DEFENDANT SEEKS FOR PLAINTIFF TO UNDERGO ANOTHER PSYCHIATRIC ASSESSMENT
Kelly v Trustees of the Christian Brothers & Anor [2021] VSC 110 (12 March 2021)
The parties are in dispute about whether or not the plaintiff must submit to an examination by a psychiatrist nominated by the first defendants. The first defendant seeks that the proceeding be stayed if the plaintiff does not submit to psychiatric assessment by 17 March 2021.
Facts:
In this proceeding, the plaintiff alleges that he was physically and sexually abused by Brothers Gerald Fitzgerald and Stephen Farrell during his attendance at St Alipius Boys’ Primary School in Ballarat East, and by Father Gerald Ridsdale at St Alipius Catholic Church. The abuse is alleged to have occurred when the plaintiff was aged between 7 and 11 years old and during the years 1971 – 1974.
It is alleged that the defendants each breached their duty of care to the plaintiff, and are negligent. It is alleged too that they are vicariously liable for the acts of Fitzgerald, Farrell and Ridsdale. The defendants admit they owed a duty of care to the plaintiff. They deny vicarious liability and any liability for the plaintiff’s alleged injuries.
The plaintiff particularises his injuries as complex post-traumatic stress disorder with anxiety and depression, and hypoactive sexual desire disorder/sexual aversion disorder. He seeks medical and like expenses, and exemplary and punitive damages. His claim states that the particulars of any economic loss are to be provided prior to trial.
The first defendant asserts that a defendant is entitled to defend the claim in the manner it sees fit, and to choose the experts on which it wishes to rely. It says that its request for a further psychiatric assessment was reasonable for the following five reasons. Firstly, the plaintiff has made a substantial economic loss claim and there is an irreconcilable divide in the positions of the current medical experts. Secondly, there have been significant changes in the plaintiff’s life since the defendants last arranged for the plaintiff to be assessed on 23 June 2020 by Dr Jager. Fourthly, the further medical assessment is reasonable because it is sought for a legitimate purpose and relates to central issues in the proceeding. Fifthly, the request has been made in a timely manner upon the receipt of further expert material from the plaintiff and well in advance of the trial date.
The plaintiff contends that the first defendant’s request that he attend an examination with a new medicolegal psychiatrist at this late stage of the proceeding is unreasonable. Firstly, the plaintiff has already attended a psychiatric examination organised by the defendants with Dr Jager. Secondly, the evidence of the Ms de Brugiere, psychotherapist, is that requiring the plaintiff to attend another assessment by an unfamiliar psychiatrist will cause a regression in his fragile mental state. Thirdly, the first defendant has not given any or adequate explanation as to why further examination is required and why the matters it says it wishes to address cannot be addressed by way of a supplementary report from Dr Jager. Fourthly, the plaintiff has indicated a willingness to attend a further examination with Dr Jager if a proper basis for it is articulated by the first defendant.
Issue: Should the proceeding be stayed due plaintiff’s refusal to undergo another psychiatric assessment?
Law:
Analysis:
The court finds the first defendant’s request that the plaintiff submit to a medical examination by a new expert to be unreasonable for the following reasons.
Firstly, the request was made on 2 December 2020, approximately four-and-a-half months after the expiry of orders providing for service of expert medical reports by 24 July 2020. The defendants had ample notice of that deadline because the orders were made over four months earlier. Secondly, the first defendant has failed to provide an adequate explanation as to why it delayed so long in making the request. Its submissions that the request was made in a timely manner must be categorically rejected. Thirdly, the first defendant has provided no adequate explanation as to why a new expert is required so late in the proceeding. It refers to divergent opinions between Dr Jager and Dr Hacker on the question of the plaintiff’s work capacity. Dr Jager opines the plaintiff’s work capacity is not limited.
Conclusion: Given all of the above, the court rejects the first defendant’s submission that a medical report by a new expert is required because there is a lack of evidence and that may inhibit preparation for trial and any settlement negotiations.
