Williamson v ING Life Ltd

[2006] QDC 260

[2006] QDC 260

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD4227 of 2004

MARK WILLIAMSON	Plaintiff
and
ING LIFE LIMITED (ACN 009 657 176)	Defendant

BRISBANE

..DATE 12/07/2006

ORDER

CATCHWORDS:  Practice and procedure - proceedings against insurance to recover benefits for asserted cost of ability to work stayed until plaintiff undergoes assessment by orthopaedic specialist and occupational therapist/vocational specialist - contention as to identity of suitable orthopaedic specialist - relevance of defendant insurer's contractual entitlement to require medical examinations.

HIS HONOUR:  The plaintiff is seeking to recover benefits for what he asserts is inability to continue in his accustomed employment as fitter and turner.

The defendant insurer disputes that he is unfit for that work and fairly recently amended its pleading to assert that its position is advanced if Mr Williamson is fit for any remunerative employment whatever, arguably changing the scope of the proceeding in respect of the inquiry or investigations that might be appropriate in relation to his fitness to work.

The application before the Court is the defendant's and it seeks a stay of the proceeding  until the plaintiff has been assessed by an orthopaedic specialist, Dr Fitzpatrick, and by an occupational therapist or similar specialist in assessing the capacity of people who undertake vocations, Mr Blandford.

I have inquired of the plaintiff's counsel, Mr Harper, whether there are any difficulties likely to be produced by a stay order in the sense that other useful progress towards trial might be impeded.  Nothing was pointed to. 

The defendant is declining to sign a request for trial date.  The understanding, as things stand, is that, once the matter gets on the callover list, it will probably get trial dates at its first callover.

In those circumstances, the Court should not be dissuaded from ordering a stay, if the assessments are appropriate.
There is no contest in relation to assessment by Mr Blandford.  Mr Harper told the Court that there may be some costs issues in this regard.  There have been protracted preliminaries to the plaintiff's agreeing to see Mr Blandford, which include the advancing by the defendant of a different person to undertake that assessment.

The amendment to the defence which I mentioned is also, if I understand correctly, suggested to have some potential importance in relation to costs.

The more difficult issue concerns the medical assessment. 

The policy document contains in clause 7.1 an obligation on the insured expressed in the following "plain English" paragraph:

"You must give us full information if there is a claim.  This includes any medical reports from people who have treated you for the illness or injury.  If we ask you to undergo any medical examination, you must agree to do so.  We will pay for these."

Benefits have been withheld from Mr Williamson on the basis that he has not complied with that obligation and this aspect is part of the insurer's defence.

The insurer has proceeded independently under the general law and practice canvassed in decisions that have been mentioned by counsel; there is an obligation on the plaintiff pursuant to those to undergo certain medical examinations and assessments, or relevantly an obligation if the Court makes an order.

The defendant here has also its this contractual ability to nominate particular medical people and, it would seem, without offering the plaintiff the luxury of a panel of practitioners to choose from which other defendants often concede should be offered, as in the reported cases.

Mr Harper has referred to the Insurance Contracts Act 1984 and, in particular, section 14, which may impair the insurer's unlimited recourse to clause 7.1. Questions of that nature are for another day.

The defendant's original proposal was for medical assessment by Dr Tuffley.  The parties came close to but did not, in my view, reach an agreement that there should be an examination by him.  It was the prospect of months' delay, given the state of Dr Tuffley's future appointments schedule, which led the defendant to pursue another tack, of nominating Dr Fitzpatrick, access to whom it seems is available much more quickly - although, the plaintiff's solicitor has sworn an affidavit suggesting that cancellations and the like may offer possibilities of Mr Williamson seeing Dr Tuffley much sooner than has been thought. 

While delay would usually prejudice the plaintiff, who is not receiving payments, rather than the defendant, the Court ought not to assume that delay is immaterial to defendants.  There must be some cost in having proceedings, such as the present, current even if not much is happening.  The Court ought to sympathise with a defendant who is anxious to be quit of a proceeding. 

On general principles, it is my view that where possible a plaintiff being examined by a medical person ought to have his wishes respected from the point of view of being committed to examination by a practitioner in whom he has confidence rather than one in whom he does not have confidence.  No reason has been given, it is true, why Dr Fitzpatrick would be unsuitable.  I have observed that, the world being the way it is, it may be inappropriate, if there are reasons, for the plaintiff's solicitors to set them down on paper; that is a general observation, and not at all to suggest that there might be any such reasons in relation to Dr Fitzpatrick.

I have indicated to counsel my inclination to make the stay continue until there is an examination by either Dr Tuffley or Dr Fitzpatrick.  That would give the plaintiff an opportunity to choose and, if the defendant's right, obtain an earlier trial date by accepting Dr Fitzpatrick.  Dr Tuffley, of course, was originally suggested by the defendant and is presumably acceptable to the defendant with the qualification that it may not wish to accept the delays that might be inherent in using his services.

That order ought to make it clear that the Court is making no judgment about the contractual entitlements of the insurer.  The order is made on the basis of the general law and practice and not on the basis of clause 7.1.  It may well be that, if determined to insist on examination by Dr Fitzpatrick under that clause, the defendant is entitled to so insist.  Nothing that happens today involves determination by the Court that it is not.  The order therefore will be as follows.

MR MORTON:  I wrote out a draft while I was listening to your Honour.  I don't know whether it's acceptable to our learned friends.  This is what I propose.

HIS HONOUR:  This will all be taken down, won't it?

MR MORTON:  Perhaps I can read it into the record. 

"Without prejudice to the rights of the defendant to continue to require the plaintiff to undergo medical examination pursuant to clause 7.1 of the policy document exhibit TJB1 to the affidavit of Mr Batch, filed 6 June 2006.  The order of the Court is that:

1.  The action be stayed until the plaintiff undergoes medical examination by Dr J Tuffley, Orthopaedic Surgeon or Dr P Fitzpatrick, Orthopaedic Surgeon.

2.  The costs of and incidental to the application be the defendant's costs to the cause".

HIS HONOUR:  And there should be 3. Liberty to apply.

MR MORTON:  "Liberty to apply".

HIS HONOUR:  And the reference at the beginning of what you read should be, "Without prejudice to rights that the defendant may have". 

MR MORTON:  Yes.

HIS HONOUR:  I thought your formulation rather suggested that it did have rights.

MR MORTON:  That there was an acceptance that there was a right, yes.  "Without prejudice to the asserted - without prejudice‑‑‑‑‑

HIS HONOUR:  No, no.  Why can't it be done in the terms I suggested?  "Without prejudice to have such rights as the defendant may have".  Does that suit you, Mr Harper?  Given what I've said already.

MR HARPER:  Yes, yes, your Honour.  If it's ultimately your determination.

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