Hamilton v State of New South Wales

Supreme Court of NSW|2013-09-19|Before: Bellew J, Santow J

Introduction 1By notice of motion filed on 21 August 2013 the defendant seeks an order pursuant to rule 23.4 of the Uniform Civil Procedure Rules requiring the plaintiff to undergo an MRI scan of the brain. 2The notice of motion was supported by two affidavits of Nada Abdel-Fattah, the defendant's solicitor, sworn on 16 August 2013 and 30 August 2013 respectively. 3The orders sought were opposed by the plaintiff who relied upon an affidavit of Matthew Garling, solicitor, sworn 29 August 2013.

Background 4By a statement of claim filed on 13 June 2012 the plaintiff commenced proceedings seeking compensatory and aggravated damages against the State of New South Wales arising out of an incident which occurred on 12 December 2009. The plaintiff alleges (inter alia) that whilst he was a pedestrian in the Sydney CBD he was forcefully and physically restrained, detained and assaulted by two members of the New South Wales Police Force. The causes of action pleaded in the statement of claim include: (i)wrongful detention; (ii)assault; (iii)malicious prosecution; and (iv)misfeasance in public office. 5The particulars of injury pleaded at paragraph (12) of the statement of claim include the following: (i)head injury; (ii)psychological injury - PTSD, depression and anxiety; and (iii)post concusional (sic) syndrome. 6An accompanying statement of particulars pleads the following injuries: (i)head injury; (ii)fracture of the skull; (iii)post traumatic stress disorder; (iv)post concesional (sic) syndrome; and (v)depression. 7The statement of particulars then goes on to plead the following disabilities: (i)daily headaches; (ii)vertigo; (iii) dizziness; (iv)anxiety attacks; (v)loss of concentration; (vi)poor memory; (vii)tearfulness and depression.

The defendant's evidence 8Dr Roldan, a Clinical Psychologist, examined the plaintiff on the defendant's behalf on 11 and 13 December 2012 and provided a report of 15 January 2013. That report was served by the defendant and re-served by the plaintiff. In paragraph 14.6 Dr Roldan stated: "[14.6] A CT brain scan was conducted on 29.06.10 by Dr Shine, who suggested the possibility of an undisplaced fracture either at or close to the suture between the right frontal bone and the squamotemporal bone, with slight depression of the squamotemporal bone with respect to the frontal bone by 3mm. No intracranial abnormalities were found. [14.7] An MRI brain scan conducted by Dr Thompson on 08.09.10 is said to have revealed mild cerebral shrinkage in keeping with Mr Hamilton's age. There was also reference to 'one of two tiny punctate foci of increased signal in the centrum semiovale' which were thought consistent with minor white matter ischemia. There was, however, no evidence of traumatic brain injury or any recent infarct." 9At paragraph 15.35, under the heading "Presentation", Dr Roldan reported: "[15.35] It is noted that when describing the onset of alleged cognitive symptoms, Mr Hamilton appeared to indicate that he did not become aware of such symptoms until several months post-injury. Whilst this might reflect the fact that Mr Hamilton is said to have been away from business demands for several months post-injury and that therefore he might only have become aware of cognitive impairment once he attempted to again undertake occupational duties, it should be noted that the delayed onset of cognitive deficits is not in keeping with the known course of the effects of traumatic brain injury on cognitive functioning. A similar comment applies to Mr Hamilton's observations regarding the allegedly increasing deterioration of his cognitive functioning at 3 years plus post-injury." 10Dr Roldan went on to express the view (at paragraph 16.2 and following) that on the basis of the information which was available to him, there was no objective evidence that the plaintiff suffered traumatic brain injury as a result of the incident in question. He concluded that whilst there was evidence that the plaintiff had sustained some head trauma, and that he had abrasions to the right cheek and forehead, there was no evidence of any loss of consciousness or objectively documented post-traumatic amnesia. He also noted that the plaintiff's GCS scores were consistently maximal, that the plaintiff was released from hospital within a few hours of his arrival, and that later CT and MRI brain scans were reported as providing no evidence of traumatic brain injury. 11Having made those observations Dr Roldan reported (at paragraph 16.3): "[16.3] It is also interesting to note that Mr Hamilton appears to report a delayed onset of cognitive symptoms that is inconsistent with the known cause of the effects of traumatic head injury on cognitive functioning. Whilst this might be argued to be a manifestation of Mr Hamilton's delayed awareness of cognitive symptoms rather than the actual delayed onset of symptoms, Mr Hamilton's description of his cognitive symptoms as increasing and becoming more severe at three years post-injury is definitely inconsistent with the known cause of the effects of traumatic head injury and might be explained by reactive psychological factors or some form of accident-unrelated cerebral pathology. Comment in relation to the latter possibility is a matter for specialist neurological opinion, as is comment on Mr Hamilton's report of dizziness and related symptoms." 12Nothing was said by Dr Roldan in his report concerning the necessity for the plaintiff to undergo further MRI examination. However, Ms Abdel-Fattah deposed (at paragraph 6 of her affidavit) to having had a conversation with Dr Roldan on 11 December 2012 at which time Dr Roldan said: "The plaintiff's symptoms include late onset of cognitive impairment and indicate no brain injury as a result of the incident. It is worth getting an opinion from an MRI specialist to undergo another MRI to see if there is evidence of any further brain shrinkage since the last scan." 13Counsel for the plaintiff objected to this evidence. After hearing argument, I admitted it and have set out my reasons for doing so below. 14On 8 February 2013, following the receipt of Dr Roldan's report, Ms Abdel-Fattah wrote to Mr Garling advising that she had been instructed to arrange for the plaintiff to undergo an MRI scan of the brain. Although the response is not annexed, it is apparent from other evidence that Mr Garling advised that the plaintiff did not agree to undergo such examination. 15On 12 June 2013 Ms Abdel-Fattah wrote to Mr Garling again and reiterated her instructions to arrange for the plaintiff to undergo MRI examination. In doing so she said: "The defendant requires the plaintiff to undergo an MRI scan as part of its investigations in relation to the existence of the unrelated cerebral pathology. The possibility of unrelated cerebral pathology is clearly a significant matter in issue in the proceedings. Indeed, the plaintiff having re-served the report of Dr Roldan, could hardly contest otherwise." 16On 13 June Ms Abdel-Fattah spoke with Dr Roldan and asked him to provide a further report setting out his opinion as to the necessity for the plaintiff to undergo a further MRI scan of the brain. On 14 June 2013 Dr Roldan wrote to Ms Abdel-Fattah in the following terms: "Further to my report dated 15.01.13 and in particular my observations at paragraph 14.7 (referring to the findings of an MRI brain scan on 08.09.10) and paragraph 16.3 (referring to the apparently 'atypical' onset and cause of neuropsychological symptoms reported by Mr Hamilton), I reiterate that it might be of assistance to have specialist neurological opinion informed by my findings and observations, as well as the results of an up-to-date MRI brain scan". 17Dr Roldan's correspondence was forwarded to Mr Garling under cover of a letter of 17 June 2013. Again, although the response is not annexed to Ms Abdel-Fattah's affidavit, it is apparent from other evidence that on 18 June 2013 Mr Garling again advised that the plaintiff refused to undergo an MRI scan. 18Ms Abdel-Fattah again wrote to Mr Garling on 15 July 2013. By reference to the decision of the Court of Appeal in Boral Transport Pty Limited v Gulic [2013] NSWCA 150, she said: "A defendant is entitled to provide original historic and contemporaneous diagnostic scans to its nominated experts for their valuation. In this case the plaintiff alleges that he suffered a head injury as well as post-concussion syndrome, cognitive impairment and post traumatic stress disorder. The defendant is entitled to have the plaintiff and his medical records assessed by qualified experts to test the plaintiff's allegation. We therefore require the plaintiff to attend for an MRI scan." 19Ms Abdel-Fattah indicated that, absent consent, a notice of motion would be filed seeking an order pursuant to rule 23.4. 20On 17 July 2013 Mr Garling wrote to Ms Abdel-Fattah and said: "Our client does not allege any brain injury. The medical evidence is clear that our client has suffered post-concussion syndrome and psychological injury resulting in cognitive impairment. What 'injury is in issue' between the parties that requires the plaintiff to undergo an MRI scan?" 21By letter of 18 July 2013 Ms Abdel-Fattah responded to Mr Garling in (inter alia) the following terms: "The plaintiff alleges a head injury and certain disabilities, including loss of concentration, poor memory and difficulty assessing or understanding complex or written tasks. The expert evidence served by both parties in these proceedings refers to cognitive impairment. ... Cognitive impairment may be caused by a multiplicity of factors. The evidence demonstrates that the plaintiff suffered 'brain shrinkage". The defendant is entitled to determine the cause of the "brain shrinkage". Further, we refer you to our letters dated 12 and 17 June 2013 in which we set out additional reasons. We enclose copies of those letters. These reasons should be sufficient for your client to consent to an MRI. The defendant is entitled to have the plaintiff and his medical records assessed by qualified experts to test the plaintiff's allegations. We therefore require the plaintiff to attend for an MRI scan." 22Evidence annexed to the supplementary affidavit of Ms Abdel-Fattah establishes that on 28 May 2012 Dr Huang, a General Practitioner who was treating the plaintiff, referred him to a specialist, a Dr Robinson. In his letter of referral Dr Huang noted that the plaintiff was "due to have imaging of his brain to exclude other pathology". There is evidence that on the following day, the plaintiff underwent a CT scan of his brain by Dr Garfagnini, who reported that the results of the scan demonstrated no cause for the plaintiff's reported symptoms of loss of balance, blurred vision and headaches. The plaintiff's evidence 23The affidavit of Mr Garling annexed a number of medical reports which are to be relied upon by the plaintiff at the final hearing. 24Peter Rawling, a Clinical Neuropsychologist, provided a report of 12 March 2012. He concluded that if a diagnosis of Post Traumatic Stress Disorder was made, then the plaintiff's cognitive problems should be viewed as being symptomatic of that condition and a direct result of the alleged assault. Drs. Westmore and Lewin, both Psychiatrists, each diagnosed Post Traumatic Stress Disorder. Dr Westmore also thought that there was co-morbid depression and anxiety and Dr Lewin reached a similar view. 25Dr Lewin was then provided with a copy of the report of Dr Roldan, and was asked to consider Dr Roldan's conclusions and their effect (if any) on his own opinions which had been previously expressed. Dr Lewin concluded that there was no divergence between his own opinion and that of Dr Roldan. In particular, he noted that as between himself and Dr Roldan there was unanimity of opinion in relation to the plaintiff's reported cognitive deficits being attributable to Post Traumatic Stress Disorder rather than a traumatic brain injury. 26Finally, Mr Rawling was provided with the report of Dr Roldan. In a subsequent report of 26 August 2013, and having noted the contents of paragraph 16.3 of Dr Roldan's report, Mr Rawling commented upon Dr Roldan's opinion that one possible explanation of the plaintiff's reported decline in cognitive capacity may be "accident-unrelated cerebral pathology". Mr Rawling presumed that this may be a reference to "a dementia of some form" before stating: "There was no suggestion of any cognitive decline over time that would support a diagnosis of dementia. I understand from our telephone conversation about this case that Dr Roldan has suggested that Mr Hamilton undergo a repeat MRI scan but in the absence of any neuropsychological evidence of cognitive decline, I cannot see any real case for repeat MRI scanning".

The relevant legislation 27Rule 23.4 of the Uniform Civil Procedure Rules is in the following terms: 23.4 Order for examination (1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place. (2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination. THE ADMISSION OF HEARSAY EVIDENCE OF OPINION IN SUPPORT OF THE MOTION 28As I have previously noted, counsel for the plaintiff objected to that part of the affidavit of Ms Abdel-Fattah of 16 August 2013 in which she deposed to a conversation with Dr Roldan in which Dr Roldan expressed an opinion as to the necessity for the plaintiff to undergo an MRI scan. I indicated at the time of the hearing that I had come to the view that the evidence should be admitted and that I would incorporate my reasons in my judgment. Submissions of the parties 29Although he acknowledged the provisions of s. 75 of the Evidence Act, counsel for the plaintiff submitted that the exception to the hearsay rule created by that section did not extend to evidence of opinion. Section 75 is in the following terms: Exception: interlocutory proceedings In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party adduces it also adduces evidence of its source. 30In developing that submission, counsel relied upon paragraph [1.3.3720] of Uniform Evidence Law (9th Edition) in which the author states (in reference to s. 75): "The exception to the hearsay rule created by this provision in respect of interlocutory proceedings is not an exception to the opinion rule in s. 76". 31In support of that proposition the author cites the decision of Santow J (as his Honour then was) in Terranora Group Management Pty Limited v Terranora Lakes Country Club Limited (in liquidation) (SC (NSW) 1 December 1997 unreported). 32Having made this submission, but upon further reflection, counsel for the defendant stepped away from his reliance on it. In particular, he expressed some reservation as to whether the decision of Santow J did, in fact, support the proposition cited by the author of Uniform Evidence Law concerning the operation of s. 75. Counsel ultimately accepted, as I understood it, that the decision of Santow J may in fact provide some support for admission of the evidence. However having reached that position, Counsel submitted that the facts considered by Santow J were distinguishable from those in the present case. 33Counsel also relied upon r. 31.21 of the Uniform Civil Procedure Rules which is in the following terms: Expert evidence in chief to be given by way of experts' reports 31.21 Unless the court otherwise orders, an expert witness's evidence in chief must be given by the tender of one or more expert's reports. 34Counsel for the defendant submitted that the decision of Santow J supported the admission of the evidence. He also submitted that further support for its admission was to be found in s. 56 of the Civil Procedure Act NSW 1995. Consideration and conclusion 35In Terranora Group Management (supra) the plaintiff had made application to set aside a statutory demand and in doing so sought to rely upon an affidavit of its solicitor, annexed to which was a report from an accountant. That report, in turn, annexed various spreadsheets apparently showing an asserted loss of profits by the plaintiff. The defendant objected to the evidence on a number of grounds, including the fact that the affidavit, rather than being from the accountant who prepared the report, was from a solicitor. Objection was also taken on the basis of what was said to be a lack of foundation for the evidence. In ex tempore reasons, his Honour concluded that the defendant's objections were not sustained and that the evidence should be admitted. 36In the course of his judgment, his Honour said: "The precise relationship between s. 76 of the Act precluding opinion evidence if not within the relevant exceptions including s. 79 for expert opinion) and s. 75 (excluding interlocutory proceedings from the hearsay rule) requires elucidation. Is the exception for interlocutor hearsay in s. 75 an exception to the qualified prohibition in s. 76 as the plaintiff argued? In my view, the qualified prohibition of opinion evidence in s. 76 deals with hearsay only insofar as the opinion giver relies upon hearsay as the factual substratum of his or her opinions: see Cross on Evidence (5th Edition) para [29140] - [29160]". 37Having considered the question of whether or not the proceedings before him were interlocutory in character, his Honour concluded that the affidavit in question should be admitted into evidence. He said: "In my opinion, the present affidavit with accompanying opinion is not precluded from admission in this kind of forensic context where it is the genuineness of the dispute which is in question rather than its merits. That is so, despite its hearsay basis in the cash flow projections and the other formal weaknesses mentioned. It is not to the point that it may not pass muster in final proceedings where a deponent may be required for cross-examination in order to test for fully the underpinnings of that party's case ..." 38His honour was dealing with an expert report which was annexed to an affidavit of a solicitor. In the present case, the expression of expert opinion is not in the form of a report annexed to the affidavit of a solicitor, but is in the form of a conversation which is contained within the affidavit of a solicitor. Counsel for the plaintiff sought to distinguish between these two situations. In my view, there is no relevant distinction to be drawn. 39The more relevant circumstance is that, as is the situation in the present case, the evidence before Santow J was expressed in a hearsay form. Despite that, and despite other formal shortcomings, Santow J admitted the evidence. In my view, his Honour's judgment supports the admission of hearsay opinion in interlocutory proceedings. 40In terms of the reliance by counsel for the defendant upon r. 31.21, the requirement imposed by that rule is that the evidence in chief of an expert witness is to be given by the tender of one or more expert reports. That requirement is subject to the court's overriding discretion to "otherwise order". Quite apart from the provisions of s. 75 of the Evidence Act, and given that these are interlocutory proceedings, it is appropriate to exercise the discretion contained in r 31.2. In this regard, I accept the submission of counsel for the defendant that this is an approach which is consistent with the purposes set out in s. 56 of the Civil Procedure Act NSW 2005. THE ORDER SOUGHT BY THE DEFENDANT The submissions of the parties 41Counsel for the defendant submitted that the report of Dr Roldan raised the possibility that the late onset of the plaintiff's cognitive symptoms could be explained by (inter alia) some unrelated cerebral pathology and that as a consequence, a live issue had arisen as between the parties as to the cause of the plaintiff's condition. 42That issue having arisen, counsel relied upon the fact that the plaintiff had served, as part of his case, the report obtained following the CT scan of the brain performed on 29 June 2010 by Dr Shine (which demonstrated no intracranial abnormalities) along with the report obtained following an MRI scan of the brain performed on 8 September 2010 by Dr Thompson (which demonstrated mild cerebral shrinkage). Counsel submitted that the service of these reports by the plaintiff was indicative of the plaintiff's acceptance of cerebral shrinkage. 43In these circumstances, and given that the plaintiff alleged a cognitive impairment, counsel submitted that the defendant was entitled to pursue the issue of whether there had been any further cerebral shrinkage since the MRI scan carried out by Dr Thompson on 8 September 2010 which might explain that cognitive impairment. Counsel also submitted that the evidence of the CT and MRI scans reflected the fact that the plaintiff's own treating practitioner had seen a need to investigate alternative pathology and that it was therefore not unreasonable for the defendant to seek to do the same. 44Although it had not been suggested on behalf of the plaintiff, counsel for the defendant also emphasised that the order sought was not something in the nature of a fishing expedition. Rather, he submitted, it was a course which was sought to be taken on the basis of the opinion of a suitably qualified practitioner in Dr Roldan. 45Counsel for the plaintiff firstly pointed to the fact that the plaintiff was bringing what he described as a "psychiatric case" and was not asserting that he had suffered traumatic brain injury as a consequence of the incident. He submitted that in these circumstances, there was no relevant issue arising between the parties which would justify the making of the order sought. 46Counsel also submitted that no proper evidentiary foundation in support of the order sought had been laid by the defendant. To the extent that such evidentiary foundation was said to be constituted by the opinion of Dr Roldan, counsel for the plaintiff submitted that such opinion had a number of shortcomings and that in particular, Dr Roldan: (i)had not identified the "unrelated cerebral pathology" to which the late onset of cognitive symptoms was said to be possibly attributable, and which was sought to be investigated; and (ii)had not articulated why the earlier investigations, particularly the earlier MRI scan of the brain, were no longer valid or reliable. 47Finally, counsel relied upon the opinion of Mr Rawling that there was no justification for repeat MRI scanning. The relevant principles 48If the evidence establishes that there is a live issue as to the physical or mental condition of the plaintiff, rule 23.4 is engaged. The rule covers investigative procedures such as MRI scans (see Boral Transport Limited v Gulic [2013] NSWCA 150 at [4] and [9] per Basten JA). 49The power conferred by the rule is a discretionary one. That discretion is to be exercised judicially, having regard to factors relevant to that exercise (see KF by her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and anor [2010] NSWSC 891 at [21] per Johnson J). 50An order made under r. 23.4(1) must be for the purposes of obtaining medical evidence about a plaintiff's medical condition. It cannot be justified to test the plaintiff's veracity generally (see Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715 at [49]; 728 per Hodgson JA). 51Finally, it is not the role of the court, in determining an interlocutory application such as this, to attempt to reach firm conclusions about the medical issues between the parties (see KF (supra) at [47] citing GB v Western Sydney Area Health Service [2010] NSWSC 181 at [89] - [90]). That said, there must be sufficient evidence that the proposed testing has the capacity to throw light on the issues in the proceedings (see KF (supra) at [49] citing the judgment of Brereton J in Portal Software International Pty Limited v Bodsworth [2005] NSWSC 1115 at [24]. Consideration and conclusion 52I am satisfied on the evidence that there is a live issue between the parties as to (inter alia) the cognitive state of the plaintiff and, more specifically, its cause. Accordingly, r. 23.4 is engaged. 53In circumstances where the plaintiff does not assert that he suffered a traumatic brain injury, Dr Roldan's observations as to the inconsistency between such an injury and the late onset of cognitive difficulties are not to the point. However: (i)the plaintiff does allege post concussional syndrome and cognitive impairment; (ii)his own treating practitioners saw fit to refer him for an MRI scan and a CT scan; and (iii)one of those investigations revealed cerebral shrinkage. 54A defendant who is sued with the possible consequence that a substantial award of damages may be made against it is entitled to take reasonable steps to ensure that issues which may bear upon the determination of the proceedings are assessed, so that the trial Judge is in a position to determine the real issues in dispute in the proceedings (see KF (supra) at [46]). In my view, it is open to the defendant in the present circumstances to further investigate (inter alia) the degree of cerebral shrinkage so as to assess whether such shrinkage is age related, or whether it is attributable to some other pathology which is unrelated to the incident which is the subject of the proceedings. 55I accept that the opinion of Dr Roldan, upon which the application is largely based, is somewhat imprecise. In particular, I accept the submission of counsel for the plaintiff that Dr Roldan did not specify the "accident unrelated cerebral pathology" which, he postulated, might explain the plaintiff's cognitive symptoms. However, I do not accept the submission of counsel for the plaintiff that this should lead me to refuse to make the order sought. Adopting the approach of Johnson J in KF (supra at [49]) I am satisfied that the application is based on more than a bare allegation, that it is not speculative in nature, and that in light of the disabilities alleged by the plaintiff, the proposed testing has the capacity to throw light on the issues. 56Further, the submission advanced by the plaintiff to the effect that there is no evidence which might suggest that the previous MRI scan is no longer valid or reliable tends to overlook the fact that the defendant wishes to conduct the further MRI scan partly for comparative purposes. In particular, the defendant wishes to be in a position to compare the results of the MRI scan which is sought to be performed with the results of that performed in 2009, to then determine the extent of any further cerebral shrinkage, and to then consider whether that shrinkage may be attributable to some other form of cerebral pathology which is unrelated to the accident but which might account for the cognitive symptoms of which the plaintiff complains. Given that there is an evidentiary onus placed upon a defendant to disentangle alternative causes for a plaintiff's condition (as to which see Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164) that, in my view, is a perfectly legitimate line of investigation. 57Finally, the fact that one of the experts retained by the plaintiff has expressed a view that further MRI scanning is not necessary does not lead to the conclusion that the application should be refused. The relevant question is whether the evidence adduced by the defendant in support of the application satisfies the tests posed by Johnson J in KF (supra at [49]). For the reasons I have expressed, I consider that it does. ORDERS 58For the foregoing reasons, I am satisfied that it is appropriate to make the order sought. 59Rule 23.4 extends to conferring a power upon the court to make an order that the plaintiff submit to examination by a specified medical expert at a specified time and place. In these circumstances, the most efficient course would be to have those representing the defendant make the necessary arrangements for examination, following which I will make an order in accordance with such arrangements. 60In those circumstances, the formal order I make at this stage is as follows: 1.The matter is listed for further directions at 9.30 am on Friday 4 October 2013, at which time the parties are to bring in Short Minutes of Order reflecting the conclusion I have reached. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2013

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