By her statement of claim filed on 18 June 2019, the plaintiff alleges that from the time she was placed into the care of the defendant, the successor in title to the Catholic Family Welfare Bureau, she became the victim of physical or emotional and sexual abuse by her foster parents. She contends that the defendant negligently failed to appreciate that she was abused. She brings a claim for damages for personal injury which she particularised as comprising the emotional and physical trauma and psychological sequelae. She also brings a claim for aggravated and exemplary damages. Her claim overall is substantial, to the limit of this Court's monetary jurisdiction.
The defendant admits that it owed a direct ordinary duty to take reasonable care for the plaintiff's safety, but disputes that such duty was non-delegable. It also admits that the foster parents identified by the plaintiff did have care of and custody of the plaintiff and were responsible for providing her with a family life, but denies that it is vicariously liable for the actions of those foster parents or that they were its agents. It denies liability generally. It disputes any liability on its part to take a positive duty to protect the plaintiff from the criminal acts, misconduct or unauthorised behaviour of the foster parents. It also relies upon a limitation defence.
By this notice of motion dated 31 July 2020, the defendant has applied for the plaintiff to be medically examined by Dr Wendy Roberts, a clinical psychologist.
The defendant, the applicant on the motion, identifies that the plaintiff/respondent has the condition Attention Deficit Hyperactivity Disorder (ADHD) and wishes to consider that condition and its relationship, if any, with any Post-Traumatic Stress Disorder (PTSD) or other psychological sequelae, caused as a result of the alleged injuries and disabilities stemming from the treatment by the foster parents.
The subject of the plaintiff's mental health condition has already been subject of some evidence for the plaintiff from a psychiatrist, Dr Blakemore, and also a consultant psychiatrist, Dr Jorg Strobel. It was Dr Strobel who diagnosed the plaintiff with complex PTSD and ADHD. But Dr Blakemore had opined that she may have had pre-existing ADHD which was complicated by her traumatic experience and which developed into complex PTSD. The defendant contends that the latter diagnosis needs to be investigated as it apprehends that it is possible that she had a pre-existing condition prior to the alleged abuses.
The defendant says that Dr Roberts is an appropriate specialist to carry out clinical neuropsychological testing, as well as personality testing, to clarify the extent of any ADHD condition and its relationship with other psychological conditions. It foreshadows that the assessment would consider, amongst other things, cognitive functioning, mood and behaviour. It also contends that Dr Roberts would need to examine the plaintiff in person to properly carry out the examination and testing: it cannot be carried out by Zoom or video conferencing.
The plaintiff refuses to attend such examination. Her solicitor says that she would suffer aggravations to her psychological symptoms if she was required to travel to Sydney. She pointed out that the defendant had previously had opportunity to have its own psychiatrist, Dr Galletly, examine the plaintiff in Adelaide in February 2020, but has elected not to serve that report. The plaintiff contends that she should not be required to attend an examination before a different mental health professional whilst the psychiatrist's report had not been served; she reiterated the concern about aggravation of her psychological symptoms if there is a requirement to travel from Sydney and that the proper course, if the defendant wanted evidence in relation to the ADHD, was for that to be the subject of supplementary evidence from Dr Galletly.
If, however, she is to be examined by Dr Roberts, it should be in Adelaide. Reference was made to the concern of the plaintiff in being required to self-isolate and quarantine upon her return to South Australia.
Through her solicitors' most recent affidavit, the plaintiff also says that there are many other ADHD counsellors or psychologists and at least two neuropsychologists in Adelaide who could perform the assessment which the defendant considers necessary.
In a report from Dr Roberts relied upon in support of the application, Dr Roberts was critical of the methodologies deployed by Dr Strobel and/or Dr Blakemore, characterising the diagnoses as being done "by checklist". She reiterated that a psychiatrist was not qualified to opine on the issues which desirably involve neuropsychological and clinical psychological testing. She considers that she has the requisite expertise.
Dr Roberts indicated that she is not willing to travel to Adelaide to conduct such examination. She did not have the facilities to conduct an examination in Adelaide and it would be disruptive for her practice. She also made some practical suggestions that might alleviate the plaintiff's anxious concerns about undergoing such assessment. The defendant has offered to bear the plaintiff's travelling expenses and that of a support person.
In Harrod v MetLife Insurance Limited [2019] NSWSC 28 at [22], Slattery J summarised the principles to be applied as follows:
"The power granted to the Court under UCPR, r 23.4 is discretionary and is to be exercised judicially, having regard to the factors relevant to the exercise of the discretion in the particular case: KF by her tutor RF v Royal Alexandra Hospital for Children [2010] NSWSC 891 ("Royal Alexandra Hospital") at [21] and the discretion is to be exercised in accordance with Civil Procedure Act 2005 ("CPA"), ss 56, 57, and 58; Rowlands v State of New South Wales (2009) 74 NSWLY 715; [2009] NSWCA 136 ("Rowlands") at [10] per Hodgson JA. A defendant, such as MetLife, that has been sued in an action by a plaintiff, who claims some mental or physical impairment or medical condition, is entitled to take reasonable steps, including the use of the UCPR, r 23.4 powers to ensure that the issues that may bear upon the determination of the proceedings are assessed by independent expert evidence, so that the trial judge is in a position to determine the real issues in dispute: Royal Alexandra Hospital at [46]. Provided the examination is sought for a legitimate purpose and the evidence is likely to be material to an issue in dispute, the order should ordinarily be made: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150."
In JKZ v The Scots College [2018] NSWSC 1526 at [13]-[15], Garling J observed that, in making an order pursuant to r 23.4:
"… the Court must assess whether the request for the examination is reasonable in light of all of the circumstances, including the information and advice received by the defendant from its experts, and whether the plaintiff's refusal to attend is similarly reasonable. If both of these approaches are reasonable, then it is a matter for the Court to balance the plaintiff's right to personal liberty with the defendant's right to defend itself in the litigation, which the plaintiff has brought.
Ultimately, the Court must weigh up all of the facts and circumstances to ensure that the proceedings brought by the plaintiff against the defendant are determined justly, taking into account the reasonable requirements of each party.
Such an order, because it is an interlocutory, and a case management order, must facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1), Civil Procedure Act 2005. As well, s 58(1) of the Civil Procedure Act requires the Court to seek to act in accordance with the dictates of justice, which are referred to in s 58(2)."
In my view, the defendant is entitled to have a neuropsychological assessment if it wishes and it should not be precluded from doing so because of its choice not to serve the report from its own psychiatrist.
I do not see the plaintiff's choice of forum (NSW) as being material as, although the material events happened in NSW, they concern events occurring whilst the plaintiff was a child.
I am concerned, however, about the exigencies of the examination in the current COVID-19 Pandemic and, in particular, the mental health consequences for the plaintiff should she be required to come to Sydney and self-isolate, upon her return to Adelaide. The defendant's submissions pay no heed to the potential adverse health consequences to the respondent.
In other words, that examination should occur in Adelaide. That leaves the practical choice for the defendant whether it be conducted by the neuropsychologist of its choice, Dr Roberts, or a different neuropsychologist, or other qualified mental health professionals, such as Doctors Fitzgerald or Lucas (who were suggested by the plaintiff).
In reply to the last affidavit of the plaintiff's solicitor, the defendant has referred me to the current COVID-19 restrictions. They suggest that 'non-essential' travellers would be required to self-quarantine for 14 days after entering South Australia and submit to testing.
The upshot of this is that the plaintiff, if she is to attend an examination in Sydney, will have to be in quarantine upon her return to Adelaide; and if Dr Roberts is required to examine the plaintiff in Adelaide, she too will be required to be quarantined upon arrival to Adelaide. It appears that Dr Roberts is unwilling to undergo such requirement.
In this unhappy situation forced upon the parties (and indirectly the Court), in my view the burden should fall upon the applicant. That is, whilst respecting its autonomy to have an expert of its choice, it might have to wear the time and expense. This is particularly so if, as appears the case, there are alternatively qualified professionals in Adelaide who would not be subject to the quarantine restrictions.
The Court orders that:
1. The plaintiff is to submit to neuropsychological examination, which is to be conducted in Adelaide at a time and place notified by the solicitors.
2. The costs of this application are to be costs in the cause.
[2]
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Decision last updated: 27 August 2020