McCallum v Morrison
[2007] WADC 211
•7 DECEMBER 2007
McCALLUM -v- MORRISON & ANOR [2007] WADC 211
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 211 | |
| Case No: | CIV:678/2007 | 16 NOVEMBER 2007 | |
| Coram: | REGISTRAR KINGSLEY | 6/12/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| 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
- 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 been admitted in both cases. At par 4 of the statement of claim the particulars of the first injury have been pleaded and are particularised as soft tissue and ligamentous injury to the cervical spine, thoracic spine and lumbar spine. The plaintiff pleads that the injuries have caused or contributed to the plaintiff losing income both in the past and for the future.
6 In an affidavit sworn by Allon Klein on 15 November 2007, Klein deposes that the Insurance Commission of Western Australia, the insurer for the defendants, commissioned a medical review of the plaintiff by Dr Rosenthal on 3 March 2005, 19 July 2005 and 5 December 2005. Dr Rosenthal's area of speciality is rehabilitation medicine. Mr Klein deposes that it is unreasonable for the plaintiff to now attend upon
(Page 4)
- Dr Flahive on the grounds that she had attended upon Dr Rosenthal on a number of occasions and at that time was due to see Dr Rosenthal once again. Further Dr Flahive had not been involved in the plaintiff's case at any previous stage. Mr Klein deposes that any opinion Dr Flahive is able to give will be of little forensic value given that each of the accidents is now over two and half years old.
7 Dr Rosenthal is a practitioner of rehabilitation medicine and is often called as a medical expert. In his report of 3 March 2005 Dr Rosenthal considers that the motor vehicle accident on 1 February 2005 imposed some musculoligamentous strain on her neck and lower back with the latter being the more significantly symptomatic focus. Dr Rosenthal did not anticipate there being a permanent disability and considered that the plaintiff was capable or continuing in her present job. Dr Rosenthal was further of the opinion that her future working capacity has not been compromised by the February accident.
8 In his report of 27 July 2005 Dr Rosenthal notes the second motor vehicle accident on 12 March 2005. In his July 2005 report Dr Rosenthal considers that the plaintiff should make a full recovery from her cervical strain injury and subsequent aggravation following the March accident. Whilst Dr Rosenthal considered that it was too early to quantify any permanent impairment, he was of the opinion that, whilst the plaintiff is significantly symptomatic, she is clearly not incapacitated, and though her reduced working hours were due to an unrelated set of social circumstances, in relation to the crash the plaintiff was capable of working full hours as a legal officer. Dr Rosenthal in his July 2005 report was of the opinion that her long term working capacity as legal practitioner has not been compromised.
9 In his report of 10 January 2006 Dr Rosenthal considered the plaintiff’s condition had stabilised and that the matter could proceed to finalisation. Dr Rosenthal was of the opinion that her cervical symptomatology would fully resolve in due course without there being any permanent impairment.
10 In relation to her lumber spine Dr Rosenthal says that because of a long standing chronic disc profusion at L5S1 the plaintiff’s chronic disc pathology was likely to eventually become symptomatic irrespective of the accidents. In a report dated 29 October 2007 Dr Rosenthal noted that there has been a change in her symptomatic status in that flair ups of back pain are now occurring more frequently, they last longer and the pain is more severe. Dr Rosenthal refers to the plaintiff's comment that there
(Page 5)
- have been lost opportunities for employment due to her motor vehicle accident related injuries, in that the plaintiff felt that her inability to sit for long periods prevented her from applying for the job of Clerk of the Legislative Council. Dr Rosenthal again summarises the injuries received and states that there is a permanent impairment of the lumbar spine. Dr Rosenthal considered the plaintiff capable of working full time as a lawyer or research assistant subject to having the opportunity to take regular posterioral breaks. He does acknowledge some reduced efficiency as a result of her increased back pain.
11 It would appear that up to Dr Rosenthal's report of 29 October 2007 it was his opinion that the plaintiff, whilst symptomatic there was no permanent incapacity and that the plaintiff was capable of working full hours as a legal officer. Dr Rosenthal was of the opinion that her long term working capacity as a legal practitioner had not been compromised. In his report of October 2007 Dr Rosenthal now suggests that she is capable of working full time as a lawyer and/or research assistant subject to her having the opportunity to take regular posterioral breaks but acknowledges some reduced efficiency as a result of her increased back pain para (10.1). At par 10.2 Dr Rosenthal comments – that he regards the plaintiff capable of working part time as a lawyer and or research assistant. Dr Rosenthal now states at par 8 that there is a permanent impairment in the lumbar spine.
12 In my opinion there is some doubt as to exactly what Dr Rosenthal is saying in relation to the plaintiff's capabilities of full time work. Dr Rosenthal now suggests that there is a permanent impairment in the lumbar spine whereas in previous reports that has not been clearly stated. Dr Rosenthal now states in his 29 October 2007 report that, whilst acknowledging the plaintiff was not having significant back pain prior to the first accident, the plaintiff was left with a potentially unstable disc. Dr Rosenthal suggests that another medical specialist, Mr Watson, considered the plaintiff would have remained asymptomatic. Dr Rosenthal doubts that proposition. In my opinion therefore it would be reasonable for the defendant to request that the plaintiff attend upon a specialist medical practitioner to try and resolve that issue.
13 Having resolved the first question, the second question is whether the plaintiff's refusal of the defendant's request was unreasonable. The test here relates to the necessity, so far as the Court can assist, of ensuring a just determination of the cause. The plaintiff has to give some reason as to why they consider their refusal to agree to the defendant's request as reasonable. All that need be shown by the plaintiff is that they entertained
(Page 6)
- a reasonable apprehension that a further examination by a different specialist medical practitioner will not advance the just determination of the cause or make that just determination more difficult.
14 In my opinion the plaintiff's refusal was unreasonable. Dr Rosenthal has in his reports indicated a shift in his opinion. Dr Rosenthal now suggests a permanent incapacity in the plaintiff’s lumbar spine. Further Dr Rosenthal doubts that the plaintiff would have been asymptomatic in relation to her back whereas Dr Rosenthal suggests that Mr Watson had a different opinion. These issues need further exploration. To enable a just determination of the cause it is in my opinion necessary to obtain a second opinion.
15 Accordingly I make orders that the plaintiff submit herself for a medical examination and review by Dr Martin Flahive occupational physician at a time and date to be specified. The plaintiff to pay the first and second defendant's costs of this application in any event.
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