Court of Appeal dismisses appeal where expert medical opinion on surgery causation was revised during cross-examination.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Appeal Number: 2025/117

Neutral Citation Number [2025] IECA 221

Binchy J. Allen J. Hyland J.

BETWEEN/

PAT KEOGH

PLAINTIFF/APPELLANT

- AND –

JOAN KERINS O’KEEFFE

DEFENDANT/RESPONDENT

JUDGMENT of Mr. Justice Allen delivered on the 3rd day of November, 2025

Introduction

1. This is an appeal against the judgment and order of the High Court (Holland J.) of 17th January, 2025 in a personal injuries action. The judgment was delivered ex tempore and the transcript was later published at [2025] IEHC 26. Without in any way diminishing the importance of the action and the appeal to the appellant, the issue in the High Court, and in this Court, was fairly net.

2. On a date in late September, 2018 the appellant – who was born on 11th July, 1959 – was injured in a road traffic accident in Tralee when his car was rear-ended by the respondent’s car. There is some confusion in the medical reports as to whether it was the 27th, 28th or 29th but nothing turns on that. The contemporary hospital record dated 29th September, 2018 shows that the accident happened on the previous day. About two years later, in September, 2020, the appellant underwent a decompression and cervical fusion and by the time the case came to trial he was looking at the prospect of further surgery. Liability was admitted. The respondent acknowledged that the appellant was entitled to be compensated for soft tissue injuries. However, the appellant made the case that the need for the surgery which he had already undergone, and the further surgery which he would likely need, was attributable to the injuries he had sustained in the road traffic accident.

3. The High Court judge found that the appellant had not established that the surgery was attributable to the accident and the issue on the appeal is whether he erred in that

conclusion.

4. Whether the necessity for the surgery was attributable to the accident was a matter of expert medical opinion. That opinion in turn was based on the timing of the onset of the relevant symptoms. At the commencement of the trial, the appellant had an expert medical opinion that the surgery was attributable to the accident. In the course of cross-examination, the expert who had expressed that opinion revised it and said that the surgery was not attributable to the accident. There was no other evidence on this central issue.

The medical reports

5. Following the accident the appellant was brought to University Hospital Kerry where he was examined and discharged. The discharge letter recorded a diagnosis of soft tissue injury. He was prescribed muscle relaxant and anti-inflammatory medication and advised to exercise and use hot and cold packs, and to follow up with his GP if the pain in his left shoulder persisted.

6. The pain in the appellant’s left shoulder did persist and on 16th October, 2018 he attended his general practitioner, Dr. Clodagh Kenny. In a medico legal report of 30th November, 2018 Dr. Kenny recorded that the appellant had told her that:- “He had a severe pain like ‘hot honey travelling from his neck to his left shoulder. He was also getting pins and needles in his left arm …” The appellant had had a severe stroke in 2003 from which he had made a remarkable but not entirely full recovery. Dr. Kenny reported that:- “Pat has residual left sided weakness since his stroke and this has been worsened by his neck/shoulder injury. As mentioned earlier Pat had left sided weakness bit was managing well … [he] struggles lifting heavy objects.”

7. The appellant was referred by Dr. Kenny for an MRI scan of his thoracic and cervical spine. This showed minor degenerative disease in the thoracic spine and moderately severe degenerative disc disease from C3 to C7 with disc bulging and osteophyte formation. By the time Dr. Kenny wrote her report, the appellant had had his MRI scans and was waiting for an appointment with Mr. Ross Kingston, consultant orthopaedic surgeon – to whom he had been referred by Dr. Kenny. Dr. Kenny anticipated that he might need to have further imaging of his left shoulder.

8. The appellant was seen by Mr. Kingston on 14th January, 2019. Mr. Kingston reported on 8th October, 2020 that the appellant:- “… told me that he had been involved in a road traffic collision in September 2018 and complained of neck pain radiating down the back of the left shoulder and into the little and ring fingers in the left hand since.”

9. Mr. Kingston referred the appellant for an MRI scan of the left shoulder and suggested that he see Mr. Ashley Poynton, a spinal specialist, regarding his neck. In his report of 8th October, 2020 Mr. Kingston recorded that the appellant had seen Mr. Poynton on 17th September, 2020 and had booked a date for a cervical discectomy and fusion. In fact, it appears that the appellant had by then already undergone the surgery. As to causation, Mr. Kingston said that a degree of wear in the discs was fairly typical for the appellant’s age group but might have been exacerbated by the collision.

10. In the meantime, the appellant had been seen again at University Hospital Kerry on 24th April, 2019, when he was examined by Mr. Herlo Coetzer, a consultant in emergency medicine. In a medico legal report dated 13th June, 2019 Mr. Coetzer recorded the appellant’s then complaints as “Left neck and shoulder stiffening up when driving long distances. Uncomfortable.” On examination he found:- “Tenderness with muscle spasm over left cervical spine and right shoulder over trapezius and supraspinatus muscle.” This was the first reference in any of the reports to any symptom in the right shoulder. The prognosis was that the appellant would improve over time with ongoing physiotherapy and exercises.

11. On 26th October, 2021 Mr. Poynton reported that he had first seen the appellant on 17th September, 2020 when:- “Mr. Keogh reported that he had ongoing issues with his neck, with pain and associated right arm and hand symptoms with pins and needles radiating to his right arm to his hand, numbness of his fingers, particularly the index finger, dorsum of his hand and also the little finger. … Mr. Keogh stated that he was involved in a road traffic accident on the above date [27th September, 2018] … His symptoms started after this and they had progressed.”

12. Mr. Poynton sent the appellant for an updated MRI scan – which did not show any significant change – and on 30th September, 2020 carried out an anterior cervical decompression and fusion at C5/6 and C6/7. On review on 4th January, 2021 the appellant reported that his right arm was symptom free. Mr. Poynton reported to the appellant’s solicitors that:- “This man was injured in a road traffic accident and developed right arm and hand symptoms which progressed over time necessitating surgical intervention.”

13. In the meantime, on 19th November, 2020, the appellant’s then solicitors had issued a personal injuries summons in the Circuit Court. The particulars of personal injury were largely based on the discharge letter from University Hospital Kerry, the report of Dr. Kenny, the report of Dr. Coetzer and the report of Mr. Kingston of 8th October, 2020. The particulars showed – as Mr. Kingston had reported – that the appellant had been seen by Mr. Poynton on 17th September, 2020 and discussed treatment options. Surprisingly, the particulars of personal injury did not disclose – as Mr. Kingston’s report did – that among the treatment options which had been discussed with Mr. Poynton was a cervical discectomy and fusion, or that a date had been booked for this surgery. Nor did the particulars disclose that the appellant had in fact undergone surgery about two months previously.

14. At some stage in 2021 the appellant changed solicitors and notice of change of solicitors was filed on 20th December, 2021. On 30th March, 2022 a motion was issued for an order transferring the proceedings to the High Court. The premise of that application was that the surgery was attributable to the accident and that had the appellant’s previous solicitors been aware that he had undergone surgery, the proceedings would have been commenced in the High Court. The order transferring the proceedings was duly made on 29th April, 2022 and the action was set down for trial in Cork.

15. On 10th March, 2023 Mr. Poynton provided a further report to the appellant’s solicitors. He had – he said – seen the appellant on 27th February, 2023 and had ordered an up-to-date MRI scan. That scan showed the previous surgery from C5 to C7 with adequate decompression. However, above that, at C3/4 there was a central protrusion causing moderate stenosis and bilateral foraminal stenosis. That – said Mr. Poynton – was a new issue which was an inevitability of the fusion and the appellant might require further surgery in due course. In a letter of 2nd May, 2025 Mr. Poynton clarified that on the balance of probability further surgery would be required. It was not possible to determine precisely when that would be required but it was more likely to be sooner rather than later.

The High Court hearing

16. It appears that the action was in the Cork Personal Injuries list on 19th January, 2024 but the appellant and his second firm of solicitors parted company. An order was made on 25th January, 2024 allowing the solicitors to come off record and the case was adjourned.

17. When the case came back into the list on 15th January, 2025 the appellant was selfrepresenting. The respondent was represented by senior and junior counsel and solicitors instructed by the respondent’s insurers. A full defence had been delivered but the issue of liability for the accident had been withdrawn. Previously, a disclosure notice had been served on behalf of the respondent giving notice that two medical witnesses would be called on behalf of the respondent, but that, too, was withdrawn.

18. The appellant’s solicitors had previously given full particulars of the cost of the surgery which the appellant had undergone and provided vouchers for about €19,000. The cost of the further surgery contemplated by Mr. Poynton was estimated at a further €19,000. The court was informed by counsel that the sums claimed were agreed “as figures”; that it to say, it was accepted that the expenditure which had been incurred had been incurred, and that the further contemplated surgery would cost about the same. The issue, accordingly, was focussed on whether the surgery was attributable to the injuries sustained by the appellant in the road traffic accident. There was also a potential issue as to whether the appellant would decide to undergo any further surgery but in the event that did not arise.

19. There was some discussion about books of documents – to which I will return – and in relation to what witnesses would be called. The disclosure notice previously served by the appellant’s solicitors had listed Dr. Kenny and Mr. Coetzer, as well as Messrs. Kingston and Poynton – all of whose reports had been disclosed. Before the case started, the appellant informed the court that he intended to call Mr. Poynton and that:- “It is not necessary to call Mr. Kingston, Judge.”

20. The appellant handed in to court a booklet of copy documents running to 31 pages. This included a number of documents – such as the Garda abstract report and a tax clearance certificate – which were irrelevant, and some – such as correspondence between the appellant and his solicitors and an advice on proofs – which ought not to have been handed in. The documents which the judge ought not to have were identified by reference to the index and were torn out of the book. The booklet originally prepared by the appellant and the booklet eventually handed in included copies of Mr. Poynton’s reports and a copy of pre-accident medical records which he had obtained from the National Rehabilitation Hospital where he had been treated for his stroke. It did not include any notes made by any of the doctors or any correspondence between the doctors. The judge was careful to ensure that the transcript would show what he had been given and what had been removed from the appellant’s booklet.

21. Having given his evidence, the appellant was cross-examined by counsel for the respondent. Counsel got straight to the point. In his evidence in chief, the appellant had deposed that before the accident he had residual symptoms from his stroke on the right side and that the symptoms which he had experienced after the accident were in his right side.

22. Counsel brought the appellant through the particulars of injury pleaded in the personal injuries summons; the Application for Assessment of Damages form submitted to the Injuries Board; the affidavit which he swore on the motion to transfer the case to the High Court; and the medical reports of Dr. Kenny, Mr. Coetzer, Mr. Kingston and Mr. Poynton which had been exhibited on the motion to transfer from the Circuit Court.

23. The appellant disclaimed any responsibility for the particulars of injury pleaded; asserting that these were the sole responsibility of his solicitors. He accepted that the PIAB claim form – which he emphasised had been prepared by his solicitor – set out brief details of soft tissue injury to the neck, shoulder and injury to the left arm and hand; but said that he had corrected his solicitor. He said that he had never made any allegation that he had suffered an injury to his left arm; it was all down his right side. He suggested that his doctors had all confirmed that it was his right arm, shoulder and neck which had been affected and that Mr. Poynton would confirm that.

24. By agreement between the parties Mr. Poynton’s reports were treated as his evidence. In answer to the appellant, Mr. Poynton confirmed that a more recent MRI scan showed no material change since his reports; and he was then cross-examined by counsel for the respondent.

25. Mr. Poynton agreed with counsel that there was no material difference between what was shown on the MRI scan taken in the immediate aftermath of the accident and that ordered by Mr. Poynton two years later, in September, 2020. He confirmed that the appellant had made no complaint to him of left-sided symptoms, or left-handed symptoms which had switched to the right. He said that:- “… the crux here is really temporal association between the onset of symptoms and an accident and if there is a close temporal or relatively close temporal association between the onset of symptoms and an accident one can then conclude that the accident is responsible for precipitation of pain … but one has to have a corelation and a continuum of pain.”

26. Counsel then brought Mr. Poynton through the medical reports. By the time he was referred to Mr. Poynton, the appellant’s complaints were of right-sided pain. He confirmed that he had not been aware of the appellant’s previous complaints of left-sided pain and that in the absence of a temporal association the appellant’s right-sided symptoms were related to the underlying degenerative change. In re-examination by the appellant Mr. Poynton confirmed that the key question was the temporal association of the onset of symptoms and an accident and that the opinion which he had expressed in his reports – that the necessity for surgery had been linked to the accident – had been based on the history given to him by the appellant; and that he was now of the opinion that it was not. He said that for the appellant’s right-sided symptoms to be attributable to the accident, they would have to have come on “relatively close” to it in time. Asked by the appellant whether fourteen months would be a relative time, Mr. Poynton said that it was a grey area, but “anywhere up to three months.” He said that typically a person would experience neck and arm pain within a week or two of the accident.

27. Counsel had cross-examined Mr. Poynton by reference to the reports of Dr. Kenny and Mr. Kingston. He had not dealt with Mr. Coetzer’s report. The judge identified in Dr. Coetzer’s report – based on an examination on 24th April, 2019, that is, about seven months post-accident – a finding on examination of “Tenderness with muscle spasm over left cervical spine and right shoulder over trapezius and supraspinatus muscle” and he asked Mr. Poynton whether that influenced his view as to causation. The answer was that:- “I think if there’s no reported symptoms on a particular side, then one cannot associate.” He said that if he had had access to his colleagues’ reports he would not have drawn the conclusion which he had. He said that his opinion – that is to say his new opinion – still stood.

The High Court judgment

28. The judge found that the appellant’s evidence that his right-sided symptoms came on soon after the accident was inconsistent with the documentary records of his injuries. That cannot be gainsaid. He found that the appellant was doing his best to be truthful but was not factually accurate. He found that the appellant, when cross-examined as to the inconsistencies between his evidence and the medical reports was more affronted and indignant than engaging. That is borne out by the transcript.

29. In his evidence the appellant had asserted that he suffered a neck fracture, which he clearly did not. He also asserted that he had suffered an abdominal hernia but no such injury had been pleaded and there was no medical evidence of such an injury.

30. The judge found that the onus of proof rested on the appellant to prove the matters in dispute on the balance of probabilities. That was clearly correct.

31. The judge then carefully examined the medical reports which had been exhibited by the appellant on the motion to transfer the case from the Circuit Court and the PIAB form, and contrasted what was there recorded with the appellant’s evidence. He found that it was inherently unlikely that the A & E doctor at University Hospital Kerry, Dr. Kenny, Dr. Coetzer and Mr. Kingston might all have been in error in recording the appellant’s complaints of left-sided symptoms. The judge noted that the appellant had acknowledged that he had signed the PIAB form, which recorded “Injury to left arm and hand.”

32. The judge looked closely at the report of Mr. Coetzer, which was the first record of right-sided findings. That report was based on an examination seven months after the accident. The judge observed that the finding of tenderness over the right shoulder over the trapezius and supraspinatus muscle was not reflected in the rest of the report and that the prognosis at that time was for recovery over the coming year.

33. The judge then looked at Mr. Poynton’s reports and the updated particulars of personal injury delivered on 2nd October, 2023 which – he said – essentially repeated the content of those reports; and starting at para. 33 of the transcript, Mr. Poynton’s evidence. It was – he said – unavoidable to acknowledge that Mr. Poynton’s oral evidence changed the landscape of the case completely. Mr. Poynton – he said – explicitly and clearly altered the view he had expressed in his reports. By reason of the absence of temporal association between the accident and the onset of the appellant’s right-sided symptoms, they could not be attributed to the accident.

34. At para. 41, the judge found that Mr. Poynton’s evidence was decisive. He said that he could not find that the appellant had discharged the onus of proof that his right-sided symptoms, and hence the surgery, were caused by the accident.

35. Taking the appellant’s medical history into account and that he was a vulnerable person when injured, the judge assessed general damages at €37,500, to which he added €1,300 for special damages, to give a total decree of €38,800.

36. I pause here to say that the amount of the decree was well short of a tender offer which the respondent had made on 27th April, 2022 – before the case was transferred from the Circuit Court – and less than half of the amount of a Calderbank offer made on 5th January, 2024. However, counsel for the respondent submitted to an order for the appellant’s costs up to the date of the tender and more or less put it up to the judge that in view of the special circumstances of the appellant’s vulnerability he might make no order as to the costs thereafter.

The appeal

37. By notice of appeal filed on 6th May, 2025 the appellant appealed against the judgment and order of the High Court on four grounds which were, in substance, that:-

1. The judge erred in misunderstanding the severity of the injuries and awarded damages for a lesser injury;

2. The judge failed to give due weight and consideration to a medical report from Mr. Kingston dated 14th January, 2019 which accurately identified the severity and extent of the appellant’s injuries;

3. The judge failed to give due weight and consideration to the fact that the appellant had previously been disabled by a stroke in 2003 and as a result of the accident had become more invalided and disabled;

4. That at the start of the case the judge asked the appellant whether he had faith in the judicial system but did not ask the respondent the same question. This, it was said, was in breach of the appellant’s human rights under Article 6 of the European Convention on Human Rights and Article 40 of the Constitution

38. The suggestion in the notice of appeal that the judge asked the appellant at the start of the case whether he has faith in the judicial system was not borne out by the transcript. On the contrary the appellant spontaneously declared his confidence in the court. In his brief submission to the High Court following the close of the evidence, the appellant said that he would accept whatever the court decided. The transcript shows that the judge was punctilious in his endeavours to ensure that the appellant understood the process.

39. If the third ground of appeal was directed to the award of damages in respect of the injuries which the judge found to be attributable to the accident, that was not seriously pursued. In fact, as the judgment shows, the award represented a significant uplift on the upper end of the Book of Quantum guided range of damages for moderate whiplash injuries by reference, specifically, to the appellant’s pre-existing medical history and vulnerability. The gravamen of the appeal is that the judge erred in not accepting that the surgery was attributable to the accident.

40. Having filed his notice of appeal, the appellant issued a motion to adduce additional evidence. This motion was grounded on what was described as a supplementary affidavit of the appellant in which he asserted that he had identified multiple factual discrepancies and omissions in the documents furnished to him following the first directions hearing on the appeal.

41. It will be recalled that at the start of the trial the appellant produced a booklet of copy documentation running to 31 pages and there was a discussion as to what ought properly be put before the judge. Eight pages were removed from the book before it was handed in. The appellant at the very least did not then object to the removal of these pages and they may very well have been removed by him. Following the first directions hearing on 20th June, 2025 the respondent’s solicitors provided the appellant with various booklets of papers which might – it was said – be of assistance to the appellant for any application he might make in advance of the hearing of the appeal. Among these booklets was:- “Booklet of Evidence submitted by you at Trial (you will see on the first page of this booklet there is a handwritten note to say that the booklet should be handed to the court without pages 1, 22, 23, 24, 25, 29, 30 and 31).”

42. In support of his motion to adduce additional evidence the appellant exhibited the first page of the notice of appeal; a copy of the respondent’s solicitors’ letter of 20th June, 2025 enclosing the booklets; and a copy of his 31-page booklet. In his affidavit grounding the motion he asked that the Court would direct the production by the respondent of “an affidavit verifying the identity and authority of the person who authored the handwritten redaction instruction attached to the High Court evidence booklet” and that “the Registrar retrieve and verify the archived booklet from the court file.” He suggested that the respondent’s solicitors had attempted to deliberately obfuscate the facts and that there had been manipulation, interference with and withholding of evidence and procedural coercion.

43. In a short replying affidavit the respondent’s solicitors explained that the handwritten note on the booklet had been made by the respondent’s senior counsel and that the appellant had agreed that the identified pages would not be handed in. She confirmed that the pages identified had not been redacted in any way. The respondent’s solicitor categorically denied that there had been any attempt to obfuscate or otherwise in any way to act unfairly to the appellant.

44. The order of the President made on the motion on 25th July, 2025 noted that the evidence sought to be adduced in the notice of motion was already included in the appeal and that the further reliefs sought could not be granted by the Court at that time. The motion was accordingly dismissed and the costs made costs on the appeal.

45. The appellant’s brief written submissions are not altogether easy to follow but the substance of them was a request that the materials identified as exhibits “PK1”, “PK2” and “PK3” in his affidavit of 16th July, 2025 “be formally admitted into the appellate record.” These, he says, bear “directly on the core medical causation dispute and mischaracterisation grounds”. The remainder of the appellant’s written submissions were directed to the power of this Court to admit additional evidence and assertions that material was withheld from the High Court “via unexplained redactions”.

46. I emphasise that the appellant is not entitled to appeal to the panel hearing the substantive appeal against the judgment and order of the President; nor is the panel entitled or empowered to reopen the motion. However, the President will have dealt with the motion in an ex tempore judgment and the appellant’s motion to adduce additional evidence goes to one of his grounds of appeal.

47. Page 1 of the appellant’s 31-page booklet is a single page, obviously authored by the appellant, but entitled “Advice on Proof”. It refers to the Public Officers Protection (Ireland) Act, 1803, the Consumer Insurance Contracts Act, 2019, the Statute Law Revision Act, 2007 and more besides. It is plainly irrelevant to the appellant’s case.

48. Page 22 is a copy letter of undertaking from the appellant’s solicitors to a credit union dated 24th November, 2022 which references the fact and amount of the tender offer. Although identified by counsel as something which the judge ought not to see before deciding the case, the transcript shows that it was in the booklet which was handed in and it identified by the judge as something which he ought not to have seen. The judge raised the issue with the parties and it was agreed that he could proceed to hear the case.

49. Page 23 is a document entitled “Certificate of Determination” but obviously authored by the appellant. It makes no sense but clearly does not go to the causation issue.

50. Pages 24 and 25 is a copy e-mail dated 1st March, 2024 apparently sent to the consumer comments coordination office of the Courts Service, the Office of the Ombudsman, the then Minister for Justice and various others and entitled “Victim Impact Statement.” It is unquestionably something which ought not to have been given to the judge.

51. Pages 29, 30 and 31 are an e-mail of 14th January, 2024 sent by the appellant to the office of the Legal Costs Adjudicator, which is impossible to follow, save that it suggests that the appellant’s case might be worth €2.7 million. It was at best utterly irrelevant and was correctly identified by senior counsel as something that ought not to have been given to the judge.

52. Everything else in the appellant’s booklet was handed in to the High Court.

53. There was nothing excluded from the booklet which the appellant proposed to hand in which ought not to have been excluded. No less to the point, there was nothing in the documents to which the respondent objected that was relevant to the issue of causation or which could have in any way have helped the appellant to prove his case. The appellant’s bald assertion of unspecified procedural irregularities is not borne out by the transcript. There is not the merest scintilla of justification for the criticisms which the appellant would make of the conduct of the respondent’s solicitors. Whether the appellant realises it or not, the respondent’s solicitors were more than generous in their acquiescence in the costs order made by the judge.

54. As I have said, the appellant’s second ground of appeal was that the judge failed to give due weight and consideration to a medical report from Mr. Kingston dated 14th January, 2019 which accurately identified the severity and extent of his injuries. No such report was put into evidence in the High Court and the appellant’s motion to adduce additional evidence made no reference to any such report. What was in evidence was a medico legal report from Mr. Kingston to the appellant’s first solicitor dated 8th October, 2020. That referred to a first consultation on 14th January, 2019 at the request of Dr. Kenny and summarised the history then taken by Mr. Kingston; his findings on examination; and opinion. The report records that Mr. Kingston then referred the appellant for an MRI scan of his left shoulder. It is a fair inference that Mr. Kingston wrote to Dr. Kenny on 14th January, 2019 but it is fanciful to suppose that he said anything else to Dr. Kenny than he later did in his report to the appellant’s solicitors.

55. At the hearing of the appeal, the appellant presented – as he had in the High Court – as more affronted and indignant than engaging. He spoke without any basis whatsoever of a sham and a charade and of false representations. He suggested that the High Court judge had not been aware of all of the evidence because it had been redacted. Fo the reasons already given, there was no basis for that.

56. The appellant suggested that he had applied for a sub poena for Dr. Kenny that he said had been rejected and made reference to a letter back from Mr. Kingston to Dr. Kenny. At the trial of the action the appellant made no reference to having ever wishing or intending to call Dr. Kenny. The appellant variously asserted that Dr. Kenny’s notes were before the High Court, which they plainly were not; and that documents had been withheld by his solicitors. It does appear that the appellant’s second solicitors had some difficulty in liberating the file from his first solicitors but there was no evidence that his second solicitors did not have all that they needed to prosecute the case, or that they did not have all the evidence – including any notes – that had been gathered by the first firm.

57. All of that apart, there is absolutely no basis for supposing that any report written by Mr. Kingston to Dr. Kenny on 14th January, 2019 would have said anything other than was said in his report to the solicitors of 8th October, 2020 and so no basis for supposing or hoping that it would have made any difference.

Summary and conclusion

58. It is quite clear that the High Court judge was scrupulously fair to both sides in his conduct of the trial. He correctly identified and managed the particular challenges that can arise when one of the parties to litigation is unrepresented. He was careful to ensure that the DAR and the transcript would clearly show what material he should and should not have, and what material he in fact had.

59. The judge carefully and meticulously examined all of the evidence put before him. In his report dated 26th October, 2021 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.

60. In the end, the only evidence which the judge had was that the surgery which the appellant had undergone – or the further possible surgery which he was facing – could not be tied back to the injuries he sustained in the accident and he could not have taken the surgery into account in assessing the damages to which the appellant was entitled.

61. The appeal must be dismissed and the order of the High Court affirmed.

62. The respondent having been entirely successful on the appeal is presumptively entitled to the costs. The respondent’s insurers’ approach to the costs in the High Court was particularly generous but I do not wish to anticipate their approach to the costs of the appeal. I would allow the respondent fourteen days from the date of delivery of this judgment to simply indicate whether there is an application for costs. If there is, and the appellant wishes to contend for any costs order other than that proposed by the respondent, he may within fourteen days file and serve a short written submission – limited to 1,000 words – to which the respondent may reply within fourteen days, similarly so limited.

63. As this judgment is being delivered electronically, Binchy and Hyland JJ. have authorised me to say that they agree with it and with the orders proposed.