Aspinall v Sterling Mansell Ltd

REASONS FOR JUDGMENT Each of the Respondents to the present application has moved the Court that the application be stayed on the ground that Mr McKinnon, the Applicant, has refused to attend medical appointments that were arranged by them. On 27 August I gave an interim judgment on three of these motions (one was stood over for it had been filed on that day and not dealt with by Mr McKinnon). I indicated that the Court would grant a stay of proceedings if it was demonstrated that a reasonable request had been made that Mr McKinnon attend a medical examination but that request was not complied with in circumstances where the case for the Respondents might be materially affected by Mr McKinnon's failure to attend. I did not on that day order a stay, rather I made orders directing the Respondents to advise Mr McKinnon of appointments which were to be made with appropriate medical practitioners. I made further directions that if Mr McKinnon should wish to rely on a medical reason why he should not attend he should file medical evidence no later than 11 September 1998 so that when the matter resumed on 16 September 1998 that medical evidence could be considered. On 16 September Mr McKinnon sought an adjournment on the ground that he was not represented and was trying to organise representation. That adjournment was granted and the motions stood over until 5 November 1998 for hearing. Consequential orders were made for the filing of affidavit evidence. Pursuant to these orders Mr McKinnon filed an affidavit of Dr Earp, a general practitioner, on 11 September 1998. He relied upon this and an earlier affidavit of Dr Earp in support of his case, that his health would be deleteriously affected if he were to attend the proposed medical examinations in Sydney, On 30 October 1998 the Australian Government Solicitor faxed a letter to Mr McKinnon advising that they proposed to read the affidavit of Dr Stewart when the motions were to come before me. The faxed letter invited Mr McKinnon to respond no later than 5.00 pm on 2 November 1998 whether he wished to have Dr Stewart available for cross-examination. Mr McKinnon did not respond within that time, which arguably was unnecessarily short. Indeed he did not respond at all. Over his objection I permitted Dr Stewart's evidence to be read. As I have already indicated, Dr Earp is a medical practitioner from the central coast of New South Wales where Mr McKinnon lives. He has seen Mr McKinnon professionally since 19 May 1995. By January 1998 he had seen Mr McKinnon some eighty times. Mr McKinnon's main problem during that time involved long term anxiety and depression. His symptoms had deteriorated over time. Dr Earp frankly confessed that he had never been involved in a case involving mercury toxicity. He concedes that he has no post-graduate training as a toxicologist. He formed the view, however, that a significant possible cause of Mr McKinnon's symptoms was the raised level of mercury in his system. He advised Mr McKinnon to have all fillings removed. This was done by August 1995. The present proceedings were brought in June 1996. Although Mr McKinnon had reported some improvement in the level of irritability and anger, Dr Earp expressed the view that there was little objective evidence to support an improvement in his condition since the fillings were removed. He noted that it was his view that chronic accumulation of highly toxic mercury in his kidneys and brain was shown by laboratory tests and Mr McKinnon's present clinical features. In his affidavit, Dr Earp said that he believed that the chronically stored mercury would have a synergistic potential to cause lead exposure to become many times more toxic and lethal. He referred to and for his view relied upon, an article published by a Mr J Schubert of Hope College in Michigan which described a study conducted on rats which found that the administration of an essentially no-response level of a mercury salt together with 1/20 of the LD1 of a lead salt killed all of the animals. Mr Schubert's conclusion was that there was a synergistic reaction between mercury and lead. This article was the only article which Dr Earp had read on the subject. Mr Schubert himself gave no evidence and was unavailable for cross-examination. Dr Earp noted too that Mr McKinnon reports that when he visits traffic polluted locations he suffers headaches, dizziness and visual disturbance. He says that Mr McKinnon is concerned for his safety as he has sustained injuries to his Achilles tendons - has been caught in train doors and injured. He says: "Mr McKinnon has genuine and serious health and safety concerns, regarding him being required to attend multiple Respondents Medical appointments, which are located at heavily traffic polluted locations, which would most probably have the potential to cause Mr McKinnon to suffer further serious health damage, if he is exposed to heavily leaded traffic fumes, which could be made many times more lethal by the presence of the residual mercury, that most probably remains in Mr McKinnon's system." Finally, Dr Earp concludes: "I do not believe that Mr McKinnon should be required to attend at any leaded traffic fume or mercury polluted locations, as I believe that this would most probably pose a serious threat to Mr McKinnon's health and safety, and may result in further potential permanent injury damage, and serious distress for Mr McKinnon." Dr Stewart is a consultant physician, pathologist and biochemist working with the Royal Prince Alfred Hospital in Sydney. Through the Department of Clinical Biochemistry he operates a medical testing laboratory with a special expertise in toxic and heavy metals. Referring to the Schubert article, Dr Stewart says that its conclusions can not be extrapolated to humans. This is because of differences in metabolism, susceptibility and toxicity levels between species. He says too that the inorganic salt administered by those conducting the experiment had a different toxicity profile to elemental mercury from amalgam thus making the results reported in the Schubert article inapplicable to Mr McKinnon. Dr Stewart also, in his affidavit, questions Dr Earp's conclusions that pathology results ordered or obtained by Dr Earp showed results outside normal blood levels of mercury. He says that there is nothing in the material to which Dr Earp refers which suggests that Mr McKinnon is suffering from mercury toxicity. In cross examination Dr Earp conceded that his medical notes had only referred in the period until 15 May 1998, when the question of examination by medical experts in Sydney arose, to headaches and dizziness three times in connection with Mr McKinnon, notwithstanding many consultations. He said that he had never advised Mr McKinnon not to travel to Sydney to consult his own experts. He said that it was his view that Mr McKinnon should minimise trips to Sydney, going when it was important and not going when it was unimportant. Dr Earp conceded that in matters of toxicology he would defer to Dr Stewart. To be fair to Dr Earp he had never seen Dr Stewart's affidavit and I am prepared to accept that he would not necessarily agree with it. Before reaching a conclusion on the medical evidence it is useful to say something about the appropriate test to apply. Mr McKinnon relies upon the case of Aspinall v Sterling Mansell Ltd [1981] 3 All ER 866, cited in the publication Supreme Court Procedure (NSW) in support of the proposition that even if the risk to him is minimal, his refusal could not be classed as unreasonable. He says that the risk to him is, at least, minimal so that his refusal to attend is thus not unreasonable and that the proceedings should not be stayed on account of his non attendance. His case, of course, is that the risk to him is far from minimal.