Zhang bhnf Zhang v Zhang [2009] ACTSC 25 (20 March 2009)

Last Updated: 19 May 2009

EMILY ZHANG by her next friend TEI WEI ZHANG v SAM QUI ZHAO ZHANG

[2009] ACTSC 25 (20 March 2009)

PRACTICE AND PROCEDURE – personal injury action – right of defendant to have plaintiff medically examined – plaintiff previously assessed by child psychiatrist – defendant requiring plaintiff to submit to assessment by a different psychiatrist – not reasonable in circumstances

Court Procedures Rules 2006, r 21, 1401, 1600

Road Transport (General) Act 1999, s 194

H. Luntz, Assessment of Damages for Personal Injury and Death, 4th edition, Butterworths

BC Cairns, Australian Civil Procedure, 5th edition, Lawbook Co.

No. SC 602 of 2003

Judge: Master Harper

Supreme Court of the ACT

Date: 20 March 2009

IN THE SUPREME COURT OF THE )

) No. SC 602 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: EMILY ZHANG by her next friend TEI WEI ZHANG

Plaintiff

AND: SAM QUI ZHAO ZHANG

Defendant

ORDER

Judge: Master Harper

Date: 20 March 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The defendant’s application of 2 December 2008 be dismissed.

2. The defendant pay the plaintiff’s costs of the application, those costs not to include the cost of qualifying and obtaining the opinion of Dr Patricia Jungfer.

1. This is an interlocutory application in an action for damages arising out of a motor vehicle collision. The plaintiff, then aged nine, was a passenger in a car driven by her father, who is the defendant. The car collided with a truck at a Canberra suburban intersection in October 2002. Somewhat unusually, the defendant has delivered a defence denying that he was guilty of any negligence, “but for the purpose of these proceedings only” admitting breach of duty of care. The defence denies that the plaintiff suffered any injury. Notwithstanding the state of the pleadings, the action has been conducted on both sides consistently with liability having been admitted.

2. Proceedings were commenced in 2003, and a Statement of Particulars was filed in December 2004 in which it was stated by the plaintiff’s solicitors that her condition had not stabilised and that medical opinion was “that the plaintiff’s condition cannot be properly determined until the plaintiff has passed the puberty growth stage”. The plaintiff’s solicitors asserted in the document that the claim was not ready for hearing. The plaintiff’s injuries were set out, including a severe head and brain injury accompanied by multiple fractures to the skull. The Statement of Particulars asserts that the brain injury has resulted in impaired intellectual and cognitive function, to such an extent that the plaintiff will never be capable of employment, and will require constant supervision, care and attention for the rest of her life.

3. The plaintiff has been treated by a range of medical and other health professionals, including a neurosurgeon and other specialist-field surgeons, a neurologist and rehabilitation physician, and a range of neuropsychologists and clinical psychologists. The plaintiff’s solicitors say that they have served all of their medical reports on the solicitors for the defendant. I infer that the plaintiff has not been treated by a psychiatrist, nor has a psychiatrist been qualified by her solicitors as an expert witness.

4. The solicitors for the defendant have thus far had the plaintiff examined, I gather during 2004, by a paediatrician; a neuropsychologist; and a psychiatrist, Dr BGH Waters, who describes himself on his letterhead as a consultant child psychiatrist but I note has signed a recent letter styling himself as a child and adolescent psychiatrist. The defendant’s solicitors have not served copies of their reports. They are under no obligation to do so at this stage of the proceedings.

5. It appears from correspondence between the solicitors that the defendant’s third party insurer has been paying for the plaintiff’s treatment. In mid-2008, it seems that the insurer declined to pay for further treatment, at least by a particular practitioner. This appears to have occasioned some regrettable acrimony between the solicitors having the carriage of the matter on behalf of each of the parties at their respective firms.

6. In September 2008, the defendant’s solicitors wrote to the plaintiff’s solicitors stating that they had made an appointment for the plaintiff to be examined by Dr Carolyn Quadrio, a psychiatrist at Randwick in Sydney. The appointment was for 22 January 2009. The solicitors for the defendant asked that the plaintiff take “all radiological films and reports and other investigative reports in their possession”. They said that an interpreter would be arranged for the appointment. They asked that they be informed if the plaintiff was unable to keep the appointment. They stated, it seems to me a little gratuitously in the circumstances, that if the plaintiff failed to attend the appointment, a non-attendance fee would be charged and sent to the plaintiff’s solicitors for payment. There is no suggestion of any history in the matter of the plaintiff failing to keep medical appointments. The letter was not one calculated to elicit a warm and co-operative response, and it did not do so. The plaintiff’s solicitors wrote back pointing out that the plaintiff had previously been examined by Dr Waters. In effect, they said that their client would agree to a re-examination by Dr Waters but not to an examination by Dr Quadrio.

7. Further increasingly acrimonious correspondence followed. The defendant’s solicitors insisted that the plaintiff keep the appointment with Dr Quadrio. They threatened the present application unless the plaintiff’s solicitors confirmed in advance that their client would keep it.

8. On 2 December 2008 the present application was made. The defendant in the application seeks the following orders:

1. Pursuant to Rule 1600, the plaintiff be ordered to attend an examination with a psychiatrist nominated by the defendant at a date and time to be fixed by at least seven days’ written notice from the defendant’s solicitors to the plaintiff’s solicitors;

2. In the alternative, pursuant to Rule 1401, the plaintiff be directed to attend an examination with a psychiatrist nominated by the defendant at a date and time to be fixed by at least seven days’ written notice from the defendant’s solicitors to the plaintiff’s solicitors;

3. In the alternative, pursuant to section 194 of the Road Transport (General) Act 1999 and Rule 1660 or Rule 1401, the plaintiff’s proceedings be stayed until such time as the plaintiff allows the psychiatrist nominated by the defendant to examine the plaintiff.

9. Rule 1600 empowers the Court, on the application of a party, at any stage of a proceeding, to make any order that the nature of the case requires. Rule 1401 empowers the Court, at any stage of a proceeding, to give any direction about the conduct of the proceeding it considers appropriate, even though the direction may be inconsistent with another provision of the Rules. The Court may give a direction on application by a party or on its own initiative. The rule sets out a number of examples of directions which might be made, and a number of matters to which the Court may have regard to in giving a direction. The examples do not include directing a party to attend a medical examination. They include directions requiring the service or exchange of expert reports and the holding of a conference of experts, and directions limiting the number of witnesses (include expert witnesses) a party may call on a particular issue.

10. There is no rule 1660. I take this to have been a typographical error for 1600.

11. Section 194 of the Road Transport (General) Act has been repealed but continues to apply to causes of action which arose prior to the repeal. It provides:

The court in which an action for damages is begun in relation to bodily injury to a person caused by, or arising out of the use of, a motor vehicle may stay the action if the person fails, without reasonable excuse, to allow a doctor nominated by the owner, driver or authorised insurer of the vehicle to examine the person to find out the nature and extent of the bodily injury.

12. Additionally to that section, the Court has an inherent power to stay proceedings in such circumstances: see generally Luntz, Assessment of Damages for Personal Injury and Death, 4th edition, Butterworths at paras 11.6.1 and following; Cairns, Australian Civil Procedure, 5th edition, Lawbook Co. at pp 337-338; and the authorities cited in those passages. A stay will be granted only if the refusal is unreasonable.

13. On 4 February 2009 the plaintiff’s solicitors wrote to the defendant’s solicitors referring to the assertion by the latter that Dr Waters, as child or paediatric psychiatrist, was not qualified or experienced to assess and report on an adolescent of fifteen. They said that they were seeking medical advice. If the advice confirmed the assertion by the plaintiff’s solicitors, they anticipated obtaining instructions that the plaintiff would attend upon on Dr Quadrio. They asked that the plaintiff’s solicitors provide them with a curriculum vitae and outline of experience and qualifications of both Dr Waters and Dr Quadrio, and written confirmation from Dr Waters that he was not or did not feel sufficiently qualified or experienced to assess and report on a fifteen-year-old adolescent. They confirmed that the plaintiff had no objection to seeing Dr Waters for re-examination.

14. Perhaps provocatively, the plaintiff’s solicitors contacted Dr Waters, initially by telephone and subsequently by letter, asking whether in his opinion he was sufficiently qualified, competent and experienced to assess and report upon the plaintiff now that she was fifteen. The solicitors sent him a copy of an article by Professor PD McGorry, Professor of Youth Mental Health at the University of Melbourne, published in the Medical Journal of Australia in October 2007, in which the professor made reference to a developing sub-speciality of child psychiatry. The professor was a little critical of an attempt to create a broader field of child and adolescent psychiatry, stating that a qualitatively different clinical approach was required for adolescents and young people. He quoted a British psychiatrist who argued “that the age of fourteen years is the best demarcation zone”. The professor described adolescent or youth psychiatry as at best an embryonic sub-specialty. The focus of the article appeared to me to be upon young people with mental disorders including psychoses and personality disorders, rather than brain injury victims. Dr Waters made the same point in his letter. Dr Waters strongly expressed the view that he was appropriately qualified and experienced to assess and report upon adolescents as well as younger children. He made the point that he had been foundation Professor of Child and Adolescent Psychiatry at the University of New South Wales between 1986 and 1992.

15. The plaintiff’s solicitors, somewhat extraordinarily having regard to the relatively minor significance of the interlocutory point at issue, then qualified another psychiatrist, Dr Patricia Jungfer of Sydney, to advise “whether or not there is any reasonable and necessary prohibition on a child or paediatric psychiatrist reviewing and assessing a fifteen-year-old girl and whether or not, as the defendant CTP insurer alleges, it is more appropriate, reasonable and necessary that she be assessed by a psychiatrist specialising in adolescent and/or adult psychiatry”. Dr Jungfer reported on 10 February. She was provided with all of the reports in the possession of the plaintiff’s solicitors by treating doctors and doctors engaged to provide medico-legal reports, and even the Canberra Hospital and Sydney Children’s Hospital clinical notes. Her opinion was that there was no reason why the plaintiff could not be reassessed by a child or paediatric psychiatrist although she was older than fourteen years of age.

16. The approach by the plaintiff’s solicitors to Dr Waters caused predictable outrage in the defendant’s camp. It is enough for me to say, for present purposes, that I can see nothing professionally or ethically wrong about the approach, except for the fact that in their letter to Dr Waters of 6 February they did not mention the fact that he had previously seen and reported on the plaintiff at the request of the defendant’s solicitors. No harm was done: Dr Waters quickly realised that he had previously seen the patient for the other side.

17. On 11 February 2009, shortly before the hearing of the application, the defendant’s solicitors wrote to the plaintiff’s solicitors saying that their position was not, or perhaps was no longer, that Dr Waters was unqualified to assess and report on the plaintiff. Their position was:

1. The defendant is entitled to determine by what doctors and with what specialties the plaintiff is assessed on its behalf for the proper preparation of its case, subject to the request not being unreasonable.

2. The defendant is not required to give any reason for its choice of doctors, but to facilitate the plaintiff’s cooperation has advised that it intends to have the plaintiff assessed by an adolescent or adult psychiatrist (the plaintiff no longer being a child).

3. It is not the defendant’s contention that Dr Waters is unqualified. The defendant, however, is entitled from time to time to appoint specialists it considers most appropriate to the issues in the case or which are likely to arise.

18. This is in contrast to the reason given by the solicitor with the conduct of the matter on behalf of the defendant, Ms Hayes, in her affidavit of 2 December 2008 in which she said:

13. In my opinion, based on my experience as a senior solicitor, I consider it is necessary for the proper preparation of the defendant’s case to have the plaintiff further assessed by an appropriately [qualified] specialist psychiatrist. In my opinion it is appropriate for the plaintiff to be assessed by a psychiatrist specialising in adolescent or adult psychiatry as she has now outgrown assessment by a child psychiatrist and I refer to an article by Professor McGorry in which age 14 is posited as the maximum age for child psychiatric services . . .

19. It seems to me that the solicitors on both sides in this case have allowed their emotions to override their judgment, and to overlook the provisions of rule 21, which I think is worth setting out in full:

21. Purpose of ch 2 etc

(1) The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.

(2) Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving—

(a) the just resolution of the real issues in the proceedings; and

(b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(3) The parties to a civil proceeding must help the court to achieve the objectives.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

20. The plaintiff’s solicitors have made it clear that their instructions, based on medical advice, are not to set the action down for hearing until the plaintiff has passed the puberty growth stage, her condition has stabilised and her case can be properly determined. The plaintiff is still only fifteen and it seems unlikely that the action will go to trial for another two or three years at least.

21. A great deal of time, effort and cost has been expended on both sides on what is really a peripheral issue.

22. It should be stated clearly that a defendant does not have an unfettered right to subject a plaintiff to a multiplicity of medical examination and assessments. Section 194 of the Road Transport (General) Act makes this reasonably clear: the purpose of the examination is “to find out the nature and extent of the bodily injury”. The Court in its inherent jurisdiction will take this a little further, to ensure that a defendant is adequately informed of the case he, she or it is required to meet, and to meet that case. There is a balancing act involved, because a medical examination will often, perhaps usually, involve a physical examination which the plaintiff may not want to undergo and which in the absence of consent would amount to an assault. Medical examinations are an imposition on a plaintiff in terms of time and inconvenience.

23. In the present case, whilst the plaintiff primarily suffered severe physical injuries, there are psychological or psychiatric matters included in the particulars of injuries and of disabilities, and, although it does not seem that the plaintiff has been treated by a psychiatrist or that her solicitors have qualified a psychiatrist (other than Dr Jungfer for the present application), it is clearly reasonable that the defendant be permitted a psychiatric assessment and opinion. So much is not in contention.

24. However, I take account of the fact that the plaintiff is a child, and that each additional medical appointment is likely to be a difficult and negative experience for her and for her parents. Particularly in the case of a child, the Court can be expected to prefer a re-examination by a psychiatrist who has already seen the plaintiff, rather than an examination by a different psychiatrist.

25. In the present case, no compelling reason for the use of Dr Quadrio rather than Dr Waters has been given. The reason initially given by the plaintiff’s solicitor has not withstood scrutiny, and I am left wondering whether there is now some element of metaphorical flexing of muscles by individual solicitors on both sides.

26. I should comment on another aspect of this application. The principal relief sought by the defendant is in the form of an order or direction that the plaintiff attend a particular examination. It is apparent from the terms of section 194 of the Road Transport (General) Act and the authorities in relation to the inherent jurisdiction of the Court that the appropriate relief where a plaintiff unreasonably fails or refuses to attend a medical appointment is an order staying the action until he or she does so, or perhaps in an egregious case staying the action permanently. The Court will not generally direct a plaintiff to attend a medical examination. The ultimate sanction for breach of such an order would be punishment for contempt of court: it would be a rare case where a court would regard such an order, leading to such consequences, as justified.

27. Whilst there may be an argument that the plaintiff should not be required to be subjected to a further psychiatric assessment now, probably two or three years before hearing, there does not seem to be any issue between the parties about this and I have the impression that if the defendant’s solicitors make an appointment for review by Dr Waters, the plaintiff’s solicitors and parents will ensure that so far as possible she keeps the appointment.

28. For those reasons the application fails and will be dismissed with costs. The recoverable costs are not to include the cost of qualifying and obtaining the opinion of Dr Jungfer, which I see as an expense unnecessarily incurred in the general context of the issue arising for determination on this application.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 20 March 2009

Counsel for the plaintiff: Mr SR Hausfeld

Solicitors for the plaintiff: Keddies Lawyers by their Canberra agents Blumers Personal Injury Lawyers

Counsel for the defendant: Ms VM Heath

Solicitors for the defendant: Sparke Helmore

Date of hearing: 13 February 2009

Date of judgment: 20 March 2009