Medical examinations: Presence of another medical expert

Holshandon Pty Limited; Rankin v Eakin [2014] NSWSC 1028 required the court to deal with defendant applications that the plaintiffs attend forensic psychiatric consultations, in the context of their personal injury claims.

More importantly, the defendant sought dispensation from the plaintiffs’ right under rule 23.5 of the Uniform Civil Procedure Rules 2005 (NSW) to have a medical expert of their own choosing present. The court confirmed that power existed to dispense with that right, under s 14 of the Civil Procedure Act 2005 (NSW).

In deciding to exercise that power in the circumstances, Adamson J said at [41] that the question to be largely one to be determined by reference to the professional assessment of the assessing expert: 

[39]  I now turn to the question whether an order sought by the defendants ought be made. The requirement of natural justice is a fundamental part of the just determination of civil disputes. I consider that it would be at odds with that requirement to impose on Dr Skinner in the present case a medical expert of the examinee’s choice in circumstances where she has deposed that that requirement would be deleterious to her examination. She is entitled to conduct the examination in accordance with the Expert Witness Code of Conduct, which in turn requires her to assist the court impartially consistent with her paramount duty to the court.

 [40] I have had regard to the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction (s 58(2)(iv) of the Act). I accept the evidence of the plaintiffs that they are likely to suffer inconvenience, possibly discomfort and even anguish in the course of the examination with Dr Skinner. I am also disposed to accept that those negative emotions could be alleviated by the presence of Dr Dinnen or another psychiatrist or psychologist of their choosing. However I do not consider that these matters amount to an “injustice” that they will, or might, suffer within the meaning of s 58(2)(iv) of the Act.



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