Where a claim turns on a person’s injuries, the defendant is entitled to have that person examined. Order 9 Division 4 of the National Court Rules 1983 sets out how.
Rule 36
The Division applies where the physical or mental condition of a person is relevant to a matter in question and either —
(i) that person is a party; or
(ii) a party claims relief for the benefit of that person under Part IV of the Wrongs (Miscellaneous Provisions) Act (wrongful act or neglect causing death).
(2) “first party” means the party mentioned in (b); “person concerned” means the person whose condition is in question.
The Division covers the injured plaintiff, and the dependant for whose benefit a fatal accident claim is brought. It does not extend to witnesses or to strangers.
The condition must be relevant to a matter in question. In a personal injury claim that is self-evident — Order 8 Rule 33 requires the statement of claim to particularise the injuries, the treatment and any permanent disability. In other cases the relevance must be shown.
Rules 37 and 38
37(1) Any party other than the first party may serve on the first party a notice for the medical examination of the person concerned.
37(2) The notice shall be a request that the person concerned submit to examination by a specified doctor at a specified time and place, and shall be in Form 39.
38 The party serving the notice shall, on request by the first party, pay a reasonable sum to meet the travelling and other expenses of the person concerned of and incidental to the examination — including the expenses of having a doctor chosen by him attend under Rule 41.
Rule 37(2) is careful: the notice is a request. No order compels attendance at this stage, and no leave is needed to serve it.
What gives the notice force is Rule 39. But that force depends on the expenses having been paid if requested — so a party serving a notice should deal with expenses promptly when asked.
The notice must specify the doctor, the time and the place. A notice that leaves those to be arranged does not comply.
Rule 39 — stay of the claim
(1) Where a notice has been served, a reasonable sum has been paid if requested, and the person concerned does not submit to examination in accordance with the notice, the Court may, on terms, stay the proceedings as to any claim for relief by or for the benefit of the person concerned, and order the refund of the sum to the party who paid it.
(2) Where, before the proceedings are set down for trial under Order 10 Division 1, a party files notice of a motion for a stay, the proceedings shall, unless the Court otherwise orders, be stayed pending disposal of the motion.
The stay operates automatically on the filing of the motion — not on its determination. Merely filing a notice of motion for a stay under sub-rule (1), before the case is set down for trial, halts the proceeding until the motion is disposed of.
That is a strong incentive for a plaintiff to attend the examination. Refusing means the claim stops moving, and the defendant need only file the motion to bring that about.
Note the limits: the stay reaches only the claim by or for the benefit of the person concerned, not the whole proceeding where others also claim; and the automatic operation applies only before setting down.
Rules 40 and 41
40(1) The Court may, on terms, make orders for the medical examination of a person concerned, including an order that they submit to examination by a specified doctor at a specified time and place.
40(2) Where such an order is made, the person concerned shall do all things reasonably requested and answer all questions reasonably asked of him by the doctor for the purposes of the examination.
41 The person concerned may have a doctor chosen by him attend his examination.
A person who attends but declines to co-operate — refusing to answer, refusing to be moved, refusing tests — has not complied. The obligation is to do all things reasonably requested and answer all questions reasonably asked for the purposes of the examination. The qualification cuts both ways: the doctor cannot stray into matters unrelated to the examination.
Rule 41 is a real protection. The person being examined may have their own doctor present, and under Rule 38 the requesting party must fund it if asked.
Rule 42 — exchange both ways
(1) The examining doctor shall make a written report and give it to the party serving the notice or obtaining the order.
(2) That party shall serve a copy of the report on the first party.
(3) Where the person concerned had their own doctor attend, that doctor shall make a written report and give it to the first party.
(4) The first party shall serve that report on the party who served the notice or obtained the order.
The exchange runs in both directions, and the language is “shall” throughout. A defendant who obtains an examination cannot keep an unhelpful report to themselves; a plaintiff whose own doctor attended cannot withhold that report either.
This is a deliberate departure from the ordinary position on litigation privilege, which would otherwise protect a report obtained for the purposes of the case.
Rules 36 to 42 are applicable to enable a second or further medical examination of the person concerned.
So the process may be repeated — where the condition has changed, where a specialist opinion is needed, or where time has passed before trial. Each further examination carries the same obligations as to expenses, the attending doctor and the exchange of reports. On the parallel power over property, see inspection of property.
Sources
- National Court Rules 1983 — O 8 r 33; O 9 rr 36–44; O 10 Div 1; Form 39
- Wrongs (Miscellaneous Provisions) Act (Chapter 297) — Pt IV
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.