DN v Paton
[2018] ACTSC 20
•17 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DN v Paton |
Citation: | [2018] ACTSC 20 |
Hearing Date: | 17 November 2017 |
DecisionDate: | 17 November 2017 |
ReasonsDate: | 19 February 2018 |
Before: | Burns J |
Decision: | See [2] and [17] |
Catchwords: | PRACTICE AND PROCEDURE – Application for evidence to be taken in London – r 6813 of the Court Procedures Rules 2006 (ACT) – claim for damages arising out of motor vehicle accident in Canberra – plaintiff resides in London – plaintiff suffering post-traumatic stress disorder – difference of opinion between psychiatrists regarding impact on psychological condition of plaintiff by returning to Australia to give evidence – risk of exacerbation of condition – risk that ability to properly participate in any hearing may be adversely affected – risk reduced by taking evidence in London – certain required experts practising in United Kingdom – second defendant may protect its position regarding costs – whether in interests of justice to make the order |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Division 6.10.8, r 6813 |
Parties: | DN (Applicant) Anthony Paton (First Respondent) The Nominal Defendant (Second Respondent) |
Representation: | Counsel Mr D Campbell SC (Applicant) Mr D Crowe (Second Respondent) |
| Solicitors Porters Lawyers (Applicant) Minter Ellison (Second Respondent) | |
File Number: | SC 212 of 2012 |
BURNS J:
The current proceedings are a claim for damages arising out of a motor vehicle accident on 5 July 2009. The plaintiff was the front seat passenger in a motor vehicle which was involved in a collision with a motor vehicle driven by the first defendant on Gundaroo Drive at Crace in the Australian Capital Territory. The plaintiff alleges that she suffered severe injuries as a consequence of that accident. The plaintiff has sued not only the first defendant, but also the Nominal Defendant (ACT). While the originating claim does not specifically allege it, I infer that the motor vehicle driven by the first defendant was unregistered and uninsured. It appears that the first defendant has played no part in these proceedings to date, which have been defended by the second defendant. The second defendant has indicated that liability is not in issue, and the only question to be resolved is the appropriate quantum of damages.
By an Application in Proceeding dated 27 October 2017, the plaintiff sought orders that a date be fixed for the taking of evidence in London in the United Kingdom. This application had been foreshadowed for some time, and the parties had conducted negotiations with a view to resolving the proceedings without the necessity for making the application. The proceedings did not resolve, and the Application came before me on 17 November 2017. After hearing counsel for the plaintiff (Mr D Campbell SC) and the second defendant (Mr D Crowe) I made the order sought by the plaintiff, and indicated that I would give reasons in due course. These are those reasons.
The application was essentially for the appointment of an examiner and the making of an examination order under Division 6.10.8 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules). The operative provision, for present purposes, is r 6813, which provides:
6813 Order for taking evidence otherwise than at trial
(1) In any civil or criminal proceeding in the court, the court may, on
the application of a party to the proceeding, make an order—
(a) for the examination of a person on oath at a place in or outside
the ACT (including outside Australia) before a person
appointed by the court; or
Note Oath includes affirmation (see Legislation Act, dict, pt 1).
(b) for the issue of a commission for the examination of a person
on oath at a place in or outside the ACT (including outside
Australia); or
(c) for the issue of a letter of request to a judicial authority of a
place outside the ACT (including outside Australia) to take the
evidence of a person (or cause it to be taken).
Note Pt 6.2 (Applications in proceedings) applies to an application for an
order or direction under this rule.
(2) The court may make an order under subrule (1) only if it appears in
the interests of justice to make the order.
(3) In deciding whether it is in the interests of justice to make the order,
the court must have regard to—
(a) whether the person to be examined is willing or able to come to
the ACT to give evidence in the proceeding; and
(b) whether the person will be able to give evidence material to
any issue to be tried in the proceeding; and
(c) whether, having regard to the interests of the parties to the
proceeding, justice will be better served by making or refusing
to make the order.
(4) If the court makes an order under subrule (1) (a) or (b), it may, when
it makes the order or subsequently, give any direction it considers
just in relation to the examination.
(5) If the court makes an order under subrule (1) (c), it may include in
the order a request about anything relating to the taking of the
evidence, including, for example—
(a) the examination, cross-examination or re-examination of the
person, whether the evidence is to be given orally, by affidavit
or in another way; and
(b) the attendance of the legal representative of each party to the
proceeding and the participation of the legal representatives in
the examination.
Note An example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
The plaintiff relied upon 2 affidavits sworn by Colin Arthur Blain, the first on 27 October 2017 and the second on 13 November 2017. In his first affidavit, Mr Blain deposed that the plaintiff resides in London in the United Kingdom together with her husband. He further deposed that the plaintiff was injured in a motor vehicle accident in the Australian Capital Territory (ACT) on 5 July 2009. At that time the plaintiff was residing in London, and had returned to Canberra to prepare for her wedding. As a result of her injuries, the plaintiff’s marriage was delayed. She subsequently married and returned to live in London and has resided there since. She has been treated by a number of medical practitioners who practice in London. She has also been examined on behalf of the second defendant by medical practitioners who also practice in London.
Annexed to Mr Blain’s first affidavit are two reports from Dr Stuart Turner, a consultant psychiatrist practising in London, and one report from Dr Jonathan Phillips, a consultant psychiatrist practising in Sydney. In his first report dated 6 June 2017, Dr Turner stated that he was meeting with the plaintiff weekly and she continued to have post-traumatic symptoms which he was treating. In his second report dated 20 September 2017 Dr Turner stated that the diagnosis continued to be chronic post-traumatic stress disorder and that treatment remained trauma focused. He also said:
I have two significant updates. The first concerns [DN]’s legal case. I have heard that she might have to go back to Australia for the trial. She is very distressed even talking about this – she was in tears this week. I consider that the combination of the trial and having to attend in Canberra will simply be far too triggering for her. She will experience extreme anxiety. I fear that this will also stand to affect adversely the quality of her evidence – if she is able to give evidence at all. I hope that the Court will be able to take her evidence in London. This would be much better.
Dr Jonathan Phillips in his report dated 16 November 2016 noted that he had seen the plaintiff on 10 November 2016. She was no longer employed in her former employment as a lawyer as she had found it impossible to cope with the demands of that employment because of her injuries. Dr Phillips confirmed a diagnosis of post-traumatic stress disorder and provided the following summary of the plaintiff’s symptoms at the time that he saw her:
Suffice it to state that the claimant spoke about her labile mood state, with symptoms within the depression spectrum, the anxiety spectrum, and in the domain of anger. She experiences recurrent episodes of panic over which she has no control. The claimant has various symptoms of re-experiencing which are linked with the accident, this including recurrent visual flashbacks of the traumatic incident. Additionally, the claimant is likely to be avoidant in her day-to-day behaviour. She is aware that she attempts to use tight organisation of her life in seeking to maintain a sense of psychological integrity, but it nevertheless is troubled by her current sense of alienation (“not belonging”). The claimant remains hypervigilant (searching for cues associated with the accident). The claimant continues to lack all libido and she is deeply uncertain regarding having a family in the future. The claimant has a disturbed a pattern of sleep (with multiple wakenings generally as a result of anxiety-based dreams). The claimant is mentally and physically exhausted and has a recent history of atypical facial pain… The claimant has ongoing cognitive problems including difficulties with concentration/tension, loss of capacity to contemplate the future. Finally, the claimant feels that she has lost control over her world...
[…]
There is one final matter of concern. I am uncertain whether [DN] will be mentally or physically capable of making the long journey to Australia for purposes of her legal hearing. On my assessment, the claimant will perceive the dislocation of her current lifestyle as a major psychological stressor.
In his second affidavit sworn 13 November 2017, Mr Blain annexed a further report of Dr Phillips dated 8 November 2017. In that report Dr Phillips stated that he reviewed the plaintiff on 20 October 2017. He also had the opportunity to speak at length with Dr Turner, who is the plaintiff’s principal therapist. Dr Phillips stated that Dr Turner is an acknowledged figure in the domain of trauma therapy. In his report Dr Phillips noted that the plaintiff leads a relatively restricted lifestyle in London. She told him that travel is particularly difficult for her, as a consequence of her physical and psychological problems. She believed that she could not undertake any form of long distance travel at that point in time. Dr Phillips believed that the plaintiff suffered from a chronic post‑traumatic stress disorder, chronic physical symptoms and some cognitive difficulties. He noted that there were a number of issues that needed to be considered:
First, is the issue of litigation. This has become an additional and unwanted stressor for [DN], and it would be in her best interests if legal matters were concluded as soon as practicable…
[…]
Third, is [DN] able to cope with a legal hearing, and to face cross-examination in a safe and proper manner? Once again, the claimant has a thorough understanding of the law. In my opinion, she will cope with the processes of the court. However, fatigue may become an issue, and she may experience a worsening of her emotional symptoms. With respect, might I suggest that the claimant be allowed a fifteen-minute break following each hour of cross-examination, preferably in the company of a support person, and the total time for cross-examination not exceed six hours in any given day.
Fourth, can [DN] safely travel to Australia to attend the legal hearing? On my assessment, and taking all the physical and psychological symptoms into consideration, I do not believe this will be possible. The claimant is relatively fearful of travel, she remains deeply symptomatic, and she will inevitably suffer a worsening of the symptoms if exposed to the place of the motor vehicle accident.
There was no affidavit or other evidence from the plaintiff herself. As such, there was no evidence to the effect that the plaintiff was unwilling to come to the ACT to give evidence in the proceedings. I inferred that if she were forced to do so, the plaintiff would travel to the ACT to give evidence in and otherwise participate in these proceedings. In deciding whether to make the orders sought by the plaintiff, I was cognisant of the fact that the plaintiff’s willingness to (reluctantly) return to the ACT to give evidence was only one factor in determining whether it was in the interests of justice to make the orders sought.
The second defendant read an affidavit sworn by Jane Alexandra Temby on 15 November 2017. In her affidavit Ms Temby stated: “I am instructed that the Second Defendant, at this stage, only requires one of the 13 treatment providers that are identified in Mr Blain’s affidavit as being based in the United Kingdom for cross-examination, being Dr Stuart Turner.” (Emphasis added). Annexed to that affidavit were two reports prepared by Dr Paul Mallett, a consultant psychiatrist practising in London. It would be fair to say that in his first report Dr Mallett expresses some doubts about the history of symptoms given by the plaintiff, but appears to accept a diagnosis of post‑traumatic stress disorder. He differs from Dr Turner in his opinion as to the severity of that condition, and its impact upon the plaintiff, including her ability to work. He accepted that the plaintiff may well be incapable of returning to her previous job as a solicitor, but he could see no reason why she should be disabled from returning to work in any capacity. Significant levels of concentration disturbance and the anxiety symptoms she was currently experiencing, he said, should not prevent her from working in a more routine sedentary or semi-sedentary job.
In his second report, dated 13 November 2017, Dr Mallett was specifically requested to comment upon whether the plaintiff is capable of travelling to Australia in relation to her legal proceedings. Dr Mallett stated that while the plaintiff had told him that she is anxious when travelling and that she would be anxious about flying long haul to Australia because this would remind her of the accident itself, it was clear that the plaintiff is not absolutely prevented from doing so and is capable of travel. In that regard he referred to the fact that since the accident the plaintiff had travelled overseas for holidays on a number of occasions, including to Australia on three occasions, for periods of up to three months. He went on to state “[t]his calls into question the veracity of her account in general as presumably if these were holidays, as opposed to journeys that she had to do, she would have much more easily had the option of staying at home”. It was his opinion that the plaintiff was capable of travelling to Australia and attending court in relation to her accident, although this may cause her to become more anxious but not to the degree which would prevent her from conducting legal proceedings.
There was a very clear difference of opinion between the two psychiatrists retained by the plaintiff, and the psychiatrist retained by the second defendant, as to the likely impact upon the plaintiff’s psychological condition of her being required to return to Australia for any hearing in the present proceedings. I approached this evidence on the basis that it has not been tested through cross-examination, and as such it is not possible to make conclusive findings about the level of psychological disability experienced by the plaintiff. For present purposes, however, it seemed to me that greater weight should be given to the opinions expressed by the plaintiff’s psychiatrists, and in particular Dr Turner. As I understand it, Dr Mallett has only seen the plaintiff on one occasion, on 17 May 2017. Dr Turner is, and for some time has been, the plaintiff’s treating psychiatrist and has had a greater opportunity to assess her over a longer period of time. In saying this, I am not to be taken as having formed a conclusive view about the weight to be given to the evidence of the various psychiatric witnesses at hearing and after cross-examination.
There is a considerable difference between travelling overseas for the purposes of a holiday, and travelling to Australia for the purpose of attending court proceedings and giving evidence in which the plaintiff will be required to relive the events of the accident and its aftermath. The purpose of a holiday is usually to remove oneself from stress, and to facilitate relaxation. That is a very different proposition to undertaking a lengthy journey for the purpose of engaging in psychologically distressing activity far from your home. I will assume for present purposes that the plaintiff has family, or extended family, in the Canberra region with whom she may be able to stay while attending the hearing in these proceedings. That is, nevertheless, very different to being able to return to her own home as required during the proceedings. In addition, in London the plaintiff will have the benefit of being able to consult her regular medical practitioners to alleviate symptoms should they arise during the course of the hearing. She will be giving evidence in an environment which she now calls home, and with her usual medical support readily available to her. With the best of intentions, this cannot be replicated if the hearing were to take place in Canberra.
Counsel for the second defendant suggested that if Canberra was not an appropriate place for the hearing to take place, it could take place in another city in Australia, or even in Southeast Asia. In my opinion, this suggestion does not address the concerns which I identified above. The plaintiff would still have to travel for the purposes of giving evidence about distressing matters in a foreign place where her usual support would not be available to her. In addition, lawyers involved in the case for both the plaintiff and the second defendant, together with myself and my staff, would still have to travel and be accommodated while the taking of evidence occurred.
For the purposes of the present application, and based upon the limited information then before me, I was satisfied of the following matters:
(a)the plaintiff suffers from post-traumatic stress disorder arising from a motor vehicle accident on 5 July 2009;
(b)there is a risk that her condition will be exacerbated if she is required to return to Australia to give evidence in any hearing of these proceedings;
(c)there is a risk that her ability to properly participate in any hearing may be adversely affected by any such exacerbation of her symptoms; and
(d)the risk of an exacerbation of her condition will be reduced by taking her evidence in London.
In addition, I have no doubt that both Dr Turner and Dr Mallett will be required for cross-examination, and both of these experts practice in the United Kingdom. It is also possible that other experts retained by the plaintiff may be required for cross examination, albeit that the second defendant does not, at the present time, consider that to be the case. All of those witnesses reside in the United Kingdom.
I accept that the orders which I made have the potential to increase the costs incurred in the present proceedings. The second defendant submitted that it would inevitably be required to pay those increased costs, as liability is not in issue. This is not necessarily the case. If liability is not an issue there is nothing stopping the second defendant from making an appropriate offer of settlement to the plaintiff, on the basis that if the plaintiff rejects the offer and receives a judgment less than the amount offered the second defendant will seek the costs of the proceedings from the date of offer, including those costs incurred in the taking of evidence in the United Kingdom. In this way, the second defendant may protect its position.
I was satisfied that it was in the interests of justice to make an order under r 6813 of the Court Procedures Rules that evidence be taken in London. While it is probable that the plaintiff, if forced to do so, would return to the ACT for any hearing in these proceedings, there is a real risk that her symptoms may be exacerbated and to such an extent as to affect her ability to properly participate in the hearing. I was satisfied that having regard to the interests of the parties to the proceedings, justice would be better served by making the order. For these reasons I made the orders that I did on 17 November 2017.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 19 February 2018 |
0
1