Supreme Court New South Wales Medium Neutral Citation: Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 Hearing dates: 19 June 2017 Decision date: 19 June 2017 Jurisdiction: Common Law Before: McCallum J Decision: Requirement on the plaintiff to attend a medical examination in accordance with the first defendant's notice pursuant to r 23.2 of the UCPR served on 18 April 2017 dispensed with Catchwords: EXPERT EVIDENCE – claim for damages for psychiatric injury due to alleged sexual assault – request on behalf of first defendant that plaintiff submit to examination by a psychiatrist – where plaintiff has already submitted to examination by a different psychiatrist at the request of the second defendant –risk that plaintiff would be traumatised by further examination – need to balance interests of both parties Legislation Cited: Civil Procedure Act 2005 (NSW), s 56(3) Uniform Civil Procedure Rules 2005 (NSW), rr 23.2, 31.20(2)(e) Cases Cited: Angliss v Urquhart [2001] NSWCA 441 Crofts v The State of Queensland [2001] QSC 220 Prescott v Bulldog Tools Limited [1981] 3 All ER 869 Category: Procedural and other rulings Parties: [name withheld] (plaintiff) Kim Stapleton (first defendant) Trustees of the Christian Brothers (second defendant) Commonwealth of Australia (third defendant) Representation: Counsel: B Gross QC, S Dixon (plaintiff) M Daly (first defendant) N Ward (second defendant) A Burke (third defendant) Solicitors: Koffels Solicitors and Barristers (plaintiff) Diamond Conway (first defendant) Makinson d'Apice Lawyers (second defendant) Henry Davis York (third defendant) File Number(s): 2016/54398 Publication restriction: Publication of the name of the plaintiff has been withheld in this judgment pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) Judgment 1. HER HONOUR: This is an action for damages for personal injury due to sexual assaults allegedly committed against the plaintiff by the first defendant when the plaintiff was a student at a Catholic high school and the first defendant was a cadet officer. The first defendant denies the allegations. 2. The proceedings are before the Court today for the hearing of a motion filed by the plaintiff concerning a requirement for him to attend an examination by a psychiatrist nominated by the first defendant. The first defendant served a notice pursuant to r 23.2 of the Uniform Civil Procedure Rules 2005 (NSW) on 18 April 2017 requesting the plaintiff's attendance for examination on a date that has now passed. The plaintiff seeks to be excused from the requirement that flows from the service of that notice. 3. The proceedings involve two other defendants. The second defendant is the entity I assume is correctly sued in respect of any liability on the part of the high school. The third is the Commonwealth of Australia against which it is alleged the first defendant ought never to have been approved to act in the role of an army cadet officer. Neither of those parties has taken any active role in the present application. 4. The principles governing the application were, for the most part, not in dispute. Mr Daly, who appears for the first defendant, drew my attention to the decision of the Court of Appeal in Angliss v Urquhart [2001] NSWCA 441. That was a case in which an order had been made by a judge of the Equity Division compelling a 91-year-old man, on the application of his grandchildren, to attend an appointment for examination in respect of his legal and testamentary capacity. An appeal was brought against that order. The main judgment in the Court of Appeal was given by Sheller JA, with whom Beazley and Stein JJA agreed. His Honour set out the relevant passages from the judgment at first instance, including an extract from the decision of the Queensland Supreme Court in Crofts v The State of Queensland [2001] QSC 220 (in turn extracted from the English decision of Prescott v Bulldog Tools Limited [1981] 3 All ER 869) summarising the relevant principles in the following terms (at [25]): 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 than the other right; (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. Angliss, however, was not a claim for damages for personal injury. In respect of the passage from Crofts set out above, the Court of Appeal said at [16]: Barrett J set out a passage from Crofts v The State of Queensland which summarised what was said in Prescott v Bulldog Tools Limited. This speaks of a balancing exercise to ensure a just determination of the cause as between the parties taking into account their reasonable requirements. But it should be noted that those were cases concerned with a defendant's right to defend itself in litigation the plaintiff had brought to recover damages for personal injury and where the plaintiff refused to submit to a medical examination. The circumstances of this case are entirely different. 1. On the strength of those remarks, Mr Daly, as I understood the submission, contended that the proper approach in a case where a party does face a claim for damages for personal injury is that an order requiring the plaintiff to submit to medical examination will ordinarily be made. If that was the submission, I would respectfully disagree on the basis that it overstates the principle in favour of the requesting party. Rather, the proper approach is as stated in the summary from Crofts set out above, namely, the Court must assess the reasonableness of each party's position with a view to undertaking a balancing exercise weighing one against the other to ensure a just determination of the cause as between the parties. 2. Of course, as submitted by Mr Gross QC, who appears with Mr Dixon for the plaintiff, a relevant factor in that balancing exercise is to have regard to the nature of the claim. Particularly, to have regard to the Court's reference in Crofts to the need to consider the plaintiff's "right to personal liberty". To compel a person to subject himself or herself to medical examination is necessarily an intrusion on personal liberty. While in many personal injury cases such intrusion will readily be seen as being necessary in the interests of fairness, regard must be had to the kind of issues raised by the claim and the kind of examination requested. 3. Conversely, however, I accept, as submitted by Mr Daly, that ultimately the Court must do its best to ensure that each party has a fair trial. An important consideration in the present case is that the first defendant faces cross-claims at the suit of each of the other defendants so that, as Mr Daly put it, ultimately everyone is gunning for him. 4. Against those principles, it is appropriate to turn to consider the reasonableness of each party's position. 5. The circumstances in which the request to attend the examination was made must be considered against the history of the litigation. The relevant chronology is as follows. The plaintiff was first seen by a psychiatrist of his own choosing twice prior to the commencement of the proceedings in June and July of 2015. 6. The proceedings were commenced by statement of claim filed 29 February 2016. For reasons not explicitly addressed in the evidence, it was not served on the first defendant until 26 May 2016. The only explanation for that delay is a statement made from the bar table in response to a question by me, that there was some difficulty in locating him. There was, however, no suggestion that he was avoiding service during that period. 7. On 6 June 2016 the first defendant filed a notice of appearance and on 7 June 2016 he appeared (represented by a solicitor) at a directions hearing. It is plain from the directions made on that occasion that he was, in effect, having to catch up with the other defendant in his participation in the proceedings at that stage. The second defendant was directed to file its expert evidence by 30 October 2016 whereas the first defendant was directed to file a defence by within 28 days of receipt of the plaintiff's particulars. In hindsight, it might have been preferable to synchronise the procedural steps at that stage. 8. On 2 August 2016 the plaintiff was examined by Dr Yvonne Skinner, psychiatrist, at the request of the second defendant. The first defendant did not file his defence until 30 August 2016. By that defence, as already indicated, he denies the allegations of assault made against him in the proceedings. 9. The prospect of having the plaintiff examined by a second psychiatrist in the interests of the defendants appears first to have been raised earlier this year. When it was first raised in open court it was indicated on behalf of the plaintiff that he did not wish to be examined by another psychiatrist. It was in those circumstances that, on 18 April 2017, the notice was served by the first defendant under r 23.2 formally requesting the plaintiff to attend the examination. The registrar took the view that the appropriate way to deal with the issue was to require the plaintiff to file a notice of motion seeking an order in the following terms, "that the plaintiff is not required to attend the medical examination with Dr Julian Parmegiani on 8 June 2017 as proposed by the first defendant". I will return to the appropriateness of granting relief in that form. 10. While it is true, as contended on behalf of the plaintiff, that the first defendant did not take steps to join with the second defendant in having the plaintiff examined by a single expert retained to represent the defendants' joint interests, the history I have recited provides some explanation as to why that did not occur. The plaintiff had already been examined by Dr Skinner at the request of the second defendant before the first defendant's defence was filed. There is no suggestion that the defence was filed late. The direction was that it be filed within a specified period after receipt of certain particulars. 11. In my view, the request that the plaintiff attend an examination by a psychiatrist chosen by the first defendant was reasonable in the circumstances, although it is unfortunate that events did not unfold differently so as to enable the plaintiff to be examined by a single expert responding to instructions from both defendants. 12. I turn to consider the position of the plaintiff. The circumstances in which he expresses his desire not to be examined again are addressed in an affidavit sworn by him and also in reports by his psychiatrist, Dr Phillips. The plaintiff says that when he was examined by Dr Skinner on behalf of the second defendant he "found the interview process and reliving of the sexual assaults very stressful and difficult". He says he felt "intensely powerless and vulnerable". He was in tears during the examination and afterwards. He says he "could not sleep for long periods, [became] reclusive and lacked motivation to function properly on a daily basis". 13. In response to the prospect that he must submit himself for examination for a second time by a defendant psychiatrist, this time in response to a request from the man he accuses of having committed the sexual assaults, he says: I do not feel I could cope with another interview and do not want to go through another interview process given my depressive condition, as I feel it will harm me and cause further deterioration and adversely affect my mental health. 1. The plaintiff was not cross-examined on that affidavit. It should be noted, in fairness to the first defendant, that one might think the decision not to request him for cross-examination was out of care for the nature of the issue raised and should not necessarily be regarded as indicating an unqualified acceptance of what he says. In any event, the evidence is there and seems to me to be such as might be accepted, making due allowance for the difficulty of not knowing whether the allegations are true, since they are denied. 2. Separately, two affidavits sworn by the solicitor for the plaintiff annex a series of medical reports, including reports in which Dr Phillips sets out his view as to the reasonableness of subjecting the plaintiff to a further examination by another defendant psychiatrist. Dr Phillips states that the reasons for the plaintiff's difficulty in coping with an interview situation are "obvious". He says the plaintiff suffers from a persistent depressive disorder which Dr Phillips believes has been caused principally by the high level of psychological trauma associated with the plaintiff's sexual abuse at the school, and also with an incident of abuse beyond the campus. Dr Phillips accepts that the plaintiff has been psychologically vulnerable since a time prior to his alleged sexual abuse but remains of the view that the plaintiff is "highly vulnerable" in dealing with persons in a position of power or responsibility. Dr Phillips considered the plaintiff's adverse reaction to the interview carried out by Dr Skinner to be unusual, noting in a separate report that she is a person who is careful and empathetic in the manner in which she conducts her interviews. Nonetheless, he adheres to the view that for the plaintiff to have to face a further psychiatric interview will cause him further psychological damage. 3. The psychiatrist it is proposed would examine the plaintiff has provided a report directed specifically to this issue. He states: "In my experience, people who have been sexually abused are distressed by psychiatric assessments. The stress is temporary, and the emotional effects dissipate in a few days. I have interviewed numerous people over the last 25 years, and no-one has self-harmed or required admission to a psychiatric hospital as a result of the interview." 1. Mr Gross posed the obvious question as to how the psychiatrist would be in a position to know that to be the fact. In any event, it may readily be accepted and indeed should go without saying that self-harm or a requirement for admission to a psychiatric hospital is not the bar short of which a person should necessarily be required to attend an examination. 2. The evidence persuades me that the plaintiff's position in expressing his desire not to attend an interview is reasonable. It should be noted that the plaintiff has not affirmatively stated that he would refuse to participate in a further examination if ordered to do so by the Court. I apprehend it was to avoid that being the mechanism for determination of the present issue that the registrar took the view he did. In any event, for the reasons I have stated, I consider the position of both parties to be reasonable. Accordingly, it remains to determine the balancing exercise commended by the decision in Crofts. 3. In balancing the parties' competing positions, I have regard to a significant factor for the first defendant which is his liability to the cross-claims. I accept that that is a significant consideration or certainly may be perceived as such, since it gives the first defendant perhaps the strongest tactical motivation to defend both liability and damages aspects of the claim. 4. I also have regard to the matters addressed in Mr Daly's carefully written submissions. Mr Daly identified matters considered to be of importance in defence of the claim including five matters set out in his submissions at para 23. 5. The first is "a question of mitigation". Specifically, it was submitted that an issue in the proceedings will be: "Whether, assuming any condition relates to abuse, the plaintiff ought to have taken steps to mitigate his loss, when such steps ought to have emolliated his condition, when such steps ought to have been taken, and the likely benefits of such treatment." 1. As I indicated to Mr Daly during argument, I would think that the question whether it is reasonable or even possible for a victim of sexual assault to take such steps is more a question of fact (combined perhaps with a question of legal principle) than a question for expert evidence. I accept, as submitted by Mr Daly, that an expert might appropriately contribute to the determination of that issue by, at the very least, expressing an opinion as to whether earlier treatment might have improved a person's position. But it remains an issue which, to a degree, is speculative. I do not discount it as a matter the first defendant is entitled to explore but I do not think it is a strong consideration. 2. Secondly, Mr Daly relied upon the fact that, as evidently acknowledged in expert reports served already, the plaintiff had a pre-existing vulnerability to psychiatric illness. As the submission itself acknowledges, however, that issue is amply addressed in the existing reports. 3. Thirdly, Mr Daly pointed to: "Questions arising from the plaintiff's emotional maturity at age 15 to participate in the acts complained of and whether, given that emotional maturity, any adverse psychological impact was likely". 1. It may be observed that there is a degree of tension between that issue sought to be explored by the first defendant and the second issue identified above (pre-existing vulnerability to psychiatric illness). The proposition that the plaintiff was, at once, a person with that kind of vulnerability but nonetheless emotionally mature enough to decide to engage in sexual activity with an older man (who in any event denies any such activity) without suffering any harm is, to say the least, a complex proposition. More importantly, while I do not discount it altogether, the prospect that a third psychiatrist might explore that issue some 27 years after the event in such a way as to produce any helpful additional material is one I do not think calls for a heavy weighting in the current exercise. 2. The remaining issues identified are "the extent of any disability referable to any found abuse" and "causation of the plaintiff's condition generally". Each of those issues is, in my view, amply and fully addressed in the existing reports. 3. Whilst it may be accepted that the application raises complex issues and a difficult balancing exercise, on balance I am persuaded that the just determination of the cause in these proceedings should not require the plaintiff to attend a further examination by a psychiatrist. In reaching that conclusion, I have regard to the comprehensive manner in which the existing psychiatrists have addressed the issues raised for their attention. 4. There remains the issue of the form of order that should be made. The form of order sought in the notice of motion is set out above. 5. In oral submissions Mr Gross suggested, alternatively, that the Court might address the issue under r 31.20(2)(e) of the Uniform Civil Procedure Rules 2005 (NSW) by making an order limiting the number of experts on a specific issue. I am not persuaded that the first defendant should be precluded from calling Dr Parmegiani altogether or, in particular, that he should be precluded from serving a report from Dr Parmegiani prepared by reference to the papers. The only conclusion I have reached based on the evidence before me today is that the plaintiff should not be required to submit to an examination by Dr Parmegiani. 6. The expectation that he should do so arises from the notice served on him pursuant to r 23.2 of the UCPR. While that notice does not have the status of an order or direction of the court, compliance with it would be expected in accordance with the plaintiff's duty under s 56(3) of the Civil Procedure Act 2005 (NSW) "to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court". As already noted, the plaintiff has not positively refused to attend an examination. Rather, the issue has deliberately been brought forward before the point was reached where it was necessary for him to make any such election. In the circumstances, although it is perhaps an unusual form of order, in my view the appropriate order is that the requirement on the plaintiff to attend the examination in accordance with the notice pursuant to r 23.2 served on 18 April 2017 be dispensed with. ********** Amendments 06 September 2017 - Typographical error at [4] 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: 06 September 2017