Procedure - Supreme Court procedure - Tasmania - Jurisdiction and generally - Discretion to stay proceedings - Examination by more than one medical practitioner - Whether reason for discretion not to grant stay demonstrated.

Oakley v Green [1969] Tas SR 90; Weedon v Green [1978] Tas SR 117, referred to.

Judgment Number: [1999] TASSC 105

1 The defendant is seeking a stay of proceedings in this action pursuant to the Evidence Act 1910 ("the Act"), s25 because the plaintiff has failed to submit herself to an examination by a medical practitioner appointed by the defendant for the purposes of that section. On 9 June 1999, the defendant's solicitors wrote to the plaintiff's solicitors advising that an appointment had been made for the plaintiff to be reviewed by Dr Tony Kostos in Melbourne on 26 July 1999 at 2.15pm. Confirmation that she would keep this appointment was requested and her solicitors were advised that arrangements would be made for the issue of airline tickets and cab vouchers. She was also requested to take with her any x-rays, CT scans and the like in her possession. The plaintiff's solicitor replied on 10 June, stating that as she had now attended five medico-legal assessments arranged by the defendant's solicitors, the issue of reasonableness arose and he sought advice as to the reason for the further medico-legal assessment, the nature of Dr Kostos' specialty and the basis upon which they asserted that the plaintiff should attend. He said he would then take instructions. The defendant's solicitors replied on 11 June, advising that Dr Kostos is a highly qualified rheumatologist, that the plaintiff had been referred by the defendant to Dr Graham, who was a rheumatologist "but his report has left open a number of issues that we wish Dr Kostos to address for the purpose of advising us".

2 The plaintiff, it appears, was involved in a motor car accident in which the collision occurred without significant damage to either of the vehicles involved and appears to have been a minor collision. Nevertheless, since that time (it occurred on 27 April 1993) she claims that she has been unable to carry out her work as a primary school teacher and that she suffers very considerable disabling sequelae. She has been assessed by specialists engaged by her in a number of fields and her solicitor has delivered to the defendant's solicitors medical reports from neurosurgeon, Mr John Liddell; rheumatologist, Dr Hilton Francis; consultant occupational physician, Dr Peter Sharman; orthopaedic surgeon, Mr F J Binns; neurosurgeon, Mr Hunn; and an occupational physician, Dr Helen McArdle. In addition, a number of general medical practitioners' reports have been delivered. The substance of those reports, if accepted, would be to the effect that the plaintiff has suffered a significant injury and are supportive of her claim that her injuries are significant enough to make it unlikely that she will be able to return to work in the foreseeable future. Particulars of her claim have been delivered and in respect of her lost earnings, past and future, a claim in the order of over $400,000 has been made.

3 Not surprisingly, the defendant has sought to have her independently examined by a number of his own specialists. Already she has been examined at the defendant's request by Mr Peter Stephenson, a consultant physician; Dr John Silver, a consultant occupational physician; Dr Ian Sale, a psychiatrist; Dr Schaeffer, a neurosurgeon; and Dr Stewart Graham, a rheumatologist. Counsel for the defendant said, in the course of his submissions, that the reason a further examination was required by a specialist rheumatologist arose in this way:

"I referred the plaintiff to Dr Stewart Graham, a rheumatologist, because I wanted Dr Graham to address some issues, particularly those raised by Dr Hilton Francis, rheumatologist, who has reported upon the plaintiff.

Dr Graham's report was for my purposes inconclusive and issues were raised that required me to seek advice - I hesitate to use the expression 'perhaps more experienced' or 'more qualified', but somebody who would be able to give me the advice I needed."

In reply to a suggestion from counsel for the plaintiff that as he had not been delivered a proof of Dr Graham's report, he could only assume that it was favourable to the plaintiff, counsel for the defence said that no such conclusion should be drawn from that and:

"... what I stand by is that the evidence is inconclusive as to issues that he was asked to address, and that is the primary aspect of why I have referred the plaintiff to Dr Kostos - it's the inconclusiveness."

4 In Oakley v Green [1969] Tas SR 90, the question arose whether the Act, s25 gave the defendant an entitlement to require the plaintiff to submit to examination by more than one medical practitioner. Chambers J held that it did, but that as the power to grant a stay was discretionary, he said he had "no doubt that a Court would refuse to order a stay if it were satisfied that the section was being used oppressively, vexatiously or unreasonably" (at 92). In that case the plaintiff had submitted to examination by a visiting neurosurgeon nominated by the defendant, but refused a demand to be examined by a second neurosurgeon nominated by the defendant on the grounds that he had already been examined by three medical practitioners and such examinations were disturbing to him. An appeal against the Master's order of a stay on the basis that it should have been refused on discretionary grounds was dismissed by Chambers J, but the report does not deal with the merits of this ground. Recourse to the unreported reasons for judgment, 57/1969, shows, however, that Chambers J, while satisfied on the affidavit evidence that medical examinations were disturbing to the plaintiff and that he became apprehensive, restless and introspective for several days before and after such an examination, found that there was no other undue detriment likely to accrue to him by reason of submitting to a further examination. He concluded:

"Dr Southby is the only neuro-surgeon practising and residing within Tasmania and in all the circumstances I think it not unreasonable that the defendants should ask that the nature and extent of the plaintiff's injuries be assessed by him."

5 In the later case of Weedon v Green [1978] Tas SR 117, Neasey J was concerned with the question whether a stay could be ordered on the condition that a copy of the practitioner's report be supplied to the plaintiff. Neasey J expressed his agreement with the dictum cited above from Oakley v Green (supra) at 92 and said, at 120 - 121:

"It is plain that the discretionary power to order a stay must be construed in the light of the section as a whole. Section 25(1) gives on its face an unqualified right to a legally qualified medical practitioner appointed by the defendant, on demand by the defendant, to examine the injured person; and prima facie an unqualified duty upon the injured person and all other parties if any to the proceedings to give to that medical practitioner all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury.

However, notwithstanding that the right and the correlative duty are expressed in such absolute terms, the sanctions specified for a refusal on the part of the injured person to recognize them are, as might be expected having regard to the effect upon the plaintiff's personal liberty if it were otherwise, limited to the plaintiff's right to proceed in the action. Furthermore, exercise of the sanction by way of an order to stay proceedings is left as a discretionary matter in the court ... There may be clear reasons why it would be unjust to grant a stay of proceedings in any particular case, as learned counsel for the defendant in this matter correctly argued. For example, the plaintiff may not have been properly notified of the appointment to attend upon the defendant's doctor, or he may not have been supplied with proper expenses for his attendance, or the like. ...

In my view, therefore, if there would be no injustice of the kind alluded to earlier in granting a stay, and none is suggested, then it should be granted."

6 In my opinion, it is for the plaintiff to show why, in the exercise of my discretion, I should not grant a stay. No complaint is made by the plaintiff that such an examination will cause hardship, distress or even inconvenience. The mere fact that this will be the sixth examination demanded by the defendant does not in the circumstances of the present case warrant the conclusion that it is unreasonable to expect her to submit to it. She proffered proofs of specialists in several fields of medical expertise and it was not unreasonable that the defendant should have her examined by his own specialist in each of these fields. The fact that this is the second examination in the field of rheumatology does not of itself demonstrate oppression or unreasonableness. The issue in this case is very polarised, with the plaintiff's experts all indicating acceptance of the plaintiff's claims to being severely disabled by the accident, while the defendant's experts, on the reports shown to me, take a diametrically opposite view. It is a large claim and it is not unreasonable, in my view, that the defendant be given a further opportunity to ascertain fully the nature and extent of the injury by seeking a second opinion in the field of rheumatology. I should record that the plaintiff does not suggest that having to attend for examination in Melbourne at the expense of the defendant is a hardship. In any event, it seems that Dr Kostos visits Tasmania periodically and that arrangements can be made for an examination to be carried out here in the near future.

7 There being no proper basis for refusing the stay, one will be granted.