Price v Clearview Life Nominees Pty Ltd & Ors

The point at issue in this appeal from a decision of Registrar Walton on 10 March 2023 is whether the Court should order a plaintiff to undergo a medical examination in the exercise of its Uniform Civil Procedure Rules 2005, r 23.4 (“UCPR”) powers, when the plaintiff claims that a future medical examination may present a risk to his health and well-being.

These reasons substantially uphold the Registrar’s decision to allow the medical examination to proceed. But in this decision here the Court requires consultations to take place between the medical experts engaged by both sides to set medical requirements which must be met before the medical examination is to proceed, and allows the medical expert to refuse to proceed with the examination if the requirements are not met.

The plaintiff, Mr Russell Price claims in these proceedings that he has become “totally and permanently disabled” (“TPD”) within the meaning of that term in two policies of insurance effected by the first defendant, Clearview Life Nominees Pty Ltd, with the second defendant, Clearview Life Assurance Limited. The second defendant is the active party opposing in the present application and will be referred to in these reasons simply as “Clearview”.

Mr Price claims that he suffers a depressive illness because of his employment and qualifies for the payment of benefits of approximately $1.686 million under the policies. Clearview has not yet determined whether Mr Price qualifies as TPD within the policies. To qualify as TPD Mr Price would need to show that because of sickness or injury he had been absent from and unable to work for a period of three months and at the end of that period was disabled “to such an extent that [he] was unlikely ever again to be able to engage in [his] own occupation”.

Mr Price worked a real estate agent and then in the financial services sector from April 2006. In November 2013 he became managing director of a financial planning business part-owned by him together with a business associate. In November 2016 Mr Price and his associate established an Australian Financial Services Licensee of the group. In 2018 Mr Price joined his associate in another existing financial services undertaking controlled by the associate. The policies were taken out in association with superannuation benefits provided to Mr Price in the course of this employment.

Mr Price claims to have suffered significant stress from about October 2018 due to long working hours, performance demands and workplace conflicts including bullying by staff. He ceased work in April 2019 and has not returned. Mr Price claims that he has suffered a wide range of disabling symptoms that it is not necessary to recount in these reasons.

Mr Price consulted his general practitioner Dr Bernadetta Ratnam who referred him to a clinical psychologist Klaudia Gerbert in June 2019, and shortly after to a psychiatrist Dr Sharat Lal, whom he first consulted on 11 July 2019. Ms Gerbert diagnosed Mr Price as suffering from severe agitated depression, major depressive disorder, and generalised anxiety disorder. And Dr Lal has diagnosed major depressive disorder for Mr Price. Despite the deployment of a wide variety of treatment modalities by both practitioners and a second psychiatrist Dr Korbel, Mr Price claims that his symptoms continue unabated.

Those symptoms include insomnia, anxiety with panic attacks, depressed mood with suicidal ideation, poor memory, poor focus, and concentration, slowed thinking and movement, and difficulty speaking. Dr Lal had recommended electro convulsive therapy (ECT) but Mr Price did not want to submit to ECT.

Mr Price underwent psychiatric assessment by Associate Professor Chanaka Wijeratne at the request of Clearview, and he reported in June 2021. Dr Wijeratne has not seen Mr Price since then.

Clearview requested that Mr Price undertake a neuropsychological examination to advance its case and to test Mr Price’s case. But the examination did not take place. The appointment was made with a clinical psychologist, Dr Wendy Roberts on 25 July 2022. Mr Price arrived on time and the initial questioning associated with the psychological assessment commenced and lasted for about 40 minutes.

But Dr Roberts found that Mr Price was generally unresponsive and was complaining that he had suffered a fractured rib the week prior to the appointment. After about 40 minutes Dr Roberts determined that the assessment would not be able to proceed. As a result, Mr Price arranged for a friend to pick him up from the assessment. Dr Roberts requested that the friend take Mr Price to hospital due to his presentation. This account came through Clearview’s solicitor from Dr Roberts and it was largely confirmed the following month by Mr Price’s own treating psychologist, Klaudia Gebert.

Soon after this Mr Price’s treating psychiatrist, Dr Lal, expressed doubts as to the utility of him undergoing neuropsychological testing, because the degree of his impairment would make any “meaningful assessment” unlikely. Dr Lal said in a letter dated 21 September 2022:

Dr Lal has subsequently repeated this opinion. He did so immediately before the contest before the Registrar on 10 March 2023. Then he expressed the same opinion more recently during the contest on the present review on 23 May 2023, as follows:

Clearview does not have any evidence that directly contradicts Dr Lal with respect to Mr Price’s capacity to attend medical examinations. But this is partly because Mr Price has not seen Dr Wijeratne since mid-2021. To that extent on this present contest the Court must do its best with somewhat one-sided evidence.

Clearview contends persuasively on the evidence that a psychiatrist such as Dr Wijeratne cannot identify with precision Mr Price’s underlying cognitive capacity or its resilience in the face of his affective disorder: matters that are relevant to Mr Price’s capacity to engage in his occupation now or in the future. If Dr Wijeratne sees Mr Price again, he can observe that Mr Price seems to be slower in his responses. But for Dr Wijeratne to separate out any cognitive origins of that slowness from affective origins would be difficult without the investigations of a clinical psychologist.

The applicable legal principles both in respect of the review of the Registrar’s decision and the Court’s discretionary powers to order the plaintiff to attend a medical examination are not in dispute.

The parties accepted that in a review of the Registrar’s decision under UCPR, r 49.20 the reviewing judge must exercise the reviewing judge’s own discretion. For that discretion to be exercised in favour of the party seeking review it is not necessary to demonstrate error, but that party bears a persuasive onus of showing why intervention is necessary in the interests of justice: Tomko v Palasty (No.2) (2007) NSWLR 61; [2007] NSWCA 369 at [5] – [10] per Hodgson JA with whom Basten and Ipp JJA agreed and at [46] per Basten JA (Ipp JA agreeing)

The parties accepted that the following extract from my decision of in Harrod v MetLife Insurance Ltd [2019] NSWSC 28 at [22] states the relevant principles guiding the Court’s exercise of its UCPR, r 23.4 discretion: -

Other authorities make clear that the Court’s task involves a balancing exercise. The reasonableness of the relevant defendant’s requirement for examination must be weighed against that of the plaintiff’s refusal to attend: JKZ v The Scots College [2018] NSWSC 1526 per Garling J at [13] – [15].

The parties comprehensively framed their submissions in writing and supplemented them with oral submissions at the hearing. It is sufficient to record the principal cases outlined in their written submissions.

In written submissions Mr Price contends as follows:

Clearview submits that several factors point here to an exercise of the discretion in favour of the relief sought in Clearview’s motion before the Registrar. Clearview summarised those factors in their written submissions as follows: -

Mr Price submits that Clearview needs to look at other options for obtaining the evidence that it needs, perhaps by sending Mr Price back for further examination to Dr Wijeratne, or perhaps asking Mr Price’s treating practitioners for the information that it seeks. Mr Price submits that Clearview is not without capacity to gain the evidence that it wants.

But it is common ground that Dr Wijeratne can speak about the plaintiff’s affect but not his cognitive capacity. The disadvantage to the administration of justice therefore of the submission put on behalf of Mr Price is that Clearview will be deprived of testing information that it may want to deploy about Mr Price’s cognitive capacity.

Mr Price’s submissions counter that in turn by pointing out that Dr Wijeratne’s report of his examination includes some judgments about his level of cognition. Dr Wijeratne’s medicolegal report of 2021 gives to a question, “please outline Mr Price’s current symptoms and severity”, the following answer, “depressed mood and anhedonia, insomnia, impaired cognition, occasional thoughts of death and increased use of alcohol.”

Mr Price has the benefit for his own case of opinions of his treating practitioners, Dr Lal, the psychiatrist and Ms Gebbert, the psychologist, who both conclude he has impaired cognition. But Mr Price has not yet been subject to any formal testing of his cognitive performance, either by his treating practitioners or anyone else that he has seen.

Mr Price’s case is that there is already a practical consensus between the medical experts, that Mr Price suffers from impaired cognition and that from Mr Price’s point of view this will not be an issue at any future trial.

But Clearview has foreshadowed a defence case that requires neuropsychological testing. Clearview submits that Mr Price should undergo ECT which has at least some prospect of addressing his depressive disorder and improving his affect. Once that treatment occurs, neuropsychological testing may yet show that Mr Price has sufficient underlying cognitive capacity to pursue some of his premorbid employment options. Clearview says that not requiring Mr Price to undergo neuropsychological testing will deprive it of the capacity to put that case.

And Mr Price’s case must grapple with Clearview’s further submission that, whatever is done in these reasons, to present his own case Mr Price is likely to have to submit to and face the risks of a further medical examination organised by his own legal representatives. He cannot avoid the stress of further medical examinations altogether in these proceedings. And if he is appropriately prepared for all his medical examinations, it is difficult for Mr Price reasonably to argue that the medical examinations that his own lawyers arrange are not stressful, whereas those arranged on behalf of Clearview are not.

The Registrar’s reasons for determination of 10 March 2023 conclude on evidence very similar to that before this review that Clearview’s request was reasonable and that “some of the plaintiff’s reasons for resisting the examination are valid”. The Registrar thought that such an examination may have an adverse effect on Mr Price’s mental health but that matter alone was not decisive in his favour. The Registrar reasoned that as Mr Price has brought this case Clearview is entitled to have him examined and that it would not be just to prevent Clearview from obtaining evidence that is vital to central issues in the case. The Registrar concluded that the requested examination would proceed but with the following caution:

In addition, the Registrar urged the parties to consider, in conformity with their Civil Procedure Act 2005, s 56 obligations, the possibility of mediation before any medical examination takes place.

On this review the Court reaches much the same conclusion as the Registrar for much the same reasons. An additional consideration added through this review is the creation of a directed structure to give effect to the Registrar’s idea of conducting a medical examination in a way that “would cause the least negative impacts” on Mr Price’s health.

Clearview’s request for a neuropsychologist to examine Mr Price is justified. It serves a legitimate purpose. The evidence that might be gained from the examination is likely to be material to the issues in dispute, namely Mr Price’s future capacity for gainful employment. That is a critical issue in the Court determining whether Mr Price should be assessed as TPD.

The authorities require the Court to weigh the reasonableness of the requirement for examination of Mr Price against the reasonableness of his refusal to attend.

Mr Price’s reasons for refusing to attend the neuropsychological examination are grounded in two kinds of concern. The first concern is that attendance and participation may cause him harm. The second is that the medical examination is unlikely to be useful, as he is not capable of undertaking neuropsychological assessment due to the intractable nature of his symptoms.

In relation to both these concerns, the evidence indicates that the medical examinations that Mr Price has been required to attend so far and which have had to be terminated were not structured in a way either to minimise the risk of harm (that might arise for example because of suicidal ideation after a failed examination), or to maximise the opportunity for the examination to yield useful results for the proceedings.

For example, there is persuasive evidence that Mr Price presented in an inebriated state at the neuropsychological examination organised with Ms Wendy Roberts, contributing to her decision to terminate the examination. That should not have been allowed to happen. A failed medical examination for reasons such as this wastes the time of the medical professionals involved and appears perhaps to have contributed to Mr Price’s sense of failure and associated suicidal ideation. A medical examination that is at risk of being terminated because the plaintiff is inebriated or otherwise suffering from some other temporary disabling factor, should not be proceeding in the first place.

Mr Price is right to the extent that he submits that a medical examination in those circumstances should not be allowed to proceed, because it is destined to fail and may be harmful to him. But that is not to say that conditions for a safe and useful medical examination cannot be optimised through some preparation and screening before Mr Price attends.

An attempt to construct such conditions is highly desirable because in the absence of a neuropsychological medical examination, at trial the Court will only be presented with one version of Mr Price’s case about his cognitive capacity and its relationship to his future working capacity. The unfairness of such an outcome needs no elaboration.

The Court can place conditions upon the medical examination to minimise the risk of harm to Mr Price and to maximise its usefulness. But without calling and considering expert evidence on the issue the Court is not well equipped to set the detail of those conditions, which raise medical issues. It is far better that the treating and other doctors and psychologists involved in post-medical examinations set the detail of those conditions and the orders and directions below are designed to achieve that outcome.

These orders and directions have the following characteristics. Mr Price is encouraged to exercise his right under UCPR, r 23.5 to have his own medical practitioner present at the time of any medical examination. The orders made below encourage Mr Price to exercise that right but to do so in circumstances that promote advance consultation between his own medical practitioner and the neuropsychologist, about the conduct of the medical examination. The assumed background of this contest must then become that the medical examination and the preparation for it will be in the hands of competent medical professionals, the examining neuropsychologist, and Mr Price’s nominated medical practitioner.

The medical professionals should together set what the orders describe below as “presentation requirements” that must be met before the examination can take place. These could for example include that Mr Price has not self-medicated with alcohol and is not in so disturbed a state as to be unable to answer questions by the examining medical practitioner.

It is expected that Mr Price’s nominated medical practitioner, perhaps Dr Ratnam, will be involved in assessing his fitness to attend the medical examination and whether he meets the presentation requirements, very shortly before the medical examination takes place. If Dr Ratnam believes that Mr Price was likely to suffer harm from the medical examination, then she can request the medical examination be deferred.

But there must be some incentives for the plaintiff to meet the participation requirements, attend and be involved in this examination. The proceedings will be stayed until he does so. If his own doctor concludes that he does not meet the presentation requirements than the deferral of the medical examination will be at Mr Price’s cost, unless he shows cause why it should not be.

But once he presents at the neuropsychologist’s examination the medical expert examining him may conclude that he does not meet the presentation requirements. If that conclusion is reached and the medical examination is terminated on that ground, the cancellation should also be at Mr Price’s cost in these proceedings. That should address the question of risk of harm to Mr Price.

As to the usefulness of the neuropsychologist’s examination, Mr Price, the Clearview parties, and the Court should be of the one mind. A neuropsychologist’s examination that is at risk of being terminated, because Mr Price is unfit to commence or complete it, can serve no useful purpose. Setting and enforcing the presentation requirements should also ensure that any medical examination that proceeds is likely to be useful.

It might be said against these orders and directions that they may result in Mr Price never being able to present his case to the Court. That outcome may have to be faced at some stage if his case cannot be presented fairly. But in the meantime, the orders made below are designed to avoid that outcome.

For these reasons the Court only marginally vary the Registrar’s decision. The Court will require Mr Price to attend the neuropsychological medical examination. But the Court will impose a protocol so Mr Price and the medical experts are not needlessly vexed, so that their time and resources are not unnecessarily wasted, and so Mr Price is encouraged to attend to advance his own case, which can then be tested. The Court will not amend the Registrar’s recommendation of mediation but that is a matter for the parties.

As the Court has approached the matter from a slightly different perspective from the Registrar with a more detailed protocol, the appropriate order will be that each party bear his and its own costs of this review.

The orders made below are framed around Dr Mattick undertaking the neuropsychological examination. They should apply to any other neuropsychologist who is engaged if Dr Mattick is unavailable. They can also be adapted to apply in future to any other medical examination which Mr Price is required to undergo.

The Court makes the following orders and directions on the plaintiff’s motion dated 14 March 2023 brought pursuant to Uniform Civil Procedure Rules r 49.20 (“UCPR”) for review of the decision of Registrar Walton dated 10 March 2023 (“the Motion”):