By Notice of Motion filed on 13 July 2015, the first defendant in this matter seeks the following relief:
1. "That pursuant to s 67 of the Civil Procedure Act 2005 NSW (CPA) and rule 23.9 of the Uniform Civil Procedure Rules 2005 NSW (UCPR) the proceedings be stayed unless and until the plaintiff complies with the Court's Orders made 26 February 2015.
2. That pursuant to s 14 of the CPA, the Court dispenses with r 23.5 of the UCPR and directs the plaintiff to attend all future medical examinations arranged by the first defendant without a medical expert.
3. The plaintiff to pay the costs of the first defendant of this Notice of Motion and its costs incidental to the Notice of Motion.
4. Any other order the Court deems fit."
By Notice of Motion filed on 19 June 2015, the plaintiff seeks the following orders:
1. "The scope of any medical examination of the plaintiff by the first defendant's medical experts be consistent with the requirement of Rule 23.4(2) Uniform Civil Procedure Rules 2005 that anything the plaintiff is asked to do, or any questions the plaintiff is asked to answer must be reasonable having regard to the particular circumstances of this matter.
2. The duration of any further medical examination of the plaintiff by Dr Wendy Roberts to be limited to one hour.
3. The plaintiff to have a medical expert of his choice attend with the plaintiff at any medical examination of the plaintiff by the first defendant's medical experts.
4. The first defendant to pay the costs of the plaintiff of this Notice of Motion and its costs incidental to the Notice of Motion.
5. Any other order the Court deems fit."
By way of background, the plaintiff claims damages for personal injuries suffered by him as a result of alleged sexual assaults which occurred when he was a student at the first defendant's school in 1973. On 26 February 2015, the following orders were made by consent:
1. "Orders 2, 3 and 4 of the Notice of Motion.
2. Costs of medical attendances for first defendant to be reserved.
3. Note agreement of the parties that a video of the interview between Dr Samuell and the plaintiff is to be used only if a complaint is made by the plaintiff about anything Dr Samuell did or said in the course of the interview and copies of the record are to be half in Dr Samuell's medical file and in sealed envelopes by the first defendant and the plaintiff.
4. Stood over for mention/directions on 25 June 2015."
Those orders followed an application by the first defendant by Notice of Motion for orders that the plaintiff attend medical examination with Dr Wendy Roberts and Dr D Samuell, and co-operate with those experts.
The plaintiff relied on the following affidavit evidence:
Affidavit of Catherine Fox sworn 17 December 2014
Affidavits of Dr Wendy Roberts sworn 19 January 2015 and 29 September 2015
Affidavits of Lauren Boyd affirmed on 19 June 2015 and 28 September 2015.
Miss Fox and Miss Boyd were both required for cross-examination. Their evidence is referred to below.
The plaintiff relied on the following affidavit evidence:
Affidavit sworn by Phillipa Grant dated 20 July 2015
Affidavit of Dr Richard Furst sworn on 13 July 2015
Affidavit of the plaintiff, Robert Parker, sworn on 10 July 2015
The plaintiff was cross-examined and his evidence is referred to below.
I have read all of the affidavit evidence. It is unnecessary to set out a summary of the evidence for the determination of the issues between the parties. Further, those issues have been narrowed by an agreement between the parties that Dr Samuell may video his examination of the plaintiff in these terms:
"As noted in the consent orders and in addition, Dr Samuell will permit the plaintiff to place the video camera wherever he wishes in the room, provided it shows the plaintiff's examination."
The issues to be determined therefore are:
1. Whether on the first defendant's application there should be a stay of proceedings pending completion of the medical examination of the plaintiff by the first defendant's medical experts, Dr Roberts and Dr Samuell.
2. Whether the examination of the plaintiff by Dr Roberts should be restricted to a period of one hour only.
3. Whether the plaintiff be directed to answer questions from the first defendant's medical experts about the nature of the sexual assaults he alleged occurred to him, the details of those assaults, the process by which he recalled those assaults and the effect of the assaults on him. This involves consideration of r 23.4 UCPR.
4. Whether the plaintiff is entitled to have present, at the time of his examination by any expert for the first defendant, a support person, being a medical practitioner who is otherwise unrelated to the proceedings. This involves consideration of r 23.5 UCPR.
Generally, in relation to the medical examinations, the plaintiff, by his counsel, informed the court that the plaintiff was prepared to talk to both doctors qualified by the first defendant about what happened to him in a "broad sense".
[2]
The evidence
Miss Catherine Fox, solicitor, was cross-examined on her affidavit sworn on 17 December 2014. She was not the author of a letter sent to the plaintiff's solicitors on 8 September 2014, referred to in paragraph 6 of her affidavit, which advised those solicitors that the plaintiff would be required to attend upon a psychologist and psychiatrist for "intellectual capacity testing".
Ms Fox agreed that she had later spoken to Dr Roberts, but did not ask Dr Roberts or tell her to ask questions of the plaintiff in relation to the sexual assaults.
Ms Fox was cross-examined about two telephone calls she had with the plaintiff's solicitor, Ms Grant, on 8 and 9 October 2012, concerning the length of time that testing by Dr Roberts of the plaintiff would take.
Ms Lauren Boyd, solicitor, was cross-examined briefly, merely to confirm that Dr Samuell has now consented to the camera being positioned wherever the plaintiff feels comfortable, during his examination.
The plaintiff was cross-examined by learned Senior Counsel for the first defendant. He disagreed that the examination by Dr Roberts was delayed for a period of two hours and 20 minutes because of difficulties he caused whilst Dr Roberts explained the process of testing. The plaintiff stated the delay was one hour and 10 minutes.
The plaintiff disagreed with the proposition that he would not talk about the nature of the abuse he suffered, namely, the sexual assaults. He said that he answered general questions as to the assaults and the effects of them on his life. The plaintiff stated it was very difficult for him to answer detailed questions which involved him revisiting incidents because of the aggression with which they were carried out, and the pain caused to him.
The plaintiff gave evidence that he believed he told Dr Roberts that his lawyer told him he didn't have to answer questions. He denied that he shouted at Dr Roberts, but said that he remained calm, even though he was frustrated by the process. He denied being aggressive and shouting at Dr Roberts.
In respect of Dr Samuell's examination on 6 November 2014, the plaintiff agreed with the content of paragraph 9 of his affidavit, sworn 10 July7 2015, that he accused Dr Samuell of being biased. He explained that he was upset because of the doctor requiring him to consent to the examination being videoed and that he was very stressed at the time. The plaintiff stated that he apologised to Dr Samuell when he left.
The evidence established that the plaintiff left Dr Samuells rooms and spoke to his solicitor, Ms Grant, by phone and was told to return to Dr Samuell's rooms and sign a consent which deleted the video requirement.
The plaintiff gave evidence that he had been told by his solicitors that he did not have to answer the doctor's questions, after he had seen the report of Dr Furst dated 8 July 2013. He had been interviewed by Dr Furst for a period of 100 minutes, and had told Dr Furst that he had no memory of the alleged sexual assaults until it came back to him during therapy he underwent in 2010. The plaintiff said that he believed, based on the therapy that he underwent, that there may have been several trigger points for his memory of the events.
When asked by learned Senior Counsel whether he had told Dr Furst what he remembered, the plaintiff said that Dr Furst did not ask him specific details of the assaults, but had asked about the effects of those assaults and his work history. He said that he did not go into "extreme specifics" in relation to the attacks, but talked about the first and last assault.
The plaintiff gave evidence that he understood Dr Roberts wanted to go into "extreme detail" about the sexual assaults, which he found very confronting and very upsetting. It was put to him that he was not prepared to answer any questions about the abuse, but the plaintiff said that he did answer questions about the abuse, but was upset at the idea of spending another two and half days going through each detail of the assaults. Dr Roberts had told him that his approach "would go against him in court".
The plaintiff denied that he spent a lot of time talking about his inability to discuss the assaults, but rather, said that he was prepared to talk about his first memories of those assaults and their effect on him.
In re-examination the plaintiff stated that he had been interviewed by police about the sexual assaults in October 2010, over a period of two and half days, and had also given evidence in criminal proceedings against the second defendant.
[3]
Submissions
The first defendant submitted that it was seeking, not a permanent stay, but a stay pending completion of the medical examinations of the plaintiff its expert witnesses. Dr Furst had provided a report dated 8 July 2013, which set out a history of counselling the plaintiff underwent in 2010 for anxiety symptoms. Dr Furst recorded that the plaintiff started to remember the sexual abuse from around July 2010, following which, he became emotionally unstable. Dr Furst opined:
"The reason for Mr Parker's sudden return of memory for past events is not clear, but was probably triggered by therapy sessions … relating to his son's adjustment issues …
The science of repressed memories and recovered memories has been controversial in psychiatry, with limited understanding about how traumatic memories are laid down at the time of the trauma, presumably in some type of unprocessed manner, and then 'recovered' at some point in the future, often during therapy."
Learned Senior Counsel submitted that for a fair trial to take place, it was important that the first defendant have the opportunity to obtain the expert opinion sought in relation to the process of the plaintiff's recovered memory, his diagnosisas well, causation and damages issues.
In respect of the plaintiff's application to have a chaperone present at the medical examinations, the first defendant relied on the judgment of Adamson J in Holshandon Pty Limited v Eakin [2014] NSWSC 1028. On the question of whether a plaintiff was entitled to have a medical expert of their choice present for the medical examination, or whether r 23.5 of the UCPR ought be dispensed with, her Honour reviewed a number of English authorities and then said at [38]:
"It 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 some 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."
In the circumstances of that case, her Honour was satisfied that there were substantial reasons for not permitting the plaintiffs to bring another medical expert to assessments undertaken by doctors on behalf of the defendants.
Learned Senior Counsel submitted that, consistent with her Honour's judgment, the presence of a support person here would affect the reliability of the report provided by the first defendant's expert witnesses.
Counsel for the plaintiff submitted that Adamson J's judgment in Holshandon Pty Limited, supra, could be distinguished on its facts.
Here, the plaintiff had given a detailed statement to the police and had given evidence in criminal proceedings in respect of numerous incidents of terrible sexual assault. He had already been assessed by Dr Roberts over a period of eight and three-quarter hours, and it was a question of fairness to impose a limitation on how long that psychologist would have to assess the plaintiff.
In respect of the support person, it was submitted that any qualified doctor would be satisfactory to the plaintiff as a support person, being a medical practitioner unrelated to the proceedings.
Counsel for the plaintiff referred the court to two other authorities, Aspinall v Sterling Mansell Limited [1981] 3ORER 866 and Angliss v Urquhart [2001] NSWCA 441.
In reply, Senior Counsel for the first defendant submitted that both those authorities could be distinguished on their facts and that Holshandon, supra, was authority which established that the presence of a third party here would be likely to adversely affect the freedom of the examination by the expert and the expression of their opinions. Medical experts were bound by the Expert Code of Conduct and were sensitive to dealing with the nature of the allegations made here and recovered memory of such events.
[4]
Determination
Section 56 of the Civil Procedure Act 2005 (NSW) sets out the overriding purpose of the Act and rules of the court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. By s 56(2), the court must seek to give effect to that overriding purpose in exercising any power given to it by the Act of rules of the court.
By his Statement of Claim filed on 12 July 2013, the plaintiff, who was born on 15 July 1961, has pleaded a cause of action based on numerous events from 24 July 1973 to 29 November 1973, in which the plaintiff was sexually assaulted by the second defendant. The cause of action against the first defendant is based on it being vicariously libel for the torts committed by the second defendant.
It is common ground that the pleading of the plaintiff's claim is consistent with the allegation contained in a statement made by the plaintiff to the New South Wales Police dated 21 October 2010. That statement followed the plaintiff starting to remember the sexual abuse during the course of therapy referred to above.
It is clear that there are complex issues involved in this litigation. Those issues will involve, the nature of the conduct alleged in 1973, how the plaintiff's memory was revived in respect of that conduct, issues of breach of duty of care and causation, and ultimately damages. For a fair trial to take place, the defendant is entitled to have the plaintiff examined by expert witnesses to meet the claim being prosecuted by the plaintiff, and in particular, the expert report of Dr Furst, psychiatrist.
The relevant rules provide:
"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.
23.5 Medical expert for person concerned
The person concerned may have a medical expert of his or her choice attend a medical examination under this Division.
23.9 Default
(1) If a party makes default in compliance with this Part, or a notice or order under this Part, the court may give or make such judgment or such order as it thinks fit, including:
(a) if the party in default is a plaintiff, an order that the proceedings be dismissed as to the whole or any part of the relief claimed by the party in the proceedings, or
(b) if the proceedings were commenced by statement of claim and the party in default is a defendant, an order that the party's defence be struck out and that judgment be given accordingly.
(2) If a person for whose benefit relief is being claimed, not being a party, makes default in compliance with this Part, or an order under this Part, the court may give such judgment, or make such order, as it thinks fit, including an order that the proceedings be dismissed as to the relief so claimed.
(3) This rule does not limit the powers of the court to punish for contempt."
Whilst the evidence has established that the process of examination and assessment of the plaintiff by both Dr Wendy Roberts, psychologist, and Dr Samuell, psychiatrist, have been problematic for both the plaintiff and those experts, it is clear to me that the plaintiff now understands the need for him to attend such examinations and co-operate in the assessment by those experts. It is clear that that process has been, and will be, painful for him, and it is also clear that that process should be, as acknowledged by learned Senior Counsel for the first defendant, carried out by such experts with sensitivity to the nature of the plaintiff's claims, any psychological injury that he has suffered, and its sequelae. Being bound by the Expert Witness Code of Conduct, those experts would understand that they are providing assistance to the court by provision of their objective expert opinions in the matter. They would also understand that if the nature of their assessment, namely, the conduct of the interview and examination process, was impugned, then that may be an issue for the trial judge to ultimately determine, based on all of the evidence.
It is for those reasons that I decline the first defendant's application to order a stay, subject to the plaintiff completing the process of medical examination by the first defendant's experts. Clearly, it is in the plaintiff's interest to complete that process so as to prosecute his claim. He would also understand that if he, by his own conduct, prevents that process from being completed, then it would be inevitable that the grounds for such a stay would ultimately be made out. They have not been made out at the moment. Rule 23.9 UCPR provides a wide discretion to ensure compliance with the rules and orderly case management. It does not warrant making the order the defendant seeks to stay the proceedings whilst the defendant garners its evidence.
Rule 23.4 does not, on its terms, empower the court to make the order sought by the plaintiff limiting the medical experts' examinations. It is not a matter for the court, in my view, to direct expert witnesses how to carry out an assessment and examination of litigants. It is also inappropriate, in my view, to make an order sought by the plaintiff, limiting to one hour, his examination by Dr Roberts. However, I note that Dr Roberts has already spent a considerable time with the plaintiff and her further assessment should be conducted expeditiously.
I note the plaintiff's concession that he is prepared to answer questions put to him about the alleged assaults in a "broad sense". Such a limitation would be, in my view, unfair to the first defendant, who has to meet the plaintiff's claim as it is brought. For that reason, I direct the plaintiff to submit to an assessment by Dr Roberts and Dr Samuell involving any inquiry by them to the allegations the plaintiff has pleaded in the Statement of Claim, as supported by his statement to the police dated 21 October 2013.
In so directing, it is a matter for the plaintiff how he responds to such questioning. Issues arising from that, for example, any issue going to his credit, or the validity of the opinion of the expert, will be matters for the trial judge.
In the circumstances of this case, given the history of the matter and the interactions that have already taken place between the plaintiff and the first defendant's expert witnesses, I direct that the plaintiff attend such medical examination as is arranged by the first defendant, and have the support of a medical practitioner of his choice attend such examination. Insofar as that determination conflicts with the judgment of McCallum J in Holshandon, referred to above, I decline to follow her Honour's decision and exercise my discretion under pt 23 r 5 to allow the plaintiff to have a support person. I do so for the following reasons:
1. The factual circumstances here differ from those before her Honour.
2. In the passage set out above in [38] of her judgment, by saying "it may be that assessments by psychiatrists are a particular category which makes the rule inapposite", her Honour was not binding every case of assessment by psychiatrists. It is a matter for discretion depending on the circumstances in each case, and the matters which her Honour relied on to decline making such an order, do not, in my opinion, apply here.
3. Further, her Honour referred to the decision of the English Court of Appeal in Hall v Avon Area Health Authority. At [36] her Honour extracted the following from the judgment of Waller LJ, where his Lordship adverted to circumstances where it might be reasonable to impose a condition that the plaintiff's own expert be present, as follows:
"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 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 the 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."
That dicta applies here, where the plaintiff finds it very stressful to discuss the events giving rise to his cause of action, and, without apportioning blame to either party, the examinations, or attempts at examination that have taken place to date, have been problematic.
1. I reject the submission made by learned Senior Counsel for the first defendant, that the presence of a support person, merely to be present at any examination, would adversely affect the freedom of the expert to carry out assessment and examination of the plaintiff and to express their expert opinions based on such examination. Rather, the presence of a support person may well, in these circumstances, enhance the process involved.
[5]
Conclusion and Orders
On the first defendant's Notice of Motion filed on 19 June 2015, I make the following orders:
1. I refuse to make an order that the proceedings be stayed unless and until the plaintiff complies with the court orders made on 26 February 2015.
2. I refuse to direct that the plaintiff attend all future medical examinations, arranged by the first defendant, without a medical expert, by dispensing with rule 23.5 of the UCPR.
3. The first defendant's Notice of Motion is therefore dismissed.
4. The costs of the Motion will be the plaintiff's costs in the cause.
In respect of the plaintiff's Notice of Motion filed on 13 July 2015, I make the following orders:
1. I decline to make Order 1 sought in the Notice of Motion.
2. I decline to order that any further medical examination of the plaintiff by Dr Roberts be limited to one hour.
3. I order that the plaintiff have a medical expert of his choice attend with the plaintiff at any medical examination of the plaintiff by the first defendant's medical experts, as a support person.
4. The costs of the Motion will be the plaintiff's costs in the cause.
I make the following further directions:
1. I direct the plaintiff to answer any questions asked by the first defendant's experts concerning the allegations made by the plaintiff in his Statement of Claim, and outlined in his statement to the police dated 21 October 2010.
2. I grant liberty to the parties to apply on 7 days' notice in respect of the above orders.
3. I stand the matter over for further directions before the Judicial Registrar at 9.30am on Thursday 3 December 2015.
[6]
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Decision last updated: 02 October 2015