High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"Shock, Musculo ligamentous sprain of the cervico-thoracic region, and some of the muscles of the shoulder girdle on the right side. The plaintiff takes pain killers every day. The plaintiff's pain has spread to the back and front of his shoulder, his upper arm and the front of his chest. The plaintiff is never pain free. The plaintiff's symptoms resulted in the development of depression. Reduced movements of the cervical flexion, extension, rotation and lateral flexion."

"We refer to yours of 6^th inst and regret to inform you the plaintiff will not be attending any examination by Mr X FRCS.

Mr X has been dismissive of every plaintiff that he has ever examined from this office and has in every case required access to the entirety of the Plaintiff's GP's notes and records, notwithstanding the fact that several High Court decisions have confirmed that he is not entitled to these. We therefore are not prepared to advise our client that he should submit to the inevitable belittling of his claim and the intrusive request for personal and private information. We are prepared to advise our client to attend for a medical examination by any Consultant Orthopaedic Surgeon in Northern Ireland. We consider this appropriate given that the plaintiff's medical evidence served in support of his claim is prepared by a Consultant Orthopaedic Surgeon and Mr X does not hold that qualification. We assume if you wish your medical evidence to carry the same weight as our own that you can see the sense of this proposal."

(a) submits herself (sic) for medical examination by Mr X FRCS, and

(b) pays any costs thrown away incurred (sic) by the defendant by reason of the plaintiff's non-attendance with Mr X. "

"It is now clearly established that , if the defendants in a personal injury case make a reasonable request for the plaintiff to be medically examined by a doctor whom the defendants have chosen, then the plaintiff should accede to such a request unless he has reasonable ground for objecting to that particular doctor."

"So what is the principle of the matter to be gleaned from those cases? In my judgment the court can order a stay if, in the words of Lord Denning MR in Edmeades' case ([1969] 2 All ER 127 at 129, [1969] 2 QB 67 at 71), 'the conduct of the plaintiff in refusing a reasonable request [for medical examination] is such as to prevent the just determination of the cause'. I think that those words contain the principle of the matter. We are, of course, in the realm of discretion. It is a matter for the discretion of the judge, exercised judicially on the facts of the case, whether or not a stay should be ordered. For myself, I find talk about 'onus of proof' in such a case inappropriate. There is, I think, clearly a general rule that he who seeks a stay of an action must satisfy the court that justice requires the imposition of a stay.

In the exercise of the discretion in this class of case, where a plaintiff has refused a medical examination, I think the court does have to recognise (and here I think Pickett's case is helpful) that in the balance there are, amongst many other factors, two fundamental rights which are cherished by the common law and to which attention has to be directed by the court. First, as mentioned in Pickett's case by Willmer and Donovan LJJ, and by Sachs LJ in Lane's case, there is the plaintiff's right to personal liberty. But on the other side there is an equally fundamental right—the defendant's right to defend himself in the litigation as he and his advisers think fit; and this is a right which includes the freedom to choose the witnesses that he will call. It is particularly important that a defendant should be able to choose his own expert witnesses, if the case be one in which expert testimony is significant.

With the initial approach in Pickett's case I find I have considerable sympathy; and I do not think it is an approach that has been discarded by these courts. A plaintiff is not to be regarded as acting unreasonably merely because he does not wish, or his advisers do not wish him, to be examined by a doctor chosen by the defendant. But, if a defendant insists on examination of the plaintiff by the doctor he, the defendant, has nominated, then the problem does arise: in what circumstances will the court order a stay unless the plaintiff yields?   

First, one has to look to the defendant's request and ask oneself the question: is it a reasonable request? The defendant is not to be regarded as making an unreasonable request merely because he wishes to have the plaintiff examined by a doctor unacceptable to the plaintiff. The decisive factor, therefore, becomes, as I think Lord Denning MR recognised in Edmeades Thames Board Mills Ltd, that of the interests of justice—of the 'just determination' of the particular case. I would add that it can only be the interests of justice that could require one or other of the parties to have to accept an infringement of a fundamental human right cherished by the common law. The plaintiff can only be compelled, albeit indirectly, to an infringement of his personal liberty if justice requires it. Similarly, the defendant can only be compelled to forgo the expert witness of his choice if justice requires it.   

And so in every case, as I see it, the particular facts of the case on which the discretion has to be exercised are all-important. The discretion cannot be exercised unless each party does expose the reasons for his action. I have already indicated that I do not regard this as a question of onus of proof. There is, in my judgment, a duty on each party in such a situation to provide the court with the necessary material known to him, so that the court, fully informed, can exercise its discretion properly. However, I would add this comment: that at the end of the day it must be for him who seeks the stay to show that, in the discretion of the court, it should be imposed.

Applying those principles, I think that the first question, as one turns to he facts of the case, which one has to ask is: was the defendants' request for the examination of the plaintiff by Dr X a reasonable request? I have no doubt that it was. Dr X is a distinguished consultant neurologist. The opinion of a consultant neurologist was needed in order that the defendants might properly prepare their case. Sometimes, of course, one would not have to go further, and one could, as, for instance, in Edmeades v Thames Board Mills Ltd, impose a stay merely because the reasonable request had been refused. But sometimes one has to go further and to consider the plaintiff's reasons for refusing the request; and the present case is, in my judgment, such a one.

Therefore the second question is: granted the reasonableness of the defendants' request, was the plaintiff's refusal of it unreasonable?

The test here must be related to the necessity, so far as the court can assist, of ensuring a 'just determination of the cause."

"One has to do one's best to extract from the decisions such principles as seem best to accord with reason and with practice and with fairness. The court clearly has inherent jurisdiction to order a stay when the justice of the case demands such a stay. There are not infrequent occasions when justice demands that the plaintiff should undergo medical examination by a doctor appointed on behalf of the defendants. There are circumstances in which refusal by the plaintiff to undergo such examination should in justice be met by the imposition of a stay. In order to determine what those circumstances are, it is necessary to bear in mind the competing considerations. On the one hand, any medical examination carried out on him on behalf of the defendants is, as has rightly been said, an invasion of the plaintiff's privacy and is not lightly to be enforced, even indirectly, by a stay of the action. On the other hand, the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.

Few problems arise if the plaintiff flatly declines to be examined by anybody. The real difficulty is when, as here, the defendants put forward the name of an experienced and well-qualified doctor who on the face of it appears to be unobjectionable but to whom the plaintiff and his advisers nevertheless object.
   Is it sufficient for the plaintiff to say: 'There are other experts available in this field of medicine and accordingly there is no necessity for me to be examined by this nominated doctor of yours. You can find someone else; and I decline to give you reasons for my objection'? I for my part think not. Providing the doctor is property qualified, the defendants are entitled to insist that he shall carry out the examination, unless it can be shown that such a course would in all the circumstances be unfair or unreasonable from the point of view of the plaintiff. What is unfair or unreasonable in the way of objection will, of course, depend necessarily on the facts of each individual case.   

It is a very serious matter to say of any properly qualified and experienced doctor that it would not be reasonable for him to carry out a medical examination, unless the ground of objection is personal to the particular plaintiff. If, on the other hand, the objection is to the doctor's skill or his probity or his anticipated behaviour at the examination, then a finding adverse to him might constitute in effect a bar to his examining any other person for the purpose of litigation. That sort of possibility would act as a serious disincentive to any doctor minded to undertake this sort of work, and would militate against the candour and forthrightness in reporting which are so valuable to any judge who has the difficult task of evaluating medical evidence at the hearing. Such allegations should be approached with great care."

"In my opinion it is wrong in principle that a doctor should be entitled whether by examination, cross-examination or otherwise to elicit information as to how an accident happened, that is, as to a matter of liability, from a man who has been sent to him for medical examination as to his injuries, that is as to a matter of damages and that the information so obtained should be used in evidence against that man through the mouth of the surgeon to the tribunal of trial. A plaintiff – or it may now well be a defendant – might be an uneducated man unable to look after his own interests; he might be overawed or perhaps even confused by the surroundings of the surgery or even by the presence of the doctor himself."

"We are in agreement with the views expressed by the learned judge in McClelland v Clyde Fuel Systems Ltd. that discovery should not be ordered under section 32 as a matter of course, and we also share his opinion about the undesirability of fishing expeditions for documents. We further consider that a party seeking discovery should have to make out a positive case, based on sufficient evidence and not on unsupported averments, that the respondent to the summons is likely to or have had in his possession, custody power documents which are relevant to an issue arising out of the plaintiffs claim "

"If such documents exist they may relate to many things, some relevant to the eye condition, some not, and unlike an application for discovery …the authority here sought is a blanket authority directed to a third party to produce all such documents however great or small their relevance and irrespective of what other information as to the plaintiff's health or other matter they may contain….I do not think a plaintiff should be asked to give such an authority. In my opinion it would be contrary to justice to do so."