SUPREME COURT OF QUEENSLAND

CITATION:	Tyndall v Kestrel Coal Pty Ltd [2020] QSC 56 	
PARTIES:	JAMIE LEE TYNDALL
(plaintiff)
v
KESTREL COAL PTY LTD 
(defendant)	
FILE NO/S:	SC No 646 of 2019	
DIVISION:	Trial Division 	
PROCEEDING:	Application 	
ORIGINATING COURT:	Supreme Court at Rockhampton 	
DELIVERED ON:	31 March 2020	
DELIVERED AT:	Rockhampton	
HEARING DATE:	23 March 2020	
JUDGE:	Crow J	
ORDER:	1.	The plaintiff attend an appointment (to be arranged by the defendant) with a rheumatologist selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms: 
a.	The plaintiff is to be examined no later than 20 April 2020; 
b.	In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the rheumatologist; 
c.	The costs of the examination and report are the responsibility of the defendant; 
d.	The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and 
e.	The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant. 
2.	The plaintiff attend an appointment (to be arranged by the defendant) with a vascular surgeon selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms: 
a.	The plaintiff is to be examined no later than 14 May 2020; 
b.	In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the vascular surgeon; 
c.	The costs of the examination and report are the responsibility of the defendant; 
d.	The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and 
e.	The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant. 
3.	The defendant file and serve its Defence to the Further Amended Statement of Claim by 14 April 2020. 
4.	The plaintiff file and serve any Reply to the Defence to the Further Amended Statement of Claim by 23 April 2020. 
5.	The parties are at liberty to apply on the giving of three business days’ notice in writing to the other party. 	
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – PROCEDURE – MEDICAL EXAMINATIONS – SUBMISSION TO MEDICAL EXAMINATION – where defendant makes application to have plaintiff undergo further medical examination pursuant to s 282 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) - where parties will rely on differing medical opinions - whether compliance with request is unreasonable or unnecessarily repetitious –  whether plaintiff should undergo further medical examination 
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DETENTION, INSPECTION AND PRESERVATION – INSPECTION OF PROPERTY – where application by plaintiff to inspect defendant’s property alleged to have caused injury – where application lacks specificity – whether order sought too broad in nature 
Coal Mining Safety and Health Act 1999 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), s 250 
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 282, s 318C
Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345; [2002] QSC 42, cited
Hinrichsen v Glencore Queensland Limited [2019] QSC 112, considered
Hunt v Lemura & Anor [2011] QSC 378, cited 
Ratcliffe v Raging Thunder Pty Ltd [2010] QSC 60, followed    	
COUNSEL:	J M Sorbello for the plaintiff 
S J Deaves for the defendant 	
SOLICITORS:	Morton & Morton for the plaintiff 
Hall & Wilcox for the defendant 	
[1]	By claim and statement of claim filed 22 August 2019 the plaintiff alleges that he suffered vibration-induced white finger syndrome as a result of operating either a Jug O Naut or Eimco loader at the Kestrel Coal Mine between 1 September 2015 and 1 May 2016. 
[2]	By application filed 28 February 2020, the defendant sought orders for Mr Tyndall, the plaintiff, to be compelled to undergo examination by a vascular surgeon.  The defendant later amended its application to also seek examination by a rheumatologist.  The plaintiff consents to examination by a rheumatologist but opposes examination by a vascular surgeon. 
[3]	By application filed 17 March 2020 the plaintiff sought several routine procedural orders as well as an order for inspection and testing pursuant to r 250 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) and an order for entry for trial for sittings commencing 1 June 2020. 
Inspection and Testing
[4]	Rule 250 UCPR provides:
“250	Inspection, detention, custody and preservation of property
(1)	The court may make an order for the inspection, detention, custody or preservation of property if—
(a)	the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
(b)	inspection of the property is necessary for deciding an issue in a proceeding.
Note—
Under the Acts Interpretation Act 1954, schedule 1—
“property” means any legal or equitable estate or interest (whether present or            future, vested or contingent, or tangible or intangible) in real or personal property of   any description (including money), and includes things in action.
(2)	Subrule (1) applies whether or not the property is in the possession, custody or power of a party.
(3)	The order may authorise a person to do any of the following—
(a)	enter a place or do another thing to obtain access to the property;
(b)	take samples of the property;
(c)	make observations and take photographs of the property;
(d)	conduct an experiment on or with the property;
(e)	observe a process;
(f)	observe or read images or information contained in the property including, for example, by playing or screening a tape, film or disk;
(g)	photograph or otherwise copy the property or information contained in the property.
(4)	In the order, the court may impose the conditions it considers appropriate, including, for example, a condition about—
(a)	payment of the costs of a person who is not a party and who must comply with the order; or
(b)	giving security for the costs of a person or party who must comply with the order.
(5)	The court may set aside or vary the order.”
[5]	In Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345, Chesterman J said:
 “[19] …The discretion conferred by the rule is a wide one.  It should not be limited by the superimposition of conditions not found in the rule itself.  The order should not be made unless, on the material before the court, it is proper to do so.  It must be remembered that the rule exists to promote the efficient and economical conduct of litigation.  If the result of an inspection would tend to bring about such a result that discretion should, I apprehend, ordinarily be exercised in favour of inspection subject to there being some countervailing circumstance.  To say that there must be formidable grounds for alleging an infringement before inspection will be ordered is to say only that there must be sufficient grounds for making the order.  I do not think there is any benefit in using any more particular or pejorative adjective.  It is no doubt true that an order for an inspection of property will not be made unless there is some evidence that the plaintiff’s rights are being infringed and that an inspection will facilitate proof of the claim.  This, I expect, is all that is meant by saying there must be a substantial and genuine dispute.  There are, of course, degrees of suspicion as well as of proof.  It is pointless to resort to semantic differences and refuse inspection where there is ‘mere suspicion’ of an infringement, but allow it where there is ‘strong suspicion’ or ‘proof’ of it, even if the proof be weak.  The discretion conferred by UCPR 250 should be addressed by considering whether in all the circumstances of a particular case the plaintiff has shown sufficient grounds for intruding on the defendant’s property.”
[6]	Exhibit RG52, is a letter by the hand of plaintiff’s solicitors dated 20 February 2020. In RG52 the plaintiff’s solicitors asserted that “[i]n those circumstances it is necessary for inspection of both the Jug O Naut and Eimco loaders with a view to taking vibration readings.  It seems to us also necessary that those readings be taken above and below ground to replicate the vibration to which our client was exposed during his work hours.”
[7]	By Exhibit RG53, the solicitors for the defendant did not oppose an inspection and examination occurring, but rather sought from the plaintiff specific information as to:
(a)	Who would attend the inspection;
(b)	The specific Jug O Naut and Eimco loaders to be inspected;
(c)	Whether the plaintiff is instructing an expert to take vibration readings, and if so, the name and qualifications of the proposed expert; 
(d)	How the plaintiff intended to, during the inspection, replicate the vibration to which the plaintiff was exposed to during working hours; and
(e)	Whether it is proposed that following inspection, an expert report containing an opinion and evidence will be produced.
[8]	Given the subject of the enquiry, namely the diagnosis of hand-arm vibration syndrome, is a matter of expert evidence which has been raised in the pleadings, there is little doubt that some inspection and testing of relevant equipment under pertinent conditions is necessary in the interests of justice as is required by r 250 UCPR.  The difficulty with the plaintiff’s application is that it seeks a broad order with respect to inspection and testing, namely the provision contained in paragraph 4 of the application, that:
“On giving seven days [sic] notice, the Plaintiff (including his legal representatives and engineering expert) be at liberty to conduct an inspection and undertake vibration testing of the Jug O Naut and Eimco loaders referred to in paragraph 8A of the Further Amended Statement of Claim, such testing to include the operation of the Jug O Naut and Eimco loaders above and below ground.”
[9]	Paragraph 8A of the further amended statement of claim does not identify any specific Jug O Naut or Eimco loader.  As it presently stands, despite requests for disclosure, the specific loaders that were driven by the plaintiff as referred to in paragraph 8A of the further amended statement of claim have not yet been identified.  It is therefore not plain as to which particular loaders are to be tested, where they are to be tested, by whom they are to be tested, what is to be done in respect of the testing and what, if any, interference the inspection and testing will have upon the ordinary mining operations of the defendant. 
[10]	As a mine operator, the defendant is subject to the strict regimes for health and safety set out in the Coal Mining Safety and Health Act 1999 (Qld) and its subordinate regulations.  Whilst the defendant does not oppose inspection and testing, it requires further information in order to fashion fair and proper conditions whilst the inspection and testing is undertaken.  At the very least, the expert will need to be identified and, as is ordinarily the case, the expert can then advise as to what is required to be done in terms of the inspection and testing so that the parties may attempt to agree as to the proper conditions to be imposed upon the testing.  In the absence of this information, I consider it is an improper exercise of my discretion to make a broad order for the inspection and testing in terms proposed in the application.
[11]	I therefore dismiss paragraph 4 of the plaintiff’s application.
Vascular Surgeon
[12]	Exhibit RG49, is a letter from the solicitors for defendant dated 16 March 2020, requesting that the plaintiff attend upon one of three possible vascular surgeons.  The latest available appointment from the three vascular surgeons is 14 May 2020.  As the expert liability evidence is far from settled, there will be no delay occasioned to the litigation by the attendance of the plaintiff upon any of the vascular surgeons in the defendant’s list. 
[13]	I apprehend the defendant argues that it is unreasonable or unnecessarily repetitious for Mr Tyndall to undergo examination by a vascular surgeon.
[14]	Section 282 of the Workers’ Compensation and Rehabilitation Act 2003  (“WCRA”) provides:

“282	Worker to undergo medical examination
(1)	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—
(a)	a medical examination by a doctor to be selected by the worker from a panel of at least 3 doctors nominated in the request;
(b)	an assessment of cognitive, functional or vocational capacity by a registered person to be selected by the worker from a panel of at least 3 persons with appropriate qualifications and experience nominated in the request.
(2)	The worker must comply with the request unless it would be unreasonable or unnecessarily repetitious.
(3)	If 3 doctors or persons with appropriate qualifications and experience are not available for inclusion on a panel, the number on the panel may be reduced to 2.”
[15]	In interpreting s 282 as a whole, the inclusion of the words “may at any time” in s 282(1) together with the necessity of compliance under s 282(2), unless compliance would be unreasonable or unnecessarily repetitious, suggests that the requirement of a plaintiff to attend upon a medical examination under s 282 is a primary or ordinary obligation imposed upon a claimant.  Indeed, the mere fact that examinations are repetitious is insufficient to disqualify or prevent a defendant from obtaining further examination; ordinarily updated reports are required prior to trial. 
[16]	 In the present case, the plaintiff has obtained reports from Dr Toby Cohen, vascular and endovascular surgeon.  The plaintiff argues that attendance upon another vascular surgeon is unnecessary as the plaintiff has already attended upon Dr Simon Quinn, vascular and endovascular surgeon, who has provided reports to the defendant.  The difficulty with this argument is that Dr Quinn was the plaintiff’s treating surgeon and was referred to him by a General Practitioner, Dr Anthony Young.  Despite the fact that Dr Quinn was the plaintiff’s treating surgeon, WorkCover obtained reports from Dr Quinn.  That was entirely proper as WorkCover has a statutory obligation to provide rehabilitation to Mr Tyndall which may require it to take and act upon advice provided by the treating surgeon. 
[17]	 I have analysed several of the authorities pertaining to s 282 of the WCRA as cited in my 2019 decision, Hinrichsen v Glencore Queensland Limited [2019] QSC 112.  In particular I have adopted the approach of Jones J in Ratcliffe v Raging Thunder Pty Ltd [2010] QSC 60. In Ratcliffe, the plaintiff objected to further examination on the basis that it was unnecessary, unreasonably repetitious and that the defendant was “doctor shopping”. A consideration of whether the defendant is “doctor shopping” is irrelevant; the “only question is the reasonableness or otherwise of the request”.
[18]	I further adopt the approach of Jones J in Ratcliffe, of examining the medical reports already provided in order to answer the question as to whether the further suggested examination is unreasonable or unnecessarily repetitious. The issue of causation is particularly vexed and is well described by Dr Robert Ivers, consultant orthopaedic surgeon in his reports of 14 February 2019 and 7 June 2019.  In his report of 14 February 2019 Dr Ivers diagnosed Mr Tyndall’s condition as vibration induced white finger disease on the basis of the history of clinical examination and radiology presented.  Dr Ivers then opined:
“I note that Mr Tyndall has undergone extensive investigation and review with regard his left hand condition.  It appears to be the consensus of opinion that the hand condition is vibration induced white finger disease, which is a variant of Raynaud’s phenomenon.  I note the opinion of Dr Mackay regarding the multifactorial causation of this condition.  I note the exposure to vibration as described by Mr Tyndall, in his day to day activities at work.”
[19]	In his report of 7 June 2019 Dr Ivers, with respect to questions regarding causation, said “[f]or your purposes the most appropriate specialist to provide your specific answers would be a vascular surgeon.  I note Mr Tyndall has already been reviewed by Dr Simon Quinn, vascular surgeon and I understand that further investigations or intervention is not proposed by Dr Quinn.  The specific answers which you are seeking are not easily and reasonably provided by any specialist because of the nature of this pathology.”
[20]	The difficulty with causation was also observed in the supplementary report of Dr Cameron Mackay, hand and reconstructive surgeon of 3 March 2020 where Dr Mackay said: 
“3.     I presume from your correspondence that the main issue to be resolved by the Court is a differentiation between a pre-existing condition or a condition caused by the inciting work event.  On re-reading paragraph 14 of my report, it is perhaps a little ambiguous so I will clarify my statement here.  My opinion is that work-related events were significant in that they bore chronological relationship to the onset of symptoms.  My point regarding other factors relates to the differentiation of whether this was the causation of an all new condition or simply an aggravation of pre-existing constitutional disorder.  This somewhat clarified in paragraph 15. 
4.       In my opinion the most likely scenario is that the plaintiff has an underlying constitutional predisposition to Raynaud’s phenomenon, which may also be aggravated by his heavy smoking and clinical anxiety.  There is however a temporal relationship with work activity known to aggravate this condition and in that setting, he suffered a work-related aggravation of an underlying condition.  
5.       It is likely therefore that this aggravation has now ceased but he will in future continue to experience symptoms from the underlying disorder.”  
[21]	The medical evidence currently available suggests that the white finger disease which Mr Tyndall suffers from is an uncommon variant of Raynaud’s phenomenon, which involves pre-existing conditions and work-related aggravations as to its provenance.  There are further and more difficult questions with respect to the future prognosis and the effects of the pre-existing conditions.  It is apparent from the medical reports there has been a multidisciplinary specialist approach to the proper diagnosis and assessment of prognosis in Mr Tyndall’s case.  However, it would appear, at least according to Dr Ivers, that the opinions of the vascular surgeons are likely to be most helpful in the disposition of important issues relating to causation and quantification of damage.  
[22]	It ought to be observed in r 242 UCPR that there is a distinction between evidence provided by a treating surgeon and his opinions upon matters contained in r 424(1)(c) UCPR,  which are excluded from the operation of Chapter 11 Part 5 of the UCPR. In the present case, as Dr Quinn is a treating surgeon it is appropriate that the defendant be entitled to obtain a report from a non-treating independent vascular surgeon.  The present case clearly diverges from the circumstances in Hinrichsen, in the sense that in Hinrichsen there was one treating orthopaedic surgeon and, in the statutory phase, an independent reporting surgeon. 
[23]	In the circumstances I conclude that it is neither unreasonable nor unduly repetitious to require the plaintiff to attend upon an independent vascular surgeon for a medicolegal report.  
Entry for Trial
[24]	By making its application, albeit unsuccessfully, for inspection and testing of machinery by an expert, the plaintiff has made it plain that its case is not ready to proceed to trial.  Rule 429 UCPR requires expert evidence to be disclosed within 90 days of the close of pleadings.  The claim has been amended and further amended.  Indeed, the directions sought by the plaintiff include the filing of an amended defence and an amended reply.  It is plain therefore that it is premature to set the matter for trial. 
[25]	Accordingly paragraph 6 of the plaintiff’s application seeking entry for trial is dismissed. 
Miscellaneous other orders
[26]	The parties have agreed to orders concerning the service of further pleadings and that at a latter and more appropriate time directions may be made to facilitate compliance with practice direction 18 of 2018.  The parties also agree there ought to be liberty to apply and orders to facilitate assessment by video conference or eMedicine in circumstances where the plaintiff is prevented from personal attendance due to COVID-19 travel restrictions.  In paragraph 3 of their application, the plaintiff also seeks an order that “[t]he parties be at liberty on three days [sic] notice to relist this application on the 5th of May 2020, in the event there is a dispute between the parties as to a party’s pleading complying with the Uniform Civil Procedure Rules 1991 [sic].”  As the parties have both urged upon me the granting of a general liberty to apply order I am content to make that order. That being said, I am not content to make it in the terms as set out in paragraph 3 of the application.  If either party has any difficulty with the pleadings then the r 444 UCPR procedure ought to be adopted.  I therefore decline to make an order in terms of paragraph 3 of the application.  
[27]	The plaintiff has sought an order that costs be costs in the cause.  The defendant has sought an order that the plaintiff pay its costs. Section 318C WCRA is prima facie engaged.  In the event there is no agreement as to the appropriate costs order, I will hear from the parties as to costs. 

[28]	I make the following orders:
1.	The plaintiff attend an appointment (to be arranged by the defendant) with a rheumatologist selected from a panel provided by the defendant for the purpose of being examined and preparation of a medico-legal report on the following terms: 
a.	The plaintiff is to be examined no later than 20 April 2020; 
b.	In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the rheumatologist; 
c.	The costs of the examination and report are the responsibility of the defendant; 
d.	The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and 
e.	The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant. 
2.	The plaintiff attend an appointment (to be arranged by the defendant) with a vascular surgeon selected from a panel provided by the defendant for the purpose of being examined and the preparation of a medico-legal report on the following terms: 
a.	The plaintiff is to be examined no later than 14 May 2020;
b.		In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the vascular surgeon; 
c.		The costs of the examination and report are the responsibility of the defendant;
d.	The defendant pay the reasonable expenses of the plaintiff in attending the appointment; and
e.	The report is to be disclosed to the plaintiff within 21 days of receipt by the defendant. 
3.	The defendant file and serve its Defence to the Further Amended Statement of Claim by 14 April 2020. 
4.	The plaintiff file and serve any Reply to the Defence to the Further Amended Statement of Claim by 23 April 2020. 
5.	The parties are at liberty to apply on the giving of three business days’ notice in writing to the other party.