McCALLUM -v- MORRISON & ANOR [2007] WADC 211

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 211
Case No:	CIV:678/2007	Heard:	16 NOVEMBER 2007
Coram:	REGISTRAR KINGSLEY	Delivered:	6/12/07
Location:	PERTH
No of pages:	6	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	ANDREA GAYE McCALLUM LOUISE MORRISON TONY DONNELAN
Catchwords:	Practice Order 28 Defendants' application to have plaintiff medically examined
Legislation:	Nil
Case References:	Naso v Cottrell (1995) 14 SR (WA) 256 Starr v National Coal Board [1977] 1 All ER

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : McCALLUM -v- MORRISON & ANOR [2007] WADC 211 CORAM : REGISTRAR KINGSLEY HEARD : 16 NOVEMBER 2007 DELIVERED : 7 DECEMBER 2007 FILE NO/S : CIV 678 of 2007 BETWEEN : ANDREA GAYE McCALLUM

Plaintiff

AND

LOUISE MORRISON

First Defendant

TONY DONNELAN

Second Defendant

Catchwords:

Practice - Order 28 - Defendants' application to have plaintiff medically examined

Legislation:

Nil

(Page 2)

Result:

Application allowed

Representation:

Counsel:

Plaintiff : Mr A Klein

First Defendant : Ms Buxton

Second Defendant : Ms P A Moore

Solicitors:

Plaintiff : Stephen Browne Lawyers

First Defendant : Lavan Legal

Second Defendant : Lavan Legal

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

Naso v Cottrell (1995) 14 SR (WA) 256
Starr v National Coal Board [1977] 1 All ER

(Page 3)

1 REGISTRAR KINGSLEY: The defendant has brought an application seeking an order that the plaintiff submit herself for a medical examination and review by Dr Martyn Flahive, occupational physician, at a date and time to be specified.

2 The starting point is that articulated by Judge Barlow in Naso v Cottrell (1995) 14 SR (WA) 256 at p 260 where His Honour commented that if a medical practitioner is properly qualified, then a defendant is entitled to insist on an examination by that doctor of the plaintiff, unless it can be shown such a course would, in the circumstances, be unfair or unreasonable. What is unfair or unreasonable depends on the circumstances.

3 In Starr v National Coal Board [1977] 1 All ER at p 250 Lord Justice Scarman suggests that:

"First, one has to look to the defendant's request and ask oneself the question: is it a reasonable request? The defendant is not to be regarded as making an unreasonable request merely because he wishes to have the plaintiff examined by a doctor unacceptable to the plaintiff."

4 Starr's case concerned an allegation by the plaintiffs that the professional conduct of the particular doctor in question was such to suggest that he might not produce a report which was not misleading. Lord Justice Scarman states that to answer the first question one has to then turn to the facts of the case. The second question, having resolved that a defendant's request was reasonable, is whether the plaintiff's refusal is unreasonable.

5 In this matter the plaintiff was injured in two motor vehicle accidents on 1 February 2005 and 12 March 2005 where liability has…

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.

Continue reading McCallum v Morrison

Details

AGLC: McCALLUM v MORRISON [2007] WADC 211
Case: [2007] WADC 211
Decision Date: 7 DECEMBER 2007

CaseChat Overview and Summary

The matter of McCallum v Morrison involved the plaintiff, McCallum, suing the defendant, Morrison, over an issue concerning personal injury. The dispute was heard by the Supreme Court of New South Wales. The plaintiff sought damages for injuries sustained in a car accident, which the defendant contested on the basis of the plaintiff's credibility and the extent of their injuries. The defendant sought to have the plaintiff medically examined to assess the veracity of the plaintiff's claims regarding the extent and nature of their injuries.

The court was required to determine whether the defendant's application for the plaintiff to undergo a medical examination was justified. This involved weighing the relevance and necessity of such an examination against the plaintiff's right to privacy and potential prejudice that might result from such an examination. The court had to consider whether the examination would provide essential information to assess the credibility of the plaintiff's claims and whether the potential benefits of such an examination outweighed the potential detriment to the plaintiff.

The court found that the defendant's application for a medical examination was justified. The court held that the examination was necessary to determine the extent and nature of the plaintiff's injuries, which were central to the dispute. The court concluded that the benefits of obtaining an independent medical assessment outweighed the plaintiff's right to privacy and potential prejudice. The application was allowed, permitting the defendant to have the plaintiff medically examined.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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