Thomson v Transport Accident Commission
[2020] VSC 310
•29 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2020 00838
| CHARLENE MICHELLE THOMSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDICIAL OFFICER: | Judicial Registrar Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 April 2020 |
DATE OF RULING: | 29 May 2020 |
CASE MAY BE CITED AS: | Thomson v Transport Accident Commission |
MEDIUM NEUTRAL CITATION: | [2020] VSC 310 |
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PRACTICE AND PROCEDURE – Application for stay of proceeding – Personal injury – Psychiatric injury – Medico-legal examination of plaintiff at defendant’s request – Examination involving alleged risk to plaintiff’s mental state – Reasonableness of request - Refusal to submit to examination – Whether prejudice to defendant preventing defense of case established – Reasonableness of refusal – Supreme Court (General Civil Procedure) Rules 2015, r 33.04 – Stace v Commonwealth (1989) 51 SASR 391; Pyman v Whitefriars College Inc [2019] VSC 361 applied - Downing v Wein [2005] VSC 134; Dikschei v Epworth Foundation [2010] VSC 435; Plaintiff [name withheld] v Stapleton [2017] NSWSC 914; JKZ v The Scots College [2018] NSWSC 1526 distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Peter Burt, solicitor | Burt & Davies |
| For the Defendant | Mr Paul Bourke | Transport Accident Commission |
JUDICIAL REGISTRAR:
The claim
The plaintiff, Ms Thomson, was involved in a motor vehicle accident (‘the accident’) on 30 April 2017 when a motorcycle ridden by John Robert Naffa (‘the rider’) veered into the path of the plaintiff’s vehicle. The rider died at the scene. The plaintiff claims she suffered psychiatric and psychological injuries as a result of the accident.
Ms Thomson commenced this proceeding on 19 February 2020 and sought entry into the Supreme Court’s Motor Vehicle Accident Fast Track Pilot (‘MVA Pilot’), a voluntary case management system which allows certain types of motor vehicle claims to be fast-tracked toward a trial. There are prerequisite conditions for entry into the MVA Pilot. These include that liability is admitted and that the matter has been ‘through the Protocols’, a term of art explained below.
The set of processes governed by the No Fault Dispute Resolution Protocols are commonly referred to as ‘the Protocols’, which were agreed between the TAC, the Law Institute of Victoria and the Australian Lawyers Alliance on 1 March 2005. They have been subsequently amended from time to time. The objective of the Protocols is to resolve disputes between claimants and the TAC. Most, though not all, transport accident claims that come before the Courts have first been ‘through the Protocols’, that is, that an attempt has been made to resolve the dispute pursuant to the terms of the Protocols. The Protocols encompass procedures in relation to how medical evidence is obtained by the parties, including the use of a joint expert agreed between the parties for the purpose of a Joint Medical Examination (‘JME’). The MVA Pilot requires that parties, ‘where possible, rely on expert material exchanged during the Protocols.’[1] Matters in the MVA Pilot are given a truncated timetable and an early trial date.
[1]Supreme Court of Victoria, ‘Notice to the Profession – Fast Track Pilot Motor Vehicle Accident Damages Proceedings’, 23 October 2018, [3.7].
In its Defence, the defendant admits negligence on the part of the deceased rider, although not the particulars of negligence alleged. It also admits that the plaintiff suffered injury as a result of the accident, but disputes the nature and extent of damage sustained.
The application
This application arises because the defendant has arranged to have the plaintiff examined by Associate Professor Doherty on 11 June 2020 (‘the 11 June appointment’). The plaintiff informed the Court that she does not intend to comply with the request.
The defendant seeks an order that, should the plaintiff not attend that appointment, the proceedings be stayed pursuant to Rule 33.04 of the Supreme Court (General Civil Procedure) Rules 2015 which provides:
33.04 Notice for examination
(1)The defendant may request the plaintiff in writing to submit to appropriate examinations by a medical expert or experts at specified times and places.
(2)Where a plaintiff refuses or neglects, without reasonable cause, to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the proceeding.
The defendant relies on the affidavit of Ms Caitlin Farquhar dated 16 April 2020 and its written submissions filed on 14 April 2020.
The plaintiff relies on the affidavit of Ms Clara Anne Davis dated 6 April 2020 and written submissions filed on 16 April 2020.
Plaintiff’s pre-existing injury and medico-legal examinations
It is not disputed that the plaintiff suffered from a number of pre-existing psychiatric injuries at the time of the accident.
The plaintiff reports a history of anxiety, depression, substance abuse, post-traumatic stress disorder, and obsessive-compulsive disorder for which she was receiving regular counselling and psychiatric support including pharmaceutical treatment prior to the accident, albeit with intermittent periods of disengagement.[2]
[2]Reported to Dr Epstein at both examinations and outlined in Dr Schutz’s summary of treaters’ reports. – see Dr Michael Epstein, Report of Examination of Charlene Thomson, dated 12 March 2019, exhibited as Exhibit “CF1” to the Affidavit of Caitlin Farquhar, unsworn, filed on behalf of the defendant on 16 April 2020 pursuant to s 49F of the Oaths and Affirmation s Act 2018 (Vic), a new provision introduced in response to the COVID-19 pandemic (‘Epstein Initial Report’); Dr Michael Epstein, Report of Re-examination of Charlene Thomson, dated 24 September 2019, exhibited as Exhibit “CF2” to the Affidavit of Caitlin Farquhar, unsworn, filed on 16 April 2020 (‘Epstein Re-examination Report’); and Dr Gregor Schutz, Serious Injury Examination Charlene Thomson, dated 29 October 2019, exhibited as Exhibit “CF3” to the Affidavit of Caitlin Farquhar, unsworn, filed on 16 April 2020 (‘Schutz Report’).
In the course of obtaining a serious injury certificate - a necessary precursor to bringing a common law claim for damages - the plaintiff was examined by a psychiatrist, Dr Epstein, on 12 March 2019. By agreement between the parties, this examination was treated as a JME pursuant to the Protocols.
Between July and August 2019, the defendant made a request for further medical records, which the plaintiff provided, and arranged an independent medical examination (‘IME’) with a psychiatrist, Associate Professor Doherty for February 2020. The Protocols dictate that prior to an IME taking place, parties should follow up with the doctor who had been retained for the JME.[3] This was not done by the defendant, and the plaintiff objected to attending the appointment with Associate Professor Doherty, it appears largely because of the delay this would cause to her obtaining a serious injury certificate.
[3]Transport Accident Commission, Transport Accident Act – Joint Medical Examination Protocols, dated 1 July 2016, [13.12].
On 16 August 2019, the defendant sent a letter advising the plaintiff of an alternative IME appointment with Dr Schutz on 15 October 2019. The plaintiff attended this appointment, notwithstanding her concerns that the appointment did not comply with the Protocols as there had been no follow up with the Dr Epstein who had conducted the JME. The plaintiff unilaterally arranged a further appointment with Dr Epstein for 24 September 2019. Dr Schutz provided a report dated 29 October 2019.
The plaintiff submits that attending this appointment with Dr Schutz caused her distress, citing Dr Schutz’s observation that during the appointment ‘she was notably agitated and appeared moderately anxious and depressed’ and that ‘[s]he became increasingly tearful and on the verge of panic at times.’[4]
[4]Above n 2, Schutz R,eport, 5.
While there is some differences in emphasis, both Dr Epstein’s and Dr Schutz’s reports note the plaintiff’s treaters’ and their own assessments that the her pre-existing condition was aggravated by the accident, including the relapse of her PTSD.[5]
[5]Above n 2, Epstein Initial Report, 13, Epstein Re-examination Report, 9, Schutz Report, 9.
The defendant issued a serious injury certificate on 26 November 2019, and the plaintiff initiated this proceeding on 19 February 2020. On 4 March 2020 the defendant made the request for the plaintiff to attend the 11 June appointment.
The plaintiff’s solicitor deposes that the plaintiff has ‘expressed concern … about attending’[6]
[6]Affidavit of Clara Davies sworn on 6 April 2020 and filed on behalf of the plaintiff, [34].
In the plaintiff’s solicitor’s assessment, the plaintiff ‘becomes distressed and anxious about attending medico-legal examinations, especially with examiners that she is meeting for the first time.’[7] Ms Davies notes that the examinations require the plaintiff to recount her history and relive the accident.[8]
[7]Ibid, [35].
[8]Ibid.
Her solicitors submit that recounting her psychological and psychiatric history has been and will again be ‘both distressing and disturbing to her.’[9]
[9]Plaintiff’s Submissions filed on 16 April 2020, [7]-[8].
Relevant principles
Both parties referred in their submissions to the Supreme Court of South Australia’s decision in Stace v Commonwealth (‘Stace’), [10] and the useful elucidation in that case of the task required of the Court.Citing Webster J in Prescott v Bulldog Tools Ltd (‘Prescott’)[11] Matheson J noted that:
The 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 in the way most just to the parties, taking into account their reasonable requirements and objections at the time of the exercising of the discretion.[12]
[10](1989) 51 SASR 391.
[11][1981] 3 All ER 869.
[12]Prescott v Bulldog Tools Ltd [1981] 3 All ER 869, 874 per Webster J cited by Matheson J in Stace v Commonwealth 51 SASR 391, 399.
Matheson J also cited with approval the scale of examinations proffered by Webster J which he said should guide the weight given to the reasonableness of a plaintiff’s refusal. Webster J stated:
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.[13]
[13]Prescott v Bulldog Tools Ltd [1981] 3 All ER 869, 874 per Webster J cited by Matheson J in Stace v Commonwealth 51 SASR 391, 398.
The plaintiff submitted that Stace is authority for the proposition that the purpose of an examination may affect the reasonableness of a plaintiff’s refusal to attend:
A plaintiff might reasonably accept a degree of discomfort and risk and trouble for the purpose of being cured, but quite reasonably, not be willing to repeat it all for the assistance of the defendant. [14]
[14]Stace v Commonwealth (1989) 51 SASR 391, 403.
In that case the defendant requested that the plaintiff submit to a diagnostic test which carried with it minimal risk but involved substantial discomfort, including fasting, the injection of thioentone, near loss of consciousness for an hour and manipulation of limbs. The plaintiff’s General Practitioner advised the plaintiff not to undergo the test. Cox J rejected the defendant’s application for a stay, but on appeal White and Matheson JJ held (Bollen J dissenting) that the plaintiff’s refusal was based on the advice of his GP which was founded on hearsay. The matter was remitted for reconsideration.
In Pyman v Whitefriars College Inc (‘Pyman),[15] Forbes J endorsed and adopted the approach taken in Stace. Her Honour summarised the task as one of assessing the reasonableness of the defendant’s request, assessing the reasonableness of the plaintiff’s refusal, and then, in the exercise of its discretion, ‘balanc[ing] the right of the plaintiff to personal liberty against the right of the defendant to prepare a defence of the litigation as it sees fit.’[16]
[15]Pyman v Whitefriars College Inc [2019] VSC 361.
[16]Ibid, [12].
Pyman also serves as authority for the proposition that the stress associated with attending examinations will not usually, in and of itself, outweigh the defendant’s rights in defending a proceeding. As articulated by Forbes J:
It is no doubt stressful to attend medicolegal examinations, particularly where psychiatric injuries are involved. The stressful nature of the experience in and of itself would not ordinarily be enough to establish a ground of refusal sufficient to outweigh the entitlement of a defendant to reasonably obtain evidence as it sees fit.[17]
[17]Ibid, [15].
In Pyman the plaintiff brought a claim against his school claiming injuries arising from alleged bullying and physical and sexual abuse. The plaintiff and defendant each engaged experts to undertake medico-legal assessments of the plaintiff. The defendant’s expert provided an initial ‘on the papers’ assessment, followed by an examination and a further responsive report in July 2018. The defendant sought to have the plaintiff re-examined in early 2019 but the plaintiff’s litigation guardian declined on the plaintiff’s behalf, leading the defendant to seek a stay of proceedings.
The initial refusal by the litigation guardian, the plaintiff’s father, was not based on medical evidence but his personal observations of the plaintiff’s mental health after previous medico-legal examinations, in particular the plaintiff’s attempt to jump out of the moving car after one such appointment. Forbes J found the litigation guardian’s concerns were supported by subsequent medical reports from the plaintiff’s treating doctor who confirmed the likely negative impact of re-examination. The defendant submitted that the plaintiff’s ability to attend his treating practitioners and his preparedness to give evidence at trial weighed against a finding that attending a medico legal appointment would be unduly traumatic and therefore amount to a reasonable refusal. Forbes J did not accept this submission and, following the reasoning in Stace, accepted that the purpose of the examination impacted on the reasonableness or otherwise of the refusal.
Turning to the question of the reasonableness of the defendant’s request, Forbes J squarely placed the burden on the defendant seeking a re-examination or fresh examination to ‘establish that further opinion without a second examination is of sufficient prejudice to the presentation of its case so as to grant a stay.’[18] In that case the defendant sought an updated assessment based on passage of time and reports of additional symptoms since the last examination. Her Honour was not satisfied that a reassessment of recent treater’s records would not be sufficient, in light of the impact of a re-examination on the plaintiff ‘[g]iven that all medical opinions accept a present significant level of symptomology’.[19]
[18]Pyman v Whitefriars College Inc [2019] VSC 361, [18].
[19]Ibid.
In Downing v Wein (‘Downing’),[20] the defendants wanted the ten year old plaintiff to undergo an MRI. The plaintiff refused on the basis that there were significant risks associated with the procedure.[21] Kaye J was satisfied that, as causation was not admitted by the defendants and having regard to the medical material before the Court, the scan was ‘sought for legitimate purposes relating to a central issue in the proceeding’ and thus the request was reasonable.[22] As his Honour identified, the real question for determination was ‘whether the scan would involve risks to the health and welfare of the plaintiff which would justify the plaintiff properly refusing to undergo the scan.’[23] Ultimately, his Honour accepted the evidence of the doctor, who examined the plaintiff on behalf of the defendant, that the plaintiff would have no difficulty coping during a scan. His Honour was not satisfied that the plaintiff was ‘likely to suffer or [wa]s at any real risk of suffering injury’.[24]
[20][2005] VSC 134.
[21]Ibid, [11].
[22]Ibid, [7].
[23]Ibid, [8].
[24]Downing v Wein [2005] VSC 134, [14].
In the case of Dikschei v Epworth Foundation (‘Dikschei’),[25] Mukhtar AsJ considered Kaye J’s ruling in Downing and distinguished it on the facts. Dikschei concerned an application for a stay in a medical negligence claim, where the 76 year old plaintiff was ‘unwilling to subject herself’ to a transoesophageal echocardiogram.[26] The defendant’s cardiologist’s evidence was that the risk of the procedure was very low. Light sedation was required and there might be transient pain. His Honour assessed the plaintiff’s unwillingness was genuine, noting that it was ‘not a manufactured concern’ which he did not consider to be irrational.[27] In light of her age, the nature of her injuries, her evidence about being ‘very worried’, her reported loss of confidence in health professionals and the fact that the test was diagnostic and not therapeutic, he accepted that she would experience distress if she attended.[28] Mukhtar AsJ considered the procedure to a be ‘substantial assault involving discomfort’[29] compared to the MRI in Downing, which he classified as ‘not invasive and [which] does not involve a technical assault’.[30] He held that the refusal by the plaintiff was reasonable.
[25][2010] VSC 435.
[26]Ibid, [7].
[27]Ibid, [35].
[28]Ibid.
[29]Ibid, [36].
[30]Ibid, [30].
In assessing the reasonableness of the defendant’s request, his Honour accepted that the mechanism of injury was a central issue in the proceeding. However, in weighing the potential of this examination to elucidate that issue, he had regard to existing medical reports served in the proceeding which went to the issue, including the fact that other professionals had been able to opine on the issue of causation without the benefit of such a test. His Honour was ultimately not persuaded that the procedure would provide a definitive diagnosis. Ultimately the stay was not granted as the refusal was not without reasonable cause.
Plaintiff [name withheld] v Stapleton (‘Stapleton’)[31] was a child sexual abuse case brought against the alleged perpetrator and other parties. The alleged perpetrator sought to have the plaintiff examined by a psychiatrist. The plaintiff opposed it on a number of grounds:
[31][2017] NSWSC 914.
(a) that he had already been examined by an expert for another defendant;
(b) that it would be distressing to be examined on behalf of his alleged abuser; and
(c) his own experience and his treater’s evidence was that previous examinations had had a detrimental impact; and
(d) there was a likelihood of further psychological damage.
McCallum J did not give much weight to the first defendant’ s proposed examiner who opined on the lack of self-harm or psychiatric admission resulting from other examinations, and found that the refusal was reasonable.
McCallum J also considered the request to be reasonable. In reaching this conclusion he was concerned to ensure fairness to the first defendant in the context of the proceeding as a whole, namely that the first defendant faced cross-claims from the other defendants such that ‘ultimately everyone is gunning for him.’[32] While the Court considered both the request and the refusal reasonable, when balancing the interests of the plaintiff and the first defendant, the Court placed emphasis on the extent to which the issues in dispute, including the plaintiff’s pre-existing vulnerability to psychiatric illness and the extent of disability referable to the alleged abuse were ‘amply and fully addressed in the existing reports’,[33] and noted the ‘comprehensive manner in which the existing psychiatrists have addressed the issues raised for their attention.’[34] As a result the plaintiff was not required to attend the examination.
[32]Ibid, [8], see also [24].
[33]Ibid, [28].
[34]Ibid, [32].
JKZ v The Scots College[35] involved a child sexual abuse claim brought against the plaintiff’s school and the alleged perpetrator. The alleged perpetrator had not participated in the proceedings and the school did not admit the abuse. The plaintiff made a large claim for loss of earnings and loss of earning capacity. Garling J found that the request to attend a two-day neuropsychologist assessment and personality test was reasonable. His Honour also found that the plaintiff’s refusal was reasonable, in light of the medical evidence and the plaintiff’s own evidence about his fear that the examination would be traumatic. In weighing the reasonable request against the reasonable refusal, his Honour had regard to the fact that the claim was ‘large and substantial’,[36] and a critical question in the proceeding was whether ‘the entirety of [the plaintiff’s] loss and damage relates to the sexual assaults or whether, as the defendant submits, only part of that claim relates to conduct for which the defendant must be liable.’[37] Garling J also determined that the requirement to facilitate the just, timely, and cost effective resolution of the real issues in dispute under the Civil Procedure Act 2005 (NSW), comparable to the Victorian provisions, apply to the Court’s exercise of this discretion. He considered that the examination could be constrained in ways to ensure any risk to the plaintiff was reduced or removed, and, with those constraints in place, it would not be reasonable for the plaintiff to refuse to attend.
[35][2018] NSWSC 1526.
[36]Ibid, [39].
[37]Ibid.
As submitted by the plaintiff, the discretion to stay a proceeding necessarily engages the Court’s obligations under the Civil Procedure Act 2010 (Vic).
The Court has discretion to consider ‘the extent to which parties have complied with any mandatory or voluntary pre-litigation processes’ under s 9 of the Civil Procedure Act 2010 (Vic) (‘CPA’). In my view, this means that the Court can consider the examinations that have already bene undertaken as part of the Protocols, in assessing the reasonableness of the request to attend the 11 June appointment.
Analysis
Was the defendant’s request reasonable?
The defendant submits that the request is reasonable. It submits that it is the first examination since the proceeding was initiated and that it is entitled to defend the claim in the way that it sees fit, and rely on the expert it chooses to engage. Further it submits that there are questions that were not addressed, or not fully addressed, by Dr Schutz in his report.
The defendant submits that the report of Dr Schutz was obtained for a different stage and a different purpose – the obtaining of a serious injury certificate. It requires a new report now that the claim has progressed past the serious injury certificate stage to a common law claim for damages.
The plaintiff submitted that it was open to the defendant to seek a further opinion of Dr Schutz or Dr Epstein without requiring an additional examination of the plaintiff, or in the alternative request re-examinations by either of those experts.
The defendant bears the burden of establishing that it is reasonable to require the plaintiff to attend a further expert. A corollary of establishing that is that the defendant would be unreasonably prejudiced in the presentation of their case should it be shut out from obtaining such an opinion and instead be required to obtain a second examination by one of the experts already engaged.[38]
[38]Pyman v Whitefriars College Inc [2019] VSC 361, [18].
The defendant says that in light of the plaintiff’s age and relatively short working history it faces a substantial claim for loss of earning capacity, and would suffer prejudice if it is not able to have the psychiatrist of their choice examine the nature of the plaintiff’s pre-existing injury, the causal role of the accident to her present condition, and her capacity for employment.
It is apparent from the history of this proceeding through the TAC’s Common Law Protocols that the defendant originally intended for the plaintiff to undergo a medico-legal examination by Associate Professor Doherty. The defendant appears to have indicated to the plaintiff their renewed intention to have the plaintiff examined by Associate Professor Doherty at the time that the proceeding was issued in this Court.
When pressed in oral argument as to why the defendant considered the examination by Associate Professor Doherty to be on reasonable terms, counsel for the defendant submitted that the TAC sought a ‘fresh pair of eyes’ to redress what it saw as inadequacies in Dr Schutz’s report. In particular, these inadequacies include the consideration of the plaintiff’s capacity for employment and the role of her pre‑existing injury in shaping her current presentation.
In her affidavit, Ms Farquhar deposes that Dr Schutz ‘noted the contents of the TAC Vocational Assessment Report dated 30 August 2018 but did not review that report for the purposes of considering suitable employment.’[39] At question 28 of the Schedule of Questions appended to Dr Schutz’s report of 29 October 2019 he states that he did not review the vocational assessment report.[40]
[39]Affidavit of Caitlin Farquhar, unsworn, filed on 16 April 2020, [7].
[40]Above n 2, Schutz Report, 13.
As outlined above, in JKV v The Scots College the NSW Supreme Court considered the nature of the dispute about quantum in the context of the pre-existing psychiatric condition to be a factor establishing reasonableness of the defendant’s request. In this case, considering the issues in dispute in the proceeding, and the significance of the medico-legal evidence to the preparation of the defendant’s case it is reasonable for the defendant to seek further medical opinion on the matters it has raised.
The question then is whether that further medical opinion needs to come in the form of a new examination by a different expert, or whether it could be addressed by way of a follow-up report or examination by Dr Schutz. The defendant has not provided the Court with a copy of the instructions given to Dr Schutz. However, in the Schedule of Questions, he does respond to questions put to him by the defendant. It appears that he did not meaningfully engage with the TAC Vocational Report despite the directive to do so. As far as I am aware, no subsequent inquiries have been made of Dr Schutz and he has not been requested to provide a supplementary report.
On the basis of the material before me, I am not satisfied that the defendant cannot obtain a further report from Dr Schutz that would adequately address the outstanding issues, or that the defendant would be unreasonably prejudiced in the presentation of its case by not having the plaintiff examined by Associate Professor Doherty. Whilst the defendant may well prefer a ‘fresh pair of eyes’ to assess the plaintiff, this is insufficient to persuade me that the request is on reasonable terms.
The plaintiff submits that the request is unreasonable because both the Protocols and the MVA Pilot, anticipate that medico-legal examinations will be minimised and, where possible, will be undertaken jointly. Having undergone a joint medical examination by Dr Epstein, the plaintiff initially opposed the defendant’s request for an independent assessment, and maintains that the defendant is in breach of the Protocols for seeking one without having first sought a supplementary report from Dr Epstein.
The Protocols do not act as a bar to a defendant seeking to obtain a further IME, nor can any adverse inference be drawn if the defendant does not rely on the JME. Similarly, entry into the MVA Pilot involves an expectation by the Court that the matter is ready to move expeditiously toward trial, but does not provide a bar to obtaining additional reports in circumstances where those reports are necessary. I give little weight to the expectations that the plaintiff had in entering the MVA Pilot, but I do consider the Protocols to be relevant in assessing the reasonableness of the request. All parties to a proceeding are required to ensure the just, timely and cost effective resolution of the real issues in dispute and this would carry with it an obligation to eliminate unnecessary requests for and attendances at medico legal examinations. The Protocols endorse these aims. It seems to me that a request of a further opinion from Dr Schutz would be a quicker and cheaper method of obtaining the additional information the TAC seeks.
If the defendant is unable to obtain the opinion it seeks from Dr Schutz, or is dissatisfied with Dr Schutz’s opinion or takes some other objection to it, it may be that it would then not be unreasonable to request the plaintiff to attend a further medical examination. But that would require the defendant to articulate on what basis the evidence of Dr Schutz is inadequate or prejudicial to the preparation of its claim. If a further inquiry of Dr Schutz is made and he is unwilling or unable to address the questions, or fails to address them adequately, the defendant would be on much stronger ground to assert that a further examination is reasonable. At the moment, it seems that the report of Dr Schutz was obtained and there was no follow up about the issues the defendant says he failed to address.
On the basis of the material before me, I am not satisfied that the request was on reasonable terms.
The Plaintiff’s Refusal
The defendant submits that on Webster J’s scale this examination falls in the first category, being one that does not involve any serious technical assault but only an invasion of privacy.
The plaintiff suffers from a number of complex and long-standing psychiatric conditions. There was no direct evidence before me of her experience of previous of examinations, but merely evidence of the plaintiff’s solicitor that the plaintiff has become distressed in advance of previous examinations, and is very anxious about attending the proposed appointment with Associate Professor Doherty. There is also no medical evidence before me directed to the particular impact of previous examinations on the plaintiff, or the likely impact of a future examination on her condition. The plaintiff’s solicitor refers me to Dr Schutz’s notes about her presentation and level of distress at the examination, but this does not take me very far.
The plaintiff submits, and I accept, that the discomfort and distress experienced when attending an examination for non-therapeutic purposes is greater than that when the examination is for the purposes of her own treatment.
I accept that the process of attending has been and would likely be stressful for the plaintiff, but reiterate Forbes J’s observation that distress is not sufficient in and of itself to ground a reasonable refusal.[41] On the evidence before me, the plaintiff is not in the same position of vulnerability as the plaintiff in Pyman, or the 76 year old plaintiff in Dikschei, cases which the defendant wishes to distinguish on their facts. However, the medical evidence shows that she suffers from PTSD and her condition has worsened since the accident. I accept that having to attend a new IME would likely carry with it some greater degree of distress than re-attending a practitioner she has already seen because of the obligatory recounting of her full history and reliving of the accident it would entail.
[41]Pyman v Whitefriars College Inc [2019] VSC 361, [15].
In the absence of more material, in particular, evidence from the plaintiff herself and her treating practitioners about the likely harm she would suffer if required to attend the appointment, I am not satisfied she would have made out reasonable grounds for refusing, had the request been on reasonable terms.
However, as I am not satisfied that the request was on reasonable terms, and the burden rests on the defendant to first establish that the request is reasonable, I am not required to make a finding about the reasonableness of the refusal. The application must fail.
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