Key themes
- Medical examinations for the overriding purpose of testing the credibility of a plaintiff are not permissible. Defendants and their insurers need to rely on other investigations to challenge a plaintiff’s credibility, such as witness testimony and subpoenas.
- The fact that a plaintiff has had previous medical examinations does not make a further examination unreasonable.
- A plaintiff having to travel to a medical examination does not make the examination unreasonable, especially if the defendant has agreed to pay the reasonable travel costs.
- A plaintiff may not be able to avoid an examination for psychological or medical reasons if there is no evidence supporting the authenticity of those reasons.
- In this case, subtle changes to the basis for the application to secure an order compelling the Plaintiff to submit to a medical expert examination may have resulted in a different outcome.
Introduction
In practice, plaintiffs submit themselves to examination by medical experts appointed by defendants or their insurers every day in NSW. One is almost lulled into accepting that it is ‘par for the course’. However, it is not, and every now and then a plaintiff refuses to attend an examination. When this occurs, the defendant must seek an order from the court under rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).
In this Case Note, we look at the NSW Supreme Court decision in Corke v Shopping Centre Australasia Property Group Re Ltd, where such a dispute arose. We examine Justice Campbell’s judgment and the reasons why one of the defendants was not able to secure such an order.
Factual Background
The Plaintiff sued five defendants seeking damages for psychiatric injury resulting from personal injury suffered from an electric shock while in the carpark of Cabarita Beach Shopping Centre. Each defendant denied liability. Among other things, the Plaintiff claimed to suffer from Post Traumatic Stress Disorder with symptoms of depression, anxiety, social withdrawal, flashbacks, nightmares, difficulty sleeping, loss of appetite, weight loss, low mood and chest pains.
The Plaintiff underwent five medico-legal examinations; two at the request of his solicitors, with the balance on behalf of one or other of the defendants. On behalf of the Second Defendant, the Plaintiff underwent examination by Dr George and Dr Samuell.
Both Dr George and Dr Samuell expressed scepticism about the genuineness of the Plaintiff’s injuries and the severity of his symptoms. Dr George noted in his report that it was difficult to assess the severity of the Plaintiff’s symptoms due to the paucity of the treatment. He went on to state that the Plaintiff “is an ideal candidate for a psychometric assessment utilising a multi-test approach to assess the validity of his presentation and alleged psychopathology”. This was a recommendation picked up by Dr Samuell.
Justice Campbell described Dr Samuell’s report as being even more critical of the Plaintiff. Dr Samuell formed an impression of “inauthenticity” and suggested the Plaintiff did not appear to be depressed or disordered, and his cognitive functioning seemed normal at a clinical level.
Issues
On the strength of the reports of Dr George and Dr Samuell, the Second Defendant arranged for the Plaintiff to undergo psychometric or symptom validity testing by Dr Roldan. The Plaintiff refused to attend. Consequently, the Second Defendant filed a Notice of Motion seeking an order under rule 23.4 of the UCPR that the Plaintiff attend an examination with Dr Roldan for the purposes of symptom validity testing.
Rule 23.4 of the UCPR permits a court to compel a plaintiff to submit to an examination by a specified medical expert. It requires a plaintiff to do all things reasonably requested and answer all questions reasonably asked by the medical expert for the purposes of the examination.
The Second Defendant submitted that the request for a further medical examination was reasonable given both Dr George and Dr Samuell had recommended the Plaintiff undergo symptom validity neuro-psychological testing. It also pointed out that a further investigation by way of administration of other tests of performance validity was warranted, in light of the Plaintiff’s abnormal results in the tests performed by Vocational Psychologist, Professor Bright.
The Plaintiff opposed the orders sought, on four main grounds:
- the Plaintiff had already been subjected to five examinations, three of which were arranged by the defendants
- the Plaintiff would be required to travel approximately 800km to attend the assessment
- there was a real likelihood of ongoing re-traumatisation if he was subjected to another examination, and
- the Plaintiff had already undergone symptom validity tests with Professor Bright and the real purpose of the application was to ascertain whether he was malingering.
Decision
Justice Campbell referred to the decision of Plaintiff (name withheld) v Stapleton [2017] NSWSC 914. He accepted the general principles to be applied when deciding applications under rule 23.4 of the UCPR, set down by Justice McCallum in the matter. These are that the Court must:
- assess the reasonableness of the defendant’s request based on the information and advice it had received
- assess the reasonableness of the plaintiff’s refusal
- if both are reasonable then balance the plaintiff’s right to personal liberty against the defendant’s right to defend itself and
- examine objectively the weight of the reasonableness of both positions, and balance one against the other, to ensure a just determination between the parties.
Justice Campbell was not persuaded that it was unreasonable for the Plaintiff to travel to Sydney to submit to a further examination, nor that there was any evidence of a real risk of re-traumatisation. However, his Honour accepted the Plaintiff’s submission that the overriding purpose of the application was to determine whether he might be malingering.
On the issue of the overriding purpose, Campbell J referred to the decision of the NSW Court of Appeal in Rowlands v State of New South Wales [2009] NSWCA 136. In that matter, the Court accepted that the “overriding purpose” of the medical examination needed to be for “obtaining evidence about a plaintiff’s medical condition”. If it was, then a test or tests which “went to the reliability of other tests” were permissible. However, they were not permissible if the purpose was “obtaining evidence that might go to the plaintiff’s veracity generally”.
In arriving at his conclusion about the overriding purpose of the assessment, His Honour referred to an email from the Second Defendant’s solicitors to the Plaintiff’s solicitors, where the only purpose identified was “symptom validity testing”. Justice Campbell indicated this went to issues of credit. The Second Defendant wanted to obtain a statistically based outcome to call into question the reliability of the Plaintiff’s account. Justice Campbell noted that a plaintiff’s credit is always a question for the tribunal of fact after a trial, once all the evidence has been heard.
Final Result
The Second Defendant’s motion was dismissed with costs.
Why the Decision is Important
The incidents of plaintiffs refusing to attend medicals have increased post-pandemic. It most often occurs in matters involving psychological injury or complex medical issues requiring multiple examinations, where there are multiple defendants, or the plaintiff has travel restrictions and/or lives in a remote area. In all matters, the question is the overriding purpose of the examination and the reasonableness of the examination, balanced against the reasonableness of the refusal.
Despite the emergence and convenience of audio visual examinations, Justice Campbell accepted that in-person assessments are sometimes preferable and required.
Likewise, a plaintiff having to travel does not make the examination unreasonable, especially if the defendant has agreed to pay the reasonable costs.
Further, a plaintiff may not be able to avoid an examination because they have been to a few beforehand. Nor may they be able to avoid an examination for psychological or medical reasons in the absence of evidence supporting the authenticity of those reasons.
What is not permissible is an examination for the overriding purpose of testing the credibility of a plaintiff. Defendants and their insurers will need to rely on other investigations to challenge a plaintiff’s credibility such as witness testimony and subpoenas.
However, one wonders if the result would have been different if the doctors had stated they were unable to provide a diagnosis in the absence of such testing, or if the Plaintiff made complaints of cognitive impairment that required objective assessment. Perhaps these subtle changes may have provided a different basis for the application, especially having regard to what the Court of Appeal said in Rowlands.
This article was written by Principal Matthew McDonald with the assistance of Solicitor Darcie Hill. Please contact Matthew if you have any questions or would like more information.
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