The Supreme Court stayed a personal injury action against the Electricity Supply Board until the plaintiff consented to the Board’s medical adviser consulting with his medical advisers.
In a judgment delivered on 24 July 2003, Chief Justice Keane, with Murray and Hardiman JJ. on the court, allowed the Board’s appeal from a High Court refusal to grant a stay. The stay remains in place until the specified consent is given. The judgment did not decide liability or the amount of any damages claim.
The plaintiff alleged that he suffered personal injuries while employed by the Board on 29 November 1997, when an “adjustable base and head jack” came free from a rope and struck him on the head. He claimed an MRI showed permanent brain damage. These were allegations in the action, not findings by the Supreme Court.
The Board sought an examination by consultant neurosurgeon Christopher Pidgeon and asked for him to consult the plaintiff’s treating doctors. The plaintiff’s solicitor agreed to an examination but did not consent to the doctors discussing the case. The Board later sought a stay until the plaintiff consented to that consultation. The High Court refused the application, saying no authority had been cited for such an order; the Board appealed. No defence had yet been delivered.
The Supreme Court said a personal injury plaintiff’s claim puts their medical condition in issue. It held that the court must be able to ensure a defendant is not unfairly and unreasonably prevented from preparing its defence through refusal of a medical examination, access to relevant records, or interviews with treating doctors. The judgment also recognised that material covered by legal professional privilege need not be disclosed.
The Court held that these rights do not depend on the pleadings having closed. Early access to medical information can help defendants assess damages and make a court lodgement, and can facilitate settlement. It concluded that the courts have inherent jurisdiction to stay proceedings where justice requires, including where a plaintiff refuses an examination, relevant medical records, or permission for interviews with treating doctors.
The order in this appeal was specifically tied to consent for the Board’s medical adviser to consult with the plaintiff’s medical advisers. The judgment’s broader discussion addressed the court’s jurisdiction in other forms of refusal; it did not add those separate requirements to the order made in this case.