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.

Dr Granot 13Dr Granot proposes to conduct nerve conduction tests. These tests involve the insertion of needles into the body and the passing of a current through the body. The plaintiff has retained no medical legal expert to conduct such an examination, however in 2009 and 2010 two of her treating doctors did so. Dr Arun Aggarwal, who performed the test on 26 February 2010, reported on 9 August 2013: "The nerve conduction studies performed by myself on 26th February 2010 clearly showed that Mrs Brewster has a problem. Sensory responses were NOT obtainable from left median and ulnar nerve stimulation and the conclusion was that these changes were suggestive of a left lower trunk and brachial plexopathy possibly due to a neurogenic thoracic outlet syndrome. The reason why words such as suggestive and possibly were used is because due to patient tolerance Needle EMG studies were not performed. The previous tests were conclusive of organic pathology, only the site and cause were speculated. If Ms Brewster was to have further nerve conduction studies, needle EMG studies would also be required to provide conclusive results." 14In her affidavit, Ms Brewster stated: "Dr Granot proposed to carry out further nerve conduction testing on me. I do not want to attend the appointment with Dr Granot because I have already had two previous conduction tests. Each test was inconclusive. Although attending appointments is difficult for me, the nerve conduction studies are especially painful. I feel it is unnecessarily traumatic for me to undergo further testing at the risk of producing the same inconclusive result. When I last underwent a nerve conduction study, I had complex regional pain syndrome. I found it to be traumatic and incredibly painful and I do not want to be subjected to this again." 15Professor Fearnside, an expert retained for the defendant, stated in October 2012: "If the nerve conduction studies cannot be performed, could you let me know as I will go on and make a WPI assessment without them. However, they would be helpful." 16In these circumstances, the nerve conduction tests proposed to be conducted by Dr Granot appear to me to go beyond what is a "medical examination" and constitute a medical procedure or test. Certain routine procedures appear to be within the rule, such as an MRI as referred to earlier, see Rowlands v State of New South Wales [2009] NSWCA 136 and Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 at [4]. But I am not persuaded that the nerve conduction test is properly to be so termed. Rule 23.7 recognises that certain testing falls outside r 23.4, and nerve conduction tests, at least in this case, appear to be an example of that. 17Assuming the nerve conduction tests were an examination, I note that the plaintiff suffers pain as a result of these tests. I have no evidence to indicate that that pain can be avoided or otherwise remedied. 18Further, Professor Fearnside's report indicates that while the tests would be helpful, they are not crucial in enabling him to assess Whole Person Impairment ("WPI"). 19Finally, there is doubt as to whether the tests could be successfully completed to produce conclusive results in view of the pain suffered by the plaintiff in the most recent attempt in 2010. 20In these circumstances, I am not persuaded that it is reasonable to require Ms Brewster to attend this examination.

Professor Mattick 21Professor Mattick is a neuropsychologist who tested Ms Brewster for some five to six hours in an appointment on 21 October 2011. Ms Brewster described this event as follows: "After my last appointment with Professor Mattick, I was not sure how his tests had affected me, I could not stop crying or control my actions and emotions and I was not sure what was happening to me. He would not help me, refer me for help or take my calls. Because he has asked me to set aside four hours for his appointment I worry that he wants to perform his tests all over again. I simply do not believe I can physically and emotionally cope with another round of neuropsychological testing. After Dr Langeluddecke's neuropsychological testing at the end of last year, I stopped going to university and almost failed my university course because I could not get out of bed for weeks. I had to apply for special consideration for all of my assessments." 22Again, I have reservations about whether this testing for hours which produces these effects on the plaintiff is fairly to be described as a medical examination. In any event, both the plaintiff and the defendant have an expert that has conducted these tests. There is no evidence before me from Professor Mattick of the particular necessity for a further round of tests. Whilst updating medicals may be common practice in many instances, I do not regard updating of this form of medical examination as reasonable so as to warrant an order under r 23.4.

Dr Smith 23Dr Smith is the psychiatrist who had previously examined the plaintiff on 7 August 2012. No psychiatrist has been retained by the plaintiff for the proceedings. Ms Brewster objects to this examination on the basis that it is unnecessarily repetitive and therefore unreasonable. Again, there is no evidence of the particular need for this further examination. The defendant contends that the Court would be benefited by an updated medical report, but in the absence of any evidence, I cannot assess that supposed benefit. 24For all these reasons, I am not persuaded that Ms Brewster should be ordered to attend any of the three appointments in issue. Accordingly, the orders of the Court are: (1)Defendant's notice of motion (filed 29 July 2013) dismissed. (2)Defendant pay the plaintiff's costs of the motion.

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