Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security

By her amended statement of claim, the plaintiff, Ms Hill, seeks damages from the defendants arising out of incidents which are alleged to have occurred at a 2016 New Year’s Eve celebration at the Sydney Opera House where the plaintiff was employed as an event manager. The defendants were security companies and a guard engaged by one of them who were involved in crowd control and other security issues at the event. The alleged incidents can be summarised, inadequately but sufficiently for present purposes, as involving the fourth defendant, a security guard, approaching the plaintiff yelling at her and acting in a threatening manner in close proximity to her.

It is alleged that, as a result of the incidents, the plaintiff sustained the following injuries:

The relevant defendants’ defence has put in issue, among other things:

Since New Year’s Eve 2016 the plaintiff has seen a significant number of psychologists and psychiatrists for treatment and for medico-legal assessment, and has been admitted to hospital on a number of occasions. From the evidence relied upon by the plaintiff it can be accepted that she has suffered and suffers from very significant mental illnesses. One significant issue is the cause of those conditions.

On 24 May 2021 the defendants’ solicitors notified the plaintiff’s solicitors that they had made arrangements for the plaintiff to be medically examined on 15 June 2021 by Dr Wendy Roberts, clinical psychologist (not “Forensic Psychiatrist” as stated in the letter).

On 26 May 2021 the plaintiff’s solicitors sought further information and suggested that the current appointment be rescheduled to allow the plaintiff sufficient time to consider her position.

On 28 May 2021 the defendant’s solicitors responded by letter indicating that it was proposed that Dr Roberts would administer a number of psychometric tests but it was inappropriate to identify what the tests might be and that the appointment would not be rescheduled. It was also noted in that response that the plaintiff’s mental condition was a matter in issue in the proceedings and the solicitors referred to the expert report of Dr John Roberts, psychiatrist, dated 21 February 2021 in that regard.

Between 3 June 2021 and 8 June 2021 there was further correspondence between the solicitors concerning the appointment with Dr Wendy Roberts in which it became clear that the examination was to be for approximately six hours and that a support person would not generally be permitted to be present, which was not acceptable to the plaintiff.

On 7 June 2021 the plaintiff’s solicitors confirmed by telephone that the plaintiff would not be attending the proposed appointment and confirmed by letter that the plaintiff was not objecting to an examination by Dr Wendy Roberts but simply requesting that it be rescheduled to accommodate the matters previously raised and further raised in that letter.

On 15 June 2021 the plaintiff did not attend the proposed appointment.

On 2 July 2021 the defendants’ solicitors wrote to the plaintiff’s solicitors confirming that the assessment and interview were estimated to take six hours and that the plaintiff could be accompanied by a support person for the interview aspect of the appointment but not while any formal assessment of the plaintiff’s emotional functioning by way of psychometric testing was being performed. This latter condition was said to be the result of an ethical responsibility in relation to the dissemination of test content and was also said to be non‑negotiable. Consequently, it was said that the plaintiff’s support person would have to wait outside the assessment room while it occurred.

Further correspondence took place between the solicitors in July and August 2021 in relation to the proposed examination. Part of that correspondence included a letter from Dr Wendy Roberts dated 2 August 2021 explaining her position in relation to the absence of a support person during psychometric testing in the following terms:

A copy of The Australian Psychological Society Limited (APS) Code of Ethics was attached to that letter but no particular section was referred to. Nonetheless, a perusal of that document indicates that the relevant provision appears to be:

Unfortunately, the parties have not been able to reach a satisfactory arrangement for the examination of the plaintiff by Dr Wendy Roberts.

On 6 August 2021 the relevant defendants filed the notice of motion which is presently before the Court seeking orders in the following terms:

I note that, at the hearing, Mr Gambi of counsel who appeared for the defendants indicated that prayer 2 concerning payment of the cancellation fee was not pressed.

The evidence adduced on this notice of motion included, in addition to the material upon which the findings set out above have been based, numerous medical and similar reports concerning the plaintiff’s mental condition and related matters. It does not appear to me to be necessary to set out that material in any detail in these reasons, although I have taken it into account in reaching my decision in this matter.

There is, however, one report to which I should make reference and that is the report of Dr Howard Napper, consultant psychiatrist, of 1 November 2021 which states:

It is now appropriate to turn to consider the relevant statutory provisions which apply in relation to the present application.

The plaintiff claims damages for a mental condition in the present proceedings, and her mental condition and causation of that condition are relevant matters in issue. She is also a party to the proceedings. In these circumstances, r 23.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) establishes that the provisions of Div 1 of Pt 23 of the UCPR (rr 23.1 to 23.5) are applicable.

Rules 23.1 to 23.5 of the UCPR provide as follows:

In exercising its discretion under r 23.4 in the present proceedings, the Court is required to act judicially and to bear in mind the following general provisions of the Civil Procedure Act 2005 (NSW). Section 56 of that Act provides in part:

Section 57 of the Act provides in part:

Section 58 of the Act requires the Court to have regard to the dictates of justice when deciding whether to make a procedural order. The dictates of justice include having regard to ss 56 and 57. Further, s 58(2)(b)(vi) provides that regard may be had to the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.

Finally, s 61 of the Act provides in part:

The principles governing an application of this type are well established.

In Plaintiff [name withheld] v Stapleton [2017] NSWSC 914, McCallum J (as her Honour then was) summarised some of the relevant authorities encapsulating the general principles. Her Honour held, at [4] and [5]:

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 or in relation to the plaintiff’s account of the events alleged to have caused the injury or condition in question: Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 at [49] (Hodgson JA, Allsop P and Tobias JA agreeing); JKZ v The Scots College [2018] NSWSC 1526 (JKZ) at [44] (Garling J). Where requiring a plaintiff as a part of a proposed neuropsychological examination to give orally, once again, an account of the circumstances alleged and how the plaintiff reacted to them at the time would involve a real risk of re-traumatisation to the plaintiff, it will not generally be in the interests of justice to subject the plaintiff to such a risk: JKZ at [47].

Ultimately, the Court must weigh up all of the facts and circumstances to ensure that the proceedings brought by the plaintiff against the defendant are determined justly, taking into account the reasonable requirements of each party as well as the need to have the proceedings determined quickly and as cheaply as reasonably possible.

As has been noted above, the matters or questions in issue in these proceedings relevantly include:

In relation to this application, there is no issue that Dr Wendy Roberts, a clinical psychologist, is a “medical expert” within the definition in r 23.1. Further, the plaintiff in her written submissions prepared by Mr McAuley of counsel expressly states that she does not oppose an order under r 23.4 that she be medically examined by Dr Wendy Roberts. Rather, she submitted that as a matter of discretion, having regard to all of the circumstances, the Court should only make the order for an examination if it was subject to appropriate conditions to ensure that the examination was used for proper purposes and with regard to the needs and conditions of the plaintiff.

The issues between the parties in relation to present notice of motion can be distilled as follows:

Having regard to the evidence and recommendations of Dr John Roberts, psychiatrist, and Mr O’Neill, clinical psychologist, I am satisfied that there is sufficient evidence to support the conclusion that the psychometric testing proposed is reasonably requested in the present case.

In his report of 21 February 2021, Dr John Roberts specifically recommended as follows:

Mr O’Neill, clinical psychologist, in his report of 9 August 2018 stated:

I accept the recommendations of Dr John Roberts and Mr O’Neill include psychometric testing as proposed by Dr Wendy Roberts. Such an examination will assist in the proper determination of the matters in issue in the proceedings and is consistent with their just, quick and cheap disposition. These matters in issue include causation of the plaintiff’s condition and its relevant extent.

From the passage quoted above, it can be accepted that Dr J Roberts, psychiatrist, gave some emphasis to what he described as “the unreliability of [the plaintiff] as a historian”. Since the purpose of the proposed examination must be to obtain evidence about a plaintiff’s medical condition and not about the plaintiff’s veracity in relation to her account of the incidents in question, it appears to me that Dr Wendy Roberts should not be allowed during the interview aspect of the examination generally to question the plaintiff as to her version of the events or the versions given by other persons with a view to assessing the truthfulness of her account.

To the extent that it may be necessary for Dr W Roberts to consider the plaintiff’s version of the incidents compared to other witnesses’ versions and to express opinions as to the nature and extent of the plaintiff’s mental condition and the possible causation of that condition, this can be done by way of asking Dr Roberts to make appropriately formulated assumptions as to those matters as the bases for her opinion. Those assumptions can be formulated having regard to the account of the incidents in the pleadings, any written evidence to be relied upon by the plaintiff or the defendants or other sources available to the defendants. It is not necessary for Dr Roberts to conduct her own questioning of the plaintiff concerning those matters, which are ultimately matters to be determined by the court hearing the case not Dr Roberts.

This type of concern was addressed by Garling J in JKZ at [48] to [50], although the evidence in that case clearly established that questioning concerning the relevant incidents in that case also involved a substantial risk of re‑traumatisation. In the present case, there was no explicit evidence that questioning the plaintiff concerning her version of events on New Year’s Eve 2016 or asking the plaintiff to recount what occurred in the incidents was likely to involve the risk of re-traumatising the plaintiff during the examination. Notwithstanding that difference, in my view, a similar approach should be adopted in the present case.

Accordingly, I propose to limit the examination to be carried out by Dr W Roberts to preclude her from orally taking a history from the plaintiff or asking her questions as to the alleged incidents at the 2016 New Year’s Eve function. Further, and to avoid any misunderstanding, I propose to specify that it is no part of the neuropsychological examination for Dr W Roberts to test the veracity and accuracy of the plaintiff's account of those incidents and it is no part of the examination to obtain evidence that might go to the plaintiff's veracity generally.

It is not now in issue that the plaintiff may have a support person present during the interview part of Dr Wendy Roberts’ examination. The objection to the presence of the support person is limited to the time when the psychometric testing is being conducted because of Dr Roberts’ understanding of her ethical obligations based on par B.13.6. of the APS Code of Ethics, which has been quoted earlier.

Prima facie, it appears to me that the very fact of the tests being conducted on a person would involve “disclosing their contents” to that person. Implicitly, that person must be “authorised” to receive such information, otherwise the testing could not be conducted. The position of a support person legitimately present during psychometric testing would appear to be no different. If the support person’s presence is necessary to allow the testing to be conducted, that person would also be implicitly “authorised” to receive such information, in the same way that the subject of the testing was authorised to receive the information.

Notwithstanding those tentative views, it does not appear to me to be necessary or appropriate to determine the present application on that basis. Such a decision should not be made without the benefit of specific evidence as to the psychology profession’s understanding of the ethical obligations of psychologists and submissions from a body such as The Australian Psychological Society Limited. The decision is not necessary because r 23.5 provides that the person concerned may have a medical expert of his or her choice attend a medical examination. Thus, the plaintiff would be entitled under that rule to have a psychologist present during the psychometric testing. Disclosure of the contents of the testing to such a psychologist would not appear to contravene par B.13.6. of the APS Code of Ethics.

Accordingly, all that is required in this regard is for it to be noted in the order for medical examination that, during the psychometric testing, the plaintiff may be supported by a psychologist authorised to conduct psychometric testing, whom the plaintiff is entitled to have present under r 23.5 in any event. Providing that the testing can be conducted in this way assists to ensure that the real issues in the proceedings are determined in accordance with the overriding purpose in s 56 of the Civil Procedure Act and with the dictates of justice.

In relation to the proposal that the examination take up to six hours, I accept the evidence of Dr Howard Napper that the plaintiff is medically unfit to attend a six-hour assessment with a psychologist and is likely to remain so indefinitely.

In those circumstances, the appropriate course appears to me to be to split the examination into two parts so that the plaintiff is not required to attend for six hours in one stretch. One part would be the psychometric testing at one time and the other would be the interview at a separate time.

This will also have the advantage that the plaintiff can have her chosen support person present during the interview part of the examination and her chosen psychologist present, as a support person, during her psychometric examination.

Once again, such an approach follows the dictates of justice and serves to promote the real issues in the proceedings being determined as justly, quickly and cheaply as the circumstances permit.

Neither party has been entirely successful or unsuccessful on the motion. Nonetheless, the plaintiff has always acknowledged that she should be examined. It was only the conditions of the examination which were in issue.

Taking into account all the relevant circumstances, the most appropriate costs order is that the costs of the motion be costs in the cause.

For all of these reasons, the Court orders: