Abstract

Considerations in excercise of discretion to order a medical exmination

Whether estoppel can arise from an Interlocutory order

Considerations in exercise of discretion to grant leave fordirect actio against insurer.

 

Article

Order for medical examination

Under the Uniform Civil Procedure Rules 2005 (“UCPR”), Part 23, a.court may order a party to submit to examination by a specified medical expert at a specified time and place,and if an order is made, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.

The Court’s power is discretionary and is to be exercised judicially, having regard to the factors relevant to the exercise of the discretion in the particular case: KF by her tutor RF v Royal Alexandra Hospital for Children [2010] NSWSC 891 and the discretion is to be exercised in accordance with Civil Procedure Act 2005 (“CPA”): Rowlands v State of New South Wales (2009) 74 NSWLY 715; [2009] NSWCA 136 A defendant that has been sued in an action by a plaintiff who claims some mental or physical impairment or medical condition, is entitled to take reasonable steps, including the use of the UCPR, r 23.4 powers to ensure that the issues that may bear upon the determination of the proceedings are assessed by independent expert evidence, so that the trial judge is in a position to determine the real issues in dispute: Royal Alexandra Hospital at [46]. Provided the examination is sought for a legitimate purpose and the evidence is likely to be material to an issue in dispute, the order should ordinarily be made: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150.

Provided a medical examination is undertaken for a purpose relating to a matter in issue in the proceedings, there is no objection to the conduct of the examination that it may also incidentally be used to challenge a plaintiff’s credibility. The critical question is whether they satisfy the test that they go directly to a matter in issue. Delay to the underlying proceeding is relevanrt but not decisive to the exercise of the discretion: Harrod v MetLife Insurance Limited [2019] NSWSC 28.

Estoppel

An Interlocutory determination does not create estoppels. A consent order does not found any estoppel But a party must ordinarily abide its outcome unless there is a change of circumstances, including the discovery ofnew relevant information: Harrod v MetLife Insurance Limited [2019] NSWSC 28.

Direct Action

The Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) provides that, subject to the Act, a claimant may recover from an insured’s insurer in proceedings before a court the amount of the insured liability to the claimant, limited to the amount of indemnity, if any, payable pursuant to the contract of insurance in respect of the insured’s liability to the claimant. In such proceedings, the insurer stands in the place of the insured as if the proceedings were proceedings to recover damages, compensation or costs from the insured, and the parties have the same rights and liabilities, and the court has the same powers, as if the proceedings were proceedings brought against the insured. It does not apply to a re-insurer. The remedy is available to a claimant organisation that has issued a cross-claim. Proceedings,  may not be brought, or continued except by leave of the court in which the proceedings are to be, or have been, commenced. Application may be. made before or after proceedings have been commenced. Leave must be refused if the insurer can establish that it is entitled to disclaim liability, as to which it bears the onus of proof. As to whether it is entitled to do so, the principles are stated in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125; Zaki v Better Buildings Constructions Pty Limited [2017] NSWSC 1522 [28]. The test is one of arguability as to the existence of cover: Mrdalj v Allianz Australia Insurance Limited [2019] NSWSC 101