Timmins v Yandilla Park Limited

SUPREME COURT OF QUEENSLAND

CITATION:

Peter John Timmins v Yandilla Park Limited [2000] QSC 281

PARTIES:

PETER JOHN TIMMINS
(plaintiff)
v
YANDILLA PARK LIMITED
ACN 050 165 921
(defendants)

FILE NO:

9 of 1999 (Maryborough Registry)

DIVISION:

Trial Division

DELIVERED ON:

11 August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2000

JUDGE:

Mackenzie J

ORDER:

1.  The plaintiff's application is dismissed.
2.  I order that the plaintiff submit to a personal examination by an orthopaedic surgeon with appropriate qualifications and experience chosen by the plaintiff from a panel of three doctors nominated by the defendant.
3.  I order that the costs of each of the applications be defendant's costs in the cause, to be assessed on a standard basis if not agreed.

CATCHWORDS:

PRACTICE – APPLICATION TO LIST TRIAL – cross application for medical examination – principles upon which application should be considered – not ready for trial.

UCPR Rule 553
WorkCover Queensland Act 1996

Workers' Compensation Act 1990

Cotton v Spies & Anor (unreported 5080 of 1983, 3 March 1986)
Gray v Hopcroft & Anor [2000] QCA 144
Prescott v Bulldog Tools Ltd (1981) 3 All ER 869
Starr v National Coal Board (1977) 1 All ER 243

COUNSEL:

S J Given for the plaintiff
M T O'Sullivan for the defendants

SOLICITORS:

Morton & Morton for the plaintiff
Bell Dixon for the defendants

1. MACKENZIE J:  The first of the applications with which I am concerned is an application for an order that the action be set down on the civil callover list pursuant to UCPR Rule 553.   The second is an application by the respondent/defendant for leave to file and, subject to that, make an application for an order that the plaintiff submit to a personal examination by Orthopaedic Surgeon Dr David Morgan and Psychiatrist Dr Joan Lawrence or such other registered practitioners nominated by the court. 

1. The applicant had applied for Workers' Compensation in respect of supraspinatus tendonitis which allegedly developed while he was working as a fruit picker in the first half of 1996.  It was not until 16 September 1997 that he made an application for Workers' Compensation.  Prior to that date he had been examined, apparently for therapeutic rather than medico/legal purposes, by Dr Khursandi, an Orthopaedic Surgeon practising in the Maryborough/Harvey Bay area.  The plaintiff had been referred to him by his GP.

1. Dr Khursandi provided a report to the Workers' Compensation Board on 4 November 1997 pursuant to a request dated 25 September 1997.  He also provided a report dated 6 March 1998 to the plaintiff's solicitors upon request by them.  He gave a further report dated 3 August 1999 to the Workers' Compensation Board.  In that report he said that the plaintiff had supraspinatus tendonitis of the left shoulder with impingement which could be attributed to his activities as a fruit picker.  As conservative measures had failed to provide lasting relief, he had been advised to have acromioplasty of the left shoulder.  Dr Khursandi expressed the opinion that the condition was…