s right-sided symptoms to be attributable to the accident, they would have to have come on “relatively close in time to the accident” and that in the absence of such a temporal association, the appellant’s right-sided symptoms were related to an underlying degenerative change and not to the accident.

Mr Poynton also confirmed that if he had had access to his colleagues’ reports, he would not have drawn the conclusion which he had previously arrived at.

Mr Justice David Holland in the High Court determined that the appellant had failed to establish that the surgery was attributable to the accident, assessing his general damages at €37,500 together with €1,300 in special damages, giving a total decree of €38,800.

The appellant appealed to the Court of Appeal.

The Court of Appeal

Mr Justice Allen considered that the gravamen of the appeal was that Mr Justice Holland erred in failing to accept that the surgery was attributable to the accident.

Noting the appellant’s assertion that the trial judge failed to give due weight and consideration to a medical report written by Mr Kingston, consultant orthopaedic surgeon, to Dr Kenny, the appellant’s GP, dated 14 January 2019 which allegedly accurately identified the severity and extent of his injuries, the Court of Appeal highlighted that no such report had been put into evidence in the High Court and that a motion brought by the appellant to adduce additional evidence had made no reference to any such report.

The court observed that what was in evidence was a medico-legal report from Mr Kingston to the appellant’s solicitor dated 8 October 2020, which referred to a consultation on 14 January 2019 at the request of Dr Kenny and which recorded that the appellant had been referred for an MRI scan of his left shoulder.

The court further considered a suggestion on part of the appellant that he had applied for a sub poena in respect of Dr Kenny, noting that at trial, the appellant made no reference to having ever intended to call Dr Kenny as a witness and that there was no basis for supposing that any report written by Dr Kingston to Dr Kenny dated 14 January 2019 would have said anything other than what was said in his report to the appellant’s solicitors on 8 October 2020.

Mr Justice Allen stressed that the High Court had been “scrupulously fair to both sides in his conduct of the trial”, had “carefully and meticulously examined all of the evidence put before him” and had identified and managed the challenges arising where the appellant was unrepresented.

The judge observed that Mr Poynton’s initially supportive medical opinion, based upon the temporal connection between the accident and the right-sided symptoms reported, fell away along with the temporal connection during cross-examination, stating:

Conclusion

Accordingly, the Court of Appeal affirmed the orders of the High Court and dismissed the appeal.

Keogh v O’Keeffe [2025] IECA 221