An injured person has missed a medico-legal appointment with the Queensland CTP insurer, respondent or workers’ compensation insurer’s expert. Can the injured person be required to pay, or agree to pay, a non-attendance fee charged by the medico-legal expert to the party responsible for that expert’s fee? No. However, the injured person may end up liable for the costs of an application for orders that they attend a re-scheduled medico-legal appointment – so they certainly cannot miss defendant medico-legal appointments with impunity. Is this fair? Possibly not in specific cases, but the pre-court procedures devastate the injured person’s entitlement to costs for smaller and medium sized claims that generally would be recoverable in general civil litigation for non-personal injury damages, so the pre-court procedures are not always fair and are often obviously not intended to be fair.
Interestingly, the injured person can make the insurer or respondent pay the expense of hiring someone to cover their work for them while they attend the medico-legal examination: Campbell v Hansen [2008] QDC 138. The injured person who is self-employed and hires replacement labour, or whose employer has to hire replacement labour, to cover their duties while they attend the medico-legal examination, must be reimbursed by the insurer or respondent. The expense would need to be reasonable.
It is unlikely that a Court application over a medico-legal expert’s non-attendance fee would be an efficient way to incur legal costs to advance an injured person’s interests. However, an application for directions about the holding of a compulsory conference would generally be the injured person’s option to progress the claim – although they need to beware of the respondent seeking directions that prior to the compulsory conference the injured person attend a re-booked appointment and if such a directions was made, the injured person may miss out on a costs order and have been better off just copping the non-attendance fee. You need to consider whether arguing about the non-attendance fee will cost more than paying the non-attendance fee and whether your client would actually want you to do that.
The relevant legislation:
- Motor Accident Insurance Act 1994 (Qld) s 46A: ‘The claimant must comply with a request by the insurer to undergo, at the insurer’s expense…’
- Personal Injuries Proceedings Act 2002 (Qld) s25: ‘The claimant must comply with a request by the respondent to undergo, at the respondent’s expense either or both of the following…’
- Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 282: ‘An insurer or a contributor may at any time ask the worker to undergo either or both of the following, whether at 1 time or at different times, at the expense of the insurer or contributor…’
The relevant cases:
The words “the insurer’s expense” do not embrace simply the doctor’s fee for conducting the examination and providing the report but extend, in my view, to any expense occasioned by the claimant’s compliance with the request.
Burgess v AAMI [2006] QSC 331
The first argument advanced on behalf of the respondent was that the phrase “at the respondent’s expense” in s 25(2) of the Act requires the applicant to pay for the loss of wages or loss of income suffered by the respondent as a consequence of attending a medical examination…
With respect, I reject this argument. “Expense” is not defined in the Act. I accept the argument by Mr Hockings, on behalf of the applicant, that the word is to be given its plain meaning. In my view an “expense” is an expenditure or cost incurred. Subject to s 25(3) of the Act, s 25(2) makes it mandatory for a claimant to undergo a medical examination and the provision makes it mandatory that the medical examination be at a respondent’s expense. In my view, in context, the clear meaning of the provision is that a respondent must pay for any expenditures associated with, or costs incurred as a result of, a claimant undergoing the medical examination. A claimant’s loss of wage or loss of income consequent upon attending for the medical examination is not an expenditure associated with, or a cost incurred in, attending the medical examination. Rather, as the words express, they are losses suffered by a claimant. Of course, in my view, if it were necessary for a claimant to pay for another person to cover a claimant’s work duties whilst the claimant was attending the medical examination, that payment would be an “expense” within the meaning of the provision.
Campbell v Hansen [2008] QDC 138
I invited counsel to demonstrate how an order to pay costs incurred by the insurance company in relation to past non-attendance can be said to be consequential on or ancillary to an order to attend a specified doctor in the future and the counsel was unable to identify any way in which that could be. Moreover, no case was cited to me where such an order has been made and counsel informed me that his researches did not disclose the existence of any such case.
I note that s 46A requires the examination to be at the insurer’s expense. It does not seem to me that the terms of sub-s 50(3) are wide enough to enable the order sought in paras 3 and 4, at least, in the absence of any authority or in the absence of any identification of a semantic reason for that in the terms of the order. That being so I’m not willing to make those two orders.
Motor Accidents Insurance Board v Gibson [2010] QSC 152