District Court New South Wales Medium Neutral Citation: Najjarin v Goodman [2024] NSWDC 81 Hearing dates: 01 March 2024 Date of orders: 01 March 2024 Decision date: 01 March 2024 Jurisdiction: Civil Before: Montgomery DCJ Decision: Ex tempore Catchwords: PROCEDURE – Civil – Interlocutory application – Medico-legal assessment – Motor vehicle accident – Defendant seeking order for psychiatric examination of Plaintiff – Refusal to attend medical examination – Where purpose of medical examination is not supported by medical evidence – Where application said to be credibility based – Fair and efficient conduct of litigation on the real issues Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 23.4 Civil Procedure Act 2005 (NSW) ss 56-60 Cases Cited: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150, [4]-[5], [12] Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715, [35], [61] State of New South Wales v Hollingsworth [2023] NSWCA 152 Category: Procedural rulings Parties: Omar Najjarin (Plaintiff/Respondent) Anna Ruth Goodman (Defendant/Applicant) Representation: Counsel: J Malouf (Plaintiff/Respondent) B Wilson (Defendant/Applicant) Solicitors: CL Compensation Lawyers (Plaintiff/Respondent) Meridian Lawyers (Defendant/Applicant) File Number(s): 2023/00141923 Judgment – Ex Tempore 1. The Defendant, as Applicant, filed its notice of motion on 10 August 2023 and proceeds for an order pursuant to UCPR pt 23 r 4 that the Plaintiff attend a medico-legal examination with Associate Professor Jennifer Batchelor. A/Prof Batchelor is a neuropsychologist, well known to this Court as the provider of expert opinion evidence within her field. 2. The affidavit in support of the notice of motion by the Defendant attorney, Mr Simon Jacques de Chasteigner du Mee, of 10 August 2023, deposes at [6] "The defendant wishes to test the Plaintiff's credibility, having regard to the conclusions reached by Dr Synnott. The most appropriate vehicle to do so, in the Defendant's respectful submission, is via psychometric testing including administering the Test of Memory Malingering (TOMM)" as the purpose of medico-legal examination by A/Prof Batchelor. 3. The incident, being a motor vehicle accident, had occurred on 7 April 2018. The defence have briefed specialist psychiatrist, Dr Synnott, to whose four reports I will come. There is no expert medical opinion evidence in support of the application from Dr Batchelor. There is no evidence describing the nature of what is required in the undergoing of the proposed examination, nor a specific description of the tests proposed. It is within the Court's experience, and as conceded, properly by Mr Wilson of counsel for the Defendant, that there are a range of psychometric tests which can be carried out. There are tests called SIMS for instance. 4. Psychiatrists giving evidence in the Court have varying views as to the utility of psychometric testing when determining the veracity of the history given by the presenting patient or medico-legal litigant. That said, in my opinion, it is obvious, according to the principles of law to which I will come, that the Applicant Defendant would be entitled to an order directing the Respondent Plaintiff to attend medico-legal examination, if that medico-legal examination were justified according to the principles in the case law to which I will come. Amongst the first of them is that the dominant or overriding purpose of the medico-legal examination be directed to the medically refining purpose of assessing veracity of the Plaintiff's complaints. 5. In my opinion, the application being supported only by a lawyer's statement that the most appropriate vehicle for assessing the credibility of the Plaintiff's complaints to Dr Synnott during his medico-legal examinations is the TOMM test, is evidence outside of the specialist legal knowledge of an attorney. Therefore, paragraph [6] of Mr Jacques de Chasteigner du Mee's affidavit is not of assistance and not persuasive in the notice of motion. I repeat, there is no evidence from Dr Batchelor or from any other doctor supporting the utility of psychometric testing of the Plaintiff for the above-stated dominant or overriding purpose or at all. Indeed, it is important that at this point I move to the fact properly conceded by Mr Wilson for the defence that in each of Dr Synnott's four reports annexed to the affidavit in support, Dr Synnott attached an addendum in which he expressly stated that: "A 'diagnosis' is a term used to characterise a person's symptom complex – that is their constellation of signs (detected in the doctor's examination) and symptoms (described by the person). Deciding if someone warrants a psychiatric diagnosis rests on their history and the psychiatrist's assessment (opinion) – not scientific tests". Also, "...there are no biological markers or objective scientific tests to identify psychiatric disorders". And further, "There are no scientific tests to confirm [the psychiatrist's] opinion" of factors that could be influencing a person's presentation, be it psychiatric illness or non-diagnostic factors. 1. Dr Synnott included amongst non-diagnostic factors, which might impact a person's presentation: mindset, motivation, psychological resilience, techniques employed to negotiate life's challenges including adaptive/constructive or maladaptive, and others. 2. Dr Synnott reported as follows: 1. First report, 13 months post-incident, date of assessment 27 May 2019: Very severe disabling physical and mental health symptoms were reported to him by the Plaintiff against the background that, prior to the motor vehicle accident, he was basically a fit and healthy person of no significant medical or surgical problems, with no past psychiatric history, and that the Plaintiff was unsure about his family psychiatric history. COMMENT: It does not appear that Dr Synnott had the benefit of medical literature at the time of his first report and that he did, on that occasion, rely only on the history given to him by the Plaintiff. 1. Second report, date of assessment 8 December 2020: For that report, Dr Synnott was briefed with a substantial file of documentary material. He identified the documents in a list. They are mostly not attributed dates, but those which are dated are documents post-dating the motor vehicle accident on 7 April 2018. The second report confirmed, as was reported by the Plaintiff at the first medico-legal consultation with Dr Synnott, a history of what might be described as fairly intense psychiatric treatment and other medical treatment post-incident. It referenced reports from a GP, a hospital, a neurosurgeon, an exercise physiologist and, significantly, reports by treating psychiatrist, Dr Modem. Dr Synnott responded to the Defendant attorney's third question that the history was consistent with his presentation and examination and that it was also consistent with the documentation, particularly of his psychiatrist, Dr Modem. Dr Synnott noted that the reports of his psychiatrist assigned the diagnoses of Post-Traumatic Stress Disorder and Major Depressive Disorder. Dr Synnott gave the dates of those reports as 10 April 2019, 18 May 2019, 18 September 2019, 8 January 2020, 4 March 2020 and 29 April 2020. COMMENT: The number of those reports from a treating specialist psychiatrist indicates, in the experience of the Court in personal injury proceedings, that there is likely to be a significant ongoing psychiatric state in the opinion of Dr Modem. For the purposes of this application, what is striking is that none of those reports provide an opinion on the Plaintiff's psychiatric state preceding the motor vehicle accident. 1. Third report dated 11 December 2020: Dr Synnott assessed the whole person impairment within his specialist field of psychiatry, that is, putting aside physical impairments, at the very significant measure of 24%. 2. Fourth report dated 23 March 2022: Dr Synnott referred to material then newly briefed to him. Whilst most of the material was identified as of treating specialist practitioners, including a psychologist, a neurosurgeon, Dr Modem again, and, indeed, Associate Professor Michael Fearnside, that literature is dated post-motor vehicle accident. The first category of document in his list, however, is the Plaintiff's Centrelink file. During consultation on 22 March 2022, according to Dr Synnott, the Plaintiff confirmed that leading up to the subject motor vehicle accident he had been working fulltime as a cement renderer for many years and that, prior to the subject motor vehicle accident, he had never experienced psychiatric difficulties or required treatment. His symptoms, reported during that consultation, as recorded in Dr Synnott's report, are not, for the purposes of consideration of this notice of motion, of significant difference to those which had been reported by him at their prior consultations. Again, Dr Synnott confirmed that the symptoms reported met his diagnosis of PTSD. Again, Dr Synnott recorded his opinion that there were reasons to doubt the veracity of the Plaintiff's account and he said that it was impossible for him to have confidence in the credibility of his portrayal regarding the psychiatric symptoms the Plaintiff attributed to the motor vehicle accident. 1. A striking difference in Dr Synott's fourth report to his preceding three reports is that his references to the Centrelink documentation included the recording of significant mental health symptoms preceding the motor vehicle accident. These included depression treated by GP and psychologist consultations. The Plaintiff had been assessed in 2017 to be of a baseline work capacity between 8 to 14 hours per week. However, he had a medical certificate that stated he was unable to work 8 hours or more up until 5 August 2017 and it was recommended that the Plaintiff's work capacity remained between 0 and 7 hours per week up to 5 December 2017. In 2014, the Plaintiff had been taken by ambulance to Westmead Hospital with suicidal ideation and self-inflicted cuts on his forearm. There is reference to him having been diagnosed to suffer Attention Deficit Disorder. A Centrelink entry dated 19 March 2018, only about three weeks before the motor vehicle accident, is summarised by Dr Synnott as referring to the Plaintiff having suffered multiple issues including knee pain awaiting surgery, difficulty walking, and "Needs mental health plan for continued counselling, doing well, denied self-harm thoughts". 2. The extent of impairment and disability claimed by the Plaintiff in his presentation to Dr Synnott (agreed to by Mr Malouf of counsel for the Plaintiff today) includes that he is severely disabled from performance of all work and most life activities because of physical and, significantly, mental health symptoms consequent of the motor vehicle accident. 3. In each of his reports and, I repeat, based on the Plaintiff's presentation to him in consultation, Dr Synnott came to a diagnosis of Post-Traumatic Stress Disorder. It is plain, therefore, that the Plaintiff claims against the Defendant in these proceedings very significant injuries, disabilities and impairments which would sound, should he be successful in a verdict on that basis, in very substantial damages. 4. So it is that in this case the Defendant and the Plaintiff are entitled to properly address the not uncommon issue of extent of injury, impairment, and disability consequent of the motor vehicle accident against a medical history of very significant prior and post treatment. 5. The applicable legal principle was stated by Hodgson JA in Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715 at paragraph [35]: "There was also discussion in submissions of a possible distinction between tests that went directly to the medical condition of a party, and tests that merely went to the reliability of other tests. In my opinion, there is no sound basis for including the former type of tests and excluding the latter so long as the overriding purpose of the test is a medical examination, or bringing about a medical examination, when a person's physical or mental condition is relevant to a matter in question". 1. Plainly in this case, the Plaintiff's physical and mental conditions are relevant to the question of the extent to which, if any, the motor vehicle accident caused his claimed disabilities and impairments. Rowlands case was decided on a factual situation not present here. Facts in that case led to consideration of privilege against self-interest and, ultimately, the Court did not order the medical examination. In this case, the principle in the passage I just quoted from the judgment of Hodgson JA is directly applicable and of assistance. It was applied in Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 (Basten and Meagher JJ) and very recently in State of New South Wales v Hollingsworth [2023] NSWCA 152. Because of the facts, the decision in Boral is of great assistance in particular. 2. In Boral, the question in dispute, in relation to which an order was sought directing the Plaintiff to attend a medical investigation, also concerned pre and post-incident medical state and, more specifically, the extent to which, if any, the incident contributed to the claimed impairment and disability. Mr Gulic had, for many years, consequent of an earlier injury to his lumbar spine, suffered some measure of impairment. In the subject incident, he did not claim injury to his lumbar spine, but impairment of his lumbar spine was plainly relevant to assessment of ongoing impairments and disabilities, and ongoing limitation of work capacity, which he did claim (as are claimed by Mr Najjarin here). At paragraph [5], Basten JA referred to and thereafter applied the very passage from the judgment of Hodgson JA in Rowlands case, which I quoted above. 3. At paragraph [4], he quoted from Tobias JA in Rowlands case at paragraph [61]: "Of course, as [Hodgson JA] observes at [35] ..., such tests must be relevant to the party's physical or mental condition where that is in issue in the proceedings. The rule cannot be used for a collateral purpose such as testing a party's credibility." 1. As explained by Basten JA at [12] in Boral, in applications such as this, the Court must consider whether or not the order for medical examination is sought for the purposes stated by Hodgson JA, quoted above from [35] in Rowlands case, or for such an inappropriate underlying "collateral purpose" as to test a party's credibility. However, as Basten JA stated: "Evidential material may often have more than one use in a trial: so long as the "overriding purpose" in seeking an examination is to assist in determining an aspect of the plaintiff's physical or mental condition, that will satisfy the rule". 1. In Boral, Dr Machart had provided report evidence that a lumbar MRI, that is, the examination the Defendant sought the Plaintiff to undergo, may be useful in assessing the Plaintiff's current lumbar spine condition. The Court made the order that the Plaintiff attend that investigation. 2. The reason Boral is of particular assistance in this application is that it deals with the problem as I see it with the Defendant's application. In the present application, there is no evidence from a specialist medical practitioner or anyone else of appropriate expert opinion that any sort of neuropsychological examination would have the overriding purpose of providing assistance in determining an aspect of the Plaintiff's physical or mental condition in a course of there being a fair process between the parties when dealing with the medical dispute of prior and post-medical state to which I have referred. Indeed, the only medical opinion is of contrary effect. That is, the opinion of Dr Synnott, to which I have referred, that there are no objective or scientific tests which would assist him in his opinion as a psychiatrist. 3. As I have also addressed to the parties, there are a range of different views expressed between psychiatrists, when giving evidence in the Court, as to the utility of psychometric tests of the veracity of the history given by the person being assessed. It is the experience of the Court that psychiatrists such as Dr Canaris are of the view that those tests are not of assistance and that a psychiatrist relies on the medical literature, patient presentation, and history given to form a professional opinion. When giving that opinion, Dr Canaris does not say that the tests are not a valid professional investigation to be performed by those psychiatrists who do find utility in them. Dr Lee, psychiatrist, who regularly gives evidence in these cases, in the Court's experience, is known to apply SIMS testing. 4. Therefore, ultimately in this application, the Defendant has failed to provide evidence to the Court which satisfies the general threshold that the further investigation would have the overriding purpose of assisting in determining an aspect of the Plaintiff's physical or mental condition in the terms of a fair trial on that central dispute. Secondly, the Court, in considering these applications, according to the authorities to which I have just referred, has an obligation to consider the appropriateness of the investigations, including, for instance, in Rowlands case, where an issue of a risk of self-incrimination influenced the result. In other cases, the test may carry a risk of therapeutic harm to the person and in some cases the test would be too much of an invasion or assault on the person's right to privacy. 5. The experience of the Court is that there is testing referred to by psychiatrists as SIMS and other forms of neuropsychological assessment going to veracity of history given and other features of the person being assessed so far as those features may be relevant to a psychiatrist providing the opinion. 6. As I have said, the affidavit in support of the notice of motion by the Defendant's attorney in this case referred to TOMM testing. It is simply not within the specialist opinion of lawyers to identify precisely which are: the appropriate examinations and procedures; what the nature of them is; and, whether or not they would invade those other rights of the Plaintiff I have referred to, should they be conducted. 7. When indicating earlier this view to the parties, I stated, in short form, this conclusion and expressed that I did so for the purpose that the Court expects the parties, according to the requirements of ss 56 to 60 of the Civil Procedure Act 2005 (NSW), to cooperate in the efficient conduct of this litigation on the real issues. It is apparent from that which I have said from Dr Synnott's reporting of pre and post-medical literature that a real issue in this case is consideration of the pre and post-condition, physical and mental, of the Plaintiff in the assessment of the contribution, if any, of the motor vehicle accident to his claimed extent of impairment and disability. 8. For that reason, as I stated to the parties, and the representatives today agreed, it would be disappointing if, following the Defendant having provided to the Plaintiff appropriate specialist opinion satisfying the principles stated in Rowlands and the other case law to which I have just referred, the Plaintiff continued to object to undergoing medico-legal examination if it would assist in a fair trial of the issues in dispute in the proceedings. 9. In the result, the notice of motion is dismissed. ********** Amendments 22 March 2024 - [5] Amended from '[...] the above-stated document or overriding purpose or at all.' to '[...] the above-stated dominant or overriding purpose or at all.' 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: 22 March 2024