Daly v Dransfield and Grice

[2005] TASSC 43

[2005] TASSC 43

CITATION:              Daly v Dransfield and Grice [2005] TASSC 43

PARTIES:  DALY, Fiona Bernadette
  v
  DRANSFIELD, Scott Wayne

GRICE, Shane Gerard

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  612/2003
DELIVERED ON:  27 May 2005
DELIVERED AT:  Hobart
HEARING DATE:  23 May 2005
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Jurisdiction and generally – Inherent jurisdiction – Stay of proceedings – When granted – To prevent an injustice.

Ferris v Lambton (1905) 22 WN (NSW) 56; Edmeades v Thames Board Mills, Ltd [1969] 2 All ER 127, followed.
Evers v Firth (1986) 10 NSWLR 22; Parker v Parker [1973] Tas SR (NC 6) 107; Stace v Commonwealth (1989) 51 SASR 391, referred to.
Aust Dig Procedure [265]

REPRESENTATION:

Counsel:
             Plaintiff:  P Barker
             Defendants:  C H Hobbs
Solicitors:
             Plaintiff:  PWB Lawyers
             Defendants:  C H Hobbs

Judgment  Number:  [2005] TASSC 43
Number of paragraphs:  18

Serial No 43/2005
File No 612/2003

FIONA BERNADETTE DALY v SCOTT WAYNE DRANSFIELD
AND SHANE GERARD GRICE

REASONS FOR JUDGMENT  UNDERWOOD CJ

27 May 2005

Introduction

1. On the afternoon of 29 March 2002, the plaintiff was a pillion passenger on a motor cycle driven by the first defendant.  It was involved in a collision with a vehicle driven by the second defendant.  The collision occurred when the first defendant commenced to overtake the second defendant's vehicle and, at the same time, the second defendant turned right to go into a private driveway.  Both the plaintiff and the first defendant came off the motor cycle, which was probably travelling at about 80 kilometres per hour at the time of its collision with the rear of the second defendant's vehicle. 

1. The plaintiff was wearing a helmet at the time of the accident, but it must have somehow come off in the accident, because it was found afterwards on the ground close by her unconscious body. 

1. The defendants have admitted liability.  The only issue on the pleadings is contributory negligence.  The pleaded particulars are:

"(a)The plaintiff failed to wear an appropriate safety helmet of secure fitting; and/or

(b)The plaintiff failed to adjust the fitting of safety helmet [sic] worn to ensure same did not become dislodged."

1. Mr Hobbs, the solicitor for the defendants, wants to conduct some tests to find out why the plaintiff's helmet came off.  The plaintiff has refused to undergo these tests.  The defendants now seek an order that the plaintiff's action be stayed until she submits to these tests.

The tests

1. The helmet that the plaintiff was wearing has been preserved.  It complies with Australian standards and does not appear to have been damaged in the accident.  The strap is in good condition.  The plaintiff agreed to let Mr Hobbs send the helmet to Sydney for examination by Mr Gibson, an engineer specialising in "human impact engineering".  Mr Gibson's opinion is that, assuming the plaintiff was wearing the helmet at the time of the impact (other evidence makes this a probability), it came off during the crash either because the chin strap was not done up properly or because it was a poor fit on the plaintiff's head.

1. According to the more than voluminous material annexed to Mr Hobbs' affidavit, much of it hearsay upon hearsay, the plaintiff has no memory of the events immediately preceding the accident.  However, according to a statement she made to a loss assessor, the helmet fitted her very well, she had had it for about six years and she knew how to fasten the chin strap properly.

1. The defendants want Mr Gibson to come to Hobart and see the plaintiff in the presence Dr Liddell, of one of her treating doctors.  The proposed tests are described in a letter from Mr Gibson to Mr Hobbs and dated 16 August 2004 in these terms:

"The helmet was found several metres from Fiona Daly at the accident scene.  There are three possible reasons for this:

1It was not on her head before the crash

2It came off during the crash because it was not properly fastened, that is, the chin strap was undone or loose; or,

3It came off during the crash because of poor fit, due to being the wrong size or of poor design.

The fit trial is aimed at assessing which of the second and third items above was most likely, that is, whether the helmet came off the head of Ms Daly as a result of not being fastened or due to poor fit or design.  To address this issue the entire fitting tests can be carried out by Mr Liddell with me present observing.  The steps in the fitting are:

1The helmet is put on by the subject and checked for being of appropriate size.  This requires gentle pressure to the front, back and sides to see how tight the fit of the helmet was on the head of Ms Daly.

2Ms Daly then fastens the restraint system of the helmet loosely and the possibility of inertia rolloff is checked (by Mr Liddell).  This is checked by seeing if it is possible to gently roll the helmet forward until the chin strap restricts further movement.

3Finally, the helmet is tightened as for normal use and again the possibility of rolloff is gently checked.

The procedure, including photographs, will take less than an hour."

The plaintiff's objection

1. The plaintiff suffered very extensive injuries in the accident.  They included fractures to her face and arm and a "degloving" injury under her chin in respect of which the medical opinion is that it was caused by the helmet strap as the helmet came off her head in the accident.  The plaintiff also suffered a very severe neck injury involving posterior cervical ligamentous instability that required surgical intervention.  Further, as a result of the accident and the injuries, the plaintiff suffers from an adjustment disorder with depressive symptoms.  Even if no force at all is used by Dr Liddell to carry out Mr Gibson's test, putting on the helmet she was wearing at the time of the accident will cause her emotional stress.  Her treating psychiatrist considers that this emotional stress will cause a substantial setback to the plaintiff's healing process. 

Jurisdiction

1. Mr Hobbs submitted that the Court has an inherent jurisdiction to make the order sought.  Mr Barker, who appeared for the plaintiff, did not contend to the contrary.  Mr Hobbs referred to Edmeades v Thames Board Mills, Ltd [1969] 2 All ER 127. In that case, a worker sued his employer for injuries sustained at work. The statement of claim listed the plaintiff's injuries but did not mention arthritis. Medical reports were exchanged and the issue of arthritis was raised. The defendant asked the plaintiff to submit to an examination by one of six nominated doctors. He refused. A stay of proceedings was sought. The rules of court did not provide for compulsory medical examination. Denning LJ said, at 129:

"I do not think legislation is necessary.  This court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do.  It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause.  The question in this case is simply whether the request was reasonable or not."

1. Mr Hobbs submitted that in this case I should grant a stay provided the defendants' request was reasonable.  However, I do not think that is the only question.  A plaintiff is not obliged to comply with every reasonable request made by a defendant.  The obligation, on pain of having the proceedings stayed, is not to refuse a reasonable request if to do so will "prevent a just determination of the cause". 

1. In addition to an inherent jurisdiction to stay or dismiss proceedings to prevent an abuse of process (Metropolitan Bank v Pooley (1885) 10 App Cas 10; Dey v Victorian Railway Commissioners (1948) 78 CLR 62), the Court has a power to prevent an injustice being done. See Ferris v Lambton (1905) 22 WN (NSW) 56. Needless to say, the circumstances in which the Court will invoke its inherent power to stay proceedings to prevent an injustice being done are endlessly varied. In Evers v Firth (1986) 10 NSWLR 22, the court held that it could exercise the power to stay proceedings brought in New South Wales because the "lethargy" of the plaintiff's solicitors prevented them being brought in another jurisdiction, if not to do so would be unconscionable and unjust. In Kimberley Mineral Holdings Ltd (In Liq) v McEwan [1980] 1 NSWLR 210, the court exercised its inherent power and imposed conditions upon an order for discovery, including the giving of certain undertakings by those inspecting the discovered documents. In Parker v Parker [1973] Tas SR (NC 6) 107, a stay of proceedings was ordered to preserve property.  In Weedon v Green [1978] Tas SR 117, Neasey J referred to Edmeades v Thames Board Mills, Ltd (supra) and the inherent power to stay proceedings when discussing the Tasmanian statutory provisions concerning compulsory submission to medical examinations. Absent such statutory provisions, Neasey J noted at 119:

"... it has been held that the court has inherent jurisdiction to make such an order staying proceedings, and it has been further held consistently in those cases that fairness between the parties requires that if such an order staying proceedings until the plaintiff submits himself to medical examination by the defendant's doctors is made, it should be upon condition that when the examination is made a copy of the relevant reports should be supplied to the plaintiff."

1. I was referred to Prescott v Bulldog Tools Ltd [1981] 3 All ER 869. In this case a stay of proceedings was sought in a personal injury action because the plaintiff refused to undergo some extensive and invasive medical tests. Webster J referred to Starr v National Coal Board [1977] 1 All ER 243 and said, at 874:

"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.

… that seems to be that where the defendant's request for an examination is reasonable the court can grant a stay if the plaintiff's refusal of that request would be such as to prevent the just determination of the cause, and that the court will normally treat the fact that the defendant would be deprived of the expert of his choice as something which would prevent the just determination of the cause within the meaning of that expression as the Court of Appeal used it."

1. Prescott was referred to with approval in Stace v Commonwealth (1989) 51 SASR 391, where the majority adopted the criteria set out in Prescott for determining whether a refusal to undergo a medical examination and test was reasonable. 

1. However, it must not be overlooked that in Stace the application for a stay of proceedings was made pursuant to a rule of court that provided if a party refused to undergo a medical examination, the court may order a stay of proceedings.  In the present matter, there is no refusal to undergo a medical examination.  There is a refusal to undergo a test prior to trial which, it is said, may provide the defendants with evidence to make out their claim that the plaintiff failed to take reasonable care for her own safety.  Even if the request is a reasonable one as judged by the criteria in Prescott and Stace, there will be no order for a stay unless the defendants show that a refusal to undergo the test will prevent a just determination of the issue of contributory negligence.

Should a stay be granted?

1. The reason for seeking the test is described by Mr Gibson in the concluding paragraph of his report dated 2 May 2005:

"In conclusion, based on the injuries, the loss of the helmet, the lack of damage to the helmet and the circumstances of the accident, it is my opinion that either the helmet chinstrap was incorrectly fastened or due to the design of the helmet it was of poor fit to the head of Ms Daly.  As a result the helmet came off the head of Ms Daly during the impact with the rear of the utility.  As a result she suffered injuries to the unprotected head and face when she was thrown to the ground.  The fitting of the helmet to the head of Ms Daly would help to define whether the chinstrap was improperly fastened or helmet [sic] was of poor fit."

1. I accept Mr Barker's submission that the proposed tests are "forensically irrelevant".  Mr Hobbs has in his possession expert opinion evidence that can be led at trial to sustain both particulars of contributory negligence pleaded against the plaintiff.  At best, the tests can establish no more than which of the two pleaded events was the most likely occurrence on the day of the accident.  The medical evidence is that it is likely the plaintiff's facial injuries would not have been so extensive had the helmet not come off, but there is no suggestion that one of the two pleaded events would have been likely to have caused more of the facial injuries sustained than the other.  Further, on the material before me, there is no expert opinion to counter that expressed by Mr Gibson.

1. Even if I am wrong about that, I would not exercise my discretion to stay the proceedings until the plaintiff submitted to the proposed tests. 

·   I have grave doubts about the utility of these tests.  They will not establish whether the strap was properly done up or not.  Trying to roll the helmet off the plaintiff's head with the strap done up, but in a way not to cause her discomfort, is likely to be of marginal usefulness, especially as there will be no objective measurement of the degree of force applied by Dr Liddell.

·   Refusal to undergo the test will not result in a denial of a just determination of the issue of contributory negligence.  In addition to the expert opinion evidence in the possession of the defendants, the plaintiff can be asked in cross-examination to put the helmet on when she is in Court and the defendants can seek the leave of the Court to conduct the tests that they want to conduct outside the Court.

·   In the light of the foregoing, it would not be a proper exercise of the discretion to stay the proceedings unless the plaintiff underwent tests that the evidence establishes may well cause her substantial psychological harm.

1. The application for a stay of proceedings is dismissed.