DC v State of NSW, TB v State of NSW (No. 5)
[2013] NSWSC 1925
•31 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: DC v State of NSW, TB v State of NSW (No. 5) [2013] NSWSC 1925 Hearing dates: 31/10/2013 Decision date: 31 October 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) I order each of the plaintiffs to serve on the defendants on or before 4pm 7/11/13, answers to particulars requested, and a statement pursuant to r 15.12 of the UCPR setting out the claim for damages in respect of personal injuries made by each plaintiff accompanied by the documents specified in r 15.12(2)(a) and (b).
(2) I order the defendants to file and serve any defence to the Further Amended Statement of Claim in each matter by 4pm 21/11/13.
(3) I order pursuant to r 31.4 of the UCPR, that the plaintiffs in each matter are to serve on the defendants in each matter, all statements in writing of the oral evidence that the plaintiffs intend to adduce in chief on all questions of fact to be decided at the hearing on or before 4pm 31/1/14.
(4) I order the plaintiffs in each matter to serve all expert reports on all issues upon which they intend to rely by 4pm 31/1/14.
(5) I order the defendants to serve pursuant to r31.4 of the UCPR, statements in writing of the oral evidence which they intend to adduce in chief on all questions of fact to be decided at the hearing by 4pm 28/2/14.
(6) I order the defendants to serve all expert reports on all issues upon which they propose to rely by 4pm 28/3/14.
(7) I stand the proceedings over for directions to 4/4/14 at 9am before the Registrar.
(8) I order that the proceedings numbered 2008/289326, in which the plaintiff is TB, and proceedings numbered 2008/2835, in which the plaintiff is DC, be heard together and the evidence in one proceeding be the evidence in the other proceeding.
(9) Liberty to apply on 72 hours' notice.
(10) I stand each the Motion filed on 1/10/13 over to 2pm on 15/11/13 before Garling J to enable defendants to bring in a form of order which they it seeks to be made and the documents referred to in my judgment, such documents to be served on the plaintiffs or before 4pm on 13/11/13.
(11) I otherwise dismiss the each Motion of the defendants filed on 1/10/13.
(12) I reserve all question of costs.
Catchwords: PROCEDURE - application by defendant that plaintiffs submit to examination by consultant psychiatrist - where plaintiffs have already undergone psychiatric examination - where alternatively defendant relies on a single expert direction - where issues are complex and opinion may differ a single expert direction is inappropriate - where additional order under rule 23.4 Uniform Civil Procedure Rules 2005 is sought - where in weighing interests of both parties an order under r 23.4 is necessary to respond to expert opinion is appropriate Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: DC (Applicant/Plaintiff) (2008/289325)
TB (Applicant) (20008/289326)
State of NSW (Respondent/Defendant)Representation: Counsel:
I Harvey (Applicant/Defendant)
A S Morrison SC / K Pryde (Respondent/Plaintiff)
Solicitors:
Graham Jones Lawyers (Applicant/Plaintiff)
Crown Solicitor's Office (NSW) (Respondent/Defendant)
File Number(s): 2008/289325 2008/289326 Publication restriction: The Plaintiffs are to be referred to only by their initials.
EX TEMPORE Judgment
By Notices of Motion filed 1 October 2013, in each case involving a plaintiff TB, and a plaintiff DC ("the plaintiffs"), the defendants seek orders pursuant to r 31.37 of the Uniform Civil Procedure Rules 2005 ("UCPR") that Dr Lisa Brown be engaged jointly by the parties as their common expert for the purposes of medically examining each of the plaintiffs, and providing expert opinion in the field of psychiatry on matters relating to damages and quantum. An alternative order under r 31.46 of the UCPR is sought which would have the same effect, whereby the Court would appoint Dr Brown as an expert.
It is unnecessary to recount the history of this matter in great detail. TB and DC claim damages for negligence arising out of the conduct of an officer of a government department, then called the Department of Youth and Community Services, for failing to take adequate steps, including by reporting to police, to deal with allegations of physical and sexual abuse which the plaintiffs allege they were subjected to by their stepfather.
These proceedings on any view were brought out of time. In a judgment of 1 March 2012, Harrison AsJ extended time within which the proceedings could be brought. Between 2008 and 2012, when Harrison AsJ delivered her judgment, there have been other matters that have engaged the parties, essentially relating to whether the proceedings should be summarily dismissed, and whether there should have been an extension of time. I do not delay to deal with those matters of past history.
However, the fact is that these claims now have a very long history. They were first brought over five years ago and today is the thirtieth occasion upon which they have been before the Court for one reason or another.
The defendant draws attention to some recent history, namely that after the judgment of Harrison AsJ was delivered in March 2012, the plaintiffs were examined in June 2013 by their chosen psychiatrist, Dr Diamond. The doctor was asked to give a supplementary report on the following matters:
(1) the need for and costs, of any future psychiatric treatment and medication;
(2) the extent of likely future care needs;
(3) the extent and nature of interference with capacity for gainful employment and remunerative activity;
(4) the effect of the abuse on the plaintiffs' behavioural problems, drug use and incarceration; and
(5) the impact of those matters on the plaintiff's education and qualifications, employment and future employment prospects.
On 20 August 2013, the plaintiffs served reports, prepared by Dr Diamond and dated 9 June 2013. Unsurprisingly on 27 August 2013, the solicitor for the defendant sought to have the plaintiffs examined by a consultant psychiatrist. That letter indicated that the defendant would pay all reasonable expenses with respect to travel, accommodation and allied expenses for such examination.
The solicitor for the plaintiffs responded to that request by indicating that the plaintiffs objected to any examination with a psychiatrist in circumstances where each plaintiff had already been examined by a psychiatrist, on behalf of the defendant, at an earlier point of time. That earlier examination of each plaintiff was done by Dr Julian Parmegiani on 11 August 2010. It is accepted that Dr Parmegiani's reports have not been served on the plaintiffs.
The defendant brought the motions now before the Court, following the plaintiffs' objection to the examination. In support of the orders sought in the Notices of Motion, the defendant points to the provisions of cl 41 and following of Practice Note SC CL5, which relates to single expert witnesses. In relevant part, the defendant relies upon this statement in cl 42:
"At the first directions hearing a single expert direction will be made in respect of those issues considered to be appropriate for a single expert. In all proceedings in which a claim is made for damages for personal injury a single expert direction as to damages will be taken to have been made at the first directions hearing unless otherwise ordered."
The consequence of a single expert direction or order is that all evidence on the identified issue is given by the single expert and, without leave, no further expert report can be obtained on those matters.
It is obvious that by the time this matter had come on for hearing before me on the defendant's motions, the matters had proceeded a very long way past the first directions hearing. Indeed, the matter has proceeded to an extent where the plaintiffs have engaged their own expert and served a significant number of reports from that expert upon which they wish to rely.
The effect of a single expert direction, if made at this point in time, would be to preclude the plaintiffs from relying upon those reports.
Another matter which is relevant to consider, were this the first directions hearing, is the nature of the issues upon which the expert would be asked to express an opinion.
Clearly if there is significant dispute about issues, or if issues are particularly complex and raise questions where experts might reasonably differ, it would be wholly inappropriate to appoint a single expert.
I am satisfied in this case by reference to a joint report of Dr Diamond and Dr Champion, another psychiatrist who has not had the benefit of an examination of either plaintiff, that the nature of the issues in this case are such as would make a single expert report wholly inappropriate. As well, I am not prepared to make such an order where it would have the effect of precluding the plaintiffs from relying upon a considerable degree of expert material which they have already obtained and served.
In those circumstances, I am not prepared to make the orders sought in the defendant's Notices of Motion.
Counsel for the defendant orally added a further order to those sought in the Notices of Motion, in these terms:
"Order that each plaintiff be medically examined by an expert engaged by the defendant for the purpose of replying to the reports of Dr Diamond."
Rule 23.4 of the UCPR provides that a 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. The plaintiffs were content to deal with that order without a further adjournment.
The plaintiffs opposed that order upon a number of bases. The first was that if an examination were to take place by someone other than Dr Parmegiani or Dr Champion, then the Court would be endorsing an approach by the defendant to this case which might colloquially be called "doctor shopping".
Secondly, the plaintiffs submitted that they would be prejudiced by being examined by a doctor who has no previous history in the matter, because necessarily such examination would require the doctor, when obtaining a history, to ask the plaintiffs to recall as fully as they could for the purpose of the examination the very lengthy history of the significant physical assaults and sexual assaults which they allege they were exposed to.
The plaintiffs submit that based upon the expert opinion of Dr Diamond, contained in correspondence of 7 October 2013, such a methodology of examination would constitute a re-traumatisation of each of them in circumstances where, at least on the evidence to date, there is little reason to doubt, putting aside questions of liability and causation in these proceedings, that the plaintiffs do in fact suffer from significant Post Traumatic Stress Disorder.
In the letter of 7 October 2013, Dr Diamond says:
"Exposure of this nature is repetitive of significant re-traumatisation to your clients. The most likely response is that your client will become acutely disturbed and attempt to disassociate emotionally and/or substance abuse in preparation for the examination and try to remove herself as quickly as possible from the examination before the assessment can be properly and fully undertaken."
There is little doubt that Dr Diamond is concerned for the psychiatric consequences of any further examination. However, taken to its extreme, Dr Diamond's opinion would preclude the defendant from ever obtaining any expert opinion in relation to the plaintiffs' injuries, claimed loss and damages. Necessarily that would be fundamentally unfair to a defendant.
In considering whether I should make this order, I need to weigh the interests of the plaintiffs, and the effect any such examination would have upon them, and their psychiatric condition, with the effects on the defendant if the defendant is not able to have the plaintiffs' examined.
As well, given that these proceedings are before the Court, and the Court is exercising a discretionary power, it is necessary to have regard to the interests of justice. Why would it be fair, one might pose the question rhetorically, to allow one party to introduce expert evidence but to preclude the other from introducing that evidence?
The plaintiffs submit, further, that if an order for medical examination was to be made, to which they are opposed, the Court should specify that the examination should only take place with Dr Parmegiani. The plaintiffs submit that the Court ought to infer from the fact that Dr Parmegiani saw the plaintiffs in 2010 that he has taken a significant history from the plaintiffs and therefore the plaintiffs would not be required to recount their history to him again, and any re-traumatization may be minimised or lessened. The effect of this submission is that the plaintiffs dictate which expert the defendant can retain. In support of that submission, the plaintiffs drew attention to the terms of the same Practice Note which the defendant have relied upon, which points out in cl 34:
"As a general guide the number of expert witnesses giving evidence on behalf of a party should be limited to one expert unless there is a substantial issue to on-going disability."
In the circumstances of this case, it would be unfair in my assessment to apply cl 34 to the order sought for medical examination. Firstly, cl 34 deals with people called as witnesses, it does not deal with the antecedent issue. Secondly, the issues upon which the examination is sought are of particular complexity. In any event, even if the provisions of the Practice Note applied, I would be minded to grant leave to both parties to rely on one or more expert.
Thirdly, the fact is that the examination undertaken of the plaintiffs by Dr Parmegiani was at a time when the significant issue was whether the limitation period should be extended. No doubt he was asked to examine the plaintiffs and give an opinion upon matters directly related to that issue. He clearly was not asked to examine the plaintiffs and give an opinion directly related to the issues to which Dr Diamond's recent reports were directed.
What this means is that in any event, there has to be a further examination of the plaintiffs to at least deal with those issues. The only benefit which the plaintiffs can point to for having an examination limited to that of Dr Parmegiani, is that he, so it ought be inferred, has taken a full history.
In my view, that is insufficient without more to compel an order that the only examination which the defendant may have of the plaintiffs is one by Dr Parmegiani. My reason for that is that it seems to me that the defendant can take steps to provide a history to any new psychiatrist in writing which can be gathered from a variety of sources which are largely accurate, or else accepted by the defendant as accurate, and such provision of history would obviate the need for the psychiatrist to engage in taking a lengthy history. As well, the defendant would be in a position to instruct the psychiatrist not to take a history on those matters unless the psychiatrist needed to do so for good reason.
Accordingly, I indicate in general terms that I am prepared to make an order of the kind sought orally by the defendant. However, before I would be prepared to formalise that order, it would be necessary for the defendant to place before the Court:
- (a) firstly, the letter of instructions to any expert on behalf of the defendant;
- (b) secondly the history which the defendant wished the expert to take into account for the purpose of the examination, the expression of opinion, and a list of any other documents which the defendant proposed to provide to the psychiatrist.
I will give the plaintiffs an opportunity to make any submission in respect to the content of those at the time they are presented.
It will also be necessary for the defendant to nominate the doctor and the time and place of the examination. Necessarily that will involve a degree of discussion with the lawyers for the plaintiff and the fixing of an appropriate time with the appropriate notice to enable the examinations to take place.
It may be, and I express no view about this, but it may be that those discussions arrive at a position which is in fact cheaper, quicker, and more expedient for the psychiatrist, whoever that may be, to travel to where the plaintiffs live. But I say no more about that. It is a matter to which I will leave to the parties to discuss. I will not make any order about that unless called upon to do so. Much will depend upon the psychiatrists, much will depend upon time, and much will depend upon expense and a large number of other factors to which I have not turned my attention.
Therefore, what I propose to do is to stand the motions over for a little over two weeks, to 2pm on 15 November 2013 before me, to enable the defendant to bring in a form of order which it seeks to be made, and the documents to which I have referred in this judgment. I would indicate that such documents ought to be served on the plaintiffs by no later than 4pm on Wednesday 13 November 2013. Other than in respect of the order for examination which has been articulated and which I propose to approve, I would otherwise be disposed to dismiss the motions. A question of costs then arises. I will reserve all question of costs.
I will make some case management orders:
(1) I order each of the plaintiffs to serve on the defendant on or before 4pm 7/11/13, answers to particulars requested, and a statement pursuant to r15.12 of the UCPR setting out the claim for damages in respect of personal injuries made by each plaintiff accompanied by the documents specified in r 15.12(2)(a) and (b).
(2) I order the defendant to file and serve any defence to the Further Amended Statement of Claim in each matter by 4pm 21/11/13.
(3) I order pursuant to r 31.4 of the UCPR, that the plaintiffs in each matter are to serve on the defendant in each matter, all statements in writing of the oral evidence that the plaintiffs intend to adduce in chief on all questions of fact to be decided at the hearing on or before 4pm 31/1/14.
(4) I order the plaintiffs in each matter to serve all expert reports on all issues upon which they intend to rely by 4pm 31/1/14.
(5) I order the defendant to serve pursuant to r 31.4 of the UCPR, statements in writing of the oral evidence which they intend to adduce in chief on all questions of fact to be decided at the hearing by 4pm 28/2/14.
(6) I order the defendant to serve all expert reports on all issues upon which they propose to rely by 4pm 28/3/14.
(7) I stand the proceedings over for directions to 4/4/14 at 9am before the Registrar.
(8) I order that the proceedings numbered 2008/289326, in which the plaintiff is TB, and proceedings numbered 2008/2835, in which the plaintiff is DC, be heard together and the evidence in one proceeding be the evidence in the other proceeding.
(9) Liberty to apply on 72 hours' notice.
(10) I stand each Motion filed on 1/10/13 over to 2pm on 15/11/13 before Garling J to enable defendant to bring in a form of order which it seeks to be made and the documents referred to in my judgment, such documents to be served on the plaintiffs or before 4pm on 13/11/13.
(11) I otherwise dismiss each Motion of the defendant filed on 1/10/13.
(12) I reserve all question of costs.
I inform the parties that I propose to fix the matter for hearing on 2 August 2014, unless either party notifies my Associate within seven days that such date is inconvenient. Such notification should include convenient dates.
On 4 April 2014 I expect the parties will be in a position to have orders prepared which would ensure that all experts in the matter, whether on liability or damages, should meet in joint conclave and prepare a joint report.
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Decision last updated: 13 May 2014
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