The Supreme Court of New South Wales has twice had cause recently to examine the operation of rule 23.4 of the Uniform Civil Procedure Rules 2005 (‘UCPR’), which is relevant to medical examinations organised in the course of personal injury proceedings generally.

Rule 23.4 of the UCPR relevantly provides:

‘23.4   Order for examination (cf SCR Part 25, rule 5; DCR Part 23, rule 5; LCR Part 20, rule 5)

(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.’

In Chopra, the plaintiff’s refusal to attend a medical assessment was endorsed as reasonable in the particular circumstances of that case.

In Hollingsworth, the conditions which a plaintiff sought to impose on his attendance at a medical examination, which were upheld at first instance, were disallowed by the Court of Appeal.

Chopra

In the first decision, the applicant, Ms Chopra, alleged she was assaulted by a patient while in the course of her employment as a nurse at Blacktown Hospital, resulting in physical and psychiatric injuries. She was subsequently diagnosed with Post-Traumatic Stress Disorder. The applicant made a claim for work injury damages in the District Court of New South Wales against the respondent employer, the State of New South Wales.

The applicant filed a Pre-Filing Statement in the proceedings which relied on evidence from Dr Abdul Khan, treating psychiatrist, and Dr Richa Rastogi, independent psychiatrist. The respondent filed a Pre-Filing Defence which relied on a report by Dr Price, rehabilitation specialist, and a report from Procare Investigations.

Prior to the Pre-Filing Defence being filed, the applicant had attended consultations with Dr Ben Teoh, independent psychiatrist, at the request of the workers compensation insurer. Dr Teoh did not cast doubt on the applicant’s diagnosis, causation or incapacity. The respondent did not rely on this report when filing the Pre-Filing Defence.

Indeed the Pre-Filing Defence foreshadowed the intention to obtain updated medical evidence in reply to the evidence relied on by the applicant, but did not include any evidence which addressed her condition.

After the applicant commenced District Court proceedings, the employer requested the applicant attend an appointment with Dr John McMahon, independent clinical psychologist, for the purpose of conducting psychometric testing. The employer argued that, having regard to some clinical material produced under subpoena, it needed to have the claimant tested ‘to evaluate the risk of exaggeration or feigning of the condition’. This was particularly informed by an entry from a Dr Dickinson on 8 November 2021, which said:

‘Has attended local GP to explore management for ‘memory loss’

Told them she had been experiencing memory difficulty for years and requesting details to be sent to her family GP

D/W [the applicant], has c/o impaired concentration, memory in context of severe anxiety and panic, which was noted along with recommendation of treatment of anxiety but nil specific scans or further tests have been done

However if writes to practice with name of Dr and request for notes can send medical notes to this doctor for further investigation

Eager to discuss cognitive testing and indications for scan with Dr Khan at next review

Trying to get appt with Prof Brown’

The applicant declined to attend this assessment, and the employer subsequently applied to the District Court of New South Wales for an order to be made pursuant to rule 23.4 of the UCPR requiring that she do so.

The employer submitted that psychometric testing was necessary to measure psychopathology objectively ,and to assist the court to identify the diagnosis accurately (this argument was supported by a report from Dr McMahon about the purpose and function of psychometric testing).

The applicant relied on reports by Dr Khan, treating psychiatrist, and Dr Rastogi, independent psychiatrist. Dr Khan expressed the opinion that Dr McMahon was not appropriately qualified as a psychologist to comment on diagnostic issues or to understand the complexity of the applicant’s presentation. Both doctors also asserted that the proposed psychometric testing would have a deleterious effect on the applicant’s symptoms.

The Primary Decision

Gibb DCJ made an order pursuant to rule 23.4 of the UCPR that the applicant attend the assessment with Dr McMahon.

In an ex tempore decision, Gibb DCJ referred to the decision of Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 (‘Stapleton’). In that case, McCallum J (as she then was) referred to principles established in Prescott v Bulldog Tolls Limited [1981] 3 All ER 869 (‘Prescott’) that, when considering an application under rule 23.4 of the UCPR, the court must:

‘(a)   assess whether the defendant’s request is reasonable in light of the 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’.’

McCallum J considered in Stapleton that ‘regard must be had to the kind of issues raised by the claim and the kind of examination requested’.

Gibb DCJ considered that the issues the employer sought to investigate in the assessment with Dr McMahon (namely, credit and cognitive impairment) could not be answered solely by reference to the available medical material, but rather forensic investigation was warranted. She therefore considered the employer’s request that the applicant attend the assessment was reasonable.

The Appeal

As the impugned decision was interlocutory, leave was required, and was granted. There were six grounds of appeal, but as the Court of Appeal accepted the first, it did not need to consider all other grounds.

The Court of Appeal (Mitchelmore JA, Kirk JA and Simpson AJA) considered that the primary judge failed to take into account the unchallenged medical evidence that not only questioned the efficacy of the testing having regard to the applicant’s circumstances, but also raised serious concerns that it would be detrimental to her health.

When re-exercising discretion under rule 23.4 of the UCPR, the Court of Appeal considered the reasonableness of the employer’s request that the applicant be assessed by Dr McMahon, and concluded:

1. There was an absence of medical evidence to support the request; and
2. The nature of the evidence relied upon by the employer to support the reasonableness of the assessment (namely, affidavits of the employer’s solicitor, a letter of instructions to Dr McMahon, and a report of Dr McMahon) gave ‘credence to the applicant’s submission that the sole and impermissible purpose of the request was to test the applicant’s veracity generally’.

As to the reasonableness of the applicant’s refusal to attend the testing, the Court of Appeal determined:

1. There was medical evidence to suggest psychometric testing was not clinically indicated and would serve no purpose; and
2. There was medical evidence (provided by Dr Khan and Dr Rastogi) to suggest the testing would be deleterious to the applicant’s psychiatric condition. Mitchelmore JA said this was a consideration on which she placed ‘significant weight’.

In balancing the reasonableness of these positions, the Court of Appeal (by agreement) held the applicant’s refusal to attend the assessment with Dr McMahon was reasonable. The primary judge’s orders requiring the applicant to attend the appointment were set aside.

Hollingsworth

In the second decision, the respondent to the appeal, Mr Hollingsworth, was arrested and taken into custody by Police. He commenced proceedings in the District Court against the State of New South Wales (“the State”), for false imprisonment, assault and battery, all of which, he claimed, exacerbated his pre-existing post-traumatic stress disorder (PTSD). In support of his claim Mr Hollingsworth relied on expert medical reports from an experienced consultant forensic psychiatrist.

The State requested that Mr Hollingsworth attend an assessment with Dr Apler, a psychiatrist. Mr Hollingsworth agreed to attend the assessment, on the condition he would be permitted to electronically record the interview. Dr Apler did not consent to this request, and the examination was terminated by Dr Apler after Mr Hollingsworth refused to stop recording the assessment.

The State then arranged for Mr Hollingsworth to attend an assessment with Dr Brown, a forensic psychiatrist. Dr Brown indicated she also would not permit her assessment to be recorded and set out the reasons for her position in correspondence. Mr Hollingsworth again indicated his intention to record the assessment. Given Mr Hollingsworth’s position, the State cancelled the scheduled assessment by Dr Brown. The State made enquiries with five other psychiatrists who all indicated that they would refuse to have the assessment recorded.

The State applied to the District Court for an order under r 23.4 of the UCPR requiring Mr Hollingsworth to attend an assessment with Dr Brown without recording the assessment in audio or audio-visual form.

The Primary Decision

At first instance, Levy SC DCJ not only refused the application from the State, but he instead ordered, purportedly under UCPR, Sch 7, cl 5(c), that any expert forensic psychiatrist appointed by the State to examine Mr Hollingsworth be directed to permit him to make a sound recording of the entire assessment session.

The State sought leave to appeal. 

The Appeal

The application for leave was heard concurrently with the appeal.

The Court (Mitchelmore JA, Stern JA, and Basten AJA) granted leave to appeal and allowed the appeal. The Court [Stern JA (Mitchelmore JA and Basten AJA agreeing)] held that the primary judge erred in relying on UCPR, Sch 7, cl 5 as a source of power to make the orders concerning Mr Hollingsworth’s medical examination. There was no power conferred by UCPR, Sch 7, cl 5 to give such a direction to an expert witness. The Court also held that primary judge’s exercise of discretion miscarried in a way that materially affected the result, in that his Honour failed to take into account the right of the State to have Mr Hollingsworth examined by a forensic psychiatrist of the State’s choice. That right was not conditioned by any matter which would impact upon the State’s ability to instruct its expert of choice.

The Court also held that Levy SC DCJ erred in concluding that Mr Hollingsworth had a right to make an audio recording of his assessment by a forensic psychiatrist. Insofar as his Honour took into account that right, his discretion miscarried in a way that materially affected the result.

The Court also found error on the part of the primary judge in relying upon a finding that the refusal to allow Mr Hollingsworth to record his assessment by a psychiatrist appointed by the State amounted to unlawful discrimination under the Disability Discrimination Act 1992 (Cth). Insofar as his Honour took that finding into account, his discretion miscarried in a way that materially affected the result.

The Court of Appeal considered it was appropriate to re-exercise the discretion which had miscarried. In all the circumstances, it decided it was appropriate that there be an order for an assessment of Mr Hollingsworth by a psychiatrist of the State’s choice. That order should not be conditioned by any requirement that Mr Hollingsworth should be permitted to record the assessment by audio or audio-visual means.

Stern JA (with whom Mitchelmore JA agreed) said that there was real doubt as to whether r 23.4 of the UCPR, s 61 of the Civil Procedure Act 2005 (NSW) or the inherent jurisdiction of the Court could support the orders made by the primary judge. However, as both parties before the trial judge had accepted the power existed, it was unnecessary for the Court of Appeal to express a final view on the correctness of that position. The Court’s hint that the judge went too far is quite clear.

Basten AJA went further, arguing that there is a difficulty in identifying, let alone assessing, the relevant discretionary considerations in circumstances where the source of power itself to make orders by the exercise of discretion is not identified. His Honour considered that the Court does not have the power to impose conditions on experts as to the manner in which they carry out an expert examination.

Important Considerations for Insurers

The decisions and analysis of the Court of Appeal, while focused on rule 23.4 of the UCPR, provides some guidance about how section 6.27 of the Motor Accident Injuries Act 2017 (NSW) (‘MAIA’), and its predecessor, section 86 of the Motor Accidents Compensation Act 1999 (NSW) (‘MACA’), might be interpreted.

Both sections enact a requirement for a claimant to attend medical assessments arranged by insurers, so long as the assessment is not ‘unreasonable, unnecessarily repetitious or dangerous’. These sections provide that, where ‘the claimant fails without reasonable excuse to comply with such a request’, the claim cannot be continued and court proceedings cannot be commenced while the failure continues (and, under the MAIA, statutory benefits may be ceased while the refusal continues).

Guided by Chopra v State of NSW, deciding whether or not the claimant must attend a medical assessment should involve balancing the reasonableness of the insurer’s request and the claimant’s refusal to attend a medical appointment. In Chopra, the existence of consistent medical opinions about the claimant’s presentation and condition (from treating and medico-legal assessors including one qualified for the insurer) coupled with the risk of harm to the claimant outweighed the insurer’s desire to explore forensic techniques (of contested utility) in order to test the claimant’s credibility.

Hollingsworth, on the other hand, demonstrates that it is always a good idea when seeking any relief from the Court to identify the source of the Court’s powers, as they may not be without limit. It is quite probable that the turn of events which the application took before Levy SC DCJ was unexpected (there being no application before his Honour to make orders compelling an independent medical examiner to submit to surveillance during the course of the examination) and so the advocates may well have been caught unaware.

An important principle affirmed by the Court of Appeal is that insurers have the right to have claimants examined by an expert of its choosing. That right should be kept in mind. How that right can be exercised where there is a practical tension between case management imperatives which aim to progress matters through the courts as quickly as practicable, and long delays in securing appointments with an expert of choice, may well need to be the subject of further appellate guidance. 

Further information / assistance regarding the issues raised in this article is available from the authors, Judith Waldock, Partner, Emma Wallace, Associate or your usual contact at Moray & Agnew.