Mazay v Pearce[1997] QDC 115

BETWEEN:

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REASONS FOR JUDGEMENT - McGILL D.C.J.

Delivered the 19th day of May 1997

BETWEEN:

AND:

AND:

REASONS FOR JUDGEMENT - McGILL D.C.J.

Delivered the 19th day of May 1997

In this action the plaintiff claims damages for personal injury alleged to have been suffered by her in a motor vehicle accident on 21 April 1995 when the vehicle driven by the first defendant collided with the rear of the plaintiff's vehicle causing it to hit a vehicle in front. It is alleged that as a result of the collision the plaintiff suffered various injuries including a severe whiplash injury to the neck, and traffic phobia. On the pleadings both liability and quantum are in issue.

There is evidence before me that the plaintiff has been examined by a psychologist Mr Stoker who on 22 August 1996 expressed the opinion that the plaintiff suffered a severe psychological reaction to the accident involving a post-traumatic stress disorder, depression, and traffic phobia. He also records complaints of chronic pain and headaches. He thought the psychological factors could be exacerbating her physical symptomatology.

Apparently after the accident the plaintiff gave the notice required by the Motor Accident Insurance Act 1994 to the second defendant, and the second defendant subsequently sought to inform itself of the circumstances of the accident out of which the claim arose as required by the Act. Section 45 of the Act imposes on a claimant a duty to cooperate with the insurer and by subsection (4): “The claimant must comply with a request by the insurer to undergo, at the insurer's expense -

Pursuant to subsection (4) on 2 October 1996 the second defendant wrote to the plaintiff's solicitor's nominating a panel of three psychiatrists and asking for the claimant's choice to be notified. On 7 October 1996 the plaintiff's solicitors chose Dr B Klug and asked advice of the appointed date and time. On 8 October 1996 by facsimile the second defendant advised the plaintiff's solicitors that an appointment had been made for the plaintiff to see Dr Klug at 1.20pm on 9 December 1996, at the doctor's rooms at Wickham Terrace. On the same day the plaintiff's solicitors confirmed that the plaintiff “can attend the appointment” as scheduled. However, the plaintiff did not keep the appointment; on the day for which it was arranged she telephoned to cancel the appointment, and declined to make a new appointment giving as an excuse that she did not know what she was doing in the new year. The plaintiff's solicitor has sworn that he has been informed by his client that she felt unable to leave her home on 9 December 1996 due to depression and a feeling of inability of leave her home.

On 20 December 1996 the second defendant's solicitors wrote to the plaintiff's solicitors advising them of the cancellation, noting that the second defendant may be responsible for a cancellation fee charged by Dr Klug and reserving its rights in this regard. They also sought an indication that if a further appointment was arranged with Dr Klug the plaintiff would attend. In fact Dr Klug charged a cancellation fee of $400 for the appointment that was not kept on 9 December 1996, and on 6 January 1996 the second defendant's solicitors advised the plaintiff's solicitors of this. After a follow-up letter the plaintiff's solicitors replied on 18 February 1997 asserting that the plaintiff contacted Dr Klug's rooms in ample time to cancel the appointment and that the plaintiff would not accept any responsibility for the cancellation fee, which was alleged to be excessive. It does not now appear to be disputed that the cancellation occurred on the day fixed for the appointment.

On 24 February 1997 the second defendant solicitor's asked the plaintiff's solicitors to indicate when it would not be possible for the plaintiff to see Dr Klug and they would attempt to arrange a compatible appointment. This letter was apparently not responded to, and early in March 1997 an appointment was made for the plaintiff to see Dr Klug at his rooms in Brisbane at 1pm on 15 April 1997. On 3 March 1997 the second defendant's solicitors advised the plaintiff's solicitors of that appointment; they pointed out that a further cancellation fee would be charged if the plaintiff failed to attend the examination without proper notice of cancellation of the appointment and sought confirmation within seven (7) days that the plaintiff would attend. They also pressed the claim for reimbursement of the cancellation fee. After a follow-up on 8 April 1997 the plaintiff's solicitors responded seeking that the second defendant pay the plaintiff's lost income estimated to be $100 as a result of attending the appointment. On the same day the second defendant's solicitors advised the plaintiff's solicitors that “Our client will pay the amount it is required to pay by law. These further last minute demands by your client are not acceptable and will not be tolerated.” They sought confirmation that the plaintiff would attend and intimated that otherwise an application to the court would be made. On the same day the plaintiff's solicitors advised that the plaintiff agreed to attend the appointment on 15 April and looked forward to receiving a copy of the report in due course. Nothing was said then about the claim for reimbursement for lost wages, the entitlement to which had been I think fairly clearly rejected in the previous communication from the second defendant's solicitors. As a result of this letter the second defendant's solicitors confirmed of the appointment with Dr Klug.

However two days later on 10 April 1997 the plaintiff's solicitors wrote advising that the plaintiff would attend Dr Klug “upon the basis that you meet her lost wages as a consequence of attending.” Details were given of the rate of remuneration and it was asserted that the plaintiff was working at the Parliament House end of George Street and that it would take some thirty to forty minutes to attend upon Dr Klug. They sought confirmation that the second defendant would meet lost wages in attending the appointment and a copy of the letter of instruction to Dr Klug. On the same day the second defendant's solicitors replied rejecting the condition now sought to be imposed, saying that if the plaintiff did not attend another cancellation fee of $400 would be charged, and that in those circumstances an application would be made to the court. At this point the dispute between the respective solicitors seems to have become somewhat unnecessarily heated, and in the event the parties maintained their positions including that the second defendant would pay those amounts which it was required to pay as a matter of law. On the 11 April 1997 the plaintiff's solicitors advised that the plaintiff would not attend the appointment, and on the same day the second defendant's solicitors cancelled the appointment with Dr Klug. Nevertheless a cancellation fee of $400 was charged by Dr Klug; his secretary advised that his practice is to charge a cancellation fee in the event that appointments were cancelled within one week prior to the date scheduled for the appointment. A further appointment has been made for 30 May 1997. On 23 April 1997 the second defendant's solicitors filed an application for an order pursuant to section 50 of the Act that the plaintiff attend to be medically examined by Dr Klug at 2pm of 30 May 1997, and that the plaintiff pay the two cancellation fees and the cost of the application. The plaintiff's attitude is that she will not attend unless her lost wages are paid, and she disputes the liability for the cancellation fees.

The first issue to be resolved therefore is whether on the true construction of section 45 the loss of income incurred by the plaintiff as a result of attending a medical examination is part of the expense which must be paid by the insurer as a result of the provision that the examination is to be undergone “at the insurer's expense”.

It has for a long time been recognised as fair that where there is a power given under a statute to require a plaintiff to undergo a medical examination the defendant should pay the costs of that examination. In Gauci v. Mt Isa Mines Ltd (Supreme Court of Queensland, Andrews J, Writ 12/1980, 26.10.81) there was an application for an order for a further examination by a doctor who had previously examined the plaintiff. His Honour referred to the defendant having to bear the expenses and the costs relevant to the application in relation to the examination. I take it that this was a reference to both the legal costs of the application and the expenses of the examination. In Saini v Freeman (Plaint 2610/92, 3.3.93) Robin DCJ dealt with a application pursuant to section 4C of the Motor Vehicles Insurance Act for the plaintiff to undergo a medical examination by a psychiatrist. The substantial contest was as to the conditions under which that ought to be effected. So far as is relevant to this question His Honour said that the defendant should pay any medical fees charged and in addition “the plaintiff's reasonable expenses of attending”, and one of the conditions His Honour imposed was that “the plaintiff's reasonable costs in respect of attending on the examining doctor to be paid by the applicant.” There was a further condition of the plaintiff's convenience be consulted in fixing the time for examination, and it does not appear from His Honour's reasons that there was any debate as to whether the reasonable costs of attending included any income lost by plaintiff in attending the doctor. It may well have been that no income would be lost. Indeed I would expect that that would be the case with most plaintiffs. Many plaintiffs are not in employment, and most people who are in employment are able to obtain time off to attend doctors without loss of income. In addition many professional or self employed people who are paid on the basis of the work they do would not lose income because they would be able to do at some other time the work they would have otherwise have done during the time occupied by the doctor's appointment. For example, a barrister would not be entitled to be paid for loss of income for attending such a medical examination. It is perhaps of some significance in the present case that an appointment to attend a psychiatrist is likely to be a good deal longer than most medical examinations: the evidence indicates that two hours have been set aside by Dr Klug.

It is however possible to envisage that in some cases plaintiffs would actually and unavoidably lose income as a result of attending an examination required under section 45(4) of the Act. The evidence before me in the affidavit of Mr Kerin sworn 13 May 1997, and provided after the application was heard in response to my intimation during the argument that I would expect evidence to demonstrate these matters, does I think indicate that the plaintiff will actually lose income as a result of attending this medical examination, since she now appears to be again quite heavily committed in her new employment, where she is paid strictly on the basis of hours worked, and the arrangement seems to be one under which time taken for this appointment could not be made up at some other time.

Counsel for the applicant argued that “expenses” in the statute should be limited to out of pocket costs of the plaintiff, and submitted that there was some parallel between time lost by the plaintiff for attending a medical practitioner for medico-legal reports to assist her case, or indeed in consulting her own solicitor. Reference was also made to the authorities dealing with costs, as to their not including compensation for time taken in litigation by the party, or time spent by a litigant in person in preparing and conducting the case: Potter v Dickenson (1905) 2 CLR 668 at 678-9; Cachia v Hanes (1994) 179 CLR 403. It seems to me however that there is a distinction between a situation where a court has to consider the limits on the concept of costs for the purposes of exercising a statutory discretion to award costs of litigation to the successful party, and the scope of the statutory concept of “expense” when determining the extent of the obligations on an insurer when requiring the plaintiff to submit to a medical examination in connection with an attempt to resolve the plaintiff's claim in respect of an injury arising out of a motor vehicle accident. As was noted by Andrews J in Gauci (supra), it is relevant to bear in mind that the section imposes some limitation on the liberty of the subject, and in the light of that consideration it is not appropriate to adopt an interpretation of the statute which would impose on the subject a further burden than was made necessary by the express terms of the legislation.

In my opinion in circumstances where it really can be shown that a particular plaintiff will actually and unavoidably lose income as a result of complying with a requirement under section 45, there is little distinction between a situation where the plaintiff has to meet an expense from her own pocket and a situation where less money comes into the plaintiff's pocket through loss of income. I also think that, unless perhaps the amount of the income loss was so small as to be trivial, requiring a plaintiff to attend an examination which has the effect of imposing a loss of income on the plaintiff could be characterised as an unreasonable examination and hence run into the limitation in section 45(5). In the present case the loss of income is $100, and I think it would be unreasonable for the plaintiff to suffer that loss as a result of having to attend this examination.

For these reasons therefore in my opinion it is reasonable in this particular case for the applicant to make up any income lost by the plaintiff as a result of attending the examination. Since the payment is in substitution for income it would in my opinion be taxable, and therefore the amount payable is the gross amount. The position with superannuation contributions is a little more complicated, but on the whole it is probably fairer if such contributions are also paid to the plaintiff as further income. The position therefore in the light of Mr Kerin's affidavit is that the plaintiff is entitled to be paid $33.39 for time necessarily lost as a result of attending the examination. The plaintiff apparently has to walk from the Parliament House end of George Street to Wickham Terrace to attend. I allow three hours which with a small of amount of rounding comes to $100.

With regard to liability for cancellation fees, in my opinion once the plaintiff has indicated a willingness to attend a particular appointment the plaintiff ought to be responsible for any cancellation fee imposed if the appointment is not kept, or the appointment is cancelled by the plaintiff without giving reasonable notice, unless there is some good reason for not complying with the statutory obligation. In the present case given that a two hour appointment was involved the cancellation fee was not unreasonable. I suspect it would not be easy to fill such a time slot at short notice with another patient. With regard to the fee in respect of the second appointment, it seems to me that the plaintiff's solicitors made a claim for payment of lost wages, and that led to a response that the defendant by election would pay whatever it was liable to pay as a matter of law but it did not regard that liability as extending to payment of lost wages. In those circumstances the plaintiff had a choice of either refusing to attend until the liability to pay wages was acknowledged, so that if necessary the matter went to court, or attending on the basis that she would if necessary apply to the court for an order under section 50 for payment of lost wages, or abandoning her claim and attending the examination. In fact her solicitors indicated she would attend, which in my view amounted to an indication that she was following the second or third of these courses. After liability for a cancellation fee had been incurred it was unreasonable to revert to the first of these courses even in circumstances where that was otherwise a reasonable condition to impose. In my opinion the real reason why a second cancellation fee was incurred was because of the inconsistency in the attitude of the plaintiff's solicitors on the 8 and 10 April 1997, and the plaintiff is therefore responsible for that fee.

With regard to the first cancellation fee, there is some evidence before me to suggest that that appointment may have been cancelled as a result of the psychiatric condition which may be itself a product of the defendant's tort. If that is the case it may well form a reasonable excuse for failing to attend and a judge may well take the view that it is not appropriate to order the plaintiff to pay the cost of that cancellation. Counsel for the applicant has in some written submissions provided on 15 May set out a number of reasons which justify some scepticism about that claim, but I think that is not a matter which I should resolve in chambers. On the face of the material before me at the present time it does rather look as though the plaintiff's action in failing to keep that appointment was unreasonable, but I think that a trial judge would be in a better position to assess the question in the light of the whole of the evidence of the surrounding circumstances, and much more evidence no doubt as to the plaintiff's psychiatric condition, and accordingly in so far as the application seeks payment of the cancellation fee in respect of the appointment of 9 December 1996 that application should be adjourned to the trial judge.

One issue remains, the requirement to provide a copy of the letter of instructions. This was a requirement imposed by Robin DCJ in Saini (supra) although His Honour did not give any detailed discussion as to the point. His Honour however referred to Geary v Heupeden [1992] 2 QdR 475. In that case Demick J held that it was just that one of the requirements to be imposed on an order for medical examination under section 4C of the Motor Vehicles Insurance Act was that all medical reports and other documents submitted to the examining medical practitioner should be disclosed to the plaintiff. Although it is not entirely clear from the report it appears that what was contemplated was disclosure prior to the inspection. It is also clear from His Honour's reasons that His Honour had in mind that all material provided to the medical practitioner should be disclosed. In that decision however His Honour expressly declined to accept what he described as a mere comment in the judgment of Thomas J in Martin v Kennedy [1992] 2 QdR 109 at 112, where His Honour referred to certain policy considerations in relation to the disclosure prior to trial of material such as video tapes which was relevant to the assessment of the extent of the plaintiff's incapacity. His Honour said: “The very nature of such evidence means that its efficacy would be virtually destroyed if it had to be disclosed before trial. The detection of fraud, and the exposure of exaggeration are important matters in the administration of this area of justice and I should be reluctant to conclude that evidence of this nature requires to be disclosed in advance. The words of [Rule 149A] do not require such an interpretation.” His Honour's judgment received the concurrence of Ryan J, and McKenzie J expressed agreement generally with the reasons although he delivered some separate comments on the question of exclusion of evidence in reliance on Rule 149A, which may amount to a refraining from expressly agreeing with this comment. Nevertheless it was by a majority of the Full Court. It addressed an issue of policy on which there has been some difference of opinion generally in courts; the contrary view is that elaborated on by Demick J in Geary (supra) p.477. With respect to those who prefer that view, in my opinion the preferable view is that expressed by Thomas J. In my opinion it is very much in the interest of justice that exaggerated or fraudulent evidence in court should be exposed, and very much in the interest of justice that no plaintiff should know when giving evidence whether he or she has been subject to surveillance. A plaintiff whose evidence is truthful would in my view would have nothing to fear, and a plaintiff who might be tempted to lie or exaggerate may well be restrained by the knowledge that the defendant may have available material which would show that such evidence was false and thereby destroy the plaintiff's credibility. In my opinion it is very desirable in the interest of justice that no plaintiff should be in a position to know when giving evidence that there is not evidence of surveillance available to the defendant. Because of the risk of tailoring of evidence, I think it is also desirable for a plaintiff not to know in advance that there is some surveillance evidence available to the defendant even if its content is not known.

In the light of these considerations, I am weary of the approach generally adopted by Demick J in Geary, and prefer to consider this question afresh. In so far as the defendant has available to it other medical reports, they should be disclosed anyway under Rule 149A(4), so there is no harm in requiring disclosure of them if they have not already been disclosed. In the case of reports which have been obtained from the plaintiff, it may well be important to know whether particular reports were made available to the doctor, but it does not seem to be necessary to require copies of reports originally obtained from the plaintiff to be provided back to the plaintiff's solicitors. I think it is sufficient if the solicitors for the second defendant provide a list of the medical and hospital reports provided to Dr Klug, together with copies which are not already available to the plaintiff That should remove the necessity to copy reports which the plaintiff already has. As to whether this should be provided in advance of the examination, it is I suppose possible that the plaintiff or her advisers may take the view that there are some additional reports which should be provided to Dr Klug which is not being provided by the second defendant, and if the list if provided in advance that will become possible.

There is, quite properly, no material before me to indicate whether there is any video tape or other evidence available to the defendant which is relevant to the extent of the plaintiff's incapacity, but on principle if anything of that nature were to be disclosed to Dr Klug I do not think it should be disclosed to the plaintiff, for the reasons discussed earlier. With regard to the letter of instructions to Dr Klug, that would ordinarily be the subject of legal professional privilege, and it may be that the letter would contain a request or suggestion to investigate a particular matter, or may refer to evidence which is available to the defendant which it would not be appropriate to disclose at this stage. The argument that the letter of instructions should be disclosed, and indeed the proposition that any instructions should be put in writing as ordered by Robin DCJ, seems to depend upon the adoption of the policy advocated by Demick J, which I would reject for the reasons discussed earlier. Once that policy is rejected, it does not seem to me that there is any consideration on the basis of which it is unreasonable for an examination to take place where the letter of instructions to the doctor is not disclosed to the plaintiff, or if it be relevant that justice requires that such a letter be disclosed. The same applies to any material other than medical or hospital reports made available to the doctor; it seems to me that the exclusion only of video tapes in the order made by Robin DCJ is an unduly restrictive exclusion, since the statements in Martin v Kennedy applied in that case also to audiotape and transcripts, and in principal apply to any non-expert evidence relevant to the extent the plaintiff's incapacity which would be of assistance in the detection of fraud or the exposure of exaggeration. In the present case for example the second defendant's solicitors may think it would be of some assistance to Dr Klug to provide him with a copy of the affidavit Mr Kerin sworn 13 May 1997. I see no reason why, if they chose to do that, a copy of that affidavit should be provided to the plaintiff, or indeed the feet that it has been provided should be disclosed.

I therefore order: