Gauci v Roo

[2024] NSWDC 361

District Court

New South Wales

Medium Neutral Citation:

Gauci v Roo [2024] NSWDC 361

Hearing dates:

9 August 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Jurisdiction:

Civil

Before:

Catsanos SC DCJ

Decision:

(1)   Dismiss the defendant’s notice of motion filed on 17 January 2024.

(2)   The defendant is to pay the plaintiff’s costs on the notice of motion.

Catchwords:

CIVIL PROCEDURE – Interlocutory application – Medical examination – Pt 23 r 23.4 Uniform Civil Procedure Rules 2005 (NSW) – Motor vehicle accident – Defendant seeking order for plaintiff to submit to CT scan - Whether request is reasonable in the circumstances – motion dismissed

Legislation Cited:

Motor Accident Injuries Act 2017 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Aspinall v Sterling Mansell Ltd [1981] All ER 866

Corke v Shopping Centres Australasia Property Group Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019

Dikschei v Epworth Foundation & Anor [2010] VSC 435

Plaintiff [name withheld] v Stapleton [2017] NSWSC 914

Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715

Category:

Principal judgment

Parties:

Andre Gauci (plaintiff/respondent)

Eun Jung Roo (defendant/applicant)

Representation:

Counsel:
E Welsh and W Lidden (plaintiff/respondent)
M Nesbeth (defendant/applicant)

Solicitors:
Boyd House & Partners (plaintiff/respondent)
Sparke Helmore Lawyers (defendant/applicant)

File Number(s):

2021/00129791

JUDGMENT

Relief claimed

1. By notice of motion filed on 17 January 2024, the defendant seeks orders, pursuant to Pt 23 r 23.4 of the Uniform Civil Procedure Rules 2005, compelling the plaintiff to submit to a CT scan of the right femur.

2. That notice of motion also seeks a stay of proceedings pending the CT scan being undertaken. However, at the hearing before me the defendant did not press for that order on the basis that, if successful on the primary application, further orders could be sought in the event of non-compliance.

Background to the Application

3. The plaintiff, who was born in April 2004, was injured on 27 August 2018 when the push bike he was riding collided with a motor vehicle driven by the defendant.

4. Amongst the injuries suffered by the plaintiff in the accident was a fracture of the right femur, which was treated by intramedullary nailing. That hardware was subsequently removed on 15 April 2019.

5. In these proceedings the plaintiff seeks damages for non-economic loss and economic loss, pursuant to the Motor Accident Injuries Act 2017 (NSW) (‘MAI Act’).

6. In order to recover damages for non-economic loss the plaintiff must establish a degree of permanent impairment greater than 10%.

7. The plaintiff has been the subject of medico-legal assessment by Dr Gehr in his case and by Dr Machart in the defendant’s case.

8. In the context of assessing non-economic loss, but also relevant to the assessment of the nature and extent of the plaintiff’s injuries more generally, a relevant consideration is whether, and if so to what extent, the plaintiff has suffered malrotation of the right femur.

9. On 11 November 2020, the plaintiff was examined by Dr Gehr, who, amongst other things, found approximately 10 degrees of malrotation of the right femur based on clinical examination. This, Dr Gehr concluded, resulted in 10% whole person impairment (‘WPI’), which when added to other effects of the plaintiff’s injuries gave rise to a total WPI of 19%.

10. On 28 January 2021, Dr Machart examined the plaintiff on behalf of the defendant. He found 20 degrees of internal malrotation. This contributed to an assessment by Dr Machart of 22% WPI.

11. In expressing his opinion, in his report dated 29 January 2021, Dr Machart said:

“This assessment is based primarily on observation of malrotation. There are features on clinical examination which indicates malrotation of 20°. These are not confirmed when observed standing or walking. There is limitation on accurate determination of rotation on clinical examination. This is the main issue in determining WPI. It may be worth obtaining accurate assessment. This can be achieved CT scanograms designed to assess malrotation due to femoral fracture. This is a specific investigations (sic) which is useful and determines exactly the amount of malrotation.”

12. On 28 June 2021, the plaintiff underwent a CT scan of the right femur performed by Dr Cho. The purpose of this was to review the fracture and assess alignment. Dr Cho’s report indicates that no malalignment was found.

13. In a report dated 15 July 2021, Dr Gehr referred to the CT scan of 28 June 2021 and observed that it reported no malrotation. Nonetheless, Dr Gehr expressed the opinion that malrotation is very difficult to assess and there is always room for argument. He took the view that measuring malrotation is based on clinical measurement rather than radiological assessment. Dr Gehr made no change to his earlier assessment.

14. In a report dated 25 October 2021, Dr Machart agreed with Dr Gehr that the precise definition of rotation can be difficult clinically. He took the view that a CT scan is the more precise way of assessing rotation, however, he considered the CT scan of 28 June 2021 did not assist, as it did not assess rotational alignment. Dr Machart suggested the request for a CT scan be resubmitted to the radiologist with the radiologist specifically asked to look at potential malrotation from the fracture.

15. The plaintiff presented himself for CT scan assessment on 15 December 2021. Importantly, Dr Steinberg, the radiologist who was to perform the scan, reported as follows:

“FINDINGS

Mr Gauci presented today for further assessment of his previously treated fractured right femur. This was to look for malrotation. I am uncertain as to what is required and given his age and the potential for excessive radiation from unnecessary CT, orthopaedic opinion is suggested prior to any further imaging. MRI probably more appropriate in this instance.”

16. By letter dated 22 December 2021, the plaintiff’s solicitors served Dr Steinberg’s report stating, “We note the doctor states Andre should not have any further exposure to radiation.”

17. In a report dated 3 March 2022, Dr Machart said:

“Measuring rotation of femora is a common orthopaedic and radiological procedure. I can understand the anxiety of radiation doses for non-therapeutic purposes. Here is what I suggest:

- CT both femurs for assessment of rotational malalignment, a simple request that a radiologist should be familiar with.

- Or: Re-examination of direct clinical measurements.

- Or: Acceptance of measurements already conducted……

Reassessments for consistency of angles may be the simplest way forwards. Clinical examination is in line with AMA. I ask for better accuracy using CT because my clinical figures are not matched by Dr Gehr’s figures.”

18. In a letter dated 21 November 2022, the plaintiff’s solicitors wrote to the defendant’s solicitors again serving Dr Steinberg’s report dated 15 December 2021 and adding:

“Please note our client’s medical professionals have advised him not to undertake any further CT scans due to the amount of radiation he has been exposed to.”

19. Apart from the evidence of Dr Gehr and Dr Steinberg, no other medical opinions were relied upon by the plaintiff on this application.

20. On 23 March 2023, the plaintiff was examined by Dr Gorman, an independent medical assessor, commissioned to assess permanent impairment pursuant to s 7.23(1) MAI Act, given the dispute between the parties on that issue.

21. Relevantly, Dr Gorman said there was no evidence of malrotation when the plaintiff was standing and lying at rest. However, he was unable to assess malrotation clinically because of symptoms consistent with trochanteric bursitis that had developed over the preceding year which caused changes in right hip movement. He was led to conclude:

“Malrotation, as Dr Machart states, is best assessed by CT scanning and this needs to be performed to complete the assessment.

The CT scan procedure to assess the degree of malrotation is well documented and relatively simple. It is done by CT scan, not MRI. The radiologist report outlined above from the 15 December 2022 (sic, 2021) refused to perform the procedure because of excess radiation.

The CT scan would be of benefit to Mr Gauci as any malrotation may help explain his development of right hip pain and thereby direct treatment. As well, it is necessary medico-legally for the assessment of any impairment. I believe that there are sufficient reasons for the scan to be performed despite the addition (sic) radiation.”

22. Dr Gorman assessed 1% WPI, observing that malrotation of the femur was not assessable at that stage.

23. Dr Gehr re-examined the plaintiff on 17 October 2023. On this occasion, as detailed in his report of that date, Dr Gehr found 10-15 degrees of malrotation.

24. On the issues relevant to this application, Dr Gehr said:

“You have stated that his general practitioner has advised him not to undergo any further CT scans or x-rays due to overexposure to radiation. I would generally agree with this.”

25. Dr Gehr assessed WPI at 25%. Again, I observe that no evidence from a general practitioner is relied upon by the plaintiff in this application.

26. In a report dated 21 February 2024, Dr Machart expressed the following opinion:

“Single-cut CT scans which are used for assessment of rotation using what is known as “Perth protocol” cause minimal radiation. This is not adverse to claimant’s health.”

27. Dr Machart, having earlier disavowed MRI scans as an appropriate method of assessing malrotation, appears to have modified his position in the report dated 21 February 2024, indicating he was unable to say whether MRI scanning could achieve the same results as CT scanning and concluding that this was a question to be posed to a radiologist.

28. The final piece of evidence bearing on the issues at hand is a report of Dr Gehr dated 29 June 2024. The doctor observed that he has no experience in the use of the Perth protocol for CT assessment but said, “I can inform you that in general CT scanning of any part of the body does involve a lot of radiation.”

29. Dr Gehr then referred to a search he had done using AI, Chat-GPT, where he found certain levels of radiation associated with the Perth protocol for assessing malrotation. Dr Gehr indicated that the radiation levels associated with both legs being scanned pursuant to the Perth protocol would be low however they would be three to five times more radiation than a chest x-ray or a plain x-ray of the leg. Again, apparently not speaking from a position of authority, Dr Gehr said he would expect the CT scanning to involve a chance of radiation to the genitalia area. The doctor ultimately concluded that CT scanning was not reasonable and necessary, reiterating his previously stated opinion that careful clinical examination was the best means of assessing malrotation. Again, Dr Gehr purported to agree with the GP and the radiologist that it is unnecessary to subject the plaintiff to such radiation. Dr Gehr expressed the view that:

“The radiologist is best placed to outline the particular risks of radiation and where those risks are justified for such an assessment where a clinical assessment is available and accurate”.

30. Finally, Dr Gehr said:

“It is my opinion it is unnecessary and not reasonable to subject the client for radiation levels even though they may be on the low side where accurate clinical assessment is available in this case by two senior orthopaedic surgeons.”

The Arguments Advanced by the Parties

31. The defendant argues that there is nothing remarkable about a CT scan and there is no suggestion that the plaintiff has any pre-existing condition or vulnerability which would make him prone to adverse effects from the radiation involved.

32. The defendant says that suggestions of the plaintiff being over-exposed to radiation are not sustainable.

33. In particular, the defendant says that the report of the radiologist, Dr Steinberg, dated 15 December 2021, properly read, does not involve a general rejection of the plaintiff undergoing a CT scan because of potential dangers. Rather it is contended by the defendant that, in the context of Dr Steinberg being unsure as to what was required of him in terms of further CT scanning, the doctor was simply saying that pending some certainty as to the scanning required, the plaintiff ought not undergo a potentially unnecessary CT scan. The defendant’s interpretation of Dr Steinberg’s report is that it was not a blanket embargo on CT scanning for health reasons, nor was the doctor suggesting that CT scans are dangerous per se. Rather it was simply a response to the prevailing uncertainty. The defendant says this interpretation is consistent with Dr Steinberg’s suggestion that orthopaedic opinion ought be obtained before any further imaging was undertaken.

34. The defendant emphasises that the plaintiff has not provided any evidence that he has concerns in relation to the adverse effects of a CT scan.

35. The plaintiff argues that a CT scan is not necessary for the purposes of assessing malrotation and that this can be achieved by clinical examination which Dr Gehr considers to be the preferable modality in any event.

36. The plaintiff says that the only purpose for obtaining a CT scan is to determine whether there is 10 degrees of malrotation, as initially assessed by Dr Gehr clinically, or 20 degrees of malrotation as assessed by Dr Machart. In either instance the plaintiff, says he overcomes the 10% WPI threshold. The plaintiff emphasises the proposition that Dr Machart has not disavowed clinical assessment as an appropriate means of determining the existence and extent of any malrotation.

37. The plaintiff says that, on the face of his report, Dr Steinberg has advised the plaintiff not to undergo any unnecessary CT investigation because of the potential for excessive exposure to radiation and submits that Doctors Steinberg and Machart agree that an MRI scan is not an appropriate investigation for the purpose of measuring malrotation.

38. The plaintiff says that Dr Gorman declined to make a final assessment based on Dr Machart’s statement that malrotation is best assessed by CT scanning.

Consideration

39. The plaintiff refers me to the decision in Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 at [4] where, having reviewed relevant authorities, McCallum J articulated the relevant considerations in an application to require a party to submit to a medical examination , namely:

“(a) assess whether the defendant’s request is reasonable in the light of information and advice received from its experts;

(b) assess whether the plaintiff’s refusal is similarly reasonable;

(c) if both are reasonable then balance the plaintiff’s right to personal liberty against the defendant’s right to defend itself in the litigation the plaintiff has brought against it; one right not being considered to be more important than the other right;

(d) examine objectively the weight of the reasonableness of the defendant’s request as seen by it as against the weight of the plaintiff’s objection and balance one against the other “to ensure a just determination of the cause as between the parties taking into account their reasonable requirements”.”

40. As recently pointed out by Campbell J in Corke v Shopping Centres Australasia Property Group Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019, the approach taken in Stapleton has been endorsed in a number of subsequent cases.

41. As observed by Mukhtar J in Dikschei v Epworth Foundation & Anor [2010] VSC 435 at [31], in Aspinall v Sterling Mansell Ltd [1981] All ER 866, Webster J, when considering issues relevant to compelling a party to undergo a medical examination, said:

“For my part, I would only distinguish between the following examinations: first, an examination of which does not involve any serious technical assault, but involving only an invasion of privacy; second, an examination involving some technical assault, such as a palpation; third, an examination involving a substantial assault but without involving discomfort and risk; fourth, the same, that is to say a substantial assault, but involving discomfort and risk; and fifth an examination involving risk of injury or to health.

It seems to me that the weight of the reasonableness of the plaintiff's objections… Must bear a very close correlation to the order in which I have listed those distinctions.”

42. On one view of it, CT scans are an unremarkable commonplace form of medical assessment. Indeed in Rowlands v State of New South Wales [2009] NSWCA 136 at [61], Tobias JA, when considering the reach of UCPR r 23.4, described it as, inter alia, contemplating CAT scans.

43. However, commonplace or not, the issue to be determined here is whether, in the prevailing circumstances, it is reasonable to require the plaintiff to be subjected to a test which involves exposure to radiation.

44. Whilst it is common knowledge that radiation can potentially have adverse health consequences, it is equally common knowledge that controlled exposure to radiation occurs in a wide range of frequently undertaken medical and dental applications.

45. I can only be guided by the evidence before me. In that evidence there is a dearth of expert radiological opinion to assist me in the balancing exercise I must undertake.

46. As I have outlined, the defendant argues that the plaintiff has not given evidence of having any concerns in relation to the proposed CT scan.

47. What is before me however is a course of conduct by the plaintiff which saw him undergo a CT scan on 28 June 2021 and then, at a time following the suggestions made by Dr Machart in October 2021, present to Dr Steinberg for further CT scan assessment in December 2021, although the CT scan did not proceed on that occasion for the reasons outlined in Dr Steinberg’s report.

48. Whilst it is open to argue as to how one ought interpret Dr Steinberg’s reluctance, it is clear that he expressed concerns about potential excessive exposure to radiation having specific regard to the plaintiff’s age.

49. Thereafter, the plaintiff declined to undergo CT scanning, with his solicitors, in correspondence, referring to concerns about exposure to radiation associated with further CT scans. Although there are representations by his solicitors that the plaintiff had been advised by health professionals not to undertake further CT scans and indications in Dr Gehr’s reports that the plaintiff’s general practitioner had advised against further CT scans, there is no evidence before me supporting those propositions.

50. I am nonetheless prepared to infer in the circumstances that the resistance to the proposed CT scanning arises out of genuine concerns of the plaintiff associated with Dr Steinberg’s report and the later opinions expressed by Dr Gehr.

51. I agree that the observations of Dr Steinberg and the implications of his refusal to undertake the proposed CT scan are open to interpretation. It does not appear to me from his report that one can conclude Dr Steinberg regards CT scans as contraindicated because of adverse health consequences per se, particularly given the fact that he contemplated the potential for further imaging following orthopaedic opinion. However, Dr Steinberg clearly considered relevant factors to be the plaintiff’s age and the potential for excessive radiation from CT scanning. As I read his report, Dr Steinberg saw a tangible potential for adverse consequences from CT scanning which needed to be balanced against the necessity for the scan.

52. Other than Dr Steinberg, I have no evidence from a radiologist. I am left with the evidence of Doctors Machart and Gehr, being orthopaedic surgeons, and Dr Gorman, a medical assessor, but not a radiologist. Those doctors are no doubt familiar with the use of radiological investigations for diagnostic purposes and perhaps have generalised medical knowledge about risks associated with those investigations. However, there is no evidence before me that they have any particular expertise in the administration of radiological investigations, nor safety considerations associated with levels and frequency of exposure to radiation. Indeed, Dr Gehr’s resort to AI, Chat-GPT suggests to me that, in the absence of evidence, I ought not infer expertise in radiology in those without qualifications in that discipline.

42. As outlined earlier, Dr Machart in his report dated 21 February 2024 describes the single-cut CT scan administered using the Perth protocol as causing minimal radiation with no adverse impact on the plaintiff’s health. Dr Machart does not however provide the fabric for that opinion nor, indeed, does he explain what the Perth protocol is. He does not explain what “minimal” radiation means, although, obviously, that opinion suggests he does not consider it to be of any moment.

43. However, as discussed earlier, in his report dated 3 March 2022, Dr Machart says he can understand the plaintiff’s anxiety of radiation doses for non-therapeutic purposes and suggests re-examination as a possible solution in lieu of a CT scan being performed or, alternatively, accepting measurements already conducted. Those observations by Dr Machart suggest some credible basis for the plaintiff’s concerns about exposure to radiation. This is to be contrasted with Dr Machart’s most recent report which effectively takes the position that there is no cause for concern. I am not sure if that reflects a shift in Dr Machart’s opinion, but it gives me no confidence in concluding that the proposed CT scan is without potential adverse health consequences for the plaintiff, particularly in light of Dr Machart’s lack of demonstrable expertise in radiology and Dr Steinberg’s reluctance to undertake the scanning when he saw the plaintiff.

44. Dr Gorman also seems to acknowledge that there are health risks for the plaintiff in the passage from his report extracted earlier, where he expressed the opinion that there were sufficient reasons for the scanning to be performed “despite the additional radiation.”

45. Implicit in the use of the word “despite” is an indication that there is an adverse or perhaps undesirable consequence being balanced. Apart from his own value judgment, Dr Gorman provides me with no facility to measure the risk/benefit considerations that informed his opinion.

46. In my view, a weighty consideration in the determination of the issues at hand is the plaintiff’s age. Dr Steinberg in his report of 15 December 2021 specifically adverted to the plaintiff’s age as a relevant factor. At that time the plaintiff was 17 years old. He is presently 20 years old. On any view of things, the plaintiff is young. Whilst I know that Dr Steinberg considered age to be a relevant factor in 2021, I don’t know whether and, if so, to what extent the plaintiff’s age is presently a relevant consideration. Neither Dr Machart or Dr Gorman make any relevant comment about the plaintiff’s age in the context of risks, nor do they address whether there is significance in the fact that the plaintiff has undergone a number of earlier radiological investigations. As outlined in Dr Gorman’s report, the plaintiff had an x-ray of the pelvis on 27 August 2018, a femur x-ray on 12 October 2018, another femur x-ray on 26 February 2019 and a CT scan of the right knee and femur on 15 June 2019. At the very least the lack of any consideration of the relevance of earlier radiological investigations causes me to treat the opinions of Dr Machart and Dr Gorman on this issue with caution.

47. Dr Gehr, in my view, is also unhelpful in terms of assessing the risks associated with CT scanning of the plaintiff. As I’ve said, the basis for his conclusions does not arise out of any particular expertise on his part.

48. Although Dr Gehr purports to agree with the general practitioner on this issue, for my purposes that is an entirely hollow observation, as I have no evidence from any general practitioner.

49. All of this means that I am left with concerns expressed by a radiologist about exposure to radiation arising from CT scanning and no basis to reliably measure whether those concerns are misplaced or otherwise outweigh the benefit of potentially greater certainty in measuring the degree of malrotation that would be achieved by the CT scan being undertaken.

50. Relevant to my consideration is the availability of alternatives to CT scanning. Here, Dr Gehr’s opinion is unequivocal. He sees clinical observation as the preferred way of assessing malrotation in any event.

51. Notably, Dr Gorman was unable to conduct an effective clinical examination of the plaintiff when he saw him on 23 March 2023 because of symptoms considered to be consistent with trochanteric bursitis. However, subsequently on 17 October 2023, Dr Gehr was able to undertake a clinical examination of the plaintiff which, on the face of it, was not inhibited by the hip restrictions described by Dr Gorman. As Dr Gehr’s most recent examination occurred nearly seven months after the examination conducted by Dr Gorman, conceivably the bursitis, which Dr Gorman refers to as not being “chronic”, may no longer be impeding clinical assessment.

52. It is relevant that Dr Machart was able to assess malrotation in his clinical examination of the plaintiff on 28 January 2021 and in his report dated 3 March 2022 posited alternatives to CT scanning being a re-examination and further clinical assessment or acceptance of measurements already obtained. Dr Machart has not however examined the plaintiff since January 2021.

53. Otherwise, notwithstanding submissions made as to the lack of utility of an MRI scan, and the evidence of Dr Gorman who advocates for CT scanning, Dr Steinberg, in fact, says in his report that MRI scanning is probably more appropriate. As discussed earlier, in his most recent report, Dr Machart says he does not know whether MRI scanning could achieve the same result as a CT scan, indicating that this is a question to ask a radiologist.

54. Accordingly, I am left with unresolved concerns as to the implications of exposure to radiation associated with further CT scanning in circumstances where, on the face of it, there are, as yet unexplored, potential alternatives to a CT scan in the form of further clinical assessment by Dr Machart and an MRI scan.

55. For those reasons and mindful of the fact that the defendant bears the onus on this application, I am not satisfied that it is reasonable to require the plaintiff to submit to the proposed CT scan.

56. To be clear, it is not my view that CT scans involve adverse health risks per se. Rather, I have been unable to reach a concluded view as to whether, on the facts of this case, the proposed CT scan exposes the plaintiff to unreasonable risk of adverse consequences. On the evidence as it stands and bearing in mind the unexplored alternatives, the defendant has not persuaded me that it is reasonable to make the orders sought.

Orders

68. For those reasons, I make the following orders:

1. Dismiss the defendant’s notice of motion filed on 17 January 2024.

2. The defendant is to pay the plaintiff’s costs of the notice of motion.

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Decision last updated: 21 August 2024