Luck v Lusty EMS Pty Ltd

[2] The defendant seeks to invoke s.25 of the Personal Injuries Proceedings Act 2002 ("the Act") or else UCPR 429G.

[3] The application is resisted on the basis that the obligation to submit to an examination under s.25 has ceased because the defendant's solicitors have signed the certificate of readiness required by s.37 of the Act to proceed a compulsory conference. (The conference failed to result in a concluded compromise). A similar objection is raised to reliance on UCPR 429G.

[4] The plaintiff's case, shortly stated, is that s.25 and UCPR 429G are to be read restrictively: s.25 as subject to some such implied restriction as that "This section does not apply where a respondent has signed a certificate of readiness under s.37." A corresponding restriction is said to prevent UCPR 429G authorising a medical examination here.

[5] The notional addition of such words is said for the plaintiff to be required to enable s.25 and UCPR 429G to function conformably with division 4 of part 1 of the Act.

[6] The compulsory conference is an important feature of a legislative scheme that aims (see s.4(2)(b)) to promote early settlement of claims and to ensure the parties are prepared for trial before litigation even commences: cf Gitsham v. Suncorp Metway Insurance [2002] QCA 310; [2003] 2 Qd R 251,256. To ensure that the parties are appropriately informed of matters that might affect a decision whether to compromise a claim and, if so, on what terms, the Act requires information pertinent to the claim to be supplied to the other party. See, for example, ss 22 and 27.

[7] Section 25 provides a mechanism for enabling a defendant to obtain a medical examination of a plaintiff to inform the deliberations at the compulsory conference or in other compromise negotiations.

[8] Section 37 imposes obligations to support the effectiveness of the compulsory conference as a primary means for achieving early resolution.

[9] Section 37(1) provides that, at least 7 days before the compulsory conference, each party must give the other (a) copies of all documents not yet given to the other party that are required to be given; (b) a statement, signed by the party, verifying that all relevant documents in the possession of the party (or if the party has legal representation, the practitioner acting for the party) have been given as required and ... (d) a signed certificate of readiness for trial.

[10] More significantly for present purposes, section 37(2)(c) requires that the certificate of readiness state that "Medical or other expert reports have been obtained from all persons the party proposes to call as expert witnesses at the trial."

[11] The defendant's solicitor read a report by the plaintiff's medical practitioner. The solicitor considered it likely that the claim would be settled at the compulsory conference. So he decided not to incur the trouble and expense of arranging another medical examination. Now that litigation has started, the solicitor repents of that decision and wants the plaintiff examined.

[12] The plaintiff's case is not that the giving of a s.37 certificate of readiness ought be regarded as a material consideration in the exercise of a court's discretion whether to order an examination after litigation commences, favouring refusal of such an application. Rather it is that the Court has no power to make such an order once that certificate has been signed.

[13] Section 37(3) expressly provides a sanction for an inappropriate certificate of readiness, stipulating that "A practitioner who, without reasonable excuse, signs a certificate of readiness knowing that it is false or misleading in a material particular, commits professional misconduct."

[14] Does the Act impliedly involve this additional consequence: that, the certificate of readiness means that no order may be made for a medical examination, whether to enforce a request under s.25 (if that provision continues to have effect after litigation has commenced) or under UCPR 429G?

[15] Such an interpretation , constraining the court's jurisdiction under UCPR 429G or to enforce s.25, would support considerations that the Act treats as important. The construction for which Mr Charrington contends would tend to ensure that decisions made by parties about offers of settlement are informed. It would reduce a risk of prejudice through rejecting an offer that subsequently proved to be good after further evidence had changed the complexion of the case. And it would facilitate expedition of litigation, if the case had to be tried, because the issues would usually have been narrowed through the pre-trial procedures In which the investigations had been thorough and the results exchanged.

[16] But such an interpretation could also perpetuate injustices in some cases: outcomes the Parliament is unlikely to have intended.

[17] There might be an innocent but in the result mistaken certification of readiness for trial. For example, despite reasonable diligence, it might only emerge afterwards that the certificate was inaccurate. A solicitor might belatedly come to appreciate, through counsel's advice or from other sources, that a particular type of specialist practitioner's views should have been obtained. Or a doctor who had supplied a report might not be available to testify at trial. Other examples of not improbable, unjust outcomes involved in the suggested interpretation could be envisaged.

[18] There is also a slight, contextual indication that the potentially draconian consequences that could attend the suggested interpretation were not intended by the legislature.

[19] Section 36, which deals with the compulsory conference, and s.37 are in division 4 of part 1. Nearby in the Act is s.32(2), which concerns enforcement of obligations to disclose documents. It provides that if a party fails in a duty to disclose a document "the document cannot be used by the party in a subsequent court proceeding based on the claim... unless the Court orders otherwise."

[20] An inhibition on information gathering after a certificate of readiness was signed might have been included in division 4. It was not.

[21] The suggested implied restriction on the operation of section 25 (if it has any application where litigation has commenced) and on UCPR 429G cannot be accepted.

[22] There is a discretion to grant the relief sought.

[23] I will hear the parties further with respect to the prospect of prejudice.

[24] The question of prejudice has also been agitated. It was submitted that the plaintiff has incurred the costs of the litigation when, had the medical report been obtained in a timely way and been available for consideration at the compulsory conference, the litigation might have been avoided.

[25] This prospect, however, has been addressed by an undertaking which, so far as it relates to costs , is not criticised and is adequate to address the question of prejudice.

[26] The only other prospect of prejudice is that which inevitably follows if the new report demonstrates that the plaintiff's claim is not as valuable as the existing medical report would suggest. But that factor ought not influence a decision on this application.