Maroney v Qantas Airways Limited
[2011] QDC 308
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- Unreported Judgment
- Maroney v Qantas Airways Limited[2011] QDC 308
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Maroney v Qantas Airways Limited[2011] QDC 308
Maroney v Qantas Airways Limited[2011] QDC 308
DISTRICT COURT OF QUEENSLAND
CITATION: | Maroney v Qantas Airways Limited [2011] QDC 308 |
PARTIES: | SARAH ELIZABETH MARONEY V QANTAS AIRWAYS LIMITED (ACN 009 661 901) |
FILE NO/S: | 3204 of 2011 |
DIVISION: | Civil jurisdiction |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 12 December 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 November 2011 |
JUDGE: | Devereaux SC DCJ |
ORDER: |
|
CATCHWORDS: | NEGLIGENCE – PERSONAL INJURIES – PRACTICE – MEDICAL EXAMINATION – REASONABLENESS – Where plaintiff claims against employer for damages for injury to shoulder – where defendant, under Workers’ Compensation and Rehabilitation Act 2003 s. 282, asked plaintiff to submit to examination by a “spinal surgeon” – where plaintiff refused – whether request unreasonable or unnecessarily repetitious STATUTES – INTERPRETATION – where application brought under Workers’ Compensation and Rehabilitation Act 2003 for the plaintiff to undergo medical examination – whether application can be brought after proceedings commenced Workers’ Compensation and Rehabilitation Act 2003 ss 282, 287 Faulkner v Keffalinos (1970) 45 ALJR 80 HL Booth, by her litigation guardian, G Booth v Kendall and Anor [2009] QSC 237 Luck v Lusty EMS Pty Ltd [2008] QSC 146 Timmins v Yandilla Park Limited [2000] QSC 281 |
COUNSEL: | Mr G. W. O'Grady for the plaintiff/respondent Mr A.S. Mellick for the defendant/applicant |
SOLICITORS: | Taylors Solicitors for the plaintiff/respondent Bruce Thomas Lawyers for the defendant/applicant |
- [1]The defendant applies for an order, under s. 287 of the Workers’ Compensation and Rehabilitation Act 2003, that the plaintiff be examined by a spinal surgeon.
- [2]The claim is for damages for injuries suffered in a workplace fall on 12 December 2008. The pleaded injuries were a soft tissue injury to the left shoulder with resultant sub-acromial bursitis and ongoing pain. The defendant pleads that any loss the plaintiff may have sustained was a consequence of various other injuries, including injuries to the cervical spine in 2003, 2004, 2005, July 2008 and September 2010.[1] The plaintiff replies that no claim is made for loss or damage in respect of any cervical spine injury.[2]
- [3]Dr Cooke, Orthopaedic Surgeon, examined the plaintiff on 26 May 2010. He reported to her solicitors on 5 November 2010. His summary includes that after the fall the plaintiff was treated for jarring of her cervical spine and inflammation of the left shoulder. He diagnosed, among other things, “soft tissue injury to the cervical spine – now resolved”. As the defendant points out, the plaintiff did not, apparently, give Dr Cooke any history of neck injuries. Dr Cooke includes, from his review of records, notes of MRI investigation of the cervical spine which conclude, “no significant finding”.
- [4]Dr Cooke also referred to the assessment of Dr Steadman in August 2010, who concluded the plaintiff had no permanent impairment attributable to injuries sustained in the fall. The injuries included contusion to the left hip; contusion to the left shoulder and strain to the left side of the neck.
- [5]On 20 September 2010, the plaintiff suffered a whiplash injury in a car accident.
- [6]Dr Tomlinson examined the plaintiff 8 days later, on 28 September 2010. She did not reveal to Dr Tomlinson any history of injuries before or since 12 December 2008. That is, she did not tell him about the recent car accident. Dr Tomlinson did not, apparently, have the records referring to the MRI results for the cervical spine. He diagnosed, relevantly, a whiplash injury, which he labelled “late whiplash syndrome”. On the history available he could only relate the injury to the December 2008 incident.
- [7]The plaintiff served the reports of Doctors Cooke and Tomlinson with her notice of claim on 14 December 2010. In the notice, she asserted she sustained various injuries apart from the left shoulder injury ultimately pleaded. In particular, she included a soft tissue injury to the left side of the neck which she would assess as causing 3% permanent impairment.
- [8]The plaintiff was thrown from a motorcycle in February 2011. She received physiotherapy for left shoulder injury. That incident seems to have only marginal relevance to the proceedings, given the plaintiff’s description of it in a statutory declaration.
- [9]Dr Duke, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 13 May 2011. He noted the MRI report of 5 August 2010 found no shoulder injury and he disagreed with Dr Cooke’s opinion that there was a shoulder injury. Dr Duke’s personal examination of the plaintiff led to his conclusion that the only injury the plaintiff suffered was neck injury which could not be related to the December 2008 incident. Again, the plaintiff did not, apparently, tell Dr Duke about the whiplash injury suffered in September 2010 or any shoulder injury suffered in February 2011.
- [10]Referring to the left carpal tunnel syndrome diagnosed by Dr Cooke, Dr Duke suggested any hand symptoms would arise from nerve problems in the neck and should be addressed by a neck expert.
- [11]The whiplash injury was first revealed to the defendant by the plaintiff’s solicitor’s letter dated 19 July 2011. This was after the (failed) compulsory conference and after the defendant requested the plaintiff be examined by a spinal surgeon.
- [12]The defendant argues that although the plaintiff no longer claims for a spinal injury, the nature and extent of any neck injury is relevant to assessing damages, given that the plaintiff claims $183,600 for future loss of promotional opportunities and reduced earning capacity.
- [13]The defendant argues:
- (a)the difference between the injuries referred to in the notice of claim and the statement of claim and the plaintiff’s nondisclosure to examining doctors calls for her further examination by an appropriate specialist to make clear the condition of her cervical spine;
- (b)the defendant will have the onus of proving any pre-existing spinal condition which might have affected the plaintiff in future regardless of the injuries she says she suffered in the December 2008 incident;
- (c)the defendant should be able to investigate the extent and relevance of the neck injury apparently suffered in September 2010.
- [14]The plaintiff argues:
- (a)as proceedings have been commenced it is not open to the defendant to make the request nor for the court to make the order;
- (b)there is no evidence of any incapacity arising from a neck injury;
- (c)in any case, any injury caused in the September 2010 accident was not overwhelming of the shoulder injury suffered in December 2008. It is, therefore, irrelevant to the assessment of incapacity caused by the shoulder injury.
- [15]Section 282 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) relevantly provides that an insurer may at any time ask the worker to undergo at the expense of the insurer a medical examination by a doctor to be selected by the worker from a panel of at least 3 doctors nominated in the request.
- [16]The worker must comply with the request unless it would be unreasonable or unnecessarily repetitious: s. 282(2).
- [17]Although s. 282 is within Part 5 – “Pre-court procedures” of Chapter 5 – “Access to damages”, the plain meaning of the words “at any time” allows the insurer to ask the worker to undergo the medical examination after proceedings have commenced. That seems particularly sensible where, as here, an injury which is arguably relevant to the assessment of damages is revealed after the compulsory conference. The defendant asked for the examination by letter dated 18 July 2011. The claim was filed on 23 August 2011. In the circumstances there seems to me to be no reason to limit the court’s power to enforce compliance with Chapter 5 of the Act (s. 287) because the application was made after the claim was filed.[3]
- [18]The plaintiff points to the records of the Qantas medical centre and the opinions of all examining doctors to confirm the position taken in the pleadings, that there is no incapacity from a neck injury. Doctor Tomlinson’s assessment was made only 8 days after the September 2010 accident and is explained by that event. The plaintiff resumed work on 10 November 2010 after a short period of receiving compensation. Dr Duke held the opinion that any cervical spine injury had no impact on the plaintiff’s capacity to work.
- [19]Both parties referred to the distinction drawn by Windeyer J in Faulkner v Keffalinos (1970) 45 ALJR 80 at 85 between, “a supervening happening that prevents a particular damage occurring as a result of the tort and a supervening happening that causes the harm caused by the tort to have added gravity.”
- [20]The plaintiff submits any neck injury is not of the second type and therefore irrelevant. The plaintiff’s earning capacity has not been destroyed by a subsequent neck injury. The asserted supervening event, therefore, has not prevented a particular damage occurring. So, although of possible medical interest any neck injury is legally irrelevant. The defendant, implicitly, asserts either that a pre-existing condition contributes to the plaintiff’s incapacity or a subsequent injury has increased it. Insofar as evidence might be lacking, the defendant seeks the opportunity to obtain it to meet its burden at trial.
- [21]The judgments in Timmins v Yandilla Park Limited [2000] QSC 281 and HL Booth, by her litigation guardian, G Booth v Kendall and Anor [2009] QSC 237 contain expositions of the principles to be applied in deciding such applications, at least where the court is exercising inherent jurisdiction to stay proceedings . The court must, in essence, balance the plaintiff’s right to personal liberty against the defendant’s right to conduct the litigation as it thinks fit. The court should regard, objectively, the reasonableness or the parties’ positions in light of the information available to them.
- [22]The present application is governed by the Act. Subsection 282(2) provides that the insurer may ask and the plaintiff must comply, unless it would be unreasonable or unnecessarily repetitious.
- [23]It would be unreasonable to expect the plaintiff to comply with an irrelevant examination or one which might require an unreasonable encroachment on her personal liberty.
- [24]To understand whether the proposed application would be irrelevant one must ask: What does the plaintiff claim she cannot do? Dr Cooke’s report includes the following:
She continued with physiotherapy and light duties until the end of January 2009 at a time when her shoulder was improving but movement was still painful and restricted. Repeatedly leaning down and lifting baggage on the conveyor belt with her left upper limb served to aggravate her left shoulder.
…..
With recurring aggravation of the shoulder, the left upper limb would go “numb and tingling” as the day progressed with a pulling sensation into her neck and an inability to lift the left upper limb above shoulder height. The pain would persist and cause her difficulties with household chores and with sleeping at night.
- [25]The Qantas medical records show her last consultation occurred on 9 March 2009. Dr Cooke records the plaintiff’s shoulder problems caused her to cease work for Qantas in December 2009.
- [26]It is less than clear precisely what the plaintiff claims she cannot do. It is relevant to notice Dr Cooke’s record of the plaintiff’s history of her difficulties performing her duties included reference to the neck, even if only as an indication of the extent of the injury.
- [27]The defendant’s argument, as I understand it, is that the material shows there is a clear history of neck problems culminating in the September 2010 neck injury. Medically, at least, according to Dr Duke, this requires examination by “a neck expert”. Legally, the relevance of neck injury would be that it would inform the assessment of damages if it contributes to the specific disability that produces the plaintiff’s incapacity. This would be something different from the second species of supervening event described by Windeyer J in Faulkner. Whether such a position is reached at trial will depend on the judge’s assessment of the evidence. The defendant, by this application, seeks the opportunity provided by the Act to obtain potentially relevant evidence.
- [28]So far as it goes, I accept the plaintiff’s argument that any neck injury has not been overwhelming. But I am not persuaded it would thereby be irrelevant to the assessment of damages. The request was not unreasonable on that account. Also, I am not satisfied that the examination sought would be so intrusive or painful as to make the request unreasonable on that basis. It is not unnecessarily repetitious because, although a “spinal surgeon” might be yet another orthopaedic surgeon, he or she will be, in Dr Duke’s terms, a neck expert and will have, unlike previous doctors, a more thorough account of the plaintiff’s history. On balance, I am satisfied the plaintiff should have complied with the request. In that case, there should be an order that the plaintiff be examined in accordance with the defendant’s request.
- [29]I will hear the parties as to the form of orders and costs.