Campbell v Hansen [2008] QDC 138

DISTRICT COURT OF QUEENSLAND CITATION: Campbell v Hansen [2008] QDC 138 PARTIES: WAYNE MICHAEL CAMPBELL (Applicant) v ALLAN JOHN HANSEN (Respondent) FILE NO/S: D116 of 2008 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Townsville DELIVERED ON: 23 May 2008 DELIVERED AT: Townsville HEARING DATE: 12 May 2008 JUDGE: Martin SC DCJ ORDER: 1. The respondent submit to an examination by Dr. Chalk, psychiatrist, within 3 months of the date of this order; 2. The respondent pay the applicant’s costs of this application on the standard basis. CATCHWORDS: Gray v Hopcroft & Anor [2000] QCA 144. Burgess v Australian Associated Motor Insurers Ltd [2006] QSC 331 (20 October 2006). Personal Injuries Proceedings Act 2002 COUNSEL: Mr. Hockings for the Applicant. Mr. Houston for the Respondent. SOLICITORS: Purcell Taylor Lawyers for the Applicant. The Brad Robins Legal Centre for the Respondent. -- 1 of 10 -- 2 [1] The applicant seeks an order that the respondent submit to a personal examination by Dr Chalk, psychiatrist, pursuant to s 25 of the Personal Injuries Proceedings Act 2002 (“the Act”). [2] The respondent had served a notice of claim pursuant to the Act on the applicant claiming damages for unlawful assault and wounding alleged to have occurred on 14 May 2005. The claim and statement of claim was filed on 6 May 2008. Part of the respondent’s claim is for damages for psychological problems alleged to have arisen from the incident. [3] In support of this part of the claim, the respondent provided to the applicant a report dated 6 September 2007 from Mr Fraser De Groot, psychotherapist of Townsville. [4] The respondent is currently seeking only quite a modest award of damages relative to the alleged psychological problems. [5] By letter dated 15 November 2007, Melody Deanna Cornish, a member of the applicant’s firm of solicitors, wrote to the respondent’s solicitors advising that the applicant was requesting that the respondent undergo an examination by a psychiatrist to be chosen by the respondent from a panel of three psychiatrists nominated in that letter. This letter also noted that the applicant would be responsible for the costs of the examination and costs of travel to attend upon the psychiatrist.1 [6] By letter dated 20 November 2007, the respondent’s solicitors advised that the respondent preferred Dr Chalk of those nominated by the applicant. However, the respondent’s solicitors advised that the respondent would only agree to attend upon a specialist in Brisbane if the applicant agreed to pay the respondent’s expenses, including loss of income at the rate of $5,000 per day. In the alternative, the respondent’s solicitors advised that the respondent would be willing to attend upon a specialist locally, should the applicant nominate a local panel, and that the respondent would attend upon Dr Chalk if he travelled to Townsville for the examination.2 1 Exhibit “MDC3”. 2 “MDC4”. -- 2 of 10 -- 3 [7] By letter dated 26 November 2007, the applicant’s solicitors advised that instructions would be sought from the applicant in relation to bringing an application to court for directions. This letter also requested particulars of the tasks which the respondent would be unable to carry out (by attending Dr Chalk in Brisbane) which would attract a loss of $5,000 per day.3 [8] By letter dated 18 December 2007, the respondent’s solicitors advised that the respondent’s profit and loss statement for the business “Hansen Constructions NQ” confirmed that this business made a net profit of $709,648.95 for October 2007. The letter stated that this was only one stream of the respondent’s business activities and that his loss could well exceed $5,000 per day and that the respondent’s actual loss could exceed $25,000 per day.4 [9] By letter dated 27 February 2008, the applicant’s solicitors advised that a loss of income claim was not open and requested the respondent’s solicitors to confirm that the respondent would attend upon Dr Chalk in Brisbane.5 [10] By letter dated 28 February 2008, the respondent’s solicitors advised that they did not agree with the applicant’s solicitors’ interpretation of s 25(2) of the Personal Injuries Proceedings Act. In this letter the respondent’s solicitors advised that in light of the applicant’s reluctance to pay the nominated daily rate of loss of income, the respondent would be willing to reduce the daily rate to $2,500 in order to resolve the matter.6 [11] By letter dated 19 March 2008, the applicant’s solicitors confirmed that the applicant would not agree to pay any alleged loss of income relating to the independent medico-legal examination. This letter requested confirmation that the respondent would attend upon Dr Chalk in Brisbane. By letter dated 25 March 2008, the respondent’s solicitors replied, pointing out that earlier correspondence had made the respondent’s position clear and expressed the view that the only reasonable alternative was for the applicant’s solicitors to arrange for a mutually suitable time for Dr Chalk to examine the respondent in Townsville.7 3 “MDC5”. 4 “MDC6”. 5 “MDC8”. 6 “MDC9”. 7 “MDC10”. -- 3 of 10 -- 4 [12] In the respondent’s affidavit sworn 9 May 2008, he confirmed the advices and instructions he had given to his solicitors as referred to in the correspondence outlined above. In addition, the respondent set out, inter alia, the following: • He estimated that the combined turnover of all of his business interests in 2008 would be approximately $25 million, of which $10 million would be profit (paragraph 6); • The income which he receives from his business interests is as a direct result of his hard-working nature and constant availability; • He is required to be available to run all of the company interests, and as a result he is constantly contacted on a daily basis and required to attend job sites and meetings in order to coordinate all business projects; • “It will cause me inconvenience and loss of income for me to travel to Brisbane”; • “If I am required to travel to Brisbane and be personally away from my business interests in Townsville a full day or overnight, I would be unable to carry out responsibilities that are specifically mine”; • For the past five years he has taken annual leave only during the wet season “as this is predominantly the most convenient time for me to be away from Townsville”; • His hours of work are 6:00 am to approximately 6:30 pm Monday to Saturday; • “In an attempt to resolve the issue I instructed my solicitors that I would agree to attending upon a specialist in Brisbane if the applicant agreed to pay my expenses, including loss of income at the further reduced daily rate of $2,500”. [13] The respondent’s affidavit also sets out his responsibilities and duties in respect of seven business entities. [14] The affidavit of Nikki Dawson, a solicitor in the employ of the solicitors for the respondent, sworn 9 May 2008, stated, inter alia, that Ms Dawson had spoken to Dr Chalk’s practice manager and that the following information was given by the practice manager to Ms Dawson: -- 4 of 10 -- 5 • Dr Chalk’s first available appointment for a medico-legal consultation was mid June (2008); • Dr Chalk’s usual fees (for such a consultation) are approximately $2,200 to $2,500; • Dr Chalk does travel outside of Brisbane to do medico-legal reports and he recently travelled to Cairns to see six or seven patients in the one day; • It was expected that for Dr Chalk to travel to Townsville to examine one patient and to do a report, the fee would be approximately $6,500. [15] Ms Dawson also provided a subsequent affidavit. The effect of Ms Dawson’s evidence in relation to the availability of local psychiatrists seems to be that there are two psychiatrists in private practice in Townsville to provide medico-legal reports. The first available appointment date for one of the psychiatrists is at the end of August 2008 and, in respect of the other psychiatrist, the first available appointment date is after September 2008. Apart from these two psychiatrists, there are psychiatrists available through the mental health service at the Townsville Hospital and appointments in respect of these psychiatrists are dependent upon a waiting list. The respondent’s arguments [16] Section 25(2) and (3) of the Act relevantly provide as follows: “(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 complainant from a panel of at least three doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request; … -- 5 of 10 -- 6 (3) However a claimant is not obliged to undergo an examination or assessment under this section if it is unreasonable or unnecessarily repetitious”. [17] (i) The first argument advanced on behalf of the respondent was that the phrase “at the respondent’s expense” in s 25(2) of the Act requires the applicant to pay for the loss of wages or loss of income suffered by the respondent as a consequence of attending a medical examination. Mr Houston, counsel for the respondent, argued that “expense” pertained to all expenses reasonably flowing from the attendance at a medical examination and that the respondent is entitled to refuse to comply with the applicant’s request to attend the examination by Dr Chalk in Brisbane unless and until the applicant agrees to reimburse the respondent for his loss of income resulting from attending the examination. With respect, I reject this argument. “Expense” is not defined in the Act. I accept the argument by Mr Hockings, on behalf of the applicant, that the word is to be given its plain meaning. In my view an “expense” is an expenditure or cost incurred. Subject to s 25(3) of the Act, s 25(2) makes it mandatory for a claimant to undergo a medical examination and the provision makes it mandatory that the medical examination be at a respondent’s expense. In my view, in context, the clear meaning of the provision is that a respondent must pay for any expenditures associated with, or costs incurred as a result of, a claimant undergoing the medical examination.8 A claimant’s loss of wage or loss of income consequent upon attending for the medical examination is not an expenditure associated with, or a cost incurred in, attending the medical examination. Rather, as the words express, they are losses suffered by a claimant. Of course, in my view, if it were necessary for a claimant to pay for another person to cover a claimant’s work duties whilst the claimant was attending the medical examination, that payment would be an “expense” within the meaning of the provision. 8 See also Burgess v Australian Associated Motor Insurers Ltd [2006] QSC 331 (20 October 2006). -- 6 of 10 -- 7 (ii) The second argument advanced on behalf of the respondent was that requiring the respondent to undergo an examination in Brisbane, is unreasonable and, pursuant to s 25(3), the respondent is not obliged to undergo such examination. It was argued on behalf of the respondent that unreasonableness arose on three bases: (a) It is unreasonable to require the respondent to travel to Brisbane without the applicant paying for the respondent’s loss of income caused by his being absent from his business interests in Townsville; (b) In all the circumstances, it is unreasonable for the examination requested by the applicant to take place in Brisbane rather than Townsville; and (c) The obligation to undergo an examination by a psychiatrist who practises in Brisbane is unreasonable in circumstances in which psychiatrists are available in Townsville to perform the examination and reporting. In relation to (a) above, the respondent has not put forward any evidence demonstrating that the respondent, or his company, would suffer a loss of income should the respondent travel to Brisbane for the examination. The respondent does not assert that he receives a set daily income. The respondent does not assert that he receives a wage or salary of any description. The contents of the respondent’s affidavit, especially paragraph 6, suggest that the respondent’s income is not founded upon a wage but that it is founded solely on the profit of his business interests. It seems plain that, given his estimated turnover of approximately $25 million for 2008 and estimated profit of $10 million for the year, the respondent has arrived at an estimated daily value of his work (of well in excess of $5,000 and, perhaps, in excess of $25,000). There is no evidence to -- 7 of 10 -- 8 demonstrate that the respondent’s absence from Townsville for a day would ultimately sound in a loss of income to the respondent or any of his business entities. In relation to (b) above, the circumstances upon which the respondent relied seem to be as follows: • The respondent’s availability in Townsville to attend to his business interests is constantly required; • Dr Chalk does travel outside of Brisbane for medico-legal appointments and the additional cost to the applicant in having Dr Chalk examine the respondent in Townsville, instead of Brisbane, would be approximately $4,000, which amount would be claimable as part of the applicant’s standard costs if he were successful in defending the respondent’s claim. In relation to this argument, I do not accept the respondent’s evidence to the effect that he needs to be constantly available in Townsville to run his business interests. Despite a heavy personal involvement in his business interests, as a matter of commonsense, the respondent would be able to make arrangements to properly accommodate his absence from Townsville for a day, especially if given reasonable time to do so. In any event, the respondent’s conduct discloses that he does not regard himself as indispensable for a day. The respondent has repeatedly stated a preparedness to travel to Brisbane to attend upon Dr Chalk if the applicant agreed to pay him $5,000 per day, and later, $2,500 per day. There is no suggestion that such payments would be to off-set the respondent paying for another person to cover the respondent’s work-load. Such conduct can only be viewed as an acknowledgment by the respondent that he is not indispensable in respect of work commitments in Townsville for a day. In relation to the circumstance that Dr Chalk does travel outside of Brisbane, it must be noted that there is no evidence as to when Dr Chalk -- 8 of 10 -- 9 may have a day, completely free of appointments or court commitments or other commitments, which would enable him to travel to Townsville for the day. On the other hand, the evidence of Ms Dawson discloses that, as at 6 May 2008, Dr Chalk had an appointment available in Brisbane in mid June. The additional cost to the applicant in Dr Chalk travelling to Townsville is significant. It could be as much as three times what Dr Chalk would charge if he examined the respondent in Brisbane. In my view, the applicant’s chance of recouping these fees upon the applicant being successful in the litigation does not markedly ameliorate the significance of the applicant having to outlay these additional fees. In relation to (c) above, “the defendants must have the right to choose those expert witnesses to examine a plaintiff in whose forensic ability and expertise they have confidence”.9 Whilst the respondent’s claim for damages for psychological problems is modest, the applicant is entitled to defend any claim as best he can and, therefore, if he believes, no doubt on advice, that a panel comprising the three Brisbane specialists is warranted, he is entitled to so choose. [18] I accept that the respondent having to attend upon Dr Chalk in Brisbane will cause the respondent inconvenience, including, it seems, by the respondent having to make business arrangements to accommodate his absence from Townsville. However, there seems no reason why an appointment with Dr Chalk cannot be made which ensures that the respondent travels to Brisbane and return in the one day. I assume that it is intended that the respondent travel by air to and from Brisbane for the examination. I take notice of the fact that there are numerous flights between Brisbane and Townsville each day. Having concluded that the respondent is not indispensable and that arrangements can be made to accommodate his absence from Townsville for a day, in my view, the added inconvenience in travelling to Brisbane for an examination, as opposed to an examination in Townsville, is not significant. In all the circumstances, I do not accept that the medical examination requested by the applicant is unreasonable. 9 Gray v Hopcroft & Anor [2000] QCA 144, para 16. -- 9 of 10 -- 10 [19] Whilst the applicant has sought an order that the respondent submit to an examination by Dr Chalk, Mr Houston submitted that, in these circumstances, the appropriate application is for a stay of the further prosecution of the litigation until the respondent is examined by Dr Chalk. This submission seemed correct. Mr Houston took no objection to my approaching this matter as a stay application. In the absence of an argument to the contrary, I erroneously concluded that Mr. Hockings was in agreement with this submission. I was corrected by Mr. Hockings on 20 May 2008 when I announced that I proposed staying the litigation. I then requested further brief written submissions. [20] Mr. Hockings relies upon s. 35 of the Act. This provision is as follows: (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. [21] On behalf of the respondent, the argument that a stay of the litigation is the appropriate order, is maintained. [22] In my view, a stay of the litigation would be the more practical relief for the applicant. That, of course, is no reason to refuse the order sought if the applicant is entitled to such an order. [23] I am satisfied that the respondent’s failure to comply with the applicant’s request for the respondent to undergo an examination by Dr. Chalk in Brisbane is a failure within the terms of s. 35(1) of the Act and that the applicant is entitled to the order sought. [24] I order that: - 1. The respondent submit to an examination by Dr. Chalk, psychiatrist, within 3 months of the date of this order; and 2. The respondent pay the applicant’s costs of this application on the standard basis. -- 10 of 10 --