Damages Sought by Plaintiff for Psychiatric Injury
The plaintiff filed a claim for damages with the Court for psychiatric injury due to alleged assaults by one of the defendants. An application was made by the defendants seeking that the plaintiff be required to submit to examination by a psychologist. The Court, in determining whether or not an order for examination should be made, assessed the presence of the risk of re-traumatising the plaintiff during the examination.
Facts:
In 2016, a New Year’s Eve celebration was held at the Sydney Opera House where the plaintiff was employed as an event manager. The defendants were security companies and a guard engaged by one of them who were involved in crowd control and other security issues at the event. The alleged incidents involve the fourth defendant, a security guard, approaching the plaintiff yelling at her and acting in a threatening manner near her. It is alleged that, as a result of the incidents, the plaintiff sustained a post-traumatic stress disorder or, alternatively, panic disorder with agoraphobia; major depressive disorder; recurrent suicidal ideation; and aggravation of pre-existing depressive disorder. The plaintiff, through her amended statement of claim, seeks damages from the defendants arising out of incidents which allegedly took place during the event.
The plaintiff sought a significant number of psychologists and psychiatrists for treatment and for medico-legal assessment, and was admitted to the hospital due to very significant mental illnesses. On 24 May 2021 the defendants’ solicitors notified the plaintiff’s solicitors that they made arrangements for the plaintiff to be medically examined on 15 June 2021 by Dr Wendy Roberts, clinical psychologist. On 26 May 2021 the plaintiff’s solicitors sought further information and suggested that the current appointment be rescheduled to allow the plaintiff sufficient time to consider her position. On 28 May 2021 the defendant’s solicitors responded by letter informing that them that it was proposed that Dr Roberts would administer a number of psychometric tests but it was inappropriate to identify what the tests might be and that the appointment would not be rescheduled. On 15 June 2021 the plaintiff did not attend the proposed appointment.
On 6 August 2021 the relevant defendants sought, through a notice of motion, for the plaintiff to submit to a medical assessment with Dr Wendy Roberts, clinical psychologist. The evidence adduced on this notice of motion included numerous medical and similar reports concerning the plaintiff’s mental condition and related matters. Dr Howard Napper, a consultant psychiatrist, reported that the plaintiff is currently suffering from severe anxiety and agoraphobia and is extremely anxious in the presence of unfamiliar people. The plaintiff submits that the Court should only make an order for an examination if it was subject to appropriate conditions to ensure that the examination was used for proper purposes and with regard to the needs and conditions of the plaintiff.
Issue:
Whether or not the plaintiff suffered any mental harm arising out of the incidents as alleged and if so what and to what extent.
Applicable law:
Civil Liability Act 2002 (NSW) s 32 - provides that a person ("the defendant" ) does not owe a duty of care to another person ("the plaintiff" ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Civil Procedure Act 2005 (NSW) ss 56-58 - facilitates the just, quick and cheap resolution of the real issues in the proceedings.
Civil Procedure Act 2005 (NSW) s 61 - provides that the court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.
Uniform Civil Procedure Rules 2005 (NSW) rr 23.1-23.5 - provides that a person’s physical or mental condition is relevant to a matter in question, and either that person is a party, or that person is a person for whose benefit a party is claiming relief under the Compensation to Relatives Act 1897.
JKZ v The Scots College [2018] NSWSC 1526 - held that where requiring a plaintiff as a part of a proposed neuropsychological examination to give orally, once again, an account of the circumstances alleged and how the plaintiff reacted to them at the time would involve a real risk of re-traumatisation to the plaintiff, it will not generally be in the interests of justice to subject the plaintiff to such a risk.
Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 - McCallum J summarised some of the relevant authorities encapsulating the general principles.
Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 - provides that the ordering of particular medical examinations must be for the purpose of obtaining evidence about a plaintiff’s medical condition, and cannot be justified by the purpose of obtaining evidence that might go to the plaintiff’s veracity generally or in relation to the plaintiff’s account of the events alleged to have caused the injury or condition in question.
Analysis:
What is the impact of this decision if you are a Defence attorney in future ?
The plaintiff in her written submissions prepared by Mr McAuley of counsel expressly states that she does not oppose an order under r 23.4 that she be medically examined by Dr Wendy Roberts. Dr John Roberts recommended that referral to a forensic psychologist would be undertaken. Mr O’Neill, clinical psychologist, stated that an independent psychiatric evaluation (IME) is required to review diagnoses and implications for ongoing claims management and treatment. Dr J Roberts had regard to the alleged significant consequences of the incident under consideration, a response that is excessive, disproportionate and not expected, the unreliability of the plaintiff as a historian.
The behaviours exhibited by [the plaintiff] are consistent with the diagnosis of borderline personality disorder and with the history of mental illness from age 16 to the present. Where requiring to give orally, once again, an account of the circumstances alleged and how the plaintiff reacted to them at the time would involve a real risk of re-traumatisation to the plaintiff, it will not generally be in the interests of justice to subject the plaintiff to such a risk. The purpose of the proposed examination must be to obtain evidence about a plaintiff’s medical condition and not about the plaintiff’s veracity in relation to her account of the incidents in question. Although the evidence clearly established that questioning concerning the relevant incidents involved a substantial risk of re‑traumatisation, in the present case, there was no explicit evidence that questioning the plaintiff concerning her version of events on New Year’s Eve 2016 or asking the plaintiff to recount what occurred in the incidents was likely to involve the risk of re-traumatising the plaintiff during the examination.
Having held the plaintiff as medically unfit to attend a six-hour assessment with a psychologist, the approach in similar cases in the future should be to split the examination into two parts so that the person examined is not required to attend for six hours in one stretch. One part for the psychometric testing and the other would be for the interview. The person examined should be able to have his or her chosen support person present during the interview part of the examination and his or her chosen psychologist present, as a support person, during his or her psychometric examination.
Conclusion:
The plaintiff is to submit to a medical examination by Dr Wendy Roberts, clinical psychologist, pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005, subject to the following conditions:
(a) Dr W Roberts is not to take orally a history from the plaintiff or to ask her questions as to the alleged incidents at the 2016 New Year’s Eve function;
(b) For the avoidance of doubt, it is no part of the examination for Dr W Roberts to test the veracity and accuracy of the plaintiff's account of those incidents and it is no part of the examination to obtain evidence that might go to the plaintiff's veracity generally;
(c) The plaintiff is permitted to have a support person attend the interview aspect of the examination;
(d) Pursuant to r 23.5 the plaintiff is permitted to have a psychologist qualified to administer psychometric testing present during such testing as the plaintiff’s support person as well as being present, if the plaintiff requires, during the interview; and
(e) The examination is to be conducted in two parts, namely the interview and the psychometric testing, on different dates, as agreed between the parties, so that in total the examination’s duration does not exceed 6 hours.
(2) The medical examination is to take place at times and on dates agreed between the parties or, in default of agreement, such times and dates as are determined by the Court.
(3) The costs of, and incidental to, the notice of motion filed on 6 August 2021 are to be costs in the cause.
(4) The parties have liberty to apply on 2 days’ notice in respect of order (2).
