Supreme Court New South Wales Medium Neutral Citation: Graham v Peabody Energy Australia Pty Ltd [2023] NSWSC 1087 Hearing dates: 23 August 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: 1. The motion is dismissed. 2. The defendant is to pay the plaintiff's costs of the motion. Catchwords: CIVIL PROCEDURE – Medical examinations – claim for work injury damages – where defendant seeks orders that the plaintiff attend a further psychological examination – r 23.4 of Uniform Civil Procedure Rules 2005 (NSW) – whether the further examination is reasonable in all the circumstances – whether further examination of the plaintiff will be injurious to his health – motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 Uniform Civil Procedure Rules 2005 (NSW), rr 23.4, 23.5 Cases Cited: Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142 Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425 JKZ v The Scots College [2018] NSWSC 1526 Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWSC 136 Category: Procedural rulings Parties: Sidney Allan Graham (Plaintiff) Peabody Energy Australia Pty Ltd (Defendant) Representation: Counsel: E Welsh (Plaintiff) L King SC (Defendant) Solicitors: Brydens Lawyers Pty Ltd (Plaintiff) Hicksons Lawyers (Defendant) File Number(s): 2021/343929 Publication restriction: None REVISED EX TEMPORE JUDGMENT 1. The plaintiff seeks damages against the defendant for injuries sustained whilst he was working at a coal mine. The plaintiff alleges that during the period in which he worked for the defendant at the coal mine, he was subject to bullying, harassment, belittling and intimidation. The plaintiff says that as a result of that conduct towards him, he suffered severe personal injury in the nature of a psychological illness. The plaintiff alleges that the injury, loss and damage suffered by him was caused by the negligence of the defendant. The plaintiff also alleges that the defendant is vicariously liable for the persons alleged to have engaged in the conduct. 2. Pursuant to a motion filed on 30 March 2023, the defendant seeks orders under r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff attend a medical appointment arranged by the defendant with Dr Jane Lonie, who is a neuropsychologist. The appointment was originally arranged in May 2023 but is now scheduled to take place in September 2023. 3. The plaintiff has declined to attend the medical examination and resists the orders sought in the application. Mr King of Senior Counsel appears for the defendant and Ms Welsh appears for the plaintiff. Both provided helpful written and oral submissions. 4. It is not necessary to comment in much detail about the nature of the plaintiff's case. The plaintiff maintains that, as a result of the conduct directed at him whilst he was at work, he developed a severe psychiatric illness in the nature of a major depressive illness. He says that he has been off work for a significant period. He claims substantial damages arising out of his inability to work and the nature and extent of his condition. The plaintiff is under the care of a psychiatrist and has been admitted to South Coast Private Hospital on at least one prior occasion for treatment. Background to the application 1. The proceedings are listed for hearing for five days commencing 13 November 2023. In the usual way, the parties have exchanged expert medical evidence, including evidence from the plaintiff's treating psychiatrist, Dr N Pai, and a medico-legal expert psychiatrist, Dr Glen Smith. The defendant has had the plaintiff examined by an expert medico-legal psychiatrist, Dr Doran Samuell, and has served reports from Dr Samuell. 2. In 2022, the defendant arranged for the plaintiff to attend for psychological examination and testing by Dr Paul Phillips. The plaintiff refused to attend the examination. That led to a similar application being pursued in this Court and orders being made for the plaintiff to attend the examination by Dr Phillips. 3. On 14 November 2022, Dr Phillips provided a report to the solicitors for the defendant. The report is 82 pages in length. Dr Phillips offers various opinions within the report based on his examination and testing. Importantly, in the context of the current application, Dr Phillips recommended that the plaintiff be referred for neuropsychological assessment so that he could offer an opinion on the nature and extent of the plaintiff's symptoms, the possible diagnosis and other issues (such as causation). 4. Following receipt of Dr Phillips's report, the defendant arranged and then rearranged a medical examination by a neuropsychologist, Dr Jane Lonie. As the plaintiff declined to attend, the defendant brought this motion. The defendant relies on four affidavits of its solicitor, Najeh Marhaba, dated 30 March 2023, 11 April 2023, 1 May 2023 and 22 June 2023. The plaintiff relies on an affidavit of his solicitor, David Kim Thach Le, dated 27 April 2023, as well as an affidavit of the plaintiff's wife, Sharon Graham, dated 27 April 2023. 5. The purpose of Ms Graham's affidavit is to set out her concerns about the need for the plaintiff to attend a further medical examination and testing, and to indicate Ms Graham's belief or observation that the plaintiff's mental health might suffer as a result of this further examination. 6. Other than that, the affidavits merely exhibit all of the existing medical evidence which gives rise to the dispute between the parties. Principles to be applied 1. Rule 23.4 of the UCPR 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. 1. Rule 23.5 of the UCPR is in the following form: 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. 1. Plainly, as set out in r 23.4, the Court may make orders for a medical examination, and the effect of the order would be that a person (the plaintiff) must do all things reasonably requested of him by the medical examiner and answer all questions reasonably asked. There is, of course, an obligation on the defendant to provide reasonable expenses and, in some circumstances, it may be that some conditions are imposed on the order for a medical examination. 2. The issues arising on this type of application have been considered in a number of other cases: Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142; Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425; JKZ v The Scots College [2018] NSWSC 1526; Plaintiff [name withheld] v Stapleton [2017] NSWSC 914; 3. The approach I should take is not the subject of dispute or in doubt. I must assess whether the defendant's request that the plaintiff attend a medical examination is reasonable in light of all the circumstances, including considering all existing medical evidence and opinions from experts about the need for such an examination and the consequences of such an examination. I must balance the plaintiff's right to personal liberty – that is, the right to refuse to attend an examination – with the defendant's right to defend litigation being pursued by the plaintiff. 4. In making any decision, I must have regard to the principles in ss 56 and 58 of the Civil Procedure Act 2005 (NSW): that is any order must facilitate the just, quick and cheap resolution of the real issues in the proceedings. I must act in accordance with the dictates of justice. The central issue on this application 1. The central issue on this application is whether, balancing the rights and interests of both parties, it is reasonable to require the plaintiff to submit to lengthy neuropsychological examination and testing by Dr Lonie in September. 2. The defendant submits that, firstly, I should order that the full examination of the type referred to in a letter from the solicitors for the defendant to the solicitors for the plaintiff – that is, taking a history of events, details of symptoms and undertaking complete testing – be permitted. As a fallback position, the defendant submits that, if I am satisfied on the medical evidence that requiring the plaintiff to go back over his traumatic events at work would be injurious to his health, I could make an order limiting the scope of Dr Lonie's examination and testing. That is, the defendant submits that if the real reason that the plaintiff is opposing the further examination, I could limit the nature and extent of the examination to overcome that difficulty. 3. The plaintiff opposes the examination on three bases: 1. having regard to the medical evidence on which the plaintiff relies, such further examination is not reasonably necessary; 2. the further examination of the plaintiff will be injurious to his health, having regard to the opinions of his treating psychiatrist, Dr Pai, and the medico-legal expert, Dr Smith, as well as the observations of his wife, Ms Graham; 3. the real reason why such further examination is required is to determine whether the plaintiff might be malingering. The plaintiff says that examination for that purpose is not permissible; and 4. the matter is listed for hearing in November. 1. It may be that, depending on the result of any further testing or opinion from Dr Phillips, the plaintiff would be required to obtain a report in response. There may not be time to do so, particularly if the plaintiff is to undergo further neuropsychological testing which, at least conventionally, could not be done for a further 12 months. Mr King SC, on behalf of the defendant, accepts that if the sole purpose of the further examination was to determine whether the plaintiff was malingering, then it would not be permissible (see Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 at [49] per Hodgson JA, with Allsop P and Tobias JA agreeing) ("Rowlands"). Impact on the plaintiff 1. The plaintiff relies on a number of medical reports in support of the submission that this further examination and testing will have an adverse effect on his health. In his report of 26 April 2023, Dr Pai opines that "there has been a worsening of the plaintiff's mental state when he has been required to undertake evaluation by independent unfamiliar clinicians". He says that, the plaintiff's "most recent hospitalisation has been in the context of a situational crisis" and that he has suffered "increasing expression of suicidal ideations and deterioration of mental status after he learnt that he is likely to be subjected to another external examination". Dr Pai says that as a treating clinician, the principle of "do no harm" takes precedence over other issues. In the same report, Dr Pai says that "[f]rom a clinical point of view further neuropsychological testing is unnecessary," for the reasons he sets out in his report. 2. The plaintiff's treating psychologist, Karen Mulready, says that the plaintiff is experiencing significant distress following a psychiatric independent medical examination and has difficulty self-regulating his distress. She recommends that the plaintiff not attend another independent medical examination due to the instability of his psychological condition. 3. In his supplementary report of 15 September 2022, the medicolegal psychiatrist, Dr Smith, says that "an extended psychological assessment, likely involving several hours of testing, would predictably result in significant anxiety and distress" for the plaintiff. He says that it is not indicated in this case and further psychological assessment is not reasonable. Having said that, Dr Smith did not comment upon the likely effects of the latest proposed testing in his 2023 report. The need for further testing 1. The need for such further testing is set out in the report of Dr Phillips. It is Dr Phillips who suggested this and the defendant is appropriately responding to the opinion of Dr Phillips that such further testing should be undertaken. 2. Mr King directed my attention to the body of the report and Dr Phillips's comments on his own testing, commencing at paragraph 165. As Dr Phillips says, the results of the testing lead to three possible conclusions: 1. the first is that the plaintiff has, thus far, an unknown and undetected neuropsychological condition. He is endorsing symptoms which appear as though they are psychopathologies, yet they are not. Dr Phillips says that this could be ruled out by a neuropsychologist; 2. the second is that the plaintiff has a pervasive developmental disorder, such as Autism Spectrum Disorder. Confirmation of this could be acquired by the neuropsychological assessment. This possibility fortifies the recommended referral to a neuropsychologist for review; and 3. the last possibility which remains is that of malingering. As Dr Phillips says, if the neuropsychology findings rule out the earlier two possibilities, then malingering is the remaining reasonable hypothesis. Dr Phillips says that that can be arrived at by way of modus tollens logic. As I understand it, Dr Phillips is suggesting that if the first two possibilities can be ruled out, then the third must follow. 1. As Dr Phillips says in paragraph 167 of his report, an accurate report of exaggerated or fabricated symptoms in the presence of an external motivator is malingering per the various Diagnostic and Statistical Manual of Mental Disorders ("DSM") classifications. By that, he means that exaggerated or fabricated symptoms, coupled with the pursuit of compensation in litigation, is malingering according to the relevant standards. He then goes through his diagnoses and formulations. He says that the conflation issue between personality disorders, developmental disorders and psychotic disorders needs to be resolved. He says that this is preventing accurate diagnoses, formulation and treatment recommendations. He says that a neuropsychological conflation means that the person is responding to multiple potential diagnosis, and this requires further examination. 2. Mr King says that, despite the reference to malingering as being one possible outcome of the further examination and testing, that is merely one purpose (or a collateral result), but it is not the main purpose. He points to the first two reasons as supporting the proposition that this proposed examination would not fall foul of the principles set out in Rowlands. 3. Moreover, Ms Welsh referred to the first paragraph of Dr Phillips's executive summary, which is in the following terms: "Mr Graham was referred for a psychological assessment to confirm the appropriate diagnosis. To avoid incorrect diagnosis of malingering Need A Psych employs a system of benefits of the doubt. This follows the principle, like criminal law, that it is better a guilty person goes free than an innocent person goes to jail. It means that when there is a benefit of the doubt of whether it is malingering or not the benefit it given that the person is not malingering. This benefit of the doubt results in reports like the current one where an analysis of the endorsed symptoms and resulting diagnoses are considered as they would be when there was no malingering present. Other clinicians using only a single test and being satisfied of a single failed scale means the person is malingering would not necessarily engage in this process. This process can result in multiple unexpected diagnoses being detected. The body of the report contains the detailed analysis of each diagnosis and the relevant results." 1. Taking the second sentence of Dr Phillips's executive summary at face value, Dr Phillips is really suggesting that further testing is needed to avoid an incorrect diagnosis of malingering and that the plaintiff should be given the benefit of the doubt, but only if the testing confirms that such doubt exists. As he says, once the first conclusions (relating to other explanations) are ruled out, then the benefit of the doubt is not given and the ruling of malingering turns on the modus tollens logical proof. 2. No doubt, Dr Phillips is entirely genuine in his approach and believes that the plaintiff requires this further testing for the very purpose that I have just outlined. However, it must be said that when Dr Phillips's report was referred to by both Dr Smith on behalf of the plaintiff and Dr Samuell on behalf of the defendant, some doubt (to say the least) was expressed about the opinions and conclusions of Dr Phillips. 3. Dr Smith described Dr Phillips's diagnostic conclusions as "very concerning", suggesting that the presence of more than four separate diagnoses was improbable and that diagnoses of more than three personality disorders are rare. Dr Smith opines that further neuropsychological testing is not appropriate. The existing testing has raised more questions that it has answered, and these questions would not be appropriately answered with a further cross-sectional neuropsychological assessment, which he says is neither reasonable nor necessary. 4. Dr Samuell similarly raises questions or doubts about some of the possible diagnoses raised by Dr Phillips. He says that the diagnosis of Autism Spectrum Disorder is irrelevant. The presence of ADHD would not negate the diagnosis of a persistent depressive disorder, but it might identify some vulnerability to mental illness. He says that the testing undertaken by Dr Phillips recently concluded that there was evidence of paranoid schizophrenia, however, this should not reflect the assessment approach, but rather, the responses of the plaintiff (which may have been inaccurate). He went on to say that the diagnosis of a personality disorder would not negate the diagnosis of a persistent depressive disorder; it would increase the risk of developing symptoms of a persistent depressive disorder. 5. Dr Samuell says that the findings of Dr Phillips do raise serious questions: not about the process or the instruments, but about the plaintiff himself. 6. Having regard to these comments by Dr Samuell, I interpret his observations in the last paragraph of his report as being a reference to whether the plaintiff may be malingering. I come to that view because it seems plain to me that Dr Samuell does not agree with at least one of the other possible diagnoses made by Dr Phillips in his report. 7. In summary, the position is that: 1. the defendant is seeking a further medical examination based on the recommendation of the psychologist who examined the plaintiff and carried out testing; 2. the plaintiff, through its own medical experts (including the treating psychiatrist, the treating psychologist, and a medicolegal expert) has raised significant doubt as to whether such further testing is reasonable or necessary; 3. Dr Samuell, the defendant's medicolegal psychiatrist, has similarly questioned aspects of Dr Phillips's report, but raised a question as to whether the testing does give rise to a doubt about the credibility or veracity of the plaintiff; 4. the plaintiff has put before the Court significant medical evidence, including the opinion of a treating psychiatrist and a treating psychologist that the further examination would be deleterious to the plaintiff's mental health. That includes a reference to an earlier occasion when the plaintiff underwent such extensive examination and ended up in a mental health facility with suicidal ideation as a result thereof; and 5. finally, whilst there is, of course, merit in Mr King's submission that the need for this further examination and testing is multifactorial, I do have the impression from the first two paragraphs of Dr Phillips' report that he is really saying that he would like to conduct further testing to potentially rule out malingering. That is, he wants to give the plaintiff the benefit of the doubt. That is what he says. It seems to me that that is another way of saying that the need for the report is really to determine whether the plaintiff is malingering. 1. I am required to balance all of the factors to which I have referred, in accordance with the principles to which I have also referred. I am particularly influenced by the significant medical evidence put forward by the plaintiff of the likely consequences of such a further examination. I am also influenced by the doubts expressed by various practitioners about the need and benefit of such a medical examination. Of course, the fact that the case is coming on for hearing in November, and depending on the result of the examination, the hearing might be adjourned, is of some importance. However, I give that limited weight because, in a sense, the plaintiff's continued resistance to attending the medical examination is the cause of that. 2. Balancing all of these factors, I am not satisfied that the order should be made and, in the circumstances, the motion is dismissed. 3. The defendant has brought the motion and has been unsuccessful. I order the defendant to pay the plaintiff's 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: 13 October 2023