White v Ducks in a Row Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

White v Ducks in a Row Pty Ltd [2016] QDC 212

PARTIES:

PAUL MICHAEL WHITE
(plaintiff/respondent)

v

DUCKS IN A ROW PTY LTD
(defendant/applicant)

FILE NO/S:

Mackay 51/2016

DIVISION:

Civil Application

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

22 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2016

JUDGE:

Butler SC, DCJ

ORDER:

1.          That the respondent submit to an independent medical examination and assessment by an orthopaedic consultant to be selected by the respondent from the panel of the three orthopaedic consultants previously nominated by the applicant.

2.The applicant pay the cost of the independent medical examination by the orthopaedic consultant.          

3.The respondent is at liberty to obtain his own orthopaedic examination and assessment if he deems it necessary.          

4.The respondent pay the applicant’s costs of this application to be assessed on the standard basis if not agreed.          

CATCHWORDS:

NEGLIGENCE – PERSONAL INJURIES – MEDICAL EXAMINATION – where application brought for plaintiff to undergo medical examination – whether examination or assessment would be unreasonable or unnecessarily repetitious

COUNSEL:

P B Rashleigh for the plaintiff/respondent
N Jarrow for the defendant/applicant

SOLICITORS:

McGinness Wilson Lawyers for the plaintiff/respondent
HWL Ebsworth Lawyers for the defendant/applicant

1. The applicant seeks an order under r 366 of the Uniform Civil Procedure Rules (“the UCPR”) for the respondent to undergo a medical examination by one of three nominated orthopaedic medical specialists, at the applicant’s expense.  The respondent does not oppose an examination limited to his hip and knee conditions but opposes an unrestricted orthopaedic examination on the basis that the request is unreasonable and unnecessarily repetitious.

The provisions

1. The applicant seeks to rely upon r 366 of the UCPR as a source of power for the Court to make the direction sought.  Rule 366 provides as follows:

“Application for directions

(1)       ….;

(2)       the Court may give directions about the conduct of a proceeding at any time;

(3)       a party may apply to the Court for directions at any time.”

This application is brought in respect of a claim under the Personal Injuries Proceedings Act 2002 (the “PIPA”). The pleadings in the matter closed on 1 February 2016 following a compulsory conference which failed to reach a resolution. Mandatory final offers have been exchanged. The respondent submits that in the exercise of its discretion the Court should apply the test set out in s 25 of PIPA.  That section relevantly reads:

“(2)The claimant must comply with a request by the respondent to undergo, at the respondent’s expense either or both of the following –

(a)       a medical examination by a doctor to be selected by the claimant from a panel of at least three doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request;

…

(3)       However, a claimant is not obliged to undergo an examination or assessment under this section if it is unreasonable or unnecessarily repetitious.”

1. The applicant does not accept that…