A. A. OKULAJA (DEFENDANT/APPELLANT)
ADAMO ALLI (PLAINTIFF/RESPONDENT)
(1971) All N.L.R. 244
Division: Federal Supreme Court
Date of Judgment: 9th July, 1971
Case Number: SUIT NO. 202/1970
Before: Ademola, C.J.N., Madarikan, Udoma, JJ.S.C.
Appeal from the High Court (Lagos).
(1) The court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. In this case the question of unreasonableness stems from the defendant/appellant for no reason had been put forward for asking the plaintiff to go to see the doctor of the defendant's choice.
(2) Except in appropriate cases, the courts will not lend themselves to this novel practice of sending a victim in a running down case from one doctor to another to satisfy the whim of a defendant or an Insurance Company.
(3) The decision in Edmeade's case did not say that in all running down cases the courts, at the request of the defendant are under a duty to stay proceedings until the plaintiff submitted himself to examination by a doctor of the defendant's choice.
Case referred to:
Edmeades v. Thames Board Mills, (1969) 2 Q.B. 67.
Rules and Orders cited:
High Court (Civil Procedures) Rules, Order 52 rule 1. Rule 2.
APPEAL FROM THE HIGH COURT (LAGOS).
SUIT NO. 202/1970.
Bentley, (with him, Oyetunde) for the Defendant/Appellant.
Oduwole for the Plaintiff/Respondent.
Ademola, C.J.N. (delivering the judgment of the court):-This in an appeal from the ruling of Beckley J., at the Ikeja High Court refusing to make an order on a motion by the defendant to stay further proceedings in a case until such time as the plaintiff submit to examination by a doctor appointed by the defendant.
The matter arose from a claim in the High Court of Ikeka Judicial Division for damages in a running down case. The plaintiff had claimed a sum of £4,205-17s-0d for damages suffered in consequence of his being run down by the defendant who, as alleged, drove his car negligently and recklessly. Pleadings had been ordered and filed, though not without delay on the part of the defendant to file his defence which, apart from denial that the defendant was negligent in the manner he drove his car, put the blame for the accident on the negligence of the plaintiff, and averred in paragraph 5 as follows:-
"5. The defendant had no knowledge of the injuries suffered by the plaintiff and puts him to the strict proof thereof."
Six months after filing his defence, and indeed after series of letters had passed between solicitors on either side, and the plaintiff having refused to subject himself for an examination by a doctor of the defendant's choice, the defendant filed a motion seeking the doctor aforesaid pursuant to Order 52, r. 2. It is from a refusal to make the order sought that the defendant was granted leave to appeal to this Court.
It is common ground that the court cannot order a plaintiff to submit himself for medical examination by a doctor, not of his own choice but chosen by the defendant, but Mr Bentley for the defendant/appellant before us argued that the court has the power to stay the proceedings until the plaintiff submits himself for medical examination as requested by the defendant. For this, he relied on the case Edmeades v. Thames Board Mills Ltd. (1969) 2 Q.B. 67. The test in that case, we observed, appears to be whether or not the request is reasonable.
It was submitted before us that the refusal of the plaintiff to submit himself for examination is unreasonable since he gave no reason for his refusal. On the other hand, on behalf of the plaintiff it was contended that the court is without jurisdiction to make the order the defendant asked for and that Edmeade's case can be distinguished from the present case since the defendant in the former case admitted liability.
The point raised in this case is a novel one but it is not without importance to the courts of first instance which try running down cases. This Court therefore has to lay down principles which will guide courts of first instance trying such cases. The facts in Edmeade's case were not contested. The defendants, employers of the plaintiff, did not contest a claim for liability for personal injuries to the plaintiff. The only issue was the question of damages. There was an order that each side was to call one medical witness who would examine the plaintiff. The plaintiff's medical adviser who examined him submitted his report and served the defendant's medical adviser with a copy of his report. In it, it was stated that as a result of the accident the plaintiff developed osteoarthritis, which fact was not mentioned earlier in the statement of claim. It became obvious that the statement of claim would have to be amended. On the face of this, the defendant's medical adviser demanded to have the plaintiff examined by a specialist who could deal with osteoarthritis. The plaintiff refused to be examined by another doctor of the defendant's choice other than the one who had examined him. The defendant submitted a list of six surgeons other than the one who had examined him earlier. The plaintiff refused any examination by another doctor but was willing to submit himself for examination by the defendant's doctor who examined him before, whereupon the defendant applied to the Master in Chambers for stay of the proceedings until the plaintiff submitted himself for examination by one of the six doctors. The Master refused to make the order.
The matter went to appeal to Milmo, J. who upheld the decision of the Master. On an appeal to the Court of Appeal, that Court held that the refusal was unreasonable. In his judgment, Denning, M.R. said:-
"This Court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not.
I think that the request of the defendants was perfectly reasonable. They were faced with a new allegation which had not been made in the statement of claim, an allegation of osteo-arthritis. The defendants ought in all reason to have an opportunity of considering it and being advised upon it. They would need it in order to assess the amount to pay in court so as to dispose of the whole matter without it coming to trial. It might be different if the defendants had suggested one particular name to which the plaintiff could reasonable object. That seems to be the explanation now of Pickett's case. But when six names are suggested and no reasonable objection taken to them, I have no doubt that the defendants ought to have the opportunity of having the plaintiff medically examined so that evidence can be given by one of those doctors. The court can ensure this result by granting a stay unless and until the plaintiff submits himself to such a medical examination."
Davies and Widgery L.JJ. (the latter as he then was), each in his own judgment agreed with the Master of the Rolls. The appeal was therefore allowed and a stay granted accordingly.
We are unable, on the facts of the case, to quarrel with this judgment. We agree with it. If the plaintiff had earlier submitted himself to an examination by the defendants' doctor, on the face of the new allegations which had not been made earlier, an allegation of osteo-arthritis, which has since arisen, it is but reasonable that the plaintiff should submit himself to an examination by one of the specialists out of the six names submitted by the defendants. There was that incidence of original agreement between parties that a doctor on either side would examine the plaintiff and that there would be an exchange of reports. That we note, is not an incidence in the instant case. It might be otherwise as far as this Court is concerned if there was no previous agreement for examinations by the defendant's doctor.
There is another aspect of this matter we have had to consider. The plaintiff in this case, it would appear from the affidavit before the court did not specifically engage a doctor to treat him. He was taken to the Government Hospital (Orthopaedic) and treated by a Government Senior Specialist there; he had no choice. The report of the doctor (Dr Bailey) is available to both sides, and indeed, the defendant's Counsel had asked for and obtained one. This is the only report and there is no question of a new issue having arisen.
Counsel for the defendant/appellant said that the plaintiff/respondent was unreasonable as he would give no reason for refusing to submit himself for examination by the defendant's doctor. We think the question of unreasonableness stems from the defendant/appellant. What reason has been put forward for asking the plaintiff to go and see Dr Adewole, a doctor of the defendant's choice? A letter dated 30th July, 1969, and another dated 5th August, 1969, both to the plaintiff's Counsel, peremptorily ordered the plaintiff to attend at Dr Adewole's clinic and submit himself for an examination at a given hour. Then, in an affidavit sworn to on 23rd December, 1969 by a clerk in the employ of the defendant's solicitors, paragraph 5 states as follows:-
"In order to prepare their defence adequately as to quantum, the defendant's solicitors tell me that they consider necessary that the plaintiff who was examined medically by a doctor appointed by him should be examined by a doctor appointed on behalf of the defendant not only because of the size of the claim and the nature of the injuries but also in view of the time that had elapsed since the date of the first report."
Apart from the fact that this paragraph of the affidavit cannot be regarded as evidence of what it states, can any court regard the two letters, to which we have referred, a reasonable request for the plaintiff to submit himself for examination? We are not in the least surprised that the plaintiff's solicitors reacted so sharply to the suggestion.
As we observed earlier, Dr Bailey was not a doctor of plaintiff's choice from the outset. He had no choice. Dr Bailey has been co-operating with the defendant's solicitors to whom a copy of his report was forwarded on request. If it was felt that time had elapsed since the date of the first report-a situation, we observe from the record before us, caused by the defendant not filing his defence within the prescribed time-a request could have been made for further examination of the plaintiff by Dr Bailey.
This Court must make it clear that, except in appropriate cases, the courts will not lend themselves to this novel practice of sending a victim in a running down case from one doctor to another to satisfy the whims of a defendant or an insurance company.
As we stated earlier on, in Edmeade's case (supra), the question of liability had been settled; it was the quantum of damages which was in issue and which was brought about by a new situation in the plaintiff's health which was not known earlier. The plaintiff had earlier agreed and had submitted himself to examination by the defendant's doctor. What was asked of him was that in view of the new situation which had arisen, a specialist in osteo-arthritis surgery chosen by him from a list of six names submitted by the defendant should be consulted. All these elements have not arisen and are not existing in instant case. We are therefore of the opinion that Edmeade's case has not application here.
If however the decision in that case (Edmeade) goes further to say, as submitted by Counsel for the appellant, with which submission we do not agree, that in all running down cases the courts, at the request of the defendant, are under a duty to stay proceedings until the plaintiff submits himself to examination by a doctor of the defendant's choice, we are not prepared to follow it.
For all the reasons hereinbefore mentioned, we uphold the ruling of the learned judge in refusing the application before him for a stay.
The appeal is therefore dismissed with 35 guineas costs to the respondent.