Haggerty v HAL Maritime Ltd

1. [1]

   By Notice of Motion filed 14 June 2024, the defendant in these proceedings, HAL Maritime Ltd, seeks orders that the plaintiff, Paul Haggerty, attend a medico-legal assessment with Dr Paul Phillips, and for service of the report of such assessment.

2. [2]

   The plaintiff opposes such orders being made.

3. [3]

   The power to order such an assessment is contained in r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”):

4. [4]

   The power must be exercised judicially, having regard to the factors relevant to the exercise of the discretion in the particular case: KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead and Anor [2010] NSWSC 891, and in accordance with the provisions of ss 56-58 of the Civil Procedure Act 2005 (NSW).

5. [5]

   By way of background, the plaintiff is claiming damages from the defendant, his former employer, for an injury he asserts he suffered in the course of his employment. In short, the plaintiff says that in rescuing a drowning passenger, in his role as security officer on a cruise ship, he sustained post-traumatic stress disorder, and that as a consequence he can no longer work in maritime employment.

6. [6]

   The defendant disputes the plaintiff's asserted injury, condition and consequent heads of damages.

7. [7]

   The plaintiff was assessed by consultant psychiatrist Dr Graham George, who produced a report dated 5 February 2021. Dr George expressed the opinion that in the subject incident the plaintiff was "traumatised greatly" and "in these circumstances, he has developed typical symptoms of PTSD." Dr George said as a result of the incident, the plaintiff has "chronic conditions which have meant that he has not been able to continue” in his pre-injury employment as head of safety for a shipping line, that he is "not suitable for security work on board a cruise ship due to the severity and chronicity of symptoms", but he "appears to be able to work in simpler duties in the area of security."

8. [8]

   Following the retirement of Dr George, the plaintiff's solicitors had him assessed by Associate Professor Michael Robertson, consultant psychiatrist. Dr Robertson prepared a report dated 27 February 2024. Dr Robertson's report contained the following:

9. [9]

   Dr Robertson said "Mr Haggerty also reported significant escalation of his PTSD symptoms in tandem with the emergent major depression. He ultimately resigned from HAL in May 2017”.

10. [10]

    Dr Robertson noted that Mr Haggerty consulted a GP in 2018 and was commenced on specified medications, that he was "referred to a psychologist but was unable to engage in treatment."

11. [11]

    Dr Robertson referred to Dr George’s diagnosis in his report of 5 February 2021, and said:

12. [12]

    Dr Robertson stated that Mr Haggerty reported "some minor improvement in his mental state insofar as he is less depressed with less frequent suicidal ideation", said "Mr Haggerty continues to experience symptoms of chronic PTSD", and noted Mr Haggerty had not sought specialist treatment.

13. [13]

    Dr Robertson said of his assessment of Mr Haggerty:

14. [14]

    Dr Robertson said:

15. [15]

    Dr Robertson stated that following the subject incident "Mr Haggerty experienced significant decline in his occupational and interpersonal functioning, and now works in a lesser remunerated, albeit cognate work role."

16. [16]

    Dr Robertson said:

17. [17]

    Dr Doron Samuell, clinical and forensic psychiatrist, produced a report dated 20 May 2022, after assessing Mr Haggerty. In his report, Dr Samuell referred to the "inconsistent narrative provided at interview". Dr Samuell noted that at the time he assessed Mr Haggerty, Mr Haggerty was working on a full-time basis, without medical restriction, was not under the care of a psychiatrist, psychologist or counsellor, was not taking psychotropic medication, and his "mental state findings were normal".

18. [18]

    Dr Samuell said:

19. [19]

    Dr Samuell said:

20. [20]

    Dr Samuell provided a second report dated 16 April 2024, having re-assessed Mr Haggerty. Dr Samuell noted that Mr Haggerty was working on a full-time basis at Canterbury Hospital, performing security work "without any psychological restriction" and driving an Uber vehicle on a casual basis. He noted that at the time of the assessment Mr Haggerty was under the care of his general practitioner alone.

21. [21]

    Dr Samuell noted that Mr Haggerty said he was taking antidepressant medication "every couple of days". Dr Samuell said "Comment: This is an unusual way to take the [medication]. Medicare records to match the prescription and dispensing patterns may be insightful.".

22. [22]

    Dr Samuell noted that Mr Haggerty said he had not had any psychological treatment since he was last assessed by Dr Samuell, but said he would speak to Lifeline every few months. Dr Samuell stated "Comment: It may be helpful to obtain phone records in order to establish the pattern of him engaging with Lifeline."

23. [23]

    Dr Samuell said:

24. [24]

    Dr Samuell said:

25. [25]

    Dr Samuell stated:

26. [26]

    Thereafter, relying on Dr Samuell's report, the defendant’s solicitors wrote to the plaintiff's solicitors advising they would be seeking orders for the plaintiff to undergo symptom validity testing with Dr Paul Phillips. The plaintiff's solicitors replied, noting they were seeking advice from Professor Robertson with respect to the viability of the testing being sought, and stated they objected to any such order.

27. [27]

    Dr Robertson provided a report dated 4 July 2024 on the issue of the proposed testing. He relied on his earlier assessment of Mr Haggerty. Dr Robertson noted that at the time of his assessment of Mr Haggerty he determined that:

28. [28]

    Dr Robertson referred to Dr Samuell's report of 16 April 2024 in which Dr Samuell expressed the opinion that "The absence of psychological health seeking and the demonstrated work capacity are inconsistent with a serious mental health condition." Dr Robertson responded:

29. [29]

    Dr Robertson referred to Dr Samuell's statement that the "material inconsistency between the self-report, lack of psychological health-seeking behaviour and the demonstrated capacity for functioning ought to give rise to symptom validity testing." Dr Robertson responded:

30. [30]

    Dr Robertson said:

31. [31]

    The defendant relied on evidence from Dr Paul Phillips, psychologist, whom it proposes would conduct psychometric testing of the plaintiff. That evidence was contained in part in an affidavit from James Patrick Reid, the defendant’s solicitor, who referred to a conversation with Dr Phillips, in which Dr Phillips said:

32. [32]

    There was also evidence in a report by Dr Phillips dated 5 July 2024. In that report, Dr Phillips states that as a registered psychologist he is qualified to conduct psychometric testing. In addition, the parts of Dr Phillips’ report which the defendant specifically relied on in support of its application were in paragraph 12 at page 4 of his report, where Dr Phillips said:

33. [33]

    The defendant also relied on paragraphs 21 to 23 of Dr Phillips’ report at page 6:

Applicant’s submissions

1. [34]

   The defendant/applicant on the motion relied on the statements of Basten JA in Boral Transport Pty Ltd v Gulick [2013] NSWCA 150, at [9] that "If there is a live issue as to the physical or mental condition of the plaintiff, to which a medical examination will be relevant, the rule [23.4] is engaged" and at [12]:

2. [35]

   The defendant submitted that there are issues in dispute between the experts about the diagnosis, the severity of the plaintiff's symptoms and the impact of the alleged injury on the plaintiff's claimed incapacity, so in reliance on Basten JA’s statement in [9] of Boral, r 23 .4 is engaged.

3. [36]

   Counsel for the defendant referred to the process a court must undertake in determining an application of this sort, stated in Prescott v Bulldog Tools Ltd [1981] 3 All ER 869, and recently stated in Chopra v State of New South Wales (South Western Sydney Local Health District) [2023] NSWCA 142, that the court must:

4. [37]

   Addressing the factors to be considered in that analysis, counsel for the defendant submitted that the defendant's request for the plaintiff to undergo psychometric testing is reasonable because Dr Samuell has requested the testing, in circumstances where Dr Samuell has struggled to find sufficient evidence to form a proper basis for his opinion. Counsel submitted that sufficient evidence is necessary as a basis for Dr Samuell's opinion, especially where the experts disagree as to the nature and extent of the plaintiff's psychological injuries. Counsel submitted the plaintiff is incapable of providing evidence as to the nature and extent of the symptoms he experiences. The defendant submitted that the plaintiff is seeking a significant award of damages, which is a relevant factor in considering the reasonableness of the defendant's request. The defendant submitted that there is no evidence proposed by the plaintiff from lay witnesses or treating practitioners about the nature and severity of the plaintiff's psychological injury and therefore the defendant's request for the psychometric assessment will assist in filling the evidentiary gap, and is therefore reasonable. The defendant submitted that that was consistent with the statement of Basten JA in Boral, at [7], that:

5. [38]

   The defendant submitted that the plaintiff's refusal to attend psychometric testing is not reasonable. Counsel referred to the significant issues in dispute between Associate Professor Robertson's opinion and Dr Samuell's about the plaintiff's diagnosis, the nature and extent of any mental illness the plaintiff suffers, and whether the plaintiff’s earning capacity has been impacted by the psychological injuries alleged. The defendant relied on Dr Phillips’ evidence that psychometric testing involves a standard set of questions to assess symptoms associated with post-traumatic stress disorder and that form a scale to diagnose and measure the extent of the mental illness; that psychometric testing is diagnostic and assesses the nature and severity of the symptoms which will be relevant to the issues in dispute.

6. [39]

   Addressing the opinion of Associate Professor Robertson that the proposed testing was unnecessary, counsel submitted that Dr Robertson's satisfaction with his diagnosis is not a reason to preclude Dr Samuell from obtaining the evidence that he considers necessary to properly form his opinion. The defendant submitted that Dr Samuell's statement that he requires additional testing to assist in diagnosis is a relevant factor for consideration by the court. The defendant submitted it is not reasonable for the plaintiff to refuse to undergo an assessment that Dr Samuell considers necessary to form the basis of his opinion, regardless of Associate Professor Robertson's opinion about the nature of the evidence.

7. [40]

   The defendant submitted that Associate Professor Robertson’s opinion that the proposed psychometric testing would adversely affect the plaintiff's psychiatric condition was not supported, and was at odds with Dr Phillips’ opinion that the testing involves a standard set of questions, not directed to the circumstances of the subject incident, so unlikely to be re-traumatising or harmful in Dr Phillips’ opinion.

8. [41]

   Therefore, the defendant submitted it is not reasonable, where the plaintiff is seeking a significant award of damages, for the plaintiff to refuse to attend a medical examination with Dr Phillips where the assessment has been requested by an expert and where there are "evidentiary lacunas".

9. [42]

   The defendant submitted that if the court finds the defendant's request is reasonable and the plaintiff's refusal is also reasonable, then in undertaking the balancing act the defendant submitted the relevant factors weigh in favour of making an order for the testing sought: the assessments are not invasive, they had been sought by Dr Samuell, they have been requested by Dr Samuell for the purpose of assisting him in providing an adequate basis for his opinion, the evidence seeks to address significant issues in dispute, including diagnosis, and the nature and severity of symptoms, which is likely to have an impact on heads of damages such as non-economic loss and past and future economic loss.

10. [43]

    The defendant disputed the plaintiff's assertion that the defendant is seeking psychometric testing for a credibility purpose. Counsel for the defendant relied on the judgment of Hodgson JA in Rowlands v State of New South Wales [2009] NSWCA 136 at [35] and at [48]-[49]. At [35] his Honour said:

11. [44]

    At [48]-[49] his Honour said:

12. [45]

    Counsel submitted that in those passages Hodgson JA drew a distinction between testing the plaintiff's veracity generally and testing the veracity of the plaintiff's contentions insofar as they affect the reliability of tests and examinations that have been performed by experts, because the reliability of the results are relevant to a medical issue in dispute. In this case, counsel submitted that the proposed testing falls within Hodgson JA’s paragraph [35]. Counsel submitted that the purpose of the psychometric testing is an attempt to obtain evidence that Dr Samuell considers necessary for him to adequately perform his clinical assessment. Counsel submitted that although Dr Samuell uses the word "reliability", what Dr Samuell was seeking is additional evidence to form a proper basis for his opinion. Counsel submitted that that is not a credibility purpose or credibility evidence; it is opinion evidence that is relevant and admissible as to the nature and severity of the plaintiff's injuries.

13. [46]

    Relying on paragraph [7] of Basten JA's statement in Boral, counsel submitted that the absence of sufficient supporting evidence in the plaintiff's case does not mean that the defendant cannot obtain an order for a medical examination to uncover the truth of the plaintiff's medical condition.

14. [47]

    Counsel for the defendant disputed the plaintiff's submission that the reliability of the plaintiff's account can be addressed through cross-examination in the hearing. Counsel submitted that Dr Samuell needs the results of the psychometric testing to form the basis of his opinion and therefore the issue cannot be delayed until cross-examination of the plaintiff for a credibility purpose.

Respondent's submissions

1. [48]

   Counsel for the plaintiff/respondent to the motion submitted that the first step is to ascertain whether the evidence served is sufficient to warrant the request made for the plaintiff to attend for the proposed testing. Counsel submitted that it is only where that threshold issue is satisfied, on the basis of the two reports of Dr Samuell and the evidence of Dr Phillips, that the court would need to consider whether the plaintiff's refusal to attend is reasonable.

2. [49]

   Counsel submitted that it is clear from Dr Samuell's reports that he does not accept the plaintiff's narrative, does not believe what the plaintiff has said to him, that Dr Samuell says that symptom testing would help him assess the reliability of the plaintiff's narrative, that Dr Samuell's reasoning for seeking such testing is his consideration that there is an inconsistency in the plaintiff's presentation on the basis that his symptoms have been self-reported, he is not engaged in health-seeking behaviour and he is working full-time without restriction. The plaintiff submitted that Dr Samuell is looking to test the plaintiff's credibility, and that can be addressed through cross-examination at the hearing.

3. [50]

   Counsel for the plaintiff submitted that Dr Phillips was unsure why Dr Samuell was suggesting that testing was necessary, but said in a general sense, it might assist in ascertaining the extent of the plaintiff's condition. Counsel submitted that Dr Phillips’ report is "very light on" in outlining what would take place in the testing. Counsel submitted that Dr Samuell really seeks the testing because he does not accept the plaintiff's narrative, does not believe that he could be suffering from the condition and still working and not seeking treatment.

4. [51]

   Counsel submitted that Associate Professor Robertson notes that Mr Haggerty has been assessed and diagnosed by himself and Dr George as suffering from post-traumatic stress disorder. Counsel submitted that if Dr Samuell was to accept Mr Haggerty's narrative, he would himself diagnose post-traumatic stress disorder. Counsel relied on Associate Professor Robertson's criticisms of the reasons relied on by Dr Samuell in seeking the assessment.

5. [52]

   Counsel submitted that the information provided by Dr Phillips to the defendant's solicitor, Mr Reid, does not outline why the proposed testing would provide any objective material to the court in order to assess the plaintiff's condition. Counsel submitted that the defendant has not demonstrated why the proposed testing is necessary when the plaintiff has undergone clinical interviews with three psychiatrists.

6. [53]

   Counsel submitted that the evidence relied on by the defendant does not meet the threshold question, so the court does not even need to consider whether the plaintiff's refusal to attend is reasonable.

7. [54]

   The plaintiff submitted that the proposed testing will not assist in determining the plaintiff's mental condition, but rather Dr Samuell's basis for such testing is that he takes issue with the plaintiff's reliability. The plaintiff relied on the statements of Hodgson JA and Tobias JA in Rowlands, that this is not a proper basis on which to seek that the plaintiff undergo a medical examination.

8. [55]

   In Rowlands, Hodgson JA said at [49]:

9. [56]

   Tobias JA in Rowlands said at [61]:

Consideration

1. [57]

   It is clear that the plaintiff has brought a case against the defendant which involves a significant claim for damages. It is clear that the defendant is entitled to take reasonable steps to defend those proceedings. It is clear there is an issue in the proceedings about the plaintiff's condition, the circumstances in which he incurred the claimed condition, the extent of his condition and the consequences thereof for the heads of damages claimed.

2. [58]

   It is clear from Dr Samuell's report that he expresses scepticism about the account given to him by the plaintiff about how he incurred the injury, whether he has such an injury, and the extent of his symptoms, and the impact of the extent and/or severity of his purported condition on his capacity for employment. Dr Samuell said if the plaintiff’s narrative was accepted, the plaintiff had PTSD as a result of the subject incidents, but he had concerns about the reliability of the narrative. It seems to me therefore that the purpose of the testing suggested or recommended by Dr Samuell has no purpose other than to test the veracity of the account given to him by the plaintiff.

3. [59]

   Counsel for the defendant, in reliance on Rowlands, sought to distinguish between testing the plaintiff’s veracity generally and testing the veracity of the plaintiff's contentions insofar as they affect the reliability of examinations that have been performed by medicolegal experts. However, in the circumstances of this case, the only matters about which the veracity of the plaintiff's account is an issue are the very matters the subject of his claim, that is, that he incurred a psychological injury in the course of his employment, and the extent to which the condition, which he says continues, impacts on his capacity to obtain employment at a level which he could have obtained if he had not incurred the injury. There is, in this case, no distinction between the plaintiff’s veracity or reliability in respect of his account of his injury, condition and symptoms and his veracity or reliability generally.

4. [60]

   Secondly, although Dr Phillips said in his report that he is qualified to administer psychometric testing, and explained that such testing is administered by posing a series of questions or statements and seeking a response from the person being tested, he did not explain how the tests he proposed to administer could diagnose or quantify the symptoms or diagnosis of any condition suffered by the plaintiff. He even said he could not be fully aware of exactly what Dr Samuell was thinking when asking for such tests, and therefore how they would assist him.

5. [61]

   Therefore is not clear how the proposed tests could provide information about the plaintiff’s medical condition, rather than test the reliability of the history given by the plaintiff to Dr Samuell, which was what Dr Samuell recommended. Therefore, the purpose of the proposed testing being for the impermissible purpose of testing the plaintiff’s veracity, r 23.4 cannot be utilised for such a purpose.

6. [62]

   Therefore, the Notice of Motion is dismissed. The defendant is to pay the plaintiff's costs of the Notice of Motion.