When Parties Don’t Agree: Injury & Medico-legal Examinations

Case Note: Slaughter v Harvey [2021] QDC 156

 

Facts

Dr John Slaughter was a treating psychiatrist for several years. The defendant, Mr Dean Harvey, who is the plaintiff in the substantive application, attended upon Dr Slaughter between 1984 and 2018 for psychiatric advice and treatment.

Harvey alleges that Dr Slaughter advised him that he was a sufferer of a depression and it would require lifelong treatment with a significant amount of prescription drugs. In or about 2016, Harvey stopped taking his prescription medication however, he continued to see Dr Slaughter for appointments until 2018.

Harvey alleges that since ceasing his medication he has recovered his “exuberant enjoyment of life” and attended upon other psychiatrists for a second opinion whereby he was diagnosed as, suffering no psychiatric illness. Further he was diagnosed as to likely never having suffered such an illness. It is alleged that Harvey, subject to the prescribed medication, experienced numerous serious side effects which caused him loss and personal injury.

In 2019, Harvey sought leave of the Court to commence his claim in the District Court against Dr Slaughter for damages of personal injury caused by his alleged battery, negligence, misleading and deceptive conduct as well as breach of contract over his treatment period.

Leave was granted and proceedings commenced in the District Court however, they were stayed pending completion of the pre-Court processes required under Chapter 2, Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’). At the time of judgement, those processes were still on foot.

In this proceeding, which was commenced by an originating application, Dr Slaughter sought:-

1. The PIPA claim be permanently stayed unless Harvey underwent an independent medico-legal examination by Dr John Chalk;
2. In alternative, the PIPA claim be permanently stayed unless on or before 31 August 2021 Harvey underwent a medico-legal examination by a psychiatrist, to be selected by Dr Slaughter from Dr Jill Reddan, Dr Jon Steinberg or Dr John Chalk;
3. The medico-legal exam was to occur on such terms as the psychiatrist directed; and
4. Copy of the report from that examination be provided to Dr Slaughter’s legal representatives.

Essentially, this application was made under section 35 of PIPA whereby a party’s failure to comply with a duty imposed under section 25 of PIPA, the court may make an order that the parties must take specific action to remedy this failure, and the Court may make ancillary or consequential orders.

Dr Slaughter contended that, in accordance with section 25 of PIPA, he had requested Harvey undergo a medical examination by a doctor, selected by Harvey, from a panel he provided. Harvey had refused to do so and sought the imposition of conditions on the examination which were not acceptable to any member of the panel provided by Dr Slaughter.

 

The law

Section 25 (under Division 2) deals with the “examination of claimants by medical experts in absence of agreement between parties”. It states:-

(1) This section applies if a respondent wants to obtain an expert report about all or any of the following, but fails to obtain the claimant’s agreement—

(a) the cause or probable cause of the incident alleged to have given rise to the personal injury to which the claim relates and whether, in the expert’s opinion, 1 or more persons (who may be named), are responsible for, or contributed to, the incident;

(b) the cause or probable cause of the personal injury to which the claim relates and whether, in the expert’s opinion, 1 or more persons (who may be named) are responsible for, or contributed to, the injury;

(c) the claimant’s medical condition or prospects of rehabilitation;

(d) the claimant’s cognitive, functional or vocational capacity.

(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 3 doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request;

(b) 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 in the relevant field nominated by the respondent in the request.

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

(d) If 3 doctors or experts with appropriate qualifications and experience in the relevant field are not available for inclusion on a panel under subsection (2), the number on the panel may be reduced to 2.

Section 35 provides the Court with the power to enforce parties to comply with section 25. It states:-

(1) If a party fails to comply with a duty imposed under division 1 or 2, the court may, on the application of another party to whom the duty is owed, order the first party to take specified action to remedy the default within a time specified by the court.

(2) The court may make consequential or ancillary orders, including orders as to costs.

 

Issues before the Court

Harvey opposed Dr Slaughter’s application on, effectively, three grounds.

1. Dr Slaughter’s lawyers had not clearly stated which issues the examination and report would be addressing;
2. Dr Slaughter had not demonstrated that the doctors he had chosen to form the panel had the appropriate qualifications and experience in all the fields that were nominated by him in his request;
3. The examination that Dr Slaughter was unreasonable because the suggested doctors would not comply with the conditions Harvey had insisted on for the examination.

 

Authorities relied on

Dr Slaughter relied on the Court of Appeal’s decision in Day v Woolworths Group Ltd to support the position that a claimant cannot seek to impose conditions on attending a medication examination, nor refuse to attend, if the way it will proceed is objectively reasonable.[1]

Harvey relied on the reasons of his Honour Justice Burns in Bona v Jeffries as to the proposition that a defendant, and his insurer, must satisfy the Court that the examination sought is not unreasonable. A claimant is not considered to have “defaulted” under section 25 of PIPA (for the purpose of section 35 PIPA) where a claimant has refused a request to be examined that is unreasonable.[2]

Harvey further submitted that to determine whether the examination sought is reasonable, the Court (and the parties) must consider the claimant’s personal circumstances. In this case, the Court held that having consideration to Harvey’s personal circumstances and the reasoning of his claim in the matter, it would be unreasonable to require him to attend upon a psychiatrist for the purpose of examination without special procedures in place, which he requested.

 

Issue 1: the issues were not clearly stated

It was argued, by Harvey, that the legal representatives of Dr Slaughter had not provided consistent correspondence to set out the issues for which the examination was required.

The Court held that the correspondence may have had difference in expression in how the list of issues were states however, he did not form the view that those difference rendered the correspondence as having failed to comply with section 25(1) PIPA.

 

Issue 2: the appropriateness of the proposed doctors

The Court held that each of the proposed psychiatrists had the relevant and appropriate experience to conduct the examination sought noting that the report would be provided from the view of a psychiatrist as opposed to a pharmacologist or neurologist.

 

Issue 3: Whether the examination sought was unreasonable

Harvey sought to impose seven conditions on the examination:-

1. A support person be permitted to attend and be present with him throughout the examination;
2. He be permitted to voice record the examination;
3. Prohibit his photograph being taken;
4. The examination go for no longer than 1 ½ hours;
5. No invasive tests to be conducted;
6. Dr Slaughter not provide a copy to his insurer any medical information provided to the examining practitioner nor the report however, a representative of the insurer may attend Dr Slaughter’s solicitors’ office to view a hardcopy of this material;
7. If an “unrecognised condition” is discovered during the examination, the examining doctor is to inform Harvey directly of the condition, the diagnostic tools and criteria used to diagnose together with the clinical data and evidence relied on to diagnose the condition.

At the time of this proceeding, Harvey only sought to impose conditions 1-5.

Having considered each of the conditions,[3] the Court held that it was unreasonable for an examining doctor to require Harvey’s photograph be taken and to insist that the examination take place for more than two hours in a single session. It would be reasonable to allow a break of at least 30 minutes, or longer if Harvey required it. That may mean that several sessions are required over a number of days which Harvey would be obligated to attend under section 25 PIPA.

Further, the Court held that it would not be unreasonable for the examining doctor to prohibit Harvey from voice-recording the examination sessions and/or having a support person present.

 

Outcome

The Court held that the appropriate course in the circumstances was to adjourn this application to allow Dr Slaughter to ascertain whether the psychiatrist whom Harvey selected from his panel, or the remaining doctors on the panel would be willing to conduct the examination with the reasonable conditions imposed.

If the chosen doctor, or the remaining panel doctors, agree to the conditions, Harvey will be obligated to comply with Dr Slaughter’s request for examination. Should only two of the doctors agree then pursuant to section 25(4), the panel may be reduced to those two doctors and Harvey would need to select one of them as the examining doctor however, should none of them agree then he would not be obligated to attend an examination by any of them.

The application was adjourned and costs were reserved.

This article was written by Ashleigh Fanning

Footnotes

[1] [2018] QCA 105, [25]-[28].

[2] [2021] QSC 84, [24]-[25], [30].

[3] Slaughter v Harvey [2021] QDC 156, [22]-[43].