Haggerty v HAL Maritime Ltd [2024] NSWSC 889

Supreme Court New South Wales

Medium Neutral Citation: Haggerty v HAL Maritime Ltd [2024] NSWSC 889 Hearing dates: 15 July 2024 Date of orders: 25 July 2024 Decision date: 25 July 2024 Jurisdiction: Common Law Before: Sweeney J Decision: 1. The Notice of Motion is dismissed. 2. The defendant is to pay the plaintiff's costs of the Notice of Motion. Catchwords: CIVIL PROCEDURE — Medical examinations — Where defendant seeks further examination of plaintiff Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Boral Transport Pty Ltd v Gulick [2013] NSWCA 150 Chopra v State of New South Wales (South Western Sydney Local Health District) [2023] NSWCA 142 KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor [2010] NSWSC 891 Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 Rowlands v State of New South Wales [2009] NSWCA 136 Texts Cited: Nil Category: Principal judgment Parties: Paul Haggerty (Plaintiff) HAL Maritime Ltd (Defendant) Representation: Counsel: E Dalrymple (Plaintiff) M Algie (Defendant)

Solicitors: Wyatt's Lawyers (Plaintiff) Gilchrist Connell (Defendant) File Number(s): 2021/00361513 Publication restriction: Nil

JUDGMENT 1. By Notice of Motion filed 14 June 2024, the defendant in these proceedings, HAL Maritime Ltd, seeks orders that the plaintiff, Paul Haggerty, attend a medico-legal assessment with Dr Paul Phillips, and for service of the report of such assessment. 2. The plaintiff opposes such orders being made. 3. The power to order such an assessment is contained in r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"): (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. The power must 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 known as the Children's Hospital Westmead and Anor [2010] NSWSC 891, and in accordance with the provisions of ss 56-58 of the Civil Procedure Act 2005 (NSW). 2. By way of background, the plaintiff is claiming damages from the defendant, his former employer, for an injury he asserts he suffered in the course of his employment. In short, the plaintiff says that in rescuing a drowning passenger, in his role as security officer on a cruise ship, he sustained post-traumatic stress disorder, and that as a consequence he can no longer work in maritime employment. 3. The defendant disputes the plaintiff's asserted injury, condition and consequent heads of damages. 4. The plaintiff was assessed by consultant psychiatrist Dr Graham George, who produced a report dated 5 February 2021. Dr George expressed the opinion that in the subject incident the plaintiff was "traumatised greatly" and "in these circumstances, he has developed typical symptoms of PTSD." Dr George said as a result of the incident, the plaintiff has "chronic conditions which have meant that he has not been able to continue" in his pre-injury employment as head of safety for a shipping line, that he is "not suitable for security work on board a cruise ship due to the severity and chronicity of symptoms", but he "appears to be able to work in simpler duties in the area of security." 5. Following the retirement of Dr George, the plaintiff's solicitors had him assessed by Associate Professor Michael Robertson, consultant psychiatrist. Dr Robertson prepared a report dated 27 February 2024. Dr Robertson's report contained the following: "After the… incident, Mr Haggerty experienced pervasively depressed mood, social withdrawal, self reproach, suicidal ideation with frequent impulses to jump from the bow of a vessel he was travelling on, moderately severely neurovegetative disturbance, disturbed sleep, impaired concentration and short-term memory and demoralisation and hopelessness. Mr Haggerty was bingeing alcohol heavily…". 1. Dr Robertson said "Mr Haggerty also reported significant escalation of his PTSD symptoms in tandem with the emergent major depression. He ultimately resigned from HAL in May 2017". 2. Dr Robertson noted that Mr Haggerty consulted a GP in 2018 and was commenced on specified medications, that he was "referred to a psychologist but was unable to engage in treatment." 3. Dr Robertson referred to Dr George's diagnosis in his report of 5 February 2021, and said: "Mr Haggerty submitted later to an independent medical examination conducted by Dr Samuell on 20 May 2022. Dr Samuell did not take an adequate history of symptoms of depression or PTSD, seeming to focus on Mr Haggerty's alcohol use and Mr Haggerty's alleged "bitterness" about what he considered to be "a lack of appreciation for his efforts". Dr Samuell further states "Mr Haggerty's interaction at interview left me with some concerns about his reliability". 1. Dr Robertson stated that Mr Haggerty reported "some minor improvement in his mental state insofar as he is less depressed with less frequent suicidal ideation", said "Mr Haggerty continues to experience symptoms of chronic PTSD", and noted Mr Haggerty had not sought specialist treatment. 2. Dr Robertson said of his assessment of Mr Haggerty: "His affect was labile. His mood was dysphoric and anxious. He provided a ponderous and at times over-inclusive history and was at times difficult to interrupt but was an otherwise directable interviewee. I did not have any concerns about the validity of his history, which was neither suggestible nor inconsistent." 1. Dr Robertson said: "Mr Haggerty presents with chronic PTSD and a chronic major depressive disorder comorbid with an alcohol use disorder characterised by binge drinking of excessive amounts of spirits… There has… been a partial attenuation of his depressive symptoms, although he continues to suffer from significant psychopathological disturbance." 1. Dr Robertson stated that following the subject incident "Mr Haggerty experienced significant decline in his occupational and interpersonal functioning, and now works in a lesser remunerated, albeit cognate work role." 2. Dr Robertson said: "I do not share Dr Samuell's concerns about the reliability of Mr Haggerty's history. Dr Samuell's report is deficient as it fails to engage substantively with the question of whether Mr Haggerty does or does not have a significant psychological injury. His exclusive focus on your client's alcohol use and apparent embitterment, without reasonable consideration of other diagnostic possibilities despite a history of three life threatening traumatic events, indicates that his opinion is an outlier." 1. Dr Doron Samuell, clinical and forensic psychiatrist, produced a report dated 20 May 2022, after assessing Mr Haggerty. In his report, Dr Samuell referred to the "inconsistent narrative provided at interview". Dr Samuell noted that at the time he assessed Mr Haggerty, Mr Haggerty was working on a full-time basis, without medical restriction, was not under the care of a psychiatrist, psychologist or counsellor, was not taking psychotropic medication, and his "mental state findings were normal". 2. Dr Samuell said: "Mr Haggerty's interaction at interview left me with some concerns about his reliability. It is noted that he has not engaged in much psychological health-seeking behaviour, despite claiming a deterioration in his mental health, a claim that seems to be inconsistent with his ability to work on a full time basis without medical restriction elsewhere. If one is to accept Mr Haggerty's narrative at face value, then the first diagnosis to make is that of an alcohol use disorder…The absence of retrospective information makes it extremely difficult to know how reliable that claim is. It is theoretically consistent, with a traumatic event, that Mr Haggerty engaged in a maladaptive coping mechanism. The events, as described by Mr Haggerty, in relation to him saving the passengers, could have been psychologically traumatic, as per his narrative. He says that he believed his life was in danger. I have no contemporaneous records to support or refute that assertion. He did convey a sense of embitterment that his efforts appeared to be underappreciated." 1. Dr Samuell said: "I am entirely reliant on Mr Haggerty's narrative. As stated above, I have concerns about the assumption that his narrative is reliable. If one is to accept his narrative at face value, then he describes post-traumatic stress disorder as a consequence of the subject incidents. He did not convey any other potential cause of those symptoms. I also diagnosed an alcohol use disorder that could represent a maladaptive coping mechanism for the subject events." 1. Dr Samuell provided a second report dated 16 April 2024, having re-assessed Mr Haggerty. Dr Samuell noted that Mr Haggerty was working on a full-time basis at Canterbury Hospital, performing security work "without any psychological restriction" and driving an Uber vehicle on a casual basis. He noted that at the time of the assessment Mr Haggerty was under the care of his general practitioner alone. 2. Dr Samuell noted that Mr Haggerty said he was taking antidepressant medication "every couple of days". Dr Samuell said "Comment: This is an unusual way to take the [medication]. Medicare records to match the prescription and dispensing patterns may be insightful.". 3. Dr Samuell noted that Mr Haggerty said he had not had any psychological treatment since he was last assessed by Dr Samuell, but said he would speak to Lifeline every few months. Dr Samuell stated "Comment: It may be helpful to obtain phone records in order to establish the pattern of him engaging with Lifeline." 4. Dr Samuell said: "I asked Mr Haggerty about his current psychological symptoms. He said that he was suffering from anxiety, depression, flashbacks, nightmares and ongoing problems with alcohol. He said that he cannot go to sea, lives alone and is fearful of moving forward." 1. Dr Samuell said: "Mr Haggerty says that he continues to have dreams concerning the subject incident on a regular basis. He says that the dreams are unchanged over time, something that is phenomenologically unusual. I expressed concerns about Mr Haggerty's presentation in the first substantive report and maintain those concerns. … The reliability of the narrative, in my opinion, is critical to the overall assessment. The material inconsistency between the self-report, lack of psychological health seeking behaviour and demonstrated capacity for functioning ought to give rise to symptom validity testing. In my opinion, the symptom validity testing would be extremely helpful to the court to establish a scientific basis for the reliability of Mr Haggerty's narrative." 1. Dr Samuell stated: "As stated above, I strongly recommend symptom validity testing performed by an appropriately qualified psychologist. In my opinion, that testing would be helpful for any psychiatric expert involved in this matter to appreciate the reliability of the plaintiff's self-report." 1. Thereafter, relying on Dr Samuell's report, the defendant's solicitors wrote to the plaintiff's solicitors advising they would be seeking orders for the plaintiff to undergo symptom validity testing with Dr Paul Phillips. The plaintiff's solicitors replied, noting they were seeking advice from Professor Robertson with respect to the viability of the testing being sought, and stated they objected to any such order. 2. Dr Robertson provided a report dated 4 July 2024 on the issue of the proposed testing. He relied on his earlier assessment of Mr Haggerty. Dr Robertson noted that at the time of his assessment of Mr Haggerty he determined that: "Mr Haggerty has maintained work in the security field through less remunerated roles including his current work role. This is a function of his inability to work in better remunerated maritime or seafaring employment due to the triggering effect of such stimuli on his chronic PTSD and an exacerbation of his depression and alcohol use." 1. Dr Robertson referred to Dr Samuell's report of 16 April 2024 in which Dr Samuell expressed the opinion that "The absence of psychological health seeking and the demonstrated work capacity are inconsistent with a serious mental health condition." Dr Robertson responded: "This is a non sequitur argument in that it fails to interrogate that he is working in a lesser remunerated role because of psychological distress, and fallaciously assumes that Mr Haggerty not reporting psychological symptoms to his employer is evidence that he does not have a mental illness. Any reasonable forensic psychiatrist would acknowledge that workers in roles such as security or first responder frequently minimise symptoms for reasons other than they have none, such as those motivated by concern for employment security or fear of compromise of career progression." 1. Dr Robertson referred to Dr Samuell's statement that the "material inconsistency between the self-report, lack of psychological health-seeking behaviour and the demonstrated capacity for functioning ought to give rise to symptom validity testing." Dr Robertson responded: "This is more of the same specious argument. In the first instance, Mr Haggerty is working in a lesser remunerated role because of his parlous state of mental health and Dr Samuell does not justify the statement of 'demonstrated capacity for functioning' where there is ample evidence of the opposite argument being demonstrably true. I note that while Mr Haggerty is performing work of comparable remuneration to his pre-injury role, his chronic PTSD precludes him from seeking better remunerated roles within HAL or comparable employer." 1. Dr Robertson said: "The diagnosis of Post Traumatic Stress Disorder had been confirmed by several experienced forensic psychiatrists based on clinical grounds. There is no 'value add' to symptom validity testing. These assessments add little to the clinical picture. … Submitting Mr Haggerty to unnecessary assessments such as symptom validity testing, which are often lengthy and confronting, would adversely affect his psychiatric condition. … I do not believe the court would be assisted by the administration of these tests. The issue of his clinical diagnosis is beyond question given there has been a consensus of experienced psychiatrists that he demonstrates PTSD emerging from the nature and conditions of his employment. Dr Samuell's opinion in this matter is an outlier. … Chronic PTSD is 'a serious mental health condition'." 1. The defendant relied on evidence from Dr Paul Phillips, psychologist, whom it proposes would conduct psychometric testing of the plaintiff. That evidence was contained in part in an affidavit from James Patrick Reid, the defendant's solicitor, who referred to a conversation with Dr Phillips, in which Dr Phillips said: "Symptom validity testing uses psychometric testing and data to assess various mental illnesses… Testing involves standard set of questions to assess symptoms associated with various mental illnesses that forms a scale to diagnose and measure the extent of the mental illness. The testing can only be conducted by a psychologist who is appropriately qualified." 1. There was also evidence in a report by Dr Phillips dated 5 July 2024. In that report, Dr Phillips states that as a registered psychologist he is qualified to conduct psychometric testing. In addition, the parts of Dr Phillips' report which the defendant specifically relied on in support of its application were in paragraph 12 at page 4 of his report, where Dr Phillips said: "12. The process of administration of the types of psychometrics that I administer is that they pose a series of questions to the person and the person selects their answer. The questions being asked in the tests are often not questions per se, rather they are statements that a person indicates either that the statement/question is true for them or false for them… or false, slightly true, mainly true or very true… The person is presented with multiple questions that they answer in this manner." 1. The defendant also relied on paragraphs 21 to 23 of Dr Phillips' report at page 6: "21. While I concede I cannot be fully aware of exactly what Dr Samuell was thinking when asking for such tests, and therefore how exactly they will assist him, I can answer in a general sense. 22. From the information provided to me there is no quantification of any of the alleged symptoms or diagnoses. None appear to have been measured to date. Therefore, there is no such data that Dr Samuell can draw on to inform his opinion as to the quantum of such symptomatology… 23. Further, as noted above, there is already a discrepancy of diagnoses… Having each of these quantified by using the tests would provide Dr Samuell data to make an informed decision regarding his diagnoses."