JKZ v The Scots College

[2018] NSWSC 1526

Supreme Court

New South Wales

Medium Neutral Citation:	JKZ v The Scots College [2018] NSWSC 1526
Hearing dates:	05 October 2018; 08 October 2018 (written submissions)
Date of orders:	09 October 2018
Decision date:	09 October 2018
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Pursuant to r 23.4(1) of the Uniform Civil Procedure Rules 2005 (“UCPR”), order the plaintiff submit to a medical examination by way of a contemporaneous neuropsychological assessment and a personality assessment, by Dr Wendy Roberts on 15 and 16 October 2018 at 8:30am at First Floor, 40 Yeo Street, Neutral Bay, NSW 2089 for. (2) Pursuant to r 23.4(2) of the UCPR, order that the plaintiff do all things reasonably requested, and answer all questions reasonably asked, by Dr Roberts for the purposes of the examination. (3) Orders 1 and 2 are subject to the following restriction, namely that Dr Roberts is precluded from orally taking any history or asking any questions of the plaintiff about or relating to the following: (a) the sexual assaults and/or abuse the subject of these proceedings; (b) the circumstances surrounding the sexual assaults and/or abuse the subject of the proceedings; (c) the manner in which the complaints of sexual assaults and/or abuse were handled by the School; and (d) the veracity and/or accuracy of the plaintiff’s account of the abuse and/or sexual assaults, and his account of the way in which the school dealt with any complaints about those matters. (4) The Court notes that Order 3 does not preclude Dr Roberts from reasonably taking a history as to the plaintiff’s psychiatric or psychological condition, after the plaintiff completed his school education with the defendant. (5) The Court notes that Dr Roberts agrees that the plaintiff is entitled to bring to the examination a non-participatory support person of his election, which person may be with the plaintiff should he choose but the said support person will not communicate with the plaintiff whether directly or indirectly in respect of any tests or questions asked during the testing phase. (6) Orders that the costs of this application be costs in the cause. (7) Stand over the Motion over to 9.30am on 12.12.2018 before Garling J. (8) Liberty to apply on 2 days’ notice.
Catchwords:	CIVIL PROCEDURE – claim for damages for psychiatric injury due to alleged sexual assault – application seeking that plaintiff be required to submit to neuropsychological assessment by a psychiatrist – UCPR r 23.4 – where plaintiff has already submitted to psychiatric examination at the request of the second defendant – evidence of pre-existing psychiatric conditions before alleged abuse – risk of re-traumatisation – order made – limitation on examination imposed to minimise risk of re-traumatisation
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	JKZ (P/Respondent) The Scots College (D1/Applicant) Ewen James William Addison (D2)
Representation:	Counsel: D A Priestley SC (P/Respondent) C P O’Neill (D1/Applicant)   Solicitors: Koffels Solicitors & Barristers (P/Respondent) Colin Biggers & Paisley Lawyers (D1/Applicant)
File Number(s):	2017/205743
Publication restriction:	Not Applicable

EX TEMPORE Judgment

Factual Background

1. JKZ is the plaintiff in proceedings in this Court commenced in 2017 claiming damages for personal injury against the Scots College, the defendant, arising from sexual abuse, which occurred in or about 2001 whilst the plaintiff was a student at The Scots College in Sydney. There is a claim also against the perpetrator of the abuse. However, he has taken no active role in the proceedings. It will be convenient to describe the School as the defendant.

2. The proceedings, having been case managed judicially, have been fixed for a final hearing on 11 February 2019. Orders for the preparation and service of evidence and documents are presently in place. The defendant is required to serve all expert reports upon which it intends to rely, on any and all issues to be decided in the proceedings, on or before 21 November 2018.

3. To date, the defendant has served an expert report from a psychiatrist, Dr Diane Neill, dated 21 November 2017. This report responds to the report of Associate Professor Carolyn Quadrio, consultant psychiatrist, dated 28 February 2017, which has been served by the plaintiff.

Notice of Motion

4. The defendant has asked the plaintiff to attend for further expert examination with Dr John Davis, an occupational physician, on 5 November 2018 and with Dr Wendy Roberts, a neuropsychologist, on 15 and 16 October 2018. The attendance of the plaintiff at the consultation with Dr John Davis does not seem to be contentious. However, the plaintiff has declined to attend the examination scheduled with Dr Roberts next week.

5. As a result of this attitude, the defendant has filed a Notice of Motion, on 28 August 2018, seeking the following orders:

“1. That pursuant to r 23.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the court compel the plaintiff to submit to the medical examination arranged with Dr Wendy Roberts on 15 and 16 October 2018 at 8.30 am at First Floor, 40 Yeo Street, Neutral Bay, NSW 2089 for a contemporaneous neuropsychological assessment and a personality assessment.

2. Further to the orders sought in paragraph 1 above, that pursuant to r 23.4(2) of the UCPR the plaintiff do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.”

6. Prayers 3, 4 and 5 in the Notice of Motion are directed to relief which may follow if the plaintiff refuses to attend the medical examination consequent upon any order of the Court. As well, the defendant in paragraph 6 seeks the costs of the application.

7. Having regard to the limited time between when the Motion was argued and when it is arranged that the plaintiff will be seen by Dr Roberts, it is obviously essential that the Court deliver promptly its judgment in the matter. The last submission was received at 5pm last night. This morning is the first opportunity the Court has had since then to deliver judgment. The speed with which it is necessary for the Court to deliver this judgment necessarily means there may be some infelicity of expression in the course of these reasons.

Statutory Provisions

8. As the plaintiff claims damages for a physical or mental condition in proceedings in which he is a party, the provisions of Div 1 of Pt 23 of the Uniform Civil Procedure Rules 2005 (“UCPR”) are applicable. Rule 23.4 of the UCPR is in the following terms:

“23.4   Order for examination

(1)   The court may make orders for medical examination, including an order 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, a person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.”

9. Rule 23.5 is in the following form:

“23.5    Medical expert for person concerned

The person concerned may have a medical expert of his or her choice attend a medical examination under this Division.”

10. I note also that r 23.3, in broad terms, requires, in the circumstances here, the defendant to meet the travelling and other expenses of the plaintiff of and incidental to the medical examination, including the expenses of having a medical expert chosen by the person to attend that examination.

Legal Principles

11. The principles governing this application are not much in doubt. Senior counsel for the plaintiff accepts that the Court has the power in the present circumstances to make the order sought in the Notice of Motion, but submits that as a matter of discretion, having regard to all of the circumstances, the Court would not make such an order.

12. The parties drew attention to the statements of principle in Plaintiff [name withheld] v Stapleton [2017] NSWSC 914. In that decision, McCallum J cited a series of authorities in [4] and [5] encapsulating the relevant principles. Those paragraphs are as follows:

“4. The principles governing the application were, for the most part, not in dispute. Mr Daly, who appears for the first defendant, drew my attention to the decision of the Court of Appeal in Angliss v Urquhart [2001] NSWCA 441. That was a case in which an order had been made by a judge of the Equity Division compelling a 91-year-old man, on the application of his grandchildren, to attend an appointment for examination in respect of his legal and testamentary capacity. An appeal was brought against that order. The main judgment in the Court of Appeal was given by Sheller JA, with whom Beazley and Stein JJA agreed. His Honour set out the relevant passages from the judgment at first instance, including an extract from the decision of the Queensland Supreme Court in Crofts v The State of Queensland [2001] QSC 220 (in turn extracted from the English decision of Prescott v Bulldog Tools Limited [1981] 3 All ER 869) summarising the relevant principles in the following terms (at [25]):

‘In determining an application of this sort it was held in Prescott that a court must -

(a)   assess whether the defendant’s request is reasonable in the light of information and advice received from its experts;

(b)   assess whether the plaintiff’s refusal is similarly reasonable;

(c)   if both are reasonable then balance the plaintiff’s right to personal liberty against the defendant’s right to defend itself in the litigation the plaintiff has brought against it; one right not being considered to be more important than the other right;

(d)    examine objectively the weight of the reasonableness of the defendant’s request as seen by it as against the weight of the plaintiff’s objection and balance one against the other “to ensure a just determination of the cause as between the parties taking into account their reasonable requirements”.’

5.   Angliss, however, was not a claim for damages for personal injury. In respect of the passage from Crofts set out above, the Court of Appeal said at [16]:

‘Barrett J set out a passage from Crofts v The State of Queensland which summarised what was said in Prescott v Bulldog Tools Limited. This speaks of a balancing exercise to ensure a just determination of the cause as between the parties taking into account their reasonable requirements. But it should be noted that those were cases concerned with a defendant’s right to defend itself in litigation the plaintiff had brought to recover damages for personal injury and where the plaintiff refused to submit to a medical examination. The circumstances of this case are entirely different.’ ”

13. In short, in making an order of the kind sought, the Court must assess whether the request for the examination is reasonable in light of all of the circumstances, including the information and advice received by the defendant from its experts, and whether the plaintiff’s refusal to attend is similarly reasonable. If both of these approaches are reasonable, then it is a matter for the Court to balance the plaintiff’s right to personal liberty with the defendant’s right to defend itself in the litigation, which the plaintiff has brought.

14. Ultimately, the Court must weigh up all of the facts and circumstances to ensure that the proceedings brought by the plaintiff against the defendant are determined justly, taking into account the reasonable requirements of each party.

15. Such an order, because it is an interlocutory, and a case management order, must facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1), Civil Procedure Act 2005. As well, s 58(1) of the Civil Procedure Act requires the Court to seek to act in accordance with the dictates of justice, which are referred to in s 58(2).

Issues in the Proceedings

16. The plaintiff’s claim, as articulated in the most recent Statement of Particulars filed on 6 July 2017, is that he has sustained psychiatric and psychological injury capable of being identified as psychiatric disorders as a consequence of the sexual assaults perpetrated upon him. As I read the Statement of Particulars, whilst there may have been some physical injury at the time of the assaults, it is not said that that is in any way permanent or continuing.

17. The plaintiff claims, as part of his special damages, past and future loss of economic capacity. In the Statement of Particulars the claim for future loss of economic capacity is described in this way:

“The plaintiff has suffered significant diminution of his earning capacity and his ability to advance his career has been diminished as a result of his disabilities. He is restricted in his ability to pursue a career in the arts...whereas he most probably would have advanced to a position where he would have had an opportunity to earn most significant remuneration (as great as $1 to 2 million per annum)...various industry experts believe the plaintiff has been denied an opportunity to be highly successful within this industry.”

18. That statement is accompanied by a claim for a loss, as a minimum, of about $150,000 a year net for a period of about 37.5 years. In total, the claim of the plaintiff to past and future lost economic capacity is close to $4.3M – it may be more. On any view, it is a very large claim.

19. The defendant admits, relevantly, that the perpetrator, in the pleaded period, acted in the role of a boarding house tutor at one of the school’s residential houses. It admits that, as part of his role as boarding house tutor, the perpetrator resided in the boarding house; attended to the pastoral care and welfare and providing of support to children who were resident at that boarding house; supervised children who were resident at that boarding house after school hours and during weekends; supervised children in their dormitories, and took children on school excursions. It also admits that the plaintiff was a boarder aged 13 at the school in 2001 and that in 2001 he was residing in the house in which the perpetrator was a boarding house tutor.

20. The defendant does not admit, in its defence, the allegations made by the plaintiff that he was sexually abused and assaulted by the perpetrator during 2001.

21. It seems that various complaints with respect to the perpetrator were made to the defendant in 2001, and that those complaints were both the subject of some investigation by the defendant, as well as some reporting by the defendant to the Police and relevant government authorities. It is the plaintiff’s case that immediately after the complaints were made the perpetrator was removed from the boarding house and the school premises.

22. Accordingly, at any hearing, in light of the nature of the defence of the school, it will be necessary for the plaintiff to prove that the sexual assaults occurred and in the way he described and also to prove, with the assistance of expert evidence, the psychiatric conditions which he claims and the impact of those psychiatric conditions on his claims for, amongst other things, economic loss.

Psychiatric Evidence

23. As I have earlier indicated, both the plaintiff and the defendant have had the plaintiff examined by consultant psychiatrists who have provided expert reports about their diagnosis of the plaintiff’s condition and about the causal effect of various events in the plaintiff’s life. It is not unfair to say that, from a psychiatric perspective, prior to the assaults occurring, the plaintiff’s life had not been an entirely smooth one. Indeed, prior to commencing as a student at the Scots College, there is some material which suggests that the plaintiff was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), and certainly there was a history of events that may have had an effect on his personality, his development and his psychological well-being.

24. It is the case for the defendant that, even if it were liable to the plaintiff for the sexual assaults which the plaintiff claims, there were significant pre‑existing psychiatric and psychological issues such that the consequences of the assaults would only account for a limited part of the plaintiff’s present psychiatric state and any incapacity for the earning of income.

25. The psychiatric report of Dr Diane Neill of 21 November 2017, served by the defendant, expresses the opinion that the incidents related to the plaintiff’s attendance at the School contributed only 30% of the plaintiff’s current state. Equally, that psychiatrist expressed the opinion that the plaintiff is fit for employment without restriction. That is an opinion which is contested by the psychiatrist retained by the plaintiff.

26. These remarks all indicate that raised in these proceedings are issues of substance which are contested by the defendant in respect of the plaintiff’s current disabilities, his current psychiatric and psychological state and the causes of those disabilities. I express no view as to whether the case to be made by the defendant will or will not succeed. That is not for me to decide. I simply decide, on the material which is before me, that the claim of the plaintiff is a large and substantial one and, based upon expert material in its possession, the defendant’s contesting of that claim is not unreasonable.

Reasonableness of Defendant’s Request

27. The issue before the Court is whether a neuropsychological assessment is a reasonable request by the defendant, and whether the refusal of the plaintiff is also reasonable.

28. The defendant has put before the Court a report of Dr Neill, dated 18 June 2018, which addresses the need for and the appropriateness of a neuropsychological assessment. The report, interestingly, commences with this statement in answer to a question as to what role or roles neuropsychological assessment may play in assisting a reporting psychologist to arrive at their opinion. Dr Neill said this:

“Specific to childhood sexual abuse, literature examining the use of neuropsychological testing to identify neuropsychological patterns associated with a history of childhood sexual abuse exists; however in my experience this is not a resource utilised for usual psychiatric/psychological assessment in medico-legal settings of persons who have suffered childhood sexual abuse.”

29. However, Dr Neill goes on to say that, in the particular circumstances of this case, neuropsychological testing can provide an “in-depth assessment of multiple items in cognitive function” and, further, that:

“the main purpose of obtaining a contemporaneous neuropsychological test is to explain to what extent any identified contemporary cognitive/behavioural difficulties are a continuation of identified childhood patterns and pre-existing neurodevelopmental factors.”

30. Dr Neill said that the results of any neuropsychological assessment would be likely to benefit her in providing her expert opinion to the Court.

31. Dr Neill also considered the question of personality assessment and that the main purpose of obtaining a contemporaneous adult personality test would be to support the clinical diagnosis or diagnoses for links between pre‑existing and present conduct. She was of the view that any contemporaneous personality assessment was likely to benefit her in providing her expert opinion to the Court. It seems to have been of importance to Dr Neill’s opinion that there is some material of pre-existing conduct, disordered symptoms and pre-existing ADHD, that is to say, those matters pre-existing the alleged sexual assaults.

32. It was not suggested that the opinions expressed by Dr Neill were untenable or not open to her to express. Given the content of them, I conclude that the defendant’s request for a neuropsychological examination is a reasonable one.

Reasonableness of the Plaintiff’s Refusal

33. The plaintiff opposes the request. It is necessary to determine whether that opposition is reasonable or, alternately put, not unreasonable.

34. The basis upon which the plaintiff submits that his refusal to attend is reasonable is that there is a real risk that the nature and extent of the testing, particularly extending over lengthy periods of time on each of the two days, is such that there would be a real risk of ongoing re-traumatisation and psychiatric harm to him.

35. It is the plaintiff’s perception that his previous attendance for a medico‑legal examination with Dr Neill was very traumatising for him. He gave a contemporaneous account to his solicitor with respect to attending the medical examination with Dr Neill. In that account, he said it was re-traumatising for him; that Dr Neill made him go over and over the abuse again. He felt abused and bullied again and the subject of an abuse of power. He said he felt scared and terrified during the examination and that he did not feel he had the opportunity to finish answers to questions and give a full account of the kind that he wished. Further, he said that he left Dr Neill’s rooms sweating, shaking, highly agitated, upset and depressed.

36. Dr Neill, in correspondence, has denied that her examination was of a kind designed to engender such a response or was likely to do so. Again, I am not here to determine which of those versions is correct. What is of importance is that the plaintiff had the subjective reaction to the examination of the kind of which he described.

37. As well, there is a further report of A/Prof Quadrio, which expresses the view that there is a risk of re-traumatisation for the plaintiff if he is required to attend a further examination, particularly if he is required to repeat his account of, and be questioned about the episodes of abuse. A/Prof Quadrio said that she would be concerned to proceed with the neuropsychological testing because of the risk of re-traumatising the plaintiff. It follows, both from the expression of opinion by the plaintiff and the support of A/Prof Quadrio, that his refusal to attend is reasonable and also reasonably based.

Discernment

38. It now becomes a question of the Court undertaking a balancing exercise to determine whether the intrusion into the plaintiff’s personal liberty is justified in this case by the need for the defendant to adequately defend itself against the claims which the plaintiff has brought. That balancing exercise is to take place, having regard to the legislative provisions to which I have earlier referred and the statement of principles summarised by McCallum J in Stapleton’s case. Without meaning any disrespect to the authors of those principles, the question comes down to whether in the exercise of the Court’s discretion and, in the interests of the plaintiff, the defendant and the administration of justice, the plaintiff should be required to attend this examination. I am satisfied that he should.

39. He brings a claim which, as I have described, is a large and substantial one. He has a complicated past history. At issue in the proceedings is whether, as the plaintiff claims, the entirety of his present loss and damage relates to the sexual assaults or whether, as the defendant submits, only part of that claim relates to conduct for which the defendant must be liable.

40. A neuropsychological assessment can provide material which is of assistance to the determination of the plaintiff’s present state neurologically, psychologically and psychiatrically, although it may not be definitive.

41. The conduct of the tests themselves, according to the material before the Court, is not generally a source of concern with respect to re-traumatisation, that is because the testing is largely conducted by reference to objective questions which are not, for the most part, aimed directly at the reported incidents which form the basis of the claim, but are aimed at processes which may or may not have been affected by it.

42. The proposal for the examination includes permitting the plaintiff to have another person present by way of support or, if the plaintiff elects, another medical expert. It provides for breaks to be taken during the course of the testing, the supplying by Dr Roberts of refreshments and allows for a sufficient period across two days so that the plaintiff is not adversely affected by the process of testing.

43. In those circumstances, I am satisfied that the testing is both necessary and appropriate. However, all experts acknowledge that there is a risk, which seems to me in this case to be a significant one, of re-traumatisation during the course of testing. That risk, in particular, relates to a re-telling of the circumstances of and surrounding the assaults, including the plaintiff’s feelings and reactions to them and his perception of the way in which he was treated, and being required to answer questions, the intention of which is to either clarify what the plaintiff has said, or to get the plaintiff to expand upon what he has said.

44. One of the further risks associated with such conduct is that the defendant may, and indeed the experts may also, use such opportunity for the purpose of assessing and opining on the veracity and accuracy of the plaintiff’s accounts of those events. Such a purpose, in my view, is not permissible in an examination of this kind as ordered by this Court: Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715 at [49] (per Hodgson JA, Allsop P agreeing) and at [61] (per Tobias JA).

45. Examination for that purpose is also likely to significantly aggravate the plaintiff's psychiatric state and re-traumatise him. It is a matter for the Court to determine at the hearing of this claim the veracity and accuracy of the plaintiff's claims. Particularly is this so because, as I am candidly informed by counsel for the defendant, it is not the defendant's present intention to call any factual evidence from any witness as to the precise nature of what occurred. Putting it differently, the defendant does not presently propose to call the perpetrator to give a factual account of the assaults different from that given by the plaintiff, although the defendant will rely upon contemporaneous accounts in writing as to what occurred.

46. In the exercise of my discretion it is open to me, in ordering an examination of this kind, to do so subject to conditions, in particular, conditions which may minimise the risk of re-traumatisation to the plaintiff. It is apparent that Dr Roberts has been provided with a number of documents which contain the history of the plaintiff's account of the abuse to which he was subjected. Those documents include:

1. a statement of the plaintiff dated 11 January 2017;

2. the report of A/Prof Carolyn Quadrio dated 28 February 2017, which includes, between pages 5 and 10, a great deal of detail about what occurred and how the plaintiff reacted;

3. two reports of Dr Diane Neill in which she has obtained a history from the plaintiff; and

4. a transcript of interview with the plaintiff taken by the New South Wales Police Service.

47. I am firmly of the view that requiring the plaintiff as a part of the proposed neuropsychological examination to once again orally give an account of the assaults, the circumstances surrounding them and how the plaintiff reacted to them would result in a real risk of re-traumatisation to the plaintiff. It would not be in the interests of justice to subject him to such a real risk of harm.

48. In those circumstances it is appropriate to limit the neuropsychological examination to a minor extent, namely, to preclude Dr Roberts from orally taking any history from the plaintiff or asking any questions of him about the history of the circumstances of and surrounding the occurrence of the sexual assaults and their reporting to the defendant, and the defendant's conduct towards him at and after that time, as well as his reaction to those events.

49. Additionally, it would be appropriate, to avoid any misunderstanding, to specify that it is no part of the neuropsychological examination for Dr Roberts to test the veracity and accuracy of the plaintiff's account of the sexual assaults and it is no part of the examination to obtain evidence that might go to the plaintiff's veracity generally.

50. In the circumstances of this case, and others like it, that determination is a difficult matter which is reserved for the Court's decision. I see no prejudice to the defendant by imposing this restriction because there is no reason why, consistent with authorities with respect to the giving of expert evidence, Dr Roberts cannot be asked to assume various facts relating to the plaintiff's history upon which she is asked to formulate and conduct the neuropsychological tests and otherwise undertake an examination of the plaintiff in accordance with her specialty.

51. In short, I am disposed to make an order of the kind set out in paragraph 1 of the Notice of Motion filed 28 August 2018 and order 2, subject to specification of the conditions to which I have just referred.

52. Given the nature of the balance of the relief it will be prudent to stand over the balance of the Notice of Motion to a further date.

53. In the absence of any submission to the contrary, I would order that the costs of the application be costs in the cause.

Orders

54. I make the following orders:

1. Pursuant to r 23.4(1) of the Uniform Civil Procedure Rules 2005 (“UCPR”), order the plaintiff submit to a medical examination by way of a contemporaneous neuropsychological assessment and a personality assessment, by Dr Wendy Roberts on 15 and 16 October 2018 at 8:30am at First Floor, 40 Yeo Street, Neutral Bay, NSW 2089 for.

2. Pursuant to r 23.4(2) of the UCPR, order that the plaintiff do all things reasonably requested, and answer all questions reasonably asked, by Dr Roberts for the purposes of the examination.

3. Orders 1 and 2 are subject to the following restriction, namely that Dr Roberts is precluded from orally taking any history or asking any questions of the plaintiff about or relating to the following:

1. the sexual assaults and/or abuse the subject of these proceedings;

2. the circumstances surrounding the sexual assaults and/or abuse the subject of the proceedings;

3. the manner in which the complaints of sexual assaults and/or abuse were handled by the School; and

4. the veracity and/or accuracy of the plaintiff’s account of the abuse and/or sexual assaults, and his account of the way in which the school dealt with any complaints about those matters.

4. The Court notes that Order 3 does not preclude Dr Roberts from reasonably taking a history as to the plaintiff’s psychiatric or psychological condition, after the plaintiff completed his school education with the defendant.

5. The Court notes that Dr Roberts agrees that the plaintiff is entitled to bring to the examination a non-participatory support person of his election, which person may be with the plaintiff should he choose but the said support person will not communicate with the plaintiff whether directly or indirectly in respect of any tests or questions asked during the testing phase.

6. Orders that the costs of this application be costs in the cause.

7. Stand over the Motion over to 9.30am on 12.12.2018 before Garling J.

8. Liberty to apply on 2 days’ notice.

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Decision last updated: 12 October 2018