| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : REYNOLDS -v- THE STATE OF WESTERN AUSTRALIA [2013] WADC 67 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : 23 APRIL 2013 DELIVERED : 10 MAY 2013 FILE NO/S : CIV 1482 of 2009 BETWEEN : STEVEN NOEL REYNOLDS Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
BECTON PROPERTIES LTD
Second Defendant
PERPETUAL NOMINEES LTD
Third Defendant
KONE ELEVATORS PTY LTD
Fourth Defendant
Catchwords: Practice and procedure - Medical examination of plaintiff - Examination at plaintiff's home
Practice and procedure - District Court - Incidental jurisdiction
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Legislation: Civil Liability Act 2002 (WA)
Rules of the Supreme Court 1971 (WA) O 28, O 36A
Health Practitioner Regulation National Law (WA) Act 2010 Result: Application granted
Representation: Counsel:
Plaintiff : Mr G Droppert
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Mr MA Tedeschi
Solicitors:
Plaintiff : Shine Lawyers
First Defendant : Gilchrist Connell
Second Defendant : Jackson McDonald
Third Defendant : Jackson McDonald
Fourth Defendant : Bowen Buchbinder Vilensky
Case(s) referred to in judgment(s):
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
Berne v Waugh [1915] VLR 21
Boyes v Collins [2000] WASCA 344; (2000) 23 WAR 123
Cordwell v Austral Stevedoring Lighterage Co Pty Ltd [1962] NSWR 571
Crofts v State of Queensland [2001] QSC 220
Dowd v McCloskey [2005] WADC 99
Grassby v The Queen (1989) 168 CLR 1
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Hallett v Marie Kaye Cottam [2007] WASC 147
Leheste v The Minister for Health [2012] WADC 92
McComish v Sharpe [2002] WASC 96
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McKinnon v Commonwealth of Australia [1999] FCA 717
Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209
Naso v Cottrell (1995) 14 SR(WA) 256
O'Sullivan v Barton [1947] SASR 4
Pelechowski v Registrar, Court of Appeal [1999] HCA 19
Perpetual Trustees (WA) Limited v Naso [1999] WASCA 80
Prescott v Bulldog Tools Ltd [1981] 3 All ER 869
Re Monger; Ex Parte Dutch [2001] WASCA 220; (2001) 25 WAR 92
Rowe v Stoltze [2013] WASCA 94
Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25
Stace v Commonwealth of Australia (1989) 51 SASR 391
Starr v National Coal Board [1977] 1 All ER 243
State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218
The Queen v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738
Town of Mosman Park v Tait [2005] WASCA 124
Tremeer v City of Stirling [2002] WASCA 281
Volmer v Northern Territory Electricity Commission (1984) 30 NTR 21
Walsh v Aherns Holdings Pty Ltd [2001] WADC 93
Williams v Grainger [1999] WADC 133
Woods v The Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
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1 PRINCIPAL REGISTRAR GETHING: On 22 May 2003, the plaintiff, Mr Steven Reynolds, was injured when he fell disembarking a lift. The fall was due to the lift door opening with the floor of the lift slightly higher than the floor of the building he was alighting into. Among other defendants, he sued the fourth defendant, Kone Elevators Pty Ltd, alleging that it was responsible for the maintenance of the lift in question.
2 The action is listed for trial for 12 days commencing 5 August 2013. 3 Mr Reynolds claims that the injury has left him with a wide range of ongoing disabilities, including impairment of the fine motor control of the right hand, weakness to the right arm, unsteadiness of gait and cognitive impairment. In his particulars of damages, he claims he will require personal care and home assistance, as well as ongoing occupational therapy. His claim for future medical services and care and gratuitous services exceeds $800,000. 4 In his index of expert's reports filed pursuant to the District Court Rules 2005 r 45E (DCR) on 13 August 2012 Mr Reynolds advised that he intended to rely on a report by Jane Burns dated 1 May 2012. Ms Burns is a 'Certified Nurse Life Care Planner'. She operates through the business name 'Lighthouse Health Group' (I will refer to her report as the 'Lighthouse Report'). The Lighthouse Report includes a report by Jayne Cruttenden, an occupational therapist. The Lighthouse Report is annexed to an affidavit dated 13 March 2013 sworn by Ms Emma Blackman, a solicitor employed by Kone's lawyers. 5 In its index of expert's reports filed pursuant to DCR r 45E on 5 December 2012, Kone foreshadowed that it would be relying on the report of an occupational therapist at the trial of the action. 6 On 26 February 2013 Kone filed a chamber summons seeking orders pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 28 that Mr Reynolds attend three medical examinations. Only one of those examinations remains in issue, that by Ms Ruth Jodrell, an occupational therapist. 7 By agreement between the parties, Mr Reynolds was examined by Ms Jodrell at a venue known as the Independent Living Centre of Western Australia on 22 March 2013. Ms Jodrell produced a report dated 3 April 2013, which is annexed to a further affidavit filed by Ms Blackman dated 15 April 2013. (Page 5)
8 Kone assets that, in order to properly prepare for the trial of the action, Ms Jodrell needs to opportunity to assess Mr Reynolds in his home. It seeks orders to this effect. Mr Reynolds resists this application. 9 In order to determine the application, the following questions need to be considered: (a) What is the status of the Lighthouse Report and Ms Jodrell's report for the purposes of the RSC and District Court Rules 2005 (WA) (DCR)? (b) Is an occupational therapist a 'medical practitioner' for the purposes of RSC O 28? (c) Does the case management power of the District Court extend to making the orders sought? (d) Does the incidental jurisdiction of the District Court extend to making the orders sought? (e) If there is such a discretionary power, should it be exercised in favour of compelling Mr Reynolds to be examined in his home? 10 In order to place these issues in context, it is convenient to start with a review of the occupational therapy evidence exchanged to date and in evidence before me.
Review of the occupational therapy evidence 11 From the Lighthouse Report, it appears that both Ms Cruttenden and Ms Burns interviewed Mr Reynolds at his home on 6 March 2012. The assessment took some four hours. 12 Among other recommendations, Ms Burns is of the opinion that that Mr Reynolds should be provided with the services of an unlicensed health care worker for 26 hours per week on an ongoing basis. 13 Ms Cruttenden reported that Mr Reynolds presented with a wide variety of difficulties in the area of functional cognition. She recommends that Mr Reynolds be provided with: (a) certain specialised equipment 'to afford independence and increased function'; (Page 6)
14 Ms Cruttenden also notes a number of issues which Mr Reynolds should consider in either renovating his then current home or looking for a new one, such as adequate storage space throughout the home to allow a 'clutter free' set-up so that he can find things easily. 15 At the request of Kone's Lawyers, Ms Jodrell set out the following as to the rational for undertaking an occupational therapy assessment in a client's home: Thank you for your correspondence via email on 6 March 2013. I understand you are requesting rationale for undertaking an Occupational Therapy assessment in the client's home. This is not an essential requirement however in my opinion it is advantageous for the client and assists the therapist to undertake a thorough assessment in order to prepare a comprehensive report. The advantages of a home assessment are: • The client is likely to be more at ease in a familiar environment • The client is likely to operate at his optimal functional level in his own environment • The home environment allows the therapist to observe physical barriers of the accommodation by observing the client access and function in the bathroom, kitchen and outdoor areas in particular • The home environment allows the therapist to observe equipment use in a functional setting • Viewing of the internal design, layout and access of the house forms the basis of estimation of domestic support required • Viewing of the external features of the yard including size of the yard, landscaping, home pool and other variables form the basis of estimation of gardening and yard support required The alternative to a home based assessment (while not the preferred option) is to undertake an appointment at a neutral site such as the Independent Living Centre of WA. This venue houses a wide range of (Page 7)
16 As I have noted, Mr Reynolds, though his lawyers, agreed to be assessed by Ms Jodrell at the Independent Living Centre, which took place on 22 March 2013. The assessment took four and a half hours. Ms Jodrell prepared a comprehensive report which is before me in evidence. In an affidavit sworn 15 April 2013, Ms Blackman deposed that: 'The report of Ms Jodrell identified deficiencies in the assessment on account of being unable to observe [Mr Reynolds] in his home environment'. 17 Ms Jodrell describes the processes she undertook as follows (pages 1, 2): The information gained during the assessment is based largely on Mr Reynolds reports of his functional limitations rather than actual observation of his performance in the context of his home environment. Application of self-rating tools highlighted severe functional limitations in areas including money management, employment, instrumental activities, leisure, social contact, initiation, anxiety, problem solving, memory and attention. … The format of the report is based on the Occupational Performance Model (Australia) which provides a systematic method for occupational therapy (OT) assessment and gaining a comprehensive view of functional performance in daily living. Occupational Performance is the ability to perceive, desire, recall, plan and carry out roles, routines, tasks and sub-tasks for the purpose of self-maintenance, productivity, leisure and rest in response to demands of the internal and/or external Occupational environment. 18 As to the limitations of the approach she adopted, Ms Jodrell comments (page 12): Assessment and interview with Mr Reynolds in the context of his home environment was declined and therefore observation of functional tasks was limited to paper and pen tools. The information regarding Mr Reynolds' functional performance in personal and particularly instrumental activities of daily living is based on self-reports of his abilities rather than objective measures. (Page 8)
19 From the information reviewed by Ms Jodrell (which is consistent with the case pleaded in the statement of claim) it appears that Mr Reynolds has cognitive deficits, described by Ms Jodrell as including deficits in attention, information processing, managing time, memory, planning, spatial orientation and problem solving. 20 Ms Jodrell reports on the results of a series of self-assessment tools which she took Mr Reynolds through. From one of these tools, Ms Jodrell reports the following list of tasks which Mr Reynolds considered he had a lot of problem with (page 15): Occupational tasks in which he considered he had a lot of problem included: • Concentrating on his task • Taking care of the place where he lives • Taking care of others for whom he was responsible • Getting where he needed to go • Managing his finances • Managing his basic needs • Identifying and solving problems • Getting done what he needed to do • Having a satisfying routine • Being involved as a worker, volunteer and/or family member • Working towards his goals • Accomplishing what he set out to do 21 Under a discussion of 'home management skills', Ms Jodrell reported (pages 17, 18): (Page 9)
are stored. He agreed to email these photos to me for inclusion in the report but this did not eventuate. … Mr Reynolds reports that he finds it difficult to initiate, plan, organise and carry out domestic tasks. He explained that at one time he sat in the bathroom for three hours and didn't know what products to use, what process to use or in what order to clean. It is difficult to validate the severity of this task performance report in line with evidence that Mr Reynolds was able to do light cleaning and home duties over recent years. There is an absence of objective information and quantitative data about the frequency and the severity of his task impairment and the relationship between the cognitive impairment and depressed states. Clear indication of Mr Reynolds functional performance requires further assessment to determine objective and quantitative information of his task performance. When asked why he couldn't do basic housework Mr Reynolds explained that he found it overwhelming to initiate, plan and organise. When I suggested it would be worthwhile to visit and observe him in task performance he thought that if another person was present, watching him he would likely be able to do better as he would feel that he had to perform. This indicates that Mr Reynolds feels he has the ability to perform, however is lacking the organisational and/or motivational skills to carry out tasks on a regular basis. He said he can wash the dishes almost all the time but with more complex tasks 'It's like an iron curtain comes down'. Each week prior to the cleaner coming, Mr Reynolds will go around the house and lift all the stored boxes and paraphernalia off the tables and surfaces so she can clean. It appears that Mr Reynolds does his laundry and light house duties such as making the bed and changing bed linen but I did not confirm this with him. 22 Ms Jodrell's recommendations for future support includes domestic services and maintenance and gardening (page 24): Present indications are that Mr Reynolds can undertake simple tasks but is challenged by tasks which are more complex. It is likely that with appropriate intervention programs there will be some improvement in Mr Reynolds functional performance however on balance it may be appropriate to provide routine support for the heavier, more complex aspects of housework and occasional meal preparation. (Page 10)
23 Ms Jodrell annexes an 'Occupational Therapy Rehabilitation Program' which includes the following item (Appendix C):
| Issue | Objective | | 3. | Participating in household tasks | Within 6 months Steven will be participating in routine household tasks. | · Support Steven in identifying regular household tasks and incorporating these into his daily/weekly schedule · Support Steven to monitor task performance | 24 Ms Jodrell reports that Mr Reynolds is planning to sell his house and relocate into a two bedroom unit in Collier Village, a retirement village (pages 4, 9, 25). She reports (page 25): Mr Reynolds owns his house which is a three bedroom, two bathroom brick and tile home situated at the rear of a battle axe block on a 450sqm area. The driveway has a metal gate with secure monitored access. Twelve months ago, Mr Reynolds put his name down to purchase a two bedroom unit at Collier Park Village in Como. He has now secured a unit and plans to move in the next couple of months. Each unit at the Village has a small front and rear courtyard and a lock up garage with a remote controlled door and air conditioning. Mr Reynolds will have increased opportunities for socialisation and naturally occurring supports within the context of his new environment. Mr Reynolds has been working towards his move to the new location and said for the past year he has done something every single week, five days out of seven towards packing. When it comes time to move he plans to hire a removal company who will pack, move and unpack his belongings.
What is the status of Lighthouse Report and Ms Jodrell's report? 25 The significance of the status of the Lighthouse Report and Ms Jodrell's report is that if they are expert evidence for which leave is required before they can be tendered at trial, then it may appropriate for me to order that a condition of the grant of leave is that Mr Reynolds make himself available for further assessment by Ms Jodrell at his home. (Page 11)
26 The first issue that arises is whether the contents of the Lighthouse Report and Ms Jodrell's Report are expert evidence. Before expert evidence may be admissible as opinion evidence, the party seeking to adduce the evidence must establish, among other things, that: (a) the subject matter is of such a nature as to require a sufficient degree of specialised knowledge to render expert evidence admissible; and (b) the witness has relevant expertise in the area. Woods v The Director of Public Prosecutions (WA) [2008] WASCA 188;(2008) 38 WAR 217 [229] - [234]; Town of Mosman Park v Tait [2005] WASCA 124 [61] - [63]. 27 Reviewing the Lighthouse Report and Ms Jodrell's report, some of the contents of which I have summarised above, I am of the view that the subject matter of the future care needs of a person with disabilities requires a sufficient degree of specialised knowledge to render expert evidence admissible. I am also of the view that a nurse and an occupational therapist may have relevant expertise in this area, at least for the purposes of determining whether to grant leave to the parties to adduce expert evidence, with its attendant pre-trial disclosure regime. Evidence of this kind is routinely admitted in trials in this Court. I am reinforced in this view by the fact that both nursing and occupational therapy are health professions for the purposes of registration under the Health Practitioner Regulation National Law (Western Australia) contained in the schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA). 28 Whether the Lighthouse Report and Ms Jodrell's report are admissible at trial, either all or in part, and, if so, the weight to be given to each, are questions to be determined by the trial judge in the context of all the evidence adduced at trial. For present purposes, it is sufficient that I determine that the reports contain expert evidence for the purposes of RSC O 36A and are 'reports of any expert witness' for the purposes of DCR r 45E. 29 The issue then arises as to whether the Lighthouse Report and Mr Jodrell's Report comprise 'expert evidence on medical matters' for the purposes of RSC O 36A. (Page 12)
30 Mr Reynolds' claim is an 'action for personal injuries' as defined in RSC O 36A(1). This means that if the Lighthouse Report and Mr Jodrell's Report comprise 'expert evidence on medical matters' for the purposes of RSC O 36A, there is no requirement for the parties to obtain leave before adducing the evidence contained in their reports: RSC O 36A r 2, r 3. There is, however, a pre-trial disclosure regime that must be complied with before a party can lead expert evidence on medical matters at the trial of the action: RSC O 36A r 2; DCR r 45E. 31 In Re Monger; Ex Parte Dutch[2001] WASCA 220; (2001) 25 WAR 92, the Court of Appeal considered the meaning of the term 'medical evidence from a medical practitioner' in Workers' Compensation and Rehabilitation Act 1981 (WA) s 93D(6). That section dealt with the assessments of degrees of disability. The Court held that a report of a dentist was not 'medical evidence from a medical practitioner' for the purposes of s 93D(6). Malcolm CJ (with whom Wallwork J [110] and Owen J [112] agreed) relevantly observed [100] - [102]: 100 The first of these submissions raises the question whether 'medical evidence' in s 93D(6) of the Act refers only to evidence by a medical practitioner in this context, so that evidence from a dental surgeon is irrelevant or inadmissible. The term "medical evidence" is not defined in the Act, whether for the purposes of s 93D or otherwise. The ordinary and natural meaning of the word 'medical' is 'of or pertaining to the science and practice of medicine in general' and 'of or pertaining to conditions requiring medical treatment or diagnosis': New Shorter Oxford English Dictionary (1993); Macquarie Dictionary (3rd Ed, 1997). I have already referred to the ordinary and natural meaning of 'evidence' above. In my opinion the ordinary and natural meaning of the term 'medical evidence' is evidence given by a medical practitioner. The term 'medical practitioner' is defined in s 5 of the Act to mean:
101 'medical practitioner' means -
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102 Unfortunately, Dr Salleh is a Dental Surgeon and, as appears from his letterhead, is a 'dentist' within the meaning of the Dental Act 1939 (WA). Not being a medical practitioner he is not qualified to give the 'medical evidence' required by s 93D(6) … 32 The ordinary and natural meaning of the work 'medical' as discussed by Malcolm CJ is apposite to the context of RSC O 36A. I find that, on its ordinary and natural meaning, the phrase 'expert evidence on medical matters' requires the evidence to be given by a medical practitioner. Term 'medical practitioner' is now defined in the Health Practitioner Regulation National Law (Western Australia) to mean 'a person who is registered under this Law in the medical profession' (s 5). This interpretation of RSC O 36A is consistent with the interpretation of RSC O 28, dealing with examinations by medical practitioners, which I discuss below. 33 The implication of this finding is that neither Ms Jodrell's Report nor the Lighthouse Report are 'expert evidence on medical matters' for the purposes of RSC O 36A. This in turn means that the parties require leave to adduce this evidence pursuant to RSC O 36A(3). That rule provides: 3. Other expert evidence (1) This rule applies to expert evidence other than medical evidence in actions for personal injuries. (2) Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of a cause or matter unless the party seeking to adduce the evidence has applied to the Court to determine whether a direction should be given under this rule and has complied with any direction given on the application. (3) The application shall be made — (Page 14)
application to countermand the entry or at such later time as may be fixed by an order made on any such application. (4) Where an application has been made under this rule the Court, if satisfied that it is desirable to do so, may direct that — (a) copy of a report of an expert witness the substance of which a party intends to rely on at the trial or hearing of a cause or matter be served on; or (b) the substance of all or any expert evidence that a party intends to adduce at the trial or hearing be disclosed in writing to, such other parties and within such period as the Court may specify. 34 From my review of the file, I cannot see any order made pursuant to RSC O 36A in relation to any non-medical expert evidence, including the Lighthouse Report and Ms Jodrell's report. 35 The time limits in RSC O 36A r 3(2) have expired. However, the Court retains the power to grant leave waiving the requirement in RSC O 36A r 3(2) and allowing the parties to adduce the expert evidence. 36 In my view, the power to grant leave in RSC O 36A r 3(2) is sufficiently wide enough to comprise a potential source of power to make the orders sought by Kone. I return to the issue as to how this discretion should be exercised once I consider the remaining potential sources of power.
Is an occupational therapist a 'medical practitioner' for the purposes of RSC O 28? 37 Rules of the Supreme Court O 28 provides a regime for the examination of a party by a 'medical practitioner'. The first issue that arises in relation to this question is whether an occupational therapist is a 'medical practitioner' for the purposes of RSC O 28. This in turn will determine whether O 28 is the appropriate context in which to consider Kone's application. (Page 15)
38 The context in which the term 'medical practitioner' arises is RSC O 28(1), which provides: 1. Medical examination of a party (1) Where it becomes material in any cause or matter before the Court to consider the question of the physical or mental condition of any party, any opposing party may serve on such first-mentioned party a notice to submit himself for examination at a specified time and place by a medical practitioner provided and paid by the party requiring the examination. At any such examination a medical adviser chosen by the party to be examined shall be entitled to be present if the party so desires. 39 The term 'medical practitioner' is not defined in the RSC. 40 As I have already observed, the term 'medical practitioner' is defined in the Health Practitioner Regulation NationalLaw to mean 'a person who is registered under this Law in the medical profession' (s 5). This existence of this class of professional – 'medical practitioner' – strongly suggests that the equivalent term be given the same meaning in the RSC. 41 The term 'medical practitioner' may be contrasted to the term 'health professional' in the Civil Liability Act 2002 (WA) (CLA), which is defined in s5PA to mean: (a) a person registered under the Health Practitioner Regulation National Law (Western Australia) in any of the following health professions — (i) Aboriginal and Torres Strait Islander health practice; (ii) Chinese medicine; (iii) chiropractic; (iv) dental; (v) medical; (vi) medical radiation practice; (vii) nursing and midwifery; (viii) occupational therapy; (ix) optometry; (x) osteopathy; (Page 16)
(xi) pharmacy; (xii) physiotherapy; (xiii) podiatry; (xiv) psychology; or (b) any other person who practises a discipline or profession in the health area that involves the application of a body of learning. 42 The existence of the distinction between a 'medical practitioner' and a 'health professional' in legislation dealing with civil litigation again supports the view that the term 'medical practitioner' in RSC O 28 should be given the more limited, and technically precise, definition of: 'a person who is registered under the Health Practitioner Regulation National Law in the medical profession'. 43 The decision in Re Monger, referred to above, supports the view that the term 'medical practitioner' in RSC O 28 should be given the same meaning as in Health Practitioner Regulation National Law. 44 In Volmer v Northern Territory Electricity Commission (1984) 30 NTR 21, 27 O'Leary J held that the term 'duly qualified medical practitioner' in the equivalent NT rules meant 'a person engaged in (and, presumably, lawfully engaged in), and duly qualified to engage in, the practice of medicine'. 45 Counsel for Kone referred to the decision of Viol DCJ in Walsh v Aherns Holdings Pty Ltd [2001] WADC 93, submitting that is to the effect that the term 'medical practitioner' in RSC O 28 goes beyond a 'medical practitioner' as defined in the Medical Act 1984 (WA) s 3 (now replaced by the Health Practitioner Regulation National Law) and, in that case, included a neuro-psychologist. His Honour relied on four reasons for this view. 46 The first reason was that the term 'medical practitioner' is not defined in the RSC [4]. This continues to be the case. However, as I have noted, it is defined in the context of the regulation of health professions and in the CLA. 47 The second reason was that the 'essence of O 28 r 1 is to require a party, in appropriate circumstances, to undergo examination to enable each party to be properly advised and to be able to present its case fully - (Page 17)
a more liberal interpretation of the rule and the words, in particular 'medical practitioner', would give effect to this intention' [4]. 48 The third reason was that 'a wider and more liberal interpretation of the word 'examination' in the rule (other than examination by a doctor) was favoured by the Supreme Court in Perpetual Trustees (WA) Limited v Naso[1999] WASCA 80' (1999) 21 WAR 191, 193, 196. However, the medical practitioner in Naso was a psychiatrist. The psychiatrist appears to have recommended that the respondent undergo computerised tomography (CT), magnetic resonance imaging (MRI) and neuropsychological testing [14]. The Court adopted the view that 'examination' in RSC O 28 is 'to be understood in the light of normal medical practice and may involve tests and injections' including those contemplated by the psychiatrist. The decision is to the effect that the examination undertaken by a psychiatrist may include referring a person for neuropsychological testing. That is, neuropsychological testing could be carried out as a test by someone other than the psychiatrist, in much the same manner as a CT scan or MRI, as part of the examination by the psychiatrist, being a medical practitioner. On the facts of Walsh what was ordered was neuropsychological testing, as contemplated by Perpetual Trustees. 49 The fourth reason given by Viol DCJ was that use of the expression 'a medical adviser' in RSC O 28 r 1(1) suggests that the intention of the rule is not the limit 'medical practitioner' to a registered doctor of medicine. However, the term 'medical advisor' is used in distinction to the term 'medical practitioner' in the preceding sentence in RSC O 28 r 1(1). As a matter of construction, the Judges of the Supreme Court may be taken to have intended the two phrases used in RSC O 28 r 1 - 'medical advisor' and 'medical practitioner' - to have different meanings or else they would have used the same phrase: Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25, 30; O'Sullivan v Barton [1947] SASR 4, 8 - 9; D C Pearce & R S Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths, Australia, 2011), 119. 50 In my view, the term 'medical practitioner' in RSC O 28 should be given its more limited, and technically precise, definition of: 'a person who is registered under the Health Practitioner Regulation National Law in the medical profession'. This view is more consistent with the decision of the Court of Appeal in Monger than the decision of Viol DCJ in Walsh. The decision in Walsh at decision is best seen as following the outcome in Perpetual Trustees - allowing for neuropsychological testing under the general auspices of a medical practitioner being a psychiatrist – (Page 18)
than as persuasive authority for a wide interpretation of RSC O 28. Further, the enactment of the CLA subsequent to the decision in Walsh provides a compelling contextual change justifying a different conclusion to that in Walsh so as to avoid the same term – 'medical practitioner' – having two different meanings in the context of civil litigation. 51 For the sake of completeness, I note that the power in RSC O 28 r 2(1) to compel inspection of 'some physical object' is not sufficient to allow the court to compel a plaintiff to submit to a medical examination: Berne v Waugh [1915] VLR 21, 22.
Does the case management power of the District Court extend to making the orders sought? 52 Kone asserts that, in the event that the power in RSC O 28 is not available, the District Court nonetheless has a discretionary power to compel a plaintiff to allow an occupational therapist to examine him in this home. There are two potential sources of this power: 53 Turning to the first, on the hearing of a summons for an interlocutory order, the court may also make a case management direction: DCR r 33(1)(b). A case management direction is 'any procedural direction that in the court's opinion it is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously': DCR r 24(1). 54 Kone argued that the general power in DCR r 24(1), as well as the particular heads of power in r 24(h), (t) and (u), provide sufficient foundation for the court to make the order sought. 55 District Court Rules r 24(2)(t) provides that 'a case management direction may … give directions as to the manner in which the parties shall defray the costs of giving effect to any case management direction'. I cannot see how this paragraph provides any assistance to Kone. 56 District Court Rules r 24(2)(u) provides that 'a case management direction may … direct that a specified case management direction be complied with by a set date'. This paragraph does not provide any assistance to Kone. (Page 19)
57 District Court Rules r 24(2) is par (h), which provides that 'a case management direction may … direct the mode by which particular facts may be proved at trial'. Kone submitted that the particular facts sought to be proved at trial relate to the nature and extent of any inability Mr Reynolds alleges to have to care for himself in the various ways he is claiming against the defendants. What Kone appears to submit is that the mode by which it wishes to prove certain facts relating to Mr Reynolds' impairments is by Ms Jodrell observing him in his house. Whilst this assists Kone, it is probably not necessary to rely on it as the paragraphs of r 24(2) expressly do not limit r 24(1). 58 As to the general power in DCR r 24(1), counsel for Mr Reynolds argued that this power is 'manifestly not a grant of power to enable a citizen to be ordered to do something he would not otherwise be compelled to do without a lawful search warrant i.e. have someone enter upon his property without his consent, or in circumstances of emergency such as a fire' (Submissions, par 24). 59 The relevant limitation on the power in DCR r 24 is that the direction must be a 'procedural one'. In Rowe v Stoltze [2013] WASCA 94, the Court of Appeal (Newnes JA, with whom Pullin JA [1] and Murphy JA [75] agreed) considered the distinction between substance and procedure in the context of construing the phrase, 'regulating and prescribing the practice and procedure … to be followed in the Court' in District Court of Western Australia Act 1969 (WA) (DCA) s 88. Newnes JA stated [43] - [44]: 43 … The composite term 'practice and procedure' is well-understood. It refers to the method by which a legal right is established or enforced, as distinct from the law which gives or defines that right: Poyser v Minors (1881) 7 QBD 329, 333 - 334; Minister of State for the Army v Padbury Henty & Company Pty Ltd [1945] HCA 52; (1945) 70 CLR 459, 489. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176 - 177, Gibbs CJ, Aickin, Wilson and Brennan JJ, referred with approval to the following passage from Salmond on Jurisprudence (10th ed, 1974) 476: (Page 20)
'Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.' 44 It can be accepted that in its practical application that distinction is not always easy to draw; there is no bright line which distinguishes one from the other: see McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, 40. And while a power to make rules regulating practice and procedure does not confer a power to make rules which alter or make substantive rights, that is not to say that rules regulating practice and procedure may not affect the enforcement of substantive rights. Inevitably they do. As the court pointed out in Cleland v Boynes (1978) SASR 464, 473 - 474, the rights of the parties 'are necessarily altered, canalized and regulated by the rules of procedure'. 60 In my view, an order compelling a plaintiff to submit to an examination by a health professional at his home is capable of being a 'procedural direction' for the purposes of DCR r 24(1). It is a direction going to the manner in which expert evidence is to be obtained. It goes to the means by which Kone will defend the relevant aspect of Mr Reynolds claim, namely, his claim for damages for care and gratuitous services. The fact that it might, in effect, compel Mr Reynolds to be examined in his home does not deprive it of the characterisation of being a 'procedural' direction. An order with this effect could have been made pursuant to RSC O 28, which is made pursuant to the power in Supreme Court Act 1935 (WA) s 167(1)(a) to regulate 'the procedure … to be followed in the Supreme Court'.
Does the incidental jurisdiction of the District Court extend to making the orders sought? 61 The District Court has no inherent jurisdiction: Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209 [9], [16]; Rowe [1], [28], [75]. 62 The jurisdiction given to the District Court does, however, include 'all powers and authorities incidental to the exercise of jurisdiction': DCA s 6; Murcia [9],[16]; Rowe [1], [28], [75]. More specifically, in the exercise of its statutory powers the District Court is able to call upon and exercise such powers as are reasonably required for the proper carrying out of its functions: Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 [50] - [51]; Grassby v The Queen [1989] (Page 21)
HCA 45; (1989) 168 CLR 1, 4, 16 - 17, 21; Williams v Grainger [1999] WADC 133 [15]. 63 The limits of the incidental jurisdiction of the District Court have not been explored: Murcia [16]. However, it is clear that the District Court cannot exercise its incidental jurisdiction in a manner which would conflict with a provision of a statute or the rules of court: Rowe [1], [32], [75]. 64 Rules of the Supreme Court O 1 r 3A provides that the 'inherent power of the court to control the conduct of a proceeding is not affected by these rules'. This rule has not been modified in its operation in the District Court by the DCR. 65 The incidental jurisdiction of the District Court at least includes the power to correct irregularities in, and frauds upon, its own procedures and rules and prevent abuses of its process: Murcia [9], [16]. It also extends to allowing the court to make orders to correct deficiencies in discovery: Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 [3] - [5]; Chandler v Water Corporation [2004] WASC 95 [16]; Pollard v Endale Pty Ltd [2009] WADC 97 [10]. 66 The incidental jurisdiction of the District Court does not extend to an order to refuse to permit a solicitor to continue to represent a party in an action on the ground that there was a conflict of interest: Murcia [9], [16]. 67 Of particular relevance to present purposes, in Walsh¸ as an alternative to RSC O 28, Viol DJC ordered the plaintiff to submit to neuropsychological testing in the exercise of this incidental power. His Honour was of the view that the orders sought were reasonably necessary for the just determination of the case. 68 Viol DCJ referred to the decision of the Court of Appeal in Edmeades v Thames Board Mills Ltd [1969] 2 QB 67. That case concerned whether the court at first instance had the power in its inherent jurisdiction to stay an action until the plaintiff submitted himself to a medical examination arranged by the defendant. The Court of Appeal granted a stay. (Page 22)
69 Lord Denning MR stated (71): This court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not. I think that the request of the defendants was perfectly reasonable. They were faced with a new allegation which had not been made in the statement of claim, an allegation of osteo-arthritis. The defendants ought in all reason to have an opportunity of considering it and being advised upon it. They would need it in order to assess the amount to pay into court so as to dispose of the whole matter without it coming to trial. It might be different if the defendant had suggested one particular name to which the plaintiff could reasonably object ... But when six names are suggested and no reasonable objection taken to them, I have no doubt that the defendants ought to have the opportunity of having the plaintiff medically examined so that evidence can be given by one of those doctors. The court can ensure this result by granting a stay unless and until the plaintiff submits himself to such a medical examination. I would allow the appeal and grant a stay accordingly. 70 Widgery LJ made comments to similar effect (72 - 73): … I can see the objections that would be raised if it were sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused. But none of those objections, to my mind, arise where it is sought to give the plaintiff a right to elect between not going on with his action, or submitting himself to medical examination, especially where his refusal to be examined is based on no reason and will result in the defendants being unable to prepare their defence, and will thus result in the court being unable to do justice towards the defendants … If, in fact, the defendants is deprived of medical advice on some aspect of the case and the only evidence on that aspect is that given by the plaintiff's doctors, I see no way by which the balance can be adjusted. If the trial judge thinks that the plaintiff's doctors are credible, it seems to me that he would then have to follow their evidence and a great injustice to the defendant might arise. The test, I agree, is whether in the circumstances of the particular case it is reasonable that a stay should be ordered so that justice shall be done between the parties. 71 The judgment of the third member of the court, Davies LJ, is also to similar effect (72). (Page 23)
72 The comments of Lord Denning MR and Widgery LJ to the effect that the court may act to ensure the just determination of the action before it resonate with the comments of members of the High Court that 'the ultimate aim of a court is the attainment of justice': State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154. 73 In my view, the ability of the court to exercise such powers as are reasonably required for the proper carrying out of its functions includes the power to control the manner in which expert evidence is obtained. It has the potential to include orders of the kind sought by Kone. The key question in the exercise of this discretion in the present case is whether the exercise of this power to grant the orders sought by Kone is reasonably required for the just determination of the case.
Exercise of the discretion 74 From the analysis set out above, there are thus three potential sources of power to make the orders sought by Kone: (a) as a condition of the grant of leave to adduce expert evidence pursuant to RSC O 36A r 2; (b) as a procedural direction that in the court's opinion is just to facilitate the case being conducted and concluded efficiently, economically and expeditiously pursuant to DCR r 24(1); and (c) as an order that is reasonably required for the just determination of the case in the incidental jurisdiction of the court. 75 The discretionary issues for each source of power are essentially the same. It is thus convenient for me to consider the factors for and against the grant of the orders sought by Kone together. 76 The principles which emerge from the decided cases as to the exercise of the power to order a stay in RSC O 28 offer an instructive framework to consider the exercise of the discretion in the present case. The relevant context in RSC O 28 is r 3: If any party fails to submit himself for examination as required by this rule, or in any way obstructs the examination, the Court may order that the proceedings be stayed, either wholly or in part, until the examination has taken place, or that any pleading be struck out. (Page 24)
77 The principles are: (a) whether or not to grant a stay involves the exercise of the court's discretion; (b) in exercising that discretion it is necessary for the court to balance the right of one party, the plaintiff, to personal liberty, against the right of the other party, the defendant, to defend himself in litigation as he thinks fit; (c) in assessing the defendant's position, the court should inquire whether the defendant's request is subjectively reasonable in the light of the information and advice received by the defendant from its experts; (d) in assessing the reasonableness of the defendant's position, the court should consider whether the plaintiff's refusal would deprive the defendant of its expert of choice or otherwise impact on the just determination of the action; (e) in assessing the plaintiff's position, the court should inquire whether the plaintiff's objection is subjectively reasonable in the light of the of the information and advice received by the plaintiff from his experts; (f) in assessing the reasonableness of the plaintiff's position, the degree of discomfort, intrusion, inconvenience and risk of further harm is relevant, the weight of the reasonableness of the plaintiff's objections bearing a close correlation to the degree of these matters; (g) in undertaking the balancing exercise, court should examine objectively the weight of the reasonableness of the defendant's request as seen by the defendant and the weight of the reasonableness of the plaintiff's objections as seen by him, and balance the one against the other in order to ensure a just determination of the cause, taking into account their reasonable requirements and objections at the time of the exercising of the discretion; and (Page 25)
(h) in undertaking the balancing exercise, the court does not have to decide objectively whether the examination sought is necessary: Starr v National Coal Board[1977] 1 All ER 243, 251, 254; Prescott v Bulldog Tools Ltd [1981] 3 All ER 869, 874 - 877; Crofts v State of Queensland [2001] QSC 220 [24], [25]; Stace v Commonwealth of Australia (1989) 51 SASR 391; McKinnon v Commonwealth of Australia [1999] FCA 717; Naso v Cottrell (1995) 14 SR(WA) 256, 260 - 262. 78 Whilst these factors are all relevant, I am conscious that the discretions I am exercising in the present case are wider than that in RSC O28; nevertheless, these factors are an instructive framework. The analogy between an occupational therapist and a medical practitioner arises from the fact that that are both regulated as 'health professionals' under the Health Practitioner Regulation National Law and are both subject an equivalent duty of care under the CLA. 79 From the arguments presented to me and my review of the matter, there are six main factors supporting the grant of the orders sought by Kone: • Mr Reynolds has placed in issue his need for care and gratuitous services, so must accept some imposition on his personal liberty in order to allow Kone to defend the claim. • There is no evidence before me that Mr Reynolds will suffer any particular adverse impact if assessed in his home by Ms Jodrell. • The imposition of an assessment in Mr Reynolds home is minimal. • An assessment by an occupational therapist in Mr Reynolds home is relevantly analogous to an order that could have been made pursuant to RSC O 28. • Mr Reynolds allowed both Ms Cruttenden and Ms Burns to assess him in his home. • The inability of Ms Jodrell to assess Mr Reynolds in his home will give him a forensic advantage at the trial of the action. 80 The first factor is that Mr Reynolds has placed in issue his need for care and gratuitous services so must accept some imposition on his personal liberty in order to allow Kone to defend the claim. He has obtained and foreshadowed reliance on the opinions of occupational (Page 26)
therapists and care professionals in order to persuade the court of his claim for future medical services and care and gratuitous services. In his particulars of damages filed 16 March 2012, he has claimed over $800,000 for this head of damages. Having put this in issue, he must be taken to accept that Kone is entitled to test his claim, at least with the same rigour with which he is pursing it. 81 The second factor is that there is only limited evidence before me of the impact of a visit by Ms Jodrell at Mr Reynolds' home. There is no affidavit evidence from him as to why he does not want to be examined in his home. There is no evidence from Mr Reynolds that he would find an examination in his home distressing. There is no evidence from, say, a treating psychiatrist, psychologist or general practitioner to the effect that a home visit would be detrimental to Mr Reynolds health, mental state or even wellbeing, or that it would exacerbate his current psychiatric or psychological condition. All there is, is the comment quoted at par [21] reported by Ms Jodrell that Mr Reynolds found it 'overwhelming' when previous therapists visited to assess him. 82 There is no evidence before me that Mr Reynolds will suffer any particular adverse impact if assessed in his home by Ms Jodrell. Put slightly differently, I am not satisfied that Mr Reynolds' objection is subjectively reasonable in the light of the information and advice he has received from his medical advisers. 83 The third factor is that the nature of the imposition is minimal. In Prescott, Webster J referred to the following typography of impact (874 - 875): For my part I would only distinguish between the following examinations: first, an examination which does not involve any serious technical assault, but involving only an invasion of privacy; second, an examination involving some technical assault, such as a palpation; third, an examination involving a substantial assault but without involving discomfort and risk; fourth, the same, that is to say a substantial assault, but involving discomfort and risk; and fifth, an examination involving risk of injury or to health… It seems to me that the weight of the reasonableness of the plaintiff's objections … must bear a very close correlation to the order in which I have listed those distinctions. 84 An assessment of Mr Reynolds in his home would be in the lowest of these categories. 85 The minimal nature of the imposition is a factor with much weight in the balancing process in favour of the grant of the orders sought by Kone. (Page 27)
86 The fourth factor is that an occupational therapist is relevantly analogous to a medical practitioner. The nature of the assessment sought is what might be described as a normal examination by an occupational therapist, evidenced in part by the fact that it is the same type of assessment as undertaken by Ms Cruttenden, the occupational therapist engaged by Mr Reynolds. 87 The level of imposition in the order sought by Kone is of the same order of imposition as an examination that may be ordered pursuant to RSC O 28. 88 The term 'examination' in RSC O 28 is to be 'understood in the light of normal medical practice and may involve tests and injections': Perpetual Trustees [15]. It includes: (a) a clinical examination - McComish v Sharpe [2002] WASC 96 [12]; (b) a blood test or a moth swab - McComish [12], though see Hallett v Marie Kaye Cottam [2007] WASC 147 [59]; (c) a CT scan or an MRI - Perpetual Trustees [1], [14] - [15]; (d) an MRI scan under anaesthesia: Crofts [24], [25]; and (e) a test involving running water 4 degrees above or below body temperature into the outer ear canal – Prescott, 872. 89 In Cordwell v Austral Stevedoring Lighterage Co Pty Ltd [1962] NSWR 571, Richardson J stated that a defendant is entitled to call for such examination as would give him the opportunity of being 'fairly apprised of the nature of the case he is a called to meet', citing The Queen v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, 740. 90 In Volmer, O'Leary J was of the view that the defendant was entitled to call for such examination as is necessary for a 'just determination of the cause' (27). 91 Moreover, the power in RSC O 28 is wide enough to have allowed the court to make an order that such an examination take place at the plaintiff's home. RSC O 28 r 1 provides that 'the examination is to take place at a specified time and place'. RSC O 28 r 2A empowers the court to make orders where a party objects to complying with the notice issue pursuant to r 1. Specifically, 'either party may apply to the court for an (Page 28)
order as to whether or not the objecting party shall submit himself for examination, or as to when and where such examination may be made, or as to any other matters to facilitate the examination'. I can readily imagine examples in which an examination at the home of a plaintiff may be ordered, including where a plaintiff is a quadriplegic confined to bed or where the plaintiff has anxiety or panic disorders such that a psychiatric examination other than at the plaintiff's house would be so impacted by the symptoms arising from actually leaving the house, that it would not provide a meaningful opportunity for a psychiatrist to examine the plaintiff. 92 The fact that an assessment by an occupational therapist in Mr Reynolds home is relevantly analogous to an order that could have been made pursuant to RSC O 28 is a factor suggesting that making an order using the case management powers of the court, or its incidental jurisdiction, to achieve the same outcome is a reasonable exercise of those powers. 93 The fifth factor is that Mr Reynolds allowed both Ms Cruttenden and Ms Burns to assess him in his home. In the context of RSC O 28, one factor going to objective reasonableness is whether the plaintiff undertook the same form of examination requested by the defendant for the purpose of his medical practitioner preparing a report. In Prescott the defendant sought, among other tests, that the plaintiff submit to a caloric test, being a test involving running water 4 degrees above or below body temperature into the outer ear canal (872). This arose in the context of the plaintiff's claim that he suffered noise induced industrial deafness induced by the negligence of the defendant, his employer. Webster J granted order. In doing so his Honour stated (876): On the other hand, it seems to me, and I have so found, that the reasonableness of the defendants' request for their expert to carry out a caloric test outweighs the reasonableness of the plaintiff's objection to that test being carried out. He had it done once for the purpose of being examined by his own expert and it could, it seems to me, fairly be said that there would be one law for plaintiff and another for defendants if he refuses to have a similar test carried out by the defendants' expert, although it is a pity that it was not possible for arrangements to be made for a joint test to be carried out. 94 The sixth factor follows from the fifth, and is that the inability of Ms Jodrell to examine Mr Reynolds in his home will give him a forensic advantage at the trial of the action. In order for Ms Jodrell's report to be admissible as opinion evidence, the factual basis on which her opinions (Page 29)
are sought must be proven: Woods [230]; Town of Mosman Park [63]. On her report as it currently stands, a significant factual basis is Mr Reynolds self-assessment. The reliability of this self-assessment is of concern as one of Mr Reynolds disabilities is a cognitive impairment, including memory issues. Ms Jodrell found that it was 'difficult to validate the severity' of the difficulties reported by Mr Reynolds in initiating, planning, organising and carrying out domestic tasks. She states that further assessment is required (see the passage quoted at [21]). 95 Ms Cruttenden had the advantage of observing Mr Reynolds in his home environment, so as to be able to validate at least some of the information given by Mr Reynolds. In the event of a contest between the opinions of Ms Cruttenden and Ms Jodrell, one basis for the judge to resolve the conflict is to prefer Ms Cruttenden's opinion on the basis that she has observed Mr Reynolds in his home. The present action involves as assessment of Mr Reynolds current needs, so recent observation is important. It is not one which turns on the assessment of documents recording what happened in the past, for example, documents recording symptoms experienced at or shortly after the date of the alleged negligence when a plaintiff was treated in hospital some years prior to the litigation commencing (see for example Leheste v The Minister for Health [2012] WADC 92 [397]). 96 In view of these six factors, I consider that Kone's request to have Ms Jodrell assess Mr Reynolds in his home is subjectively reasonable. 97 From the arguments presented to me and my review of the matter, there are three main factors going against the grant of the orders sought by Kone: • Ms Jodrell's conduct towards Mr Reynolds to date • It is not apparent from Ms Jodrell's report that there is a need for Mr Reynolds to be examined at his home • Mr Reynolds is in the process of moving house, so that any review in his current house will be of limited relevance at trial 98 As to the first factor, counsel for Mr Reynolds submitted that Ms Jodrell's conduct towards Mr Reynolds should weigh against her being allowed further access to him, and that it is a significant factor against the exercise of any discretion to compel Mr Reynolds to be examined at his (Page 30)
home. Counsel submitted that Ms Jodrell had strayed into the realm of being an advocate. 99 This submission had two aspects. The first is that Ms Jodrell sought to visit Mr Reynolds at his home when his lawyers had not conveyed any permission to do so. Ms Blackman, in an affidavit sworn 26 February 2013, stated that she was advised by Ms Jodrell that she had attended Mr Reynolds' home on 11 February 2013 for the assessment, but Mr Reynolds did not answer. The train of correspondence annexed to Ms Blackman's affidavit reveals ongoing negotiations between Kone's lawyers and Mr Reynolds' lawyers from 19 December 2012 to 11 February 2013, culminating in an email that morning from Ms Blackman to Mr Reynolds' lawyers in which she states: 'We await your urgent confirmation, preferably by telephone, as to whether your client will participate in the assessment with Ms Jodrell at his home at 10:00am today'. Ms Blackman does not give evidence of having received a reply to this email. 100 I do not read anything improper into the fact that Ms Jodrell attended Mr Reynolds home on 11 February 2013. I do not infer anything other than communication issues between Kone's lawyers and Mr Reynolds' lawyers, leading to communication issues between Kone's lawyers and Ms Jodrell. 101 The second aspect is that, from Ms Jodrell's report dated 3 April 2013, counsel for Mr Reynolds submitted that it is apparent that she sought to persuade Mr Reynolds to allow her to interview him at home. I have quoted the relevant portions of Ms Jodrell's report above [21]. Again, I do not read anything improper into Ms Jodrell's report of what was discussed. In particular, she has been transparent in reporting the conversation which she had with Mr Reynolds. 102 To the extent that either Mr Reynolds or his lawyers may have issues with Ms Jodrell's approach, were a home assessment otherwise appropriate, these issues could be managed by providing for Mr Reynolds to have a support person present, analogously to what is anticipated for a medical assessment in RSC O 28 r 1(1). 103 The second factor raised is that it is not apparent from Ms Jodrell's report that there is a need for Mr Reynolds to be examined at his home. Counsel submitted that Kone has put on no evidence that Ms Jodrell needs to assess Mr Reynolds in his home or that it cannot defend the claim without such an order. (Page 31)
104 It is readily apparent that Ms Jodrell has prepared a comprehensive report. She does not state that she was unable to complete her report, or any aspect of it, because she was unable to assess Mr Reynolds in his home. Nor is there any specific evidence from Ms Jodrell following her report to the effect that she requires the opportunity to assess Mr Reynolds in his home environment. 105 Counsel for Mr Reynolds referred to the email from Ms Jodrell quoted at [15]. Two of the stated advantages of a home assessment are that the 'client is likely to be more at ease in a familiar environment' and the 'client is likely to operate at his optimal functional level in his own environment'. Counsel referred to Ms Jodrell's comments about how he felt overwhelmed by the previous visits of the therapists and that he would be likely to 'do better' in performing a task if someone was watching (quoted at [21]). His submission was, in essence, that the advantages stated by Ms Jodrell were not valid in the present case. 106 Counsel for Mr Reynolds also submitted that it is apparent from Ms Jodrell's report that she did not take advantage of the facilities available at the Independent Living Centre. As I have set out above [15], the reason for an assessment at the Independent Living Centre, as opposed to Ms Jodrell's office, was because that venue 'houses a wide range of equipment items which can be accessed if necessary to support discussion and assessment with a client'. However, at the assessment, her observation of 'functional tasks was limited to paper and pen tools' [18]. Having declined to use the facilities at the Independent Living Centre, counsel submitted that Ms Jodrell should not be given a further opportunity to assess Mr Reynolds in his home. 107 However, as I have observed above [94], Ms Jodrell did raise a concern in her report as to her ability to validate the difficulties reported by Mr Reynolds and did identify a need for further assessment. 108 The third factor is that Mr Reynolds is in the process of moving house, so that any review in his current house will be of limited relevance at trial. The evidence before me on this issue is set out above [24]. However, it is not apparent to me when Mr Reynolds will move, in particular, whether he will move prior to trial. Moreover, any observation of him performing tasks in one home environment will have relevance to him performing more or less the same task in another home environment. (Page 32)
109 Balancing these factors, I am of the view that it is appropriate to make that orders along the lines sought by Kone. The essence of the risk of injustice in the present case is that Mr Reynolds is seeking to rely on expert evidence obtained on a basis which included an assessment in his home whilst at the same time denying Kone the opportunity to meet this evidence with expert evidence obtained on the same basis. Even though Ms Jodrell did produce a comprehensive report, her report, and thus her evidence, was produced on a different basis to the Lighthouse Report. This leaves open the risk of an unwarranted forensic advantage to Mr Reynolds at trial. This in turn will impact the just determination of the action. The imposition on Mr Reynolds is minimal compared to orders that could be made pursuant to RSC O 28, an imposition he was prepared to accept for his experts.
What are the appropriate final orders? 110 In my view, orders along the following lines are appropriate in this action: 1. subject to par 2, the parties have leave to adduce expert evidence at the trial of the action from appropriately qualified experts who are not medical practitioners on the issue of the care and assistance required by Mr Reynolds; 2. the leave in par 1 is conditional upon Mr Reynolds notifying Kone in writing within seven days of the date of this order that he consents to being assessed at his house by an occupational therapist retained by Kone; 3. Mr Reynolds be entitled to have a support person agreed by the parties (and failing agreement determined by the court) present for the duration of the assessment in par 2; 4. Kone direct the occupational therapist undertaking the assessment in par 2 to provide a report of the assessment within 7 days of the date of the assessment; 5. Kone serve on each other party a copy of the report obtained pursuant to par 4 within 2 business days of receipt of the report; and 6. there be liberty to apply in relation to the implementation of these orders, including to set the date, time and duration of the assessment. (Page 33)
111 I am satisfied that orders in these terms are both within power and an appropriate exercise of discretion: (a) as a condition of the grant of leave to adduce expert evidence pursuant to RSC O 36A r 2; (b) as procedural directions that are just to make to facilitate the case being conducted and concluded efficiently, economically and expeditiously pursuant to DCR r 24(1); and/or (c) as being orders that are reasonably required for the just determination of the case in the incidental jurisdiction of the court. 112 In addition to the analysis I have undertaken above, there are two further general principles which reinforce the view that I have taken the orders I propose are an appropriate exercise of the relevant discretions. The first is that for many years courts in Western Australia have insisted that litigation, and in particular personal injuries litigation, be conducted on a 'cards on the table' approach: Boyes v Collins [2000] WASCA 344; (2000) 23 WAR 123 [1], [64] - [68], [93]. In Boyes, this policy influenced the court to require the respondent to disclose a surveillance video of the appellant prior to the trial of the action if it was going to rely on that video at the trial. The 'card' in the present case is the ability to observe and assess Mr Reynolds in his home environment. It should be 'on the table' by allowing Ms Jodrell the same opportunity on behalf of the Kone as he afforded Ms Burns and Ms Cruttenden. 113 The second general principle is that of fairness, in a particular as it arises in the context of the opportunity given to a party to review the basis of the expert evidence sought to be adduced by their opponent. A party will be taken to have waived legal professional privilege if it would be unfair for the party to maintain the privilege: Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 418, 487 - 488, 492 - 49, 497 - 498. This principle has been applied in a number of cases in which an expert has relied on privileged material in the preparation of his or her report. Disclosure (by waiver of privilege) in these cases is necessary on the ground of fairness to ensure that the experts of the opposing party are able to opine on the same factual matrix as the expert of the party asserting the claim for privilege: see generally Dowd v McCloskey [2005] WADC 99. This is consistent with the purpose of rules requiring disclosure of expert evidence, being 'that of ensuring that no-one is taken by surprise at trial and that each party [has] an adequate opportunity to consider, investigate and, if necessary, answer expert (Page 34)
evidence to be led by an opposing party': Tremeer v City of Stirling [2002] WASCA 281 [33]. In the present case, it is necessary for Ms Jodrell to observe Mr Reynolds in his home in order to be able to opine on an equivalent basis to Ms Burns and Ms Cruttenden. 114 I will hear from counsel as to the final form of the orders and costs.
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