Moore v Stage Coach Qld Pty Ltd
[2004] QSC 3
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- Unreported Judgment
- Moore v Stage Coach Qld Pty Ltd[2004] QSC 3
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Moore v Stage Coach Qld Pty Ltd[2004] QSC 3
Moore v Stage Coach Qld Pty Ltd[2004] QSC 3
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial | |
PROCEEDING: | Application for Medical Examination |
ORIGINATING COURT: | |
DELIVERED ON: | 27 January 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 January 2004 |
JUDGE: | Douglas J |
ORDER: | Application dismissed |
CATCHWORDS: | WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – WHERE RESPONDENT OBTAINED MEDICAL REPORTS DURING THE TIME IN WHICH THE COMPENSATION CLAIM WAS BEING PROCESSED – WHERE RESPONDENT ELECTS TO CLAIM DAMAGES UNDER WORKCOVER QUEENSLAND ACT 1996 – WHERE APPLICANT NOMINATED A PANEL OF SPECIALISTS TO INDEPENDENTLY EXAMINE THE RESPONDENT – WHERE APPLICANT ASKS RESPONDENT TO CHOOSE A SPECIALIST FROM THE PANEL TO EXAMINE RESPONDENT ON BEHALF OF THE APPLICANT – WHETHER THE APPLICANT SHOULD HAVE A FURTHER EXAMINATION OF THE RESPONDENT BY A NEW SPECIALIST FOR A COMMON LAW CLAIM WorkCover Queensland Act 1996 ss 286, 291, 293, 293A, 312(1)(a) Muller v Nebo Shire Council [2002] QSC 084; Starr v National Coal Board [1977] 1 All ER 243 referred Woolworths (Qld) Pty Ltd v Berry-Porter [2002] QSC 360 considered |
COUNSEL: | K F Holyoak for the applicant R Fryberg for the respondent |
SOLICITORS: | McInnes Wilson Lawyers for the applicant Butler McDermott & Egan for the respondent |
[1] In this application under s. 291 of the WorkCover Queensland Act 1996 (‘the Act’) the principal issue is whether the plaintiff should undergo further examination by Dr Mungomery, to whom she was referred by WorkCover Queensland (‘WorkCover’) when making a claim for statutory benefits, or by one of a panel of three other psychiatrists proposed by the defendant, which is insured by WorkCover. The defendant prefers the three new doctors proposed by it because its solicitors are more confident that those doctors are capable of providing ‘medico legal reports which are of assistance to the court in determining issues relevant to a common law claim for damages’ and are not familiar with Dr Mungomery’s capacity to undertake a medico legal review in that context: see para 12 of the affidavit of Allison Langford filed 12 January 2004. WorkCover should be familiar with that doctor’s capacity to assess whether the criteria have been met for access to statutory benefits because it referred the plaintiff to him for those purposes but points to the greater range of relevant issues that need to be addressed by a psychiatrist giving evidence on a common law damages claim than in a claim for statutory benefits.
[2] The plaintiff is willing to undergo further examination, at least by Dr Mungomery, but not by a new doctor because, as her solicitor says on instructions from his client, she has already seen six different specialists in relation to her injury including two psychiatrists, Dr Bell and Dr Mungomery, to whom she was referred by WorkCover, three psychologists and a counsellor. Her solicitor, Mr Barr, in a letter to the defendant’s solicitors of 30 October 2003, ex. ACL21 to the affidavit of Allison Langford filed 8 December 2003 and verified in Mr Barr’s own affidavit filed 12 January 2004, said that he considered it would be more time effective and less traumatic for his client to be assessed further by Dr Mungomery. Dr Mungomery had already taken a full history from her. That process was distressing for his client and did nothing to improve her condition. There is no evidence directly from the plaintiff or any medical practitioner bearing on that assertion but it would not be surprising if she felt that way.
[3] The common law damages claim by the plaintiff alleges that she suffered stress at work from a variety of different ‘stressors’, ranging from lack of assistance to being stared at, noise, being required to take telephone calls in her lunch break and working under extreme pressure.
[4] The defendant submits that the examinations of the plaintiff conducted so far, in assessing whether she was entitled to statutory benefits, have not focused on whether she has a reasonably foreseeable and recognisable psychiatric illness that has developed in a person of normal fortitude. Mr Holyoak for the defendant also points to the plaintiff’s need to avoid the defence in s. 312(1)(a) of the Act and to show that her psychiatric injury arose out of circumstances that were reasonably readily foreseeable by the defendant. He goes on to submit that further medical evidence is needed to ‘disentangle’ the effects on the plaintiff of the stressors she complains of from other psychiatric and personal problems from which she has suffered.
[5] Issues of foreseeability of harm may depend much more on evidence from the parties than the doctors but questions of disentangling the injury at work from other conditions and stresses suffered by the plaintiff and whether she was a person of normal fortitude are not covered with great precision by the existing reports, if indeed such precision is possible. Dr Bell expressed the opinion that the plaintiff’s employment was the ‘major significant factor’ in causing her psychiatric injury: see p. 3 of his report, ex. ACL5 to Allison Langford’s affidavit filed 8 December 2003. He is her treating psychiatrist and has provided reports both to the plaintiff and WorkCover. Dr Mungomery also believed that the most significant contributors to the plaintiff’s major depressive episode were those related to the workplace but he does not attempt to quantify the contributions beyond that statement: see ex. ACL7 to the same affidavit at p. 8. That would, in my view, justify a further examination of the plaintiff to try to obtain more precise evidence about the differences in effect on her of the variety of stressors from which she suffered and to allow the defendant to prepare properly for the trial by obtaining a more recent report. Should it be by another doctor than one whom the plaintiff has already seen?
[6] The defendant asserts that it has a right to defend itself, through witnesses in whose capacity it believes, by reference to the judgment of Scarman LJ in Starr v National Coal Board [1977] 1 All ER 243, 250c-d where his Lordship said that a ‘defendant can only be compelled to forego the expert witness of his choice if justice requires it’. That was said in the context of juxtaposing that right of a defendant with a court’s power to infringe indirectly the personal liberty of a plaintiff only if the interests of justice required it for the just determination of a particular case.
[7] That balancing of rights under the common law is now affected by s. 286(2) of the Act which qualifies WorkCover’s right to ask the worker to undergo a medical examination by one of a panel of three doctors ‘at any time’ by requiring the worker to comply unless it would be ‘unreasonable or unnecessarily repetitious’. Cullinane J addressed the issue in Woolworths (Queensland) Pty Ltd v Berry-Porter [2002] QSC 360 at [20]-[27] as follows:
‘[20]The proposition that an Applicant in the position of this Applicant can treat the start of the proceedings for damages as the justification for a new round of medical investigations was one which Mackenzie J in Muller v Nebo Shire Council [2002] QSC 084 was disinclined to accept. He said at paragraphs 11 and 12:
“There is no suggestion in the material before me that any of those medical practitioners is unavailable to give evidence. One of the foci of the disagreement between the parties is whether Dr Martin had examined the plaintiff in connection with the WorkCover claim or the common law claim. It seems implicit in this exchange that the defendant claims a right to treat the start of a proceeding for damages as the justification for a new round of medical investigations.
Given the obligations in s 293(8) to attempt to settle the claim, and the obligations in s 293A(6) to have obtained and exchanged reports of all expert witnesses to be relied upon, and the obligation to make a final offer at the conference which offer governs the costs order which may be ultimately made, it is unlikely that it was intended that the Defendant’s distinction be sustainable under the present statutory regime, at least in a case where there has been no material change in the plaintiff’s condition or there is an absence of other facts in the individual case which make further examinations appropriate.”
[21]It cannot in my view be the case that the Applicant has an unqualified right to an examination of the Respondent by an orthopaedic specialist and by a psychiatrist, unaffected by what has gone before in the way of medical examinations.
[22]I do not think that the legislation should be construed as intending to confer a right to a multiplicity of specialist witnesses or the right to choose the most favourable witness from a number of specialists who have independently examined a claimant. If this is the only benefit that can be identified from an examination in my view it would be unreasonable or unnecessarily repetitious to order it.
[23]Whilst as I have said the Applicant suggested that the examinations carried out for the purposes of the workers’ compensation claim were directed towards different and more limited issues than would be the case without an examination for the purposes of s 286, a reading of the reports obtained do not suggest any such limitations and as will be seen, they are directed towards the Respondent’s position generally covering those issues which are relevant to a claim for damages. Nor is there anything which might suggest that the choice of specialists in the first instance was limited in any way by the need to have such examinations carried out at a place convenient to the Respondent.
[24]There is nothing to suggest that those specialists are not available for the purposes of trial.
[25]In my view, the manner in which the Applicant has organised internally the processing of workers’ compensation claims on the one hand and damages claims on the other cannot be determinative of the issue.
[26]The Respondent has made it clear that she is prepared to undergo further examinations by the psychiatrist and the orthopaedic specialist who previously examined her on behalf of the Applicant. This, it seems to me, is a reasonable approach designed to ensure that the Applicant will be able to have an up to date opinion from specialists in those fields for the purposes of the litigation.
[27]As I have said I do not accept that the Applicant has an unqualified right to a further examination by a psychiatrist and by an orthopaedic specialist and that earlier examinations are irrelevant to that question. In the absence of any acceptable reason why the Applicant should now seek to have examinations by other specialists and given the Respondent’s readiness to be re-examined by the specialists the Applicant chose to have the Respondent examined by previously, I am of the view that the examinations sought would not be reasonable and would do no more than provide the Applicant with an opportunity to call a multiplicity of specialist witnesses, or to confer upon it a choice to call the most favourable of the specialist witnesses who would have examined the Respondent.’
[8] Mr Fryberg, with some justification, argues that this reasoning should determine the matter in his client’s favour. At the least it is a decision that can be seen as highly persuasive in arriving at that result. Mr Holyoak submits that the issue before his Honour in Woolworths was whether the employer had an ‘entitlement’ to have further medical examinations rather than an argument that the discretion to order a further examination should be exercised in its favour: see paras [14] and [27]. That may well be so but his Honour’s language at [27] requires an acceptable reason for further examinations by other specialists than those who have already examined a plaintiff.
[9] Is the reason offered here acceptable? It is that the defendant’s solicitor is familiar with the capacity of the three doctors proposed to give medico legal reports in common law actions and not familiar with Dr Mungomery. No attempt has yet been made by the defendant to obtain such a medico legal report from Dr Mungomery for the purposes of this common law claim. No doubt experience in analysis of the overlap between medical and legal issues is a useful attribute for expert witnesses but the intellectual skills involved are not unusual nor particularly difficult to apply, I would think, for most specialist medical practitioners.
[10] The situation may be different, for example, if Dr Mungomery had been asked to address the issues which concern the defendant and had expressed an inability or unwillingness to do so, but there is no evidence that that has occurred here. One might legitimately infer, therefore, that WorkCover is hoping to obtain a view more favourable to its defence from another psychiatrist than those it has already chosen to examine the plaintiff, a reason that, in this statutory context as described by Mackenzie J in Muller v Nebo Shire Council [2002] QSC 084 at [11]-[12], would not be acceptable.
[11] Even if that inference were not available, where Dr Mungomery has already conducted a detailed examination of the plaintiff for WorkCover covering many of the relevant medical issues, she is willing to undergo further examination by him and has also undergone similar examinations by other professionals, including another psychiatrist to whom she was also referred by WorkCover, it is my view that, to require her to go through the whole exercise again, with yet another psychiatrist, would be unreasonable or unnecessarily repetitious.
[12] The application is dismissed. I shall hear the parties as to costs.