Defence Medical Examinations in Irish Personal Injury Claims

What is a defence medical examination?

A defence medical examination lets a defendant have the plaintiff examined by a doctor of the defendant’s choosing, to test the injuries claimed in an Irish personal injury action. It is an adversarial step in an Irish injury action, distinct from the plaintiff’s own medico-legal report and from the Injuries Resolution Board’s independent panel examination.

The defendant assesses the injury through its own expert. The purpose is to let the defendant prepare its defence: to test causation, to question the severity or duration of the injury, and to value the claim before settlement or trial. The examining doctor produces a report for the defendant’s legal team. Because the doctor is retained by the opposing side, the examination carries a different character to a treating doctor’s assessment, though the doctor still owes an overriding duty to the court under the Rules of the Superior Courts.

The same examination is sometimes called an “independent medical examination” or IME, and the Law Society itself uses the phrase “independent medical examination of plaintiffs”. The label can mislead, because the doctor is chosen and paid by the defendant. On this page “defence medical examination” refers specifically to the defendant-instructed examination in litigation, as distinct from the Injuries Resolution Board’s genuinely independent panel examination, which is arranged by the Board rather than by either party.

When does a defence medical examination happen?

A defence medical examination usually arises on the litigation track, after the Injuries Resolution Board (formerly the Personal Injuries Assessment Board until 2023) issues an authorisation and court proceedings have begun. It is not the same as the Board’s own assessment stage.

The request follows authorisation and the issue of proceedings. In a typical sequence the defendant’s solicitor writes to the plaintiff’s solicitor seeking consent to an examination on the usual terms, often after the defence has been delivered. The insurer, frequently through a medico-legal agency, then arranges an appointment and notifies the plaintiff of the date, the location, and the name and specialty of the examining doctor. The examination itself commonly lasts between twenty and forty-five minutes and combines a history with a physical or psychiatric assessment relevant to the pleaded injuries.

The ‘usual terms’: what the defendant’s doctor may and may not do

The “usual terms” are the conditions on which a plaintiff consents to examination by the defendant’s doctor in personal injury law in Ireland. They come from an agreement between the Law Society and the Irish Medical Organisation, and they govern questioning, attendance, and costs.

The terms confine the examination to medical matters and place the cost on the defendant. They are described in the Law Society’s practice note, which records that, by custom and practice, the defendant’s doctor confines questioning to the medical aspects of the case and that the defendant meets the plaintiff’s expenses. The note explains the position on liability questioning in direct terms.

“The defendant’s doctor will not question the plaintiff on any matters which do not have a direct bearing on the medical aspects of the case. Under no circumstances should the plaintiff be questioned on any matters relating to the issue of liability.”

— Law Society of Ireland, practice note on medical examination on the usual terms

Why the defence doctor cannot ask about liability

The defence doctor cannot ask about liability because the examination is for assessing damages, not for proving fault. A statement a plaintiff makes to the examining doctor about how an accident happened is treated as inadmissible on liability.

The prohibition rests on a long-standing authority and a Law Society note. The rule is usually traced to the Northern Ireland decision in McDowell v Strannix (King’s Bench Division, Sheil J, 15 February 1951). That decision is persuasive rather than binding in this jurisdiction, but it is cited in the Law Society’s practice note and is reflected in settled Irish practice. The Litigation Committee’s separate note on the independent medical examination of plaintiffs reinforces the same boundary, advising that questions touching liability should not be put to the plaintiff and that, where practicable, questions should be directed to the plaintiff’s doctor, who is better placed to separate genuine medical questions from questions on liability.

The rationale is one of fairness. A plaintiff in a clinical setting may be anxious or unguarded, and the proper forum for establishing how an accident happened is the courtroom, through evidence and cross-examination, not the examination table. Where the defendant’s doctor strays into liability, the practice note records that no evidence of such a statement should be given.

A breach of the usual terms is best dealt with at the time and on the record. If liability questions are asked, the practical course is to note what was asked and to inform the plaintiff’s solicitor, rather than to abandon the examination. Because a statement to the examining doctor on liability is treated as inadmissible on that issue under the McDowell principle, a recorded breach goes to the weight and admissibility of any evidence the defendant later seeks to draw from it. The Law Society itself recommends that practitioners read the full McDowell judgment so that the basis for the rule is properly understood.

The defendant’s right to examine: McGrory v ESB

McGrory v ESB [2003] IESC 45 establishes that a plaintiff who sues for personal injuries waives the privacy they would otherwise have over the medical condition in issue. The defendant is therefore entitled to a medical examination and to relevant records.

Suing for an injury waives privacy over that injury. The Supreme Court, in a judgment delivered by Keane CJ on 24 July 2003, held that the law must ensure a plaintiff does not unfairly impede the defendant’s preparation of a defence by refusing a reasonable examination. The Court treated the entitlement as arising once proceedings are served, without waiting for the pleadings to close, and it recognised the defendant’s entitlement to have the examining doctor consult the plaintiff’s treating doctors about the condition claimed.

“The plaintiff who sues for damages for personal injuries by implication necessarily waives the right of privacy which he would otherwise enjoy in relation to his medical condition.”

Keane CJ in McGrory v ESB [2003] IESC 45

The waiver is not unlimited. It extends to the medical condition the plaintiff has put in issue, not to an open-ended trawl through a lifetime of records. Put simply, bringing a claim means giving up some privacy over the injury being claimed for, which is why the other side can both examine the plaintiff and see the records that relate to the claim. Later High Court authority has applied McGrory to require early disclosure of relevant records so that a defendant can engage experts and plead its defence, while the courts continue to police the proportionality of any wider discovery sought.

The Court of Appeal has since reined in how widely that waiver reaches. In Egan v Castlerea Co-operative Livestock Mart the High Court ([2023] IEHC 16, Twomey J) described post-accident medical records as not only relevant but invariably crucial to every personal injuries claim. On appeal, in Egan [2023] IECA 240, Butler J corrected that as an over-generalisation, holding that there is no category of document that is invariably crucial in every case, and that relevance and necessity must be assessed claim by claim. In practice the courts confine pre-accident records discovery to a proportionate window, commonly three to five years, focused on the body parts or conditions actually in issue. The waiver opens the door to the defendant’s examination and to relevant records; it does not hand over the plaintiff’s entire medical history. For the records side of this question, see our guide to medical records for an injury claim.

What happens if a plaintiff refuses?

If a plaintiff unreasonably refuses a defence medical examination, the court can stay the proceedings until the plaintiff submits to a reasonable examination. The power comes from the court’s inherent jurisdiction, recognised in McGrory v ESB.

An unreasonable refusal can pause the case indefinitely. A refusal to attend a defence examination operates differently to a failure to attend an Injuries Resolution Board assessment. A failure to cooperate with the Board carries statutory costs consequences at a later stage. A refusal of the defendant’s examination, by contrast, prompts the defendant to apply to stay the action, and the court balances the plaintiff’s bodily integrity and personal autonomy against the defendant’s right to fair procedures and to defend the claim.

A plaintiff may still impose reasonable conditions, and a stay does not follow automatically. A genuine objection, for example to a particular examiner or to a repeated intimate examination after trauma, may be accommodated by the court, often by directing examination by an appropriately qualified alternative. What the court will not permit is a refusal that has no reasonable basis and that frustrates the defendant’s preparation.

Where does the defence examination meet its limits in Irish personal injury law?

The defendant’s entitlement is not open-ended, and several boundaries shape how a defence medical examination operates in personal injury law in Ireland. The sections that follow deal with those boundaries: how far a defendant can go in seeking a second examination, how and when the resulting report must be disclosed, and how an inconsistent account can rebound on the plaintiff under statute. Each is a point where the broad right recognised in McGrory runs up against a competing rule or interest.

Second examinations and ‘expert shopping’: O’Donovan v Cork County Council

O’Donovan v Cork County Council [2024] IEHC 33 confirms that a defendant may, in the right circumstances, obtain a second examination within the same specialty. The court will allow it where a genuine difficulty in the medical evidence justifies it.

A second examination is permitted to resolve a genuine evidential conflict, not to shop for a better opinion. In O’Donovan, decided by Holland J on 16 January 2024, the plaintiff claimed chronic regional pain syndrome arising from an ankle injury, and the special damages claim was substantial. The defendant’s pain-management expert found no evidence of the syndrome, while the defendant’s own orthopaedic surgeon found evidence consistent with it, leaving the defendant with a conflict between its own experts. The defendant applied to stay the proceedings so that a second orthopaedic surgeon could examine the plaintiff. The plaintiff resisted, arguing that the application was a tactical exercise in expert shopping after an unhelpful report.

The High Court granted the stay. The court accepted that the “one-expert rule” concerns the admission of evidence at trial rather than the delivery of reports, and that there is no rule binding a party irrevocably to the opinion of the first expert it consults. Because the second examination was directed at resolving a real conflict in the medical evidence on a high-value issue, the court found that requiring it did not come close to being unreasonable or an abuse of process. The decision gives defendants a clear, contemporary basis for a further examination in complex or high-value cases, while leaving the reasonableness assessment with the court.

“There is no rule that a party, plaintiff or defendant, in investigating a case is bound irrevocably by the opinion of the first expert consulted. Litigation is adversarial and, within bounds, legitimately tactical.”

Holland J in O’Donovan v Cork County Council [2024] IEHC 33

The distinction the court drew comes from the rule on expert evidence, not from any rule about examinations. The one-expert rule sits in Order 39, rule 58(3) of the Rules of the Superior Courts, which limits the number of expert witnesses a party may call at trial. In Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2018] IEHC 543, Twomey J accepted that this rule governs the admission of expert evidence in court, not the delivery or commissioning of expert reports beforehand. O’Donovan applied that distinction to medical examinations: a defendant may seek a further examination and report to investigate a genuine conflict, even though only one expert per specialty will ultimately give evidence. What makes the medical context different, as the court noted, is that a defence examination depends on the plaintiff’s cooperation, so the plaintiff is in a position to object and the court must rule on the reasonableness of the request.

The defence medical report: disclosure and Order 39

The defence medical report is prepared for the defendant and is not automatically shared with the plaintiff. Disclosure of expert reports between the parties is governed by Order 39 of the Rules of the Superior Courts.

A report becomes disclosable when the defence intends to call the examiner at trial. Under the expert-evidence regime in Order 39 of the Rules of the Superior Courts, a party that intends to call an expert witness at trial must disclose that expert’s report to the other side, and the report of an examining doctor whom the defendant does not intend to call may not be disclosed at all. The number of experts a party may actually call in any one specialty is limited by Order 39, rule 58(3). In practice the disclosure regime creates an information asymmetry that defendants sometimes use tactically, withholding a report until the plaintiff’s updated reports have been served. A plaintiff’s solicitor can respond by serving a supplementary report from the plaintiff’s own expert where the defence report downplays the injury. The examining doctor’s overriding duty is to the court rather than to the party paying the fee.

Section 26 and the risk of an inconsistent account

An inconsistent or exaggerated account at the defence examination can expose a plaintiff to dismissal of the whole claim under Section 26 of the Civil Liability and Courts Act 2004. The defence report is the document used to test consistency.

A materially false account known to be false can sink the entire case. Section 26 of the Civil Liability and Courts Act 2004 requires a court to dismiss an action where the plaintiff gives evidence that, per Section 26(1), is false or misleading, in any material respect and is known to be so, unless dismissal would result in injustice (revised text, Law Reform Commission). The account a plaintiff gives to the defendant’s doctor is recorded in the defence report, and any material conflict between that account and the plaintiff’s sworn case, including the verifying affidavit required under Section 14 of the same Act, can be used to support a dismissal application. This is why an accurate, consistent account at the examination matters, and why reviewing one’s own medical records beforehand for accuracy is sensible.

Defence examination vs Injuries Board examination vs your own report

The defence examination is one of three medical assessments a plaintiff may encounter in an Irish injury claim. They differ in who commissions them, who pays, and what they are for.

Each examination has a different commissioner and a different purpose. The table below separates them so that the boundaries are clear. For step-by-step preparation and what to expect on the day of any examination, see our practical guide on the medical examination for a claim.

How the Irish position differs from England, Wales and Northern Ireland

The Irish “usual terms” have no exact equivalent in England and Wales, where the defence medical examination is governed by the Civil Procedure Rules rather than by a Law Society agreement. The substance is similar across these jurisdictions, but the source and detail of the rules differ.

Ireland regulates the examination by custom and practice; England and Wales regulate it by rule. In personal injury law in Ireland the conditions of the examination come from the Law Society/IMO “usual terms” and the right to examine flows from the common law in McGrory v ESB, with the court’s inherent jurisdiction supplying the power to stay for an unreasonable refusal. In England and Wales there is no “usual terms” protocol of this kind. The court’s power to stay a claim where a claimant refuses a reasonable examination sits in the Civil Procedure Rules, and the courts apply a settled line of authority balancing the claimant’s personal liberty against the defendant’s right to defend itself as it sees fit. The number of experts a party may call is controlled by the court under Part 35 of those rules, in a manner comparable to Order 39 here.

Northern Ireland is the origin of one of the rules Irish practice relies on. McDowell v Strannix, the authority for the prohibition on liability questioning, is a Northern Ireland decision, and it is applied as the law of that jurisdiction there while remaining persuasive rather than binding in this State. The practical lesson for an Irish practitioner is that English and Northern Irish authorities on medical examinations are useful by analogy, but the governing framework for a defence medical examination in an Irish injury claim is the Irish “usual terms”, McGrory, and the Rules of the Superior Courts, not the Civil Procedure Rules.

Frequently asked questions