A. A. Okulaja Vs Adamo Alli (1971)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

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 Ikeja Judicial Division for damages in a running down case. The plaintiff had claimed a sum of 4,205,17s 0d pounds 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 osteoarthritis. 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 reasonably 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 osteoarthritis, 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.