Camacho v Walker & Anor [2005] QSC 154

SUPREME COURT OF QUEENSLAND CITATION: Camacho v Walker & Anor [2005] QSC 154 PARTIES: SANDRA CAMACHO (plaintiff) v BRIAN WALKER (first defendant) ALLIANZ AUSTRALIA INSURANCE LIMITED ABN 15 000 122 850 (second defendant) FILE NO/S: BS 8249 of 2004 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 3 June 2005 DELIVERED AT: Brisbane HEARING DATE: 1 April 2005 JUDGE: Philippides J ORDER: 1. Each party bear their own costs 2. No order as to costs CATCHWORDS: PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where application brought under s 46A of Motor Accident Insurance Act 1994 (Qld) for plaintiff to undergo an independent medical examination - where surgeon who performed initial examination no longer available – where plaintiff refused to undergo further examination – where matter subsequently resolved Motor Accident Insurance Act 1994 (Qld), s 46A Uniform Civil Procedure Rules 1999 (Qld), r 429 COUNSEL: J P Kimmins for the plaintiff R Treston for the first and second defendant SOLICITORS: Carew Lawyers for the plaintiff McInnes Wilson Lawyers for the first and second defendant [1] PHILIPPIDES J: The plaintiff brought an application for damages for personal injuries allegedly sustained when the vehicle being driven by the first defendant collided with her vehicle. The second defendant is the relevant insurer of the first defendant. It was alleged that the personal injuries sustained by the plaintiff included cervical injuries and depression. In their pleading, the defendants alleged that the plaintiff suffered a pre-existing recurring depressive illness and a pre- -- 1 of 3 -- 2 existing cervical spine injury which had been aggravated. In making those allegations, the defendants relied inter alia on a report of an orthopaedic surgeon, Dr Parsons, dated 16 May 2003, prepared as a result of examining the plaintiff. [2] On 23 March 2005, the second defendant brought an application pursuant to s 46A of the Motor Accident Insurance Act 1994 (Qld) seeking an order that the plaintiff attend an independent medical examination with an orthopaedic surgeon of the plaintiff’s choosing from a panel of at least three orthopaedic surgeons provided by the second defendant’s solicitors. [3] The defendants sought a further medical examination because the orthopaedic surgeon, Dr Parsons, who had previously examined the plaintiff, was no longer in practice and unable to perform a second medical examination for the purposes of preparing a supplementary report. In addition, it was said that Dr Parsons was unwilling to give evidence at the trial because of a heart condition; he had undergone open heart bypass surgery earlier in the year. The basis of the plaintiff’s refusal to undergo a further independent medical examination was that she had thought that the medical examination process had been completed and did not wish to attend for any further examination as “she found it depressing and upsetting”. [4] At the hearing of the application on 1 April 2005, the application was opposed on the following bases: (a) Part 5 Division 1 of the UCPR applied to the application and the defendants had not addressed the matter set out in rules 429 I and 429 K; (b) On 6 September 2004 the solicitors for the defendants had signed a certificate for readiness for the compulsory conference and trial and since that date there were no new developments which afforded a reason to order a further medical examination; (c) The evidence adduced by the defendants as to why Dr Parsons could not give evidence was insufficient; (d) The plaintiff had been extensively medically examined and did not wish to undergo any further medical examination; (e) It would be unfair to require the plaintiff to undergo further medical examination. [5] On the hearing of the application, I ordered that the application be adjourned so that further material such as a medical report could be put before the court as to Dr Parson’s situation. A further affidavit was filed on behalf of the defendants on 13 April 2005. The affidavit disclosed a report from Dr Carey, a cardiologist, dated 8 April 2005 which indicated that Dr Parsons had undergone coronary artery bypass grafting in January 2005. It stated: “Subsequent to that he has had recurrent chest pain and has found that stressful or anxiety-provoking situations result in a recurrence of chest pain and significant incapacity. As a result of this I have recommended that he not appear as an expert witness in the likelihood that cross examination may result in some degree of stress and possibly precipitate further angina. Tom’s condition is under regular review with his next appointment in three months. At this -- 2 of 3 -- 3 stage it is not possible to predict at what time he will be physically fit to attend court as an expert witness.” [6] The matter was thereafter resolved on the basis that the plaintiff agreed to undergo a further independent medical examination with an orthopaedic surgeon other than Dr Parsons and that the defendant agreed not to rely on the report of Dr Parsons for the purposes of the trial. The parties, however, were unable to resolve the question of costs. [7] Whilst the defendants ought to have supported their position concerning Dr Parsons with a medical certificate as was subsequently done, it is also relevant to note that the defendants’ application was resisted by the plaintiff on a number of grounds other than the issue of the sufficiency of the evidence concerning Dr Parsons’ inability to give evidence. Those grounds were not pursued given that the plaintiff ultimately agreed to undergo the further medical examination. [8] In the circumstances, I consider that the appropriate order in respect of the costs of the application is that each party bear their own costs and that there be no order as to costs. -- 3 of 3 --