Holshandon Pty Limited; Rankin v Eakin

Supreme Court of NSW|2014-07-28|Before: Adamson J

Holshandon Pty Limited as Trustee for Rankin Family Trust No. 1 (First Plaintiff) David Geoffrey Rankin (Second Plaintiff) Donna Susan Rankin (Third Plaintiff) Holly Isabella Rankin (Fourth Plaintiff) Leslie Andrew Eakin (First Defendant) Eakins A1 Pools Pty Ltd (Second Defendant) Benjamin Keighley (Third Defendant) Insurance Australia Limited t/as NRMA Insurance (Fourth Defendant) Owners Corporation of Strata Plan 76001 (Fifth Defendant) QBE Insurance (Australia) Limited (Sixth Defendant) Christopher Corcoran (Seventh Defendant) Stowe Australia Pty Limited (Eighth Defendant) Brandon Rory Koop (Ninth Defendant)

Madeline Celeste Barlow-Smith by her tutor Phillip Robert Barlow-Smith (First Plaintiff) Leslie Andrew Eakin (First Defendant) Eakin's A-1 Pools Pty Limited (Second Defendant) Benjamin Keighley (Third Defendant) Insurance Australia Limited t/as NRMA Insurance (Fourth Defendant) Owners Corporation of Strata Plan 76001 (Fifth Defendant) QBE Insurance (Australia) Limited (Sixth Defendant) Christopher Corcoran t/as CNC Property Maintenance (Seventh Defendant) Stowe Australia Pty Ltd (Eighth Defendant) Brandon Rory Coop (Ninth Defendant) Representation: Solicitors: 2009/297481 and 2009/297482 Stacks/Forster Pty Limited (Plaintiffs) Lee & Lyons (First, Second, Third, Fourth, Sixth, Seventh, Eighth and Ninth Defendants) Curwood Lawyers (Fifth Defendant) File Number(s): 297481 of 2009 297482 of 2009 Publication restriction: Nil

Introduction 1The first plaintiff in proceedings 297481 of 2009 is the trustee of the Rankin family trust. The second and third plaintiffs, David and Donna Rankin, are the parents of Shannon Rankin, who died on 25 March 2006 alleged by as a result of the defendants' negligence. The fourth plaintiff, Holly Rankin, is the deceased's sister. Other proceedings, 297482 of 2009, are brought in respect of the same events by Madeleine Barlow-Smith, who was a close friend of the deceased. All natural plaintiffs seek damages referable to psychiatric injury alleged to have been sustained as a result of the deceased's death. 2The defendants qualified Dr Champion, a psychiatrist, to assess the plaintiffs. He prepared reports following the consultations with the Rankins which occurred in August and October 2010. Ms Barlow-Smith was assessed by Dr Champion on 24 August 2010 and again on 3 April 2012. On both occasions she attended with her mother. The defendants arranged to have Dr Champion reassess the plaintiffs in preparation for the hearing of this matter which is listed to take place in November 2014. The proposed assessments were arranged for 1 and 2 October 2014. 3However, the plaintiffs objected to this course and informed the Court that they would only be prepared to be assessed by Dr Champion if one of their psychiatrists, Dr Dinnen (in the case of the Rankin plaintiffs) or another psychiatrist or psychologist (in the case of Ms Barlow-Smith) was present at the assessment. Dr Champion was not prepared to assess the plaintiffs on that basis.

The present notice of motion 4By notice of motion filed on 8 July 2014 the defendants applied for orders that the various plaintiffs attend consultations with Dr Champion and that such consultations occur without a medical expert being present on behalf of the plaintiffs. Dispensation with r 23.5 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) was sought. Following the filing of the notice of motion on 8 July 2014 each of the natural plaintiffs swore affidavits in which each criticised the conduct of Dr Champion during the course of the assessment. Dr Champion considered that, in these circumstances, he would not be prepared to re-assess the plaintiffs. The defendants' solicitors then instructed Dr Skinner, psychiatrist, to ask her whether she would be prepared to assess the plaintiffs. They also asked her whether she would be prepared to do so in the presence of Dr Dinnen, or another suitably qualified psychiatrist or psychologist. In her report dated 25 July 2014, which is set out in more detail below, she gave her reasons for refusing to assess the plaintiffs with another expert present. 5This turn of events caused the defendants to file a further notice of motion in court on 28 July 2014 in which they sought orders in respect of each of the natural plaintiffs relevantly in the following terms: (1)That the plaintiff attend a medical examination arranged by the defendants with Dr Skinner on [applicable date]. (2)That for the purpose of that medical examination by Dr Skinner pursuant to s 14 of the Civil Procedure Act 2005 (NSW) the Court dispenses with r 23.5 of the UCPR and directs the plaintiff to attend the medical examination without a medical expert. 6Accordingly, it is no longer in issue that Dr Champion will not conduct a further examination of any of the plaintiffs. The issue is whether they ought be required to attend an examination with Dr Skinner and whether they are entitled to bring a medical expert to accompany them to such examination.

The evidence relevant to the notice of motion 7Dr Champion set out his opinion in a report dated 5 July 2014: "Psychiatric examination of any individual, particularly in the context of Medical-Legal assessment is, in my view, seriously jeopardised in terms of objectivity and reliability by the presence of any third party. The process of examination involves the individual having the opportunity to speak openly, freely and confidentially about a range of issues covering the whole of their life. 8Dr Champion explained in the report his reasons for refusing to conduct an assessment in the presence of Dr Dinnen and concluded: "It follows from above that I would not be prepared to re-examine [the plaintiffs] with Dr Dinnen present as it is my strong view that such examination would not lead to an objective assessment or a reliable report." 9Dr Skinner opined in her report of 25 July 2014: "The basis on which I have decided not to undertake medico-legal assessment in the presence of others is therefore that there is potential for significant interference with the examination on the basis of the presence of that individual. The reliability of the assessment is in my view likely to be reduced in those circumstances. I am a psychiatrist with considerable experience in the assessment and treatment of persons who have been subjected to severe emotional trauma. I consider it my responsibility to minimise any harm or distress to any person during the course of assessment and/ or treatment, and I believe that with my training and experience, I am able to do this." 10Dr Dinnen in his report dated 17 July 2014 opined: "You further asked my opinion about whether my presence as an observer at such an examination would be of benefit to the Rankins. The practice of conjoint examination, whether or not the invited observer is silent or contributes, has fallen into disuse over the years but I have had past experience of it. I believe it could be very helpful in this case with the Rankins for me to be present, to provide them with some reassurance and support even if I do not speak. . . . It is clear from your Affidavit that the Rankin family, Donna, Holly, and David, have reacted very strongly to the nature of the psychiatric examination previously carried out by Dr Champion and his finding that there is nothing much wrong with any of them. A further examination would certainly cause them grief and distress to add on to the conditions which I have described in my previous reports about them."

The parties' submissions 11Mr Toomey submitted on behalf of the plaintiffs that there was no need for a further assessment since it was the defendants' case that the plaintiffs no longer suffered from any psychiatric injury. He contended that the defendants had, accordingly, "pinned their colours to the mast" and that they ought simply rely on the evidence of Dr Champion to date. 12He submitted, in the alternative, that the plaintiffs had a substantive right accorded to them by the UCPR and that it did not fall within my power under s 14 of the Civil Procedure Act 2005 (NSW) (the Act) to dispense with that right because it was not, in substance, a "requirement". He relied on the following passage from Jeffrey & Katauskas Pty Limited v SST Consulting Pty Limited [2009] HCA 43; 239 CLR 75 at [23]: "It is no doubt arguable that the reference to "any requirement of rules of court" in s 14 limits its application to rules imposing some duty on parties and does not extend it to a rule imposing limitations on the power of the court to order costs. The parties did not pursue the matter in these appeals. They fall to be decided on the construction and application of UCPR, r 42.3." 13Further, Mr Toomey submitted that, in any event, the defendants had not established that r 23.5 of the UCPR ought be dispensed with. He contended that the evidence was overwhelmingly that the interests of justice required that it not be dispensed with because of the harm that could be caused to the plaintiffs if the examinations went ahead without an appropriate medical expert present. He also submitted that the reasons given by Dr Skinner and Dr Champion for not having another medical expert present were not persuasive, or even applicable, when the person who was proposed to be present in that role (Dr Dinnen) had already examined the plaintiffs and was accordingly already privy to their histories. 14Mr Donaldson SC, who appeared on behalf of the defendants, submitted that the defendants were entitled to have the plaintiffs reassessed because of the length of time since they were last assessed. He contended that the interests of justice required the plaintiffs to submit themselves to a further assessment by a psychiatrist qualified by the defendants. He argued that nothing could be said against assessment by Dr Skinner since there had been no past association between any of the plaintiffs and Dr Skinner. 15Mr Donaldson contended, in substance, that in circumstances where the plaintiffs refused to be medically examined by Dr Skinner, it would be a denial of natural justice for the Court to refuse to order that such assessments take place. He submitted that the threshold question of whether the plaintiffs have suffered a recognisable psychiatric injury was not the end of the inquiry because, if the trial judge considered that they, or one of them, had, then there would have to be a judicial determination, assisted by expert evidence, of the effects of such injury on, for example, the relevant plaintiff's capacity to earn an income. He also submitted that the assessment of damages will principally, if not wholly, turn on these questions. 16Mr Donaldson sought to distinguish Jeffrey & Katauskas Pty Limited v SST Consulting Pty Limited on the basis that it touched on (but did not decide) whether s 14 of the Act could be applied to affect the constraints on the court's powers to order third parties to pay the costs of litigation. He argued that the so-called "right" in r 23.5 of the UCPR to have a medical expert present could just as well be construed as a "requirement" imposed on the expert conducting the examination to permit the examinee to have another expert present. As such, it could be dispensed with by the Court under its power to do so under s 14 of the Act.

Relevant legislation and provisions of the UCPR 17Section 14 of the Act provides that in relation to particular civil proceedings, the court may, by order, dispense with the requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case. 18Section 56 of the Act provides in part: "(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." 19Section 57 of the Act provides in part: "(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, . . . (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1)." 20Section 58 of the Act requires the Court to have regard to the dictates of justice when deciding whether to make a procedural order. The dictates of justice require me to have regard to ss 56 and 57. Further s 58(2)(vi) provides that I may have regard to the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. 21Section 61 of the Act provides in part: "(1) 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." 22Rule 23.4 of the UCPR provides: "(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." 23Rule 23.5 of the UCPR provides: "The person concerned may have a medical expert of his or her choice attend a medical examination under this Division."

Whether an order for an examination ought be made under r 23.4 of the UCPR 24The question whether any of the plaintiffs have suffered psychiatric injury as a result of the death of the deceased is a principal issue in the case, as is the ongoing impact of any such injury on the earning capacity, need for care, and enjoyment of life of any of the plaintiffs. I reject the plaintiffs' submission that, because of the views expressed by Dr Champion that the plaintiffs have not suffered a psychiatric injury that the defendants ought be prevented from arguing an alternative case as to the effects of any such injury. In order to present such an alternative case, it is, in my view, imperative that the defendants be permitted an opportunity to have an appropriate expert of their choice examine the plaintiffs. 25It is common ground that Dr Champion is no longer an appropriate expert to conduct such an assessment because of the criticisms that have been levelled against him which mean that he is no longer independent and ought not be required to assess the plaintiffs again. However, in my view, it would amount to a denial of natural justice if the Court permitted the wishes of the plaintiffs not to undergo any further examination to prevail over the defendants' forensic interest in obtaining an up-to-date opinion from a psychiatrist as to the plaintiffs' current mental state and any causal connection between such mental states and the death of the deceased. 26Accordingly I am disposed to order, pursuant to r 23.4 of the UCPR, that each of the plaintiffs attend a medical examination with Dr Skinner.

Whether the plaintiffs are entitled to have a medical expert of their choice present for the examination or whether r 23.5 of the UCPR ought be dispensed with 27The next question is whether, as the plaintiffs contend, they ought be permitted to have Dr Dinnen (in the case of the Rankin plaintiffs), or another psychiatrist (in the case of Ms Barlow-Smith), present for such examinations. 28The first basis on which the plaintiffs resist dispensation being granted to the defendants from the requirement in r 23.5 of the UCPR is that it is not, in substance, a "requirement", and therefore I do not have power to dispense with it under s 14 of the Act. 29The task of construing the Act and the UCPR is to be undertaken having regard to ss 56 and 57. The Act, which is to be read as a whole, includes s 61 which empowers the Court to make directions which are inconsistent with the rules. Although r 23.5 of the UCPR is not expressed in terms of a requirement, I consider that it does, effectively, impose a requirement on the examining expert. The examinee's right to have a medical expert present at such examination imposes, in my view, a correlative obligation, or "requirement", on the examining expert to permit such a person to be present. 30The mode of interpretation of the Act provided for by the specific provisions of the Act itself requires me to take into account, in construing the Act and the rules, the "just" determination of the issues and the "dictates of justice". I consider that the word "requirement" in s 14 of the Act is sufficiently broad to permit me to dispense with the requirement in r 23.5 of the UCPR that Dr Skinner permit another medical expert to be present. However, in any event, I consider that I would have the power to give the directions sought by the defendants under s 61 of the Act. As has often been said, the rules are the servants of justice, not the masters. That the Court may give directions that are inconsistent with the rules (s 61 of the Act) is an indication of the priority that is to be given to the dictates of justice, rather than to the letter of the rules where there is an inconsistency. 31It might be thought that an investigation of the genesis of r 23.5 of the UCPR would be helpful in determining its purpose and whether the circumstances of the present case warrant a departure from it. However, I have been unable to find the reason for the inclusion of a rule in the form of r 23.5 of the UCPR, which substantially replicates the former Supreme Court Rules (NSW) Part 25 rule 6, although it is also to be found in the rules of other Australian jurisdictions (see, for example, Order 28, r 1(1)(a) of the Rules of the Supreme Court 1971 (WA)). I am indebted to the analysis by the Full Court of the Supreme Court of Western Australia in Ryan v Regent Enterprises Pty Limited (1991) 3 WAR 552 (Malcolm CJ, Pidgeon and Nicholson JJ) from which the authorities referred to below are derived. 32The English Rules of the Supreme Court 1965 (the English Rules), on which the UCPR and its predecessors are based, contains no equivalent to r 23.5 of the UCPR. The usual order in the English Rules provided for mutual exchange of reports to be agreed and, in the absence of agreement, for each party to be limited to one witness of any particular specialty. The request by a party to have his or her own expert present arises in English cases in the context of the assessment whether a refusal to submit to a medical examination is unreasonable. This question typically arises where one party will only submit to examination by the opposing party's expert on the condition that a particular medical expert is present during an examination conducted by the opposing party's expert. 33Because there was no equivalent to r 23.5 of the UCPR in the English Rules, the issue of the reasonableness of conditional refusal was regarded as being one of fact to be determined in light of the relevant circumstances: Morgan v William Dixon [1912] AC 74. Their Lordships did not, accordingly, need to decide whether there was any legal right on the part of a worker to have his or her own medical practitioner present at a medical examination by the employer's medical practitioner. 34The reasonableness of a plaintiff insisting on a medical expert being present at such an examination was further considered by the Court of Appeal in Hall v Avon Area Health Authority [1980] 1 WLR 481. In that case a 52-year old woman agreed to be examined by an orthopaedic surgeon on condition that her own expert was present. The Court of Appeal decided that the reasons suggested for the imposition of the condition were not sufficient to outweigh the disadvantages occasioned by increased expense and delay in requiring one surgeon to be present when the other was examining the plaintiff. Stephenson LJ (Waller and Cumming-Bruce LJJ agreeing) recited the argument that was put on behalf of Ms Hall to justify the condition in the following terms at 490-491: "By this condition [that the worker's own expert be present at an examination] counsel's instructing solicitors hope to protect unskilled and uneducated plaintiffs from being badgered or upset, as he put it, by medical examinations in the absence of anybody representing their own side, and from being led to feel that they are being unjustly treated, even if their feelings are irrational. They also hope, by this condition, to increase the chances of agreement between the medical men on each side and of the consequent settlement of their claims." 35His Lordship rejected the reasonableness of the condition and said at 492: "Courts of law, as well as the parties to litigation and their solicitors, must give a Fellow of the Royal College of Surgeons, of high standing in his profession of orthopaedic surgeon, credit for being fair and considerate in his treatment of those whom he examines on behalf of the other side and fair and accurate in his recording of such examination, and for needing no third party, whether medically qualified or not, to prevent him from misleading the court by inaccuracies or, I would add, to restrain him, as was suggested (though not by the judge) from confusing the party examined by unfair interrogation." 36Although their Lordships agreed that the condition was unreasonable in that case, Waller LJ adverted to the circumstances where it might be reasonable to impose such a condition at 493: "There may be cases where such an order would be justifiable: for example, a very nervous plaintiff. In such a case it might well be, indeed it probably would be, preferable to have some other person present rather than a consultant whom he or she has probably only seen once. Another case might be the sort of case which arose in Starr v National Coal Board, where it was thought that the consultant who the defendants wished to examine the plaintiff was one who tended to be hostile to plaintiffs. In such circumstances it might (I do not say it would) be a good ground for saying that the consultant on the other side should be present." 37Cumming-Bruce LJ at 494 said: "It may be too dramatic a metaphor, but it seems to me that the remedy proposed by the solicitors was a sledge-hammer to crack a nut . . . To require a medical consultant to be present to act as a chaperone, although he has no personal function to perform in the course of the examination by the defendant's surgeon, seems to me to be a serious addition to the costs of the litigation and also an inexcusable requirement, on the part of the processes of litigation and justice, of the precious time of highly qualified consultants, whose professional business includes the examination of litigants for the purposes of litigation, but whose primary concern is with diagnosis and treatment of patients in order to alleviate their sufferings. In my view, the court should hesitate long before encouraging or permitting any such addition to the time and expense in the conduct of personal injury cases as is proposed by the solicitors in this case." 38It may be that the lack of jurisprudence on the application of, or dispensation from, r 23.5 of the UCPR and its predecessors, is explained by the circumstance that it is generally impractical to have a medical expert present at such examinations since it would tend to add to the costs and time of litigation. The reasons given by the Court of Appeal in Hall v Avon Health Authority for regarding the condition as unreasonable are all, in my view, good reasons why r 23.5 of the UCPR may not be of general utility since it expresses the presence of a medical expert in terms of an entitlement. In addition, it may be that assessments by psychiatrists are a particular category which makes the rule inapposite in such cases. However, the general wisdom of such a rule is not a matter that arises for consideration, much less determination, in the context of the present case. The principle that the rules are to be the servants not the masters is sufficient to enable the rule to be dispensed with in appropriate circumstances. 39I now turn to the question whether an order sought by the defendants ought be made. The requirement of natural justice is a fundamental part of the just determination of civil disputes. I consider that it would be at odds with that requirement to impose on Dr Skinner in the present case a medical expert of the examinee's choice in circumstances where she has deposed that that requirement would be deleterious to her examination. She is entitled to conduct the examination in accordance with the Expert Witness Code of Conduct, which in turn requires her to assist the court impartially consistent with her paramount duty to the court. 40I have had regard to the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction (s 58(2)(iv) of the Act). I accept the evidence of the plaintiffs that they are likely to suffer inconvenience, possibly discomfort and even anguish in the course of the examination with Dr Skinner. I am also disposed to accept that those negative emotions could be alleviated by the presence of Dr Dinnen or another psychiatrist or psychologist of their choosing. However I do not consider that these matters amount to an "injustice" that they will, or might, suffer within the meaning of s 58(2)(iv) of the Act. 41I am satisfied, for the reasons given by Drs Champion and Skinner in their reports, extracts of which have been set out above, that there are substantial reasons for not permitting the plaintiffs to bring another medical expert to such assessments. Although Dr Dinnen is of opinion that such consultations are feasible, I consider the question to be largely one to be determined by reference to the professional assessment of the assessing expert who is, in this case, Dr Skinner. I accept the expert evidence of Drs Skinner and Dr Champion that the presence of another medical expert will have a tendency to compromise the medical assessment in the circumstances of the present case. Notwithstanding r 23.5 of the UCPR, I do not consider there to be any legitimate forensic interest or entitlement of the examinee of a medical examination conducted in the circumstances of the present case to have a medical expert of his or her choice present. I consider that it is in accordance with the dictates of justice that the orders sought by the defendants be made.

Orders 42I make the following orders: In proceedings 297481 of 2009 (1)Order the second plaintiff, David Rankin, to attend a medical examination with Dr Yvonne Skinner at 10 am on 8 September 2014. (2)Order the third plaintiff, Donna Rankin, to attend a medical examination with Dr Yvonne Skinner at 10 am on 11 September 2014. (3)Order the fourth plaintiff, Holly Rankin, to attend a medical examination with Dr Yvonne Skinner at 10 am on 15 September 2014. (4)Dispense with the requirement in r 23.5 of the UCPR that Dr Skinner permit a medical expert of the plaintiff's choice to be present for such an examination and direct each of the plaintiffs referred to above to attend their respective medical examinations without a medical expert. (5)Subject to a written application for a different order being made to my associate within seven days, order the second, third and fourth plaintiffs to pay the defendants' costs of the motion. In proceedings 297482 of 2009 (1)Order the plaintiff, Madeline Barlow-Smith, to attend a medical examination with Dr Yvonne Skinner at 10 am on 16 September 2014. (2)Dispense with the requirement in r 23.5 of the UCPR that Dr Skinner permit a medical expert of the plaintiff's choice to be present for such an examination and direct the plaintiff referred to above to attend her medical examination without a medical expert. (3)Subject to a written application for a different order being made to my associate within seven days, order the plaintiff to pay the defendants' costs of the motion.

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: 30 July 2014

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