McNamara v Furini[2008] QSC 24

SUPREME COURT OF QUEENSLAND

[1] McMeekin J: There are two applications before the court.  One is an application by Sheryl‑Anne Elizabeth McNamara that the parties be ordered to attend the compulsory conference required by s 51A(1) of the Motor Accident Insurance Act 1994 (“the Act”).  The other is an application by Allianz Australia Insurance Limited (“Allianz”) that Mrs McNamara be examined on their behalf by a psychiatrist and occupational therapist.

[2] Mrs McNamara seeks damages for personal injuries said by her to have been sustained as a result of the negligent driving of one Claude Guiseppe Furini on 13 February 2006.  The motor vehicle driven by Mr Furini collided with a telephone booth in which Mrs McNamara was located.  Liability, at least in respect of the pre‑proceedings stage, has been admitted by Allianz, the insurer of Mr Furini under the Act. 

The History of Requests

[3] A reasonably full chronology of the matter appears in the affidavit of Mr Clark, a solicitor acting on behalf of Mrs McNamara.

[4] Mr Clark asserts that Mrs McNamara has obtained all medico/legal reports in respect of her injuries on which she intends to rely at the compulsory conference.  Mrs McNamara was examined by Dr Gary Larder (psychiatrist) on 9 February 2007, Dr Greg Gillett (orthopaedic surgeon) on 3 August 2007, Dr Don Todman (neurologist) on 13 November and 22 November 2007 and Ms Lesley Stephenson (occupational therapist) on 13 November 2007. 

[5] Mrs McNamara has been seen by the following practitioners on behalf of Allianz:  Dr Johnn Olsen (physician) on 29 March 2007;  Dr David Alcorn (psychiatrist) on 26 April 2007;  Dr Alison Reid (neurologist) on 7 January 2008;  Dr Lloyd Toft (orthopaedic surgeon) on 8 January 2008; and Mr Michael Donovan (physiotherapist) on 9 January 2008.

[6] On 21 September 2007 Mr Clark wrote to Allianz enclosing the report of Dr Gillett and requesting that Allianz arrange for any “check medical appointments” if Allianz so required as it was Mrs McNamara’s intention to have the matter proceed to compulsory conference in December 2007. 

[7] On 2 October 2007, Mr Clark again wrote to Allianz informing them of Mrs McNamara’s imminent appointments with Ms Stephenson and Dr Todman and again invited Allianz to appoint panels of specialists if medical appointments were required.  He again informed them of the applicant’s intention to proceed to compulsory conference in December 2007. 

[8] Mr Clark again wrote to Allianz on 6 November 2007 referring to his earlier correspondence and noting that he had received no reply.  He noted:

“We therefore accept your decision not to require any further medico/legal examination of our client.

We now formally call for a compulsory conference to be held in accordance with s 51A of the Motor Accident Insurance Act 1994.  We propose the conference be held at our office at 51 Sydney Street, Mackay at 10.00 am on 17, 18 or 19 December 2007”.

[9] Mr Clark again wrote on 16 November 2007 and 26 November 2007 to Allianz.  He had still received no reply to his correspondence.  He foreshadowed the present application to have the court order that a compulsory conference be held. 

[10] On 26 November 2007 a representative of Allianz finally responded to Mr Clark’s correspondence. Various panels of specialists were put forward.  The panel of psychiatrists then put forward by the insurer included Dr David Alcorn, who had previously seen Mrs McNamara. On 30 November 2007 Allianz put forward a further panel, described only as “specialists”, containing three names, each apparently being occupational therapists.

[11] Mrs McNamara agreed to submit to examinations by an orthopaedic surgeon, a neurologist and a physiotherapist, Michael Donovan.  As I follow the recital her agreement in respect of Mr Donovan preceded the latter panel being proffered.

[12] Mrs McNamara declined to submit to an examination by a psychiatrist or occupational therapist asserting that such examinations are “unreasonable or unnecessarily repetitious”.   

The Principles

[13] An insurer’s right to have a claimant examined is governed by s 46A of the Act.  It provides:

“46AExamination by claimant by medical expert in absence of agreement between the parties

(1)This section applies if the insurer wants to obtain an expert report on the claimant’s medical condition or prospects of rehabilitation but fails to obtain the claimant’s agreement.

(2)The claimant must comply with the request by the insurer to undergo, at the insurer’s expense -

(a)a medical examination by a doctor to be selected by the claimant from a panel of at least three doctors nominated in the request;  or

(b)an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least three experts with appropriate qualifications and experience nominated by the insurer in the request.

(3)However a claimant is not obliged to undergo an examination under this section if it is unreasonable or unnecessarily repetitious.

…”

[14] It can be seen that Mrs McNamara relies on the exemption from the obligation to undergo examination contained in ss 46A(3).

[15] The comments of Cullinane J in Jackson v State of Queensland [2005] QSC 161 (which case coincidentally also concerned a request by an insurer that the claimant be examined by both Mr Donovan and an occupational therapist) are apposite where his Honour said in respect of the identical provisions contained in the Personal Injuries Proceedings Act 2002:

“[28]As was pointed out by Lord Scarman in Starr v National Coal [1977] 1 All ER 243 at page 249, two important rights come into conflict in a case of this kind and have to be adjusted.  For the purposes of the Personal Injuries Proceedings Act 2002 (Qld), s 25(2) and (3) [the analogue of which are ss 46A (2) and (3) in the Motor Accident Insurance Act] provide the principles upon which that adjustment is made.

[29]The defendant has the statutory right to obtain the necessary and relevant information to defend claims made against it and to enable it to enter into negotiations for the purposes of compromising such claims.  An important public interest is served by the obtaining of such medical reports, namely the resolution of claims or the defence upon a fully informed basis.

[30]On the other hand the right of the plaintiff not to be required to submit to a medical or similar examination against her must weigh significantly”.

Occupational Therapy Report

[16] The basis for Mrs McNamara’s claim that an examination by an occupational therapist would be “unreasonable or unnecessarily repetitious” is that she has already submitted herself to one such examination at the request of Allianz, that by Mr Michael Donovan and that it is not shown that any further examination is necessary. 

[17] Mr Donovan describes himself as a physiotherapist and a “Blankenship Functional Capacity Assessor”.  He has provided a report to Allianz dated 29 January 2008.

[18] In response to Mrs McNamara’s claim Mr Crow of Counsel, who appeared on behalf of the insurer, made the following submissions:

1. that her claim is a substantial one approaching $1,000,000 according her statement of loss and damage;

2. that Mr Donovan had expressed no opinion concerning the most significant component of the claim, namely domestic assistance (which claim, according to the statement of loss and damage, is in excess of $380,000);

3. that there is a fundamental difference between an occupational therapist and a physiotherapist, the former being accustomed to express opinions in relation to the need for domestic assistance and skilled in the provision of care to severely disabled persons;

4. that in any case there had been an agreement in place whereby Mrs McNamara had offered to attend an occupational therapist contained in a letter from her solicitors dated 28 November 2007 to Allianz which said as much.

[19] I reject Mr Crow’s submissions for a number of reasons:

1. Mr Donovan did in fact express an opinion in relation to a need for domestic assistance.  Under the heading “Recommendations” on p 12 of his report, he recorded:

“Mrs McNamara does demonstrate the need for some domestic assistance as noted in the body of the report.”

The reference could only be to the details provided under the heading “Activities of daily living” that appears at pages four and five of the report;

2. Far from falling outside the area of expertise of a physiotherapist, Mr Donovan’s report suggests that such an assessment is squarely within that expertise.  Under the heading “Activities of daily living” Mr Donovan recorded that a physiotherapist was guiding Mrs McNamara in her attempts to carry out those ordinary every day activities;

3. There was no evidence before me to support the submissions made from the Bar table to the effect that there is any distinction in the expertise of an occupational therapist and a physiotherapist when it comes to the assessment of an injured person’s requirements for domestic assistance;

4. No evidence was put forward by Allianz to the effect that Mr Donovan, contrary to his own report, considered himself unable to carry out an assessment of, and express an opinion in relation to, Mrs McNamara’s need for reasonable assistance in her daily activities;

5. There is a very substantial similarity between the methodology and testing applied by Ms Lesley Stephenson (an occupational therapist who supplied a report at the claimant’s request) and that adopted by Mr Donovan.  Each carried out a functional assessment, each detailed the symptoms and disability reported by Mrs McNamara, each carried out tests to determine every day functioning such as ability to lift, sit, stand, walk, bend, reach and reach overhead; each detailed extensively Mrs McNamara’s report of her need for assistance;

6. It may be a small point but in his curriculum vitae Mr Donovan records that his qualifications include “Workhab functional capacity evaluation and Blankenship Functional Capacity Evaluations”.  Ms Stephenson reports that in her assessment she has used the “Blankenship activity questionnaire” which seems to indicate a familiarity with the functional capacity evaluation that Mr Donovan refers to.

7. At para 20 of Mr Clark’s affidavit he records a telephone call that he had with one Ms McQueen, an employee of the insurer, where he states:

“Ms McQueen was unable to tell me of the difference between a report to be obtained from an occupational therapist when contrasted with the report from a physiotherapist who would provide the Blankenship Functional Capacity Evaluation assessment”.

8. The supposed agreement to be examined by an occupational therapist was discharged by Mrs McNamara’s acceptance of Mr Donovan – at no stage did she concede any right in the insurer to have both examinations performed.

[20] Here the insurer has obtained a report from a person apparently well qualified to express an opinion on the issue of a need for domestic assistance, that person has expressed an opinion on the issue, and the insurer leads no evidence indicating that the expert that they have chosen to retain is not capable of providing any further information that the insurer might require (the nature of which was never apparent to me). In these circumstances it seems to me that the proposed examination is both unreasonable and unnecessarily repetitious. 

Psychiatric Assessment

[21] Mrs McNamara bases her refusal to submit to a psychiatric examination on the ground that the insurer has already had her examined by a psychiatrist Dr David Alcorn, that he has supplied a very detailed report under cover of his letter of 16 July 2007, and no further examination is shown to be necessary.

[22] The insurer’s principal point is that the examination conducted by Dr Alcorn was not “an independent examination for the purpose of s 46A of the Motor Accident Insurance Act 1994” (see para 5 of the affidavit of Michael Robert Garbett sworn 11 February 2008). It emerges from correspondence between the parties that the insurer contends that the purpose of the report was for “a rehabilitation review”.

[23] Mr Garbett, solicitor for Allianz, in one of his affidavits, puts as the basis for the further examination by a psychiatrist a need for that psychiatrist to “comment on any progress that the plaintiff may have made since the provision of Dr Alcorn’s report as a result of treatment that she has undergone” (see para 7 of the affidavit sworn 11 February 2008 and filed by leave).

[24] Mrs McNamara has undergone treatment since Dr Alcorn saw her. Subsequent to Dr Alcorn’s report being obtained Mrs McNamara was seen by a psychologist, Mr Richard Jones.  Three sessions have been funded by Allianz and the insurer was willing to fund a further six over a six month period. Mrs McNamara was not prepared to return to see Mr Jones “as she considered him too confronting”. She has indicated that she would be returning to the Mackay Base Hospital for further psychological treatment (see para 5 of Mr Garbett’s affidavit filed by leave and sworn 11 February 2008). 

[25] Mr Jones has provided a report to the insurer dated 26 September 2007.  In that report Mr Jones diagnoses a chronic post‑traumatic stress disorder and, in tests that Mr Jones considered to be valid, Mrs McNamara endorsed near maximum scores on depression and anxiety sub‑scales.  Mr Jones recommended that there be a further 12 sessions of treatment over a period of 12 months and concluded that “a full recovery seems very unlikely, best progress will be made once this matter has been dealt with legally and the foot injury reach maximum medical improvement”.

[26] Although the insurer initially requested that Mrs McNamara choose a psychiatrist from a panel of three supplied, one of which was Dr Alcorn, the insurer has since changed its view, says that Dr Alcorn’s name was included on the list in error, and now wishes Mrs McNamara to choose from a panel of three not including Dr Alcorn. 

[27] The only thing that Mr Crow could point to that the insurer requires and that is missing from Dr Alcorn’s report is a PIRS assessment.  That was said to be significant in two ways – first, such an assessment is required in order to properly assess damages under the provisions of the Civil Liability Act 2003; and secondly Mr Crow submitted that the absence of such an assessment from a report from such an experienced expert as Dr Alcorn indicates that the report was not one done for medico/legal purposes – the rehabilitation review point initially made by the insurer.

[28] As to that second point, it seems, with respect, that the relevant issue is not what label one puts on the report but rather the contents of the report and whether it fully and fairly informs the insurer of Mrs McNamara’s psychiatric state to enable a proper assessment to be made.  There was a great deal of force in the submission advanced by Mr Harrison of Counsel, who appeared on behalf of Mrs McNamara, that on its face Dr Alcorn’s report appears to be a normal medico/legal report, containing as it does an extensive summary including history, diagnosis and likely cause with reference to further medical treatment and vocational rehabilitation together with responses to 21 questions asked of Dr Alcorn by the insurer – all of which are consistent with the normal questions one expects an insurer to direct to a psychiatrist providing a medico/legal report.

[29] Further the suggested explanation for the absence of an assessment is not borne out by an examination of Dr Alcorn’s report.  In the summary section under the heading “Likely cause of disorder” Dr Alcorn states:

“The assessment of permanent impairment should await the effects of treatment of the type noted below …”

Dr Alcorn recommended that there would need to be “up to 15-20 sessions with a consultant psychiatrist would be required … over the 18-24 months following commencement of that treatment”.  He also spoke of a need for “pharmacotherapy and ongoing psychotherapy” and in respect of the former said that it would be “reasonable to allow for 2-3 years of antidepressants at a cost of approximately $30 per month”.  Apparently Mrs McNamara has declined to take antidepressants for fear that they would exacerbate a pre‑existing epileptic condition.

[30] In determining whether the proposed examination by a psychiatrist other than Dr Alcorn is unreasonable or unnecessarily repetitious, it seems to me the following factors are relevant:

1. No evidence is led from either Mr Jones or Dr Alcorn to the effect that it is not possible to make a reasonable assessment of the claimant’s condition, or a PIRS assessment, unless there is a further examination.

2. There is good reason to think that no such examination is really necessary -Dr Alcorn would have the benefit of a trained clinical psychologist’s report which, as I have said, contains a diagnosis, a recording of valid psychological testing showing maximal scores on depression and anxiety, a report by Mrs McNamara that her perception is that her symptoms “have gone backwards”, a recommendation for further treatment, a prognosis that full recovery seems unlikely and an apparent urging that best progress will be made once this matter is determined legally.  There is nothing in Dr Alcorn’s report which would indicate that he is not capable of carrying out an assessment of permanent impairment on the assumption that treatment has not so far proved successful.

3. As I have noted above, Dr Alcorn was reluctant to make an assessment of permanent impairment until the effects of treatment became known.  Given that the treatment he suggests was to take place over a near two year period, it would seem that in the ideal world no assessment should be made until two years hence (from the date of his report).  No‑one suggests however that the whole legal process be delayed for that period of time and Mr Jones’s report suggests that such a delay would be counter‑productive – finalisation of the legal issues is, as in most cases, likely to be helpful in the treatment process.

4. In any case involving a significant psychiatric disorder, as seems to be the case here, there is always a concern that the claimant’s condition can be aggravated by examinations of this type, no matter how experienced and careful the practitioner. 

5. The delay in responding to the claimant’s requests that the insurer nominate any further examinations that it required is of concern even without the added impetus that Mr Jones’ report on prognosis should have given to the process.  As I have summarised above, the first such request was made, according to the evidence before me, on 21 September 2007 and repeated on 2 October, 6 November, 16 November and 26 November 2007 before a response was finally obtained.  A claimant has a great deal invested in the prompt resolution of her claim.  There is no doubt that a prompt resolution of the claim, if possible, is one of the purposes of the whole pre‑litigation procedure.  Where an insurer is dilatory in its response then that goes towards what is reasonable or unreasonable as between the parties.  That of course is only one factor and must be weighed up against other factors.

6.  I am puzzled at the insurer’s view that Dr Alcorn would not be the appropriate psychiatrist to approach if indeed a need for a further assessment could be shown.  I note that Mr Jones records:

“Without having had a chance to meet the client immediately after the accident I can only cautiously suggest that she has made some progress yet remains deeply immersed in the accident, and its sequelae”. 

That suggests to my mind (and it is commonsense) that any assessment of progress is best made by those who have seen Mrs McNamara previously, and not those on the panel now proposed. 

[31] In the state of the evidence, for the reasons I have outlined, it seems to me that the proposed examination by a psychiatrist is “unreasonable or unnecessarily repetitious” and the claimant was justified in declining to be so examined.

Appropriate orders

[32] The insurer did not argue that there was any other reason to delay the holding of the compulsory conference required by s 51A of the Motor Accident Insurance Act. 

[33] Subject to hearing from Counsel as to the form of the orders, I propose to order as follows:

1. that the compulsory conference of the parties required by s 51A of the Motor Accident Insurance Act be held on or before 20 March 2008 on a date and time and at a place convenient to the parties with liberty to apply if no agreement can  be reached;

2. that the cross‑application by the second respondent be dismissed;

3. that the second respondent pay the costs of the applicant of the application and the cross‑application on a standard basis.