Harrod v MetLife Insurance Limited

[2019] NSWSC 28

Supreme Court

New South Wales

Medium Neutral Citation:	Harrod v MetLife Insurance Limited [2019] NSWSC 28
Hearing dates:	2 November 2018
Date of orders:	20 February 2019
Decision date:	20 February 2019
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Plaintiff must attend medical examination. Directions made for the future conduct of the proceedings.
Catchwords:	PRACTICE AND PROCEDURE – plaintiff refuses to submit to further medical examination – plaintiff required to submit to a medical examination as a condition of further pursuing proceedings.
Legislation Cited:	Civil Procedure Act 2005, ss 56, 57, 58 Insurance Contracts Act 1984 (Cth), s13 Practice Note SC Gen 10 Uniform Civil Procedure Rules 2005, Part 23
Cases Cited:	Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 KF by her tutor RF v Royal Alexandra Hospital for Children [2010] NSWSC 891 Rowlands v State of New South Wales (2009) 74 NSWLR 715
Category:	Procedural and other rulings
Parties:	Applicant/Second Defendant: MetLife Insurance Limited ABN 75 004 274 882 Respondent/Plaintiff: Jenny-Lee Harrod First Defendant: FSS Trustee Corporation
Representation:	Counsel: Plaintiff: T. Ower Second Defendant: S. J. Walsh   Solicitors: Plaintiff: Stuart Gray, Cardillo Gray Partners Second Defendant: Lisa Jane Norris, TurksLegal
File Number(s):	2016/317964
Publication restriction:	No

Judgment

1. The plaintiff, Jenny-Lee Harrod, joined the New South Wales police force in February 1996. She continued in the police service until July 2010. She was medically discharged from the service on 1 September 2011. She claims that she suffers from post-traumatic stress disorder (“PTSD”) initiated by events during her police service.

2. Her Statement of Claim in these proceedings pleads against the first defendant, FSS Trustee Corporation (“FSS”) and against the second defendant, MetLife Insurance Ltd (“MetLife”), that she qualifies as totally and permanently disabled under policies of insurance (known as a “Basic” policy and a “Blue Ribbon” policy) issued by MetLife to FSS for the benefit of New South Wales police officers, such as the plaintiff.

3. The plaintiff discontinued these proceedings against FSS. She now pursues her case against MetLife. She claims that MetLife on 5 June 2013, 9 October 2014 and 23 June 2015 refused (via FSS) her claims for TPD benefits that she says are payable to her. She pleads that MetLife’s failure to pay these benefits breached its duty to act with utmost good faith under the Insurance Contracts Act 1984 (Cth), s 13, and was a breach of its contractual policy obligations owed to FSS for the benefit of the plaintiff. MetLife contests these allegations.

4. MetLife now seeks by motion to require the plaintiff to be medically examined by a psychologist, Professor Mattick. The plaintiff resists this course on the various grounds elaborated in this judgment. The Court concludes on the motion that the plaintiff should be examined by Professor Mattick and gives directions for the further conduct of these proceedings.

5. Mr T. Ower of counsel, instructed by Stuart Gray of Cardillo Gray Partners, appears for the plaintiff. Mr S. J. Walsh of counsel, instructed by Lisa Jane Norris of TurksLegal, appears for the second defendant, MetLife.

6. Resolution of the motion requires a short further overview of the procedural history of the plaintiff’s claim and of the proceedings.

Jenny-Lee Harrod, the New South Wales Police Force and MetLife

7. The plaintiff was born in July 1971 and was 47 at the time that the motion was heard. She attested as a constable in the New South Wales Police Force in February 1996, at the age of 25. But due to the stressful nature of her work, and a number of traumatic incidents in which she claims she was involved, she was unable to continue her duties with the police. Her last day of police duty was on 6 July 2010. She was then 39.

8. She was not medically discharged from the police until 1 September 2011. She lodged a claim for TPD benefits with FSS on 22 December 2011.

9. The plaintiff’s claim has a complicated history. FSS forwarded the claim to MetLife in April 2012. MetLife first declined the claim on 5 June 2013. FSS asked MetLife to review its first decision. But MetLife declined the plaintiff’s claim again on 9 October 2014. MetLife was again asked to review its decision, but declined the plaintiff’s claim for a third time on 23 June 2015.

10. Despite the plaintiff’s claim being declined three times, she did not commence litigation immediately. Rather, on 17 August 2016, the plaintiff’s solicitors requested the referral of the dispute to the Claims Review Committee (“CRC”), a three member body established as an arbitral mechanism under MetLife’s policies. Following this CRC referral, MetLife requested further information from the plaintiff on 4 October 2016.

11. But the plaintiff did not wait for the CRC’s determination. On 25 October 2016, she filed her Statement of Claim commencing these proceedings. By then, Messrs TurksLegal solicitors were engaged on behalf of MetLife. MetLife’s further request for information of 4 October 2016 was as yet unsatisfied. So on 12 October 2017, TurksLegal reiterated MetLife’s information request.

12. The proceedings came before the Court for directions on 20 April 2017, when consent orders were made for both parties to file evidence and for the matter to be re-listed for directions on 10 August 2017. On 17 August 2017, MetLife filed a motion seeking a medical examination of the plaintiff by Dr Timmins, a psychiatrist, and Professor Mattick, a clinical psychologist.

13. The plaintiff also filed a motion on 15 September 2017, seeking to compel MetLife to refer the claim to the CRC (under condition 9.1 of the Blue Ribbon Policy and condition 18.1 of the Basic Policy). The referral sought was of the dispute arising out of MetLife’s declining of her claim on each of the occasions in 2013, 2014 and 2015.

14. Both contested motions came before Parker J on 26 September 2017. After discussions between counsel, the motions resolved by consent on 26 September 2017. The proceedings were settled on the following bases: (1) the plaintiff would attend a medical examination with Dr Timmins; (2) MetLife would refer the plaintiff’s claim to the CRC; and (3) the implied undertaking to use Dr Kneebone’s report and other documents produced under subpoena in the proceedings only for the purposes of those proceedings, was waived so that the documents could be relied upon by the parties before the CRC. Parker J made consent orders to this effect.

15. But the resolution of the competing motions on 26 September 2017 did not expressly deal with the question of a further consultation with Professor Mattick. The resolution involved the plaintiff attending MetLife’s arranged examination of a psychiatrist (Dr Kneebone, because Dr Timmins was unavailable) and MetLife agreed to refer the plaintiff’s dispute to the CRC. The motions were otherwise disposed of without any clear reference to what was to happen with the proposal for the plaintiff to see Professor Mattick.

16. As will be seen, this outcome was interpreted in different ways by the plaintiff and by MetLife. MetLife interpreted the consent orders as leaving its options open, as to whether it would require the plaintiff later to attend upon Professor Mattick. MetLife understood that its request for the plaintiff to be examined by Professor Mattick had been deliberately left in abeyance pending receipt of Dr Kneebone’s report and the CRC decision; the logic apparently being that if the CRC decision was adverse to MetLife then further expenditure on consulting Professor Mattick may not have been necessary.

17. But the plaintiff’s lawyers’ had quite a different interpretation of events. Their present submissions show that they regarded Parker J’s orders as meaning that MetLife had wholly abandoned attempts to have the plaintiff attend upon Professor Mattick. But this misunderstanding was concealed by events. It only became evident upon MetLife filing the motion now before the Court.

18. On 19 October 2017, the plaintiff attended a medical examination with Dr Kneebone. He reported on 15 February 2018 upon her. He provisionally diagnosed that she suffered from PTSD, a Major Depressive Disorder and Alcohol Use Disorder, all based upon her reported history and symptoms. But he did note that the diagnosis of PTSD was based almost entirely upon her subjective report of symptoms. Dr Kneebone stated that the plaintiff appeared to be suffering from a general psychiatric disorder, but he did consider that objective measurements of her neuropsychological functioning were required in order to assess her cognitive function accurately and to exclude the possible exaggeration of reported symptoms. It is that recommendation that ultimately led to the filing of MetLife’s present motion for examination by Professor Mattick.

19. The CRC considered the plaintiff’s claim on 12 July 2018. But the CRC was unable to act. It noted that MetLife had not as yet reached a determination in response to the plaintiff’s present request for reconsideration. It noted that the CRC’s failure to reach a determination was because of the outstanding examination with Professor Mattick and a related vocational assessment.

20. MetLife’s solicitors once again requested the plaintiff to attend an examination with Professor Mattick and it filed its present motion on 13 July 2018.

The Power to Order Medical Examinations

21. It is not in dispute on this motion that MetLife’s request for the plaintiff to be ordered to attend a medical examination is within the Court’s powers under the Uniform Civil Procedure Rules 2005 (“UCPR”), Part 23. The requirements of that rule are satisfied in this case. The plaintiff’s physical and mental condition is in issue. Professor Mattick is a medical expert. Notice for a medical examination has been given. The real issue here is whether, in the circumstances, the Court should exercise its discretion pursuant to UCPR, r 23.4 to order an examination. UCPR, r 23.4 provides as follows:

“23.4 Order for examination

(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.”

22. The power granted to the Court under UCPR, r 23.4 is discretionary and is to 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 [2010] NSWSC 891 (“Royal Alexandra Hospital”) at [21] and the discretion is to be exercised in accordance with Civil Procedure Act 2005 (“CPA”), ss 56, 57, and 58; Rowlands v State of New South Wales (2009) 74 NSWLY 715; [2009] NSWCA 136 (“Rowlands”) at [10] per Hodgson JA. A defendant, such as MetLife, that has been sued in an action by a plaintiff, who claims some mental or physical impairment or medical condition, is entitled to take reasonable steps, including the use of the UCPR, r 23.4 powers to ensure that the issues that may bear upon the determination of the proceedings are assessed by independent expert evidence, so that the trial judge is in a position to determine the real issues in dispute: Royal Alexandra Hospital at [46]. Provided the examination is sought for a legitimate purpose and the evidence is likely to be material to an issue in dispute, the order should ordinarily be made: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150.

The Parties’ Submissions and Issues for Determination

23. The parties’ submissions may be shortly summarised. The Court has generally found MetLife’s submissions are more persuasive. Therefore, for convenience, these reasons first set out the plaintiff’s arguments and then MetLife’s response.

24. First, the plaintiff contends that Parker J’s orders lead to an estoppel. The plaintiff argues, having abandoned a motion in September 2017 for the plaintiff to attend upon Professor Mattick, that MetLife “should be estopped by its conduct in pursuing the order now sought”.

25. Interlocutory determinations do not create estoppels. Parker J’s consent orders made on 26 September 2017 do not found any estoppel preventing MetLife from later pursuing a motion to have the plaintiff examined by Professor Mattick. Indeed, Mr Ower of counsel, appearing for the plaintiff, recognised this in the course of oral submissions and ultimately did not press the estoppel argument.

26. But the point is well made to a more limited extent. A party would ordinarily have to abide the outcome of an interlocutory application, unless there is a change of circumstances. Mr Walsh of counsel representing MetLife, argued that Dr Kneebone’s recommendation of further testing by Professor Mattick qualifies as such a change of circumstances. In my view, it does so qualify. The consent orders were made by Parker J on 26 September 2017. The plaintiff attended upon Dr Kneebone pursuant to those orders on 19 October 2017 and Dr Kneebone thereafter reported. Although MetLife had insight into the likelihood that a report from Professor Mattick might be necessary, Dr Kneebone’s report is a sufficient basis for MetLife to be required to look at the matter afresh and qualifies, in my view, as a change of circumstances. This also answers the plaintiff’s contention that MetLife’s current motion is just a re-run of the previous motion before Parker J.

27. Secondly, the plaintiff was critical of the CRC’s resolution of 12 July 2018. The plaintiff argues that the CRC did not deal with the plaintiff’s requests of 17 August 2016 to refer the existing dispute about the payment of TPD benefits to the CRC. The actual text of the CRC’s resolution of 12 July 2018 is as follows:

“a.   MetLife has not determined Ms Harrod’s request, dated 21 June 2016, to reconsider her claims due to outstanding information which includes MetLife’s request for her to attend a medical examination with Professor Mattick and an examination with a vocations assessor; and

b.   The policy should respond against the claim.”

28. The plaintiff’s submissions can be accepted that this resolution does not deal in terms with the plaintiff’s request of 17 August 2016 for the matter to be referred to the CRC. The plaintiff’s contention is that the settlement of the motion before Parker J involved MetLife promising to agree for the plaintiff’s claim to be referred to the CRC and abandoning the request for a medical examination by Professor Mattick, provided the plaintiff submitted to examination by Dr Timmins (later Dr Kneebone).

29. But the fact that the CRC did not fully deal with the plaintiff’s claim on 12 July 2017 is somewhat beside the point. MetLife is not responsible for what the CRC did. The CRC, an independent body, reacted not unreasonably to the apparent uncertainty of information available to it in the absence of Professor Mattick’s report. The plaintiff further argues that the CRC is to be criticised because MetLife had already abandoned its request for Professor Mattick to examine the plaintiff. But the answer to that contention lies in the third point raised by the plaintiff.

30. Before dealing with the plaintiff’s third contention, another aspect of the CRC deserves mention. The plaintiff incidentally complained about procedural unfairness in the CRC’s decision. But even if such unfairness were established, it is not something that can be laid at MetLife’s door, or which assists the plaintiff to stop MetLife having her medically examined by Professor Mattick. CRC is an independent body.

31. Thirdly, the plaintiff contends that MetLife abandoned its motion to have the plaintiff examined by Professor Mattick, as part of an agreed settlement of those competing motions and that settlement is binding upon it.

32. This argument is not persuasive. The 26 September 2017 consent orders that Parker J made do not contain a promise that MetLife no longer intends to pursue an examination by Professor Mattick. In the absence of such express agreement, what happened on 26 September 2017 can best be construed as a withdrawal for the time being of the request for examination by Professor Mattick, but leaving open the possibility that if circumstances changed the request might be renewed. That is indeed what has since happened.

33. Fourthly, the plaintiff complains that if an order is made for her to be examined by Professor Mattick, that will occasion delay in the proceedings being set down for hearing. The issue is not so much delay in obtaining an appointment to see Professor Mattick. The concern is rather that once Professor Mattick has administered his tests, a standard waiting period is required before another psychologist can reliably administer similar tests. This further period is necessary to prevent a test subject “learning” from the previous test. This additional delay period is said to be in the order of about six months.

34. This argument is not persuasive. In the overall timeframe of this case, a further delay of up to six months is unfortunate but not a decisive consideration. The plaintiff was medically discharged from the police service over seven years ago. But she did not commence these proceedings until over two years ago. She chose to have MetLife review its decision three times rather than immediately commence proceedings after MetLife declined on the first occasion. To some extent, the delay that has occurred already arises because of these tactical decisions on the plaintiff’s part and was not caused by MetLife.

35. That being said, a further six months’ delay is objectively undesirable. But it may well be possible to set these proceedings down for hearing well before the last reply medical examination takes place by a psychologist, who is seeking to provide an opinion potentially to answer Professor Mattick. That examination can then take place just before the hearing. And of course the possibility exists that an answer may not be needed to Professor Mattick, so no delay will occur anyway.

36. Fifthly, the plaintiff says that the tests sought to be administered by Professor Mattick cannot be advanced in reply to any expert evidence being relied upon the plaintiff. But even if this is correct, it is not an answer to the motion for examination. Dr Kneebone has said the examinations are necessary. Even if they are not in reply to existing evidence from the plaintiff, they may in turn generate a reply by the plaintiff. One way or another, the parties will be at issue at trial with respect to Professor Mattick’s examination.

37. Sixthly, the plaintiff says that, because the tests are likely to be used to assess the plaintiff’s credibility, that is a collateral purpose for requiring medical examinations which are only permitted to be undertaken for matters in issue.

38. But a proper reading of Rowlands answers this point. Provided a medical examination is undertaken for a purpose relating to a matter in issue in the proceedings, there is no objection to the conduct of the examination that it may also incidentally be used to challenge a plaintiff’s credibility. Medical reports are not uncommonly used in litigation as a basis for challenging a plaintiff’s credibility. The critical question is whether they satisfy the test that they go directly to a matter in issue. In this case, Dr Kneebone has sufficiently explained the relevance of Professor Mattick’s examination to the issues in the proceedings.

39. The plaintiff’s seventh point is that Professor Mattick is not a neuropsychologist, but is a clinical psychologist. The plaintiff submits that Dr Kneebone’s recommendation is that the plaintiff be seen by a neuropsychologist, and that therefore that Professor Mattick is not an expert who satisfies Dr Kneebone’s recommendation.

28. But the evidence is sufficient to establish that a clinical psychologist, such as Professor Mattick, can undertake the kind of tests that Dr Kneebone recommended in his report of 1 February 2018. In his letter of 5 August 2016, Professor Mattick explains the differences between, and the overlap between, the expertise involved in neuro-psychological examinations and clinical psychological examinations. He acknowledges the different skill sets of the two. But he explains that, depending on the patient and the presenting problems, “the methods that [each] uses quite rightly overlap slightly.” The proposed examination of the plaintiff lies in the area of overlap and Professor Mattick is willing to examine the plaintiff on that basis.

29. Finally, the plaintiff submits that the plaintiff’s own treating psychiatrist says the proposed testing by Professor Mattick would be “highly destructive to her mental state” and unlikely to provide medical results. The Court has not had the advantage of being able to test Dr Wade’s opinion and it is not practicable, acting consistently with the dictates of Civil Procedure Act s 56, 57 and 58, for the Court to have a mini-trial of that issue on this motion. So the Court must decide this motion in the most efficient way possible on the available evidence. On the one side, the Court has Dr Wade’s opinion that predicts deleterious consequences. On the other side, the Court has three matters that can be weighed in the balance the other way: (1) in the exercise of his professional medical expertise Dr Kneebone recommends this examination; (2) Professor Mattick is prepared to undertake it within his own professional expertise as a psychologist; and (3) the examination technique that Professor Mattick proposes to use is not uncommonly used by psychologists.

30. The Court must do the best it can on these materials without conducting a mini-trial of the issue. In my view, there is an insufficient basis in Dr Wade’s evidence not to order examination on that ground. And of course it is to be expected that Professor Mattick will proceed carefully and be mindful of Dr Wade’s opinion about the possible risks associated with such an examination.

31. For these reasons, the Court will order that the plaintiff be medically examined by Professor Mattick.

Other Directions

44. The Court raised with the parties the issue of the numbers of medical reports that have been generated on both sides of these proceedings. The multiplicity of reports is an unfortunately common feature of litigation of this type, against insurance companies offering TPD benefits to superannuation insurers.

45. One does not have to go far to understand why such a multiplicity of reports arises in these cases. Whilst before proceedings are commenced, the generation of medical reports is an incident of the business processes of MetLife, only after the litigation is commenced do the provisions of the UCPR apply, limiting the number of medical reports that a party may adduce in their case: UCPR, rr 31.2(3) and 31.2(4) and Practice Note SC Gen 10.

46. Here, discussions took place with the parties at the hearing about the reduction in numbers of experts to be called on each side of the litigation. There was some dispute about which experts should be called. Directions were given and the parties advanced proposals as to which experts they would rely upon. But upon further reflection on the issue after the hearing of the motion, the Court considers that a narrowing of the numbers of experts to be relied upon at the hearing can really only take place once the full range of medical and psychologists evidence is available, which will now not occur until much closer to the hearing. The parties should draw this issue to the trial judge’s attention, after the matter is set down for trial.

Conclusions and Orders

47. In the result, the Court will order that the plaintiff be required to be medically examined by Professor Mattick. MetLife has been substantially successful on the motion in these proceedings. Costs would normally follow the event. Unless a special costs order is sought (and it must be applied for within seven days), the order of the Court will be that the plaintiff pay MetLife’s costs of the motion.

48. Accordingly, the Court’s orders and directions are:

1. Order the plaintiff to attend for a medical examination before Professor Mattick at a time to be arranged.

2. Order the plaintiff to pay the second defendant’s costs of the second defendant’s motion of 13 July 2018.

3. Order 2 will be stayed if either party files a motion seeking a special costs order within seven days of these orders.

4. List the proceedings for further directions before the Registrar in Equity on 27 February 2019.

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Decision last updated: 20 February 2019