Bryan v Weiss, Nominal Defendant & Suncorp Insurance & Finance [1993] QDC 523

IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND Plaint No. 3019 of 1992 BETWEEN: COLIN PETER ANDREW BRYAN Plaintiff AND: SONIA MARIA WEISS First Defendant THE NOMINAL DEFENDANT (QUEENSLAND) Second Defendant SUNCORP INSURANCE AND FINANCE Defendant by Election REASONS FOR JUDGMENT - SHANAHAN DCJ Delivered the day of October 1993 This is an application under s. 4C of the Motor Vehicles Insurance Act that the plaintiff submit to certain medical examinations. On 6th August 1993 the solicitors for the defendant by election wrote to the solicitors for the plaintiff seeking that the plaintiff submit to examinations by Dr William Maguire and Dr Raymond James. The defendant by election undertook to pay all reasonable costs associated with the examination and undertook to provide the plaintiff with a copy of the reports. The plaintiff's expenses and convenience of course would be ensured. -- 1 of 4 -- / 2 The solicitors for the plaintiff replied in a letter of 12 August 1993. The material part of the letter is as follows:- "We will recommend to our client to be independently examined by Dr Maguire and Dr James on the following terms and conditions:- (1) You undertake to pay for the cost of the reports; (2) You undertake to pay for our clients reasonable costs of attending the examination; (3) You undertake to provide us with copies of the medical reports when you are in receipt of the same; (4) You undertake to provide us with copies of your letters of instruction to the examining doctors; (5) Any further instruction to the examining doctors or any other doctor pertaining to the medical reports be in writing; (6) You allow us to seek the appointments with the examining doctors for the convenience of our client." Paragraphs 4 and 5 were contentious. It has been agreed that the defendant by election will provide copies of those letters referred to in paragraph 4 at the same time as providing the reports. The only matter in contention before me is paragraph 5 that any further instruction to the examining doctors or any other doctor pertaining to the medical reports be in writing. The attitude of the plaintiff is that the essential dispute in this matter that the defendant by election does not wish to disclose copies of letters of instructions to the examining doctors. The solicitor for the plaintiff says in his experience there is often a dispute between the doctors who have examined on behalf of the plaintiff's solicitors and the doctors who have examined on behalf of the defendant by election's solicitors. -- 2 of 4 -- 3 In his experience it is of great assistance when considering different doctor's opinion to know the basis on which the doctor examining the plaintiff on behalf of the defendant by election's solicitors has reached a particular conclusion and he is assisted by perusing the material which is provided by the examining doctor. Counsel for the defendant by election says that this condition which the plaintiff seeks to impose is quite unreasonable. By s.4C I can impose such conditions as I deem just. Counsel submitted that it is quite clear on the authorities that in the usual case communications between a solicitor and a witness whether an expert witness or a lay witness are privileged. She conceded that by agreeing to provide the letter of instructions (referred to in paragraph 4) the defendant by election has agreed to provide something which would be otherwise privileged but that can be distinguished in that it is just setting out the facts on which the defendant by election assumes the opinion will be based. What this condition comes down to is that after the report has been received the defendant by election's solicitors are not going to be able to confer with its expert medical witnesses except in circumstances where the plaintiff's solicitors are in effect privy to those communications. It is really seeking to give the plaintiff an unfair advantage. He will know what has gone on between the defendant by election's solicitors and the doctors but the defendant by election won't know what's gone on between the plaintiff's solicitors and the doctors that he has chosen. It was also submitted that even in the context of the -- 3 of 4 -- 4 disclosure requirements of R.149A it is quite premature. It is also submitted that there is no standard practice that I should take note of. I am not satisfied on the material before me that this is a standard practice. In Saini v. Freeman No. 2610 of 1992 Robin DCJ (unreported), His Honour said:- "The plaintiff is, it seems to be conceded, entitled to make a choice among a panel of psychiatrists whose names are submitted to have her convenience respected in fixing the time of examination. The plaintiff is obviously entitled to a copy of any resultant report and, in my view, to the material which the examining doctor is supplied with in giving the report. Although R.149A of the rules may well entitle the plaintiff to copies of following reports, perhaps from completely different doctors, I do not think that doing what is just under s. 4C requires that the plaintiff have that material. I consider the plaintiff is entitled to material which is provided to the examining doctors for the purposes of giving his report including instructions given to the doctor." His Honour also said:- "If there is anything to be revealed in the Rule 149A I would assume that this will be revealed in due course." I have read the decision of His Honour Judge McGuire in Seib v Suncorp Insurance and Finance. I have read the other authorities referred to by counsel. I take the view that it is premature to attempt to impose a condition of this type in an application of this nature. It may well be that all this material in question has to be disclosed later on under R.149A. I am of the opinion that it is not "just" that I should impose such a condition in an application under s.4C in this action. I order -- 4 of 4 --