FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE – whether Court has power to grant a stay where demonstrated that a reasonable request to attend a medical examination has not been complied with – claim that attendance would cause some deleterious effect to the Applicant.

Aspinall v Sterling Mansell Ltd [1981] 3 All ER 866 – distinguished

Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 – cited

GRANT McKINNON v

COMMONWEALTH OF AUSTRALIA & ORS

NG 518 of 1996

HILL J

SYDNEY

19 NOVEMBER 1998

THE COURT ORDERS THAT:

1.                  The Respondents notify the Applicant of the appointments that have been made for medical examinations for him in Sydney on or before seven days from today, those appointments not being adjacent to a dental surgery.

2.                  In the event that the Applicant does not participate in those examinations, leave be granted to the Respondents to have the motions relisted on 48 hours notice so that the proceedings may be stayed against the Respondent or Respondents whose expert medical appointments are not kept.

3.                  The Applicant pay the costs of the Respondents’ motions.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

Each of the Respondents to the present application has moved the Court that the application be stayed on the ground that Mr McKinnon, the Applicant, has refused to attend medical appointments that were arranged by them.

On 27 August I gave an interim judgment on three of these motions (one was stood over for it had been filed on that day and not dealt with by Mr McKinnon).  I indicated that the Court would grant a stay of proceedings if it was demonstrated that a reasonable request had been made that Mr McKinnon attend a medical examination but that request was not complied with in circumstances where the case for the Respondents might be materially affected by Mr McKinnon’s failure to attend.

I did not on that day order a stay, rather I made orders directing the Respondents to advise Mr McKinnon of appointments which were to be made with appropriate medical practitioners.  I made further directions that if Mr McKinnon should wish to rely on a medical reason why he should not attend he should file medical evidence no later than 11 September 1998 so that when the matter resumed on 16 September 1998 that medical evidence could be considered. 

On 16 September Mr McKinnon sought an adjournment on the ground that he was not represented and was trying to organise representation.  That adjournment was granted and the motions stood over until 5 November 1998 for hearing.  Consequential orders were made for the filing of affidavit evidence.  Pursuant to these orders Mr McKinnon filed an affidavit of Dr Earp, a general practitioner, on 11 September 1998.  He relied upon this and an earlier affidavit of Dr Earp in support of his case, that his health would be deleteriously affected if he were to attend the proposed medical examinations in Sydney,

On 30 October 1998 the Australian Government Solicitor faxed a letter to Mr McKinnon advising that they proposed to read the affidavit of Dr Stewart when the motions were to come before me.  The faxed letter invited Mr McKinnon to respond no later than 5.00 pm on 2 November 1998 whether he wished to have Dr Stewart available for cross-examination.  Mr McKinnon did not respond within that time, which arguably was unnecessarily short.  Indeed he did not respond at all.  Over his objection I permitted Dr Stewart’s evidence to be read.

As I have already indicated, Dr Earp is a medical practitioner from the central coast of New South Wales where Mr McKinnon lives.  He has seen Mr McKinnon professionally since 19 May 1995.  By January 1998 he had seen Mr McKinnon some eighty times.  Mr McKinnon’s main problem during that time involved long term anxiety and depression.  His symptoms had deteriorated over time. 

Dr Earp frankly confessed that he had never been involved in a case involving mercury toxicity.  He concedes that he has no post-graduate training as a toxicologist.  He formed the view, however, that a significant possible cause of Mr McKinnon’s symptoms was the raised level of mercury in his system.  He advised Mr McKinnon to have all fillings removed.  This was done by August 1995.  The present proceedings were brought in June 1996.

Although Mr McKinnon had reported some improvement in the level of irritability and anger, Dr Earp expressed the view that there was little objective evidence to support an improvement in his condition since the fillings were removed.  He noted that it was his view that chronic accumulation of highly toxic mercury in his kidneys and brain was shown by laboratory tests and Mr McKinnon’s present clinical features.

In his affidavit, Dr Earp said that he believed that the chronically stored mercury would have a synergistic potential to cause lead exposure to become many times more toxic and lethal.  He referred to and for his view relied upon,  an article published by a Mr J Schubert  of Hope College in Michigan which described a study conducted on rats which found that the administration of an essentially no-response level of a mercury salt together with 1/20 of the LD1 of a lead salt killed all of the animals.  Mr Schubert’s conclusion was that there was a synergistic reaction between mercury and lead.   This article was the only article which Dr Earp had read on the subject.  Mr Schubert himself  gave no evidence and was unavailable for cross-examination.

Dr Earp noted too that Mr McKinnon reports that when he visits traffic polluted locations he suffers headaches, dizziness and visual disturbance.  He says that Mr McKinnon is concerned for his safety as he has sustained injuries to his Achilles tendons – has been caught in train doors and injured.  He says:

“Mr McKinnon has genuine and serious health and safety concerns, regarding him being required to attend multiple Respondents Medical appointments, which are located at heavily traffic polluted locations, which would most probably have the potential to cause Mr McKinnon to suffer further serious health damage, if he is exposed to heavily leaded traffic fumes, which could be made many times more lethal by the presence of the residual mercury, that most probably remains in Mr McKinnon’s system.”

Finally, Dr Earp concludes:

“I do not believe that Mr McKinnon should be required to attend at any leaded traffic fume or mercury polluted locations, as I believe that this would most probably pose a serious threat to Mr McKinnon’s health and safety, and may result in further potential permanent injury damage, and serious distress for Mr McKinnon.”

Dr Stewart is a consultant physician, pathologist and biochemist working with the Royal Prince Alfred Hospital in Sydney.  Through the Department of Clinical Biochemistry he operates a medical testing laboratory with a special expertise in toxic and heavy metals.  Referring to the Schubert article, Dr Stewart says that its conclusions can not be extrapolated to humans.  This is because of differences in metabolism, susceptibility  and toxicity levels between species.  He says too that the inorganic salt administered by those conducting the experiment had a different toxicity profile to elemental mercury from amalgam thus making the results reported in the Schubert article inapplicable to Mr McKinnon.

Dr Stewart also, in his affidavit, questions Dr Earp’s conclusions that pathology results ordered or obtained by Dr Earp showed results outside normal blood levels of mercury.  He says that there is nothing in the material to which Dr Earp refers which suggests that Mr McKinnon is suffering from mercury toxicity.

In cross examination Dr Earp conceded that his medical notes had only referred in the period until 15 May 1998, when the question of examination by medical experts in Sydney arose, to headaches and dizziness three times in connection with Mr McKinnon, notwithstanding many consultations.  He said that he had never advised Mr McKinnon not to travel to Sydney to consult his own experts.  He said that it was his view that Mr McKinnon should minimise trips to Sydney, going when it was important and not going when it was unimportant.

Dr Earp conceded that in matters of toxicology he would defer to Dr Stewart.  To be fair to Dr Earp he had never seen Dr Stewart’s affidavit and I  am prepared to accept that he would not necessarily agree with it.

Before reaching a conclusion on the medical evidence it is useful to say something about the appropriate test to apply.  Mr McKinnon relies upon the case of  Aspinall v Sterling Mansell Ltd [1981] 3 All ER 866, cited in the publication Supreme Court Procedure (NSW) in support of the proposition that even if the risk to him is minimal, his refusal could not be classed as unreasonable.  He says that the risk to him is, at least, minimal so that his refusal to attend is thus not unreasonable and that the proceedings should not be stayed on account of his non attendance.  His case, of course, is that the risk to him is far from minimal.

The fourth Respondent submits that Aspinall is distinguishable and that in any case there is no real risk to Mr McKinnon. 

It is unnecessary to detail the facts of Aspinall, which differ substantially from those in the present case.  Suffice it to say that the tests to be conducted in the proposed medical examination involved a minor, but real, risk of harm to the plaintiff.

In the circumstances, Hodgson J found the refusal to attend to be reasonable.  It is clear that his Honour saw the risk to be very slight on the facts, distinguishing between an ordinary medical examination on the one hand and a procedure such as was there involved, namely patch testing.  It was in this context that his Honour said (at 868):

“In my judgment in this situation the plaintiff’s right to personal liberty must prevail.  It is not, in my opinion, the reasonableness of the defendant’s request which is here in question but the reasonableness of the plaintiff’s refusal.  And I do not think it can ever be unreasonable for a plaintiff to refuse to undergo a procedure which carries with it a risk, however minimal, so long as it can be called real, of serious injury.”

Before returning to discuss the facts it may be noted that immediately following Aspinall in the same reports appears the decision of Webster J in Prescott v Bulldog Tools Ltd [1981] 3 All ER 869.  In that case there had already been a number of examinations of the plaintiff by medical practitioners for the defendant in connection with alleged deafness and the test objected to involved tests which were, on the one hand detailed and apparently unpleasant, and on the other not necessary before an opinion could be given on the issue in dispute, although they would enable the opinion to be given with greater confidence.

Webster J referred to the necessity for the Court to balance the plaintiff’s right to personal liberty against a defendant’s right to defend himself in litigation as he thinks fit, saying that there was no reason in principle why the one was more important than the other.  With that I would agree.   The judgment continues (at 874):

“... in determining whether either party is being reasonable the question is not whether in the case of the plaintiff his objection is objectively reasonable, or in the case of the defendant whether his request is objectively reasonable, but whether the objection or the request as the case may be is reasonable in the light of the information or the advice which the respective parties receive from their respective advisers. 

...

There is one further principle of general application ... that where the defendant’s request for an examination is reasonable the court can grant a stay if the plaintiff’s refusal of that request would be such as to prevent the just determination of the cause, and that the court will normally treat the fact that the defendant would be deprived of the expert of his choice as something which would prevent the just determination of the cause”

In deciding whether the plaintiff’s objection to undergoing the examination in question was reasonable, Webster J held that a distinction had to be made between types of examinations:

“For my part I would distinguish between the following examinations: first, an examination which does not involve any serious technical assault, but involving only an invasion of privacy; second, an examination involving some technical assault, such as a palpation; third, an examination involving a substantial assault but without involving discomfort and risk; fourth, the same, that is to say a substantial assault, but involving discomfort and risk; and fifth, an examination involving risk of injury or to health.”

On the facts of the particular case Webster J formed the view that the weight of the reasonableness of the plaintiff’s objection outweighed the reasonableness of the defendant’s request for one particular test and not for another.

There is nothing in the judgment, nor would I expect there to be, which would support a proposition that a plaintiff could succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him.  A different view would necessarily follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff.  The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant.  The less severe, the more difficult the balancing process.  If the risk is such that it is so very slight as not to constitute a real risk, an applicant’s fears about the  suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit.  However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever.

In my view there is no real question of burden of proof in the present case.  It is merely a matter of balancing the evidence on the one hand with the interests of the defendant on the other.  So, I am faced, on the evidence before me with the question whether there is a real risk to Mr McKinnon.  In my view there is not.

In my view the risk to Mr McKinnon of coming to Sydney on a limited number of occasions to be examined by medical experts is so slight as not to be real.  It has not been suggested that Mr McKinnon’s medical condition has deteriorated in any way as a result of a large number of  attendances at this Court in Sydney over the past 2½ years.  Clearly even Dr Earp is of the view that if the reason to attend Sydney is sufficiently important then Mr McKinnon can attend there.  In so saying I would accept that Dr Earp would himself engage in a balancing exercise in determining whether Mr McKinnon should come to Sydney.  I do not suggest that he was attempting to make that balancing exercise himself.   If he were,  it inevitably would be for  the Court to reach  its own conclusion and not Dr Earp.

I think it is no doubt clear that Mr McKinnon may be stressed in having to come to Sydney and thus may hurt himself if he were caught between the doors of a train or tripped while rushing, but that stress alone in this case hardly weighs against the interests of the Respondents.  It is possible that Mr McKinnon may suffer some discomfort in being examined.  There is no suggestion on Mr McKinnon’s part that it is the examination itself which Mr McKinnon wishes to avoid, although there is a possible inference open to that effect. The only question is whether Mr McKinnon must come to Sydney for the purpose of it.  It may perhaps have been possible for experts to visit Mr McKinnon on the central coast, where he says he will submit to an examination, although it may well not be practical for busy specialists so to do.  The existence of a real risk to him would require me to test the suggestion from the bar table that the specialists would not go to the central coast.

However, in my view the Respondents have made out a case for the present proceedings to be stayed if Mr McKinnon does not attend for a medical examination at a time reasonably notified to him in advance in Sydney.  The evidence of Dr Earp does not persuade me that there is a real risk.  He has had no experience with any case involving mercury poisoning.  He does not suggest he is an expert.  His knowledge of a threat of a possible combination of mercury and lead comes from a paper involved with a toxicology study with rats. 

It may well be almost a matter of which judges can take judicial notice that it is impossible to extrapolate in every case from studies in animals that the same results will be reached for humans.  I need take no judicial notice of this for it is clear from the evidence of a toxicologist, Dr Stewart, who as well as being a toxicologist is an expert in the toxicology of heavy metals.  Not only does Dr Stewart denigrate the ability to extrapolate from an animal study but also he concludes that there is no medical evidence that lead causes a synergistic response in humans with levels of mercury in their bodies.  

Taking into account the whole of the medical evidence, I do not think that it can be said that there is a real risk that Mr McKinnon will suffer any harm in attending medical examinations arranged by the Respondents in Sydney.  For this reason I propose that Mr McKinnon once more be requested to attend medical examinations in Sydney (although not adjacent to a dental surgery) at a time and place to be notified to him by the Respondents on or before seven days from today.  In the event that Mr McKinnon does not participate in those examinations I would propose to stay the proceedings against the Respondent or Respondents whose expert appointments are not kept.  In case such a course becomes necessary I will give leave to the Respondents to have the motions relisted on 48 hours notice at any time.  In the meantime Mr McKinnon is ordered to pay the costs of the Respondents’ motions.

Before concluding these reasons I should make the following additional comments.  Mr McKinnon is presently not represented in these proceedings.  He has in the past been represented by more than one firm of solicitors.  For whatever reasons they have parted company.  In addition to providing, as requested, written submissions which deal with the matter discussed above, he has after the evidence closed, sought to adduce further evidence in the form of an affidavit from Dr Earp of a conversation with Mr McKinnon and conversations with persons he says are toxicological experts.  The affidavit sets out Dr Earp’s views on the significance of Dr Stewart’s evidence on the main case.  There is also an affidavit from Mr McKinnon of a conversation he has had with Dr Earp.   In part this seems to be intended to be additional evidence on the motion which has already been heard and in part in support of an application he has made that I immediately give judgment for him and ban amalgam in the public interest.

I reject this material on the motion for a number of reasons.  First, there is a limit to proceedings.  When evidence is heard and submissions are being made I have, at some time, to call a halt to the interlocutory proceedings.  Second, much of the material is in inadmissible form.  Next, to make any sense of some of the things Dr Earp says it would be necessary that he be again cross-examined with further delay.  Finally, to the extent that it is in support of an application that without hearing anything from the Respondents, and on the evidence of Dr Earp who, I must say, could hardly be regarded as any more knowledgeable than any general practitioner on the subject, I should immediately give judgment in his favour it is misconceived.

Soon after the present judgment is delivered I will hear Mr McKinnon’s motion that I give judgment in his favour, both because of suggested defaults on the part of the Respondents in complying with directions and otherwise.  I will, as I am bound, hear that motion although I fear that it is misconceived. Mr McKinnon also wishes  to move the Court to hear the merits of  the case  in due  course in Gosford.  He would  need  much  more cogent medical evidence than he has heretofore filed before he could succeed in that motion.

May I say that it would be most desirable that Mr McKinnon obtain, and keep, legal representation.  I have little doubt that the substance of the claim he is bringing is of public importance, although I would prefer that it be decided by medical experts rather than courts.  But given that it will be a matter for the Court ultimately to pass judgment upon it is also clear that it is in the interests of justice and the public good that Mr McKinnon be medically examined by experts independent of those he wishes to call to establish the extent, if any, of Mr McKinnon’s disabilities, and whether those disabilities are, as he alleges, a result of the use of amalgam in fillings which he had performed in the past or some other, and if so what, cause.  It is also in Mr McKinnon’s interest and in the interests of the public that his proceedings not become delayed by interlocutory applications, but rather that the merits of them be determined in accordance with the evidence, including evidence of expert witnesses.

Associate:

Dated:              19 November 1998