1.2: Purpose and intention of these rules
5.41: Medical examinations

Case Summary

The Defendant requested that the Plaintiff attend a defence medical examination (“DME”) pursuant to Rule 5.41. The physician conducting the DME required the Plaintiff to sign a consent form. The Plaintiff argued that the Rules of Court did not require him to sign a consent form and therefore declined to do so. He further argued that any Order compelling him to attend for a DME should state that he was not required to sign or execute any authorization, consent or release.

Master Prowse questioned whether the parties were failing to fulfil their responsibilities under Rule 1.2(3), to identify the real issues in dispute and facilitate the quickest means of resolving the Plaintiff’s claim at the least expense. If a reasonable request from a member of the medical profession can be accommodated in a way that is not contrary to the Rules of Court, that accommodation should be provided. Indeed, medical examiners should be left to conduct examinations as they see fit unless there is a compelling reason for the Court to interfere. The Court cannot compel a doctor to conduct an examination under circumstances that the doctor objects to. If the Court constrains how particular plaintiffs are examined, the number of doctors willing to perform medical examinations will decline, raising both the price and length of time to complete the Discovery process in personal injury Actions. 

Master Prowse held that this was not a circumstance in which an independent physician was seeking to conduct a DME in a manner contrary to the express provisions of the Rules of Court. When a DME is sought, counsel may agree, pursuant to Rule 5.41, that the Plaintiff will attend. Master Prowse held that it was appropriate for the Plaintiff, when attending for a DME, to sign a consent form. Alternatively, the DME may take place under a Court Order issued pursuant to Rule 5.41(2). Such a Court Order should expressly state that the physician is entitled to touch the Plaintiff for the purpose of conducting the examination. However, the examination will ordinarily take place weeks or months after the Court Order has been issued, and as such, it is reasonable for the physician conducting the DME to obtain consent on the day of the examination.

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