South Australian Consolidated Acts

MOTOR VEHICLES ACT 1959 - SECT 127

127—Medical examination of claimants

        (1)         In this section—

"claimant" means a person who has made a claim, or on whose behalf a claim has been made, for bodily injury caused by or arising out of the use of a motor vehicle.

        (2)         A claimant must—

            (a)         submit himself or herself to any medical examination by a legally qualified medical practitioner nominated by the insurer that the insurer may require; and

            (b)         within 21 days of consulting a legally qualified medical practitioner in relation to the injury to which the claim relates, or such longer period as may be reasonable in the circumstances of the case or as the insurer may allow, inform the insurer, by notice in writing, of—

                  (i)         the name of the medical practitioner; and

                  (ii)         the day on which the consultation occurred; and

            (c)         within 21 days of receiving (either personally or through a legal practitioner engaged by the claimant) a written report from a legally qualified medical practitioner consulted by the claimant in relation to the injury, or such longer period as may be reasonable in the circumstances of the case, send a copy of that report to the insurer.

        (3)         A claimant cannot be required to submit to a medical examination under subsection (2)(a) more frequently than is permitted by the regulations.

        (4)         The cost of a medical examination under subsection (2)(a) must be borne by the insurer.

        (5)         If a claimant fails to comply with subsection (2)(a)—

            (a)         the claimant is not entitled, until he or she complies with the subsection, to commence proceedings or to continue proceedings that have been commenced in respect of the injury; and

            (b)         if proceedings have been commenced, the court may award costs against the claimant; and

            (c)         the claimant is not entitled to damages, compensation, interest or costs for any period during which the failure continues.

        (6)         If a claimant fails to comply with subsection (2)(b) or (c) and proceedings have been commenced before a court—

            (a)         the court may award costs against the claimant; and

            (b)         the court may take that failure into account in assessing an award of compensation in favour of the claimant.

        (6a)         Subsection (6) will not apply to any failure by a claimant to comply with subsection (2)(c) if the claimant has dealt with the medical report and taken other action in accordance with any rules of the court under which a party to proceedings may be relieved from the obligation to disclose to another party a medical report the disclosure of which would unfairly prejudice the party's case.

        (7)         In deciding on an award of costs under subsection (6)(a) or a reduction in an award of compensation under subsection (6)(b), the court may take into account—

            (a)         the effect that the non-compliance with subsection (2)(b) or (c) has had on the proper conduct of the case by any other party to the action; and

            (b)         the effect that that non-compliance may have had on the possibility of settling the case before trial.

        (8)         Where a written report is obtained by the insurer on the findings made, or the opinions formed, by a legally qualified medical practitioner on the examination of a claimant under subsection (2)(a), the insurer must, within 21 days of receiving the report, send a copy of the report to the claimant (or a legal practitioner engaged by the claimant).