Supreme Court New South Wales Medium Neutral Citation: Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019 Hearing dates: 14 August 2024 Date of orders: 14 August 2024 Decision date: 14 August 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Dismiss the second defendant's notice of motion filed 11 June 2024. (2) Second defendant is to pay the plaintiff's costs of this motion. Catchwords: CIVIL PROCEDURE – medical examinations – r 23.4 Uniform Civil Procedure Rules 2005 (NSW) – whether the request for a further medical examination is reasonable – real purpose of the request is to ascertain whether malingering – improper and impermissible purpose – motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 Uniform Civil Procedure Rules 2005 (NSW), rr 23.3, 23.4, 23.5 Cases Cited: Boral Transport v Gulic [2013] NSWCA 150 Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142 Graham v Peabody Energy Australia Pty Ltd [2023] NSWSC 1087 Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425 JKZ v Scots College [2018] NSWSC 1526 Plaintiff (name Withheld) v Stapleton [2017] NSWSC 914 Prescott v Bulldog Tools Limited [1981] 3 All ER 869 Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 Category: Procedural rulings Parties: Eden Corke (Plaintiff) Shopping Centres Australasia Property Group Re Limited Trading as Cabarita Beach Shopping Centre (First Defendant) CBRE Pty Ltd (Second Defendant) Knight Frank Australia (Third Defendant) Mainbrace Constructions Pty Ltd (Fourth Defendant) Stowe Australia Pty Ltd (Sixth Defendant) Representation: Counsel: R Lynch (Plaintiff) B Hebbe (Solicitor) (First Defendant) R Perla (Second Defendant) B Wynne (Solicitor) (Third Defendant) L Cassidy (Solicitor) (Sixth Defendant) Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (First Defendant) Wotton & Kearney (Second Defendant) Hall & Wilcox (Third Defendant) McCabes Lawyers (Fourth Defendant) Clyde & Co (Sixth Defendant) File Number(s): 2021/356823 EX TEMPore JUDGMENT (revised) 1. By notice of motion filed 11 June 2024, the second defendant (CBRE Pty Ltd) seeks an order under r 23.4 Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff (Mr Eden Corke) attend a medical appointment with a neuro-psychologist, Dr Fernando Roldan. That appointment was originally arranged by the second defendant to take place in February 2024. The plaintiff has refused to participate in the examination, and opposes the orders sought in the current application. 2. For the purposes of this application, the second defendant relies on the affidavits of Ms Amanda De Souza (solicitor) affirmed 11 June 2024 and 31 July 2024. The plaintiff relies on the affidavit of Ms Breanna Goodlock (solicitor) affirmed 2 July 2024. Background 1. By further amended statement of claim filed 27 November 2023, the plaintiff seeks damages for psychiatric injury arising from personal injury suffered on 20 December 2018 when he received an electric shock by coming into contact with a damaged duct cover that had become live with electric current while at the carpark of the Cabarita Beach Shopping Centre in Bogangar, NSW. It is alleged that as a result of the incident, the plaintiff suffers from, inter alia, Post-Traumatic Stress Disorder ("PTSD") with symptoms of depression, anxiety, social withdrawal, flashbacks, nightmares, difficulty sleeping, loss of appetite, weight loss, low mood and chest pains. 2. The plaintiff's claim is brought against five defendants, being: (i) Shopping Centre Australasia Property Group Re Ltd t/as Cabarita Beach Shopping Centre as the owner/operator/manager/occupier of the premises; (ii) CBRE Pty Ltd as the centre manager; (iii) Knight Frank Australia Pty Ltd as the facilities manager; (iv) Mainbrace Constructions Pty Ltd as the builder; and (v) Stowe Australia Pty Ltd as the electrical contractor for the premises. Each defendant denies liability. Medical evidence 1. Since the commencement of the proceedings, the plaintiff has undergone a total of five medico-legal examinations: 1. on 25 February 2022: Dr Stephen Allunut, psychiatrist; 2. on 28 March 2022: Mr Ross Girdler, psychologist; 3. on 12 May 2022: Dr Graham George, psychiatrist; 4. on 6 June 2022: Professor James Bright, psychologist; and 5. on 13 April 2023: Dr Doron Samuell, psychiatrist. Of these examinations, the first two were arranged by the plaintiff's solicitor while the latter three were arranged by one or other of the defendants. 1. As it transpired, the medical experts relied upon by the first and second defendants – namely Dr George and Dr Samuell, respectively – have expressed some scepticism about the genuineness of the plaintiff's injuries and the severity of any symptoms. The examinations of Mr Girdler and Professor Bright were principally by way of vocational assessment. 2. Dr George in his report of 29 June 2022 (annexure "B" to Ms De Souza's 1st affidavit) said the plaintiff's diagnosis was chronic PTSD associated with a high degree of anxiety and depression. However, he noted that it was difficult to assess the severity of any symptoms due to the paucity of the plaintiff's treatment since the incident. He opined that the plaintiff "is an ideal candidate for a psychometric assessment utilising a multi-test approach to assess the validity of his presentation and alleged psychopathology". Dr George went on to record the view that he did not believe the plaintiff's presentation necessarily related to the incident. He said there was evidence that the plaintiff suffered a Conduct Disorder during late childhood and adolescence, and this casted doubt on the validity of his symptoms. 3. Dr Samuell's report of 17 April 2023 (annexure "C" to Ms De Souza's 1st affidavit) was even more critical of the plaintiff. Dr Samuell recorded that the plaintiff was difficult to interview as he was often unresponsive, vague or preferred to comment on rather than answer the questions put to him. This led Dr Samuell to form an impression of "unauthenticity". In Dr Samuell's opinion, the plaintiff did not appear to be depressed or disordered, and his cognitive functioning seemed normal at a clinical level. He went on to record: "My colleague, Dr George, and I both have significant reservations about the authenticity of [the plaintiff's] narrative. Dr George recommended symptom validity testing, and I thoroughly concur… Given the concerns expressed by both me and Dr George, together with the unequivocal presence of Conduct Disorder, symptom validity testing… would be invaluable for the Court… An alternative explanation for [the plaintiff's] current behaviour is that he does not wish to conform to social norms… Part of the construct of Anti-Social Personality Disorder is a propensity for deceitfulness, again reinforcing the need for symptom validity testing and also corroborative factual information to verify the assertions made by [the plaintiff]. … Furthermore, Dr George states, and I agree, that there appears to be little connection between the subject incident and the symptom constellation. … the clinical presentation is markedly at odds with that incident and, in my opinion, is clinically implausible." It is within this context that the second defendant now seeks an order that the plaintiff attend another examination, this time with Dr Roldan for the purposes of symptom validity testing. As I understand it, and using Dr Samuell's wording, symptom validity testing is an "evidence-based approach to appreciating the validity of an individual's narrative", and because it is based on "validated cohorts", it is capable of "provid[ing] a probabilistic evaluation concerning the likelihood of disclosed symptoms". Principles 1. Rules 23.4 and 23.5 UCPR 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 this examination. 23.5 Medical expert for person concerned The person concerned may have a medical expert of his or her choice attend a medical expert for the purposes of the examination. 1. The Court's power to make orders for a medical examination under r 23.4 has been considered very frequently. It suffices to refer to Plaintiff (name Withheld) v Stapleton [2017] NSWSC 914, where McCallum J (as the Chief Justice then was) (by reference to the English decision of Prescott v Bulldog Tools Limited [1981] 3 All ER 869) summarised the applicable general principles (at [4]): "In determining an application of this sort it was held in Prescott that a court must - (a) assess whether the defendant's request is reasonable in the light of information and advice received from its experts; (b) assess whether the plaintiff's refusal is similarly reasonable; (c) if both are reasonable then balance the plaintiff's right to personal liberty against the defendant's right to defend itself in the litigation the plaintiff has brought against it; one right not being considered to be more important that the other right; and (d) examine objectively the weight of the reasonableness of the defendant's request as seen by it as against the weight of the plaintiff's objection and balance one against the other "to ensure a just determination of the cause as between the parties taking into account their reasonable requirements". 1. The above passage was endorsed in a number of subsequent cases including JKZ v Scots College [2018] NSWSC 1526, Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425; Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142 and Graham v Peabody Energy Australia Pty Ltd [2023] NSWSC 1087. When applying the above principles, it is necessary that I keep in mind the overarching dictates of ss 56 and 58 Civil Procedure Act 2005 (NSW): Chopra at [39]; Graham at [16]. The case for each party 1. I received excellent written submissions and detailed oral submissions from counsel. I do not intend to summarise the whole of them. 2. Mr R Perla of counsel who appears for the second defendant submits that the request for a further medical examination is reasonable given both Dr George and Dr Samuell have recommended the plaintiff undergo symptom validity neuro-psychological testing to provide "objective, validated evidence of [the plaintiff's] presentation and alleged psychopathology". Further, Mr Perla in his written submissions (at [19]) points out that a further investigation by way of administration of other tests of performance validity is warranted in light of the plaintiff's abnormally high scores in the tests performed by Professor Bright. 3. I interpolate, Professor Bright in his report of 17 June 2022 (annexure "D" to Ms Goodlock's affidavit) recorded: "Mr Corke's reporting of his somatic symptomology was highly unusual and it exceeded the cut score with 95 per cent specificity for symptom exaggeration. His score on the structured inventory of malingered symptomology likewise comfortably exceeded the cut score indicating that Mr Corke had endorsed a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders raising the suspicion of malingering… Ultimately clinical opinion is required in relation to Mr Corke's reporting of his symptomology which is highly abnormal and points to a risk of accepting his account at face value." The defendants, of course, have received the benefit of the clinical opinions of Dr George and Dr Samuell. 1. On the other hand, Mr R Lynch of counsel who appears for the plaintiff submits that the plaintiff's refusal to attend another medico-legal examination is reasonable in circumstances where: (i) the plaintiff has already been subjected to five examinations, three of which were arranged by the defendants; and (ii) there is a real likelihood of ongoing re-traumatisation if he is subjected to yet another examination during which he has to relive the accident and recount its consequences extending over a period of 4-5 hours after a half a day's travel to Sydney from his residence in Crystal Creek. Mr Lynch further submits that the plaintiff has already undergone symptom validity tests with Professor Bright, namely, the Test of Memory Malingering (TOMM) and Structured Inventory Malingering Symptomatology (SIMS). Counsel emphasises that the real purpose of the second defendant's request is to ascertain whether the plaintiff is malingering. That is to say, to test his credit. Consideration 1. I am not persuaded that the evidence establishes either that it is unreasonable for the plaintiff to attend Sydney for a further examination, or that there is a real risk of re-traumatisation. While I appreciate the inconvenience of travelling from Crystal Creek – which I understand to be some 800km away from Sydney – it is the plaintiff's case to prosecute which necessarily imposes some inconvenience. Moreover, the second defendant has undertaken to pay the cost in advance of the plaintiff's air travel, accommodation and sustenance in compliance with r 23.3 UCPR. Further, absent any direct or corroborative evidence relating to the plaintiff's ongoing risk of re-traumatisation or the likelihood of exacerbation supported by psychiatric opinion, I do not accept that his refusal is reasonable on either ground. I should point out there is no evidence suggesting a risk of re-traumatisation other than his own self-report as recorded in Ms Goodlock's affidavit at [25]-[27]. In the case of Graham (referred to at [12] above), there was persuasive evidence from the plaintiff's treating psychiatrist about the real risk of re-traumatisation. There was also evidence from that same expert and one of the defendant's psychiatrists qualified to give evidence questioning the need for validity testing. Evidence like this is absent here. Mr Lynch drew my attention to certain matters recorded by Dr Samuell including that the plaintiff said speaking about the matter was a "touchy subject", "he didn't feel comfortable talking about the matter", and suffered trembling and gasping for air. Dr Samuell detected a mild essential tremor but no gasping. His statements about being "touchy" and "uncomfortable" again fall into the category of self report. There is no expert evidence of re-traumatisation. 2. However, I accept the plaintiff's submission that the real, or "overriding", purpose of the second defendant's application is to determine whether the plaintiff might be malingering, that is to say whether he should be believed as to his history and symptoms. This is not a proper purpose for a medical examination under r 23.4 and is impermissible. 3. In Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136, Hodgson JA (with Allsop P agreeing, and Tobias JA agreeing on this point (at [61])) said (at [35] and [49]): "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. In my opinion, the ordering of particular medical examinations must be for the purpose of obtaining evidence about a plaintiff's medical condition and cannot be justified by the purpose of obtaining evidence that might go to the plaintiff's veracity generally." 1. In Chopra, Mitchelmore JA (with Kirk JA and Simpson AJA agreeing) said at [40]: "In determining the interlocutory application, the Court is not undertaking a type of trial in advance, and determining the application is not the occasion to attempt to reach a firm conclusion on the medical issues between the parties." Her Honour also referred to the passages set out from Rowlands as an additional reason for refusing an order for neuro-psychometric testing (at [46]). 1. When applying the overriding purpose test it is well to bear in mind the judgment of Basten JA in Boral Transport v Gulic [2013] NSWCA 150 (at [12]): "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. Accepting the reasoning of Tobias JA in Rowlands, it is the application for an order which cannot be for a collateral purpose, such as to obtain material to allow the "testing of a party's credibility". The primary judge did not find that testing credibility was the overriding purpose of the application; the possible consequential use did not disqualify Boral's application in reliance upon the rule." 1. The purpose of the second defendant's application, in my judgment, is captured in Ms De Souza's email to Ms Goodlock of 19 February 2024, the former of whom I infer acting on the recommendations of Dr George and Dr Samuell (see [7]-[8] above), stated "the Defendants have engaged Dr Roldan to undertake a symptom validity testing… which can only be performed by a clinical psychologist". No other purpose is identified. 2. Other factors support this conclusion. First, having examined the plaintiff and reviewed the available clinical material, Dr George and Dr Samuell have both expressed scepticism on the genuineness of the plaintiff's presentation, his account of his condition and the authenticity of his symptoms. Dr Samuell has expressed himself more forcibly than Dr George. Secondly, the proposed medical examination by Dr Roldan – contrary to Ms De Souza's characterisation – does not go beyond simply carrying out a symptom validity testing. In his letter to Ms De Souza of 30 July 2024 (annexure "B" to Ms De Souza's 2nd affidavit) , Dr Roldan acknowledged that symptom validity testing must be accompanied by the "administration of other tests relevant to the examinee's alleged complaints" (at [3.2.1]); and that it would be clinically inappropriate to undertake a consultation solely for the purpose of carrying out the symptom validity testing (at [3.2.2]). However, on balance that is the second defendant's purpose in commissioning the testing. Dr Roldan opined that Professor Bright's observations as to the plaintiff's abnormally high scores (see [14] above) on the tests he administered are ultimately a matter to be assessed by the relevant medical specialists (at [2.4]). Yet, it seems that neither Dr George nor Dr Samuell has been asked to comment on Professor Bright's results. 3. Thirdly, there are a few objective signs available to confirm a diagnosis of PTSD. So much depends on the patient's account. It is for this reason that Dr George and Dr Samuell recommended the plaintiff be subjected to symptom validity testing. That is to say, the experts wanted to obtain statistically based outcomes to call into question – on a quasi-objective basis – the reliability of the plaintiff's account. In this regard, I am of the view that the second defendant's application is tantamount to an attempt to reach a firm conclusion on the medical issues the subject of substantive proceedings in advance of the trial, which is precisely the type of impermissible application referred to in Chopra. 4. Fourthly, it goes without saying that in a matter where psychiatric injury is the only injury alleged, such as in the case at hand, the outcome of the quantum issues will depend almost wholly upon whether the plaintiff's account of his history, his symptoms and their impact upon the activities of his daily life can be accepted on the balance of probabilities. All these things ultimately depend upon the plaintiff's credit as a witness. The plaintiff's credibility falls to be determined by the tribunal of fact after the hearing, and not by experts in advance of it. This engages the principle expressed in Rowlands (at [49]). In my judgment this is not a merely collateral purpose in the way explained by Basten JA in Gulic (at [12]) on this occasion but the overriding purpose of the proposed further examination by Dr Roldan. 5. I reiterate that evidence before me does not establish that it was unreasonable to require the plaintiff to submit to another examination with a differently but relevantly qualified expert per se; nor do I consider it unreasonable to request the plaintiff travel to Sydney, bearing in mind the limitations associated with consultations via telephone or AVL. At a certain stage in these proceedings and noting that the plaintiff's most recent medical examination was in April 2023, he will be required to attend refresher examinations to ascertain his condition at the time of hearing. The plaintiff's self-reported re-traumatisation, absent any objective evidence, will be insufficient to resist any such request by the defendants. 6. However, given the impermissible purpose of the second defendant's request, I do not consider it appropriate that the plaintiff be compelled to attend the examination with Dr Roldan. In coming to this conclusion, I have borne in mind the requirements of ss 56 and 58 Civil Procedure Act and the respective obligations of the parties. Orders 1. In these circumstances, I make the following orders: 1. Dismiss the second defendant's notice of motion filed 11 June 2024. 2. Second defendant is to pay the plaintiff's costs of this 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: 14 August 2024