Richardson v Whymark Nominees Pty Ltd

[2001] WADC 169

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   RICHARDSON -v- WHYMARK NOMINEES PTY LTD [2001] WADC 169

CORAM:   WILLIAMS DCJ

HEARD:   9 JULY 2001

DELIVERED          :   Delivered Extemporaneously on 9 JULY 2001 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 630 of 1999

BETWEEN:   JASON JOHN RICHARDSON

Plaintiff

AND

WHYMARK NOMINEES PTY LTD
Defendant

Catchwords:

Procedure - Supreme Court procedure - Defendant requiring plaintiff to attend for medical examination - Whether condition placed by plaintiff reasonable

Legislation:

Rules of the Supreme Court O 28

Result:

Condition that plaintiff be allowed to videotape interview and clinical examination not reasonable in circumstances of this case

Representation:

Counsel:

Plaintiff:     Mr R R Cywicki

Defendant:     Mr A Adam

Solicitors:

Plaintiff:     S C Nigam & Co

Defendant:     Jackson McDonald

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

Van Dongen v Masters Dairy [2001] WASCA 1

Case(s) also cited:

Nil

1. WILLIAMS DCJ: This is a chamber summons on the application of the defendant for an order that the plaintiff submit himself for a medical examination pursuant to O 28 of the Rules of the Supreme Court.  The defendant has filed an affidavit of one Linda Therese Wendt sworn 4 July 2001 in support of the application and that affidavit indicates that the trial of this matter is listed for a five day trial commencing on 6 August 2001.

2. The plaintiff has been previously reviewed by Mr Brash, an Orthopaedic Surgeon, on 13 July 1999.  It is the defendant's intention to call Mr Brash to give evidence at the trial.  The plaintiff has been notified that the defendant will call Mr Brash.  For the purposes of providing Mr Brash with an opportunity to review the plaintiff prior to trial, arrangements were made for the plaintiff to be reviewed by Mr Brash on 10 July 2001.

3. On 23 April 2001 the solicitors for the defendant wrote to the plaintiff's solicitors, advising of the appointment.  By letter dated 30 April 2001 the solicitors for the plaintiff wrote to the defendant's solicitors, advising that the plaintiff had instructed that he would attend the medical appointment with Mr Brash.

4. By letter dated 29 June 2001 the solicitors for the plaintiff wrote to the solicitors for the defendant, stating:

   "Our client has instructed us that he wishes to videotape the interview and clinical examination by Mr Brash at the time of his appointment with him on 10 July 2001 at 10.30 am, in order to keep a true record of the proceedings.  Please confirm that the arrangement will be acceptable to Mr Brash."

5. Upon receipt of that letter, the defendant's solicitors wrote to Mr Brash and by letter dated 3 July they received Mr Brash's response.  That indicates that Mr Brash had sought advice on the matter and he concluded his letter by saying:

   "I find the suggestion that the consultation be recorded, either by audio or video, to be completely unacceptable to me."

6. Upon receipt of Mr Brash's attitude, the deponent telephoned the plaintiff's solicitors on 3 July, was told that they would take their client's instructions about complying with the request without the videotape, but at the time of swearing her affidavit she had not had a response from the plaintiff's solicitors.

7. The deponent says that she verily believes that it is in the interests of the Court that Mr Brash review the plaintiff prior to trial.  In view of the fact that Mr Brash has seen the plaintiff on two previous occasions, in my view that is appropriate.  Furthermore it is said that it may not be possible for Mr Brash to review the plaintiff other than on 10 July 2001, as this matter is listed for trial commencing on 6 August 2001.  I note that the appointment time is tomorrow morning, hence my reasons for decision this afternoon.

8. The plaintiff has filed an affidavit in relation to this application.  In that affidavit he states that he was reviewed by Mr Brash on 11 June 1998.  During the course of the medical review Mr Brash was abrupt and intimidating to him which he considered was unnecessary and further during the clinical examination Mr Brash manhandled him to the extent that he required extra analgesic medication and physiotherapy at Lifecare to reduce his symptoms.

9. He states that on or about 13 July 1999 he attended upon Mr Brash for a further medical review, on that occasion in the company of his father.  My understanding was that it was also in the company of his father on the first occasion.  He says that again on that occasion Mr Brash acted in an abrupt and intimidating manner and he concludes by saying that by reason of his past experiences, he is fearful of undergoing the review by Mr Brash as such review may aggravate his medical condition.  Furthermore the stresses associated with the review may jeopardise the prospects of him being assessed objectively.

10. This matter is to be determined in accordance with O 28 of the Rules of the Supreme Court.  The parties are agreed that the real question raised is whether, in all the circumstances, it was reasonable for the plaintiff to impose the condition that he did, that is, the condition that he videotape the interview and clinical examination; see Van Dongen v Masters Dairy [2001] WASCA 1 at 25.

11. In my view, the following matters are relevant: firstly, the fact that the request was made on 23 April 2001, that is, well before the trial date.  It was appropriate, in my view, that the request be made.  That request was accepted on 30 April 2001 without any reference to the videotaping of the interview and clinical examination.  It's not until 28 June 2001 that the condition is imposed.  As I have said before, the trial date is 6 August 2001 for five days.

12. It's clear from Mr Brash's letter that he has taken advice on the matter and his view is that it is completely unacceptable.

13. Order 38 r 1A provides that a medical adviser, chosen by the party to be examined, shall be entitled to be present if the party so desires.  In this case, the plaintiff has previously attended with his father and on neither occasion has he complained in the terms of his affidavit, sworn 5 July 2001.

14. In my view, taking all of those matters into account, I'm of the view that it's not reasonable for the plaintiff to impose the condition that he did. I'm therefore of the view that it's appropriate that I make an order that the plaintiff submit for a medical examination pursuant to O 28 of the Rules of the Supreme Court; that appointment being tomorrow 10 July 2001, at 10.30 am.  At that time, the plaintiff is entitled to take a medical adviser chosen by him and/or his father.