Reasons for striking out personal injuries action

jacknife

Can a judge strike out a personal injuries action where the plaintiff failed to attend a particular doctor for a medical examination

Especially if the order was made without consulting the plaintiff and seeking their agreement

NUTLEY BOY

Yes.

I would expect the defendant to apply initially for an order to stay the proceedings until the plaintiff attends the examination.

The judge does not need the plaintiff's consent.

However, such an application should be on notice to the plaintiff. Can't imagine this being done ex-parte.

jacknife

NUTLEY BOY wrote: »

Yes.

I would expect the defendant to apply initially for an order to stay the proceedings until the plaintiff attends the examination.

The judge does not need the plaintiff's consent.

However, such an application should be on notice to the plaintiff. Can't imagine this being done ex-parte.

Just reviewing a case, defendant got order for independent medical examination with a particular doctor, the plaintiff did not attend and looked for a female doctor is not refusing to be examined only wants a female doctor

Plaintiff solicitor made arrangements without consulting her

Case law shows the plaintiff can add reasonable terms to defendants examination

Now defendants is seeking to have claim struck out with costs

Pat Mustard

jacknife wrote: »

Just reviewing a case, defendant got order for independent medical examination with a particular doctor, the plaintiff did not attend and looked for a female doctor is not refusing to be examined only wants a female doctor

Plaintiff solicitor made arrangements without consulting her

Case law shows the plaintiff can add reasonable terms to defendants examination

Now defendants is seeking to have claim struck out with costs

jacknife, I don't know where this post is going but looking for legal advice is against the forum charter, so I hope that it is not going in that direction.

jacknife

Pat Mustard wrote: »

jacknife, I don't know where this post is going but looking for legal advice is against the forum charter, so I hope that it is not going in that direction.

Not looking for legal advice only the opinions

NUTLEY BOY

Sticking to general principles - reasonableness of conduct and balance of opposing rights are of basic importance.

Plaintiffs cannot decide to pick and choose who will or will not examine them and or just not bother turning up to a medical examination without proper notice.

Of course a plaintiff can refuse to be examined by a particular doctor. However, in the context of litigation, that type of conduct could constitute failure to co-operate.

I take an extremely poor view of a plaintiff who decides not to bother showing up where there was a court order requiring her to do so. That may well constitute contempt.

The practical reality is that a female plaintiff who insists - reasonably - on a female doctor examining her might not be capable of being accommodated. Suppose that there is no female doctor of the requisite specialist knowledge available. What then ? Is the defendant's right to make fair and reasonable efforts to assess the plaintiff's medical position independently to be frustrated by a refusal to submit to examination ?

If unresolved, this type of argument will turn on what is in the best interests of justice and that might go either way !

jacknife

In Norman Richard Haywood v H Ritchie and Sons [2005] the plaintiff refused a medical examination with a particular doctor, “where a plaintiff has refused a medical examination, I think the court does have to recognise that in the balance there are, amongst many other factors, fundamental rights which are cherished by the common law and to which attention has to be directed by the court, the plaintiff’s right to personal liberty.”

In the British case, Starr v National Coal Board [1977] 1 All ER 247 a two-judge court held that a plaintiff did not need to provide reasons for a refusal to undergo a medical examination by a particular doctor. In his dictum, Donovan J stated he would never shut a plaintiff out from the seat of justice even if he refused all medical examinations.

In Pickett v Bristol Aeroplane Co Ltd. [unreported] Willmer and Donovan LJJ decided that a plaintiff was entitled to refuse to be medically examined by a particular doctor without having to give reasons for so refusing.

MG v Germany held that a court-ordered involuntary medical examination violates the right to privacy.

There is a lacuna in Irish law regarding medical examinations in personal injury actions. The Rules of the Superior Courts 1986 are silent on medical examinations.

Irish law should provide precise guidelines for the conduct of medical examinations because of the sensitive interests involved. At present parties do not know precisely the circumstances in which a plaintiff must submit to a medical examination, nor when a refusal to submit is justified. It is untenable that precise rules exist pertaining to the discovery of a document while there are no comparable rules for the conduct of a medical examination

In Michael McGrory v. Electricity Supply Board [S.C. No. 69 of 2003], It was common practice, evidenced by a long standing agreement between the Irish Medical Organisation and the Law Society that a Defendant’s medical expert could examine a Plaintiff before trial but no authority was cited for this arrangement in the High Court.

it the subjective opinion of the judge in what is in the best interests of justice

jacknife

Just an update

The plaintiff pulled it off, despite missing 4 independent medical examination appointments without any explanation and making a medical council complaint against the doctor for a vexatous reason, she managed to keep her Case from bring struck out and got her lady doctor as she wanted

Judge was not impressed with her missing 4 appointments and refused to read the letter of complaints as she would have to resuse herself

A very straightforward pi case that became very complicated only for the defendant was insured with setanta I say it would have been struck out as despite missing 4 appointments the defendant was not really prejudiced as there is reserved judgement on the mibi court of Appeal hearing

goz83

jacknife wrote: »

Just an update

Did she make it to the hotel in the end?

jacknife

goz83 wrote: »

Did she make it to the hotel in the end?

Lol all hypothetical saying of course ðŸ€