The recent case of Mahoney v Salt  QSC 43 demonstrated the importance of wording letters of instructions to investigators in order to retain privilege over witness statements. David Jesser reviewed this issue in detail in our last Insurance Update.
Similarly, the court has also recently considered letters of instructions to medical specialists in an Application in the matter of Maroney v Qantas Airways Limited  QDC 68.
In this matter the Plaintiff claimed for injuries sustained in a workplace fall on 12 December 2008. The Plaintiff claimed a soft tissue injury to her left shoulder. The Defendant pleaded that any loss the Plaintiff may have is a consequence of other unrelated injuries, including injuries to the cervical spine in 2003, 2004, 2005, July 2008 and finally in September 2010 when the Plaintiff suffered a whiplash injury in a car accident.
The Plaintiff pleaded a soft tissue injury to her neck in her Notice of Claim served on 14 December 2010. The Plaintiff was seen by Dr Cooke, Orthopedic Surgeon and Dr Tomlinson prior to the Notice of Claim being served and neither were aware of the Plaintiff’s history of neck injuries or of the car accident on 20 September 2010.
The whiplash injury was revealed to the Defendant’s solicitors on 19 July 2011 after a failed compulsory conference and the Defendant requested the Plaintiff be examined by a spinal surgeon on the basis the nature and extent of any neck injury was relevant to assessing damages given a significant claim was being made for future economic loss.
The Plaintiff argued that there was no evidence of any incapacity arising from the neck injury and that in any case the whiplash injury was not overwhelming of the shoulder injury suffered in December 2008 and therefore it was irrelevant to any assessment of incapacity caused by the shoulder injury.
In an Application heard before Devereaux SC DCJ on 17 November 2011 His Honour accepted the Plaintiff’s argument that any neck injury has not been overwhelming but he was not persuaded it would be irrelevant to the assessment of damages. He ordered that the Plaintiff be examined in accordance with the Defendant’s request by a spinal surgeon.
The matter again came before the court on 20 February 2012 on the basis the Plaintiff complained the letter of instructions to the spinal surgeon was defective and that it exceeded the limit of the Order made in the prior Application.
The Plaintiff argued that the letter sent to the medical specialist asserts that the Plaintiff suffers from a cervical spine condition which is a matter in dispute. The Plaintiff argued that the letter also casts the Plaintiff as an unreliable historian in that the letter of instructions contains several statements like the following:
“Your examination has become necessary because previous medical assessments were compromised by the Claimant’s failure to tell doctors about the motor vehicle accident.”
The Plaintiff also complained that the letter sought to ascertain a level of impairment, if any of the Plaintiff’s spine and symptoms related thereto and any restrictions on future employment. It invited the doctor to comment not only on what the Plaintiff disclosed to the doctor but also on records that have been provided to the doctor demonstrating the prior and subsequent history of neck complaints.
His Honour agreed that the letter contains strong statements critical of the Plaintiff’s credibility and he ordered that the Defendant re-commission a new medical specialist with a new letter of instruction. He advised:
“Without purporting to “supervise the defendant’s preparation for trial”, I suggest it would be unproductive to include any evaluative statements regarding the plaintiff’s reliability as a historian in a letter instructing the expert, whether by reference to the statements of other doctors, my reasons for the earlier orders or the defendant’s solicitors’ own views of the plaintiff.”
The Plaintiff also argued that the Defendant should not include certain reports of other doctors however His Honour was not persuaded to regulate the correspondence further. His Honour noted:
“The earlier orders set the parameters for the further investigation. Anything short of great care and precision in the crafting of instructions to the expert with surely create the material for more, not less, dispute between the parties. That would not conform to the philosophy of the UCPR.”
The case demonstrates the care that must be taken by Defendants when instructing medical specialists and whilst Defendants are entitled to point out evidence the medical specialists should consider and flag pages. For example in medical records, care should be taken to not unnecessarily persuade the expert. After all, a medical specialist owes a duty to the court which overrides any obligation they may have to the party that engaged them to provide the court with independent and impartial advice, which will assist the court to make a decision.
The decision of Maroney v Qantas Airways Limited will no doubt cause Plaintiffs’ solicitors to request letters of instructions and should care not be taken by the Defendants in drafting these letters of instructions to avoid a Cost Order or an Order for a second review.