Brewster v El-Sayed

District Court

New South Wales

Medium Neutral Citation:

Brewster v El-Sayed [2013] NSWDC 271

Hearing dates:

16 August 2013

Decision date:

16 August 2013

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1) Defendant's notice of motion (filed 29 July 2013) dismissed.

(2) Defendant pay the plaintiff's costs of the motion.

Catchwords:

PROCEDURE - application for further medical examinations - medical examinations - whether reasonable - repetitious or dangerous - cause stress and distress that could not be remedied

Legislation Cited:

Motor Accidents Compensation Act 1999, s 86
Uniform Civil Procedure Rules 2005, r 23.4, r 23.7

Cases Cited:

Angliss v Urquhart [2001] NSWCA 441
Boral Transport Pty Ltd v Gulic [2013] NSWCA 150
Rowlands v State of New South Wales [2009] NSWCA 136

Texts Cited:

Ritchie's Uniform Civil Procedure NSW

Category:

Interlocutory applications

Parties:

Jessica Scot Brewster (plaintiff)
Ahmed El Sayed (defendant)

Representation:

Mr S Dixon (plaintiff)
Mr S Selvakvmaran (defendant)
McCulloch & Buggy Lawyers (plaintiff)
Moray & Agnew (defendant)

File Number(s):

2012/179345

Publication restriction:

No

ex tempore Judgment

1. On 23 September 2009 Jessica Brewster was struck by a motor vehicle as she crossed Parramatta Road at Annandale. Her injuries were significant, and included "serious traumatic head and brain injuries as well as multiple fractures." Proceedings for damages were commenced in 2012.

1. Ms Brewster has attended seven medical appointments for the defendant insurer: Dr Chen on 23 January 2012, Dr Giles on 6 August 2012, Dr Smith on 7 August 2012, Professor Mattick on 21 December 2012, Professor Fearnside on 19 October 2012, and Dr Wilding on 6 August 2012 and 17 April 2013. Ms Brewster gave evidence by affidavit that attending each of these appointments caused her "great distress and trauma". They cause her to feel severely fatigued, suffer headaches and leave her depressed and prone to emotional outbursts. She often starts crying in appointments. This condition persists for two weeks or more, months in the case of neurological testing. Ms Brewster was not cross-examined either by leave or otherwise, so that this evidence was not challenged.

1. The defendant requested Ms Brewster attend a further six medical appointments in August 2013 with Dr Sekel, Amanda McLaughlin, Dr Smith, Professor Mattick, Dr Granot and Dr Shnier. Ms Brewster agreed to attend appointments with Ms McLaughlin and Dr Shnier, because she had not previously been examined by persons in the areas of expertise possessed by Ms McLaughlin and Dr Shnier, but she resisted attending the other four appointments.

1. This application is made pursuant to Uniform Civil Procedure Rules 2005 r 23.4, which provides that:

"23.4 Order for examination

(cf SCR Part 25, rule 5; DCR Part 23, rule 5; LCR Part 20, rule 5)

(1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.

(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all…