Greenwood v The Shell Company of Australia Limited - [2005] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GREENWOOD -v- THE SHELL COMPANY OF AUSTRALIA LIMITED & ANOR [2005] WADC 109

CORAM: COMMISSIONER SCHOOMBEE

HEARD: 24 MAY 2005

DELIVERED : Delivered Extemporaneously on 24 MAY 2005 typed from tape and edited by the Commissioner

FILE NO/S: CIV 470 of 2000

BETWEEN: SHIRLEY HELEN GREENWOOD
Plaintiff
AND
THE SHELL COMPANY OF AUSTRALIA LIMITED
Defendant
OFFLINE HOLDINGS PTY LTD
Second Third Party

Catchwords:

Attendance at medical examination - Order 28 r 1 of the Rules of the Supreme Court (WA) - Onus of proving unreasonableness of requirement to attend - Application shortly prior to trial

Legislation:

Nil

Result:

Application by defendant for plaintiff to submit herself to a further medical examination shortly prior to trial granted

Representation:

Counsel:

Plaintiff:     Mr N P Lindsay
Defendant:     Ms J N Eversden
Second Third Party       :     No appearance

Solicitors:

Plaintiff:     Marks & Sands
Defendant:     Mallesons Stephen Jaques
Second Third Party       :     Not applicable

Case(s) referred to in judgment(s):

Naso v Cottrell (1995) 14 SR (WA) 256

Case(s) also cited:

Nil

COMMISSIONER SCHOOMBEE: This matter has come before me by way of an application filed by the defendant on 20 May 2005 pursuant to which the defendant has requested an order under O 28 r 1 of the Rules of the Supreme Court that the plaintiff attend the rooms of Dr Peter Connaughton, an occupational physician, on 24 May 2005 at 11 am. The application was first heard by me on Monday, 23 May 2005 at 10.30 am or just thereafter. At that time, counsel appearing for the plaintiff informed me that the application had only been served on his firm at 2 o'clock on the afternoon of the previous Friday and that he had not had the opportunity to properly consult with the plaintiff and to prepare an affidavit in opposition to the application.
At the time of first hearing of the application, the affidavit filed by Ms Eversden in support of the application did not set out why Dr Home, the occupational physician who had previously seen the plaintiff, had not been contacted earlier and why he was not available for an appointment, therefore requiring the defendant to ask in the application that the plaintiff attend the rooms of Dr Peter Connaughton, who has not seen the plaintiff to date.
I adjourned the application initially to the afternoon at 2.15 pm and then to Tuesday 24 May at 2.30 pm to allow the plaintiff to file an affidavit in opposition to the application. I also allowed the defendant to file further affidavits explaining why Dr Home had not been contacted earlier to arrange a review of the plaintiff. Dr Home has apparently already furnished a report with regard to the plaintiff's condition which he provided about a year ago.
The defendant's solicitors thereafter filed a further affidavit by Ms Eversden dated 23 May 2005 in which it was explained that Dr Home had been contacted on 19 May 2005 and that his receptionist had indicated that Dr Home was only available to give evidence at the trial and implied that he was not able to see the plaintiff for an appointment. The defendant's counsel indicated to me at the first hearing on 23 May 2005 from the Bar Table that the reason why it was considered to engage Dr Home to review the plaintiff's condition was because a further report had been obtained by the defendant from Dr Edwards-Smith and that this report referred to higher pain levels experienced by the plaintiff than had been indicated in earlier medical reports exchanged between the parties.
A further affidavit sworn by Ms Eversden was filed on 24 May 2005. In this affidavit, Ms Eversden states that she has now been able to arrange an appointment with Dr Home on Thursday, 2 June 2005 at 2.15 pm. In addition to that, the proposed appointment with Dr Peter Connaughton has been changed to Friday, 27 May 2005 at 10 am. Further, an appointment with Dr John Suthers, who is also an occupational physician, has been arranged for 30 May 2005 at 12.30 pm. The defendant's counsel has indicated that the plaintiff can choose which appointment she wishes to attend.
In argument today in respect of the plaintiff's opposition to the application, plaintiff's counsel submitted that the onus to prove that the court should make an order requiring the plaintiff to attend an occupational physician rests on the defendant. The plaintiff's counsel also argued that a further report by an occupational physician would be likely to lead to new evidence being introduced which may well have the result that the trial judge will not admit the further report and that it would therefore be unreasonable that the plaintiff should be ordered to attend an examination with an occupational physician at this late stage. The trial has been listed for 7 to 14 June 2005.
The plaintiff has now filed an affidavit sworn by Mr Lindsay and dated 24 May 2005 in opposition to the application. This affidavit deals in some detail with the previous reports provided and with the fact that according to the deponent of the affidavit, there is not a great discrepancy between the matters stated by Dr Edwards‑Smith in her report regarding the plaintiff's pain levels experienced and the reports by the other practitioners.
Accordingly, the defendant's counsel has argued that the discrepancies in pain levels relied upon by the defendant for obtaining a further report from an occupational physician at this late stage is not a valid reason for the grant of an order that the plaintiff attend an occupational physician. In my view, it appears that the plaintiff has decided at this relatively late stage before the trial, that it would be helpful to its case to have a more recent review conducted by Dr Home with regard to the plaintiff's physical condition. It does not really matter whether the reason for the defendant deciding that an updated report from an occupational physician should be obtained, lies in the fact that some discrepancies regarding the physical condition of the plaintiff have been brought out in a recent report or whether the defendant has just decided, albeit belatedly. that a more recent review by an occupational physician should be obtained.
The question under O 28 r 1(a) is whether it is material in any matter for the court to consider the question of the physical condition of any party. The physical condition of the plaintiff as it is shortly prior to the trial in comparison to how it was a year ago is clearly something which is relevant for the court to consider. Accordingly, the defendant should be entitled to have the plaintiff submit herself to an examination to obtain an updated report unless there is a reason which makes it particularly unfair or unreasonable for the plaintiff to have to do so.
The plaintiff's counsel has not submitted any particular reason as to why it would be unreasonable or unfair for the plaintiff to have to attend another appointment with an occupational physician in the context of her being unable to get to the place of the examination or that she finds it oppressive to attend so many examinations or such other reason.
The submissions by the plaintiff's counsel were geared to the point that it would be unreasonable to require the plaintiff to attend a further examination at this late stage where the result may potentially be that the report filed by the occupational physician raises new issues and will not be allowed to be used at the trial by the trial judge in any event.
Counsel for the defendant has referred me to the decision of his Honour Judge Barlow in Naso v Cottrell(1995) 14 SR (WA) 256. At p 260 of this report, Judge Barlow held:
"Where a defendant requests that a plaintiff be examined by a particular medical practitioner then, provided the medical practitioner is properly qualified, the defendant is entitled to insist the examination be carried out, unless it can be shown that such a course would, in all the circumstances, be unfair or unreasonable."
Counsel for the defendant has submitted that this statement indicates that the onus to prove that it would be unreasonable for the plaintiff to have to submit to a further examination is on the plaintiff. In the context of this matter I agree with counsel for the defendant that it appears that the onus is on the plaintiff to show reasons why it would be unreasonable for her to submit to a further examination where it is apparent otherwise that her physical condition at present is a matter which is relevant to the Court with regard to the trial of this case.
The decision by his Honour Judge Barlow also refers to a number of other cases in which the principle has been accepted that the question whether a plaintiff should have to submit to a medical examination is a balance between what is reasonable for each party. Even though the defendant has clearly decided at a very late stage that a review by an occupational physician, preferably Dr Home who has previously examined the plaintiff, would be appropriate, I am of the view that an updated report is a matter relevant to the court. Accordingly, the defendant should, prima facie, be entitled to have the plaintiff submit to a medical examination.
If Dr Home would conduct the review of the plaintiff, it is unlikely that he would introduce any new cause or issue that would result in the defendant not being granted leave by a trial judge pursuant to O 36A to rely on the report at trial.
The fact that the plaintiff may not be available for the appointment scheduled with Dr Home, which is at quite a late stage before the trial, namely 2 June 2005, may result in the plaintiff having to be examined by one of the other two occupational physicians. However, I am not persuaded that there is on a balance of probabilities a good chance that a report by another occupational physician will introduce issues that Dr Home has not already dealt with and that the report will therefore not be able to be used by the defendant at the trial.
If the plaintiff had been able to demonstrate to me that it was likely that a further report would introduce new issues so that it was unlikely that this report would be allowed to be used at the trial, I would have had more sympathy for the plaintiff's argument that it is unreasonable for her to attend a further examination in these circumstances.
The defendant has now provided three alternative dates for the plaintiff to submit herself to a further examination and counsel for the plaintiff has indicated from the Bar Table that the plaintiff should be able to attend one of those arranged consultations.
Counsel for the defendant has also relied on the fact that the defendant has very recently received two further medical reports from the plaintiff's medical practitioners and that the plaintiff attended another medical examination with Dr Salmon, a pain specialist, on 24 May 2005. At this stage, no report has been served from Dr Salmon but as indicated by the defendant's counsel, this may still happen. Defendant's counsel argued that if the plaintiff is able to attend a further examination by a medical practitioner in order to support her case at this late stage, there should be no reason why she should not also be able to attend a further examination by a practitioner of the defendant's choice at this late stage.
In light of the fact that O 28 r 1 only requires me at this stage to consider whether it is reasonable for the plaintiff to attend a further examination by a medical practitioner in order to deal with a matter which is material before the court at the trial, I am of the view that it would not be unreasonable to require the plaintiff to attend a further examination by an occupational physician.
If it turns out that the occupational physician raises issues in the report which are new and which the plaintiff is not able to deal with at this late stage, then an application pursuant to O 36A can be made by the plaintiff in order to object to the use by the plaintiff of this report.
I am therefore prepared to make orders pursuant to the chamber summons filed by the defendant. The orders are made pursuant to pars 1 and 2 of the chamber summons. Order 2 to be amended to read:
"The plaintiff do attend the rooms of one of the following medical practitioners for a medical examination;
(a) Dr Peter Connaughton, occupational physician, on Friday, 27 May 2005 at 10 am;
(b) Dr John Suthers, occupational physician, on Monday, 30 May 2005 at 12.30 pm or 4.30 pm; and
(c) Dr Alan Home, occupational physician, on Thursday, 2 June 2005 at 2.15 pm.
I will further made an order pursuant to par 3 which will be amended to read:
"The defendant pay the fees of the medical practitioner who conducts the medical examination and provides a report on the outcome of this examination."
I make a further order in terms of par 4 which will be amended to read:
"The defendant to serve upon the plaintiff a copy of the medical practitioner's report within three hours of receiving this report."
I make a further order that the plaintiff pay the defendant's costs of this application in any event except for the costs of the hearing on the morning of 23 May 2005 at 11.30 am.