Tyndall v Kestrel Coal Pty Ltd - [2020] QSC 56

SUPREME COURT OF QUEENSLAND

CITATION:

Tyndall v Kestrel Coal Pty Ltd [2020] QSC 56

PARTIES:

JAMIE LEE TYNDALL

(plaintiff)
v
KESTREL COAL PTY LTD

(defendant)

FILE NO/S:

SC No 646 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT: Supreme Court at Rockhampton

DELIVERED ON:

31 March 2020

DELIVERED AT:

Rockhampton

HEARING DATE:

23 March 2020

JUDGE:

Crow J

ORDER:

1.   The plaintiff attend an appointment (to be arranged by the defendant) with a rheumatologist selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms:

a.   The plaintiff is to be examined no later than 20 April 2020;

b.   In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the rheumatologist;

c.   The costs of the examination and report are the responsibility of the defendant;

d.   The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and

e.   The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant.

2.   The plaintiff attend an appointment (to be arranged by the defendant) with a vascular surgeon selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms:

a.   The plaintiff is to be examined no later than 14 May 2020;

b.   In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the vascular surgeon;

c.   The costs of the examination and report are the responsibility of the defendant;

d.   The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and

e.   The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant.

3.   The defendant file and serve its Defence to the Further Amended Statement of Claim by 14 April 2020.

4.   The plaintiff file and serve any Reply to the Defence to the Further Amended Statement of Claim by 23 April 2020.

5.   The parties are at liberty to apply on the giving of three business days’ notice in writing to the other party.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – PROCEDURE – MEDICAL EXAMINATIONS – SUBMISSION TO MEDICAL EXAMINATION – where defendant makes application to have plaintiff undergo further medical examination pursuant to s 282 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) - where parties will rely on differing medical opinions - whether compliance with request is unreasonable or unnecessarily repetitious – whether plaintiff should undergo further medical examination

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DETENTION, INSPECTION AND PRESERVATION – INSPECTION OF PROPERTY – where application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QSC 56
Decision Date: 31 March 2020

CaseChat Overview and Summary

In the matter of Tyndall v Kestrel Coal Pty Ltd, the parties were engaged in a dispute concerning workers’ compensation claims, with the plaintiff, Tyndall, seeking compensation from the defendant, Kestrel Coal Pty Ltd, for injuries sustained during employment. The case was before the Queensland Court of Appeal, which had to determine the admissibility of certain evidence and the scope of an inspection order.

The central legal issue before the court was whether the plaintiff should be required to undergo further medical examinations as requested by the defendant, given the differing medical opinions held by the parties. The court also needed to address whether the plaintiff’s application to inspect the defendant’s property, which was alleged to be the cause of the injury, was too broad and lacked the necessary specificity.

The court found that, given the differing medical opinions and the necessity for comprehensive evaluation of the plaintiff’s condition, it was appropriate for the plaintiff to undergo further medical examinations. The court emphasised the importance of these examinations in reaching a fair and informed decision regarding the compensation claim. Additionally, the court considered the plaintiff's application for property inspection and noted that while the application was broad, it could be narrowed to focus on specific areas relevant to the injury claim. The court made orders for the plaintiff to attend specified medical examinations and set timelines for the exchange of documents and pleadings.

In summary, the court ordered the plaintiff to attend medical examinations with a rheumatologist and a vascular surgeon, specified the terms of these examinations, and set deadlines for the exchange of pleadings between the parties.

Orders

Orders of the court

1. The plaintiff attend an appointment (to be arranged by the defendant) with a rheumatologist selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms:

a. The plaintiff is to be examined no later than 20 April 2020;

b. In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the rheumatologist;

c. The costs of the examination and report are the responsibility of the defendant;

d. The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and

e. The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant.

2. The plaintiff attend an appointment (to be arranged by the defendant) with a vascular surgeon selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms:

a. The plaintiff is to be examined no later than 14 May 2020;

c. The costs of the examination and report are the responsibility of the defendant;

d. The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and

e. The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant.

3. The defendant file and serve its Defence to the Further Amended Statement of Claim by 14 April 2020.

4. The plaintiff file and serve any Reply to the Defence to the Further Amended Statement of Claim by 23 April 2020.

5. The parties are at liberty to apply on the giving of three business days’ notice in writing to the other party.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tyndall v Kestrel Coal Pty Ltd [2020] QSC 56
PARTIES:	JAMIE LEE TYNDALL (plaintiff) v KESTREL COAL PTY LTD (defendant)
FILE NO/S:	SC No 646 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	31 March 2020
DELIVERED AT:	Rockhampton
HEARING DATE:	23 March 2020
JUDGE:	Crow J
ORDER:	1. The plaintiff attend an appointment (to be arranged by the defendant) with a rheumatologist selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms: a. The plaintiff is to be examined no later than 20 April 2020; b. In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the rheumatologist; c. The costs of the examination and report are the responsibility of the defendant; d. The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and e. The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant. 2. The plaintiff attend an appointment (to be arranged by the defendant) with a vascular surgeon selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms: a. The plaintiff is to be examined no later than 14 May 2020; b. In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the vascular surgeon; c. The costs of the examination and report are the responsibility of the defendant; d. The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and e. The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant. 3. The defendant file and serve its Defence to the Further Amended Statement of Claim by 14 April 2020. 4. The plaintiff file and serve any Reply to the Defence to the Further Amended Statement of Claim by 23 April 2020. 5. The parties are at liberty to apply on the giving of three business days’ notice in writing to the other party.
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – PROCEDURE – MEDICAL EXAMINATIONS – SUBMISSION TO MEDICAL EXAMINATION – where defendant makes application to have plaintiff undergo further medical examination pursuant to s 282 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) - where parties will rely on differing medical opinions - whether compliance with request is unreasonable or unnecessarily repetitious – whether plaintiff should undergo further medical examination PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DETENTION, INSPECTION AND PRESERVATION – INSPECTION OF PROPERTY – where application…