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Salmon v Kinetic Superannuation Ltd[2015] QDC 287

Salmon v Kinetic Superannuation Ltd[2015] QDC 287

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Salmon v Kinetic Superannuation Ltd & Anor [2015] QDC 287

PARTIES:

PATRICK SALMON
(plaintiff)

v

KINETIC SUPERANNUATION LTD (ACN 056 917 303)
(first defendant)

and

THE COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LTD (ACN 004 021 809)

(second defendant)

FILE NO/S:

1287/15

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 November 2015, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2015

JUDGE:

Everson DCJ

ORDER:

  1. The application of the plaintiff is dismissed.
  2. Costs of and incidental to both applications are to be costs in the cause.

CATCHWORDS:

INSURANCE – ACCIDENT, SICKNESS AND INCOME PROTECTION INSURANCE – CONDITIONS, WARRANTIES AND EXCEPTIONS – TOTAL AND PERMANENT DISABLEMENT OR TOTAL INCAPAITY -  where the plaintiff seeks orders for the appointment of medical specialists for the purposes of expert reporting – where a panel is proposed for each relevant expert  - whether it is reasonable for the defendants to require the plaintiff to be independently medically examined

COUNSEL:

M D Alexander for the plaintiff

M T O'Sullivan for the first and second defendant

SOLICITORS:

Maurice Blackburn for the plaintiff

HWL Ebsworth for the first and second defendant

  1. [1]
    These are applications brought by each of the parties concerning the appropriate circumstances pursuant to which the plaintiff should be medically examined for the purposes of this proceeding.
  1. [2]
    The proceeding issued by the plaintiff is a claim in which he seeks relief on three alternative bases. Firstly, the plaintiff seeks a declaration in paragraph (a) of the claim that decisions of the first and second defendants to refuse payment of a total and permanent disablement benefit under the deed of the superannuation fund administered by the first defendant and permanent disablement benefit under the policy effected by the first defendant with the second defendant were void and of no effect. Secondly, the plaintiff seeks a declaration in paragraph (b) of the claim that he is entitled to a total and permanent disablement benefit under the above deed and the above policy and an order that he be paid the same. Thirdly, in paragraph (c) of the clam, the plaintiff seeks damages in the alternative.
  1. [3]
    The decisions of the defendants referred to were made on the basis of medical evidence placed before them. The relief sought in paragraph (a) of the claim obviously relates solely to the evidence which has already been collected in this regard. However, the relief sought in paragraph (b) and paragraph (c) involves the court making an assessment of the plaintiff’s entitlement to the relief sought. It is submitted by the plaintiff, pursuant to the application brought by the plaintiff, that the defendants ought to merely obtain any further reports from experts who have already examined him.
  1. [4]
    Conversely, it is submitted by the defendants, pursuant to their application, that they are entitled to have the plaintiff independently examined by experts of their choosing. The experts which they are seeking to have him independently medically examined by are an orthopaedic surgeon, a psychiatrist and a vocational assessor. Pursuant to their application, the defendants nominate three experts in each of these fields. The defendants submit that it is reasonable for them to independently medically examine the plaintiff for the purposes of this proceeding.
  1. [5]
    The relevant policy of insurance provides at clause 9.3 that the insured member may be required to undergo such medical examinations as the insurer reasonably considers to be necessary to satisfy them of their liability to pay a claim of the type the subject of the proceeding before me. Obviously, once a proceeding is before the court, different considerations arise and the question, consistent with the submissions of the defendant, is whether it is reasonable to require the plaintiff to be independently medically examined for the purpose of this proceeding.
  1. [6]
    The plaintiff has not been independently medically examined by an expert of the defendants’ choosing in this proceeding and, in my view, it is not unreasonable to require him to be so examined by an expert in each of the proposed disciplines. The claims for a declaration as to his entitlement to total and permanent disablement benefit and in the alternative, damages, are matters which the court must assess on the evidence placed before it. It is not unreasonable for a party facing a proceeding in the court to seek independent medical examinations of the plaintiff even when he has previously been examined in other circumstances by experts.
  1. [7]
    It is not reasonable, in my view, to subject the plaintiff to the examination of more than one expert in a given field or, self-evidently, examination by an expert in a field which is not relevant to the subject matter of the proceeding. However, these are obvious limitations on the court’s discretion and, in my view, an appropriate exercise of the court’s discretion is to make orders in accordance with the relief sought by the defendants.
  1. [8]
    I therefore dismiss the plaintiff’s application which is, I note, provided for in the defendants’ draft order.
  1. [9]
    Although the defendants have been generally successful in the proceedings before me today, nonetheless, the defendants resiled from their previous insistence on having the plaintiff examined by a neuropsychologist in the course of argument. The defendants also produced an order which was less severe than the application in terms of the relief sought. In all of these circumstances, I am of the view that the costs of and incidental to both applications should be costs in the cause.
  1. [10]
    I order accordingly and I make an order in terms of the amended draft which I initial and place with the file.
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Editorial Notes

  • Published Case Name:

    Patrick Salmon v Kinetic Superannuation Ltd & Anor

  • Shortened Case Name:

    Salmon v Kinetic Superannuation Ltd

  • MNC:

    [2015] QDC 287

  • Court:

    QDC

  • Judge(s):

    Everson DCJ

  • Date:

    13 Nov 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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