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[2015] ACTSC 266
Supreme Court of the ACT
2015-09-04
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CIVIL - Jurisdiction, practice and procedure - Road Transport (Third Party Insurance) Act 2008 (ACT) - confirmation of cause of action - limitation period - pre-court requirements - stay order pending completion of the pre-action requirements - expert report - joint report - medical examination - court's power to stay proceedings where a plaintiff unreasonably refuses to undergo a medical examination - statutory interpretation - Explanatory Statement - ability of respondent to obtain medical report where plaintiff declines to be examined
Court Procedures Rules 2006 (ACT), rr 75, 75(3)
Limitation Act 1985 (ACT), ss 16B, 32
Road Transport (Third Party Insurance) Act 2008 (ACT), ss 5A, 5A(e), 61(a), 69, 70, 84, 117, 118, 118(1), 118(3), 119, 120, 136, 137, 139, Parts 4.5, 4.7, 4.8,
Burow v Hoyer (2015) 292 FLR 325
Campbell v Biernacki (2009) 19 Tas R 345
Donnelly v Sallard (1936) 53 WN (NSW) 121
Edmeades v Thames Coal Board [1969] 2 QB 67
Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546
Insurance Australia Ltd v Albrecht (2015) 70 MVR 139
Lack v Lusty EMS Pty Ltd [2008] QSC 146; [2008] 2 Qd R 522
Lambert v ACT Nursing Services Pty Ltd [2007] ACTSC 86; (2007) 214 FLR 422
Neill v Commonwealth (Unreported, Australian Capital Territory Supreme Court, SC No. 209 of 1982, 9 September 1982)
Pickett v Bristol Aeroplane Co Ltd (Unreported, UK Court of Appeal, Willmer and Donovan LJJ, 16 March 1961)
S v S [1972] AC 24
Singh v Rodden [2013] ACTSC 272
Starr v National Coal Board [1977] 1 WLR 63
Taylor v Owners-Strata Plan No 11564 [2014] HCA 9; (2014) 306 ALR 547
Thiering v Daly [2011] NSWSC 1345
Insurance Australia Ltd trading as NRMA Insurance (Second Defendant)
1. On 9 December 2010, the plaintiff, Raquel Wickes, was involved in a motor vehicle collision when the motor vehicle driven by the first defendant, Mustafa Al-Mofathel, was being reversed out of a long driveway onto the street and collided with the plaintiff's motor vehicle which was travelling along Corringle Close in Amaroo.
2. Ms Wickes consulted her lawyers on 21 December 2010 and the relevant forms required by s 84 of the Road Transport (Third Party Insurance) Act 2008 (ACT) (the TPI Act) were served on the second defendant, Insurance Australia Ltd trading as NRMA Insurance, whom I shall call NRMA Insurance.
3. There was correspondence and some negotiation between Ms Wickes' lawyers and NRMA Insurance and, on 2 March 2011, NRMA Insurance admitted that Mr Al-Mofathel had breached his duty of care to Ms Wickes, thereby admitting liability.
4. For reasons referred to below (at [12]), proceedings were commenced on 21 February 2014 in which Ms Wickes claimed damages for the injuries she suffered in the motor vehicle collision, despite the pre-court requirements set out in Parts 4.7 and 4.8 of the TPI Act not having been completed.
5. On 11 December 2013, NRMA Insurance wrote to Ms Wickes' solicitors setting out details of appointments they had made for her to be medically examined by Dr Doron Samuell, psychologist, and Dr Anthony Smith, Orthopaedic Surgeon, for the purpose of providing it with medico-legal reports.
6. On 16 December 2015, Ms Wickes' solicitors responded advising that she would not attend these appointments but indicating that she would be able to be medically examined by medical practitioners and inviting NRMA Insurance to nominate "at least three doctors with appropriate qualifications and experience in the fields for that purpose". Reference was made to the procedure under s 120 of the TPI Act.
7. Subsequently, NRMA Insurance appointed solicitors to act for it and the solicitors for both parties agreed that it was desirable that the question of whether s 120 of the TPI Act applied in this situation and how it should operate should be determined by the Court.
8. As a result, the solicitors for Ms Wickes filed and served an Application in Proceedings seeking orders:
1. That the defendant within 14 days nominate:
(a) Three orthopaedic surgeons; and
(b) Three psychiatrists;
pursuant to section 120 of the Road Transport (third-Party Insurance) Act 2008.
2. That the defendants pay the plaintiff's costs; ...
9. The application came before me on 3 November 2014 when I heard Counsel before parties and reserved my decision.
10. Following the collision to which I have referred above (at [1]) and the subsequent correspondence to which I have also referred above (at [3]), there was further correspondence between, initially, NRMA Insurance and then its solicitors, on the one hand, and solicitors for Ms Wickes on the other.
11. By letter dated 9 January 2014, the lawyers for Ms Wickes wrote to NRMA Insurance setting out the injuries restrictions and disabilities suffered by Ms Wickes. The relevant part of the letter is as follows:
Our client continues to suffer from the following ongoing injuries, restrictions and disabilities:
12. It would appear that, as a result of these negotiations and correspondence, Ms Wickes did not commence proceedings until 21 February 2014. It was asserted, and I have no reason to doubt it, that the proceedings were commenced then because of the impending expiry of the limitation period. Under s 16B of the Limitation Act 1985 (ACT), the limitation period for such a proceeding is three years after the date the injury happened.
13. In this case, Ms Wickes relies upon s 32 of that Act which provides that, where a party against whom an action lies confirms the cause of action, the time prior to the confirmation does not count in the reckoning of the limitation period. Accordingly, the limitation period would expire on 1 March 2014, three years after the NRMA admitted liability, thereby confirming the cause of action.
14. The proceedings were commenced, however, despite the relevant pre-action procedures having not been completed as required by the TPI Act, referred to above (at [4]). These procedures include requirements for the parties to exchange mandatory final offers, complete and serve a certificate of readiness and to attend a compulsory conference before commencing proceedings in Court.
15. Master Harper decided in Racic v Haltiner (2010) 4 ACTLR 224 that proceedings commenced in this way, that is without compliance with each such pre-action obligation, were not nullities. His Honour, however, then (at 228-9; [13]) stayed the proceedings until the plaintiff complied with the pre-action procedures.
16. This approach overcame a number of problems. For all kinds of reasons, proceedings may not be able to be commenced until shortly before the expiry of the applicable limitation period. For example, a plaintiff, perhaps ignorant of his or her rights, may delay seeking the advice of a lawyer. In certain cases, the injuries of a plaintiff may not have stabilised so that requirements of the pre-action requirements cannot be met, as described in Singh v Rodden [2013] ACTSC 272 at [63] - [66]. Such delays may risk the plaintiff not being able to commence proceedings if the pre-action requirements have first to be met before the expiry of the limitation period.
17. As a result, a practice has grown up whereby the parties agree that the plaintiff may commence proceedings, especially where expiry of the limitation period is imminent, but that neither party will then proceed with the action until the pre-action procedures have been completed. See Insurance Australia Ltd v Albrecht (2015) 70 MVR 139 at 143-4; [8]-[11]. There is a danger that proceedings will be taken to be dismissed under r 75 of the Court Procedures Rules 2006 (ACT) and before the pre-action procedures are completed, if the parties do not take care to avoid this consequence, for example by taking advantage of r 75(3).
18. It was said in this case that when the originating claim was filed it was filed "pursuant to an order by the court made on the same day that the 'proceedings be stayed until the pre-court provisions of Pt 4.7 and 4.8 of the Act have been complied with'".
19. There is, however, no such order on the file, nor was there a bench sheet showing that such an order was made.
20. This is important for there has been no compliance with the pre-action provisions of the TPI Act and both parties accept that the ordinary current response should apply: the court proceedings, begun to stay the passing of the limitation period, should not permit the parties to by-pass the pre-action procedures required under the TPI Act, which procedures should be completed prior to a stay of proceedings being lifted.
21. As a result, it seems to me that I should formalise the position by expressly making a stay order pending completion of the pre-action requirements of the TPI Act.
22. Ms Wickes, through her solicitors, prepared and, on 14 January 2014, served on NRMA Insurance the Notice of Claim required by s 84 of the TPI Act, together with the other forms required by that section, namely the Motor Accident Notification Form under s 69 of that Act and the Motor Accident Medical Report under s 70 of the Act.
23. Since 2 March 2011, when NRMA Insurance admitted the liability of Mr Al-Mofathel in negligence to Ms Wickes, Ms Wickes has undergone a number of medico-legal investigations and, on 28 August 2014, underwent shoulder surgery.
24. Thus, while proceedings are actually on foot, the stay will have the effect of affecting the position that the parties face, namely that they are merely in a pre-action phase, as if no proceedings were on foot. The question I need to consider is, accordingly, to be determined in that context.
25. The second contextual matter I must bear in mind is that the TPI Act is intended to provide some regulation of the pre-action activities of persons who may seek to participate in the future in curial proceedings to which that Act applies.
26. It is important to recognise this, for the TPI Act provides a filter and imposes a regime upon such persons which is not imposed on other prospective litigants. A creditor or person defamed may engage in negotiation with the debtor or the alleged defamer without any prescriptive requirements as to how that must be done before curial proceedings are commenced. The TPI Act, rather similar to the Civil Law (Wrongs) Act 2002 (ACT), interferes with that liberty and prescribes some preliminaries which must be completed before litigation commences.
27. The objective of the TPI Act are set out in s 5A and, for these purposes, the relevant object is
(e) to encourage the speeding resolution of personal injury claims resulting from motor accidents.
28. This is, in part, to be achieved by encouraging early and comprehensive disclosure before the commencement of court proceedings, a compulsory discussion between claimant and insurer and the encouragement of a negotiated settlement. I discussed this in Singh v Rodden at [6]-[18], including quoting a description by Byrne SJA in Lack v Lusty EMS Pty Ltd [2008] QSC 146; [2008] 2 Qd R 522 at 523; [6] of a key element of the procedure, the compulsory conference, which sums up much of the aim of the pre-action procedures, as follows;
The compulsory conference is an important feature of a legislative scheme that aims... to promote early settlement of claims and to ensure the parties are prepared for trial before litigation even commences... 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.
29. It is in this context that the issues in this case have to be decided.
30. There can be no doubt that a medical examination is an invasion of the liberty of the individual: Starr v National Coal Board [1977] 1 WLR 63 at 70.
31. Even minor examinations, such as the taking of a mouth swab for DNA testing, is a direct interference with personal autonomy: Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546 at 559; [67].
32. Mostly, of course, persons consent to such an examination by their medical practitioner every day. The question, however, is when can the court interfere by compelling such an examination.
33. Clearly, a statute may interfere with this liberty and has done so. Thus, the Crimes (Forensic Procedures) Act 2000 (ACT) permits a court to authorise the taking of a DNA sample without the examinee's consent. In a context closer to this one, under Part 23 of the Uniform Civil Procedure Rules 2005 (NSW), the court may order that a person, who is a party to proceedings in which that person's physical or medical condition is relevant to a matter in question, undergo a medical examination.
34. It has been held by high authority, that a court has no direct power to have a blood test taken of a person against his or her will: S v S [1972] AC 24.
35. A comprehensive analysis of the cases was undertaken by Murphy JA in Furesh v Schor at 559-69; [68]-[101], where his Honour concluded that the court had no power to order a defendant in paternity proceedings to submit to DNA analysis by permitting a swab to be inserted into his or her mouth.
36. Where there is no statutory authority, however, it has been held that a court may indirectly achieve such a result, that is to require a person to undergo a medical examination, by staying the proceedings in which the person is a party until the examination is held.
37. This was originally thought not to be an available approach. In Donnelly v Sallard (1936) 53 WN (NSW) 121, Bavin J held that the court had no power to stay proceedings until a party underwent the desired medical examination. The UK Court of Appeal came to the same conclusion in Pickett v Bristol Aeroplane Co Ltd (Unreported, UK Court of Appeal, Willmer and Donovan LJJ, 16 March 1961).
38. That position did not last long and in Edmeades v Thames Coal Board [1969] 2 QB 67, the Court held that it had power, when it was reasonable and just to do so, to grant a stay of proceedings where a party declined to be subject to a medical examination.
39. It is, however, worth noting what Widgery LJ said in that case, at 72:
I can see the objections that would be caused if it was sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused.
40. Nevertheless, as Scarman LJ pointed out in Starr v National Coal Board at 71, the court in undertaking the exercise has to balance two fundamental rights:
First, as mentioned in Pickett's case by Willmer and Donovan L.JJ. and by Sachs L.J. in Lane's case, 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 advisors 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 witness, if the case be one in which expert testimony is significant.
41. Since then it has been accepted that, in personal injury matters, a court may stay the proceedings where a plaintiff unreasonably refuses to undergo a medical examination sought by a defendant. See the discussion of the history of this jurisdiction by Blow J in Campbell v Biernacki (2009) 19 Tas R 345 at 351-2; [20]-[26].
42. This is an approach that has been adopted in this jurisdiction, first by Blackburn CJ in Neill v Commonwealth (Unreported, Australian Capital Territory Supreme Court, SC No. 209 of 1982, 9 September 1982) and later by Gray J in Lambert v ACT Nursing Services Pty Ltd [2007] ACTSC 86; (2007) 214 FLR 422 at 429-30; [26]- [30].
43. In this case there is no statutory power authorising this Court to order that Ms Wickes undergo a medical examination. Further, despite the fact that there are presently proceedings on foot, they are already stayed and the parties are proceeding to complete pre-action activities which, ordinarily, would be undertaken without any proceedings on foot.
44. With that background, I turn to consider the application of Ms Wickes.
45. The TPI Act has, in the pre-action provisions, set up a regime that seeks to achieve the objects of the Act by requiring those persons injured in motor vehicle collisions to undertake certain steps as a compulsory precondition to commencing proceedings.
46. This requires considerable disclosure and preparation so that, under s 136 of the TPI Act, a claimant must participate in a compulsory conference before he or she can commence court proceedings. Under s 139(3) each party represented by a lawyer must sign a certificate of readiness which states, interalia, that
(c) The party has obtained medical or other expert reports from each person the par proposes to call as an expert witness at the trial
47. Although, under s 137 of the TPI Act, a count may dispense with a compulsory conference, I have pointed out in Singh v Rodden (at [16]-[21]) that this should not be lightly done.
48. Because there are no proceedings on foot at the time that a compulsory conference is held, and so the court has not role in facilitating or supervising the preparation for it, the TPI Act has made some provisions for the obtaining of expert records. These provisions are to be found in part 4.5 of the Act. I set them out in full as they are essential to the question I have to decide in this case.
Part 4.5 Expert reports
117 Panel of recognised medical experts
(1) The CTP regulator -
(2) In deciding on the composition of the panel, the CTP regulator -
118 Parties may jointly arrange for expert report
(1) The parties for a motor accident claim may jointly arrange for an expert report about 1 or more of the following:
(2) A party is not under an obligation to agree to a proposal to obtain a report under this section.
(3) The person from whom an expert report is obtained must be a person, agreed to by the parties, with appropriate qualifications and experience in the subject area of the report.
(4) The person preparing the expert report must give the parties a copy of the report.
119 Cost of expert report obtained by agreement
(1) If an expert report is obtained by agreement between a respondent and a claimant and the claimant is liable for the cost of obtaining the report, the respondent must, at the claimant's request, reimburse the claimant for the reasonable cost of obtaining the report.
(2) However, a claimant's right to reimbursement under this section is subject to any agreement between the claimant and the respondent.
120 Examination by expert if no agreement
(1) This section applies if a respondent wants to obtain an expert report about 1 or more of the matters mentioned in section 118 (1) (Parties may jointly arrange for expert report) but fails to obtain the claimant's agreement.
(2) The claimant must comply with a request by the respondent to undergo, at the respondent's expense, either or both of the following:
(3) However, a claimant is not obliged to undergo an examination or assessment under this section if the examination or assessment is unreasonable or unnecessarily repetitious.
(4) If 3 doctors or experts with appropriate qualifications and experience in the relevant field are not available for inclusion on a panel under subsection (2), the number on the panel may be reduced to 2.
49. The evidence was that no panel of experts had been established under s 117 of the TPI Act since the section was enacted.
50. I also note that there appears to be a drafting error in s 118(1)(b) of the TPI Act. The words "motor accident" at the end of the paragraph do not make sense, for the paragraph is dealing with the cause (or probable cause) of the injured person's personal injury; the cause or probable cause of the motor accident has already been dealt with in paragraph 118(1)(a).
51. Indeed, it may be that the whole of the phrase "1 or more people (who may be named) are responsible for, or contributed to, the motor vehicle accident" should be replaced with something like "the motor accident caused or contributed to the injured person's personal injury".
52. I shall, in order that the paragraph makes sense, assume that it is drafted in that way for the purposes of the application. See Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 306 ALR 547 at 557; Burow v Hoyer (2015) 292 FLR 325 at 342; [103]-[104].
53. In order to prepare for the compulsory conference, it is clearly in Ms Wickes' interests that NRMA Insurance have the opportunity to have her medically examined and a medico-legal expert report, or, if required, other such relevant reports, be prepared so that it can progress the matter.
54. Ms Wickes, however, does not wish to be medically examined by the medical practitioners presently nominated by NRMA Insurance. She has not disclosed the reason for that view and I am not sure that it is relevant to know it.
55. Accordingly, Ms Wickes says that her refusal to agree to those medical examinations, from which NRMA wants to obtain medical reports, means that s 120 of the TPI Act has now been engaged and that she has invited NRMA Insurance to nominate three experts in each of the areas in which it wishes to have a report, the preparation of which requires her to be medically examined.
56. NRMA Insurance says s 120 of the TPI Act does not apply and that it is not required to nominate the three experts as proposed.
57. There has been no suggestion that NRMA Insurance does not wish to obtain an expert report or expert reports. If that had been the position, then a compulsory conference could be promptly held. The delay seems to be in the provision for NRMA Insurance of the relevant medical reports.
58. The submissions for Ms Wickes were relatively straightforward and simple. Mr R Crowe SC, who appeared with Mr D Crowe for Ms Wickes, submitted that the plain meaning of s 120 of the TPI Act meant that the conditions for its application had been made out:
• NRMA Insurance (the respondent) wants to obtain expert reports,
• Those reports, from medical practitioners, are about matters mentioned in s 118(1) of the TPI Act, namely the cause, or probable cause, of the personal injury suffered by Ms Wickes,
• Ms Wickes has not agreed to the obtaining of an expert report.
59. The submissions for NRMA Insurance were also relatively straightforward and simple. Mr K Rewell SC, who appeared for NRMA Insurance, submitted that s 120 of the TPI Act had to be read in its statutory context, where s 118 governed the succeeding sections of the Part. He submitted that the Part did not oust the "previous procedure of each party being able to nominate its own medical expert".
60. Section 118 of the TPI Act provides the mechanism for obtaining what has come to be known as a joint report (sometimes "a single expert report").
61. Section 119 of the TPI Act seems to be about the payment of the costs of a report obtained by an agreement. Although it does not expressly say so, it would not be unreasonable to suppose that it was intended to refer to the joint report obtained by agreement (s 118). The plain words, however, are not limited to that and it may be applicable for all reports obtained by agreement, but I do not have to decide that.
62. The submissions of NRMA Insurance then continued that the reference to where the respondent "fails to obtain agreement" in s 120 of the TPI Act refers also to and only to s 118 and the agreement referred to in that section. Section 120 makes provision for the position if there is no agreement for the obtaining of a joint report.
63. This was said to be in accord with the principles of statutory construction to which Mr Rewell SC helpfully drew my attention. Some of these principles were usefully collected by Garling J in Thiering v Daly [2011] NSWSC 1345 at [50].
64. Mr Rewell SC referred in particular to the following principles set out by his Honour:
(g) Legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears between provisions, it must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to achieve a result. This adjustment may require a Court to determine a hierarchy of provisions: Project Blue Sky at [70] per McHugh, Gummow, Kirby and Hayne JJ; Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440 per Gibbs J; Wilson at [13] per Allsop P;
(h) It is both permissible and appropriate to have regard to contextual material without a need for ambiguity to be established: Caterpillar of Australia Pty Ltd v Industrial Court of NSW [2009] NSWCA 83 at [86];
(i) The contextual material, to which reference may be made, includes the history of the particular enactment, and the state of the law when it was enacted, namely, the legal and historical context of the legislation. This may include an examination of reports of law reform bodies (or the like): Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341 per Mason ACJ, Wilson and Dawson JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Wilson at [12] per Allsop P;
(j) It is an established principle that a statute should not be presumed to abrogate existing fundamental or common law rights in the absence of clear language. The nature of the right being abrogated will determine whether the principle is strong or weak: Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36] per McHugh J; Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [19] per Gleeson CJ; Harrison at [209]-[221] per Basten JA, Spigelman CJ agreeing at [2].
65. Mr Rewell SC submitted that, applying the principle in paragraph (f) above, I should read the words "agree" and "agreement" as referring to the agreement required under s 118 of the TPI Act and limit it to that, giving it no wider or independent meaning.
66. Applying principle (g), he submitted that the Part had a "hierarchy" of provisions so that s 118 of the TPI Act controlled the meaning of the succeeding sections, re-enforcing the first point about the meaning of "agree" and "agreement".
67. In referring to the principles at (h) and (i), Mr Rewell SC asked me to consider the Explanatory Statement which commented on Part 3.5 of the Bill, which became Part 4.5 of the TPI Act, and clauses 110, 111 and 120 became respectively ss 118, 119 and 120. The portion of the statement to which he drew my attention was as follows:
Parties to a claim can jointly arrange for a report from the panel about the cause of the accident or injury (Clause 110), with the respondent reimbursing the claimant for costs of obtaining the report (Clause 111).
Clause 112 outlines procedures for a medical examination of the claimant if the claimant does not agree to a report under Clause 110(1).
68. At the same time, however, this brings into play the caution expressed in two earlier principles referred to by Garling J in Thiering v Daly at [50], namely:
(c) A statement of intention by a Minister in a Second Reading Speech will not prevail over the words of a statute: Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Harrison at [14] per Spigelman CJ, [162] per Mason P. Identification of the mischief to be addressed by the legislation, and the purpose to be served by the legislation, when contained in a Second Reading Speech are in a different context and realm to statements of the meaning of words, phrases or provisions in statutes: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424; Harrison at [162] per Mason P;
(d) Legislation must be constructed by reference to the language which Parliament has used in the enactment as distinct from what others, including Ministers, may wish or think that the Parliament intended: Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 499 [55]; Harrison at [159] per Mason P; Wilson at [12] per Allsop P;
69. Mr Rewell SC further submitted that I should note that the TPI Act makes no other provision for the claimant or respondent (as the parties are called prior to the commencement of legal proceedings, when they become plaintiff and defendant) about obtaining medical evidence, which, he submitted, suggested that Part 4.5 was not a code and did not oust any other, including prior, entitlement of a party to obtain such evidence.
70. The provisions of Part 4.5 of the TPI Act apply prior to the commencement of legal proceedings. At this stage, the provisions are only required to be followed by the claimant or respondent if the claimant intends, absent a satisfactory resolution to his or her claim, to commence legal proceedings.
71. These pre-action activities, intended to achieve the objectives of the TPI Act by speedy resolution of claims and thereby, also, to reduce the costs for insurers, created new activities to be undertaken and to be undertaken outside, and prior to, the conduct of legal proceedings.
72. The courts have emphasised, in cases such as Singh v Rodden and the cases referred to in that decision, the importance of these pre-action activities and, in particular, the compulsory conference (Part 4.7 of the TPI Act) and the mandatory final offers (Part 4.8 of the TPI Act), which are key components of the provisions designed to achieve the Act's objectives.
73. Clearly in order for a respondent to participate in the compulsory conference and to make a mandatory final offer, he, she or it will need information about the matters listed in s 118 of the TPI Act. Much of the material will be readily available through public sources: Road Transport Authority records, Police Reports and the like.
74. The medical condition of the claimant, including issues of causation of injury, prognosis and disability is not a matter that can be accessed through such or similar publicly available sources. Further, privacy and confidentiality obligations of medical practitioners form a further impenetrable impediment.
75. In litigation, this has now been overcome, partly by statutory provisions in some jurisdictions and by the common law in others. The purpose of the common law response, as noted in Starr v National Coal Board, is to preserve the integrity of the court processes and prevent abuse of its processes.
76. None of these matters, however, apply to the period prior to the commencement of legal proceedings. Here, the law is clear that there is no right for a court to interfere with the personal liberty and integrity of persons, including claimants.
77. It cannot be said that the integrity of legal proceedings is compromised by a claimant's refusal to undergo a medical examination at the request of a respondent prior to the commencement of any legal proceedings, which, indeed, may never be commenced.
78. Nevertheless, the legislature has made provision to support the need of a respondent to attain information about the medical condition of a claimant prior to the commencement of legal proceedings; this is a purpose of Part 4.5 of the TPI Act.
79. While I have referred to the needs of the respondent, the needs of the claimant cannot be ignored either. Clearly a claimant will be seeking compensation for the damage or the injury said to have been negligently caused to him or her. In order to avoid the expenses and stresses of litigation, the holding of a compulsory conference and the making of mandatory final offers has a significant benefit.
80. Unlike the position after the commencement of legal proceedings, however, there is no arbiter or referee to assess whether any requests for evidence or investigation by a respondent of a claimant's claims is reasonable or permissible. The legislation has to make provision in itself for such safeguards to respect the fundamental right to liberty and integrity of the claimant, while ensuring that a respondent can fully and productively be able to participate in the processes.
81. The TPI Act has, it seems to me, expressed some preference for the preparation of a joint report for these purposes, hence placing s 118 nearly at the beginning of the Part. I do not consider, however, that it controls, or is the only mechanism which is provided for, the obtaining of medical evidence for the purpose of the pre-action activities.
82. Reading ss 119 and 120 of the TPI Act in the circumstances for which they appear to be intended and the plain meaning of the words, I cannot see that they should be confined to the situation where a proposal has been made to obtain a joint report.
83. Outside the arrangements for a joint medical report, a respondent needs no statutory permission to request that a claimant undergo a medical examination nor for the claimant to agree. It may have been appropriate, however, for provision to be made about costs, as in s 119 of the TPI Act, in the circumstances, so that the interests of the claimant in having the evidence obtained do not translate into the claimant being unprotected for costs of that evidence. After all, the claimant can obtain his or her own reports without the need for any agreement; it is only for the respondent's reports that agreement is required. I have, however, not heard full argument on the meaning of s 119 so my view is a provisional view at this stage.
84. So far as s 120 of the TPI Act is concerned, I see no reason in the plain words of the section to limit it to the position where a proposal has been made by the respondent for the preparation of a joint report under s 118 and the claimant has declined.
85. It is clear to me that the section stands as an independent provision, not limited to the refusal of a claimant to agree to a proposal for a preparation of joint report. I have come to this conclusion for the following reasons.
1. The language of the sections leads me to that conclusion. The use of the terms "about one or more of the matters mentioned in section 118(1)" seems to me more consistent with this interpretation. If it had been intended to limit the reach of the section to the situation where the respondent proposed preparation of a joint report, it would have been drafted to provide instead of the quoted words the following: "under s 118 (1)". The terminology used is more closely referable to the incorporation by reference of the extended description of the subject matter for reports than to the nature of the report as a joint report.
2. The structure of s 120 of the TPI Act does not assist the interpretation suggested by NRMA Insurance. There is no suggestion in the section as to how the report from the medical examination is to be used. If, as submitted, this relies simply on s 118, then one would have thought that s 120 would provide, for example, that the report would be dealt with in accordance with s 118 and a copy be required to be provided to the claimant as well as to the respondent.
3. The limitation of s 120 of the TPI Act to the circumstances where a proposal for preparation of a joint report has been rejected by the claimant would leave the respondent with no recourse as to how to obtain medical evidence. There is no other provision in the TPI Act which permits it and I consider that the common law provides no remedy. The terms of the section are a reasonable balance for the imposition of the undergoing of a medical examination where the claimant does not otherwise agree.
4. There are two agreements required in s 118 of the TPI Act: to the proposal of a joint report (s 118(1)) and to the identity of the experts (s 118(3)). The interpretation of s 120 propounded by NRMA Insurance would suggest that, if the proposal for preparation of a joint report was agreed but the identity of the experts was not agreed, the respondent could, by nominating 3 experts, require the claimant to treat the resulting report as a joint report even if the claimant was not willing to accept the expertise of any of the three nominated experts. While it is a fair balance to give a claimant a choice between experts to whom he or she must submit for a medical examination, it goes too far to suggest that the claimant must then accept the report of that expert as a joint report.
5. If s 120 of the TPI Act does not provide a respondent with a means of obtaining a desired medical report in the face of a refusal by the claimant, the respondent would not be relieved of the duty to participate in a compulsory conference or to make a mandatory final offer. It is difficult to see why these obligations would be imposed on a respondent without some means of obtaining the necessary evidence from which it could make a meaningful mandatory final offer and participate meaningfully in a compulsory conference. No explanation for that lacuna was offered.
6. The gap that the NRMA Insurance's construction of s 120 of the TPI Act leaves would undermine the pre-action provisions, for the absence of some obligations on a claimant to undergo a medical examination is likely to render the compulsory conference and the mandatory final offers a hollow exercise, leading, most likely, to litigation because the respondent has not been able to prepare meaningfully for the dialogue required to attempt a resolution of the claim without recourse to litigation.
7. Allied to this is the submission by NRMA Insurance that, if "no agreement can be reached [under s 118 of the TPI Act] then obviously there has to be an alternative and the alternative is in s 120". It is not clear why there has to be an alternative as submitted after the submission of NRMA Insurance leaves a gap to the effect that, where no proposal is made for a joint report, there is no mechanism at all for a respondent to obtain a medical report before proceedings are commenced, except by consent of the claimant. There is no "previous procedure" in relation to pre-action acquisition of medical evidence, such that s 118 is merely providing an alternative to the "historically recognised opportunity" of obtaining such evidence for there is, pre-action, no such opportunity. Indeed, the NRMA Insurance submission leaves a gap for the obtaining of medical evidence. What the submission does is lead to an interpretation which raises more questions than it answers (as noted in 2 and 4 above) but without providing a respondent with the means of properly preparing for the compulsory conference or the making of a mandatory final offer.
8. Further, the interpretation proposed by NRMA Insurance permits a respondent to avoid s 118 of the TPI Act all together. If, as submitted, s 120 only applies when a claimant declines or refuses to agree to preparation of a joint report, the respondent can avoid the option given in s 120 by simply not making the proposal for a joint report. Even if the claimant makes the proposal, the refusal by the respondent will not bring s 120 into play for that is limited to where the claimant's agreement has not been obtained. The NRMA Insurance's interpretation, however, depends upon there being an alternative to Part 4.5 for the respondent to obtain medical evidence without consent. For the reasons earlier discussed, there is no such alternative at the relevant time, namely pre-action.
9. While the Explanatory Statement is said to support the construction contended for by the NRMA Insurance, that has to be approached with caution. In the first place, I do not read it in that way. The passage referring to clause 112 (later s 120 of the TPI Act) can be read as meaning simply that if there is no joint report, then the procedures apply: "does not agree" can include "has not been asked to and so did not agree". In any event, this would not be the first time that an Explanatory Statement was inconsistent with the actual words of a statute. See Burow v Hoyer. Further, the statement is clearly inconsistent in other respects with the provisions of the TPI Act. For example, the statement refers to the selection under clause 110 (which became s 118) of experts from the panel established under s 117. That has not been translated into the section 118, which does not so limit the selection of the expert. Secondly, the description in the statement of the effect of the clause 111 (which became s 119) is also inaccurate, for it does not, as the section does, allow for an agreement to the contrary.
10. Finally, contrary to the submissions of NRMA Insurance, there was, for the pre-action period, no "previous procedure". Of course, at common law, absent the TPI Act, in the pre-action period an insurer could seek to have a prospective plaintiff examined by its own medical expert, but that was wholly dependent upon the voluntary consent of the prospective plaintiff and entirely unregulated by statute or court procedures. Part 4.5 of the TPI Act in the interpretation promoted by Ms Wickes responds to this matter.
86. I find that s 120 of the TPI Act is not limited to the situation where a claimant has refused or failed to agree to a proposal under s 118 for the preparation of a joint report or, having agreed to preparation of such a report, has refused or failed to agree to any expert nominated to prepare such a report.
87. In my view, the section is applicable where, before proceedings are commenced in a court, the respondent to a claim under the TPI Act wishes to have the claimant medically examined and the claimant declines to be examined.
88. I also hold that, where proceedings have been commenced but stayed because the pre-action activities required to be undertaken have not been completed, s 120 of the TPI Act also applies in its terms.
89. In this case, NRMA Insurance has, by its request of 11 December 2013, shown that it "wants to obtain an expert report" and that the response by the claimant of 16 December 2013 amounted to the respondent failing "to obtain the claimant's agreement". As a result, s 120 of the TPI Act applies.
90. That, however, does not mean that NRMA Insurance is bound to nominate three experts. If, however, it does not, it is not entitled to require the claimant to be medically examined.
91. Nevertheless, it remains bound to attend a compulsory conference and to participate in it in a good faith. It also remains bound to make a mandatory final offer and to make it in good faith.
92. As a result, it does not seem to me that I should make the order sought by Ms Wickes unless, having regard to my reasons, NRMA Insurance consents. I should, however, instead make a declaration in the following terms;
In the circumstances, if the defendants wish to have an expert medical report prepared concerning the complainant and the claim of 14 January 2011, they must nominate three orthopaedic surgeons and three psychiatrists under s 120 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) and the plaintiff must undergo a medical examination by one of these nominated orthopaedic surgeons and one of the nominated psychiatrists.
93. While Ms Wickes has not secured the precise orders she has sought, I consider that she should have her costs.
94. I will, however, hear the parties on the orders to be made.
I certify that the preceding ninety-four [94] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Wickes
Al-Mofathel & Anor [2015] ACTSC 266
(2015) 292 FLR 325
(2009) 19 Tas R 345
(2013) 45 WAR 546
(2015) 70 MVR 139
(2007) 214 FLR 422
(2010) 4 ACTLR 224
(2014) 306 ALR 547
(1979) 141 CLR 432
(1983) 152 CLR 328
(1997) 187 CLR 384
(2003) 214 CLR 269
(2004) 221 CLR 309
(1987) 162 CLR 514
(1987) 11 NSWLR 404
(1904) 1 CLR 429
(2003) 211 CLR 476