In White v Ducks in a Row Pty Ltd [2016] QDC 212 the defendant, who had the plaintiff undergo a medical examination during the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) pre-court proceedings, sought to have the plaintiff undergo a further medical examination during the litigated proceedings. The plaintiff sought to limit the specialist’s examination and to prevent the specialist expressing an opinion on the whole person impairment arising from a combination of the pre-existing and incident-related conditions.

The plaintiff alleged that he was injured on 26 December 2010 in a boating accident when his spine was severely jolted in rough weather. During the PIPA pre-court proceedings the plaintiff was examined by Dr Don Todman, neurologist, and Dr Michael Weidmann, neurosurgeon. Both specialists diagnosed the plaintiff with a crush fracture to the L1 vertebrae.

The plaintiff advised Dr Weidmann of a previous left leg fracture and a recent left hip replacement. Dr Weidmann dismissed those conditions as not relevant to the plaintiff’s current symptoms. Thereafter, the plaintiff’s solicitors disclosed a number of medical records which identified the nature and extent of the pre-existing hip condition and the existence of a pre-existing knee injury.

The defendant brought an application in the District Court of Queensland seeking an order under r 366 of the Uniform Civil Procedure Rules (UCPR) for the plaintiff to undergo a medical examination by an orthopaedic medical specialist, at the defendant’s expense. The plaintiff did not oppose an examination limited to his hip and knee conditions but opposed an unrestricted orthopaedic examination on the basis that the request was unreasonable and unnecessarily repetitious.

The plaintiff submitted that in the exercise of its discretion the Court should apply the test set out in s 25 of PIPA, namely:

“(2) The claimant must comply with a request by the respondent to undergo, at the respondent’s expense either or both of the following –

(a) a medical examination by a doctor to be selected by the claimant from a panel of at least three doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request;

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

The defendant did not accept that s 25 of PIPA applied once the claim was litigated but conceded that guidance could be derived from that section.

Although Judge Butler did not consider whether s 25 had application during litigated proceedings, he was satisfied that in the exercise of his discretion he should not require the plaintiff to undergo an examination or assessment should he form the view that it would be unreasonable or unnecessarily repetitious for that to happen.

His Honour noted that the issue for decision in the application was not whether an order for examination should be made but whether the order should confine the specialist by limiting the nature and extent of any examination and preventing the specialist expressing an opinion on the whole person impairment arising from a combination of the spine, hip and knee conditions.

Judge Butler found that once it was accepted, consistent with the plaintiff’s concession, that it was relevant to have regard to the hip and knee conditions, it was right to conclude that further examination and assessment addressing the combined impact on the respondent was justified. His Honour held that it would not be unreasonable for the orthopaedic surgeon assessing the respondent’s hip and knee conditions to also have regard to his spinal injury in expressing an opinion on the combined effect of those conditions on his whole person impairment and earning capacity.

Key points

  • Although the courts are yet to consider whether s 25 of PIPA applies once a claim is litigated, the courts will be guided by the content of that provision and will not require a plaintiff to undergo medical examination if it would be unreasonable or unnecessarily repetitious.
  • If unrelated conditions which are likely to effect the assessment of damages come to light late in the proceedings, it will not be unreasonable for a respondent/defendant to have the claimant/plaintiff re-examined and the combined affect of the conditions assessed.