Pitfalls in applications for independent medical examinations

Kerkow v BCP Holdings P/L [2010] QDC 209


The defendant sought independent medical examinations after initially not requiring them before the compulsory conference. The defendant’s position was compounded by the failure to lead evidence as to the need for the examinations:

Andrews DCJ ( ex tempore):

It has been submitted for the defendant that the cases of Starr v. National Coal Board [1997] 1 All ER referred to in a judgment of Mackenzie J in Timmins, and the case of Gray v. Hopcraft [2000] QCA 144, in particular from the judgment of Ambrose J, would show me that a defendant has a right to select medical witnesses of its choice. As a general proposition, even the plaintiff did not argue against that, and that seems to be an orthodox submission. The issue for me, however, is whether it is now unreasonable or unnecessarily repetitious. I need confine myself only to the first, which is whether it is unreasonable for the plaintiff now to be examined by an expert of the defendant’s choice. I take into account that the defendant elected at an early time, that is, by 28 July 2008, not to have the plaintiff examined.

Defendant’s counsel helpfully referred me to Luck v. Lusty, a decision of Byrne J, where, on the facts of that case, as were explained to me by counsel for the defendant, a defendant’s solicitor initially did not take the opportunity to have a plaintiff examined, explaining that he thought the matter would settle and that it was appropriate to save the expense of an unnecessary medical examination. There is no evidence as to the thought processes of Alliance at the time of the compulsory conference. It should be noted that the defendant’s solicitors were not acting for Alliance at the time.

It was submitted that in Luck v. Lusty the solicitor later repented. I have not been told of what evidence there was before his Honour in Luck v. Lusty about the matters that the defendant or the solicitor in that case wanted an orthopaedic specialist to consider. In the matter before me of Kerkow, there is no evidence as to why the defendant, or its solicitors, want the plaintiff examined by the three doctors in question. There is no evidence that they have considered the benefit of having their questions posed to either Dr Ross or Dr Van Der Walt.

If I did not already advert to it I should have, that one of the bases which I find relevant in this case is that there is no explanation from the defendant as to why it would not be satisfied by directing the relevant questions which seem to me to be, I accept, reasonable questions to put to an orthopaedic specialist, why it has not sought to put those questions to Drs Ross and Van Der Walt. Had it done so and received replies which it had then considered, and had it then formed a view that it might have wanted further examinations, it would have been an entirely different hypothesis upon which to bring an application. It has done none of those things. For that reason, I refuse the defendant’s application.

Brisbane Barrister – David Cormack

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