H L Booth, by her litigation guardian, G Booth v
Kendall & Anor
 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
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.
The decision refers to the claimant having been subjected to
extensive testing over many years by various experts. It was not
suggested however that this examination was unnecessarily
repetitious. Rather it was suggested that it was unreasonable.
Ultimately the court ordered that the claimant submit to the
follow-up examination, failing which the action would be stayed. In
making this order his Honour, Justice Martin, emphasised the need
for courts to balance a claimant's personal liberty against a
defendant's right to defend itself in litigation as it thinks
fit. In this balancing process his Honour considered:
the discomfort and distress experienced at the last examination
and the likelihood that it would be repeated;
whether the claimant would be exposed to any risk of permanent
injury – there was no evidence to suggest this;
the effect of not having a further examination – an
the significant claim advanced by the claimant – some
the inability of the defendant to meaningfully engage in an
upcoming mediation without the report; and
the ultimate cost of trial – here the trial will
probably have to be conducted in England due to the severity of the
claimant's condition and the presence of almost all witnesses
being in that country.
The court considered that the right of the defendant to properly
defend itself outweighed the rights of the claimant.
In the past the courts have also ordered independent
to resolve an impasse between competing opinions: Cady v Jones
(unreported, Southport Dist Ct, Hall DCJ, 3 April 1998) now
reinforced by Rules 429I – 429K of the Uniform Civil
Procedure Rules 1999;
where a claimant has obtained further opinion or where existing
opinions are old: Muller v Nebo Shire Council  QSC 08;
outside the claimant's hometown, even though the claimant
may suffer from a significant disability making travel problematic:
Gray v Hopcroft & Anor  QCA 144.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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