JKZ v The Scots College [2018] NSWSC 1526

Supreme Court New South Wales

Medium Neutral Citation: JKZ v The Scots College [2018] NSWSC 1526 Hearing dates: 05 October 2018; 08 October 2018 (written submissions) Date of orders: 09 October 2018 Decision date: 09 October 2018 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to r 23.4(1) of the Uniform Civil Procedure Rules 2005 ("UCPR"), order the plaintiff submit to a medical examination by way of a contemporaneous neuropsychological assessment and a personality assessment, by Dr Wendy Roberts on 15 and 16 October 2018 at 8:30am at First Floor, 40 Yeo Street, Neutral Bay, NSW 2089 for. (2) Pursuant to r 23.4(2) of the UCPR, order that the plaintiff do all things reasonably requested, and answer all questions reasonably asked, by Dr Roberts for the purposes of the examination. (3) Orders 1 and 2 are subject to the following restriction, namely that Dr Roberts is precluded from orally taking any history or asking any questions of the plaintiff about or relating to the following: (a) the sexual assaults and/or abuse the subject of these proceedings; (b) the circumstances surrounding the sexual assaults and/or abuse the subject of the proceedings; (c) the manner in which the complaints of sexual assaults and/or abuse were handled by the School; and (d) the veracity and/or accuracy of the plaintiff's account of the abuse and/or sexual assaults, and his account of the way in which the school dealt with any complaints about those matters. (4) The Court notes that Order 3 does not preclude Dr Roberts from reasonably taking a history as to the plaintiff's psychiatric or psychological condition, after the plaintiff completed his school education with the defendant. (5) The Court notes that Dr Roberts agrees that the plaintiff is entitled to bring to the examination a non-participatory support person of his election, which person may be with the plaintiff should he choose but the said support person will not communicate with the plaintiff whether directly or indirectly in respect of any tests or questions asked during the testing phase. (6) Orders that the costs of this application be costs in the cause. (7) Stand over the Motion over to 9.30am on 12.12.2018 before Garling J. (8) Liberty to apply on 2 days' notice. Catchwords: CIVIL PROCEDURE – claim for damages for psychiatric injury due to alleged sexual assault – application seeking that plaintiff be required to submit to neuropsychological assessment by a psychiatrist – UCPR r 23.4 – where plaintiff has already submitted to psychiatric examination at the request of the second defendant – evidence of pre-existing psychiatric conditions before alleged abuse – risk of re-traumatisation – order made – limitation on examination imposed to minimise risk of re-traumatisation Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: JKZ (P/Respondent) The Scots College (D1/Applicant) Ewen James William Addison (D2) Representation: Counsel: D A Priestley SC (P/Respondent) C P O'Neill (D1/Applicant)