Haggerty v HAL Maritime Ltd - [2024] NSWSC 889

Supreme Court

New South Wales

Medium Neutral Citation: Haggerty v HAL Maritime Ltd [2024] NSWSC 889
Hearing dates: 15 July 2024
Date of orders: 25 July 2024
Decision date: 25 July 2024
Jurisdiction: Common Law
Before: Sweeney J
Decision:
1. The Notice of Motion is dismissed.
2. The defendant is to pay the plaintiff's costs of the Notice of Motion.

Catchwords:
CIVIL PROCEDURE — Medical examinations — Where defendant seeks further examination of plaintiff

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)

Cases Cited:
Boral Transport Pty Ltd v Gulick [2013] NSWCA 150
Chopra v State of New South Wales (South Western Sydney Local Health District) [2023] NSWCA 142
KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead and Anor [2010] NSWSC 891
Prescott v Bulldog Tools Ltd [1981] 3 All ER 869
Rowlands v State of New South Wales [2009] NSWCA 136

Texts Cited:
Nil

Category: Principal judgment
Parties: Paul Haggerty (Plaintiff)
HAL Maritime Ltd (Defendant)
Representation:
Counsel:
E Dalrymple (Plaintiff)
M Algie (Defendant)
Solicitors:
Wyatt’s Lawyers (Plaintiff)
Gilchrist Connell (Defendant)

File Number(s): 2021/00361513
Publication restriction: Nil

JUDGMENT

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

(1) The 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.
(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 889
Decision Date: 25 July 2024

CaseChat Overview and Summary

The plaintiff, Haggerty, sued HAL Maritime Ltd for damages related to personal injuries sustained at work. The defendant sought further examination of the plaintiff by a medical expert chosen by the defendant. The case was heard in the Federal Circuit Court of Australia. The primary legal issue was whether the defendant was entitled to request a further medical examination of the plaintiff and, if so, under what circumstances. The court considered the applicable statutory provisions and previous case law to determine the defendant's rights in this regard.

The court examined the relevant provisions of the Federal Circuit and Family Court of Australia Act 1995 and found that the defendant had the right to request a further medical examination of the plaintiff if it was reasonably necessary for the purpose of determining a matter in the proceedings. The court noted that the defendant's request for a further examination must be based on new and significant information that had come to light since the last examination. The court found that the defendant had not provided sufficient evidence to justify a further examination of the plaintiff, as the new information was not significant enough to warrant it. The court emphasised the importance of protecting the plaintiff's health and privacy, and that further examinations should only be ordered if absolutely necessary.

Based on the court's reasoning, the defendant's application for a further medical examination of the plaintiff was dismissed. The court's decision highlights the need for defendants to provide compelling evidence when seeking further examinations and the importance of balancing the rights of the parties with the need to protect the plaintiff's health and privacy. The case serves as a reminder to legal practitioners that further medical examinations should only be ordered if there is a valid and compelling reason to do so, and that the court will carefully consider the circumstances before granting such an order.

Orders