Williams v Kane[2004] QDC 472

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under s 663B of the Criminal Code.  The respondent was on 9 April 2002 convicted by a jury after a trial of various offences including one count of indecent dealing with a child under the age of 14, and one count of assault occasioning bodily harm, both committed on the applicant on dates not later than 19 January 1981.  On 23 April 2002 she was sentenced to a term of imprisonment.

2. [2]
   The application was served on the respondent, who has appeared in response but who is not legally represented; an application for legal aid by her was refused. The application is supported by an affidavit by a psychiatrist who examined the applicant on 31 March 2004 for the purpose of preparing a report in support of this application.  A copy of that report is exhibited to the affidavit.  The affidavit of the applicant in support of the application also refers to a physical injury to the back, but it is apparent that the principal basis of the applicant’s claim is that she has suffered a psychiatric injury as a result of the offences of which the respondent has been convicted.

3. [3]
   The respondent has sought to have the applicant examined by a different psychiatrist, and indeed has on two occasions arranged an appointment with a particular psychiatrist for the purpose of such an examination. The respondent told me that the second psychiatrist was one recommended to her by another psychiatrist as one suitable to conduct such an examination. The psychiatrist from whom she is now seeking a report is female, and that may reduce the risk of some harm being suffered by the applicant as a result of her having to discuss the matter again with someone. In any case, presumably a psychiatrist would be well qualified to arrange such examination as may be necessary in such a way as to minimise the risk of adverse psychiatric consequences to the person being examined.

4. [4]
   The applicant’s position is that she does not wish to be examined by another psychiatrist, and will not submit to such an examination voluntarily. There is no provision in the Criminal Code (or for that matter in the Criminal Offence (Victims) Act) for independent medical examination of an applicant, and the various statutes which provide for such examinations in certain circumstances in the case of persons claiming damages in respect of injuries^[1] do not apply.  I am not aware of any authorities dealing with the question of whether an independent medical examination can be ordered in respect of an application for criminal compensation, at least in Queensland.  The point may well be novel.

5. [5]
   It is well established in England that a court has inherent jurisdiction to stay an action seeking damages for personal injuries if the conduct of the plaintiff in refusing a reasonable request for medical examination is such as to prevent the just determination of the cause: Edmeades v Thames Board Mills Ltd [1969] 2 QB 67;  Starr v National Coal Board [1977] 1 WLR 63.  The latter case was referred to with approval by Mackenzie J in Timmins v Yandilla Park Ltd [2000] QSC 281 at [18], and his Honour at [23] noted that Master Weld had reviewed the authorities in Australia in Catton v Spies (writ 5080/83, 3 March 1986, unreported).^[2]  Other authorities in Australia which have followed or applied the English cases include  Stace v The Commonwealth (1989) 51 SASR 391 and Ristic v Southcote Investments Pty Ltd (2000) 24 SR (WA) 226.  His Honour also noted that the decision of the Court of Appeal in Gray v Hopcroft [2000] QCA 144 was not inconsistent with the English authorities:  [27].

6. [6]
   It is true that those are decisions involving proceedings in Supreme Courts,^[3] where it is clear that the court has inherent power.  There is however clear authority in Queensland that the District Court, although not a superior court, has power to stay actions:  Stevens v Trewin [1968] Qd R 411 at 416-7.  In Gray v Hopcroft (supra) the Court of Appeal refused leave to appeal from a decision of a District Court judge saying an action unless and until the plaintiff underwent a medical examination.  In my opinion I have power to stay the plaintiff’s application unless and until she undergoes examination by a medical specialist independent of the plaintiff’s expert witness.

7. [7]
   The question then is whether that power should be exercised. This is not a case where the question of whether the plaintiff has suffered any or what injury is either necessarily settled by what occurred during the criminal trial, or so obvious that there would be little point in permitting the respondent to obtain independent confirmation of it. There was no issue at the criminal trial about whether the applicant suffered any psychiatric injury as a consequence of the offences. There may well be issues as to whether the applicant is suffering from any and what psychiatric problems, and there may well be issues as to whether they have been caused or made worse by other events in the applicant’s life. These events occurred a long time ago.

8. [8]
   Further, the applicant’s material alleges that there were “many other occasions” when she and her siblings were subjected to physical and mental abuse by the respondent and her husband: para 8.  But the respondent has been convicted only of two offences in relation to two specific incidents relevant to the applicant.  This obviously gives rise to issues as to the question of causation, and as to whether those specific incidents materially contributed to any psychiatric problems the applicant now has, or whether they can be seen to have caused or made worse some specific features of her psychiatric state.

9. [9]
   Although the matter has always been said to be one of discretion, my impression is that, subject to considerations about the requirement for independent medical examination not becoming oppressive, courts have generally taken the view that a person seeking damages for personal injuries should be willing to undergo some reasonable level of independent medical examination in connection with that process. That general approach has now been confirmed by the legislature in relation to actions for damages for personal injuries. Although there is no specific legislative equivalent in relation to a claim for compensation,^[4] in my opinion there is no reason to distinguish such claims from actions for damages. 

10. [10]
    This is a claim under the Criminal Code, where compensation is assessed as if in an action for damages for personal injuries, subject to the limits imposed by the statute:  McClintock v Jones [1996] 1 Qd R 524.  In my opinion at least in relation to applications made under the Code there is no reason why the ordinary approach adopted by courts in respect of actions for damages for personal injuries should not be applied.  Applying that approach, and bearing in mind the particular circumstances of this matter, in my opinion it is appropriate to order that the proceeding be stayed unless and until the applicant undertakes independent psychiatric examination at the expense of the respondent. 

11. [11]
    When the matter came before me on 10 November the respondent indicated that she recognised she was responsible for the cost of the examination, and that a copy of the psychiatrist’s report would have to be provided to the solicitors for the applicant.  An examination had been arranged on a particular day for a particular psychiatrist, but there had been no notice of the identity of the psychiatrist given to the applicant’s solicitor.  That solicitor had instructions at that stage that the applicant did not want to undertake such an examination unless ordered to do so by the court.  I do not order her to undertake an examination.  She remains free if she chooses simply not to pursue her application for compensation.  But if she wants to pursue that application, she must submit to an examination. 

12. [12]
    Her solicitor however had had no opportunity to consider the question of whether there was an objection to the particular psychiatrist nominated by the respondent, or whether the particular date and time arranged by the respondent were convenient. Accordingly I adjourned the matter for further mention to 1 December, to enable instructions to be obtained in relation to those matters.  If there is ultimately no objection to the particular psychiatrist, and the appointment already arranged is to be as convenient as any, it may be that by now the examination has already taken place.  If not I will now go on to deal with any further issues between the parties in relation to examination.  But for the reasons set out, in those circumstances I will order that the proceeding be stayed unless and until the applicant at least agrees to undertake independent medical examination.