Booth v Kendall[2009] QSC 237

SUPREME COURT OF QUEENSLAND

1. The plaintiff in this matter is a 39 year old woman who was severely injured in a motor vehicle accident in September 1999. Although the Claim and Statement of Claim were filed about a month before the expiration of the limitation period, they were not served until about 12 months later in August 2003. The Defence was not filed until June 2008. Directions have been issued under the Case Flow Management regime setting out the next steps to be taken.

2. The severity and extent of the injuries suffered by the plaintiff has meant that she has been subjected to numerous medical examinations and treatments and numerous examinations for the purposes of creating medico-legal reports.

3. The plaintiff contends that she suffers from a debilitating condition of hyperacusis secondary to the physical injuries sustained in the accident in 1999. It is claimed that the symptoms of this condition prevent her from engaging in gainful employment and that they necessitate the plaintiff being provided with many hours each week of attendant care.

4. In June 2009, the plaintiff, at the request of the second defendant’s solicitors, was examined by Professor Linda Luxon. Professor Luxon is the Professor of Audiovestibular Medicine at the University of London. For reasons which I will set out later, the second defendant has requested that the plaintiff return to Professor Luxon for the purposes of completing the tests which were not completed during her examination in June 2009. The plaintiff, through her solicitors, has declined to do so and the second defendant now seeks an order that the plaintiff submits to a further medical examination and that, if she does not, that the proceedings be stayed.

5. In a letter from Professor Luxon to the second defendant’s solicitors, the following appears:

“I regret that it was extremely difficult to carry out a satisfactory assessment of her very troublesome symptoms as she was clearly extremely distressed by the consultation, examination and investigations and regrettably it was simply not possible to complete investigations. I would be very happy to see her again to attempt to try and complete the investigations to give you a more definitive opinion. …”

6. Further, in the body of her report, Professor Luxon says that it is “clearly impossible to come to a definitive opinion without all the appropriate investigations” and that “Efferent auditory function modulates the perception of sound and it would be very important in someone with a head injury, complaining of hyperacusis to carry out an assessment of this function.” Professor Luxon then goes on to express a tentative opinion prefaced with the caveat that she did not have all the information that she would wish in order to give a definitive opinion.

7. The plaintiff has not provided an affidavit with respect to this matter. She lives in England, as do her parents. Both parents have provided affidavits in which they set out their observations of the plaintiff’s reactions during and after the examination of her by Professor Luxon. Her mother deposed to having accompanied the plaintiff to all medico-legal examinations and all other medical appointments that she has had as a result of her injuries. She says that the plaintiff is always anxious before any medical examination, particularly when they take place in a busy place such as London. She says that she observed Professor Luxon performing some tests on the plaintiff, including one where the plaintiff was required to lie on her back on the examination table and put her neck over the edge of the table so that her head was hanging. Other tests were performed which caused the plaintiff distress and she was unable to provide information to Professor Luxon at various times during the examination. The effect of her evidence was that the plaintiff was physically ill and appeared to be distressed and very dizzy following the examination. This continued for some days after the examination and the plaintiff’s general practitioner prescribed tablets to assist her with her nausea and balance problems. Both the plaintiff’s mother and father say that the plaintiff was extremely distressed and that she could not cope with further tests of that nature.

8. As I have noted above, there is no affidavit from the plaintiff. She has suffered brain damage as a result of the accident. Her parents were both cross-examined by telephone and the effect of the evidence they gave was that the plaintiff can write but in a way that frequently requires her to explain what she has written. The plaintiff can also read but is severely restricted in this ability and has to cover the page of whatever she is reading to an extent that only one line is visible at a time. Their evidence also was that she has difficulties with comprehension, both of the written word and of matters conveyed to her orally. I accept that the plaintiff’s condition explains the absence of an affidavit from her.

9. Mrs Booth also gave evidence that she has taken the plaintiff to dozens of medical examinations and many examinations for medico-legal reports and that the plaintiff has, as a result of that, undergone extensive testing over many years. Mrs Booth did say, though, that she has not previously been subjected to a physical examination of the kind performed by Professor Luxon.

10. The evidence was that the effects of the examination continued for some days or perhaps a little more but there was no evidence to the effect that they have continued to trouble her.

11. There have been a number of cases dealing with the question of the appropriate principles to be applied where an application of this kind is made. Some of them have been with respect to motor vehicle accidents, others with respect to workplace accidents. The unusual aspect of this application is that it is reasonably clear that the plaintiff is likely to suffer discomfort if the examination which was partially completed is concluded with another examination.

12. Prescott v Bulldog Tools Ltd^[1] is a case which bears some similarity to this is one. The relevant circumstances of that case are accurately set out in the head note:

“The examination would take between three and five days to carry out and involve a number of tests, including a caloric test (which involved running water 4º above or below body temperature into the outer ear canal, a polytomography (which was an X-ray of the inner ear) and an electrocochleography (which involved placing a very fine needle through the ear-drum),. The tests were designed to see if the deafness in the plaintiff’s left ear had some connection with the deafness in his right ear. The defendants did not contend that an opinion could not be given on the matter without the tests being carried out, but they asserted that the tests would enable an opinion on the matter could be given with greater confidence. The plaintiff objected to the tests, contending, inter alia, (i) that it was unreasonable for the defendants to wish to have him examined a fifth time, and (ii) that it was reasonable for him to refuse to undergo the tests because the caloric test caused discomfort, giddiness and nausea, was frightening and caused some patients to vomit, the polytomography involved a radiation hazard to the brain and eyes which should be avoided if possible, and the electrocochleography was unpleasant and frightening and involved a danger that the ear membrane could be punctured, which could result in damage to the ear by infection. The defendants applied for the proceedings to be stayed unless and until the plaintiff submitted to the examination.”

13. After considering the Court of Appeal’s decision in Starr v National Coal Board,^[2] Webster J  held that these three general principles were applicable:

1. that the decision whether or not to grant a stay involves the exercise of the court’s discretion,

2. that in exercising that discretion, it is necessary for the court to balance the right of one party, the plaintiff, to personal liberty, against the right of the other party, the defendant, to defend itself in litigation as it thinks fit, and

3. that in determining whether either party is being reasonable, the question is not whether in the case of the plaintiff the objection is objectively reasonable, or in the case of the defendant whether the request is objectively reasonable, but whether the objection or the request, as the case may be, is reasonable in the light of the information or the advice which the respective parties receive from their respective advisors.

14. Mr Justice Webster then went on to consider the principles which should apply when the plaintiff relies on the contention that there is risk or discomfort attached to the examination in question. After referring to the decision of Hodgson J in Aspinall v Sterling Mansell Ltd,^[3] he considered the various types of examination which could be conducted and listed five categories:

1. an examination which does not involve any serious technical assault, but involves only an invasion of privacy,

2. an examination involving some technical assault, such as a palpation,

3. an examination involving a substantial assault but without involving discomfort and risk,

4. the same type of examination, that is to say one which involves a substantial assault, but which involves discomfort and risk, and

5. an examination involving risk of injury or risk to health.

15. His Lordship went on to say that the weight of the reasonableness of the plaintiff’s objections must bear a very close correlation to the order in which he listed the distinctions set out above. Further, he said:

“… the court should examine objectively the weight of the reasonableness of the defendant’s request as seen by the defendant and the weight of the reasonableness of the plaintiff’s objections as seen by him, and balance the one against the other in order to ensure a just determination of the cause in the way most just to the parties, taking into account their reasonable requirements and objections at the time of the exercising of the discretion.”

16. That approach was approved by White and Matheson JJ in Stace v Commonwealth of Australia.^[4]

17. The objection made on behalf of the plaintiff is that she will be subjected to further discomfort and distress should she be required to undertake a further or continued examination by Professor Luxon. That is a reasonable objection to take and I accept that it is made by her, notwithstanding the absence of any affidavit from her. Her parents’ opinions of the effect that the initial examination had on her were not challenged.

18. I need, then, to balance what I am satisfied is the reasonable apprehension by the plaintiff that she will suffer from discomfort, pain and distress, both during the examination and for some days after it against the reasonable concern of the second defendant that it will not be able to properly defend the action, at least insofar as this part of the plaintiff’s claim is concerned.

19. The factors which arise in this case and which need to be considered in the process of achieving the balance referred to above are:

1. The discomfort and distress experienced by the plaintiff on the last examination and which will, most likely, be experienced during and after a further, similar examination.

2. There is no evidence that the plaintiff will be exposed to any risk of permanent injury or damage.

3. The second defendant cannot, according to its solicitor, be properly advised without a final report from Professor Luxon.

4. The claim made against the second defendant is very large – some $8,000,000.00.

5. A mediation is to be conducted in the near future and the second defendant, in the absence of a final report, says that it cannot participate to the fullest extent.

6. If the matter is not settled then both parties will be required to expend substantially larger amounts in costs than normal as the trial will probably have to be held in England due to the plaintiff’s condition and the presence of almost all witnesses in that country.

20. The position taken by each party is reasonable in the circumstances of this case but the weight is on the side of the second defendant. Its right to be able to properly defend itself in this unusual state of affairs outweighs the rights of the plaintiff.

21. I will make an order that the plaintiff be further examined by Professor Luxon. I have no reason to doubt that the Professor will exercise all necessary skill to reduce, as far as possible, the exposure of the plaintiff to further discomfort.

Order

1. That the plaintiff undergo an examination for medico-legal purposes by Professor Linda Luxon together with any necessary ancillary tests.

2. That, in the event the plaintiff fails to undergo such medico-legal examination, that this action be stayed.

3. Liberty to apply on three days written notice.