Moore v Stage Coach Qld Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Moore v Stage Coach Qld Pty Ltd [2004] QSC 003

PARTIES:

JULIE-ANNE MARIE MOORE
(plaintiff)
v
STAGE COACH QLD PTY LTD (ACN 079 354 797)
(defendant)

FILE NO:

BS 5773 of 2003

DIVISION:

Trial

PROCEEDING:

Application for Medical Examination

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

27 January 2004

DELIVERED AT:

Brisbane

HEARING DATE:

12 January 2004

JUDGE:

Douglas J

ORDER:

Application dismissed

CATCHWORDS:

WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – WHERE RESPONDENT OBTAINED MEDICAL REPORTS DURING THE TIME IN WHICH THE COMPENSATION CLAIM WAS BEING PROCESSED – WHERE RESPONDENT ELECTS TO CLAIM DAMAGES UNDER WORKCOVER QUEENSLAND ACT 1996 – WHERE APPLICANT NOMINATED A PANEL OF SPECIALISTS TO INDEPENDENTLY EXAMINE THE RESPONDENT – WHERE APPLICANT ASKS RESPONDENT TO CHOOSE A SPECIALIST FROM THE PANEL TO EXAMINE RESPONDENT ON BEHALF OF THE APPLICANT – WHETHER THE APPLICANT SHOULD HAVE A FURTHER EXAMINATION OF THE RESPONDENT BY A NEW SPECIALIST FOR A COMMON LAW CLAIM

WorkCover Queensland Act 1996 ss 286, 291, 293, 293A, 312(1)(a)

Muller v Nebo Shire Council [2002] QSC 084; Starr v National Coal Board [1977] 1 All ER 243 referred
Woolworths (Qld) Pty Ltd v Berry-Porter [2002] QSC 360 considered

COUNSEL:

K F Holyoak for the applicant
R Fryberg for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant
Butler McDermott & Egan for the respondent

1. In this application under s. 291 of the WorkCover Queensland Act 1996 (‘the Act’) the principal issue is whether the plaintiff should undergo further examination by Dr Mungomery, to whom she was referred by WorkCover Queensland (‘WorkCover’) when making a claim for statutory benefits, or by one of a panel of three other psychiatrists proposed by the defendant, which is insured by WorkCover. The defendant prefers the three new doctors proposed by it because its solicitors are more confident that those doctors are capable of providing ‘medico legal reports which are of assistance to the court in determining issues relevant to a common law claim for damages’ and are not familiar with Dr Mungomery’s capacity to undertake a medico legal review in that context: see para 12 of the affidavit of Allison Langford filed 12 January 2004. WorkCover should be familiar with that doctor’s capacity to assess whether the criteria have been met for access to statutory benefits because it referred the plaintiff to him for those purposes but points to the greater range of relevant issues that need to be addressed by a psychiatrist giving evidence on a common law damages claim than in a claim for statutory benefits.

1. The plaintiff is willing to undergo further examination, at least by Dr Mungomery, but not by a new doctor because, as her solicitor says on instructions from his client, she has already seen six different specialists in relation to her injury including two psychiatrists, Dr Bell and Dr Mungomery, to whom she was referred by WorkCover, three psychologists and a counsellor.  Her solicitor, Mr Barr, in a letter to the defendant’s solicitors of 30…