Luck v Lusty EMS Pty Ltd [2008] QSC 146

Case Name:      Luck v Lusty EMS Pty Ltd [2008] QSC 146
Court:                 Brisbane Supreme Court
Judge:                 Byrne SJA
Hearing Date:  7 July 2008

Whether a party (in this case the Defendant Applicant) was entitled to have the Plaintiff undergo medical examination post compulsory conference – whether there is an implied constraint on such an examination because the Section 37 PIPA Certificate of Readiness was signed.

The legislation considered: Sections 25 (equivalent to Section 46(a) MAIA) and 37 (equivalent to Section 51B(6) of MAIA) of the Personal Injuries Proceedings Act 2002

Background Facts

The parties participated in an unsuccessful compulsory conference.

The Defendant Applicant sought to invoke Section 25 of PIPA (Section 46A MAIA) or else UCPR 429G.

The application was resisted on the basis that the Plaintiff’s obligation to submit to a Section 25 PIPA examination had ceased because the Defendant’s solicitors had signed a Certificate of Readiness as required by Section 37 of PIPA.

Section 37(2)(c) of PIPA requires that the Certificate of Readiness state that “medical or other expert reports have been obtained from all the persons the party proposes to call as expert witnesses at the trial”.

His Honour weighed up:

  • On the one hand the argument that Section 37 implied the effect that once a Certificate of Readiness has been signed no order can be made for a medical examination pursuant to Section 25 PIPA request (or once a claim is litigated under Section UCPR 429G) as this would tend to ensure that decisions made by the parties about MFO’s at CC are informed. It would reduce a risk of prejudice through rejecting an offer that subsequently proved to be reasonable after further evidence had changed the completion of the case, and it would facilitate expedition of litigation because the issues would have been usually narrowed through the pre-trial procedure;
  • On the other hand such an interpretation could also perpetuate injustices because there might be an innocent but mistaken execution of a certificate of readiness for trial through a solicitors’ belated appreciation through Counsel’s advice or other sources that a particular type of specialist practitioner’s view should have been obtained or a doctor who has supplied a report might not be available to testify at court.

His Honour also noted the effect of Section 32(2) of PIPA in relation to the parties ongoing disclosure obligations and that if a party fails to disclose a document “...then the document cannot be used by the party in a subsequent court proceeding based on the claim.... unless the court orders otherwise”.

His Honour also noted that there was no express inhibition on information gathering after a Certificate of Readiness was signed.

As such His Honour ordered that the Claimant undergo a medical examination.

Practical significance of this claim

A Plaintiff (noting with satisfaction that in this case the Defendant was the successful applicant) can be required to undergo further medical examination in circumstances where a Certificate of Readiness has been signed, and a compulsory conference has failed.

Mark Edwards
Legal Practitioner Director
Bray Lawyers