DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where the
plaintiff brought a claim for damages for personal injury
and consequential loss
arising from a motor vehicle accident – where the plaintiff was examined
Source
Original judgment source is linked above.
Catchwords
DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where theplaintiff brought a claim for damages for personal injuryand consequential lossarising from a motor vehicle accident – where the plaintiff was examinedfor medico-legal purposes bya number of medical experts including, at therequest of his solicitors, an occupational therapist – where thedefendants wantedthe plaintiff to undergo an examination by a differentoccupational therapist – where there was lengthy delay in the provisionofa suitable panel of occupational therapists to conduct such an examination– where the plaintiff refused to be further examinedin light of the delay– where the defendants sought an order pursuant to s 46A and s 50 of theMotor Accident Insurance Act 1994 (Qld) requiring the plaintiff toundergo the further examination – whether it would be unreasonable torequire the plaintiffto undergo the further examinationINSURANCE
– THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES –
COMPULSORY INSURANCE LEGISLATION – RIGHTS AND
LIABILITIES OF INSURER IN
RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the plaintiff
brought a claim for damages
for personal injury and consequential loss arising
from a motor vehicle accident – where the plaintiff was examined for
medico-legal
purposes by a number of medical experts including, at the request
of his solicitors, an occupational therapist – where the
defendants wanted
the plaintiff to undergo an examination by a different occupational therapist
– where there was lengthy delay
in the provision of a suitable panel of
occupational therapists to conduct such an examination – where the
plaintiff refused
to be further examined in light of the delay – where the
defendants sought an order pursuant to s 46A and s 50 of the Motor Accident
Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further
examination – whether it would be unreasonable to require the plaintiff
to
undergo the further examination
Motor Accident Insurance Act 1994
(Qld), s 3, s 45, s 46A,
s 47, s 50, s 51A, s 51B
Uniform Civil
Procedure Rules 1999 (Qld), r 5, rr 426-429A, r 429G, r
469
Behrens v Nguyen & Anor [2017] QSC 14, followed
Luck
v Lusty EMS Pty Ltd [2008] QSC 146, cited
Judgment (60 paragraphs)
[1]
DAMAGES - GENERAL PRINCIPLES - OTHER MATTERS - where the plaintiff brought a claim for damages for personal injury and consequential loss arising from a motor vehicle accident - where the plaintiff was examined for medico-legal purposes by a number of medical experts including, at the request of his solicitors, an occupational therapist - where the defendants wanted the plaintiff to undergo an examination by a different occupational therapist - where there was lengthy delay in the provision of a suitable panel of occupational therapists to conduct such an examination - where the plaintiff refused to be further examined in light of the delay - where the defendants sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act1994 (Qld) requiring the plaintiff to undergo the further examination - whether it would be unreasonable to require the plaintiff to undergo the further examination
[2]
INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE - QUEENSLAND - where the plaintiff brought a claim for damages for personal injury and consequential loss arising from a motor vehicle accident - where the plaintiff was examined for medico-legal purposes by a number of medical experts including, at the request of his solicitors, an occupational therapist - where the defendants wanted the plaintiff to undergo an examination by a different occupational therapist - where there was lengthy delay in the provision of a suitable panel of occupational therapists to conduct such an examination - where the plaintiff refused to be further examined in light of the delay - where the defendants sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act1994 (Qld) requiring the plaintiff to undergo the further examination - whether it would be unreasonable to require the plaintiff to undergo the further examination
[1] There are two applications before the court. The first in time was filed on behalf of the plaintiff on 5 March 2021. He seeks an order pursuant to r 469 of the Uniform Civil Procedure Rules1999 (Qld) dispensing with the signatures of the defendants on a Request for Trial Date. Six days later, the defendants filed an application for an order pursuant to ss 46A and 50 of the Motor Accident Insurance Act1994 (Qld) requiring the plaintiff to submit to an assessment by an occupational therapist. The central question is whether such an assessment should now be ordered to take place in light of the following background.
[9]
[2] The plaintiff's claim is for damages for personal injuries and consequential loss arising out of a motor vehicle accident that occurred on 24 November 2018 at Wynnum. Liability is not in issue.
[3] Before the proceeding was commenced (on 9 April 2020), the claim progressed through the various pre-litigation steps required by the Act culminating in a compulsory conference pursuant to s 51A. That took place on 11 March 2020.
[4] Prior to the compulsory conference, the plaintiff was separately examined by two neurosurgeons (Drs Campbell and Tomlinson) and, at the request of the defendants, by an orthopaedic surgeon (Dr Boys).
[5] When the claim did not resolve at the compulsory conference, the plaintiff's solicitors arranged for him to be assessed by an occupational therapist, Mr Stephen Hoey. Mr Hoey then produced a written report regarding his assessment on 16 August 2020 and a copy was served on the solicitors for the defendants a couple of days later. A slightly revised version of Mr Hoey's report emerged on 19 August and it, too, was promptly served on the defendants' solicitors.
[6] Then, on 21 August 2020, Mr Schultz of the plaintiff's solicitors forwarded an email to Mr Schreurs of the defendants' solicitors enquiring whether the defendants required "any further medical reviews". Mr Schreurs responded one week later, advising that he was taking his client's instruction on the "provision of a panel pursuant to section 46A" of the Act "for review [by] your client". He anticipated "receiving those instructions shortly" and promised to revert to Mr Schultz once they were received.
[7] As nothing further was heard from the defendants' solicitors, on 14 October 2020 an email was forwarded to Mr Schreurs enquiring again whether the defendants required "any further medical reviews". If so, they were asked to "submit the usual panel/s so that [the plaintiff could] make the required election". On 29 October, Mr Schreurs responded, submitting a panel of three occupational therapists (Mr Fraser, Mr Zietek and Ms White). The next day, a letter was emailed to Mr Schreurs in which he was advised that the plaintiff had chosen Mr Zietek. Mr Schreurs was asked to make an appointment for the plaintiff with Mr Zietek and a number of conditions to facilitate the review were then specified, including that any assessment take place within three months.
[10]
"It is quite obvious my [clients require] your client to be reviewed. We haven't wavered from that.
[11]
What is putting a spanner in the works is the three month panel your client insists on. Your client is on wait lists for all of the Occupational Therapists we have previously provided. I am awaiting instructions for further panellists.
[12]
I am not going to hamstring my [clients] by putting forth a panel today (being the last working day in the office) to automatically deduct a month from your [client's] timeline.
[13]
A panel with three month availability will be provided in the [New Year], once the office reopens.
[14]
Given the holiday break your client will not be disadvantaged."
[15]
[12] On the following Monday (21 December 2020) a Request for Trial Date was served on the solicitors for the defendants under cover of a letter from Mr Schultz in which he advised that the plaintiff "will object to undergoing any further medical reviews given the unreasonable delay that has occurred to date". After setting out some of the background, he said:
[16]
"It goes without saying that the longer it takes for your client to make enquiries of the availability of occupational therapist, the less likely it will be that an appointment will be available within a reasonable period. A reasonable period of time was three (3) months of our client making an election on 30 October 2020 - meaning that the appointment must be available by no later than 30 January 2021. Given that your client has not shown sufficient interest in this review to even revisit the issue, we can only assume that it is no longer required."
[17]
[13] The Request for Trial Date contained the plaintiff's estimate of the trial length (three days), expressed a preference for the trial to commence on 5, 12 or 19 May 2021 and asked that "January to March and 5 to 13 April 2021" be avoided.
[14] On 13 January 2021, Mr Schreurs responded to Mr Schultz. Amongst other things, he advised that he was speaking to his clients "regarding the occupational therapy dilemma which [our clients face] with respect to the three month time frame for the respective specialists" and promised to communicate his further instructions once they were to hand. He was happy for the Request for Trial Date to be completed by noting that attendance of the plaintiff "upon an occupational therapist" as a "matter outstanding". Mr Schreurs also made reference to a Notice of Non-Party Disclosure that had been served on the firm in which the plaintiff is a principal in December 2020, to which no response had been received. He asked Mr Schultz to "make enquiries with [his] client as to any delay".
[15] Mr Schultz responded by email the next day in terms indicating that he was "happy for [the defendants] to identify matters which [they believe] to be outstanding in ... the Request for a Trial Date". After seeking a copy of the Notice of Non-Party Disclosure, he advised that he was "content for the [Request for Trial Date] to be signed with those matters noted as outstanding".
[16] Again, nothing further seems to have occurred until 16 February 2021. On that date, Mr Shultz sent an email to Mr Schreurs following up the Request for Trial Date. Mr Schreurs responded by email 10 minutes later. He advised that he was still awaiting a response to the Notice of Non-Party Disclosure and needed to consider the documents sought by that Notice before his clients would be in a position to sign the Request for Trial Date. Mr Schultz replied the next day as follows:
[18]
"As I'm sure you would appreciate our client does not control the firm at which he is a Partner. It is a very large firm and our client is just one voice. Our client is not in a position to control what the firm does in response to a Notice of Non-Party Disclosure.
[19]
Would you be happy to sign the Request for ... Trial Date on the basis that the Notice of Non-Party Disclosure is simply listed as an outstanding item?"
[20]
[17] Mr Schultz followed-up with another email on the same day (17 February 2021) after speaking with his client. He sought further details regarding the service of the Notice of Non-Party Disclosure as his client "had not been contacted by anyone about it". Further details were sought to enable the plaintiff to "encourage the appropriate decision-makers to action it quickly". Mr Schultz then wrote this:
[21]
"In the meantime, is there any reason why this outstanding issue needs to delay the matter? Can it not be simply noted as an outstanding matter in the Request for ... Trial Date?"
[22]
[18] No response was received to either email and so, on 21 February 2021, Mr Schultz emailed a letter to Mr Schreurs pursuant to UCPR, r 444. In it, complaint was made about what was described as "unreasonable delay on the part of the [defendants] in signing and returning a Request for Trial Date - or putting itself in a position to do so".
[19] The next day (22 February 2021), Mr Schreurs responded pursuant to UCPR, r 445. He enclosed a copy of the Notice of Non-Party Disclosure directed to the plaintiff's firm and maintained that he was not "trying to delay the litigation". He advised that he was "trying to get some OT's who can examine [the plaintiff] within a three month period given the evidence to hand". Mr Schreurs also advised that he would "recommend" to his clients that a Request for Trial Date be signed provided it noted that an occupational therapy assessment and the provision of the document pursuant to the Notice of Non-Party Disclosure were outstanding. He then stated:
[23]
"However, and in order to protect my [clients'] interests for the information to be received, I would like an undertaking that there will be no objection to amendment of our [clients'] defence post the signing of the RFTD and prior to trial.
[24]
That's just in relation to the further information obtained from [the plaintiff's firm] and the OT review.
[25]
If you are amenable to that can you provide a new (original) RFTD to me and I will get it signed and returned on our end, once instructions on the above are confirmed."
[26]
[20] By letter dated 25 February 2021, Mr Schultz advised that his client would sign a Request for Trial Date with the Notice of Non-Party Disclosure listed as an outstanding item but "will not agree to undergoing a review by an Occupational Therapist" before setting out the history of attempts to arrange such an assessment. He gave the defendants until 1 March to return a signed Request for Trial Date, failing which a dispensing application would be filed.
[21] As it was, the plaintiff waited until 5 March 2021 to file his application. Five days later (and one day prior to the filing of the defendants' application) Mr Schreurs emailed a letter to Mr Schultz in which he affirmed that his clients required an "occupational therapy medicolegal examination" of the plaintiff and advised of the "next available appointment times" for seven occupational therapists (including Mr Fraser, Mr Zietek and Ms White), the earliest of which was 13 May 2021 but the balance of which were in June, July and August 2021 and an unspecified month in 2022. He advised that he had nominated the plaintiff for placement on the cancellation lists for all but one of the therapists.
[27]
Should an order now be made for the examination of the plaintiff?
[28]
[22] As I have previously observed,[1] one of the objects of the Act is to "encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents".[2] This is in part enabled by the provisions of Division 4 of Part 4 of the Act which legislate for a measure of meaningful cooperation between claimants and insurers. Thus, by s 45, a claimant must cooperate with the insurer and, in particular, provide the insurer with documents and information regarding such things as the circumstances of the accident as well as the claimant's medical condition or prospects of rehabilitation.[3] Similarly, by s 47, the insurer must cooperate with the claimant by providing documents and information in the insurer's possession about many of the same things.[4] Further, and relevantly to these applications, where an insurer needs to obtain an expert report on the claimant's medical condition or prospects of rehabilitation, the Act contemplates that the claimant's agreement to that course will be sought. Where, however, agreement is not forthcoming, an obligation is imposed on the claimant by s 46A to comply with the insurer's request in certain circumstances.
"46A Examination of claimant by medical expert in absence of agreement between the parties
[30]
(1) This section applies if the insurer wants to obtain an expert report on the claimant's medical condition or prospects of rehabilitation but fails to obtain the claimant's agreement.
[31]
(2) The claimant must comply with a request by the insurer to undergo, at the insurer's expense -
[32]
(a) a medical examination by a doctor to be selected by the claimant from a panel of at least 3 doctors nominated in the request; or
[33]
(b) an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least 3 experts with appropriate qualifications and experience nominated by the insurer in the request.
[34]
(3) However, a claimant is not obliged to undergo an examination under this section if it is unreasonable or unnecessarily repetitious.
[35]
(4) A panel of doctors or other experts nominated under subsection (2) may (but need not) include doctors or other experts from the official panel of medical experts.
[36]
(5) If 3 doctors or experts with appropriate qualifications and experience are not available for inclusion on a panel under subsection (2), the number on the panel may be reduced to 2."
[37]
[24] The obligation imposed on a claimant by s 46A of the Act to undergo, relevantly, a medical examination is not open-ended. Rather, it is expressly provided that a claimant is not obliged to undergo an examination if it is "unreasonable or unnecessarily repetitious". However, where the relevant request is neither unreasonable nor unnecessarily repetitious, the claimant must comply with the request. Where a claimant fails to do so, the court may, on the insurer's application, order him or her to comply: s 50(1).[6]
[25] In Behrens v Nguyen & Ors,[7] I made the following observations about the operation of these provisions:
[38]
"It is for the insurer to establish a proper basis for the making of such orders in its favour. Importantly, the insurer must satisfy the court that what is sought by way of examination is neither unreasonable nor unnecessarily repetitious. In determining whether that is so, the objects of the Act, including the object of encouraging the speedy resolution of personal injury claims resulting from motor vehicle accidents, are not to be overlooked. As Applegarth J observed in RACQ Insurance Ltd v Wilkins,[8] the speedy resolution of such claims is facilitated by the timely completion of pre-proceeding steps and these "include the making of an offer of settlement based upon a fair and reasonable estimate of the damages to which the claimant would be entitled".[9] It follows that the exception to the insurer's right to obtain a medical assessment of a claimant expressed in s 46A(3) of the Act should not be construed in an unduly restrictive way because, to do so, might have the effect of stifling that objective. Each case will be different and much will depend on such factors as the complexity of the medical issue or issues involved and the extent to which the claimant has already been examined on behalf of the insurer regarding such issues. In addition, the potential size of the damages component in question or, indeed, the overall claim may be relevant; what might be considered to be unreasonable or unnecessarily repetitious in the context of a modest claim may not be so in the context of a larger claim. Depending on the circumstances of the case at hand, a claimant may need to be examined by a number of different specialists or even a number of specialists within the same area of specialty. There is no rule against an insurer seeking to have a claimant examined on more than one occasion by a particular specialist or by more than one specialist within that area of specialty. It will only be where what is sought by the insurer is unreasonable or unnecessarily repetitious that no obligation can be said to arise on the part of the claimant. As Chief Justice de Jersey held in Whiting v FAI General Insurance Company Ltd & Rayner:[10]
[39]
'Good sense dictates that each side in litigation like this have a comprehensive, though not unduly extended, opportunity to gather expert medical evidence as to the injuries and disabilities of the plaintiff.'[11]
[40]
It is also important to keep in mind that, if an order is made, it will be made pursuant to s 50 of the Act. By that provision, the court may, on the insurer's application, order the claimant to take specified action to comply with a duty imposed under Division 2, 3 or 4 of the Act. In the exercise of that discretion, the court will be concerned to balance the rights of the competing parties in a way that accords justice. As Cullinane J observed in Jackson v State of Queensland:[12]
[41]
'As was pointed out by Lord Scarman in Starr v National Coal(1977) 1 All ER 243 at page 249, two important rights come into conflict in a case of this kind and have to be adjusted. For the purposes of the Personal Injuries Proceedings Act2002 (Qld),
[42]
s 25(2) and (3) [the analogue of which are ss 46A (2) and (3) in the Motor Accident Insurance Act] provide the principles upon which that adjustment is made.
[43]
The defendant has the statutory right to obtain the necessary and relevant information to defend claims made against it and to enable it to enter into negotiations for the purposes of compromising such claims. An important public interest is served by the obtaining of such medical reports, namely the resolution of claims or their defence upon a fully informed basis.
[44]
On the other hand the right of the plaintiff not to be required to submit to a medical or similar examination against her will must weigh significantly'."[13]
[45]
[26] In support of the defendants' application Mr Schreurs swore that it is necessary for the defendants to obtain an opinion from an occupational therapist in order to progress the case to trial.[14] He also asserted that there will be "no prejudice in having the plaintiff reviewed by an occupational therapist prior to a ... hearing date which will likely be in the second half of 2021". On the other hand, Mr Schultz swore that, whilst some occupational therapists have long waiting lists, there are "many" who do not. A number of examples (of occupational therapists who were prepared to undertake assessments with relatively short waiting lists) were then provided. Three had appointments available in March 2021 and two in April. An email from one such therapist advised that his "average wait time" since August 2020 was 10 to 12 days from the date of request and then a further 10 to 12 days for the provision of a report.
[27] Of course neither side sought an occupational therapy assessment prior to the compulsory conference and each had certified prior to the conference that all medical and other expert reports had been obtained.[15] However, no point was taken about that on the hearing of the application and, even if one had, the provision by the defendants of a certificate of readiness during the statutory stage of the claim could not without more stand in the way of an order for examination under s 50 of the Act (or, for that matter, an order to the same effect under UCPR, r 429G). Rather, the plaintiff submitted that the defendants had ample opportunity to present for his consideration a panel of occupational therapists from which to make a selection but had squandered that opportunity through "tardiness and inactivity". On the other hand, and although conceding that there was no explanation for the delay, the defendants submitted that there could be no prejudice occasioned by an order requiring the plaintiff to undergo an examination because the proceeding was unlikely to be allocated a trial date until the second half of this year. The defendants were content for the certificate of readiness to be dispensed with provided an independent review by an occupational therapist could still take place. Otherwise, it was contended, the defendants will be at a "significant forensic disadvantage if the opinions of Mr Hoey are not answered".
[46]
[33] Nothing was submitted by counsel for the defendants on the hearing of the application that would stand in the way of an order dispensing with the Request for Trial Date if the order sought by him for a medical review of the plaintiff was refused. For example, the then outstanding Non-Party Disclosure discussed in some of the correspondence to which I earlier made reference (at [14]-[19]) was not held up as a reason to refuse the relief sought by the plaintiff.
[34] It follows that orders will be made dispensing with the defendants' signatures on the Request for Trial Date and the defendants' application will be dismissed. There is no reason why costs should not follow the event. As such, the defendants will be ordered to pay the plaintiff's costs of his application as well as the costs of their application, with such costs to be assessed on the standard basis.
[5]Motor Accident Insurance Amendment Act 2000 (Qld), s 26.
[52]
[6] Section 50(1) provides that: "If a claimant fails to comply with a duty imposed under division 2, 3 or 4, the court may, on the insurer's application, order the claimant to take specified action to remedy the default within a time specified by the court."
[8] Mr Schreurs responded on the same day (30 October 2020) in terms advising that Mr Zietek's next available appointment was in May 2021. He asked whether this was suitable and advised that, if not, appointments were available with Ms White and Mr Fraser in March and April respectively.
[9] Mr Schultz replied on 2 November. He sought an updated panel of occupational therapists who had availability to review the plaintiff within three months. At the same time, Mr Schultz expressed concern about what he regarded as delay on the part of the defendants in requesting a review and expressing the view that "providing a panel of practitioners who cannot see our client for five or six months is... unreasonable".
[10] The solicitors for the plaintiff followed up their request on 11 November 2020, calling on the defendants' solicitors to provide a fresh panel of occupational therapists within seven days. On 16 November, Mr Schreurs emailed a letter to Mr Schultz in which he advised that, although he was still "in the process of ascertaining available occupational therapists" with availability "within the three month time frame", he had managed to secure an earlier appointment with Mr Fraser on 8 February. He enquired whether the plaintiff would be "agreeable to this appointment". Mr Schultz replied the next day, advising that the plaintiff would "prefer to have a panel to choose from". He requested that a panel of three occupational therapists, all of whom could "see our client within three months", be provided. On 20 November, Mr Schreurs responded in terms advising that it would take him "some time to cobble such a list together ... especially given the Christmas break" but that, if the plaintiff was insistent, he would "revisit' it with his clients. Mr Schultz confirmed the next day that his client was indeed "insistent that he have a proper panel".
[11] Nothing then seems to have occurred until 8 December 2020 when Mr Schultz emailed Mr Schreurs seeking an update. As no response was received to that email, a follow-up email was sent late on 17 December. In that second email, Mr Schreurs was advised that, if a fresh panel was not submitted before Christmas, the plaintiff would proceed on the basis that the review was no longer required and would serve a Request for Trial Date. Early the next morning (18 December), Mr Schreurs responded as follows:
[28] The delay in this relatively straight-forward case has been lengthy. The plaintiff first enquired on 21 August 2020 whether the defendants required any further medical reviews. That enquiry was met with a response to the effect that the defendants' solicitors would seek instructions. As nothing was forthcoming in that regard for almost two months, the plaintiff's solicitors again enquired as to the position. That prompted the provision, almost two weeks later, of a panel of occupational therapists but none of them were said to be available to see the plaintiff until, at the earliest, March 2021. The plaintiff, understandably dissatisfied with having to wait another five months for an appointment, called on the defendants to supply a panel of occupational therapists with availability within what was contended to be a reasonable period of time (three months). Two weeks later, the defendants' solicitor advised that he had managed to secure an appointment with an occupational therapist in February but, again understandably, the plaintiff's solicitor asked for a panel of three occupational therapists from which the plaintiff could choose. Further delay ensued and, on 17 December 2020, almost five months after the original enquiry, the plaintiff's solicitor foreshadowed the service of a Request for Trial Date. This elicited what can only be described as an indignant response in which the defendants' solicitor asserted that the plaintiff's insistence on a panel with availability within three months was putting "a spanner in the works" and protested that the defendants would not be hamstrung by putting forth a panel on the last working day before the Christmas vacation. Instead, a "panel with three month availability" was promised in the New Year when his office reopened. The Request for Trial Date was served on 21 December 2020. Thereafter, commencing on 13 January 2021, the respective solicitors communicated backward and forward regarding the Request but it was not until five days after the plaintiff filed his application that the defendants' solicitor provided any meaningful response regarding the availability of occupational therapists to examine the plaintiff. Even then, a panel was not submitted. Instead, the "next available appointment times" for seven occupational therapists were advised, the earliest of which was in May 2021. If the plaintiff agreed to that appointment, it would mean that the assessment would not take place until almost nine months after his solicitor first enquired whether any such reviews were required by the defendants.
[29] No explanation for this delay was advanced on the evidence, although counsel for the defendants twice submitted during the hearing of the application that there is "a lack of appropriate specialists in this area". I cannot accept that submission. Although it may very well be the case that occupational therapists within the defendants' preferred stable of experts are limited in number, the unchallenged evidence is to the effect that there are many outside that stable who were able to assess the plaintiff within a relatively short period of time.
[30] As for prejudice, there can be no doubting that the plaintiff suffered orthopaedic injuries of such a nature that assessment by an occupational therapist would ordinarily be warranted. So much is of course made obvious by his own solicitors' decision to seek a report from Mr Hoey. The medical reports placed before the court also make it plain that there is a real issue as to the plaintiff's functional capacities. Significant claims for past and future economic loss are put forward in the Statement of Loss and Damage based on an alleged impairment in the plaintiff's earning capacity. It may therefore be accepted that some prejudice will be occasioned to the defendants if an order for examination is not made. However, it should not be overlooked that Dr Boys (and, for that matter, Dr Tomlinson) is eminently qualified to speak of the plaintiff's functional capacities and that Mr Hoey is not to be regarded as some sort of partisan mouthpiece for the plaintiff; he owes a clearly-defined, and overriding, duty to assist the court as an expert: UCPR, rr 426-429A. Nor should it be overlooked that the cause of any such prejudice is the defendants' own unexplained dilatoriness.
[31] As parties to this proceeding, the defendants impliedly undertook to proceed in an expeditious way: UCPR, r 5(1). They have simply not done so. Furthermore, if an order for examination was made after such unexplained delay, it would mean that parties to a proceeding of this type could feel free to ignore their obligations under the UCPR without consequence and, to add another layer of consideration, such an outcome would do little to satisfy one of the principal objects of the Act, that is to say, to "encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents".[16] To the extent that it was submitted that there could be no prejudice occasioned to the plaintiff by the making of an order for examination now because trial dates are unlikely to be reached in this half of the year, one wonders whether the same observation may have been made regarding the state of the civil list if the defendants had promptly answered the plaintiff's enquiry in August 2020 by the submission of a panel of occupational therapists who were each available to carry out an assessment within a reasonable period of time. I am therefore not persuaded that the discretion under s 46A of the Act should be exercised in the defendants' favour.
[32] There is another aspect to the determination of this application, although it was not raised by either side. The principal relief sought by the defendants in their application was an order pursuant to s 46A of the Act. In truth, if an order is to be made, it will be made pursuant to s 50. As I earlier observed (at [24]), s 50(1) confers a discretion on the court to order a claimant to undertake a medical examination when requested by his or her insurer. Because of how s 50 is expressed, the purpose of the power is to enforce compliance with, along with other provisions, s 46A. But the court can only enforce compliance where there has been "default" within the meaning of that provision. That will not be so where, relevant to the facts of this case, a claimant has refused an unreasonable request to be examined. That is because, as s 46A(3) expressly provides, a claimant is not obliged to undertake an examination if it is unreasonable. An examination will be unreasonable, again relevant to the facts of this case, where it is not proposed to take place within a reasonable period of time. Here, the plaintiff's solicitors specified three months as a reasonable period of time but the defendants failed to submit a panel of occupational therapists who all had availability to carry out an assessment within that period. No criticism of the plaintiff's specification was made during the hearing of the application and nor could it have been given the unchallenged evidence to which I earlier referred (at [29]), but whether such a period in another case may rightly be regarded as reasonable will depend on many of the factors I touched on in Behrens v Nguyen & Ors[17] as well of course on the availability of the particular specialists who are needed to conduct the review. The point though here is that I am also unpersuaded that the defendants' request of the plaintiff was reasonable and, being of that view, no occasion for the exercise of the discretion conferred by s 50(1) can arise.