Kerkow v BCP Holdings Pty. Ltd.
[2010] QDC 209
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- Unreported Judgment
- Kerkow v BCP Holdings Pty. Ltd.[2010] QDC 209
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Kerkow v BCP Holdings Pty. Ltd.[2010] QDC 209
Kerkow v BCP Holdings Pty. Ltd.[2010] QDC 209
DISTRICT COURT OF QUEENSLAND
CITATION: | Kerkow v BCP Holdings P/L [2010] QDC 209 |
PARTIES: | DAPHNE JEAN KERKOW (Plaintiff) v BCP HOLDINGS PTY LTD TRADING AS BUNDABERG TOYOTA (Defendant) |
FILE NO/S: | Bundaberg 63 of 2008 |
DIVISION: | Civil Applications |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Bundaberg |
DELIVERED ON: | 12 May 2010 ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 April and 12 May 2010 |
JUDGE: | Andrews DCJ |
ORDER: | Defendant’s application dismissed. Order that the signature of the defendant on a request for trial date be dispensed with and that the proceeding be listed for trial. Order that the defendant pay the plaintiff’s costs of the application on a standard basis. |
CATCHWORDS: | TORTS – NEGLIGENCE – STATUTES, REGULATIONS ETC – QUEENSLAND – PERSONAL INJURY PROCEEDINGS – MEDICAL EXAMINATION – AFTER COMPULSORY CONFERENCE – Personal Injuries Proceedings Act 2002 – where plaintiff suffered wrist injury - where Part 1 and Part 2 Notice of Claim served – where plaintiff supplied defendant’s insurer with orthopaedic specialists’ reports – where plaintiff supplied quantification of claim at insurer’s request – where insurer did not require plaintiff to be medically examined but required a compulsory conference – where orthopaedic reports referred to difficulty with work – where compulsory conference held and mandatory offers exchanged – where statement of loss and damage delivered claiming an earlier retirement and future loss of earnings and substantial amount for gratuitous care – where plaintiff reduced working hours by two thirds – where 17 months after compulsory conference insurer requested plaintiff to undergo examination by a further orthopaedic specialist – where purpose to ask specialist for opinions whether reduced employment and need for gratuitous care caused by wrist injury or otherwise – where no evidence as to why the insurer or its solicitors want the plaintiff examined by a further orthopaedic specialist – where no evidence that insurer considered whether adequate to question the plaintiff’s orthopaedic specialists – where no evidence that insurer regards plaintiff’s specialists as unacceptable – where insurer had not put the questions to the plaintiff’s orthopaedic specialists – whether unreasonable for claimant to undergo examination by another orthopaedic specialist Personal Injuries Proceedings Act 2002 ss 4, 25 and 37 Starr v National Coal Board [1977] 1 WLR 63; 1 All ER 243 |
COUNSEL: | Dixon for the plaintiff |
SOLICITORS: | Payne Butler Lang for the plaintiff |
HIS HONOUR: The defendant seeks an order that the plaintiff comply with a request by the defendant to undergo a medical examination from her selection of one of a panel of three orthopaedic surgeons submitted by the defendant's solicitor in a letter to the plaintiff's solicitors dated 31 July 2009 on the terms and conditions contained in that letter. The terms and conditions included offers by the defendant to pay the plaintiff's expenses.
The plaintiff cross-applies seeking an order pursuant to Uniform Civil Procedure Rule 469(4) that the signature of the defendant on a request for trial date be dispensed with and that the proceeding be listed for trial and for such further directions or orders as may be appropriate.
Argument concerned mainly the defendant's application.
The defendant's counsel was asked by me if the defendant fails on its application whether the plaintiff should succeed on its. I understand the defendant's counsel's response to be that the only basis for a refusal of that application by the plaintiff would be that the defendant would seek to use the procedure at rule 553 of the Uniform Civil Procedure Rules to have a conference.
The plaintiff resists the application for examination on the basis that it is unreasonable. That is a reference to section 25 of the Personal Injuries Proceedings Act 2002 at subsection (3). That section provides, so far as it material to the dispute before me, that if a respondent wants to obtain an expert report about a claimant's medical condition or prospects of rehabilitation but fails to obtain the claimant's agreement, the claimant is not obliged to undergo an examination or assessment if it is unreasonable or unnecessarily repetitious. The plaintiff in this case is relying upon persuading me that it is unreasonable.
The plaintiff submits, and I accept, that when construing what is or is not unreasonable I should do so having regard to some other sections of the Act, including sections 4 and 37. Section 4 sets out the main purpose of the Act which is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury. At subsection (2) it provides that the main purpose is to be achieved generally by: (a) providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and (b) promoting settlement of claims at an early stage wherever possible.
Section 37 of the Act provides a procedure for compulsory conferences. So far as it relevant to the issues before me, it provides: (1) at least seven days before the compulsory conference is held each party must give each other party, (d) a certificate (certificate of readiness) signed by the party. At subsection (2) of section 37 it provides: The certificate of readiness must state that having regard to the documents in the parties' possession: (a) the party is in all respects ready for the conference and the trial subject to compliance with the procedural requirements of the Uniform Civil Procedure Rules 1999; and (b) all investigative material required by the party for the trial has been obtained, including witness statements from persons, other than expert witnesses, the party intends to call as witnesses at the trial; and (c) medical or other expert reports have been obtained from all persons the party proposes to call as expert witnesses at the trial.
The plaintiff's accident allegedly occurred on the 10th of May 2006. On the 17th of July 2006 the part 1 notice of claim was served. On the 17th of August 2006 the defendant insurer's investigator's report was obtained. On the 31st of January 2007 the part 2 notice was served. On the 2nd of April 2007 Dr Van Der Walt, an orthopaedic specialist, reported. On the 8th of May 2007 he provided a second report. On the 10th of July 2007 a report of Dr Ross, another specialist with particular expertise as an orthopaedic surgeon in matters relating to the wrist, was obtained. On the 15th of February 2008 a third report of Dr Van Der Walt was obtained. On the 2nd of April 2008 a second report of Dr Ross was obtained. On the 27th of June 2008 Allianz, the insurer, requested quantification of the claim, and on the 21st of July it was quantified.
When quantifying it, then, the quantification was slightly less in some material respects than in subsequent statements of loss and damage but it's important to note that there was a significant claim for future gratuitous care not dissimilar, though less than - not dissimilar to subsequent claims appearing in statements of loss and damage. There was also a claim for future economic loss despite the fact that the plaintiff was still working.
On the 28th of July 2008 Allianz wrote that it did not require a medical examination of the plaintiff but it required a compulsory conference. It should be noted that when Allianz made that decision it had already received all of the medical reports obtained by the plaintiff. As a result, it ought to have known from those medical reports that the plaintiff presented to Dr Van Der Walt as a 61 year old lady working 25 hours a week as a telemarketer when she first presented on the 2nd of March 2007; that she had at that stage observable significant soft tissue injuries to her left wrist; that she had a wrist which was not then stable.
It should've known from Dr Van Der Walt's third report that she consulted again on the 12th of February 2008 following a visit to Dr Ross, who had told her to use her left hand as normally as possible, but that she complained that in trying to do so her symptoms became worse, her hand suffered swelling, and the use of weights and the performance of exercises she was required to do made the symptoms worse; that her present complaints were of constant pain; that any activity increased her symptoms; and that her work as a telemarketer was something she continued with with considerable difficulty.
It should've known from the report of Dr Ross that his opinion was she had a healed hook of hamate fracture which was usually an indicator of more severe wrist sprain which often takes a long time to get over; that Dr Ross expected that she should have ongoing recovery with the simple exercises she found so painful and which she found to exacerbate her symptoms but that Dr Ross, on the 2nd of April, opined that it was a matter of time and getting used to her wrist as much as possible.
Notwithstanding that none of those medical specialists had ventured an opinion on gratuitous care which was claimed, nor on future economic loss, which was claimed, there was a compulsory conference.
There ought, normally, to have been a certificate of readiness signed by Allianz that it was in all respects ready for trial and that it had its medical reports. No such certificate was signed. Counsel for Allianz does not seek to make mileage from the lack of such a certificate. Counsel for the plaintiff submits that Allianz should not be able to approbate and reprobate with respect to these matters but I do not regard Allianz as seeking to do so. It simply observes that no such certificate was signed. It does not contend that the compulsory conference was not a compulsory conference as required by the Act.
I proceed on the basis that Allianz must have been aware of the statutory requirement for it to have been in a position ready for trial when it went to compulsory conference.
The plaintiff's solicitors did send Allianz a certificate of readiness on the 15th of October 2008. The conference occurred on the 24th of October 2008 with an exchange of mandatory offers. On the 13th of November 2008 a claim and a statement of claim were filed and served. A defence was served on the 7th of January 2009. On the 3rd of March 2009 a statement of loss and damage was delivered and I note that within it the plaintiff's claim for future loss of earnings appeared to be $40,000, although peculiarly it anticipated that the plaintiff would retire in January 2009, three months before the statement. She hadn't at that stage retired. The reply was filed and served in June 2009.
The plaintiff's solicitors in June 2009 tendered a request for a trial date, observing there was little point in a settlement conference. On the 23rd of June 2009 the defendant's solicitors wrote that instructions were being obtained about a request for medical examination. I note that the particular basis for it wasn't expressed in the letter.
On the 3rd of July the plaintiff retired and in July the defendants were notified of that fact. On the 31st of July the defendant's solicitors wrote suggesting a panel of three doctors. On the 5th of August 2009 there was an amended statement of claim noting the plaintiff's retirement but maintaining the claim for $40,000 future loss of earnings and maintaining a claim for future gratuitous care of the order of about $100,000.
The defendant submits that it needs examination by an orthopaedic specialist and I should note that its submission of needs is greater than the needs expressed by the defendant's solicitor in a rule 444 letter from the defendant's solicitors dated 15th of April 2010 where the solicitors asserted that: "The plaintiff's employment circumstances have changed since the compulsory conference and since the service of the plaintiff's initial statement of loss and damage. For that reason a medical examination is warranted. Further, the plaintiff has not previously undergone medical examination at the request of the defendant or its insurer and we have indicated that the defendant's insurer will be responsible for the cost of the examination, the report and your client's proven and reasonable travel expenses. It would therefore be neither unreasonable nor repetitious for the plaintiff to comply with the defendant's request."
A reading of that letter would suggest that the reasonableness is likely to be confined to the issue of the plaintiff's changing her employment circumstances. It seems that by the time that letter was written, the plaintiff had retired for about a month from employment, which was alleged to have been about 25 hours per week, but that after a month she had returned to employment for about 28 hours for every three weeks. It is open on that letter to also assume that reasonableness may have had to do also with the fact the defendant and the insurer had not had the plaintiff examined.
There was a broader basis submitted by counsel for the defendant as to questions which would be asked of an orthopaedic specialist and it was submitted that I should not be unduly technical. I do not propose to be. I accept that the defendant now argues that it would seek to have an orthopaedic examination asking an orthopaedic specialist the questions identified to me by Mr Hubbard, of counsel, for the defendant, which would include if the wrist injury would be the cause of the plaintiff's unemployment, which I take to include her reduced hours of employment; secondly, whether other complaints of the plaintiff, unrelated to the accident for which she sues, would have been a cause of her unemployment; and, thirdly, whether the wrist injuries which have been observed could have arisen from causes other than the injury alleged to have arisen from the alleged accident for which the plaintiff has sued, and certainly those things have not been addressed by any orthopaedic specialists in their reports to date.
It has been submitted for the defendant that the cases of Starr v. National Coal Board [1997] 1 All ER referred to in a judgment of Mackenzie J in Timmins, and the case of Gray v. Hopcraft [2000] QCA 144, in particular from the judgment of Ambrose J, would show me that a defendant has a right to select medical witnesses of its choice. As a general proposition, even the plaintiff did not argue against that, and that seems to be an orthodox submission.
The issue for me, however, is whether it is now unreasonable or unnecessarily repetitious. I need confine myself only to the first, which is whether it is unreasonable for the plaintiff now to be examined by an expert of the defendant's choice. I take into account that the defendant elected at an early time, that is, by 28 July 2008, not to have the plaintiff examined.
Defendant's counsel helpfully referred me to Luck v. Lusty, a decision of Byrne J, where, on the facts of that case, as were explained to me by counsel for the defendant, a defendant's solicitor initially did not take the opportunity to have a plaintiff examined, explaining that he thought the matter would settle and that it was appropriate to save the expense of an unnecessary medical examination. There is no evidence as to the thought processes of Alliance at the time of the compulsory conference. It should be noted that the defendant's solicitors were not acting for Alliance at the time.
It was submitted that in Luck v. Lusty the solicitor later repented. I have not been told of what evidence there was before his Honour in Luck v. Lusty about the matters that the defendant or the solicitor in that case wanted an orthopaedic specialist to consider.
In the matter before me of Kerkow, there is no evidence as to why the defendant, or its solicitors, want the plaintiff examined by the three doctors in question. There is no evidence that they have considered the benefit of having their questions posed to either Dr Ross or Dr Van Der Walt.
There is no doubt in my mind that the question of whether it is reasonable for the plaintiff to undergo another medical examination is a question of fact which will be answered one way or the other from case to case depending upon the circumstances. It is a question that will not turn solely on the issue of whether a defendant has had the advantage of having a plaintiff examined by a doctor of the defendant's choice.
There is in the Supreme Court a tendency to have experts reduced in personal injuries claims. It is a matter relevant to reasonableness whether there is a competent expert who has examined a party who would be acceptable to the defendant.
In the case before me, counsel for the defendant accepts that his client does not know Drs Ross or Van Der Walt. I have no evidence before me as to whether there is an opinion from the solicitors for the defendant that they are what might be known as plaintiffs' doctors. There is no evidence of any kind bearing upon the reasonableness from the defendant's point of view of its request that the plaintiff be examined by yet another doctor.
In the circumstances of the delay to date and, in particular, the delay to July 2009 when the defendant's solicitors first considered requesting instructions from their client as to whether the client would like to have the plaintiff examined by another orthopaedic specialist against the background of the client's election not to do so, I regard it as unreasonable for the defendant on the evidence it has placed before me or, more properly, the lack of evidence it has placed before me to require the plaintiff to be re-examined.
If I did not already advert to it I should have, that one of the bases which I find relevant in this case is that there is no explanation from the defendant as to why it would not be satisfied by directing the relevant questions which seem to me to be, I accept, reasonable questions to put to an orthopaedic specialist, why it has not sought to put those questions to Drs Ross and Van Der Walt. Had it done so and received replies which it had then considered, and had it then formed a view that it might have wanted further examinations, it would have been an entirely different hypothesis upon which to bring an application. It has done none of those things.
For that reason, I refuse the defendant's application.
...
HIS HONOUR: I order in terms of paragraphs 1 and 2 of the plaintiff's application.
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HIS HONOUR: With respect to costs, the general rule provided for in the Rules is that costs should follow the event. Authorities suggest that the exception for that should be where there are special circumstances.
The defendant has submitted that there is no compelling basis for the plaintiff to have its costs. I do not regard the other matters to which the defendant has referred as amounting to special circumstances.
There is a policy behind the rule that costs should follow the event, save for special circumstances, and that is to discourage a long argument about inventive matters that counsel have the capacity to find.
I regard this as not a case for departing from the general rule and so I will not revisit my order that, on the plaintiff's application, I order in terms of paragraph 1 and 2 of the application.