Supreme Court allows appeal to stay proceedings until plaintiff consents to defendant's expert consulting treating doctors.

THE SUPREME COURT

Keane C.J.

Murray J.

Hardiman J.

69/03

BETWEEN

MICHAEL MCGRORY

PLAINTIFF/RESPONDENT

AND

ELECTRICITY SUPPLY BOARD

DEFENDANT/APPELLANT

JUDGMENT delivered the 24th day of July 2003, by Keane C.J.

In this case, the plaintiff claims damages for personal injuries which he alleges he sustained as a result of the negligence, breach of

duty and breach of statutory duty of the defendants while he was in their employment on the 29th November 1997. It is alleged on

his behalf that what is described as a “adjustable base and head jack” came free from a rope and struck the plaintiff on the head on

that occasion. It is claimed that an MRI examination revealed brain damage which would be permanent.

The plenary summons was issued on the 16th February 2001 and a statement of claim delivered on the 16th July 2001. On the 12th

July 2001, the solicitor for the defendants wrote to the solicitors for the plaintiff stating that they wished to have the plaintiff

examined by a consultant neurosurgeon, Mr. Christopher Pidgeon. They also asked for the name and address of the plaintiff’s surgeon

“with whom Mr. Pidgeon may now consult”. She confirmed that the defendants would be responsible for the cost of the examination

and any necessary expenses which the plaintiff might incur in attending. The plaintiff’s solicitors replied on the 26th July confirming

that they had no objection to his being medically examined by one of their experts, but stating that they did not have his instructions

to consent to the defendants’ doctor and their doctor discussing his case.

The defendants’ solicitor wrote again on the 19th October 2001 stating that they understood that the plaintiff had been under the

care of Dr. Norman Delanty, a consultant neurologist, and Dr. Veronica O’Keane, a consultant psychiatrist. They asked for

confirmation that Mr. Pidgeon could consult with Dr. Delanty and Dr. O’Keane “on the usual terms”. The plaintiff’s solicitor replied on

the 15th November reiterating their refusal to consent and adding that an exchange of medical reports could take place in the normal

way once the pleadings had closed. On the 11th January 2002, the defendant’s solicitor wrote stating that unless the plaintiff’s

solicitor confirmed by return that Mr. Pidgeon could consult with Dr. Delanty and Mr. Jack Phillips in relation to the accident, a motion

would be brought seeking an order compelling the plaintiff to consent to a joint medical examination. Thereafter, nothing seems to

have happened until the 21st November 2002, when the solicitors for the defendants brought a notice of motion seeking

“An order staying the proceedings herein until such time as the plaintiff consents to allowing his medical advisers to consult

with the defendants’ medical advisors.”

In her affidavit grounding that application, the plaintiff’s solicitor exhibited a letter from Mr. Pidgeon to her dated the 5th November

2002 in which he said

“As I believe there are significant functional factors in play in this case and as I have not had any access to x-ray and test

results, I require a joint consultation with Dr. Norman Delanty.”

In a further affidavit sworn on the 11th February 2003, the solicitor for the defendants exhibited a document prepared by the

Litigation Committee of the Law Society which stated inter alia that

“By custom and practice and, as a result of an agreement between the Law Society and the Irish Medical Organisation (IMO),

what had came to be known as the usual terms on which a plaintiff in a personal injury case, through their (sic) solicitor,

consents to a medical examination taking place by a doctor on behalf of the defendant, have come to be formulated as follows

…

2. The plaintiff’s doctor will attend at the medical examination by the doctor on behalf of the defendant, which will take

place at the consulting rooms of whichever doctor is agreed between them. This is one of the terms that is more

honoured in the breach than the observance. The usual procedure now is that the doctors communicate by telephone and the

plaintiff’s doctor furnishes his notes to the defendant’s doctor to enable the latter to prepare his medical report following his

examination of the plaintiff.”

The defendants’ solicitor had also written on the 11th January 2003 asking the plaintiff to make discovery on a voluntary basis of

“The plaintiff’s medical records prior to and subsequent to the date of this alleged accident i.e. 19th October 1999.”

The defendants’ solicitor stated that the plaintiff’s solicitor had not consented to make voluntary discovery of the documents in

question.

The defendants’ notice of motion was heard in the High Court (Johnson J.) on 13th January last. In an ex-tempore judgment, the

learned trial judge refused the relief sought in the motion, indicating that no authority had been cited to him permitting him to make

such an order. He said that, in due course, following the exchange of medical reports, the defendants would be allowed as much time

as they required to have the plaintiff properly assessed. From that judgment and order, the defendants have now appealed to this

court.

No defence has, as yet, been delivered by the defendants.

The parties were agreed that, while the practice of plaintiffs in personal injury actions being examined by a doctor on behalf of the

defendant, sometimes, although not invariably, with the plaintiff’s doctor present, was of long standing, there are no rules of court

dealing with the matter nor any authorities in this jurisdiction as to the precise legal status of the practice. A number of relevant

decisions of courts in England and Wales and Northern Ireland were, however, referred to by counsel and to these I now turn.

In McDowell –v- Strannix & Anor [1951] NI 57, where the plaintiff was claiming damages for personal injuries in a running down action,

the defendants’ advisers requested the plaintiff to submit to a medical examination before the defence was filed. The plaintiff’s

advisers refused to allow such examination, unless the defendants agreed that their medical adviser would not ask the plaintiff how

the accident had occurred, and would not give evidence at the trial of any statements made by the plaintiff relating to that issue.

Those terms were rejected by the defendants. In subsequent correspondence, the plaintiff’s solicitors qualified their original refusal

and said that they would agree to a medical examination provided that the defendants agreed that the evidence of the doctor would

be confined to the question of damages and that no evidence would be given of any statement made by the plaintiff to the doctor

relating to the issue of liability. The defendants’ solicitors refused to accept these conditions, and then moved to stay the

proceedings until the plaintiff should submit to a medical examination without any such terms being imposed. The motion was

dismissed by the High Court of Northern Ireland, Sheil J. being of the view that the terms proposed by the plaintiff were “proper and

reasonable”. In the result the learned judge did not have to come to any conclusion as to whether the court had jurisdiction to stay

the proceedings where a plaintiff simply refused to consent to a medical examination. However, in a later decision of Ross –v- Towey

Upholstery Ltd. [1962] NI 3, where the plaintiff declined to undergo a medical examination in a breach of contract case in which his

medical condition was in issue, the Northern Ireland Court of Appeal said that they were satisfied that the court had jurisdiction to

stay the action by virtue of the provisions of s. 27 of the Judicature (Ireland) Act, 1877, which enabled the High Court and the Court

of Appeal to stay proceedings in any cause or matter, if necessary for the purpose of justice.

A similar view was taken by the English Court of Appeal in Edmeades –v- Thames Board, [1969] 2 QB 68. That was a case in which,

after the plaintiff had been examined by a doctor on behalf of the defendants, a new complaint was advanced on behalf of the

plaintiff, i.e. that he suffered from osteoarthritis. The defendants wished at that stage to have the plaintiff examined by a specialist

who could deal with the osteoarthritis aspect and suggested the names of six doctors to conduct the examination from which the

plaintiff could make a choice. The plaintiff’s solicitors, however, refused to any examination being conducted other than by the original

doctor for the defendants. The Court of Appeal reversed the decision of the High Court judge that there was no jurisdiction to order a

stay in order to compel a plaintiff to submit to a medical examination. Lord Denning MR said

“This court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. It can, therefore, order a stay if

the conduct of the plaintiff in refusing a reasonable request is such as to prevent a just determination of the cause. The

question in this case is simply whether the request was reasonable or not.

I think that the request of the defendants was perfectly reasonable. They were faced with a new allegation which had not

been made in the statement of claim, an allegation of osteoarthritis. The defendants ought in all reason to have an

opportunity of considering it and being advised upon it. They would need it in order to assess the amount to pay into court so

as to dispose of the whole matter without coming to trial …”

In Dunne –v- British Coal Corporation [1993] ICR 601, the English Court of Appeal considered a related issue which is also of some

relevance to the present application. In that case, the defendants, who were the plaintiff’s employers, wished to have him medically

examined and said that its medical examiner wished to examine the plaintiff’s hospital records, the plaintiff’s general practitioner’s

notes and the defendants’ own medical officer’s notes to determine whether there had been any pre-existing problems. The plaintiff

consented to discovery of medical records relating to his neck, injuries to which were the subject of the action, but refused to agree

to anything more extensive. The Court of Appeal were of the view that, where the plaintiff unreasonably withheld his consent to the

production of relevant medical records to the defendants’ medical advisers, the court had jurisdiction to grant a stay. Stuart-Smith

LJ., said that, if these documents were not produced before the trial, he had no doubt that the defendants could issue a subpoena

duces tecum for their production at the trial and that there was no reason why they should not be produced at an earlier stage. He

referred to the following observations of Lord Mackay of Clashfern in O’Sullivan –v- Herdmans Ltd. [1987] 1 WLR 1047 –

“The interests of justice are … served by the promotion of settlements rather than the prolongation of litigation and by the

possibility of early, complete preparation for both parties to a trial rather than by obliging one party to delay its full

preparation until after the trial has actually started.”

The question as to whether a party to proceedings can prevent another party from interviewing an expert witness whom he has

retained as an adviser was considered by the English Court of Appeal in Harmony Shipping Co. –v- Saudi Europe [1979] 1 WLR 1381.

That was a somewhat unusual case in which an issue arose as to the authenticity of a particular document. A handwriting expert

retained by the plaintiffs with a view to establishing the authenticity of the document gave them certain advice and then, not

realising it was the same case, advised the defendants. The expert having informed the defendants, on discovering his mistake, that

he could no longer act in the matter on their behalf, they decided to subpoena him to give evidence on their behalf. The plaintiff then

issued proceedings against both the expert and the defendants seeking an injunction inter alia restraining the defendants in the main

proceedings from consulting with the expert or calling him as a witness. Lord Denning MR, in upholding the decision of the trial judge

that such an injunction should not be granted, made these trenchant observations:

“So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is

because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the

other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or

by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting

the facts from him and from calling him to give evidence or from issuing him with a subpoena.”

He went on to say that, while many communications between a solicitor and an expert witness would be protected by legal

professional privilege, subject to that qualification an expert witness fell into the same position as a witness of fact.

The question as to whether the principal of medical confidentiality requires a different approach was considered in a Canadian case of

Hay –v- University of Alberta [1991] 2 Med LR 204. Picard J. said

“I find that the right of the patient to confidentiality ceases when he puts his health in issue by claiming damages in a lawsuit;

the raison d’etre for confidentiality is gone. The right to confidentiality is then eclipsed by the right of those who face the

action to know the basis of the claim being advanced. The patient cannot use confidentiality to preclude the normal operation

of the legal process and the adversary system. While many possible evils such as tampering with a witness’s evidence can be

postulated, I believe a physician may be less vulnerable to this than other witnesses and that few, if any, in the legal

profession would stoop to such tactics.”

That passage was cited with approval in an English decision of A.B. & Ors –v- John Wyeth & Brothers [1996] 7 Med LR 300.

A similar approach was adopted by Buckley J. in another English case, Shaw –v- Skeet Aung Sooriakunaran [1996] 7 Med LR. That was

a medical negligence action in which the defendants wished to interview the plaintiff’s treating doctors following the disclosure of

hospital records. The plaintiff’s solicitors were prepared to release the treating doctors from their duty of confidentiality, but sought

to impose a condition, namely, that the plaintiff’s solicitor be present during the interviewing process. In the course of his judgment,

Buckley J. said that a plaintiff who sought to bring an action but, by his own conduct, prevented material evidence being obtained by

the other side and placed before the court was impeding the process of law. He added

“So one sees that in personal injury cases that for some time now that courts have either stayed or threatened to stay

proceedings if, for example, the plaintiff refuses to be medically examined or to give consent to hospitals or doctors to

disclose otherwise confidential matters.”

Those principles, which have been adopted by courts in other common law jurisdictions, should also, in my view, be adopted in our

jurisdiction. The plaintiff who sues for damages for personal injuries by implication necessarily waives the right of privacy which he

would otherwise enjoy in relation to his medical condition. The law must be in a position to ensure that he does not unfairly and

unreasonably impede the defendant in the preparation of his defence by refusing to consent to a medical examination. Similarly, the

court must be able to ensure that the defendant has access to any relevant medical records and to obtain from the treating doctors

any information they may have relevant to the plaintiff’s medical condition, although the plaintiff cannot be required to disclose

medical reports in respect of which he is entitled to claim legal professional privilege.

In the present case, the fact that it would be possible for the defendants to obtain the x-ray and test results which Mr. Pidgeon

wishes to see by means of the process of discovery does not entitle the plaintiff to withhold them from the defendant at this stage.

There is no room today in properly conducted litigation for an approach which denies one side access to relevant material which in

any event will be available at a later stage of the proceedings. That was the view taken in the authorities in other jurisdictions to

which I have already referred and I have no doubt that it accords with fairness and common sense.

The same considerations apply to the contention on behalf of the plaintiff that since, in accordance with the requirements of The

Rules of the Superior Courts (6) (Disclosure of Reports and Statements), 1998 (S.I. No. 391 of 1998), reports from each party’s

expert witnesses must be exchanged within prescribed periods following the service of the notice of trial, there is no reason why, at

this stage of the proceedings, the expert witness retained on behalf of the defendant should be furnished with information in the

possession of the plaintiff’s treating doctors as to his medical condition. The plaintiff is not entitled to impede access to such

information by withholding his consent to the treating doctors giving information as to his condition to the defendants’ expert at this

stage which will, in any event, be available at a later stage.

The right of the defendant in an action where the plaintiff claims damages for personal injuries to have the plaintiff medically

examined, to have access to his medical records and to interview his treating doctors is not dependant on the pleadings having been

closed. In such proceedings, damages are always in issue, unless the parties at some stage come to an agreement on quantum. A

medical examination can thus be sought at any stage and it is indeed not unknown for potential defendants to seek such an

examination before any proceedings are actually instituted. Once proceedings have been instituted, such an examination and full

access to the plaintiff’s medical records and interviews with his medical advisors are of assistance in enabling the defendants to form

a view as to the amount of damages which the plaintiff is likely to recover and of any lodgement which they should prudently make in

court with their defence. Whether or not liability is a live issue in the case, making such material available to the defendant at an

early stage of the litigation, instead of withholding it until the action itself, when it will have to be produced, can only facilitate the

earlier settlement of actions.

I have no doubt that the courts enjoy an inherent jurisdiction to stay proceedings where justice so requires and that it should be

exercised in cases where the plaintiff refuses to submit to a medical examination or to disclose his medical records to the defendant

or to permit the defendant to interview his treating doctors. I would, accordingly, allow the appeal and substitute for the order of the

High Court an order staying the proceedings until such time as the plaintiff consents to the defendants’ medical adviser consulting

with his medical advisers.