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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mearns v Smedvig Ltd & Ors [1998] ScotCS 76 (25 November 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/76.html Cite as: [1998] ScotCS 76

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The pursuer in this action seeks reparation for injuries said to have resulted from an accident on an oil platform in the North Sea on 17 February 1992, when a briefcase containing books and papers fell from a helicopter as the pursuer was engaged in unloading the cargo of luggage. The pursuer avers that as a result of this accident he suffered an acute flexion injury to his lumbosacral region and sustained a chronic strain of the lumbosacral interspinous ligament. It is also averred on the pursuer's behalf that, in summary, in addition to his continuing physical pain, he suffers from a recurrent depressive disorder and adjustment disorder, which are sequelae of the accident. The pursuer's level of disability is averred to be the product of the inter-action of the physical and psychological sequelae of the accident, both of which act to perpetuate the degree of pain and disability experienced.

The first defenders contend in their averments inter alia that if the accident occurred the pursuer simply sustained soft tissue bruising, and that he did not suffer any flexion injury. They aver that the pursuer has no valid continuing symptoms; that on objective medical testing the pursuer displayed a range of inappropriate and exaggerated responses; and that on disguised testing he exhibits a normal range of movements in his spine. The first defenders also adopt more detailed averments to the same broad effect made on behalf of the third defenders and related to specific examinations by named consultant surgeons.

Against that background of averment I heard a motion on behalf of the first defenders, the terms in which it was enrolled being as follows:

In moving the motion, counsel for the first defenders stated that in September 1998 the solicitors acting for the first defenders had requested that the pursuer submit to the medical examination envisaged in the motion but despite the attempts made to allay their concerns the pursuer's agents continued to withhold their agreement to their client undergoing that examination. The proposal was that the pursuer be required to undergo examination by Mr Grant at a suitable venue in the Inverness area. On my asking about the nature of Mr Grant's medical qualifications, counsel for the first defender said, that despite his having made inquiry in that regard, he could not say that Mr Grant had any medical qualifications or indeed any other relevant professional qualifications. As I understood it, Mr Grant was employed by, or associated with, a company called Blankenship Systems Ltd in Norwich, who were in turn involved in the franchising of what was described as "The Blankenship System" (TM)[to which I shall refer as "the System"]. Promotional sales literature relating to the System which had been provided to the pursuer's advisers was furnished to me and under general reference to that literature, counsel for the first defenders stated that the System, which he accepted had not been the subject of evidence in any court in Scotland, was a system for testing and evaluating muscular and skeletal disabilities. Its aim, said counsel, was to provide an "objective" assessment of disability. Counsel did not elaborate on how that objectivity was supposedly achieved other than to refer to the System involving the carrying out of tests on and by the subject, the results of which tests were fed into a computer which thereafter provided a print-out of certain results. Counsel was not able to furnish any independent medical view of the utility or validity of the System. Counsel had been informed that 30% of referrals came from plaintiffs and occasionally produced results favourable to them. Although the examination sought by the defenders would require the pursuer inter alia to carry out a variety of exercises, the monitored results of which would apparently be fed into the computer, there should be no concern for patient safety since the System had been in existence in the litigious climate of the American legal systems for some 17 years.

Counsel for the first defenders, in further support of his motion, referred to Junner v North British Railway Co (1877) 4R686 which affirmed the power of the Court to require the progress of a pursuer's claim for damages for personal injury to be conditional on his undergoing a medical examination by medical practitioners instructed by the defending party. The justification for that power was expressed by the Lord Justice Clerk as follows:

In anticipation of what he perceived to be the standpoint of opposing counsel, it was submitted by counsel for the first defenders that the test was not, or should not be, whether the proposed examiner was medically qualified but whether the defending party would be materially prejudiced in the expert evidence available to him were the pursuer to refuse to submit to examination. There was no logical reason why the power to order a pursuer to submit to examination should be confined to examination by qualified medical practitioners. In so far as it sought to draw such a line, the decision of Sheriff B.A. Murphy in Rawlinson v Initial Property Maintenance Ltd 1998 S.L.T. (Sh. Ct.) 54 was unsound. In McLaren v Remploy Ltd 1996 S.L.T. 382 Lord Macfadyen had envisaged, albeit obiter, that the court might order examination by a clinical psychologist and a clinical psychologist was not, in fact, a medical practitioner.

If the pursuer were examined in the manner proposed, there would be available evidence which was claimed to be objective evidence of the nature and extent of the pursuer's disabilities. The defenders should not be deprived of the opportunity of leading that evidence. The validity and usefulness of the System would be a matter to be explored at the proof.

Counsel for the first defenders also added that he was told that in an English case Buckley J. had made a favourable comment about the System but counsel did not have any information as to when, in which case, or in what context, the comment had been made.

Mrs Paton, Q.C., who appeared for the pursuer, opposed the motion. She pointed out firstly that the pursuer had already been the subject of several examinations by consultant orthopaedic surgeons and had also undergone a psychiatric examination at the invitation of the defending parties. The pursuer had reasonably subjected himself to all appropriate examinations by properly qualified experts instructed by the defenders and there was accordingly no call for the pursuer to be compelled to submit to yet a further examination.

Secondly, by way of objection to the System in particular, counsel for the pursuer said that the System was not known to the pursuer's legal advisers nor, more importantly, to any of his medical advisers. The only information available was that contained in the promotional literature. Although Mr Keith L Blankenship was described in the literature as "acclaimed clinician, author, president and founder of the Blankenship Corporation and the Blankenship System ..." it was not stated that he had any medical qualifications. It was not said that Mr Grant had any medical qualifications. Further, nothing had been offered by way of independent confirmation from any established medical source that the methods of examination and the evaluation of their results were medically sound or valid. Mrs Paton also pointed to the issues surrounding the propriety of what was proposed. Were the motion granted, the pursuer would be obliged to submit his body to examination by someone who was not a member of the medical profession nor apparently a member of any other professional body. There was nothing indicating that the other "clinicians" referred to in the promotional literature were medically qualified or had any form of professional qualification from an independent body.

While accepting that, as was apparent from Junner, it was within the discretion of the Court to require a pursuer claiming damages for personal injury to undergo medical examination by an appropriate qualified medical practitioner if that were necessary for the proper disposal for the case, Mrs Paton pointed out that hitherto the courts had not obliged - and in her submissions should not oblige - a pursuer to undergo examination by persons other than duly qualified medical practitioners. She referred to Duncan v Lord Advocate 1987 S.L.T. 349 in which objection had been taken to a request for examination by a particular named consultant otolaryngologist, the objection being that those acting for the pursuer had lost confidence in that consultant. The Lord Ordinary (Lord Allanbridge) in that case, having analysed the criticisms as amounting to little more than a suggestion that the consultant was not always sympathetic, overrode the pursuer's objection. However, Mrs Paton stressed that inherent in the Lord Ordinary's decision (p.351F, ff) was the fact that the consultant in question was a competent expert, carrying out standard tests. He was a properly qualified expert who would carry out a proper and professional examination. In McLaren v Remploy, where it had been contended that it was incompetent to require a pursuer to submit to psychological examination as distinct from physical examination, the Lord Ordinary had expressed a provisional view that Junner might extend to psychological examination but the scope of that examination might require some limiting definition. In Rawlinson, in which the defenders had sought to have the pursuer submit to examination by an employment and vocational rehabilitation consultant, Sheriff Murphy, after a review of the authorities, had held that for the court to insist upon a pursuer submitting himself to examination by a person who was not medically qualified would be an unnecessary invasion of his privacy, which was not warranted. Although Rawlinson was a decision in the Sheriff Court the view that a person should not be required to be examined by a person other than a medical practitioner was one which should be followed. A duly qualified member of the medical profession could be assumed to have the necessary technical knowledge to carry out an examination for legal purposes in a way which would not inflict pain on or otherwise adversely affect the patient's health. By contrast, the promotional literature relating to the System indicated that the examination which the present pursuer would require to undergo would include his carrying out many gymnastic exercises and even the promoters conceded that "occasionally some patients report slight discomfort for a few days after completing the evaluation". Further, members of the medical profession were subject to professional standards in regard to the propriety of the manner and extent of their examinations. If invited to carry out an examination for forensic purposes they could be assumed to carry out only recognised and standard procedures. It was also important to bear in mind that in addition to standards of competence, members of the medical profession were subject to ethical standards including duties in regard to such matters as patient confidentiality. The reasoning of the Sheriff in Rawlinson to the effect that it was not appropriate to order examination by someone who was not medically qualified should therefore be followed and the motion should be refused.

I would observe at the outset of my decision that although in her submissions Mrs Paton placed weight upon what was said by Sheriff Murphy in his opinion in Rawlinson it should be noted that the examination which the Sheriff was asked to impose on Mr Rawlinson as a condition of Mr Rawlinson's being permitted to pursue his claim was an examination by an employment and vocational rehabilitation consultant, the claimed justification for seeking the examination being effectively that the consultant required to interview the subject in order to arrive at his own assessment of such matters as the subject's demeanour, social presentation, intellectual capacity, employment history and the like all of which might be relevant to the consultant's view of the subject's future employment prospects. By contrast, in the present case, the examination which the first defenders seek to impose upon the pursuer, Mr Mearns, is a "medical" examination in the sense that the proposal, as I understand it, involves a physical examination of the pursuer's body and an exploration and testing of the extent to which the physical functioning of the body is impaired, albeit that Mr Grant, or the other unnamed persons who are proposed for the execution of this examination, are not said by the defenders to have any recognised medical qualifications or to be members of any recognised independent professional organisation or body. Thus, to my mind, the issue raised in the present case differs from that in Rawlinson.

Although counsel took as their starting point the opinion of the Lord Justice Clerk in Junner I consider that, as was pointed out by Lord Allanbridge in Duncan v Lord Advocate, it is possible to find additional assistance from the Court of Appeal's decision in Starr v National Coal Board [1977] 1 W.L.R. 63. In his opinion, Lord Allanbridge set out the principle stated by Scarman L.J. at p.70F in Starr, which for convenience I quote again:

Scarman L.J. went on to point out that amongst the many other factors to which regard would be had two fundamental rights entered into the balance, namely the plaintiff's right to personal liberty and, on the other hand, the defendant's right to defend himself. The matter was put thus by Geoffrey Lane, L.J. in his opinion in Starr at p.75F:

In the present case the physical examination of his body which the defenders seek to compel upon the Mr Mearns is, of course, an invasion of the pursuer's privacy and a convenient starting point in the examination and balancing of the competing considerations to which Scarman, L.J. and Geoffrey Laine, L.J referred are the grounds upon which Mr Mearns and his advisers object to that invasion of the pursuer's privacy.

As I understand it perhaps foremost among those objections is the fact that the pursuer is being asked to submit to a physical examination of his body by a person or persons none of whom is said by the defenders to have any recognised medical qualification or indeed any particular professional qualification. Since, as is apparent from what was said in Junner, the purpose of compelling a medical examination is to enable the medical expert instructed by the defender to carry out a medical examination of the pursuer in order to provide him with a proper basis upon which to give expert evidence it is, to say the least ,odd that the person to whom it is asked that the pursuer submit himself is one who it is not said to have any medical or other professional qualification. But I think there is also substance in other aspects of this ground of objection. An unqualified person may lack the appropriate medical knowledge to know whether what he is doing in the course of the examination or what he requires the patient to do in the course of the examination may cause pain or have some other detrimental effect upon the well-being of the subject. In that regard, it is to be noted that, so far as may be deduced from the promotional literature, the System involves the subject in the active performance of a great variety of physical or gymnastic exercises and even the promotional literature concedes that pain and discomfort may be experienced over the ensuing days. I therefore do not think that the pursuer's apprehensions in that regard may simply be dismissed as being without any substance.

Moreover, where a medical examination is conducted by a duly qualified medical practitioner it is possible to derive from his status and qualification as such a medical practitioner and from his membership of a professional body an assurance both that the examination will be carried out in a medically competent way and also that it will be carried out with proper regard to professional ethics and proprieties. The latter includes among other things assurance as to the maintenance of patient confidentiality. The concerns of the pursuer's advisers that the defenders' proposal (which, for example, would apparently oblige the pursuer to allow details of his examination by a non-qualified person to be recorded and stored on a database situated outside the United Kingdom and operated on a commercial basis) do not carry those customary assurances stemming from membership of a professional body are, in my view, also not without some substance.

Another strand of objection was related to what might be described as the novel or unorthodox nature of the proposed medical examination. As Mrs Paton pointed out, Mr Blankenship (whom one is invited to assume to be the devisor of the System), is not said to have any medical qualification and there has not been put forward any independent material from appropriately qualified persons containing any view of the appropriateness or the validity or utility of the proposed examination. Counsel for the first defenders accepted the novelty of the System in so far as its cisatlantic use was concerned and I recognise the possibility that in due course it may be that at least some of the medical profession in the United Kingdom may come to accept that the System as having some validity and utility. However, on the basis of the submissions made to me it appears that it cannot be said that the medical profession has yet given the System that recognition. Accordingly what is being demanded of this pursuer is that he perform a pioneering rôle and subject himself to a novel or unorthodox examination and assessment. If he were so required, it appears to me that his advisers would almost certainly require to undertake the additional, novel and considerable burden of investigating, and taking advice upon, the methodology of the System, its equipment, tools, databases and software referred to in the promotional literature. It is highly unlikely that that could be achieved to any real extent in the short interval before the proof set down for 8 December 1998.

I accordingly consider that the unwillingness of the pursuer and his advisers to assent to the proposed examination is based on distinctly intelligible grounds and cannot in any way be said to capricious. Nevertheless, the question remains whether the needs of the defence call for the Court to override the pursuer's objection to the examination by at least making his submission to such an examination a condition for his pursuing his claim. In other words, paraphrasing what was said by Scarman, L.J. in the passage from his judgment in Starr which I have already quoted, one must also ask whether the pursuer's refusal is such as to prevent the just determination of the cause.

I do not consider that the refusal to undergo the examination would have that result. The pursuer has evidently responded agreeably to all requests for medical examination by all the duly qualified medical practitioners instructed by the defenders. He has thus provided the defenders with all the facilities usually accorded to a defender for the preparation of expert evidence regarding the nature and extent of a pursuer's disability. Although the claimed physical disability is complicated by the existence of a psychological or psychiatric disorder, cases involving such complications are not uncommon and duly qualified medical expertise is available to deal with them.

Although I appreciate that the first defenders may have a desire to pioneer in this country a novel system which supposedly claims objectivity in the evaluation of muscular or skeletal disability, I do not consider that that desire outweighs or overrides the understandable objections advanced on behalf of the pursuer to his compulsory participation in that pioneering exercise. In my view, the ponderation of considerations supports the pursuer and I am accordingly not prepared to exercise my discretion in the defenders' favour. The motion is accordingly refused.