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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] NSWSC 1526
Decision Date: 09 October 2018

CaseChat Overview and Summary

In the case of JKZ v The Scots College, the plaintiff sought damages for psychiatric injury allegedly caused by sexual assault. The defendant school sought an order requiring the plaintiff to undergo a neuropsychological assessment by a psychiatrist as part of the discovery process. The application was made under rule 23.4 of the Uniform Civil Procedure Rules 1999 (NSW). The plaintiff had already submitted to a psychiatric examination at the request of the second defendant, and the plaintiff's medical history included pre-existing psychiatric conditions that predated the alleged abuse. The plaintiff argued that any further examination could result in re-traumatisation.

The court was required to balance the need for the plaintiff to undergo a neuropsychological assessment against the risk of re-traumatisation. The court considered the potential benefits of the assessment in providing a comprehensive understanding of the plaintiff's psychiatric condition against the harm that might result from further examination. The court acknowledged the plaintiff's history of pre-existing psychiatric conditions and the potential for the assessment to exacerbate these conditions.

The court determined that the plaintiff should submit to a neuropsychological assessment, but imposed limitations on the scope of the examination to minimise the risk of re-traumatisation. The court ordered that the assessment focus on the psychiatric conditions that were relevant to the claim and that any examination of the plaintiff's history of pre-existing psychiatric conditions be limited to what was necessary to address the issues in the proceeding. The court also ordered that the assessment be conducted by a psychiatrist who was experienced in working with individuals who had experienced sexual abuse and who was sensitive to the need to avoid re-traumatisation.

The court made an order that the plaintiff be required to submit to a neuropsychological assessment by a psychiatrist, subject to the limitations imposed to minimise the risk of re-traumatisation. The court ordered that the assessment focus on the psychiatric conditions relevant to the claim and that any examination of the plaintiff's history of pre-existing psychiatric conditions be limited to what was necessary to address the issues in the proceeding. The court also ordered that the assessment be conducted by a psychiatrist who was experienced in working with individuals who had experienced sexual abuse and who was sensitive to the need to avoid re-traumatisation.

Orders