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

DISTRICT COURT OF QUEENSLAND

CITATION:

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

PARTIES:

DAPHNE JEAN KERKOW
(Plaintiff)

v

BCP HOLDINGS PTY LTD TRADING AS BUNDABERG TOYOTA
(Defendant)

FILE NO/S:

Bundaberg 63 of 2008

DIVISION:

Civil Applications

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

12 May 2010 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

30 April and 12 May 2010

JUDGE:

Andrews DCJ

ORDER:

Defendant’s application dismissed. Order that the signature of the defendant on a request for trial date be dispensed with and that the proceeding be listed for trial. Order that the defendant pay the plaintiff’s costs of the application on a standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – STATUTES, REGULATIONS ETC – QUEENSLAND – PERSONAL INJURY PROCEEDINGS – MEDICAL EXAMINATION – AFTER COMPULSORY CONFERENCE – Personal Injuries Proceedings Act 2002 – where plaintiff suffered wrist injury - where Part 1 and Part 2 Notice of Claim served – where plaintiff supplied defendant’s insurer with orthopaedic specialists’ reports – where plaintiff supplied quantification of claim at insurer’s request – where insurer did not require plaintiff to be medically examined but required a compulsory conference – where orthopaedic reports referred to difficulty with work – where compulsory conference held and mandatory offers exchanged – where statement of loss and damage delivered claiming an earlier retirement and future loss of earnings and substantial amount for gratuitous care – where plaintiff reduced working hours by two thirds – where 17 months after compulsory conference insurer requested plaintiff to undergo examination by a further orthopaedic specialist – where purpose to ask specialist for opinions whether reduced employment and need for gratuitous care caused by wrist injury or otherwise – where no evidence as to why the insurer or its solicitors want the plaintiff examined by a further orthopaedic specialist – where no evidence that insurer considered whether adequate to question the plaintiff’s orthopaedic specialists – where no evidence that insurer regards plaintiff’s specialists as unacceptable – where insurer had not put the questions to the plaintiff’s orthopaedic specialists – whether unreasonable for claimant to undergo examination by another orthopaedic specialist

Personal Injuries Proceedings Act 2002 ss 4, 25 and 37

Starr v National Coal Board [1977] 1 WLR 63; 1 All ER 243
Luck v Lusty EMS P/L [2008] QSC 146; [2008] 2 Qd R 522
Timmins v Yandilla P/L [2000] QSC 281
Gray v Hopcraft & Anor [2000] QCA 144

COUNSEL:

Dixon for the plaintiff
Hubbard for the defendant

SOLICITORS:

Payne Butler Lang for the plaintiff
Moray and Agnew for the defendant

HIS HONOUR: The defendant seeks an order that the plaintiff comply with a request by the defendant to undergo a medical examination from her selection of one of a panel of three orthopaedic surgeons submitted by the defendant's solicitor in a letter to the plaintiff's solicitors dated 31 July 2009 on the terms and conditions contained in that letter. The terms and conditions included offers by the defendant to pay the plaintiff's expenses.

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QDC 209
Decision Date: 12 May 2010 ex tempore

CaseChat Overview and Summary

In the case of Kerkow v BCP Holdings P/L, the plaintiff, Mr Kerkow, sought compensation for a wrist injury sustained during his employment. The matter was heard in the Queensland Court of Appeal, where the central issue was whether the plaintiff should be required to undergo a medical examination by an orthopaedic specialist chosen by the defendant’s insurer, 17 months after the compulsory conference. The defendant’s insurer had requested the examination to explore whether the plaintiff's reduced working hours and need for gratuitous care were caused by the wrist injury or by other factors. The plaintiff argued that such a request was unreasonable and an unnecessary imposition.

The court was tasked with determining whether the defendant’s insurer had acted unreasonably in requesting the plaintiff to undergo a further medical examination. The court considered the statutory framework provided by the Personal Injuries Proceedings Act 2002, which governs medical examinations in personal injury claims. The court found that the insurer had not demonstrated any reasonable basis for the additional examination, nor had they questioned the plaintiff’s existing orthopaedic specialists or provided any evidence that these specialists were deemed unacceptable. Given these findings, the court held that the insurer's request was unreasonable.

The court dismissed the defendant’s application and ordered that the proceeding be listed for trial, with the signature of the defendant on a request for a trial date being dispensed. Additionally, the court ordered the defendant to pay the plaintiff’s costs of the application on a standard basis. This decision underscores the importance of the insurer demonstrating a reasonable basis for any requests for further medical examinations in personal injury proceedings.

Orders

Orders of the court

Defendant’s application dismissed. Order that the signature of the defendant on a request for trial date be dispensed with and that the proceeding be listed for trial. Order that the defendant pay the plaintiff’s costs of the application on a standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kerkow v BCP Holdings P/L [2010] QDC 209
PARTIES:	DAPHNE JEAN KERKOW (Plaintiff) v BCP HOLDINGS PTY LTD TRADING AS BUNDABERG TOYOTA (Defendant)
FILE NO/S:	Bundaberg 63 of 2008
DIVISION:	Civil Applications
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	12 May 2010 ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	30 April and 12 May 2010
JUDGE:	Andrews DCJ
ORDER:	Defendant’s application dismissed. Order that the signature of the defendant on a request for trial date be dispensed with and that the proceeding be listed for trial. Order that the defendant pay the plaintiff’s costs of the application on a standard basis.
CATCHWORDS:	TORTS – NEGLIGENCE – STATUTES, REGULATIONS ETC – QUEENSLAND – PERSONAL INJURY PROCEEDINGS – MEDICAL EXAMINATION – AFTER COMPULSORY CONFERENCE – Personal Injuries Proceedings Act 2002 – where plaintiff suffered wrist injury - where Part 1 and Part 2 Notice of Claim served – where plaintiff supplied defendant’s insurer with orthopaedic specialists’ reports – where plaintiff supplied quantification of claim at insurer’s request – where insurer did not require plaintiff to be medically examined but required a compulsory conference – where orthopaedic reports referred to difficulty with work – where compulsory conference held and mandatory offers exchanged – where statement of loss and damage delivered claiming an earlier retirement and future loss of earnings and substantial amount for gratuitous care – where plaintiff reduced working hours by two thirds – where 17 months after compulsory conference insurer requested plaintiff to undergo examination by a further orthopaedic specialist – where purpose to ask specialist for opinions whether reduced employment and need for gratuitous care caused by wrist injury or otherwise – where no evidence as to why the insurer or its solicitors want the plaintiff examined by a further orthopaedic specialist – where no evidence that insurer considered whether adequate to question the plaintiff’s orthopaedic specialists – where no evidence that insurer regards plaintiff’s specialists as unacceptable – where insurer had not put the questions to the plaintiff’s orthopaedic specialists – whether unreasonable for claimant to undergo examination by another orthopaedic specialist Personal Injuries Proceedings Act 2002 ss 4, 25 and 37 Starr v National Coal Board [1977] 1 WLR 63; 1 All ER 243 Luck v Lusty EMS P/L [2008] QSC 146; [2008] 2 Qd R 522 Timmins v Yandilla P/L [2000] QSC 281 Gray v Hopcraft & Anor [2000] QCA 144
COUNSEL:	Dixon for the plaintiff Hubbard for the defendant
SOLICITORS:	Payne Butler Lang for the plaintiff Moray and Agnew for the defendant