TRAUTVETTER V MCDONALD AND ORS HC AK CIV 2007-404-007990

TRAUTVETTER V MCDONALD AND ORS HC AK CIV 2007-404-007990 8 August 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-007990BETWEEN ROSEMARY SHELDON TRAUTVETTER Plaintiff AND STEPHEN JOHN MCDONALD AND HUGH SHELDON SMITH First Defendants AND HUGH SHELDON SMITH Second Defendant AND DEBORAH ANNE SMITH Third Defendant AND KAURI MOUNTAIN FARMS LIMITED Fourth Defendant Hearing: 8 August 2008 (On the papers) Counsel: GC Jenkin for plaintiff PF Dalkie for defendants Judgment: 8 August 2008 at 1430JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for medical examination of plaintiff]Solicitors: Wilson McKay, PO Box 28 347, Remuera for plaintiff McDonald Law, PO Box 28 624, Remuera for defendants[1] The defendants seek an order pursuant to s 100(1) of the Judicature Act 1908 that the plaintiff submit herself to a medical examination by Dr Tapsell, a psychiatrist who has been engaged by the defendants to report to the Court. The application was made at a case management conference. [2] For the purpose of this application, s 100(1), (2) and (3) are applicable and provide as follows:100 Independent medical examination(1) Where the physical or mental condition of a person who is a party to any civil proceedings is relevant to any matter in question in those proceedings, the High Court may order that that person submit himself to examination at a time and place specified in the order by one or more medical practitioners named in the order. (2) A person required by an order under subsection (1) of this section to submit to examination may have a medical practitioner chosen by that person attend that person's examination. (3) The Court may order that the party seeking the order pay to the person to be examined a reasonable sum to meet that person's travelling and other expenses of and incidental to the examination, including the expenses of having a medical practitioner chosen by that person attend that person's examination.[3] Rules 318 to 321 of the High Court Rules apply specifically to orders made under s 100 of the Judicature Act 1908. [4] Counsel advised in a joint memorandum filed for a chambers listing of the proceeding on 26 June 2008 as follows:Plaintiff's Medical ExaminationThe first issue concerned the medical examination of the plaintiff pursuant to s 100(1) of the Judicature Act 1908. The plaintiff wishes to appoint her own psychiatrist, Dr R Wyness, to attend the examination, but the defendants object. It would seem that a Judge will need to rule on this and the parties seek timetables for a formal application to be filed and determined, assuming the matters cannot be resolved on Thursday afternoon.[5] Because the point was a narrow point I set a timetable for submissions in a minute I issued on 26 June 2008. Submissions have been filed by memorandum with a reply memorandum having been received from counsel for the defendants on 7 August 2008.[6] The sole issue is whether the plaintiff has the right to have the medical practitioner of her choice, that is Dr R Wyness, in attendance during her examination by Dr Tapsell. [7] Counsel's research can find no New Zealand case where a defendants' objection to the plaintiff having her medical practitioner present during the examination has been raised. Orders have been made in a number of cases which were referred to by counsel, for example, Anderson v Northland Health Ltd (1998) 12 PRNZ 338, Murray v Roman Catholic Archdiocese of Wellington (2005) NZAR 173; (2004) 17 PRNZ 216 and the unreported decisions New Zealand Permanent Trustees Ltd v National Mutual Life Association of Australasia Ltd HC WTN CIV 2005-485-411 17 July 2006 and Pickard & Anor v Ambrose & Anor HC WTN CIV 2003-091-143 1 May 2008. [8] Mr Dalkie relies on decisions of the Court of Appeal in England where there is no legislative basis for the ordering of medical examinations. The consideration which applies in that jurisdiction is quite different to that which applies in New Zealand where we have a no fault compensation provision provided by the accident compensation legislation. [9] Mr Dalkie referred to the judgment of Stephenson LJ in Hall v Avon Area Health Authority (Teaching) [1980] 1 All ER 516. In that case, the plaintiff had refused to undergo a medical examination by an orthopaedic surgeon nominated by the defendants unless the examination was conducted in the presence of a doctor chosen by her or her solicitors. Lord Justice Stephenson at 524 records the four points raised by counsel for the defendant in opposing such condition as follows:First, that the imposition of this condition should be the exception rather than the rule. Second, that if a plaintiff refuses to undergo an examination unless this condition is performed, he or she must disclose his or her reasons for seeking to do so. I think he relies on Starr's case and, in particular, some of the passages I have quoted from the judgments of Cairns, Scarman and Geoffrey Lane LJJ. Those principles, he submits, apply to any condition which involves the court's exercise of its discretion. The third thing is that the principle of reciprocity must not be infringed. It is a consistent theme running through the disclosure and exchange of medical reports and to depart from it can cause an injustice or an imbalance of justicein the determination of personal injuries litigation. He points out that, in this case as in others, it would be quite impracticable for the defendants to have their medical man present at the first examination or the early examinations of a plaintiff by his or her nominated medical man. Yet this condition requires the presence of the plaintiff's medical man at the defendant's medical man's first examination. Fourth, if allowed to become a general rule of practice, and not the exception, the imposition of this condition would have the inevitable consequence that there will be a widespread adoption of this practice and that will cause delay in getting medical reports and will cause injustice and extra expense. He added that it will cause the alienation of medical men from assisting the court in litigation of this kind. They may not always easily be persuaded to examine the parties to litigation, knowing that if they do they may or will have to take time off from their practices to give evidence in support of their reports. Their reluctance will be increased if they are called on to be present with, as it were, a watching brief at medical examinations in which they can take no part. They may find that a burdensome and frustrating duty and be further deterred from giving their assistance in this type of litigation.He concluded at 525(g):In my judgment, the court ought to have good or substantial reasons put before it on instructions or, in an appropriate case, on affidavit, if it is to impose conditions of this kind on a reasonable request for a medical examination of a plaintiff by a doctor nominated by a defendant.Mr Dalkie submits that no good reason has been advanced by the plaintiff for insisting on the presence of a medical practitioner of her choice at the examination and that, accordingly, no such condition should be attached to the order that should be made under s 100. [10] He submitted that he defendants' specialist ought to be permitted a free and unfettered examination of the plaintiff. He drew attention to the fact that the examination required, in this case, called for a consideration of the plaintiff's psychiatric condition. He submitted that, having regard to that, the examination would proceed on the basis of a question and answer process. He submitted that it is important that the answers to questions come entirely from what the plaintiff says and how she describes herself. He said that if another psychiatrist is present during such an examination, there is a risk that the plaintiff will defer any question to her own psychiatrist to see whether she should answer them. He submitted there was also a risk that the plaintiff's psychiatrist could interrupt the examination process. He pointed to an inherent unfairness in that the plaintiff has already made availableher psychiatrist's report following an examination when the defendants' expert was not able to be present. [11] Mr Jenkin has filed a comprehensive memorandum. In it he first analyses s 100 and notes that s 100(2) provides, in effect, a right in the plaintiff to have a medical practitioner present at the examination. He submitted that does not raise any issue of the Court's discretion. He noted, by contrast, that subsection (3) does raise discretionary matters relating to payment of costs of the person being examined and, for that matter, the expenses of the medical practitioner chosen by that person to attend the examination. [12] Mr Jenkin noted that the examination is in fact to be carried out by Dr Tapsell. [13] Mr Jenkin's primary submission, therefore, is that, on a proper construction of s 100(2) of the Judicature Act 1908, where an order is made under subsection (1) the plaintiff is entitled to have to her own medical practitioner present. That conclusion is reached by an interpretation of the statute. It is not assisted by a practice adopted in other jurisdictions which is not founded on legislation, such as s 100 of the Judicature Act 1908. [14] Mr Jenkin's research found no specific assistance either in the Parliamentary debates on the enactment of s 100 dealing with s 100(2) which might assist in its interpretation. He noted, however, that the current s 100 was enacted some five years after the decision in Hall v Avon Area Health Authority (Teaching). [15] Mr Jenkin further submitted that even if there be a residual discretion vested in the Court to impose a condition denying the plaintiff the right to have a medical practitioner of her choice present at the examination, the discretion to so order would only be exercised against the plaintiff if there were reasonable grounds for doing so. He submitted that simply applying the general formula set out in Hall v Avon Area Health Authority (Teaching) would not apply because, in New Zealand, there is a statutory provision which gives the right to the plaintiff to have a medical practitioner of her choice attend the examination. Further, he submitted, there wouldhave to be good reason to exclude that right. No foundation has been laid by way of evidence for adopting that position. [16] This is an application which was made pursuant to s 100 of the Judicature Act 1908. The section sets out, in a codified way, the rules which apply. Subsection (2), on its face, gives a right to a plaintiff to have a medical practitioner chosen by her attend the examination. [17] But even if I am wrong on this point, I adopt and approve the submissions advanced by Mr Jenkin. No specific basis has been advanced which I consider justifies, in this case, denying the plaintiff's desire to have her medical practitioner present at the examination. [18] The only discretionary issue is the question of payment of the expenses of such a person. That can adequately be covered, as it was in Murray v Roman Catholic Archdiocese of Wellington by noting that the costs are to be paid, in the first instance, by the defendants but, ultimately, are to be costs in the cause and can be dealt with appropriately at the conclusion of the litigation. [19] My understanding is that counsel sought my ruling in this judgment and that once it was to hand they would be in a position to present an appropriate draft order which implements this ruling. [20] Accordingly, I simply record my conclusion that the plaintiff is entitled to have a medical practitioner of her choice, who may be Dr Wyness, attend the examination to be carried out by Dr Tapsell. The reasonable travel and accommodation costs of the plaintiff and her medical practitioner, including his reasonable costs, are to be met, in the first instance, by the defendants but will be costs in the cause. I rule accordingly and invite counsel now to submit the appropriate order for my approval.Costs[21] I reserve costs. If counsel cannot agree, memoranda in support, opposition and reply shall be filed and served at seven-day intervals. _____________________ JA Faire Associate Judge