The defendants in a motor vehicle accident tort action brought a motion to compel the plaintiff to attend orthopaedic and neurological defence medical examinations.
The plaintiff opposed the motion, arguing that the defendants were issue estopped because the Licence Appeal Tribunal had already found her to be catastrophically impaired under the Statutory Accident Benefits Schedule (SABS).
The court rejected the issue estoppel argument, noting the different thresholds between SABS and tort actions and the 'firewall' between the two processes.
The court granted the orthopaedic examination as the plaintiff had put her physical condition in issue, but denied the neurological examination because the plaintiff had not claimed neurological impairment.
