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ΚΕΙΜΕΝΟ ΑΠΟΦΑΣΗΣ:

(1982) 1 CLR 524

1982 October 13

 

[L. LOIZOU, DEMETRIADES, PIKIS, JJ.]

ANDREAS KYRIACOU AND ANOTHER,

Appellants-Defendants,

v.

GEORGHIOS STYLIANOU,

Respondent-Plaintiff.

(Civil Appeal No. 6133).

Practice—Stay of proceedings—Medical examination of plaintiff——Principles applicable—Road accident case—Application for second medical examination of plaintiff by a doctor of choice of defendants—Onus to satisfy Court of the need of requiring plaintiff to submit to one or more examinations rests on the defendants—Order for such an examination constitutes an invasion of the personal liberty of the subject and should be ordered if essential in the interests of justice—To justify a second or subsequent examination facts must be disclosed justifying such an examination—Nothing that was advanced before Court of Appeal justifies interference with the way the trial Court exercise its discretion to refuse the applicantion.

This was an appeal against a ruling of the District Court of Limassol, whereby an application of the defendants, in an action arising from a road accident, for a second medical examination of the plaintiff by another doctor of their choice, was refused in the exercise of the Court's discretion.

The main reason put forward for requiring the plaintiff to submit to a second examination, was to enable the defendants to test the correctness of the opinion of the radiologist as to the existence of "stenosis", an opinion that was not made available to Dr. Georghiou who examined the plaintiff at the instance of the defendants. There was no suggestion that the X-rays, as distinct from the report, were not made available to Dr. Georghiou, or that there was any refusal to make these X-rays available to the appellants for the opinion of another radiologist.

Held, that the onus to satisfy the Court of the need of requiring the plaintiff to submit to one or more medical examinations, by a doctor of the choice of the defendants, rests on the party seeking such examination; that any such order constitutes an invasion of the personal liberty of the subject, that should be ordered only if the Court takes the view that this is essential in the interests of justice; that the reasonableness of the request for an examination, as well as the reasonableness of the grounds upon which refusal is based, must be carefully examined; that full disclosure must be made of these reasons; that the Court must ultimately balance the need to sustain the liberty of the subject with that of safeguarding the interests of justice; that the inference is that neither liberty nor justice should be suppressed, the one at the expense of the other; that nothing was laid either before the trial Court or before this Court to justify directing the plaintiff to submit to a second medical examination by another orthopaedic surgeon; that it would constitute an unacceptable intrusion into the liberty and privacy of the subject, if he were to be required to submit to as many medical examinations as the defendants in a given suit may deem appropriate; that this Court is in agreement with the trial Court that to justify a second or subsequent medical examination, at the instance of the defendants, facts must be disclosed, justifying such examination; that the facts necessary to justify a new examination at the instance of the defendants, must be such as were not available at the time of the first examination and could not reasonably be discerned; that nothing that was advanced before this Court justifies interference with the way the trial Court exercised its discretion; accordingly the appeal must be dismissed.

Appeal dismissed.

Cases referred to:

Lane v. Willis [1972] 1 All E.R. 438;

Edmeades v. Thames Board Mills Ltd. [1969] 2 All E.R. 127;

Demosthenous v. Antoniou (1975) 1 C.L.R. 1;

Starr v. National Coal Board [1977] 1 All E.R. 243;

Prescott v. Bulldog Tools Ltd. [1981] 3 All E.R. 869;

Megarity v. D.J. Ryan & Sons Ltd. [1980] 2 All E.R. 832.

Appeal.

Appeal by defendants against the ruling of the District Court of Limassol (Loris, P.D.C. and Hadjitsangaris, S.D.J.) dated the 4th June, 1980 (Action No. 740/79) whereby an application of the defendants, in an action arising from a traffic accident, for a second medical examination of the plaintiff was refused.

A. Dikigoropoulos, for the appellants.

A.S. Myrianthis, for the respondent.

L. LOIZOU J.: We have considered the case during the interval and we do not think we want to hear Mr. Myrianthis. Mr. Justice Pikis will deliver the judgment of the Court.

PIKIS J.: The appeal is directed against a ruling of the District Court of Limassol, whereby an application of the defendants, in an action arising from a road accident, for a second medical examination of the plaintiff by another doctor of their choice, was refused in the exercise of the Court's discretion. Relying on the authority of Lane v. Willis [1972] 1 All E.R. 438, the Court rejected the application, holding that nothing happened after the first examination, requiring the plaintiff, through the indirect process of stay of the proceedings, to submit to a second examination. The inference from the succint but powerful judgment of the Court, is that they regarded, in the circumstances of the case, a second examination as an unjustified invasion of the liberty of the plaintiff.

It is evident from the record of the proceedings and the judgment of the Court, that the principal reason advanced for a second examination arose from the dichotomy of interest between defendants and the insurers who, apparently, took up the defence of the proceedings on their behalf. Very properly this ground was abandoned as a basis for the appeal, considering the merger of the interest of the defendants and the insurance, as far as third parties are concerned, such as the plaintiff, respondent in these proceedings.

Mr. Dikigoropoulos for the appellants, surveyed English and Cyprus case-law, on the principles governing the exercise of the Court's discretion in sanctioning a medical examination of the plaintiff at the instance of the defendants. The inherent jurisdiction of the Court to authorise such examination was first recognized in settled terms, in the case of Edmeades v. Thames Board Mills Ltd. [1969] 2 All E.R. 127. The jurisdiction of the Court emanated from its inherent powers to see that justice is done in the case. Consequently, the proceedings may be stayed, pending such examination, where the defendant would be put, without such examination, at a disadvantage in defending the proceedings. It is implicit from the judgment of the Court of Appeal that the outcome of a case should not depend on the tactical advantages that litigants may enjoy, but on the merits of the case of each party.

The principles propounded in Edmeades, supra, were followed in Lane v. Willis, supra. The onus to satisfy the Court of the need of requiring the plaintiff to submit to one or more medical examinations, by a doctor of the choice of the defendants, rests on the party seeking such examination. Any such order constitutes an invasion of the personal liberty of the subject, that should be ordered only if the Court takes the view that this is essential in the interests of justice.

The Supreme Court of Cyprus, in Demosthenous v. Antoniou (1975) 1 C.L.R. 1, recognized that a similar power to that exercised by English Courts vests in Cyprus Courts that may, in appropriate circumstances, stay proceedings pending a medical examination. The discretion of the Court should be exercised on much the same lines as those indicated in the English authorities on the subject.

In Starr v. National Coal Board [1977] 1 All E.R. 243, further guidance is offered as to the manner in which the Court should exercise its discretion. The reasonableness of the request for an examination, as well as the reasonableness of the grounds upon which refusal is based, must be carefully examined. A full disclosure must be made of these reasons. The Court must ultimately balance the need to sustain the liberty of the subject with that of safeguarding the interests of justice. The inference is that neither liberty nor justice should be suppressed, the one at the expense of the other. As Webster, J. indicated in a subsequent case, that of Prescott v. Bulldog Tools Ltd. [1981] 3 All E.R. 869, this balancing exercise must start from the premise that liberty and justice are equally important for the well-being of citizens and society at large. Lastly, the case of Megarity v. D. J. Ryan & Sons Ltd. [1980] 2 All E.R. 832, suggests that the Court should, at all time, strive to ensure fairness to both parties.

The main reason put forward before us for requiring the respondent to submit to a second examination, is to enable the defendants to test the correctness of the opinion of the radiologist as to the existence of "stenosis", an opinion that was not made available to Dr. Georghiou who examined the plaintiff at the instance of the defendants. There is no suggestion that the X-rays, as distinct from the report, were not made available to Dr. Georghiou, or that there is any refusal to make these X-rays available to the appellants for the opinion of another radiologist. Nothing was laid either before the trial Court or before us to justify directing the plaintiff to submit to a second medical examination by another orthopaedic surgeon. It would constitute an unacceptable intrusion into the liberty and privacy of the subject, if he were to be required to submit to as many medical examinations as the defendants in a given suit may deem appropriate.

We are in agreement with the trial Court that to justify a second or subsequent medical examination, at the instance of the defendants, facts must be disclosed, justifying such examination. Arguably, the onus cast on the defendants becomes heavier with every new application. The facts necessary to justify a new examination at the instance of the defendants, must be such as were not available at the time of the first examination and could not reasonably be discerned. It is not the case of the appellants that a new examination has become necessary in view of the interval of time that elapsed from the first examination, whereupon the Court might deem it appropriate to order such examination, if necessary, in order to enlighten the Court as to the condition of the plaintiff at the time of trial; especially, if there is any allegation on the part of the plaintiff that his condition has become worse than was foreseeable at the time of the first examination. Of course, nothing that is said here should be construed as an encouragement to make such application, or as an attempt to forecast the exercise of the Court's discretion if faced in future with such an application.

We may end this judgment by saying that nothing that was advanced before us justifies interference with the way the trial Court exercised its discretion. It was perfectly open to them to decide as they did. As Mr. Justice Loizou indicated earlier on, we are unanimously of the opinion that the appeal must fail, and we so order.

In the result, the appeal is dismissed with costs.

Appeal dismissed with costs.

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