O'Shea v Royal Derwent Hospital Board of Management

[1990] TASSC 35

Serial No 30/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              O'Shea v Royal Derwent Hospital Board of Management [1990] TASSC 35; (1990) Tas R 123; A30/1990

PARTIES:  O'SHEA
  v

ROYAL DERWENT HOSPITAL BOARD OF MANAGEMENT

FILE NO/S:  469/1989
DELIVERED ON:  8 August 1990
JUDGMENT OF:  Cox J

Judgment Number:  A30/1990
Number of paragraphs:  14

Serial No 30/1990
List "A"
File No 469/1989

O'SHEA v THE ROYAL DERWENT HOSPITAL BOARD OF MANAGEMENT

REASONS FOR JUDGMENT  COX J

8 August 1990

1. This is an application pursuant to s25 of the Evidence Act 1910 ("the Act") to stay proceedings in this action until the plaintiff/respondent gives facilities and information sought by the medical practitioner appointed by the defendant/applicant to examine her.

1. The action is one for personal injuries allegedly suffered by the plaintiff while employed by the defendant as a ward aide at Willow Court. She alleges that the defendant was negligent in failing to prevent her being assaulted by a patient of the hospital. She has particularised her injuries as follows:

(a)       traumatic injury to neck;

(b)       headaches;

(c)       muscle spasm;

(d)       severe depression;

(e)       further particulars to be supplied.

1. In reliance on s25 of the Act, the defendant appointed to examine the plaintiff Dr Ian Sale, who is a psychiatrist and a medical practitioner as defined in s4 thereof namely "a person who is resident in a State or Territory of the Commonwealth and who is entitled to practise as a medical practitioner in accordance with the laws of that State or Territory". In an affidavit filed in support of the application, Dr Sale deposed to the following matters:

"3On 23rd October 1989 I assessed Mrs O'Shea with a view to providing the Defendant with my opinion as to what if any psychiatric damage or injury had been suffered by the Plaintiff as a result of the incident and also my opinion as to her prognosis, and at that time she informed me that at the time of the incident she was working in the bathroom area of Bronte House, Willow Court, when she was struck twice by one of the residents. The blows were to the right and left side of her neck respectively, from behind. One of the blows catapulted her across the floor. The nurses present apparently called one of the Hospital's Medical Officers to examine her, and she was sent off duty.

4I discussed the history following the incident in detail with the Plaintiff and I also considered other material provided to me by the Defendant's Solicitors, which material I understand to be privileged from production in these proceedings, but I was unable to form a firm opinion as to whether any organic brain dysfunction was present.

5In order for me to make a thorough assessment of the Plaintiff's condition it is necessary that the Plaintiff undergo psychological testing and for the results of those tests to be made available to me. Accordingly I requested the Defendant's Solicitors to make arrangement for the Plaintiff to be assessed by Dr C. Williams, who is an experienced Clinical Psychologist. I am informed by the Defendant's Solicitors that the Plaintiff has refused to attend any appointment with Dr Williams.

6Psychological testing is a frequent component of a psychiatric assessment, especially if there is any possibility of organic impairment. It is an investigatory procedure in much the same way as X–rays, blood tests and audiology investigatory procedures. In this particular case, psychological testing would complete my investigations and would allow me to ascertain fully the nature and extent of the Plaintiff's injuries resulting from the incident in question. A thorough diagnostic assessment would not be possible unless the psychological testing is performed.

7In my opinion psychological testing may also assist in the management and rehabilitation of Mrs O'Shea in the event that the presence of a psychiatric disorder is confirmed."

1. It is common ground that Dr Williams is not a medical practitioner.

1. Dr Sale was cross–examined on his affidavit and said that though there were a number of specific tests he wished Dr Williams to perform, he expected the latter to suggest other tests and that in any final report he would anticipate Dr Williams giving an interpretation of the results of the psychological tests performed.

1. The plaintiff declines to undergo the tests claiming that as Dr Williams is not a medical practitioner she is under no obligation to do so. The defendant argues that her obligation to give to Dr Sale, who is the examining medical practitioner "all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of that injury" extends to undergoing the tests.

1. The terms of s25(1) are as follows:

"25 – (1)  Where proceedings are taken against a person (in this section referred to as 'the defendant') in respect of any injury sustained by another person (in this section referred to as 'the injured person') a medical practitioner appointed by the defendant shall be entitled, on demand of the defendant, to examine the injured person, and the injured person and all other parties (if any) to the proceedings shall give to that medical practitioner all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury."

1. There is little authority on the section and none on the point itself. In Oakley v Green [1969] Tas SR p90, Chambers J held that the defendant may require examination by more than one medical practitioner and said at pp 91 – 92:

"To determine the true interpretation of s25 one must look at it in its entirety and give to it the interpretation which best accords with justice and convenience. Doing so, I am of the opinion that the section cannot be restricted to examination by one medical practitioner only. In the words of the section itself, its object is to enable the nature and extent of a person's injury to be fully ascertained. In the case of a plaintiff who has suffered multiple injuries the object of the section might be frustrated if the defendant were prohibited from requiring examination by more than one doctor. The plaintiff may have suffered extensive physical injuries and these might be coupled with deep personality disorders. To enable the nature and extent of all these injuries to be fully ascertained it might be necessary for the plaintiff to be examined by two or more medical practitioners specializing in particular fields of medicine. This example alone, I think, illustrates the need to place upon the section an interpretation that is not too restrictive."

1. There is no equivalent section in the other Australian States. New South Wales, prior to the enactment of the new Supreme Court Rules in 1970, had a rule (O14, r10) to this effect:

"Whenever an action is brought to recover damages for or arising out of personal injury and the person who is alleged to have suffered such injury has been requested by or on behalf of any party to submit to a reasonable medical examination and such person neglects or refuses to consent thereto, such requesting party may at any time apply to a Judge for an order staying further proceedings in the action unless and until the said person submits to such medical examination."

1. It was in 1950 that for the first time a rule was introduced giving the court power to stay proceedings in any case where there had been a neglect or refusal to consent to a reasonable medical examination. This power was incorporated in the new rules of 1953 by O14, r10. In Tasmania the provision was enacted as s25 by an Amending Act of 1954. In Upton v Arthur (1956) 73 WN NSW 378, McClemens J, in considering O14, r10, said (at 382):

"In a given case one can imagine that a medical examination would not be reasonable without X–ray pictures being taken or some further test being made or even an additional examination by a specialist. One can imagine cases where it would be impossible to diagnose without some additional test or tests or some additional examination or examinations, and unless the tests or examinations were held it could not be fairly asserted that 'a reasonable medical examination' had been had."

He also there said:

"What is 'a reasonable medical examination' must always be a question of fact."

1. In Pucci v HumesLtd (1970) 92 WN NSW 326, Taylor J, in refusing to order a stay because the plaintiff declined to undergo a myelography, said, at 328:

"An examination by a medical practitioner does not, in its ordinary sense, include a procedure which requires the plaintiff to have a general anaesthetic, to be in hospital for upwards of two days and to have a liquid injected into his spinal column which may, but probably will not, have complications."

1. In s25 there is no mention of reasonableness. However, it is clear from Oakley v Green (supra) and Weedon v Green Neasey J [1978] Tas SR 117 (37/1978) that the court retains a discretion whether or not to order a stay and such a power would not be used "if the court was satisfied that the section was being used oppressively, vexatiously or unreasonably" (per Chambers J at 92; and Neasey J at 6 respectively).

1. In the present case, it is not suggested that the undergoing by the plaintiff of psychological tests administered by Dr Williams would be unreasonable, but the real question is whether it can be said to be required by the plaintiff's obligation to give Dr Sale all the facilities he needs to ascertain fully the nature and extent of her injury. The word "facilities" is not defined in the section. The ordinary meaning of the verb "to facilitate" is to make easy or easier; thus "facilities" are the means or opportunities that render anything readily possible (Chamber's Twentieth Century Dictionary, New Edition, 1983), or opportunities for the easy or easier performance of anything (OED). In this context, they are the means or opportunities that make easier the ascertainment by the examining medical practitioner of the nature and extent of the injury. The authority to peruse existing X–rays, hospital and treatment records would normally, in my view, be such a facility, as would the supply of a sample of blood or urine. Although the section speaks of giving the facilities "to that medical practitioner", I do not regard that expression as confining the giving of facilities directly or exclusively to the examining medical practitioner. Thus if an X–ray were reasonably necessary to facilitate his diagnosis, I do not think the injured person would be entitled to refuse to be X–rayed by anyone other than that medical practitioner or some other medical practitioner so long as that other person was competent to undertake the task. The same could be said for the taking of a blood sample or the examination of samples by trained pathological staff who are not medical practitioners themselves. What is sought here is not, in my view, of any different kind, even though it seems that Dr Williams will, if not determine, at least advise what particular tests will be administered and will furthermore offer an interpretation of the results. I do not think this goes beyond giving, indirectly, facilities to Dr Sale to enable him to make his assessment.

1. In my view, the undergoing of the kind of tests contemplated by Dr Sale is a facility the plaintiff should afford him. Before ordering a stay, however, I propose to give the parties the opportunity to clarify what precise tests are required, and the plaintiff the further opportunity to submit to them without the compulsion of a formal order.