Solicitors:
Plaintiff: Slater and Gordon Lawyers
Defendant: Turks Legal
File Number(s): 2020/00008638
[2]
Judgment
In proceedings commenced by a Statement of Claim filed on 10 January 2020, the plaintiff (a former member of the NSW Police Force) claims that she is totally and permanently disabled ("TPD"), and is entitled to TPD Benefits, within the terms of an insurance policy held by FSST Trustee Corporation as trustee, underwritten by the defendant as an insurer.
The plaintiff seeks an order that the defendant pay to the Trustee, on trust for her, the TPD Benefits to which she claims an entitlement (in the sum of $488,728.34), together with interest.
By its Defence filed on 19 June 2020, the defendant admits that the plaintiff suffered psychiatric injuries as a result of her employment with the NSW Police Force, but it denies the plaintiff's claimed entitlement.
By her Statement of Claim the plaintiff challenges a determination of the defendant (recorded in a letter dated 27 April 2018) that the plaintiff had not, in support of her claim for TPD Benefits, "provided proof that, at the relevant date for assessment (and while an Insured Member) she was incapacitated to such an extent as to render [her] unlikely ever to engage in any gainful professional, trade or occupation for which [she] is reasonably qualified by reason of education, training or experience."
The plaintiff's challenge to that determination is the central question for determination by the Court in the principal proceedings on the current pleadings. However, a subtext to the principal proceedings is that, under cover of a lawyer's letter dated 16 November 2018, the plaintiff submitted to the defendant a formal request (dated 15 November 2018) for a redetermination of her TPD claim.
That request has not yet been the subject of a determination by the defendant, although it has been the subject of substantial correspondence between the parties and debate between their respective medical experts.
It is not beyond the contemplation of the parties that the defendant's determination of the plaintiff's request may, if it does not favour the plaintiff, be the subject of litigation on an amended statement of claim in these proceedings.
By a notice of motion filed on 26 April 2021, amended on 10 June 2021 and further amended on 17 September 2021, the defendant seeks orders under rule 23.4(1) of the Uniform Civil Procedure Rules 2005 NSW that the plaintiff be required to submit to a medical examination by each of:
1. Mr Dino Cipriani, a psychologist; and
2. Dr Peter Young, a psychiatrist.
Amendments of the defendant's notice of motion have been directed to accommodating objections to any further medical examination advanced on behalf of the defendant. In the same vein, on the hearing of the motion, counsel for the defendant invited the Court (if minded to make an order for examination) to mould the Court's orders to adapt them to requirements of the NSW Government's public health orders connected with the current COVID-19 pandemic.
Each of Mr Cipriani and Dr Young has previously examined the plaintiff. Mr Cipriani assessed her on 24 March 2017 and has since issued various reports. Dr Young examined her, via Skype, on 28 August 2020 and produced a report dated 6 October 2020 adverse to her claim.
The defendant contends that it should be permitted an opportunity for Mr Cipriani and Dr Young to re-examine the plaintiff because:
1. in support of her claim of a TPD Benefit, the plaintiff (between 11 March 2021 and 1 April 2021 or thereabouts) submitted fresh material in response to a "Second Procedural Fairness Letter" dated 18 November 2020 served on her by the defendant in connection with her request for a redetermination of her claim; and
2. in any event, the plaintiff contends (as recorded in a solicitor's letter dated 9 March 2021, with reference to a witness statement of the plaintiff of the same date) that Dr Young's report dated 6 October 2020 should be disregarded because the examination conducted by Dr Young on 28 August 2020 (upon which the report was based) was unfairly prejudicial to her on account of a disruption in the Skype transmission which, the plaintiff complains, rendered her anxious and unable to respond adequately to Dr Young's enquiries.
The defendant's contention that there are grounds for a re-examination of the plaintiff is supported by reports from Mr Cipriani (dated 23 May and 17 July 2021) and a report from Dr Young (dated 24 May 2021), responsive to the plaintiff's "fresh materials" and associated correspondence.
The plaintiff contends that no orders for a medical examination should be made because:
1. reports produced as a result of any such examination could not be relevant to an assessment of the plaintiff's condition as at 29 September 2011, the agreed date of assessment;
2. the plaintiff is distressed by the prospect of undergoing further medical examinations, by doctors she perceives to be unsympathetic to her, after she has already undergone numerous other examinations;
3. as reported by the plaintiff's treating doctors, any further examination of the plaintiff would be likely to aggravate her psychiatric condition; and
4. there is no proper forensic purpose in the proposed re-examination of the plaintiff by Mr Cipriani and Dr Young.
Upon enquiry by the Court, counsel for the plaintiff declined to give to the Court an undertaking that the fresh material served on the defendant between 11 March 2021 and 1 April 2021 or thereabouts would not be relied upon by the plaintiff at a final hearing of these proceedings.
The parties have both made written and oral submissions on the defendant's motion, based upon extensive materials reproduced in a court book. The defendant's written submissions in support of the motion (dated 7 September 2021 and filed on 8 September 2021) have been marked for identification as "MFI D2", with a single page chronology in support of the submissions marked for identification as "MFI D5". The plaintiff's written submissions in opposition to the motion (dated and filed on 10 September 2021) have been marked for identification as "MFI P1".
UCPR rule 23.4 is in the following terms:
"23.4 Order for examination (cf SCR Part 25, rule 5; DCR Part 23, rule 5; LCR Part 20, rule 5)
(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 terms of rule 23.4(1) require specificity in identification of a medical expert and in identification of a time and place for any medical examination.
The rule's requirement for specificity may present a difficulty in light of the fluctuating terms of public health orders issued to deal with the current COVID-19 pandemic.
The parties have agreed that an appropriate means to address any such difficulty is that, if minded to make an order of the nature described in the rule, I should record that fact, allow the parties an opportunity to negotiate COVID-safe terms for the conduct of any medical examination to be ordered and, if need be, entertain submissions about the precise form of the Court's order(s) after the parties have endeavoured to resolve their differences.
The parties have invited the Court to approach UCPR rule 23.4 by a determination of the reasonableness or otherwise of the defendant's application for an examination order and the plaintiff's opposition to such an order, and, if both parties have acted reasonably, weighing competing contentions in a balancing exercise: Angliss v Urquhart [2001] NSWCA 441 at [13] and [15]-[16].
In approaching the Court's task in that light, I am conscious that:
1. the primary issue in the proceedings, on the pleadings thus far filed, is whether or not the defendant's decision of 27 April 2018 to decline the plaintiff's claim for a TPD Benefit is maintainable, notwithstanding: (i) the plaintiff's request of 16 November 2018 for a redetermination by the defendant of her claim; (ii) the absence of any determination of that request as yet; and (iii) the fact that an adverse determination of the request can reasonably be expected to be challenged by way of an amended statement of claim in these proceedings;
2. the defendant has formally admitted that the plaintiff suffered psychiatric injuries as a result of her employment with the NSW Police Force;
3. the passage of time since the agreed date of assessment may be likely to diminish the extent to which evidence of the plaintiff's current medical condition can inform determination of her claim for TPD Benefits (MetLife Insurance Ltd v Sandstrom [2021] NSWCA 123 at [205]-[206]);
4. the plaintiff's treating doctors (Dr Durrell, Dr Wilkinson and Mr Ward) have counselled against subjecting the plaintiff to further, compulsory medical examinations;
5. the opinions of the plaintiff's treating doctors about the nature and significance of any harm to the plaintiff arising from further examinations of her have been contested by Mr Cirpirani and Dr Young;
6. in due recognition of the treating doctors' concerns, the defendant has endeavoured to moderate its proposals for medical examinations (by arranging for Mr Cipriani to travel to the plaintiff's home territory, Wollongong, for the conduct of his proposed examination and by offering to provide the plaintiff with private transport to and from an appointment with Dr Young in Sydney);
7. the plaintiff maintains that Dr Young's report dated 6 October 2020 is unreliable because of a technical problem encountered in the Skype examination undertaken on 28 August 2020; and
8. the plaintiff reserves her right, on the final hearing of these proceedings, to tender as evidence the fresh material served by her on the defendant between 11 March 2021 and 1 April 2021 or thereabouts.
I am mindful, also, that the parties have yet to engage in a process of mediation earlier contemplated, the plaintiff submits because of a failure on the part of the defendant to approach its forensic obligations responsibly. Each party complains of the performance of the other in the proceedings. Each party apprehends that the other is seeking to obtain a forensic advantage to which she or it is not entitled.
Nevertheless, I find that the defendant has acted reasonably in seeking to have the plaintiff re-examined by Mr Cipriani and Dr Young, and in moderating its proposals for examination of the plaintiff so as to accommodate concerns about her medical condition; that, having regard to her medical condition, the plaintiff has acted reasonably in resisting orders for her further examination; and that, weighing the parties' competing cases in the balance, an order should be made, on terms, for examination of the plaintiff by Dr Young but no order should be made for an examination by Mr Cipriani.
I am not persuaded that a further examination of the plaintiff by Mr Cipriani is necessary or appropriate to do justice between the parties, despite the preparedness of Mr Cipriani to travel to Wollongong for the purpose of an examination. His examination of the plaintiff would be likely to occupy three hours or so, and would very likely be unduly stressful for the plaintiff. I intend no criticism in recording my impression that he appears to have a settled view of the plaintiff adverse to her claim. In essence, he appears to regard her as having exaggerated her symptoms and he seeks an opportunity to re-examine her for the purpose of confirming that opinion, allowing her an opportunity to dissuade him of it by "providing an accurate current symptom picture and full cooperation with cognitive testing". In my opinion, if she declines that opportunity (such as it is), the Court should not compel her to take it up.
On the other hand, should Dr Young be able and willing to travel to Wollongong (so as to spare the plaintiff the trauma of travel to and from a stressful appointment in Sydney), for an examination (as the defendant anticipates) not exceeding one hour or thereabouts in length, in circumstances in which the plaintiff is accompanied by a support person agreed between the parties (or, in default of agreement between the parties, approved by the Court), in my opinion the defendant should be entitled to have him re-examine the plaintiff
This is in circumstances in which: (a) the plaintiff proposes to contend that his first examination of her miscarried (through no fault of the parties); and (b) she reserves a right to rely upon evidence which, the defendant contends, it should in fairness have an opportunity to address.
In forming my opinion that a compulsory examination by Dr Young should be allowed, I have taken into account Mr Cipriani's comment that he doubts "that a further examination by Dr Young would add appreciably to his recent opinion". The point is that the forensic value of Dr Young's "recent opinion" has been challenged by the plaintiff as procedurally flawed by reason of a malfunction in Skype and, in the interests of justice, the defendant should have an opportunity (on terms designed to minimise disruption to the plaintiff's health) to rectify the procedural challenge to Dr Young's report by way of a re-examination.
For the record, I note that the defendant undertakes that Dr Young's re-examination of the plaintiff will not traverse the events which gave rise to the plaintiff's psychiatric injuries.
As agreed at the hearing of the defendant's motion, I propose to stand the motion over for a time sufficient to enable the parties to agree (if they can agree) upon terms for the conduct of a re-examination by Dr Young. For that purpose, I propose to list the motion before me for a nominal directions hearing, reserving to the parties liberty to apply in the meantime. Although I will entertain submissions about the costs of the defendant's motion, I am presently minded to order that the costs of the motion be the parties' respective costs in the proceedings.
The only orders I make for the time being are as follows:
1. ORDER that the further amended notice of motion of the defendant filed on 17 September 2021 be listed before Lindsay J on 19 October 2021 at 9:00am for further consideration, or directions, as the nature of the case might require.
2. RESERVE liberty to apply on 2 days' notice in the meantime.
3. RESERVE all questions of costs relating to the defendant's motion.
If the parties agree upon the terms upon which Dr Young is to examine the plaintiff, they are at liberty to submit draft orders to the Court for consideration in chambers.
[3]
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Decision last updated: 21 September 2021