District Court New South Wales Medium Neutral Citation: Al Ammash v Australian Wide Transport and Logistics Pty Ltd [2018] NSWDC 505 Hearing dates: 22 March 2018 Date of orders: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Grant leave for the defendant's amended notice of motion to be filed in court. Note that the underlining is inaccurate. (2) Order that the defendant's amended notice of motion filed today be dismissed with costs. (3) Note the parties have made arrangements for a conclave of experts. (4) Direct that the expert neuropsychologists meet by 15 April 2018 and provide a joint report clearly and succinctly identifying the areas on which they agree and disagree by 30 April 18. Catchwords: CIVIL PROCEDURE — medical examinations – order for examination – disclosure of expert's report Legislation Cited: Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 23.4, r 31.28 Cases Cited: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 Hamilton v State of New South Wales [2013] NSWSC 1437 Plowman v Sisters of St John of God Inc. [2014] NSWSC 333 Rowlands v State of New South Wales [2009] NSWCA 136 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Procedural and other rulings Parties: Issa Abu Al Ammash (plaintiff) Australian Wide Transport and Logistics Pty Ltd (defendant) Representation: Counsel: Mr M Daley (plaintiff) Ms O J Dinkha (defendant) Solicitors: TD Kelly & Co (plaintiff) Curwoods Lawyers (defendant) File Number(s): 2015/139662 Publication restriction: None Judgment 1. The defendant seeks an order that the plaintiff attend a medical examination. 2. Mr Issa Abu Al Ammash has sued Australia Wide Transport and Logistics Pty Ltd for damages for personal injuries resulting from a fall at the premises of Australia Wide during his employment with a third party. The trial is fixed for hearing in about six weeks, on 7 May 2018. 3. The primary issue in the proceedings is the extent of any psychological injury to Mr Al Ammash as a result of that fall. He has been assessed by Dr Jennifer Batchelor, an expert neuro-psychologist retained by Mr Al Ammash, as well as by Professor Richard Mattick, neuro‑psychologist, retained by Australia Wide. Professor Mattick's report dated 11 May 2016 records that he: "attempted to administer the Minnesota Multiphasic Personality Inventory-Second Edition-Restructured Format [sic] (MMPI-II-RF), reading the items to him, but was forced to cease after 50 items as he had difficulty understanding some statements and I was unable to explain them in a way that I was confident that he understood. He also complained after the 50 questions that this questionnaire was 'too much'. I think it would be helpful to have the MMPI-II-RF administered to him through an interpreter." [1] 1. In July 2017, Australia Wide made arrangements for another examination of the plaintiff by Professor Mattick. The plaintiff opposed the further examination and on 15 November 2017, Australia Wide filed a notice of motion seeking an order that Mr Al Ammash submit to a medical examination with Professor Mattick in the presence of an interpreter. Apparently realising that such an order would be of no utility if the subsequent report could not be relied upon, Australia Wide filed with leave an amended notice of motion seeking, in addition, an order that Australia Wide be granted leave to serve a supplementary medical report from Professor Mattick by 24 April 2018. The application does not in terms seek to place any restriction on the ambit of Professor Mattick's examination. 2. The evidence to support the further examination is found only in Professor Mattick's report and it is limited in its terms. He says: "14.14. I think Mr Al-Ammash should be seen again and that the Minnesota Multiphasic Personality Inventory–Second Edition-Restructured Form (MMPI-II-RF) should be administered through an interpreter to check for exaggeration of a range of cognitive, somatic (or physical), and of psychological problems." 1. And further: "14.20. Because I do not trust his presentation, I think that he should be re-assessed using the Minnesota Multiphasic Personality Inventory-Second Edition-Restructured Form (MMPI-II-RF) to determine exaggeration of physical symptoms, cognitive complaints and psychological distress, given that that instrument has symptom validity measures embedded in it." 1. And further again: "14.23…He should be assessed using the Minnesota Multiphasic Personality Inventory-Second Edition-Restructured Form (MMPI-II-RF) through a qualified interpreter to assess further for exaggeration of cognitive symptoms, pain and somatic problems, as well as exaggeration of emotional disturbance." 1. These recommendations must be read against the context of Professor Mattick's letter of the day following his report, 12 May 2016, which he said "Should be read in conjunction with my report". It said: "2.1. I do not provide any assessment of impairment using the clinical dementia rating scale because Mr Al-Ammash is feigning cognitive dysfunction, and his results on cognitive testing cannot be taken as a basis for assessment. He is feigning cognitive dysfunction." 1. Taken together, these passages indicate that while Professor Mattick recommends the completion of the MMPI test, it is specifically and solely for the purpose of assessing exaggeration. And this assessment for exaggeration is to be undertaken in circumstances where Professor Mattick has felt able already on the tests he has undertaken to repeatedly state that Mr Al Ammash is "feigning cognitive dysfunction". 2. The circumstances for an order requiring Mr Al Ammash to submit to examination under r 23.4 of the Uniform Civil Procedure Rules 2005, the provision relied upon by Australia Wide, are discussed in Ritchie's Uniform Civil Procedure NSW at [23.4.5]. It states: "The primary limitation on the exercise of the power is that the person's physical or mental condition is relevant to a matter in question. As a matter of principle, therefore, the power cannot be exercised for the purpose of testing a party's general credibility…But examination of a physical or mental condition may be authorised even if its results may have adverse implications for the person's credibility and reliability". 1. The two cases referred to in that passage were provided to me and were the subject of submissions. In Rowlands v State of New South Wales [2009] NSWCA 136 at [35], his Honour Hodgson J, with whom Allsop P agreed, [2] stated: "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. In that case, there were submissions about the orders being for "the collateral purpose of attacking the applicant's credit". [3] Hodgson J said: "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." [4] And his Honour found that in that case "the evidence does justify a finding that the tests in question are at least highly desirable". [5] 1. Tobias JA also agreed with Hodgson JA's orders and reasons [6] and said, speaking of r 23.4, "The rule cannot be used for a collateral purpose such as testing a party's credibility". [7] 2. In the other case referred to in Ritchie's, Boral Transport Pty Ltd v Gulic [2013] NSWCA 150, the passages in Rowlands were referred to by his Honour Basten JA, who also stated at [12]: "'collateral purpose' was not in fact a purpose underlying the application, but a consequential use to which the material might be put in the course of the trial. 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'". 1. I was also referred to the decision of Garling J in Plowman v Sisters of St John of God Inc. [2014] NSWSC 333, where his Honour referred to a decision of Bellew J in Hamilton v State of New South Wales [2013] NSWSC 1437. There Bellew J said, "[T]here must be sufficient evidence that the proposed testing has the capacity to throw light on the issues in the proceedings". [8] 2. In Plowman, Garling J accepted that the proposed testing: "has the capacity to identify an underlying genetic alteration which has caused or contributed to Ms Plowman's intellectual deficit; … [and] (c) there…is reasonable basis to investigate whether the conduct of the defendant…is a necessary condition for the occurrence of the plaintiff's intellectual disability." [9] 1. Thus, the question to be decided is whether there is sufficient evidence that the proposed testing has the capacity to throw light on the psychological disability of the plaintiff, or alternatively, is solely for the collateral purpose of testing a party's general credibility. The answer to this question must, to some extent, lie in the nature of the MMPI test. The content of that test and its purpose generally are not the subject of any evidence before me. The only evidence about what it might show is that given by Professor Mattick, and he repeatedly says it is to assess the plaintiff's "exaggeration". 2. Australia Wide submits that the MMPI test is not testing merely for credibility, honesty, feigning and exaggeration, but for cognitive impairment. It might, but I do not have any evidence of it. I am not aware of the general utility of the MMPI test, and it is not so commonly known, in my view, that I can take judicial notice of it. Nor does the evidence or submissions explain the absence of evidence about the utility and purpose or purposes of the MMPI test to assess cognitive impairment. 3. Nothing relevantly meaningful can be inferred from the subheading, "Psychometric Assessment", preceding the reference to the MMPI test. 4. Mr Al Ammash submitted that I should not require him to submit to a lie detector test. That submission might be something of a rhetorical flourish by his counsel, but I do not know, and have no evidence to determine, the extent to which the MMPI is different from a lie detector test. All I know of it is what is said by Professor Mattick, that it is to assist him to "assess…exaggeration". In these circumstances, there is not "sufficient evidence" that the MMPI test has the capacity to throw light on the plaintiff's cognitive dysfunction rather than being merely a test for the collateral purpose of assessing credibility. 5. A second reason exists for rejecting the application. I referred earlier to the circumstance that Australia Wide received recommendations of Professor Mattick in May 2016, but this application is now before me in March 2018, some six weeks approximately before the final hearing of the matter. It can be seen that the delay in recent months is attributable in part to the contest between the parties as to whether Mr Al Ammash should submit to the further examination. But it is also apparent that for more than a year after Professor Mattick made his recommendations, no action was taken by Australia Wide to seek a further examination. 6. Initially this delay was sought to be explained on the basis that in another part of his report, Professor Mattick requested being provided with certain documents of Dr Batchelor. But upon closer analysis that request did not provide any justification for the delay, a matter Australia Wide accepted towards the close of its submissions. 7. In the result, there has been a substantial unexplained delay. Now Australia Wide seeks the additional order that it be given leave to serve a further report from Professor Mattick within two weeks of the hearing date. There may be a contest as to whether such an order about service of Professor Mattick's report is properly an order within Uniform Civil Procedure Rule 31.28(1) and (2), or the grant of leave under subrr (3) and (4). The latter requires exceptional circumstances to be proved and there is no evidence of that. 8. It may be that if such an order is made under subrr (1) and (2), exceptional circumstances would not be required. But the construction of r 31.28 must be undertaken in the context of the overriding purpose in s 56 of the Civil Procedure Act 2005 of quick, cheap and just disposal of proceedings, and in particular, r 31.28 manifests a purpose of ensuring that there not be late service of expert reports, particularly those impacting on a hearing date. 9. In my view, service of a new report based on new tests by a neuropsychologist within a fortnight of a hearing date poses a substantial risk to the trial proceeding according to the hearing date already set. And without any explanation for the conduct that has caused that circumstance to have arisen, I would be disinclined to grant leave to enable a late report to be served. 10. That factor becomes weightier in circumstances where I am not persuaded that there is a proper basis for the examination report, as I have already explained. 11. So, for those two reasons, I am not persuaded that the application should be granted, and I propose to order that the notice of motion be dismissed with costs. 12. That costs should follow the event of the application was not in issue. 13. The orders of the Court are: 1. Grant leave for the defendant's amended notice of motion to be filed in court. Note that the underlining is inaccurate. 2. Order that the defendant's amended notice of motion filed today be dismissed with costs. 3. Note the parties have made arrangements for a conclave of experts. 4. Direct that the expert neuropsychologists meet by 15 April 2018 and provide a joint report clearly and succinctly identifying the areas on which they agree and disagree by 30 April 18. ********** Endnotes 1. At [11.9]. 2. As Allsop CJ then was, see [1]. 3. See [48]. 4. At [49]. 5. At [57]. 6. See [60]-[61]. 7. At [61]. 8. See Hamilton at [51], Plowman at [75]. 9. At [76]. 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