SAKIN v Macdonald Johnston Pty Ltd [No 2] - [2015] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SAKIN -v- MACDONALD JOHNSTON PTY LTD [No 2] [2015] WADC 84

CORAM: REGISTRAR KINGSLEY

HEARD: 26 JUNE 2015

DELIVERED : 17 JULY 2015

FILE NO/S: CIV 1292 of 2011

BETWEEN: NADIR SAKIN
Plaintiff
AND
MACDONALD JOHNSTON PTY LTD
Defendant

Catchwords:

Practice - Application pursuant to O 28 Rules of the Supreme Court 1971 - Turns on own facts

Legislation:

Nil

Result:

Order granted

Representation:

Counsel:

Plaintiff: Ms Sorgiavanni
Defendant: Ms Seggie

Solicitors:

Plaintiff: Sorgiovanni Legal
Defendant: Sparke Helmore

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

Naso v Cottrell (1995) 14 SR (WA) 256
Starr v National Coal Board [1977] 1 All ER 243

REGISTRAR KINGSLEY: The defendant has brought an application seeking orders that the plaintiff, pursuant to O 28 r 1 Rules of the Supreme Court 1971, submit himself for examination by Dr Christopher Hammersley, occupational physician, and Dr Gemma Edwards‑Smith, psychiatrist.
In considering an application pursuant to O 28 Rules of the Supreme Court the starting point is to look at the defendant request and ask: is the request reasonable (Starr v National Coal Board [1977] 1 All ER 243). Where a reasonable request is made then a defendant is entitled to insist on examination of the plaintiff by a properly qualified medical practitioner, unless it is shown, having regard to the circumstances, the examination would be unfair or unreasonable (Naso v Cottrell (1995) 14 SR (WA) 256).
The plaintiff issued a statement of claim in September 2012 after filing a writ in April 2011. The plaintiff alleges that in December 2008 he was injured when the side loading arm of a garbage truck malfunctioned and struck the plaintiff in the vicinity of his left knee. As a result of that injury, the plaintiff has ongoing disability, which includes a psychological and psychiatric component.
In the course of preparing its case, the defendant's solicitor referred the plaintiff to Dr Hammersley for medical examination. Dr Hammersley had previously provided a report to the defendant's solicitor in February 2011. An appointment was made for the plaintiff to attend Dr Hammersley on 11 February 2015, and the plaintiff's solicitors were notified of that date.
On 20 January 2015 the plaintiff's solicitors advised the defendant's solicitors that the appointment with Dr Hammersley had been cancelled by Dr Pauline Swan on the grounds the plaintiff was medically unfit to attend. The medical note from Dr Swan states:
Was reviewed by me today and he is medically unable to attend Dr Hammersley on Wednesday 11/2/15 on medical grounds.
Throughout the medical reports there are numerous references to the plaintiff's psychological difficulties. I have had the advantage of reading the affidavit of Elizabeth Anne-Louise Seggie sworn 17 June 2015 which attached a considerable number of medical notes and reports. As early as October 1997 in a report by Dr John Rosenthal in relation to a motor vehicle accident, Dr Rosenthal stated that the plaintiff exhibited a florid abnormal illness behaviour so as to render any attempt at physical examination useless. In September 2009 the plaintiff's then GP had referred the plaintiff to Dr Peter Hoffman for a psychiatric assessment due to a known history of anxiety disorder. The general practitioner noted that the plaintiff has no other significant known medical history but is known for having previous complicated recovery after relatively small trauma.
Dr K Moller in her report dated 3 March 2015 details consultations dating back to January 2006. The diagnosis in 2006 was mild ongoing anxiety. On 4 August 2009 the report notes that the plaintiff described deterioration in mental state, experiencing panic attacks, low mood and anhedonia sleep disturbances. On 6 August 2009 the plaintiff attended his general practitioner, Dr Gabor Balint but the doctor makes no mention of any attendance on Dr Moller.
Throughout the period 2010 – 2015, Dr Moller details the various consultations and there is a constant theme of ongoing depressive symptoms and anxiety which at various times are occasional, stable (relatively), ongoing stable, and, on one occasion in 2012, an increase in depressive and anxiety symptoms.
The plaintiff was seen by Dr Hammersley in January 2010. Dr Hammersley in his report found the plaintiff engaging, yet prone to surging outburst at times, principally featuring anger against his employer. Dr Hammersley goes on to say that whilst he seemed reactive to Dr Hammersley (perhaps excessively) he was able to report variability in pain with plausibility and naturalness. In a report by Mr Phillip Hardcastle in February 2010, Mr Hardcastle does note that depression does appear to be a factor in the plaintiff's presentation. However there is no reference in Mr Hardcastle's report of any difficulties by the plaintiff in undergoing the examination.
It is clear from the medical reports that the plaintiff is presenting to medical practitioners and medical specialists with significant illness behaviour related to ongoing knee pain subsequent to a work injury. The medical specialists note significant depressive symptoms.
This action is one for damage arising out of the work injury and, certainly for the defendant, it is important to understand the nature of the ongoing knee pain and the psychological symptoms to determine what case the defendant has to meet.
In that context in my opinion, the defendant's request is reasonable. Dr Hammersley has examined the plaintiff in the past and would be able to review his past reports and, after examination, give a considered opinion to the defendant. Similarly, the issue of the plaintiff's issues which appear to predate the work injury accident are significant in relation to the defendant understanding the case it has to meet. In my opinion the defendant requests for medical examination are reasonable.
Having regard to the circumstances is the plaintiff's refusal to undergo the examinations unreasonable. There is evidence that the plaintiff has submitted himself to examination by medical specialists in the past. The plaintiff's claim is significant and the major components are past economic loss and future economic loss. On the defendant's part there would be significant prejudice if the occupational issues and psychological issues are not commented on by a medical practitioner of their choosing.
Dr Hammersley, who appears to be properly qualified, has examined the plaintiff in the past. Dr Hammersley has an understanding of the plaintiff in relation to his work‑related injury, and would be in a good position to comment on the plaintiff's current and future work capacity.
Dr Gemma Edwards-Smith, who appears to be properly qualified, has not previously examined the plaintiff. However it appears the plaintiff has not been examined by a psychiatrist of the defendant's choosing.
I am of the opinion that it would not be unfair nor unreasonable for the plaintiff to be examined by medical practitioners of the defendant's choosing.
According, I make orders that:
1.The plaintiff submit himself for medical examination on Dr Christopher Hammersley, occupational physician, on Wednesday, 29 July 2015 at 10:45 am at Glengarry Specialist Centre, 1/64 Arnisdale Road, Duncraig.
2.The plaintiff submit himself for examination on Dr Gemma Edwards‑Smith, psychiatrist, on Wednesday, 5 August 2015 at 10:30 am at 95 Monash Road, Nedlands.
3.The whole of the proceedings be stayed until the plaintiff submit himself for examination by Dr John Hammersley and by Dr Gemma Edwards‑Smith.
4.The plaintiff do pay the defendant's costs of the application to be taxed, if not agreed.