Peter John Timmins v Yandilla Park Limited [2000] QSC 281

[2] The applicant had applied for Workers' Compensation in respect of supraspinatus tendonitis which allegedly developed while he was working as a fruit picker in the first half of 1996. It was not until 16 September 1997 that he made an application for Workers' Compensation. Prior to that date he had been examined, apparently for therapeutic rather than medico/legal purposes, by Dr Khursandi, an Orthopaedic Surgeon practising in the Maryborough/Harvey Bay area. The plaintiff had been referred to him by his GP.

[3] Dr Khursandi provided a report to the Workers' Compensation Board on 4 November 1997 pursuant to a request dated 25 September 1997. He also provided a report dated 6 March 1998 to the plaintiff's solicitors upon request by them. He gave a further report dated 3 August 1999 to the Workers' Compensation Board. In that report he said that the plaintiff had supraspinatus tendonitis of the left shoulder with impingement which could be attributed to his activities as a fruit picker. As conservative measures had failed to provide lasting relief, he had been advised to have acromioplasty of the left shoulder. Dr Khursandi expressed the opinion that the condition was stable and stationary with permanent impairment of 6 per cent according to WCT1, PI code number 1401.

[4] The plaintiff has maintained that he is prepared to attend on Dr Khursandi for further assessment if required. However, the defendant seeks an order that he be required to attend on Dr Morgan for examination.

[5] Upon my inquiring why, this relatively long time after the claim based on the shoulder injury had been commenced, the defendant was insisting on a further orthopaedic examination, I was told, in effect, that it was considered that the medical issues, or at least the way in which they were presented, were differently focused in common law damages actions from the approach in workers' compensation claims. Further, it was submitted, common law claims were dealt with by a different area of WorkCover, and those responsible for conducting common law actions should be entitled to seek opinions from other experts than those who provided the information in connection with the workers' compensation claim if they wished.

[6] It was submitted that both of these factors made it appropriate for those conducting common law claims on behalf of WorkCover to engage experts to whom they were accustomed to refer plaintiffs irrespective of what investigations had previously been done. Since this was elevated almost to a matter of right in the submissions, I decided I should give the matter consideration and write a decision rather than give oral reasons.

[7] Returning to the history of the matter, it will be recalled that the Workers' Compensation application for the shoulder injury was made on 16 September 1997. On 2 December 1997 WorkCover determined that the injury was not an injury under the WorkCover Act 1996. After the decision was reviewed and affirmed internally the applicant lodged an appeal to an Industrial Magistrate. After a series of adjournments following the first mention on 11 March 1998, the appeal was eventually heard on 11 December 1998. In the meantime the plaintiff had obtained medico/legal reports from Dr Pentis dated 1 June 1998 and 23 June 1998, Dr Robert Taylor dated 5 June 1998 and Dr Roger Watson dated 24 June 1998. There was also an occupational therapy report from Helen Coles.

[8] The Industrial Magistrate allowed the appeal on 17 February 1999 finding that the injury was one sustained in the plaintiff's employment. A conditional damages certificate was issued on 28 April 1999 and the writ was filed the same day. A request for an unconditional damages certificate was made on 27 July 1999. The statement of claim was filed on 13 December, 1999.

[9] About 20 April 1999 the plaintiff had been admitted to hospital for depression. On 20 August 1999, a request for a notice of assessment in relation to this injury was made. He was examined on behalf of WorkCover by Dr Hutchinson, a psychiatrist on 18 October 1999. It was determined on 6 March 2000, in conformity with Dr Hutchinson's opinion, that the depression was not an injury under the Workers' Compensation Act 1990_._ The psychiatric injury is now included in an amended statement of claim filed on 14 March, 2000. Since Mr O'Sullivan abandoned his application in so far as it related to an order that the plaintiff be subjected to examination by a second psychiatrist, it is unnecessary to pursue this aspect of the matter further except to the extent that it appears to have been a factor in the tone of some of the subsequent correspondence.

[10] The reports from Drs Pentis, Taylor and Watson were not placed before me. It is therefore unknown whether and to what extent that evidence contradicts the evidence that Dr Khursandi would give. It is common ground that all of those reports were in the possession of WorkCover by the time of the Industrial Magistrate's hearing in December 1998. However, it was pointed out that they had been obtained by the Workers' Compensation side of WorkCover for that purpose.

[11] The first request for the plaintiff to be examined by another Orthopaedic Surgeon on behalf of WorkCover was made in a letter dated 28 February 2000. In that letter, after discussing the procedural impediments concerning the psychological injury claim, the letter proceeded:

"Assuming your client is intending to pursue the claim for psychological injury then we advise that we will require your client to undergo independent medical examination by both an Orthopaedic Surgeon and a psychiatrist."

[12] The passage quoted is ambiguous. Since there had been no attempt by the defendant to get further orthopaedic advice while the claim remained an orthopaedic claim, the phrasing of it is unfortunate if it was intended to convey that there was some legitimate forensic purpose in further orthopaedic examination. As it is, it may have suggested, particularly to a person with a psychological problem that it represented a continuation of the resistance to the orthopaedic claim which had been encountered from the outset. Subsequent correspondence may not have dispelled this impression. Panels of three Orthopaedic Surgeons and three Psychiatrists were nominated from which it was requested the plaintiff make a choice.

[13] The response on 7 March 2000 was not an outright refusal. It was as follows:

"In relation to the orthopaedic injury we note that none of the doctors on the panel have available appointments until June. It is our intention to have this matter listed for trial in the Supreme Court sittings commencing 22 May 2000. Our client is prepared to submit to a medical examination provided that it does not prejudice our client's right to a timely trial. In any case we note that our client has already been examined on several occasions for your client by Dr Khursandi the latest being in May 1999.

Your client has had ample opportunity to investigate this matter particularly having regard to the previous Industrial Magistrate's court trial and the fact that we requested a damages certificate in February 1999 and that the certificate was not supplied until 6 months later in August 1999."

[14] The reply by the defendant's solicitors dated 13 March 2000 justified the request in the following terms:

"Your client has not yet been examined for the purpose of these common law proceeding, (sic) and further as you have pointed out the last examination by an Orthopaedic Surgeon was nearly 12 months ago. In the circumstances our client is entitled to require independent examination by an Orthopaedic Surgeon for the purpose of these proceedings and we do not consider our request to be unreasonable or repetitious."

[15] The plaintiff's solicitors responded on 17 March 2000 as follows:

"In relation to an examination by an Orthopaedic Surgeon we note that your (sic) client was examined by Dr Khursandi on 14 May 1999. Our client is willing to see Dr Khursandi for a review. There is no obligation on our client to submit to a medical examination after proceedings have issued separate from his obligation to submit to examination under the Workers' Compensation Act. Your client has had every opportunity to fully investigate this matter ... .

You now suggest that it is reasonable that our client undergo a further orthopaedic investigation of his injuries ... .Your client has been investigating this matter since 1997 and has all of our material ... .You assert that your client has not unreasonably delayed the matter because its left hand does not know what its right hand is doing.

We again repeat our advice that our client has been examined by an Orthopaedic Surgeon on behalf of your client and our client is prepared to submit to a review. To suggest that our client should submit to an examination by another Orthopaedic Surgeon because now common law proceedings have been issued is a nonsense."

[16] After further correspondence the defendant's solicitors stated in a letter of 13 June 2000, in the context of an argument whether the matter was ready for trial:

"... as you are aware the defendant requires your client to undergo independent medical examination and in that regard we do not accept any of the assertions made in your letter of 22 March 2000. With respect we find your client's attitude both unreasonable and unnecessary and we consider our client's request for the plaintiff to undergo independent medical examination to be quite reasonable. In particular we note that your client has to date taken the opportunity of obtaining medico-legal reports from no less than 8 doctors and medical practitioners including 2 Orthopaedic Surgeons (3 reports from Dr Pentis alone), a psychiatrist, a neuro-psychologist a consultant in rehabilitation medicine (2 reports) and 2 general practitioners). On the other hand our client has todate obtained reports from 1 general practitioner, 1 Orthopaedic Surgeon and 1 psychiatrist and the most recent of those reports is dated 21 October 1999."

[17] It appears that that letter was not responded to, except by bringing the plaintiff's application based on UCPR Rule 553, which is as follows:

"(1) A party may, after service of a statement of loss and damage, or service of the statement is waived, give to the other parties a written notice specifying a day, time and place for the holding of a conference to discuss, and, if possible, reach agreement on, all matters in dispute in the proceedings.

(3) If a party who is given the notice unreasonably neglects or refuses to attend a conference, the court may, on the application of a party who, except for the holding of the conference, is ready for trial, do all or any of the following-

(d) make another appropriate order, including, for example, an order sending the case to mediation."

I will put aside for the moment the question of the applicability of r 553 in the circumstances.

[18] In the absence of statutory authority the power to order a person to be medically examined depends on the inherent jurisdiction of the court. In Starr v National Coal Board (1977) 1 All ER 243, 247 Scarman LJ said the following:

"There are a number of propositions of law which are not in dispute, and I mention them straight away so that one may approach and consider that which is in issue between the parties. It is accepted that, where a plaintiff refuses to undergo a medical examination requested by a defendant, the court does have an inherent jurisdiction to grant a stay until such time as he submits to such examination when it is just and reasonable so to do. It is also recognised that a stay, if granted does either shut out the plaintiff from the seat of justice or compel him against his will to submit to a medical examination; and, of course, that is an invasion of his personal liberty."

[19] After a review of the state of authority he said the following (249):

"So what is the principle of the matter to be gleaned from those cases? In my judgment the court can order a stay if, in the words of Lord Denning MR in Edmeades' case [1969] 2 QB 67 at 71, 'the conduct of the plaintiff in refusing a reasonable request [for medical examination] is such as to prevent the just determination of the case'. I think that those words contain the principle of the matter. We are, of course, in the realm of discretion. It is a matter for the discretion of the judge, exercised judicially on the facts of the case, whether or not a stay should be ordered. For myself, I find talk about 'onus of proof' in such a case inappropriate. There is, I think, clearly a general rule that he who seeks a stay of an action must satisfy the court that justice requires the imposition of a stay.

In the exercise of the discretion in this class of case, where a plaintiff has refused a medical examination, I think the court does have to recognise .... that in the balance there are, amongst many other factors, two fundamental rights which are cherished by the common law and to which attention has to be directed by the court. First, .... there is the plaintiff's right to personal liberty. But on the other side there is an equally fundamental right-the defendant's right to defend himself in the litigation as he and his advisers think fit; and this is a right which includes the freedom to choose the witnesses that he will call. It is particularly important that a defendant should be able to choose his own expert witnesses, if the case be one in which expert testimony is significant."

"A plaintiff is not to be regarded as acting unreasonably merely because he does not wish, or his advisers do not wish him, to be examined by a doctor chosen by the defendant. But, if a defendant insists on examination of the plaintiff by the doctor he, the defendant, has nominated, then the problem does arise: in what circumstances will the court order a stay unless the plaintiff yields?

First, one has to look to the defendant's request and ask oneself the question: is it a reasonable request? The defendant is not to be regarded as making an unreasonable request merely because he wishes to have the plaintiff examined by a doctor, unacceptable to the plaintiff. The decisive factor, therefore, becomes, .... that of the interests of justice-or the 'just determination' of the particular case. I would add that it can only be the interests of justice that could require one or other of the parties to have to accept an infringement of a fundamental human right cherished by the common law. The plaintiff can only be compelled, albeit indirectly, to an infringement of his personal liberty if justice requires it. Similarly, the defendant can only be compelled to forgo the expert witness of his choice if justice requires it.

And so in every case, as I see it, the particular facts of the case on which the discretion has to be exercised are all-important. The discretion cannot be exercised unless each party does expose the reasons for his action. I have already indicated that I do not regard this as a question of onus of proof. There is, in my judgment, a duty on each party in such a situation to provide the court with the necessary material known to him, so that the court, fully informed, can exercise its discretion properly. However, I would add this comment: that at the end of the day it must be for him who seeks the stay to show that, in the discretion of the court, it should be imposed."

"One has to do one's best to extract from the decisions such principles as seem best to accord with reason and with practice and with fairness. The court clearly has inherent jurisdiction to order a stay when the justice of the case demands such a stay. There are not infrequent occasions when justice demands that the plaintiff should undergo medical examination by a doctor appointed on behalf of the defendants. There are circumstances in which refusal by the plaintiff to undergo such examination should in justice be met by the imposition of a stay. In order to determine what those circumstances are, it is necessary to bear in mind the competing considerations. On the one hand, any medical examination carried out on him on behalf of the defendant is, as has rightly been said, an invasion of the plaintiff's privacy and is not lightly to be enforced, even indirectly, by a stay of the action. On the other hand, the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.

Few problems arise if the plaintiff flatly declined to be examined by anybody. The real difficulty is when, as here, the defendants put forward the name of an experienced and well-qualified doctor who on the face of it appears to be unobjectionable but to whom the plaintiff and his advisers nevertheless object.

Is it sufficient for the plaintiff to say: 'There are other experts available in this field of medicine and accordingly there is no necessity for me to be examined by this nominated doctor of yours. You can find someone else; and I decline to give you reasons for my objection'? I for my part think not. Providing the doctor is properly qualified, the defendants are entitled to insist that he shall carry out the examination unless it can be shown that such a course would in all the circumstances be unfair or unreasonable from the point of view of the plaintiff. What is unfair or unreasonable in the way of objection will, of cure, depend necessarily on the facts of each individual case."

[22] In Prescott v Bulldog Tools Ltd (1981) 3 All ER 869, Webster J considered an aspect not touched upon directly in Starr, namely a case where some of the tests to be performed would cause significant physical discomfort. In the process of doing so (874) he extracted three principles which he derived from Starr in the following terms:

"In my view, it is possible to deduce three general principles: first that the decision whether or not to grant a stay involves the exercise of the court's discretion, second that in exercising that discretion it is necessary for the court to balance the right of one party, the plaintiff, to personal liberty, against the right of the other party, the defendant, to defend himself in litigation as he thinks fit, and third that in determining whether either party is being reasonable the question is not whether in the case of the plaintiff his objection is objectively reasonable, or in the case of the defendant whether his request is objectively reasonable, but whether the objection or the request as the case may be is reasonable in the light of the information or the advice which the respective parties receive from their respective advisers (see [1977] 1 All ER 243 at 251, 254 [1977] .... per Scarman and Geoffrey Lane LJJ.)."

[23] There is no evidence in the present case that the tests would involve physical discomfort of the level of kind expected in Prescott. It is therefore unnecessary to analyse Prescott further. Master Weld reviewed the state of authority in Australia in Catton v Spies & Anor (unreported 5080 of 1983, 3 March 1986). He referred to the limited authority and said that apart from cases where a specific rule had been invoked the inherent power had been asserted. He discussed the English authorities with particular reference to Starr and Prescott and observed that the power to order a medical examination attributable to the inherent power of the court had been extensively developed there.

[24] I was also referred to the Court of Appeal decision in Gray v Hopcroft & Anor [2000] QCA 144, 28 April 2000, where Ambrose J with whom Thomas JA and Helman J agreed, said the following:

"It is perfectly clear in my view that justice requires that a plaintiff have the ability and right to choose medical witnesses in whom he or she has confidence. Often that confidence will be based upon the experience of the plaintiff's legal representatives of the forensic ability of specialist witnesses perhaps suggested by that legal representative.

Similarly defendants must have the right to choose those expert witnesses to examine a plaintiff in whose forensic ability and expertise they have confidence."

[25] Gray v Hopcroft was a case where the plaintiff sought leave to appeal against a District Court Judge's discretionary order requiring her to undertake an examination in Cairns or Brisbane, subject to a number of conditions designed to alleviate her discomfort. It turned out that the panel of psychiatrists were all practising in Brisbane and one factor agitated was that it was a matter of public importance to determine whether litigants in the applicant's disabled condition should be required to undergo inconvenience and discomfort in travelling from North Queensland to Brisbane, merely to permit a defendant to have her examined by a medical practitioner of the defendant's choice who practiced in Brisbane.

[26] The thrust of the argument was that leave should be given to argue the question whether it was in general reasonable to achieve the ends of justice that defendants for whatever reason should require plaintiffs in North Queensland to be medically examined by doctors in Brisbane. In the event it was held that there was nothing to suggest that the exercise of discretion had miscarried and leave to appeal was refused.

[27] The general statement of principle in Gray is not inconsistent with the authorities referred to above. There was nothing in that case to suggest that the request was unnecessarily repetitious. The point argued was that the request was unreasonable because of the potential discomfort which may be suffered by the plaintiff. The notions of unreasonableness or unnecessary repetition of medical examinations are, for example, referred to in s 286 of the WorkCover Queensland Act 1996. In my view this accords with the notion that there must be a balance drawn between the rights of the parties and the inherent invasion of personal liberty involved by requiring a person to undergo medical examination.

[28] As Scarman LJ says in the third passage quoted above from his judgment in Starr the particular facts of the case upon which the discretion has to be exercised are all important and each party ought to expose the reasons for taking the stance adopted.

[29] The present case is in my view somewhat deficient in that regard. A mere desire on the part of the plaintiff to bring a matter to trial quickly cannot preclude a defendant from preparing its case adequately, provided it is not dilatory. The time frame of the whole of the claim is quite lengthy but that of the civil action, since service, is relatively short. On the other hand, while the later correspondence from the defendant may apply principles applicable to cases of this kind, it is unfortunate that the initial correspondence may have created the impression that the request for further orthopaedic examination had been conceived because the psychological injury claim was being pursued.

[30] However, when the balance is drawn, I consider that it is not unreasonable or unnecessarily repetitious for an orthopaedic examination of the plaintiff to be made by a medical practitioner nominated by the defendant. There are no other compelling factors weighing against the defendant. However, to accommodate the concerns that the matter may be unduly delayed, in my view a panel of three orthopaedic surgeons ought to be provided so that the plaintiff can exercise a choice having regard to whatever matters seem appropriate when the names are provided. It follows from what has been said that the applicant's application fails, and the respondent's application succeeds in part, in that a further examination will be ordered but not by a specific medical practitioner and to the extent that the application for further examination by another psychiatrist was abandoned during the course of the hearing. It is of course open to either of the parties to request Doctor Khursandi to update his opinion if that remains an issue.

[31] It follows from what has been said that the action is not ready to be set down for trial, since further evidence is to be gathered.

2. I order that the plaintiff submit to a personal examination by an orthopaedic surgeon with appropriate qualifications and experience chosen by the plaintiff from a panel of three doctors nominated by the defendant.

3. I order that the costs of each of the applications be defendant's costs in the cause, to be assessed on a standard basis if not agreed.