McGrory v ESB

JurisdictionIreland
JudgeKeane C.J.
Judgment Date24 July 2003
Neutral Citation[2003] IESC 45
CourtSupreme Court
Docket Number[S.C. No. 69 of 2003]
Date24 July 2003
MCGRORY v. ELECTRICITY SUPPLY BOARD (ESB)

BETWEEN

MICHAEL M c GRORY
PLAINTIFF/RESPONDENT

AND

ELECTRICITY SUPPLY BOARD
DEFENDANT/APPELLANT

[2003] IESC 45

Keane C.J.

Murray J.

Hardiman J.

69/03

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Stay

Litigation - Personal injuries - Evidence - Medical examinations - Whether stay should be granted until such time as plaintiff consents to disclosure of medical evidence to defendant (69/2003 - Supreme Court - 24/7/2003) FL 7800

McGrory v ESB - [2003] 3 IR 407

the plaintiff sued his employer for damages for personal injuries arising out of an accident at work. Shortly after the statement of claim had been delivered, the defendant requested a joint consultation between its medical advisor and the plaintiff's doctors. Solicitors for the defendant also requested the plaintiff's medical records. Both requests were refused by the plaintiff. The defendant then brought a motion seeking to have the proceedings stayed until such time as the plaintiff consented to allowing his medical advisors to consult with the defendant's medical advisors. The High Court (Johnson J.) refused to stay the proceedings, indicating that no authority had been cited permitting the court to make such an order. The trial judge 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 appealed. At the time of the appeal no defence had yet been delivered.

Held by the Court in allowing the appeal and substituting for the order of the High Court an order staying the proceedings until such time as the plaintiff consented to the defendant's medical advisors consulting with his medical advisors that 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 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. Making such material available to the defendant at an early stage of the litigation could only facilitate the earlier settlement of actions. Accordingly, the courts should exercise their inherent jurisdiction to stay proceedings where justice so requires 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.

Citations:

MCDOWELL V STRANNIX 1951 NI 57

ROSS V TOWER UPHOLSTERY LTD 1962 NI 3

JUDICATURE (IRL) ACT 1877 S27

EDMEADES V THAMES BOARD 1969 2 QB 68

DUNNE V BRITISH COAL CORPORATIOJN 1993 ICE 601

O'SULLIVAN V HERDMANS LTD 1987 1 WLR 1047

HARMONY SHIPPING CO V SAUDI EUROPE 1979 1 WLR 1381

HAY V UNIVERSITY OF ALBERTA 1991 2 MED LR 204

B (A) & ORS V JOHN WYETH & BROS 1996 7 MED LR 300

SHAW V SKEET AUNG SOORIAKUMARAN 1996 7 MED LR 370

RULES OF SUPERIOR COURTS (RSC)(NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998

1

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

2

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 29 th 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.

3

The plenary summons was issued on the 16 th February 2001 and a statement of claim delivered on the 16 th July 2001. On the12 th 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 26 thJuly 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.

4

The defendants" solicitor wrote again on the 19 thOctober 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 15 th 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 11 th January 2002, the defendant's solicitor wrote stating that unless theplaintiff'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 21 st 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."

5

In her affidavit grounding that application, the plaintiff's solicitor exhibited a letter from Mr. Pidgeon to her dated the 5 thNovember 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."

6

In a further affidavit sworn on the 11 th February 2003, the solicitor for the defendants exhibited a document prepared by the Litigation Committee of the Law Society which stated interalia 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."

7

The defendants" solicitor had also written on the 11 thJanuary 2003 asking the plaintiff to make discovery on a voluntary basisof

"The plaintiff's medical records prior to and subsequent to the date of this alleged accident i.e. 19 th October1999."

8

The defendants" solicitor stated that the plaintiff's solicitor had not consented to make voluntary discovery of the documents inquestion.

9

The defendants" notice of motion was heard in the High Court (Johnson J.) on 13 th 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.

10

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

11

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...

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