Brewster v El-Sayed [2013] NSWDC 271

District Court New South Wales

Medium Neutral Citation: Brewster v El-Sayed [2013] NSWDC 271 Hearing dates: 16 August 2013 Decision date: 16 August 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Defendant's notice of motion (filed 29 July 2013) dismissed. (2) Defendant pay the plaintiff's costs of the motion. Catchwords: PROCEDURE - application for further medical examinations - medical examinations - whether reasonable - repetitious or dangerous - cause stress and distress that could not be remedied Legislation Cited: Motor Accidents Compensation Act 1999, s 86 Uniform Civil Procedure Rules 2005, r 23.4, r 23.7 Cases Cited: Angliss v Urquhart [2001] NSWCA 441 Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 Rowlands v State of New South Wales [2009] NSWCA 136 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Interlocutory applications Parties: Jessica Scot Brewster (plaintiff) Ahmed El Sayed (defendant) Representation: Mr S Dixon (plaintiff) Mr S Selvakvmaran (defendant) McCulloch & Buggy Lawyers (plaintiff) Moray & Agnew (defendant) File Number(s): 2012/179345 Publication restriction: No

ex tempore Judgment 1On 23 September 2009 Jessica Brewster was struck by a motor vehicle as she crossed Parramatta Road at Annandale. Her injuries were significant, and included "serious traumatic head and brain injuries as well as multiple fractures." Proceedings for damages were commenced in 2012. 2Ms Brewster has attended seven medical appointments for the defendant insurer: Dr Chen on 23 January 2012, Dr Giles on 6 August 2012, Dr Smith on 7 August 2012, Professor Mattick on 21 December 2012, Professor Fearnside on 19 October 2012, and Dr Wilding on 6 August 2012 and 17 April 2013. Ms Brewster gave evidence by affidavit that attending each of these appointments caused her "great distress and trauma". They cause her to feel severely fatigued, suffer headaches and leave her depressed and prone to emotional outbursts. She often starts crying in appointments. This condition persists for two weeks or more, months in the case of neurological testing. Ms Brewster was not cross-examined either by leave or otherwise, so that this evidence was not challenged. 3The defendant requested Ms Brewster attend a further six medical appointments in August 2013 with Dr Sekel, Amanda McLaughlin, Dr Smith, Professor Mattick, Dr Granot and Dr Shnier. Ms Brewster agreed to attend appointments with Ms McLaughlin and Dr Shnier, because she had not previously been examined by persons in the areas of expertise possessed by Ms McLaughlin and Dr Shnier, but she resisted attending the other four appointments. 4This application is made pursuant to Uniform Civil Procedure Rules 2005 r 23.4, which provides that: "23.4 Order for examination (cf SCR Part 25, rule 5; DCR Part 23, rule 5; LCR Part 20, rule 5) (1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place. (2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination." 5The defendant also made reference to s 86 of the Motor Accidents Compensation Act 1999 applicable to the claimant as her injury resulted from a motor accident. Section 86 provides: "86 Medical and other examination of claimant (cf s 49 MAA) (1) A claimant must comply with any request by the person against whom the claim is made or the person's insurer: (a) to undergo a medical examination by one or more medical practitioners nominated by that person or insurer... not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous. ... (4) If the claimant fails without reasonable excuse to comply with such a request: (a) the claim cannot be referred to the Authority for assessment under Part 4.4 and any such assessment cannot be continued while the failure continues, and (b) court proceedings cannot be commenced or continued in respect of the claim while the failure continues. ..." 6The defendant did not seek the remedies provided under s 86(4) and ultimately submitted the provision was a relevant guide to the exercise of the court's power under r 23.4. Thus, it was said that a court should make an order that the plaintiff submit to an examination unless it was unreasonable, unnecessarily repetitious or dangerous. The plaintiff did not dispute this proposition. I think it likely that examinations would be unreasonable if they were either unnecessarily repetitious or dangerous. In that event, reasonableness appears to cover both these other considerations. 7Part 23 of the Uniform Civil Procedure Rules 2005 contains definitions of a "medical expert" and "medical examination". There is no dispute that the persons conducting the four appointments remaining in issue, Dr Granot, Dr Smith, Professor Mattick and Dr Sekel, are medical experts. 8In the course of submissions, the defendant accepted that Dr Chen, an expert retained by the defendant who had already examined Ms Brewster, was of the same area of expertise as Dr Sekel and could re-examine Ms Brewster in February 2014. The trial was not expected to occur before that date, and the plaintiff took no opposition to that course, she being willing to be re-examined then by Dr Chen. Accordingly, the defendant did not press for an order in respect of the appointment with Dr Sekel. That leaves Dr Granot, Dr Smith and Professor Mattick. 9Ritchie's Uniform Civil Procedure NSW at [23.4.5] states in respect of r 23.4: "[23.4.5] Scope of medical examination The rule permits orders requiring a person to submit to routine medical procedures or tests (such as taking samples or specimens or examination by xrays, CAT scan, MRI or ultrasound) by an appropriate medical expert...A medical examination that may be ordered under the present rule does not, because of the definition in UCPR r 23.1(2), extend to testing for the purpose of carrying out a full assessment of a person's disabilities: Herbert v O'Neill (NSWSC, Sharpe M, 30 November 1979, unreported); Cameron v Baker (NSWCA, Reynolds, Samuels and Mahoney JJA, No 316/79, 6 August 1980, unreported, BC8000055). Testing of that kind may be the subject of orders under UCPR r 23.7 requiring a party to undergo testing to assess the extent of any relevant injury-related earning capacity." 10Rule 23.7 expressly provides for tests to assess the extent of impairment of any party's earning capacity. The defendant disavowed any reliance on this rule for the purpose of this application. 11In Angliss v Urquhart [2001] NSWCA 441, the Court of Appeal set aside an order under the predecessor of UCPR 23.4 on the basis, it appears, that, "the distress and stress that flowed from them could not be remedied" (at [14]). 12Accordingly, the matters before me are: (1)whether the appointments are for medical examination; and (2)whether the examinations are reasonable, including whether the examinations are repetitious, dangerous or cause stress and distress that could not be remedied. I propose to consider each appointment separately.