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ARTICLE · 08 SEPTEMBER 2009

Balancing Rights - Examining The Examination

Cooper Grace Ward
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This recent Supreme Court decision highlights the inherent power of the Court to compel a claimant to attend an independent medical examination even where that examination may cause pain, distress or discomfort.

AustraliaInsurance
Tony Park
Tony Park
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H L Booth, by her litigation guardian, G Booth v Kendall & Anor
[2009] QSC 237 (20/08/09)

This recent Supreme Court decision highlights the inherent power of the Court to compel a claimant to attend an independent medical examination even where that examination may cause pain, distress or discomfort.

Legislation entrenches the historical right of a defendant to an independent medical examination. This right however is not absolute and is tempered by the requirement that an examination be reasonable and not unnecessarily repetitious.

Here the claimant sought to resist a follow-up examination with the defendant's appointed specialist on the basis that she had become physically ill, distressed and very dizzy following the original examination. The effects were said to have lasted for some days. The defendant argued that without the follow-up examination, its specialist would be unable to reach a concluded opinion, which would put it at a forensic disadvantage.

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