Jafari v Khoury and McDonalds Australia Ltd

[2019] NSWDC 394

District Court

New South Wales

Medium Neutral Citation:	Jafari v Khoury & McDonalds Australia Ltd [2019] NSWDC 394
Hearing dates:	19 July 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [69] for orders.
Catchwords:	PRACTICE & PROCEDURE – dismissal of first defendant’s motion seeking an order pursuant to UCPR r 23.4 that the plaintiff submit to psychometric testing – order pursuant to UCPR r 31.20(j) for expert witness to prepare a single report consolidating opinions contained in a series of reports
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), s 58(2) Motor Accidents Compensation Act 1999 (NSW), s 86 Motor Accidents Guidelines, 10.4, 10.5 Uniform Civil Procedure Rules 2005, r 23.2, r 23.3, r 23.4, r 31.20, r 31.27, Sch 7 cl 5(c)
Cases Cited:	Al Amnash v Australia Wide Transport and Logistics Pty Ltd [2018] NSWDC 505 Brighton v Traino [2019] NSWCA 168 Cosgrove-Kaye and Comcare (Compensation) [2019] AATA 1238 Martin v TAL Life Limited, [2015] VCC 1283 Nominal Defendant v Adilzada [2016] NSWCA 266 Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 Vincent v SAS Trustee Corporation [2016] NSWDC 73
Texts Cited:	Peter W Huber, Galileo’s Revenge : Junk Science in the Courtroom (1991, Harper Collins)
Category:	Procedural and other rulings
Parties:	Farahnaz Jafari (Plaintiff) Michael Khoury (First defendant) McDonalds Australia Ltd (Second defendant)
Representation:	Counsel: Mr J A Stone SC with Ms J Gumbert (Plaintiff) Mr K Rewell SC (Defendant/Applicant)   Solicitors: Sanford Legal (Plaintiff) Moray & Agnew (Defendants)
File Number(s):	2017/286869
Publication restriction:	None

Judgment

Table of Contents

Background to notice of motion	[1]
Interlocutory issue for determination	[2] – [9]
Orders sought by the first defendant	[10]
Evidence	[11] – [15]
Factual background to the notice of motion	[16] – [23]
Precipitating factual events behind this application	[24] – [25]
Further factual matters emerging from evidence of Ms Burrows	[26] – [27]
Mr George Haralambous, clinical psychologist	[28] – [31]
Relevant legislation	[32] – [35]
Authorities cited	[36] – [37]
Consideration	[38] – [51]
Plaintiff’s criticisms of Mr Haralambous’ evidence in other cases	[52] – [53]
Determination	[54] – [59]
Conclusion	[60] – [64]
Case management directions	[65] – [66]
Disposition	[67]
Costs	[68]
Orders	[69]
Directions	[70]

Background to notice of motion

1. In the substantive proceedings, the plaintiff, Mrs Farahnaz Jafari, claims damages for alleged negligence against Mr Michael Khoury, the first defendant, and McDonalds Australia Limited, the second defendant, in respect of alleged physical and psychological injuries. The plaintiff claims that the first defendant was the driver of a motor vehicle that struck her whilst she was a pedestrian in the second defendant’s car park. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 (NSW), the Civil Liability Act 2002 (NSW) and the procedural provisions of the Uniform Civil Procedure Rules 2005 (NSW).

Interlocutory issue for determination

2. By notice of motion filed by the first defendant on 27 May 2019, and amended by leave during the course of the hearing of that motion on 22 July 2019, the first defendant seeks to compel the plaintiff to attend an appointment with Mr George Haralambous, a clinical psychologist, for 6 hours of proposed psychological testing.

3. In the factual circumstances in which this notice of motion arises and which will shortly be described, the plaintiff objects to being compelled to attend any appointment with a psychologist, and in particular, with Mr Haralambous.

4. This interlocutory dispute arises against a background where, at the request of the first defendant, the plaintiff has already been examined 3 times for medico-legal purposes by a consultant psychiatrist, Dr Graham Vickery. The plaintiff has already also undergone a psychiatric assessment by a MAS Assessor, and that assessment has been considered by a MAS Review Panel of three independent psychiatrists. None of those psychiatrists have required psychometric testing of the plaintiff before expressing their opinions and their diagnoses.

5. The first defendant now seeks to have the plaintiff psychologically examined for the stated purpose of possibly benefitting or clarifying an already identified medical diagnosis of chronic adjustment disorder. This is in circumstances where Dr Vickery, who made that diagnosis, has already concluded that, based on viewing surveillance material and asserted inconsistencies in the plaintiff’s presentation, in his opinion the plaintiff was malingering. Whether that alleged malingering was thought to be conscious or subconscious was not stated by Dr Vickery.

6. The first defendant now wishes to test the validity of the plaintiff’s presenting complaints by means of a psychologist administering psychometric tests.

7. The plaintiff argues that the Court’s power as conferred by UCPR r 23.4, to compel a medical examination, which has been defined to include a psychological assessment, should only be used in circumstances when it is necessary to assess a person’s physical or mental condition, and not for the purpose of assessing or attacking the general credibility of a party, as the defendant seeks to achieve by this notice of motion: Rowlands v State of New South Wales [2009] NSWCA 136.

8. The plaintiff argues that the first defendant is seeking to make an impermissible collateral attack upon her credibility by means of psychometric testing. Consequently, the plaintiff submits that, consistent with binding appellate authority, and also consistent with other decisions of this Court, such a course should be disallowed.

9. In summary, I have concluded that the plaintiff’s objection to the course proposed by the first defendant should be upheld. The first defendant’s motion should therefore be dismissed, for the reasons that follow.

Orders sought by the first defendant

10. The first defendant’s amended notice of motion seeks the following orders:

“1.   The Plaintiff attend an appointment to be assessed by Mr George Haralambous, Psychologist.

1A. Pursuant to Uniform Civil Procedure Rules r.23.4. the Plaintiff is to attend upon Mr George Haralambous. Clinical Psychologist, for psychometric testing on a date to be arranged and the First Defendant is to provide an interpreter in the Farsi language for the purposes of such testing.

2.   The First Defendant be given leave to serve the report of Mr Haralambous within 4 weeks of receipt of same.

3.   The Plaintiff pay the first defendant's costs of the Notice of Motion.

4.   Any other order the Court sees fit.”

Evidence

11. Initially, the plaintiff called no evidence on the motion. That position changed after a solicitor for the first defendant was cross-examined about the process by which the first defendant made an appointment for Mr Haralambous to examine the plaintiff.

12. The first defendant had previously indicated that it intended to rely upon an affidavit sworn by Mr Peter Utiger on 23 May 2019. Mr Utiger is the solicitor on the record for the first defendant. That affidavit was withdrawn by the first defendant on 25 June 2019, when the plaintiff’s legal representative advised that Mr Utiger was required to attend at the hearing of the motion to be cross-examined: Annexure “L”, Affidavit of Ms Burrows, p 127.

13. Instead of reading the affidavit of Mr Utiger, the first defendant read the affidavit of Ms Kathryn Burrows, sworn on 5 July 2019. She is the solicitor with day-to-day carriage of the first defendant’s defence to the plaintiff’s claim. She works under the supervision of Mr Utiger.

14. Ms Burrows was cross-examined at the hearing on the sequence of factual matters that had led to the filing of the present motion. Her evidence will be analysed after reviewing the medical evidence. At this point, it is sufficient to say it is plain that the forensic decision to make an appointment with Mr Haralambous was driven by the first defendant’s legal representatives. It was not a suggestion that had originated from a medical practitioner or a medico-legal expert.

15. Consequent upon the evidence of Ms Burrows, to complete the picture, the plaintiff tendered paragraphs 14, 17, 18 and 19 of Mr Utiger’s affidavit sworn on 23 May 2019. Those paragraphs were in the following terms:

“…

14.   I understand and verily believe that Mr Haralambous is (sic) clinical and forensic psychologist qualified to administer psychometric testing designed to assess effort and determine if a claimant is malingering.

…

17.   I understand and verily believe, on the basis of information provided to me by Mr Haralambous in other cases, that the Structured Inventory of Malingered Symptomatology (SIMS) is a highly sensitive and valid item, multi-axial, self-administered measure for the detection of malingered psychological pathology that has been the subject of extensive peer review and meta-analysis.

18.   I understand and verily believe, on the basis of information provided to me by Mr Haralambous in other cases, that the Test of Memory Malingering (TOMM) is a symptom validity test, a commonly used paradigm for assessing the validity of concentration and memory complaints, which involves the presentation of a set of stimuli followed by a forced-choice recognition test.

19.   I understand and verily believe, on the basis of information provided to me by Mr Haralambous in other cases, that the Word Memory Test (WMT) is also a symptom validity test that is commonly used to assess the validity of memory complaints through the immediate and delayed recognition of word-pairs.”

[Emphasis added]

Factual background to the notice of motion

16. In addition to the plaintiff’s claim of having sustained physical injuries, she has also particularised a claim that as a result of the subject accident, she has suffered from depressed mood, demotivation, and impairment of her attention and concentration: Annexure “B”, Affidavit of Ms Burrows, p 14.

17. Prior to the first defendant seeking to have the plaintiff examined by Mr Haralambous, and in preparation for the defence of the plaintiff’s claim, the first defendant has obtained a total of 14 medico-legal reports relating to the plaintiff. These are from Dr Brian Noll, an orthopaedic surgeon (30 August 2016, 31 October 2016, 14 November 2017, 21 February 2019), Dr Margaret Gibson, an occupational physician (10 February 2016, 19 April 2016, 8 May 2016, 28 March 2019) and Dr Graham Vickery, a consultant psychiatrist (6 June 2016, 6 March 2016, 16 October 2017, 29 March 2018, 21 March 2019 and 9 May 2019). Those reports are in addition to a series of MAS assessments that are available to the parties.

18. In his report dated 21 March 2019, Dr Vickery expressed the opinion that the plaintiff’s complaints relevant to his specialist examination were due to anxiety, and appeared excessive. However, he nevertheless identified his unqualified diagnosis to be that the plaintiff had a chronic adjustment disorder. He also concluded that the plaintiff had no psychological incapacity for employment.

19. Prior to Dr Vickery’s re-examination of the plaintiff that led to him preparing his report dated 21 March 2019, his fifth report, the solicitor for the first defendant had asked him to in effect interrogate the plaintiff on matters that were said to amount to inconsistencies relating to her account of the events of the accident, in view of what was thought to be shown on some CCTV footage of the events surrounding the accident.

20. In response to that request, properly, Dr Vickery declined to undertake that task, and indicated he was of the view that the suggested questioning “was inappropriate due to the high levels of distress Ms Jafari demonstrated on the assessment”. The course suggested by the solicitor for the first defendant was a plainly inappropriate method of gathering evidence to attack the plaintiff’s liability case under the guise of a medical examination.

21. The CCTV footage referred to in Dr Vickery’s fifth report was not tendered at the hearing of the present motion. It was not clear on the evidence as to what Dr Vickery had actually been given in that regard, as the letter of instruction sent to him by the solicitor for the first defendant was not in evidence.

22. Other relevant background circumstances are that between 21 January 2018 and 12 February 2018, on a total of 7 days in that period, the first defendant had undertaken surveillance of the plaintiff for a total of 42.25 hours. In that time, on 7 February 2018, 8 February 2018 and 12 February 2018, the plaintiff was sighted, and a total of approximately 98 minutes of video evidence was obtained. The related report of AHC Investigations Strategy Systems Solutions dated 16 February 2018 which described that surveillance, incorporated copies of 9 still photographs of the plaintiff and annexed some related observation logs: Annexure, Affidavit of Ms Burrows, pp 73 – 84.

23. That surveillance footage, as described, reportedly showed the plaintiff driving with children in her vehicle, briefly bending in a grocery store, attending a beauty salon, and sitting at a table in a food court, taking her children to a fast food outlet owned by the second defendant, and variously, driving, sitting and using a mobile telephone.

Precipitating factual events behind this application

24. The critical timeline of events which form the backdrop to the current interlocutory dispute is as follows:

1. On 6 June 2016, at the request of Mr Utiger, the plaintiff was first examined by Dr Vickery. In his report which followed that consultation, Dr Vickery identified and explained his opinion and diagnosis as being that the plaintiff had chronic adjustment disorder with anxiety and depressed mood: Annexure “F”, Affidavit of Ms Burrows, pp 85 – 93;

2. On 16 October 2017, at the request of Mr Utiger, the plaintiff was examined by Dr Vickery for a second time. In his report which followed that examination, Dr Vickery considered that the plaintiff’s “psychological injury” was due to the subject accident, and that she has developed an associated somatoform chronic pain disorder involving significant distress and with incapacity in general functioning. He considered that her anxiety and depression was as a direct result of the accident. His formal diagnosis was stated to be somatoform chronic pain disorder and an adjustment disorder, for which he recommended psychiatric review in relation to implementing medication for her anxiety and depressed mood associated with that adjustment disorder;

3. On 29 March 2018, Mr Utiger asked Dr Vickery for a supplementary report in which he sought a comment from Dr Vickery as to his conclusions from some surveillance material and the consistency of what was shown in that material compared with the MAS assessment, the MAS Review Panel assessment and his own assessment. Although the letter of instruction is not in evidence tendered on this motion, the effect of the question that was asked of Dr Vickery is set out in the preamble to his report. Be that as it may, in response, Dr Vickery commented:

“…

It would appear there is no apparent restriction in Mrs Jarafi's (sic) daily activities. She appeared presentable and there was no noticeable impairment while carrying out these activities.

It is my opinion that Mrs Jafari is malingering in relation to the lack of veracity in the alleged restriction in her activities and it is my opinion on the basis of all of the information available that she does not have a diagnosable DSMIV/5 psychiatric diagnosis.”

[Annexure, Affidavit of Ms Burrows, pp 105 – 106]

4. At this point it is relevant to note that the absence of a diagnosable DSMIV/5 psychiatric diagnosis does not necessarily indicate the absence of a psychiatric diagnosis.

5. On 13 March 2019, the plaintiff was examined by Dr Vickery for a third time at the request of the solicitor for the first defendant: Unlettered Annexure, Affidavit of Ms Burrows, pp 107 – 114. In his ensuing 21 March 2019 report of that examination, Dr Vickery again reiterated his previous opinion and diagnosis that the plaintiff had a chronic adjustment disorder, notwithstanding his earlier comment about malingering;

6. On 20 March 2019, Mr Utiger sent a notice to the plaintiff’s solicitor in accordance with cl 10.4 and 10.5 of the Motor Accident Guidelines, asking that the plaintiff select one of three named psychologists for her to be examined by at the first defendant’s request. Those nominated persons were identified as Mr Haralambous, Ms Moodley and Ms Roberts. The requirement was for the plaintiff to make a selection from those names within 10 working days and to advise whether she required the examination to be held in conjunction with a psychologist of her own choice: Annexure “G”, Affidavit of Ms Burrows, p 117. That notice lapsed without a reply;

7. On 9 April 2019, pursuant to UCPR r 23.2, Mr Utiger sent the plaintiff’s solicitor a notice for the plaintiff to attend an examination by Mr Haralambous, which was scheduled for 28 May 2019, at a nominated time and place. The notice was not accompanied by any advance on expenses as contemplated by UCPR r 23.3;

8. On 15 April 2019, the solicitor for the plaintiff advised Mr Utiger that the plaintiff would not be attending the appointment with Mr Haralambous. The terms of the plaintiff’s refusal were clearly communicated as follows:

“…

Our client will not be attending this appointment. You recently had our client examined by Dr Vickery, Psychiatrist. We fail to see the need for her to be subjected to a further examination by a Psychologist, especially as you say that this appointment may take up to 6 hours.

If you insist on the claimant attending this appointment we suggest you file a Notice of Motion.”

[Annexure “I”, Affidavit of Ms Burrows]

9. By 15 April 2019, or very shortly afterwards, as a result of the plaintiff’s communicated refusal to attend on Mr Haralambous, the solicitor for the first defendant would without doubt have known that it would be necessary to obtain an order of the Court to require the plaintiff to be psychometrically tested if such an examination was to be insisted upon;

10. On 9 May 2019, some 18 days before the present motion was filed, under instructions from Mr Utiger, Ms Burrows made a telephone call, at an unstated time, to Dr Vickery’s rooms at an organisation called Medecins Legale. Dr Vickery’s reports were issued on the letterhead of that organisation. The sequence of relevant events concerning that call was as follows:

1. Ms Burrows telephoned Dr Vickery seeking to arrange a teleconference with him to obtain from him a report that would be supplementary to his report dated 29 March 2018. For that purpose, Ms Burrows spoke to Dr Vickery’s assistant or secretary. Ms Burrows’ file note of that conversation indicated that the topic for discussion was “Pl malingering”. Her pre-formulated question for Dr Vickery to consider was “whether he could be assisted in expressing his opinion by a report from a psychologist with psychometric testing”. This was in circumstances where he had already expressed his opinions;

2. Later that day, Dr Vickery’s secretary telephoned Ms Burrows for a discussion, and Ms Burrows’ note of that call was “something in writing or telephone ✓”;

3. Later again that day, Dr Vickery returned Ms Burrows’ call and a discussion then took place about a supplementary medical report. Ms Burrows made a note of the effect of that conversation as follows:

“Tel In – Dr Vickery.

Yes. Agrees will provide report.”

[Annexure “J”, Affidavit of Ms Burrows]

4. On 9 May 2019, Dr Vickery obliged the request made of him by Ms Burrows, and he wrote a short report to Mr Utiger in the following terms:

“In relation to the proposal of Mrs Jafari undergoing a psychological assessment it is my opinion this would be particularly beneficial in clarifying the diagnostic formulation, in the assessment liability and the level of impairment in view of the apparent inconsistency in relation to the history provided by Mrs Jafari and the observations on surveillance.

Please do not hesitate to contact me should you require further information or clarification of this report.”

[Unlettered Annexure, Affidavit of Ms Burrows, p 115)

25. Dr Vickery did not suggest that his opinion was no longer valid, or incomplete, or that he needed to have the plaintiff psychometrically tested.

Further factual matters emerging from the evidence of Ms Burrows

26. In her oral evidence, Ms Burrows acknowledged the following matters of significance to the pivotal issue raised in this notice of motion:

1. No medical practitioner who had examined the plaintiff had raised the suggestion for the plaintiff to have psychometric testing: T24.30 – T24.34;

2. The first defendant accepted that chronologically, the idea for the plaintiff to be psychometrically tested came from the defendant’s solicitors: T27.21 – T27.32;

3. Neither MAS Assessor Synott nor MAS Review Panel Assessors Parsonage, Anderson or Newlyn, all consultant psychiatrists, raised any need for psychometric testing in order to reach a diagnosis: T16.46 – T17.40; T18.36; T19.44;

4. Following the receipt of Dr Vickery’s 2018 report which first mentioned the notion of the plaintiff allegedly malingering, the first defendant’s solicitors suggested to the insurer that psychometric testing of the plaintiff be undertaken by a psychologist: T21.21 – T22.1;

5. By 20 March 2018, the first defendant’s solicitor had received instructions from the insurer to arrange for the plaintiff to be assessed by a psychologist for psychometric testing: T24.21 – T24.28; T26.16 – T26.22;

6. The stated reason the first defendant’s solicitors wanted the plaintiff to have psychometric testing of the plaintiff was to test the validity of her self-reported symptoms: T24.50 – T25.6; T31.50;

7. The understanding of the first defendant’s solicitor was that some of the tests contemplated tested personality, psychopathology, as well as inbuilt testing for malingering: T28.10 – T28.15;

8. The purpose of the proposed testing was to test for exaggeration of symptoms, and it was for the credibility of the presentation of symptoms (T32.11 – T32.17) but the main purpose was to test for the validity of symptoms: T32.20;

9. One of the tests contemplated, the TOMM test, was a test of memory malingering and for the assessment of the validity of concentration and memory complaints: T32.43; T33.25;

10. The proposed psychometric testing was thought to be for a period of 6 hours, but it could take longer if an interpreter was used: T34.44 – T45.25;

11. The first defendant’s solicitor’s decision to pursue psychometric testing appeared to be, but was not specifically stated to be, based on Dr Vickery’s view, following his consideration of the surveillance material, that in his opinion the plaintiff appeared to be malingering. The decision also appears to be based on the view that the MAS Review Panel had raised issues of inconsistency of the plaintiff’s presentation, which in turn raised the question of whether some additional testing should be carried out to assist the first defendant’s case: T42.30 – T42.45;

12. Ms Burrows had raised with Dr Vickery the question of whether he would be assisted in his opinion by a report from a psychologist with psychometric testing: T48.17 – T48.19; T48.49 – T49.2. The request did not come from Dr Vickery. Ms Burrows acknowledged that if Dr Vickery had answered unfavourably to the proposition that was put to him, the probability was that a supplementary report would not have been requested from him on that question: T50.39 – T50.49. She did not consider that the purpose of the exercise was to seek to bolster Dr Vickery’s opinion: T51.11 – T51.22. However, it is plain that was an objective of the exercise;

13. Ms Burrows was questioned about whether the test results from the proposed psychometric testing would be analysed by a computer programme. She was unaware of whether or not that would be the case: T34.33; T35.24; T35.29.

27. The present motion was drafted by Moray & Agnew without looking up the requirements of the Uniform Civil Procedure Rules, or consulting the commentary on UCPR r 23.4, as contained in the practice book known as Ritchie's Uniform Civil Procedure NSW, or undertaking any specific research on authoritative decisions concerning that rule. Instead, it appears that the proposed assessment was thought to be based on a power within s 86 of the MAC Act: T40.13 – T40.32; T41.14 – T41.25. That view was incorrect. No such power resided in s 86, as will be explained.

Mr George Haralambous, clinical psychologist

28. At some stage Mr Utiger had obtained a copy of the two page curriculum vitae of Mr Haralambous, a clinical psychologist whose work included forensic psychological and neuropsychological evaluations. His private practice includes psychological and neuropsychological assessments: Annexure “N” to the affidavit of Ms Burrows.

29. Mr Haralambous’ curriculum vitae, discloses that he has participated in some 12 published papers on various subjects between 1987 and 2013. Of particular relevance to the present dispute is a paper entitled “Making Sense of Mental Health Claims – The Value of Psychometric Assessment” – Haralambous, G, a paper presented to the Financial Services Council Life Insurance Conference, in Sydney on 21 March 2013. A copy of that paper, and another paper titled The Value of Psychometric Testing in the Assessment of Mental Illness presented at the Women in Life Discussion Forum, Mills Oakley Lawyers on 18 April 2013, are in evidence: Annexure “O”, Affidavit of Ms Burrows, pp 132 – 152.

30. Mr Haralambous’ curriculum vitae, does not disclose the method by which the results of psychometric tests are assessed or scored.

31. The papers cited state “The problem defined” as assessing “patient problems” and possible exaggeration of “purported disabilities” in the context of treatment, management, rehabilitation and “increasing health care and insurance costs”. In the cited papers, Mr Haralambous, proposed the use of psychological or psychometric testing to identify biased based self-presentation styles, including under-reporting and over-reporting or feigning of psychological symptoms. The paper also identified the availability of psychometric testing to “understand the person being evaluated”. The paper then went on to state:

“…

Some of the primary purposes of psychometric assessment are:

•   To describe current functioning, including the nature and severity of psychological disturbance, and the effects on cognitive abilities and capacity for independent living.

•   To confirm, refute, or modify the impressions formed by clinicians through their less structured interactions with claimants.

•   To aid in the differential diagnosis of psychological, neuropsychological, and psychiatric disorders.

•   To identify therapeutic needs, highlight issues likely to emerge in treatment or rehabilitation, recommend forms of intervention, and offer guidance about likely outcomes.

•   To manage risk, including minimisation of potential legal liabilities and identification of untoward treatment reactions.

There are several ways that psychometric assessments can circumvent the problems associated with more typical mental health evaluations that rely on interview only. These include:

•   psychometric assessments can measure a wide range of personality, cognitive, or neuropsychological characteristics simultaneously and, hence, can be inclusive and cover a range of functional domains, many of which might be overlooked during less formal evaluation procedures.

•   psychometric tests provide empirically quantified information, allowing for more precise measurement of patient characteristics than is usually obtained from interview alone.

•   psychometric tests have standardised administration and scoring procedures where, in essence, each claimant is presented with a uniform stimulus, presented, scored, and interpreted in a uniform way, that reduces legal and ethical problems because it minimises the prospect of unintended bias in observation.

•   psychometric tests are normed, permitting each claimant to be compared with a relevant group of peers, which in turn allows the clinician to formulate more accurately refined inferences about psychological strengths and limitations. Normed information potentially helps the clinician to more adequately consider how typical or unusual the claimant's complaints are, and allows for a more objective assessment of the degree of impairment, relative to both estimated levels of pre-morbid functioning and relevant peer groups.

How valid and reliable is this method of assessment?

Research confirms that there are inherent problems of relying on self-report in mental health claims. These problems include:

•   the susceptibility to errors of judgement and lack of reliability of opinions pertaining to psychological functioning when the opinions are based solely on a claimant's self-report (Borum, Otto, & Golding, 1993; Meyer et al., 2001; Rogers et al., 1993; Rosen and Phillips, 2004).

•   the ease with which a range of psychological disorders can be misrepresented (Burges & McMillan, 2001; Lees-Haley, 1997; Lees-Haley & Dunn, 1994; Mittenberg et al., 2002; Pope, Jones, and Jones, 1982; Ritson and Forrest, 1970; Rosenhan, 1973; Rosen and Phillips, 2004).

•   that compensation is related to increased reports of psychological dysfunction and decreased treatment efficacy (Mittenberg et al., 2002).

•   that even well-intentioned and experienced mental health practitioners can be easily misled (Faust et al., 1998; Grove et al., 2000, Sladeczek et al., 2006).

In contrast, the extensive array of research findings to date provides strong and compelling support for the value of psychometric assessment (Meyer et al, 2001, p. 144). For example, in their review of the literature, including meta-analytic reviews and several large scale studies, Meyer et al (2001) conclude that, while both psychometric and medical tests have varying degrees of validity, many psychometric tests, for example, the MMPI-2 scales for detecting misrepresentation of psychological complaints, have strong predictive validity that is comparable to many widely used medical diagnostic tests including CT scans for detecting metastases from head and neck cancer. Psychometric tests for detecting misrepresentation of psychological complaints, such as the MMPI-2 validity scales and the Test of Memory Malingering, have strong predictive validity and also satisfy strict criteria for admissibility of scientific evidence, such as Daubert Criteria. Furthermore, Meyer et al find that the validity coefficients for many psychometric tests (meaning their estimated degree of correlation with other relevant information) are indistinguishable from those observed with many medical tests. For example, the ability to detect dementia is at least as good with neuropsychological tests (r=0.68) as it is with MRI (r=0.57), and one finds similar results across a range of psychometric instruments designed to measure different aspects of psychological functioning and different manifestations of psychological pathology.

Final Considerations

Distinct assessment methods provide unique sources of data. Sole reliance on clinical interview alone in mental health claims often leads to incomplete understanding of claimants. Optimal knowledge in clinical or forensic practice is obtained from the sophisticated integration of information derived from a multi-method assessment approach that includes psychometric testing and which, if conducted in a timely manner, can maximise positive outcomes and reduce cost. However, although psychometric tests can assist clinicians and case managers with case formulation and treatment or other management recommendations, they are only tools. Assessment instruments do not think for themselves, nor do they directly communicate with patients or claimants. Like a stethoscope, a blood pressure monitor, or an MR1 scan, a psychometric instrument is a dumb tool, and the work of the tool cannot be separated from the sophistication of the clinician who draws inferences from it and then communicates with the patient or referring agent (Meyer et al, 2001).”

[Emphasis added]

Relevant legislation

32. Section 86 of the MAC Act provides as follows:

86 Medical and other examination of claimant

(1) A claimant must comply with any request by the person against whom the claim is made or the person’s insurer:

(a) to undergo a medical examination by one or more medical practitioners nominated by that person or insurer, or

(b) to undergo a rehabilitation assessment, an assessment to determine functional and vocational capacity or an assessment to determine attendant care needs, by an assessor nominated by that person or insurer, or

(c) to undergo an assessment in accordance with Motor Accidents Medical Guidelines,

not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.

(2) Any such examination or assessment is at the cost of the person who requests it. The claimant may decline to undergo the examination or assessment unless that person pays the claimant a reasonable sum to meet the reasonable and necessary costs and expenses incurred by the claimant in connection with the examination or assessment.

(3) A claimant must comply with any request by a medical assessor or the Authority to undergo a medical examination or an assessment by the medical assessor for the purposes of a medical assessment under Part 3.4.

(4) If the claimant fails without reasonable excuse to comply with such a request:

(a) the claim cannot be referred to the Authority for assessment under Part 4.4 and any such assessment cannot be continued while the failure continues, and

(b) court proceedings cannot be commenced or continued in respect of the claim while the failure continues.

(5) The regulations may prescribe a rate at which the cost of travel by any specified mode of transport is to be calculated for the purposes of the payment of travel costs under this section.

33. 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.

34. UCPR r 31.20(2)(j) provides as follows:

31.20 Court may give directions regarding expert witnesses

(1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.

(2) Directions under this rule may include any of the following:

(a) a direction as to the time for service of experts’ reports,

(b) a direction that expert evidence may not be adduced on a specified issue,

(c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court,

(d) a direction that expert evidence may be adduced on specified issues only,

(e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,

(f) a direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,

(g) a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue,

(h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue,

(i) any other direction that may assist an expert in the exercise of the expert’s functions,

(j) a direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.

35. UCPR r 31.27(4) provides as follows:

31.27 Experts’ reports

...

(4) If an expert witness changes his or her opinion on a material matter after providing an expert’s report to the party engaging him or her (or that party’s legal representative), the expert witness must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect containing such of the information referred to in subrule (1) as is appropriate.

Cited authorities

36. In the course of argument, I was referred to the following decided cases:

1. Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136.

2. Nominal Defendant v Adilzada [2016] NSWCA 266.

3. Vincent v SAS Trustee Corporation [2016] NSWDC 73.

4. Brighton v Traino [2019] NSWCA 186, at [73] – [76], at [79].

5. Al Amnash v Australia Wide Transport and Logistics Pty Ltd [2018] NSWDC 505.

6. Cosgrove-Kaye and Comcare (Compensation) [2019] AATA 1238, at [115].

7. Martin v TAL Life Limited [2015] VCC 1283, at [64], [71].

37. The decision in Nominal Defendant v Adilzada [2016] NSWCA 266 was also cited in argument on the applicability of s 86 of the MAC Act. That case has no relevance to the issues to be determined in this motion. In that case, at [19], it was made clear that s 86 of the MAC Act does not confer on a court a power to order compliance with a request for a medical examination or assessment. That power resides in UCPR r 23.4.

Consideration

38. It is tolerably clear from the evidence of Ms Burrows and from the portions of the affidavit of Mr Utiger cited at [15] above, that the solicitor for the first defendant made a forensic decision to seek evidence in the form of psychometric test results and related opinion evidence to be used in an attempt to undermine the veracity if not the reliability of the plaintiff’s evidence on factual matters concerning the nature and the extent of her post-accident complaints of disability.

39. The compelling conclusion that emerges from the evidence is that the first defendant proposed to seek psychometric testing to challenge the plaintiff's veracity and her credit, not just the validity of her presenting complaints. That view is evident from the content of paragraphs 14, 15 and 16 of Mr Utiger’s affidavit where he stated his understanding that the contemplated tests are designed to assess effort and to determine if the claimant is malingering, and to check on symptom exaggeration and consistency.

40. In my opinion that suggested course cannot be justified as it goes well beyond obtaining evidence about the plaintiff’s medical condition: Rowlands v State of New South Wales [2009] NSWCA 136, at [49]. That decision has been followed in other decisions of this Court: Vincent v SAS Trustee Corporation [2016] NSWDC 73, at [10], [12], [15], [19]; Al Amnash v Australia Wide Transport and Logistics Pty Ltd [2018] NSWDC 505, at [6], [9], [18], [20].

41. Respectfully, I propose to follow the same approach in determining the question raised for decision in the present notice of motion.

42. The opinion of Dr Vickery on the factual question of whether or not the plaintiff had malingered her complaints of disability stands to be assessed according to whether or not that opinion is compliant with the requirements of the rules governing expert evidence: UCPR r 31.27(1)(c); Sch 7 cl 5(c).

43. In Brighton v Traino [2019] NSWCA 168, consideration was given to the use of psychometric test results where they were suggestive of feigning or exaggeration. There, it was observed that the validity of such testing was impenetrable and unproven: [73] – [79].

44. In that case, it was not made clear on the evidence that the process of computerised interpretation of test results is within the training and skillset of a psychologist. It was held that this was an important question because the analysis of test results according to a computer programme is difficult to assess where the computerised methodology of analysis was not identified in the evidence: [76].

38. In those circumstances, the undesirability of a “black box” approach to the analysis of, and resolution of, important factual questions where individual rights are concerned is self-evident.

39. A review of Dr Vickery’s reports and communications, as summarised at [24] above, makes it clear that at no stage prior to being prompted by the first defendant’s solicitor to address the question, did he identify a necessity for psychometric testing to either assist or to clarify his diagnosis. He expressed no relevant doubts in his conclusions. He did not materially qualify his conclusions. He did not identify a need for any further information for the purpose of making or stating his diagnosis.

40. I accept the submission made on behalf of the plaintiff to the effect that the request for psychometric testing of the plaintiff was lawyer driven for the purpose of challenging the plaintiff’s credit, reliability or veracity as a witness.

41. To the extent that Dr Vickery indicated, after prompting, that such testing could be beneficial for clarification purposes, that evidence falls well short of establishing a need for such testing. Clearly, Dr Vickery chose his words carefully. I infer this was so because in his letter dated 9 May 2019 he did not identify any difficulty or doubt about his earlier expressed diagnostic opinions, and he did not say that such testing was a necessary step in the formation of his already identified opinion.

42. To the extent that Dr Vickery considered it would be beneficial to clarify the asserted inconsistencies that were alluded to, it should be noted that such factual matters are routinely exposed, explored in oral evidence and determined at a trial. No need has been shown for a psychological appraisal of those matters, either with or without the benefit of psychometric testing.

43. Furthermore, in my view, 6 hours of testing, if not longer, after allowing for the need for an interpreter, to test for symptom validity, is suggestive of an exhausting process for someone with claimed concentration difficulties. In those circumstances I consider the testing proposed by the first defendant to be oppressive and contrary to the dictates of justice: s 58(2) of the Civil Procedure Act 2005 (NSW).

44. Furthermore, if the order sought by the first defendant was made, the plaintiff would almost certainly be obliged to take the forensic step of at least obtaining related expert evidence concerning the validity or otherwise of the interpretation of the test results, if not also on the cultural, language and normalisation factors that are mentioned in Mr Haralambous’ papers. In my view, that process would be needlessly productive of delay and it would unfairly impose upon the plaintiff a layer of additional and unnecessary expense. Such circumstances would be contrary to the spirit and the letter of s 56 of the Civil Procedure Act 2005.

Plaintiff’s criticisms of Mr Haralambous’ evidence in other cases

52. The plaintiff’s submissions made critical reference to evidence given by Mr Haralambous in other cases where he was criticised as a witness for being argumentative and combative; as to his compliance with the Experts’ Code of Conduct; and because of an apparent unwillingness to make relevant concessions: Cosgrove-Kaye and Comcare (Compensation) [2019] AATA 1238, at [115]; Martin v TAL Life Limited [2015] VCC 1283, at [64], [71].

53. In my view it is not necessary to further analyse and consider those particular submissions, and the cases referred to in this context because, the credibility and the reliability of an expert witness should not be determined in a blanket fashion to cover all cases in which the expert has provided opinion evidence. Such questions must be determined on a case by case basis according to the evidence adduced in each particular case. Furthermore, Mr Haralambous has no voice in these proceedings to address such matters.

Determination

54. I find that the first defendant’s purpose in seeking to introduce into these proceedings opinion evidence from a psychologist is plainly aimed at undermining the reliability if not the credibility of the plaintiff’s evidence on factual matters. It should therefore not be permitted: Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136, at [49]. Whilst an expert witness may have a perspective on whether the plaintiff’s evidence on certain matters is reliable, the reasons for such opinions must be transparent to the affected party and capable of being tested. To assign the task of making an assessment on matters of credibility to an expert would have the effect of bypassing the function of the Court in determining disputed questions of fact.

55. In modern litigation conducted according to the Uniform Civil Procedure Rules 2005 (NSW), where an expert is to be called to provide opinion evidence on an issue that is critical to a pivotal question of fact in dispute in the proceedings, cogent reasons must be supplied for such opinions so that questions can be resolved in an appropriately reasoned manner: UCPR r 31.27(1)(c), Sch 7.

56. Historically, it was not always so. One commentator with firm negative views on unregulated expert evidence described the expert’s role as follows:

“Once we recognise the expert witness for what he is, an unusually privileged interloper, it becomes apparent why we must limit just how far the interloping may go. A witness cut loose from time-tested rules of evidence to engage in purely personal, idiosyncratic speculation offends legal tradition quite as much as the tradition of science.”

[Peter W Huber, Galileo’s Revenge : Junk Science in the Courtroom (1991, Harper Collins) p 204]

57. At p 157 of the same publication, the author observed:

“The art of junk science is to brush away just enough detail to reach desired conclusions, while preserving enough to maintain an aura of authoritative science.”

58. At p 158 of the same publication, the author went on to observe:

“Whatever his credentials, publications, or affiliations, a scientist who becomes the alter ego of a lawyer is no longer a scientist. At the very least, rules to maintain some minimum separation of egos are thus urgently needed. They are not difficult to devise.”

59. In this jurisdiction, the historical problems reflected by those sentiments have been acknowledged and addressed by the provision of safeguards in the form UCPR r 31.27(1)(c) and UCPR Sch 7. Those provisions require experts to not only be suitably qualified by training and experience, but those rules also require the provision of cogent reasons for each opinion expressed. It is difficult to see how an expert would, by psychological testing, be able to determine the truthfulness of a witness. That is a function of the Court.

Conclusion

60. Turning then to the question of whether the first defendant has provided justification for the orders sought, it is relevant to note that none of Dr Vickery’s reports or correspondence, indicate that he has changed his mind about his diagnosis of the plaintiff having an adjustment disorder.

61. If Dr Vickery had a change of mind along those lines, it would have been obligatory for him to have forthwith provided the first defendant’s solicitor with a supplementary report in compliance with UCPR r 31.27(4) which states:

“31.27 Experts’ reports

...

(4) If an expert witness changes his or her opinion on a material matter after providing an expert’s report to the party engaging him or her (or that party’s legal representative), the expert witness must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect containing such of the information referred to in subrule (1) as is appropriate.”

62. No such expression of qualification by Dr Vickery was tendered by the first defendant. In my view, this explains why the first defendant seeks to have the plaintiff psychometrically tested.

63. I find that the psychometric testing proposed by the solicitor for the first defendant is plainly aimed at detecting malingering and impermissibly attacking the credibility of the plaintiff’s evidence: Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136, at [49]. For the above reasons, I conclude that the orders sought by the first defendant should be refused. The first defendant’s notice of motion must therefore be dismissed with costs.

64. The plaintiff’s alternative argument over whether or not Mr Haralambous should be appointed as the assessing psychologist does not arise. That secondary argument does not require further consideration as a consequence of the refusal of the other orders sought by the first defendant.

Case management directions

65. Before leaving this matter, as foreshadowed to counsel during submissions, I consider that the sequential expert reports of Dr Vickery require comment. I consider it appropriate that before his evidence is received at a hearing of these proceedings, he should be required to prepare a single report, served in accordance with the rules, that reflects his evidence in chief: UCPR r 31.20(j).

66. I consider that course to be appropriate because otherwise, the Court would be left with the all too common and needlessly burdensome task of having to review and analyse a succession of reports from that expert concerning cumulative assessments carried out by him over the course of time. In my view, Dr Vickery’s opinions should be consolidated into a single report before his evidence is received at the hearing: UCPR r 31.20(j).

Disposition

67. The first defendant’s motion has failed. It must therefore be dismissed, with costs.

Costs

68. The first defendant should pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

69. I make the following orders:

1. The first defendant’s motion filed on 27 May 2019, as amended on 22 July 2019, is dismissed;

2. The first defendant is to pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further or other orders are required.

Case management direction

70. I make the following case management direction:

1. Pursuant to UCPR r 31.20(j), the first defendant is directed to request for Dr Vickery to prepare a single report that covers all of his examinations, findings, comments and opinions concerning the plaintiff for the purpose of tendering that report as his evidence in chief, such report to be served no later than 60 days before the date set for hearing.

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Decision last updated: 09 August 2019