Behrens v Nguyen[2017] QSC 14

SUPREME COURT OF QUEENSLAND

1. One of the objects of the Motor Accident Insurance Act 1994 (Qld) is to “encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”.^[1] This object is sought to be achieved in various ways but among them are the provisions of Division 4 of Part 4 of the Act which provide for cooperation between claimants and insurers. Thus, by s 45, a claimant must cooperate with the insurer and, in particular, provide the insurer with documents and information regarding such things as the circumstances of the accident as well as the claimant’s medical condition or prospects of rehabilitation.^[2] Similarly, by s 47, the insurer must cooperate with the claimant by providing documents and information in the insurer’s possession about many of the same things.^[3] Furthermore, where an insurer wants to obtain an expert report on the claimant’s medical condition or prospects of rehabilitation, the Act contemplates that the claimant’s agreement to that course will be sought. Where, however, agreement is not forthcoming, an obligation is imposed on the claimant by s 46A to comply with the insurer’s request in certain circumstances.
2. Section 46A of the Act is in these terms:

“46AExamination of 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 a request by the insurer to undergo, at the insurer’s expense—

1. a medical examination by a doctor to be selected by the claimant from a panel of at least 3 doctors nominated in the request; or

2. an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least 3 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.
4. A panel of doctors or other experts nominated under subsection (2) may (but need not) include doctors or other experts from the official panel of medical experts.
5. If 3 doctors or experts with appropriate qualifications and experience are not available for inclusion on a panel under subsection (2), the number on the panel may be reduced to 2.”

3. It will be seen that the obligation imposed on a claimant by s 46A of the Act to undergo, relevantly, a medical examination is not open-ended. Rather, it is expressly provided that a claimant is not obliged to undergo an examination if it is “unreasonable or unnecessarily repetitious”. That is the issue on this application – in circumstances where the plaintiff has already been examined on behalf of the defendant insurer by an orthopaedic surgeon, the insurer seeks an order that he be examined by a different orthopaedic surgeon but the plaintiff contends that this would be unreasonable or unnecessarily repetitious.
4. The plaintiff, Oliver Behrens, is a 25 year old German national. On 19 May 2012 he was seriously injured in a motor vehicle accident that occurred in Bowen. Most prominent amongst his injuries were a burst fracture of the cervical spine at the C5 vertebral level with resulting incomplete tetraplegia below the C5 vertebral level, bilateral disruption of the AC joints and post-traumatic stress disorder. The plaintiff was admitted to the Princess Alexandra Hospital where he underwent surgery to stabilise his spine following which he underwent extensive rehabilitation before being repatriated to Germany on 14 June 2012. He currently resides in Tostedt (near Hamburg).
5. The plaintiff commenced this proceeding for damages for personal injuries and consequential loss on 14 August 2015. Liability has since been admitted and, accordingly, the only issue in dispute is the quantum of his damages. After receipt of an Intervention Notice on 24 March 2016, case flow orders were subsequently made by Daubney J,^[4] including an order that the parties participate in a conference pursuant to r 553 of the Uniform Civil Procedure Rules 1999 (Qld) to be conducted by way of mediation.
6. Given the severity of the plaintiff’s injuries, it is unsurprising that he has already been the subject of a number of reports prepared for medico-legal purposes. In all, there have been 21 such reports, as follows:

1. For the plaintiff:

1. Report of Dr Satish, Specialist in Surgery, chirotherapy and sports medicine, dated 4 December 2012;
2. Joint report of Dr R Röthig and Dr K Rogosch, urologists, dated 19 September 2013;
3. Two reports of  Ms Carmen  Burgschat, nursing care expert, dated  29 October 2013 and 12 October 2015;
4. Eight reports of Dr Rüdiger Brocks, orthopaedist and specialist in physical and rehabilitative medicine, dated 27 August 2012, 10 January 2013, 15 September 2013, 5 April 2014, 17 September 2014, 30 June 2015, 15 October 2015 and 8 January 2016; and
5. Report of Ms Imke Walz, care expert, dated 25 January 2016;

2. For the defendant insurer:

1. Joint   report   of   Dr   Evangelos   Karamatskos   and   Dr   Christina   Andreou, psychiatrists, dated 6 March 2015;
2. Joint report of Dr Sami-Ramzi Leyh-Bannurah and Dr Oliver Engel, urologists, dated 22 April 2015;
3. Joint report of Dr A C Krützelmann,  Dr G Thayssen and Professor C Gerloff, neurologists, dated 12 May 2015;
4. Two reports of  Dr  Lothar  Wiesner,  orthopaedic and trauma surgeon,  dated  28 May 2015 and 23 June 2016;
5. Two reports of Ms Gazala Makda, occupational therapist, dated 6 November 2015 and 9 May 2016; and
6. Report of Dr Vernon Hill, rehabilitation physician, dated 12 November 2015.^[5]

7. The issue about which this application is essentially concerned is the future care of the plaintiff and, in particular, his future hospital and medical needs. In that regard, the orthopaedic surgeon commissioned on behalf the plaintiff, Dr Brocks, has reported that the plaintiff will require joint replacement procedures for both shoulders, both elbows, both hips and both knee joints as well as at least two surgical revisions for each joint over his lifetime. In addition, he has also reported that the plaintiff will require joint preserving procedures on his hands and feet, endoprosthetic or arthrodesis ankle surgery and at least two multi-segmental operations on his spinal column. Dr Brocks has estimated that the cost of the plaintiff’s likely future treatment needs (including surgeries) over the balance of his life expectancy will be between €7,112,889 and €10,688,128.^[6]
8. This issue is addressed in the reports obtained on behalf of the insurer but, it contends, not in a way that allows it to reliably estimate the future care component of the plaintiff’s damages. Although the neurologists – Dr Krützelmann, Dr Thayssen and Professor Gerloff – have expressed the opinion that no further spinal surgery is indicated^[7] and the rehabilitation physician – Dr Hill – has reported that he anticipates the plaintiff will require a haemorrhoidectomy “at least once or possibly twice during the course of the rest of his life”^[8] but presumably no other surgery, the insurer claims that the orthopaedic surgeon retained to examine the plaintiff on its behalf – Dr Wiesner – has insufficiently answered the questions put to him about the opinions expressed by Dr Brocks. For the insurer, it was submitted that Dr Wiesner has proven to be so uncooperative that there is, in effect, little point persisting with attempts to obtain more precise information from him regarding the plaintiff’s future medical and hospital needs.
9. In order to consider these claims it is necessary to examine what has occurred.
10. By letter dated 12 December 2014, Dr Wiesner was requested by the solicitors for the insurer to arrange for the plaintiff to be assessed by a number of medical specialists, including an orthopaedic surgeon. To the extent that it was within their area of expertise, Dr Wiesner was asked to have each specialist comment on, relevantly, the plaintiff’s “future hospitalisation/medical/pharmaceutical needs” with reference to, inter alia, the estimated costs of those needs.^[9] Enclosed with the letter was a copy of various reports and records concerning the plaintiff’s injuries including five reports prepared by Dr Brocks. Among them was the report dated 5 April 2014 in which Dr Brocks expressed the opinions summarised in [7] above.^[10]
11. What appears to have then occurred is that arrangements were made for other medical specialists to examine the plaintiff but Dr Wiesner undertook to fulfil that part of the insurer’s request which sought an orthopaedic opinion regarding the plaintiff. To that end, he examined the plaintiff on 23 January 2015 but he was not to produce a report for another four months. This was despite “frequent follow-up enquiries” in the form of telephone calls and emails from an agent in Germany who had been engaged by the insurer’s solicitors.^[11] She was said to have “experienced significant difficulties getting into contact with Dr Wiesner”.^[12]
12. Dr Wiesner eventually provided a report on 28 May 2015. In it, he expressed the opinion that the plaintiff will require ongoing urological, orthopaedic and neurological check-ups as well as physiotherapy and ergotherapy, but he did not provide any estimate of the cost of these expenses save for noting that the main items of expense in the future will be urological treatment for recurring infections and resulting kidney damage along with treatment for contractures and pressure sores. Dr Wiesner supplied no opinion about the plaintiff’s likely future surgical needs or any estimate of the likely costs. He made no comment about the opinions expressed by Dr Brocks in these respects.
13. On 9 March 2016, the solicitors for the insurer wrote again to Dr Wiesner.^[13] They enclosed a copy of two reports from Dr Brocks that had been produced since the date of Dr Wiesner’s report along with another copy of Dr Brocks’ report dated 5 April 2014. The solicitors stated:

“We would be grateful if you could consider these additional reports, particularly the future treatment and surgeries as set out by Dr Rudger Brocks in his report dated 5 April 2014.

In Dr Brocks’ view this plaintiff will require a total of six hip replacements, six shoulder joint replacements, six knee replacements and six elbow replacements in his lifetime.

Whilst your report [dated 28 May 2015] outlines the need for check-ups and physiotherapy, you do not contemplate the plaintiff requiring the multiple surgeries as outlined by Dr Brocks. We would be grateful if you could provide a short supplementary report.”

14. It should also be mentioned that, on the previous day (8 March 2016), the solicitors for the insurer wrote to the plaintiff’s solicitors seeking the plaintiff’s agreement to a further medical assessment by a neuro-urologist and consultant spinal surgeon, Mr Fadel Derry. The plaintiff’s solicitors were advised that Mr Derry was prepared to travel to Germany to attend on the plaintiff for this purpose and, further, that it was considered that the assessment was “necessary given the conflicting medical evidence to date in relation to the plaintiff’s future treatment and future care needs”.^[14] In further support of this request, a copy of Mr Derry’s curriculum vitae was forwarded to the solicitors for the plaintiff under cover of a letter dated 18 March 2016. However, on 4 April 2016, those solicitors advised that the plaintiff was “not willing to undergo an examination” by Mr Derry.^[15] The previous medical examinations carried out on behalf of the insurer were then detailed before this was said:

“You have advised that Dr Derry is a neuro-urologist and consultant spinal surgeon.

Your client has already had our client examined by a neurologist, urologist and orthopaedic spinal surgeon.

Our client considers your request for a further examination to be unreasonable and unnecessarily repetitious.

Furthermore, you have not provided an explanation as to why any further information or clarification your client requires cannot be obtained from the existing specialists”.

15. On the same day as that response was received (4 April 2016), Dr Wiesner was followed up by the solicitors for the insurer by email. A week later they wrote to the plaintiff’s solicitors pointing out that they had experienced difficulties communicating with the specialists who had examined the plaintiff on the insurer’s behalf because of “the language barrier and the different time zone” and that, in any event, the reports obtained by the insurer were “incomplete”.^[16]
16. On 16 May 2016, the insurer’s solicitors again followed up Dr Wiesner by email. On this occasion, the email was sent in the German language. When no response was received, another email drafted in German was forwarded to Dr Wiesner by the insurer’s solicitors on 20 May 2016. On the same day, the insurer’s solicitors wrote to the solicitors for the plaintiff to request that the plaintiff undergo an examination by a spinal surgeon from a panel of three – Mr Derry, Dr Edward McKintosh and Dr Andrew Quaile.^[17] The insurer’s solicitors advised that each member of this panel was a spinal surgeon located in the United Kingdom but was willing to travel to the plaintiff’s home in Germany in order to examine him. Further, they advised that the insurer had agreed to fund the reasonable expenses for the plaintiff and his carers to attend on the specialist in the United Kingdom if that was the plaintiff’s preferred course. Lastly, they advised that numerous attempts had been made to obtain a supplementary report from Dr Wiesner without a response.^[18]
17. Further correspondence passed between the respective solicitors regarding this issue. In the meantime, on 9 June 2016, another follow-up email drafted in German was sent by the insurer’s solicitors to Dr Wiesner and, on the same day, the solicitors telephoned his rooms and left a voicemail message (in German) asking that he respond to their email. Later on 9 June 2016, the insurer’s solicitors received an email from Dr Wiesner’s rooms in which they advised that their earlier email had been “directly forwarded to Dr Wiesner” who was, in any event, on holidays until 14 June 2016.
18. The next development occurred on 21 June 2016. On that day, the plaintiff’s solicitors wrote to the solicitors for the insurer to advise that their agent in Germany had been in contact with Dr Wiesner’s hospital in Hamburg “in relation to [his] failure to respond” to the requests for information made on behalf of the insurer. They further advised that the “head of the legal department at the [hospital had] directed Dr Wiesner to address [the] requests for information”.^[19] Two days later, the insurer’s solicitors received a supplementary report from Dr Wiesner.^[20]
19. The supplementary report is dated 22 June 2016. In it, Dr Wiesner attempts to deal with the proposition advanced by Dr Brocks that the plaintiff will require multiple joint replacements surgeries:

“In principle it needs to be stated that the joints of a tetraplegic undoubtedly experience a completely different load-bearing and functional situation.

The muscle pull on joints of a tetraplegic is completely different and is definitely also affecting the metabolism and nutrition situation of the affected joint.

The main problem with the joints of a tetraplegic is the development of contractures. As already established in the previous expert report, relevant intensive physiotherapy exercises and ergotherapy measures are absolutely necessary.

In general, surgical interventions are limited to surgical release or muscle transfer surgery.

Developing a decomensated [sic] joint arthrosis, however, is rare.

However, whether this fundamental change in [the plaintiff’s] joints will occur to such an extent that an artificial joint replacement will become necessary, is from today’s perspective completely open and cannot be answered.

Joint replacement surgeries are rare for tetraplegics or paraplegics, but when they do have to be performed, there often are complications.

For this reason Dr Brocks’ statement that, with a normal life expectancy, it is likely for [the plaintiff] that he will need to undergo multiple joint replacement surgeries (both hip joints, both shoulder joints, both knee joints, both elbow joints) including any necessary replacement of these artificial joints simply cannot be regarded reasonable to this massive extent. Despite in-depth research of literature, not one single case of a paraplegic is known where it was necessary to perform such a massive extent of joint replacements surgeries.

Also, the progression of the plaintiff’s ailments will show whether spinal surgeries will become necessary.”

20. Following receipt of the supplementary report, the insurer’s solicitors maintained their request that the plaintiff undergo an assessment by one of the three spinal surgeons from the panel submitted by letter dated 20 May 2016. In a letter to the plaintiff solicitors dated 30 June 2016, they contended that, although Dr Wiesner had briefly addressed “some of the surgeries recommended by [Dr Brocks], he has not otherwise expanded upon [the plaintiff’s] likely future treatment needs and/or the costs of the same”.^[21] They then said:

“In the absence of sufficient evidence surrounding your client’s future treatment needs, we maintain that a further examination by a new spinal surgeon is necessary – particularly in light of the high value of the future treatment expenses claimed by your client, as well as the extreme difficulty we (and our German agent) has had in obtaining information from Dr Wiesner.”

21. The solicitors for the plaintiff responded on 4 July 2016.^[22] In their letter of that date, they made the point that the insurer’s solicitors had not asked Dr Wiesner to expand upon the plaintiff’s likely future treatment needs or the costs of that treatment in their letter of instruction dated 9 March 2016. Instead, they contended, Dr Wiesner had been asked to comment on Dr Brocks’ opinion that the plaintiff will require multiple joint replacements in his lifetime and Dr Wiesner had done that. They argued that, if any further information about the plaintiff’s likely future treatment needs or the costs of that treatment was required, a “request for information should be addressed to Dr Wiesner”. Otherwise, they asserted that the insurer was “not entitled to obtain evidence from multiple specialists in the one field” and repeated the view previously expressed that the insurer’s request for a further assessment of the plaintiff by a spinal surgeon was “unreasonable and unnecessarily repetitious”. Following receipt of this response, the insurer’s solicitors filed the application at hand on 11 July 2016.
22. The orders sought by the insurer on this application are designed to bring about what was proposed in its solicitors’ letter of 20 May 2016, that is to say, that the plaintiff undergo an examination in either Germany or the United Kingdom by one of the doctors on the panel of orthopaedic specialists named in that letter. Any such examination, wherever it occurs, is to be conducted at the insurer’s expense. Further, on the hearing of this application, the court was advised that the insurer will submit to a term by which it would not be at liberty to place any further reliance on the opinions expressed by Dr Wiesner.^[23] In other words, what is sought on behalf of the insurer is a medical opinion to replace, and not supplement, Dr Wiesner’s reports.
23. It is for the insurer to establish a proper basis for the making of such orders in its favour. Importantly, the insurer must satisfy the court that what is sought by way of examination is neither unreasonable nor unnecessarily repetitious. In determining whether that is so, the objects of the Act, including the object of encouraging the speedy resolution of personal injury claims resulting from motor vehicle accidents, are not to be overlooked. As Applegarth J observed in RACQ Insurance Ltd v Wilkins,^[24] the speedy resolution of such claims is facilitated by the timely completion of pre-proceeding steps and these “include the making of an offer of settlement based upon a fair and reasonable estimate of the damages to which the claimant would be entitled”.^[25] It follows that the exception to the insurer’s right to obtain a medical assessment of a claimant expressed in s 46A(3) of the Act should not be construed in an unduly restrictive way because, to do so, might have the effect of stifling that objective. Each case will be different and much will depend on such factors as the complexity of the medical issue or issues involved and the extent to which the claimant has already been examined on behalf of the insurer regarding such issues. In addition, the potential size of the damages component in question or, indeed, the overall claim may be relevant; what might be considered to be unreasonable or unnecessarily repetitious in the context of a modest claim may not be so in the context of a larger claim. Depending on the circumstances of the case at hand, a claimant may need to be examined by a number of different specialists or even a number of specialists within the same area of specialty. There is no rule against an insurer seeking to have a claimant examined on more than one occasion by a particular specialist or by more than one specialist within that area of specialty. It will only be where what is sought by the insurer is unreasonable or unnecessarily repetitious that no obligation can be said to arise on the part of the claimant. As Chief Justice de Jersey held in Whiting v FAI General Insurance Company Ltd & Rayner:^[26]

“Good sense dictates that each side in litigation like this have a comprehensive, though not unduly extended, opportunity to gather expert medical evidence as to the injuries and disabilities of the plaintiff.”^[27]

24. It is also important to keep in mind that, if an order is made, it will be made pursuant to s 50 of the Act. By that provision, the court may, on the insurer’s application, order the claimant to take specified action to comply with a duty imposed under Division 2, 3 or 4 of the Act. In the exercise of that discretion, the court will be concerned to balance the rights of the competing parties in a way that accords justice. As Cullinane J observed in Jackson v State of Queensland:^[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.

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 their defence upon a fully informed basis.

On the other hand the right of the plaintiff not to be required to submit to a medical or similar examination against her will must weigh significantly”.^[29]

25. In opposing the orders sought, senior counsel for the plaintiff submitted that the insurer had not made out the circumstances entitling it to the orders sought. It was argued that the plaintiff had already been examined by an orthopaedic surgeon of its choosing and reports had been obtained. Furthermore, the point was made that Dr Wiesner had in his supplementary report answered the very question that was put to him on behalf of the insurer. As senior counsel submitted, the insurer “has got what it asked for”.^[30] The proper course, it was argued, was for the insurer to request Dr Wiesner to supply a more detailed response if that was the insurer’s complaint. The submission was also made that the application has been made a considerable time after the pleadings have closed and in circumstances where the insurer made no request that the case flow orders provide for a further medico-legal examination. Lastly, it was submitted that there was no evidence before the court that any of the doctors on the panel submitted by the insurer’s solicitors are qualified to express any opinion about the costs of surgery in Germany or that any one of them needs to examine the plaintiff in order to provide a report.
26. It is true that Dr Wiesner was asked to provide a “short supplementary report” and that is what he produced. However, I do think that the insurer is entitled to a greater consideration of the case for multiple surgeries advanced by Dr Brocks than is revealed by that report, particularly when regard is had to the potential size of the future care component of the plaintiff’s claim. The proper assessment of that component requires, in my view, a careful consideration of the chance that the mooted surgeries will be required during the plaintiff’s lifetime.^[31] That, in turn, may very well enhance the prospects that the claim can be resolved short of a trial. I also think that the difficulties experienced by the solicitors for the insurer in obtaining the initial and supplementary reports of Dr Wiesner support the conclusion that it will be better in the circumstances of this case to seek an opinion elsewhere. Of course, it may be that none of the doctors on the panel submitted on behalf of the insurer is qualified to express an opinion about the costs of surgery in Germany but if that proves to be the case, any attempt to opine beyond the limits of their expertise will no doubt be met with an objection at trial. Although there is no evidence that any of the doctors on the panel needs to examine the plaintiff in order to provide a report, it would be surprising if that was not the case given the nature of the plaintiff’s injuries. Indeed, there may very well be something about those injuries to support Dr Brocks’ prediction regarding future surgeries.
27. I am satisfied in the circumstances of this case that a further examination of the plaintiff by one of the doctors on the panel submitted on behalf of the insurer will be neither unreasonable nor unnecessarily repetitious if carried out in accordance with the terms offered by the insurer on the hearing of the application. In this regard, it is to be noticed that there is no evidence from the plaintiff – whether directly or on information and belief – to the effect that he apprehends particular inconvenience or distress if required to submit to another medical examination. It should be appreciated that this is not a case where an insurer has received an unfavourable medical opinion and seeks to overcome it with another opinion. To the contrary, in his supplementary report Dr Wiesner did not agree that the surgeries anticipated by Dr Brocks could be “regarded as reasonable to this massive extent”. Instead, in what might be regarded as peculiar circumstances, the difficulties experienced with Dr Wiesner are such as to require recourse to a different specialist in his field. The terms offered by the insurer mean that it will no longer rely on the reports provided by Dr Wiesner. As such, this is an appropriate case for the favourable exercise of the discretion conferred by s 50 of the Act.
28. In the result, an order will be made in favour of the insurer requiring the plaintiff to comply with its request to undergo a further medical examination, and on the terms offered by the insurer on the hearing of the application. The parties will be directed to bring in minutes of orders to reflect these reasons.
29. Finally, there is the issue of costs. That issue was not addressed in the submissions of either party but, subject to hearing any contrary submission on the handing down of judgment, it seems to me that the costs ought to be the plaintiff’s costs in the proceeding. Although the plaintiff opposed the application, and the insurer succeeded, the insurer has sought an indulgence from the court and the plaintiff should not be put to any additional expense because of it. The plaintiff’s opposition to the making of the orders was reasonable on the material before the court.