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In Longbottom v Nulis Nominees (Australia) Limited (Longbottom) the WA Supreme Court considered a plaintiff’s request to record a medical examination arranged by the defendant. While Longbottom confirmed the medical practitioner (a psychiatrist) did not have to allow the examination to be recorded, there could be scope for this to happen should there be a more persuasive approach and evidence to support the request.

What are the facts?

On 17 January 2020,  Master Sanderson held that it was not in the interests of justice to allow the Plaintiff, who was required to attend a medical examination under Order 28, Rule 1 of the Rules of the Supreme Court 1971 (WA) (Order 28), to make an audio or visual recording of the examination. On 3 December 2019 the Second Defendant, MLC Ltd, issued a chamber summons seeking orders that the Plaintiff attend a medical examination by a psychiatrist. The Plaintiff wished to make an audio recording of the consultation. However, the psychiatrist was opposed to the interview being recorded. The question for determination was whether it was in the interests of justice to permit the Plaintiff to attempt to record the examination, given that the psychiatrist would end the examination and the Second Defendant would be deprived of the psychiatrist’s opinion.

What is Order 28 Rule 1?

Order 28 provides that any party may serve on an opposing party notice to submit themselves for medical examination at a specified time and place by a medical practitioner provided and paid by the party requiring examination. Should a party object to the notice, they may apply to the Court for an order relating to attending an examination, when or where the examination occurs, or to any other matter to facilitate the examination. Order 28 reflects the position established in the unreported UKCA case of Pickett v Bristol Aeroplane Co Ltd The decision in Pickett was upheld by the Court of Appeal in Edmeades v Thames Board Mills Ltd (1969), whereby Denning MR stated that “the Court can order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause”. Further, Order 28 must be exercised in the interests of justice, with consideration of the evident subject matter, scope and purpose of the power, as held in Cranston v Kiernan [2017] WASCA 100.

What was decided?

In Longbottom, the Plaintiff’s mental condition was material to the outcome of the case. The recording of the examination was refused by the psychiatrist on the grounds of privacy legislation, as well as concern for the Plaintiff’s mental health if the recording of the examination was replayed by the Plaintiff at a later time. The Master considered the basis of the psychiatrist’s objection to be “thin”, but no evidence to the contrary was led on the Plaintiff’s behalf. The Judge was concerned any such evidence would have lacked probative value. Further, there was no case law where a medical examination had been permitted to be recorded.

The result of allowing the Plaintiff to record the interview would be that the psychiatrist would refuse to continue with the examination. This would deprive the Second Defendant of the opportunity to have the opinion of the psychiatrist as evidence for its case. The Plaintiff’s argument was that there was no reason why a consultation could not be recorded, given a support person would attend regardless. Therefore, any disputes over what was said, or the tone of the psychiatrist, could be settled by referring to the recording. The Master ordered that the Plaintiff could not record the examination by audio or visual means. It was ultimately decided that the Plaintiff’s position was adequately protected by the presence of a support person or medical advisor who could, if necessary, give evidence as to what was said during the consultation.

What does it mean going forward?

This decision is beneficial for insurers and defendants who require plaintiffs to attend medical examinations (under Order 28). In addition, this solidifies the right of a medical practitioner to refuse to conduct a medical examination that is being recorded. However, it is important to note the tone of the Master’s reasons suggests that a different (evidentiary) approach by the Plaintiff may have potentially made progress toward allowing Order 28 medical examinations to be recorded by video or audio means in appropriate circumstances.

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