Kelly v Trustees of the Christian Brothers
[2021] VSC 110
•12 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2020 00289
| JOHN KELLY | Plaintiff |
| v | |
| TRUSTEES OF THE CHRISTIAN BROTHERS (as the proper Defendant for the OCEANIA PROVINCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS pursuant to the Legal Identity of Defendants (Organisational Child Abuse) Act 2018) & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 March 2021 |
DATE OF RULING: | 12 March 2021 |
CASE MAY BE CITED AS: | Kelly v Trustees of the Christian Brothers & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 110 |
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PRACTICE AND PROCEDURE – Application for stay of proceeding – Personal Injury – Psychiatric injury – Medicolegal examination of plaintiff at first defendant’s request – Where plaintiff refused to submit to examination – Where examination involved alleged risk to plaintiff – First defendant’s request unreasonable – Plaintiff’s refusal reasonable – Supreme Court (General Civil Procedure) Rules 2015 r 33.04 – Pyman v Whitefriars College Inc [2019] VSC 361 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Williams | Waller Legal |
| For the First Defendant | Mr C Morshead | Colin Biggers & Paisley |
| For the Second Defendant | Ms T Sridharan, solicitor | Wotton & Kearney |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
First Defendant’s submissions........................................................................................................ 9
Plaintiff’s submissions................................................................................................................... 13
Applicable principles...................................................................................................................... 16
Analysis.............................................................................................................................................. 17
Conclusion......................................................................................................................................... 21
HER HONOUR:
The parties are in dispute about whether or not the plaintiff must submit to examination by a psychiatrist nominated by the first defendants. The first defendant seeks that the proceeding be stayed if the plaintiff does not submit to psychiatric assessment by 17 March 2021. A stay is also sought if the plaintiff does not do all things reasonably requested, and answer all questions reasonably asked by the psychiatrist for the purpose of the examination.
These reasons follow an ex tempore ruling and orders made dismissing the first defendant’s application on the basis its request was unreasonable and the plaintiff’s refusal to attend the examination was reasonable. Alternatively, even if the plaintiff’s request was reasonable, balancing the competing interests of the plaintiff and first defendant, justice lies in disallowing its application.
Background
This proceeding commenced approximately 13 months ago, on 22 January 2020.
In this proceeding, the plaintiff alleges that he was physically and sexually abused by Brothers Gerald Fitzgerald and Stephen Farrell during his attendance at St Alipius Boys’ Primary School in Ballarat East, and by Father Gerald Ridsdale at St Alipius Catholic Church.[1] The abuse is alleged to have occurred when the plaintiff was aged between 7 and 11 years old and during the years 1971 – 1974.
[1]Plaintiff, Amended Writ and Statement of Claim, filed 10 August 2020 (‘Amended Writ and Statement of Claim’).
The plaintiff says that Fitzgerald and Farrell were Christian Brothers who taught at the school, and that Farrell was also the principal of St Alipius Boys’ Primary School. The first defendant admits that Fitzgerald and Farrell were Christian Brothers teaching at the school but denies Farrell was the principal. It is alleged that the school was operated by the Oceania Province of the Congregation of the Christian Brothers in the person of the Province Leader, who exercised its authority through the school principal. The first defendant is nominated as the proper defendant of that entity. It does not admit the abuse allegations.
The plaintiff says that Ridsdale was a priest of the Catholic Diocese at Ballarat, and that he was subject to the authority and direction of the second defendant. The second defendant is the proper nominated defendant of that diocese. It admits Ridsdale was a priest within the Catholic Diocese of Ballarat.
It is alleged that the defendants each breached their duty of care to the plaintiff, and are negligent. It is alleged too that they are vicariously liable for the acts of Fitzgerald, Farrell and Ridsdale. The defendants admit they owed a duty of care to the plaintiff. They deny vicarious liability and any liability for the plaintiff’s alleged injuries.[2]
[2]First Defendant, Defence, filed 26 March 2020 [29].
The plaintiff particularises his injuries as complex post-traumatic stress disorder with anxiety and depression, and hypoactive sexual desire disorder/sexual aversion disorder.[3] He seeks medical and like expenses, and exemplary and punitive damages. His claim states that the particulars of any economic loss are to be provided prior to trial.
[3]Amended Writ and Statement of Claim (n 1) [29].
Orders made on 13 March 2020 provide that the plaintiff’s medical and/or expert reports were to be exchanged by 12 June 2020, and the defendants’ by 24 July 2020. The orders provide that by 4 September 2020, the plaintiff was to serve particulars of special damages, loss of earnings and loss of earning capacity along with supporting documentation, and that any final particulars of such matters were to be served no later than two months prior to trial. The orders required the parties to exchange any supplementary medical or other expert reports concerning damages and liability, along with supporting documentation, no later than two months prior to trial. The proceeding is listed for trial on 13 April 2021. Accordingly, the end date for the exchanges which were required to happen no later than two months prior to trial is 13 February 2021.
Turning now to the exchange of medical reports and other relevant material between the parties, and the correspondence in relation to the first defendant’s request that the plaintiff submit to a further medical examination. Pausing here, I am grateful for the reports and correspondence methodically described and exhibited by the solicitors for each party in their affidavits.[4]
[4]Plaintiff, Affidavit of Madison Josephine Aloisio, the plaintiff’s solicitor, affirmed 26 February 2021 (‘Aloisio Affidavit’); First Defendant, Affidavit of Vanessa Kemp, sworn on 22 February 2021 (‘Kemp Affidavit’).
On 8 May 2020, the plaintiff’s solicitors served his affidavit of documents and on 25 May 2020 they provided the defendants with copies of the material listed in the affidavit. This included documents with information regarding the plaintiff’s financial position such as his income taxation returns and notices of assessment.[5] It also listed the report of Dr Sandra Hacker, psychiatrist, dated 1 August 2017.[6] Dr Hacker’s report stated that the plaintiff had not worked since taking long service leave from his then employer in October 2016 and ceasing work there on 31 January 2017.[7]
[5]Aloisio Affidavit (n 4), Exhibit ‘MA-2’.
[6]Ibid, Exhibit ‘MA-2’.
[7]Ibid, Exhibit ‘MA-3’.
On 17 June 2020, the plaintiff’s solicitors wrote to the defendants’ solicitors noting the plaintiff’s instructions to make a claim for economic loss and foreshadowing an actuarial report that would be provided at the time the plaintiff’s particulars of special damaged were served.[8]
[8]Ibid, Exhibit ‘MA-5’.
On 23 June 2020, the plaintiff attended assessment with Dr Alan Jager, a psychiatrist engaged by the defendants. Dr Jager’s report is dated 28 July 2020.[9] However, the report was not served until almost two months later, as outlined below.
[9]Ibid, Exhibit ‘MA-6’.
Dr Hacker wrote a supplementary report dated 4 August 2020. However, this report was not served until approximately three months later, as outlined below.[10]
[10]Ibid, Exhibit ‘MA-9’.
On 9 September 2020, the plaintiff’s solicitors served the defendants with the plaintiff’s particulars of special damages, together with the report of a forensic accountant, namely Mark Thompson of Vincents, dated 27 August 2020 (‘the Thompson report’).[11]
[11]Ibid Exhibit ‘MA-7’.
On 9 September 2020, the defendants sought a supplementary report from Dr Jager.[12] They did not then, or afterwards, provide the Thompson report to Dr Jager.
[12]Kemp Affidavit (n 4) [10].
On 21 September 2020, the second defendant’s solicitors (on behalf of both defendants) served a supplementary report of Dr Jager dated 15 September 2020, together with his initial report dated 28 July 2020.[13]
[13]Aloisio Affidavit (n 4) Exhibit ‘MA-8’.
Pausing there, on 12 November 2020, the matter was mediated, but did not resolve.
On 16 November 2020, the plaintiff’s solicitors served the supplementary report of Dr Hacker.[14]
[14]Ibid Exhibit ‘MA-9’.
On 2 December 2020, the first defendant’s solicitors wrote to the plaintiff’s solicitors stating that a further joint assessment of the plaintiff had been arranged by the defendants on 17 March 2021 with Dr Alex Apler, psychiatrist.[15]
[15]Ibid Exhibit ‘MA-10’.
On 10 December 2020, the plaintiff’s solicitors wrote to the first defendant’s solicitors stating that the plaintiff had already attended a joint defendant assessment with Dr Jager and that the plaintiff did not consent to attend an assessment with a new expert at this late stage of the proceeding.[16] They referred to the orders made on 13 March 2020 that the parties exchange medical reports by 24 July 2020. The letter stated that the proposed new report could not be regarded as a supplementary report and would be significantly out of time. The letter stated that should the first defendant need to amend the interlocutory timetable, and provide an explanation for doing so, it would be considered.
[16]Ibid Exhibit ‘MA-11’.
On 27 January 2021, the first defendant’s solicitors wrote to the plaintiff’s solicitors stating that they may be able to secure an assessment with Dr Saboisky on 2 February 2021 and asking whether the plaintiff would agree to attend it, noting that it would not impact the trial date.[17]
[17]Aloisio Affidavit (n 4) Exhibit ‘MA-12’.
The following day, namely 28 January 2021, the plaintiff’s solicitors wrote to the first defendant’s solicitors reiterating that the plaintiff did not consent to a new medical assessment at this stage in the proceeding, and stating that the plaintiff had already attended a joint defendant assessment, the proposed new assessment could not be regarded as supplementary, and asking for an explanation as to the first defendant’s preference to have the plaintiff attend a further assessment.[18]
[18]Ibid Exhibit ‘MA-13’.
On 9 February 2021, the first defendant’s solicitors wrote to the plaintiff’s solicitors maintaining that the request was reasonable and requesting the plaintiff attend to further medical assessment and referring to r 33.04 of the Supreme Court (General Civil Procedure Rules) 2015 (‘the Rules’):
Our client maintains that the defendants’ request that the plaintiff attend a further psychiatric assessment is reasonable.
We note that your client was assessed on behalf of the defendants by Dr Alan Jager on 23 June 2020. The defendants then instructed Dr Jager to prepare a supplementary report on 9 September 2020, which did not require a further examination. Your client has therefore not been assessed by the defendants’ expert for over six months.
Subsequently, on 10 September 2020, the defendants were served with a forensic accounting report by Vincents. The defendants did not have the benefit of knowing the extent of the plaintiff’s economic loss claim at the time of instructing Dr Jager to prepare his report.
Further, the plaintiff has now served a supplementary report from Dr Sandra Hacker dated 4 August 2020. We note that this report was not served on the defendants until 16 November 2020, after mediation had already occurred.
In accordance with the orders of Judicial Registrar Clayton made on 13 March 2020, the plaintiff was to serve his medical evidence by 12 June 2020. Your client was therefore significantly late in serving the supplementary report of Dr Hacker. We have not been provided with an explanation for this late service.
Significantly, the defendants again did not have the benefit of this report when instructing Dr Jager. As you know, it is our client’s usual practice to provide the plaintiff’s medical reports to its expert and ask for their comments.
It is therefore our client’s position that a further medico-legal assessment of the plaintiff is required, in order to properly explore issues identified in both the Vincents’ report and the supplementary report of Dr Hacker, both of which were served after the plaintiff was examined by Dr Jager.
The defendants would prefer to have a different expert assess the plaintiff on this occasion, noting that Dr Jager has already provided two reports and that there has been further evidence served by the plaintiff since Dr Jager’s assessment. We do not consider this request to be unreasonable, noting the additional evidence that has been served by the plaintiff and the late service of Dr Hacker’s report.
In the circumstances, your client’s refusal to attend a further medico-legal assessment is unreasonable.
Conclusion
We anticipate that we will shortly receive instructions to file an application seeking to stay the proceeding if your client does not agree to attend a further appointment with Dr Apler, which is currently scheduled on 17 March 2021.
We note that we may be able to arrange an earlier appointment on 23 February 2021 with Dr Apler. Noting that this leaves more time between the appointment and the trial date, please let us know if this would be more suitable than the 17 March appointment.
In the circumstances, we again request your client to reconsider his position with regard to attending a further medico-legal assessment. We look forward to your response by no later than Thursday 11 February at 5.00 pm.[19]
[19]Ibid Exhibit ‘MA-14’.
On 12 February 2021, the plaintiff’s solicitors wrote to the first defendant’s solicitors stating, amongst other things that the plaintiff did not agree to an assessment by a new medical expert as the request was unreasonable, at a late stage in the proceeding, and without a proper basis:
Economic loss
We note your assertion that the Defendants did not have the benefit of knowing the extent of the Plaintiff’s claim for economic loss at the time of instructing Dr Jager to prepare his medicolegal report.
We refute this assertion.
On 23 January 2020 the Defendants were served with the Writ and Statement of Claim, noting at paragraph 29 that further particulars of any claim for pecuniary loss will be provided prior to trial.
On 8 May 2020 the Defendants were served with the Plaintiff’s Affidavit of Documents, listing the Plaintiff’s financial material including income taxation returns and/or notices of assessment from 1992 to 2019 (inclusive), that clearly detail the Plaintiff’s earnings throughout this period of time. These discovered materials were provided to your office on 25 May 2020.
It is apparent in the discovered materials that the Plaintiff was a high-income earner…. The Plaintiff’s income then dramatically dropped… This information, in combination with the Dr Hacker medicolegal report dated 1 August 2017 and the Statement of Claim, telegraphed clearly that there was a substantial claim for economic loss.
On 17 June 2020 our office wrote to the Defendants noting that we are instructed to make a formal claim for economic loss on the basis of the Plaintiff’s inability to work from around 2015 to the present time, further noting that the Plaintiff is likely unable to resume to his former earning capacity into the future. In addition, we foreshadowed that an actuarial report would be provided at the time of service of the Plaintiff’s particulars of special damages. Our office proactively notified the Defendants of the Plaintiff’s loss of earnings clam as a courtesy, in view of the upcoming Dr Jager medicolegal assessment.
On 23 June 2020 the Plaintiff attended a defendant medicolegal assessment with Dr Jager. On 28 July 2020, Dr Jager furnished his medicolegal report in relation to the Plaintiff.
On 9 September 2020 the Defendants were then served with the Plaintiff’s particulars of special damages and the expert report of Vincents dated 27 August 2020.
On 15 September 2020, Dr Jager furnished his supplementary medicolegal report on in relation to the Plaintiff.
As canvassed above, the Defendants have had access to the Plaintiff’s financial materials since May 2020, a month prior to the assessment of Dr Jager. In addition, the Defendants were proactively notified of the economic loss claim and served with the Vincents report prior to the finalisation of Dr Jager’s supplementary report.
It is therefore inaccurate to assert that the Defendants were unaware of the extent of the Plaintiff’s claim for economic loss when all relevant materials, including the expert Vincents report and medicolegal report of Dr Hacker dated 1 August 2017, were provided to the Defendants prior to the finalisation of Dr Jager’s medicolegal reports.
Service of Dr Hacker’s supplementary report
We note your assertion that the Plaintiff was ‘significantly late’ in serving the supplementary medicolegal report of Dr Hacker dated 4 August 2020, and that the Defendants have not been provided with an explanation for this late service.
We note that the medicolegal report of Dr Sandra Hacker dated 4 August 2020 is a supplementary report, further to her initial report of 1 August 2017 which was discovered by the Plaintiff in the Affidavit of Documents filed 8 May 2020.
According to the Orders of Judicial Registrar Clayton made 13 March 2020, the parties are to exchange any supplementary medical and expert reports concerning damages no later than two months before the trial date. Given that this matter is listed for trial on 13 April 2021, the due date for the service of any supplementary medical report would be 15 February 2021.
Dr Hacker’s report of 4 August 2020 was served on the Defendants by letter dated 16 November 2020, being five months before trial.
It is therefore inaccurate to assert that this supplementary medicolegal report was served ‘significantly late’, as it was served on a good faith basis several months prior to any due date.
Further defendant medicolegal assessment
The Plaintiff does not consent to an assessment with a different medicolegal expert as we consider this proposal to be unreasonable and without explanation of a proper basis for the need for a fresh assessment at this late stage of the proceeding. Attendance with an alternative medicolegal psychiatrist is, by its very nature, a new assessment rather than a supplementary assessment.
It is inappropriate for the Defendants to attempt to obtain a new medicolegal assessment with an alternative expert, particularly in circumstances when the Plaintiff proactively wrote to the Defendants to outline the claim for economic loss prior to the Dr Jager assessment in June 2020.
Further, in the interests of trauma informed practice, we seek to limit the number of times the Plaintiff is to attend further medicolegal examinations. We would appreciate if your client would take into account the emotional vulnerability of survivors of childhood sexual abuse and the distress any expert examination raises.
In the event that your client elects to proceed with an application to stay the proceeding under r 33.04 as foreshadowed in your letter of 9 February 2021, we advise that any such application will be rigorously defended and this letter be produced as to the question of costs.
We note that as stipulated above, the parties are able to exchange any supplementary medical and expert reports concerning damages no later than two months before the trial date, being 15 February 2021.
The Plaintiff may be willing to consider an amendment to the interlocutory timetable to enable the Defendants to obtain a further supplementary report from Dr Jager. However, the Plaintiff is only willing to consider this proposal if the Defendants can articulate a proper basis for the need for a further assessment of the Plaintiff with Dr Jager.[20]
[20]Ibid Exhibit ‘MA-15’.
On 24 February 2021, the first defendant’s solicitors served the summons in respect of this application and the Kemp affidavit on the plaintiff’s solicitors.[21]
[21]Ibid Exhibit ‘MA-16’.
On 25 February 2021, the first defendant’s solicitors forwarded to the plaintiff’s solicitors an email from the Court detailing the timetable for the application and noting that the plaintiff’s affidavit and materials were due by 1:00 pm on 26 February 2021.[22]
[22]Ibid Exhibit ‘MA-17’.
On the following day, namely 26 February 2021, the plaintiff’s solicitors filed the Aloisio affidavit and wrote to the first defendant’s solicitors attaching a report from the plaintiff’s psychotherapist, Ms Gela de Brugiere.[23] Amongst other things, the plaintiff’s service letter stated:
We are disappointed to receive service of the Summons without the courtesy of a response to our previous letter of 12 February 2021. In this correspondence we noted that the Plaintiff may be willing to consider an amendment to the interlocutory timetable to enable the Defendants to obtain a further supplementary report from Dr Jager, should the Defendant be able to articulate a proper basis for the further assessment of the Plaintiff.
We have not been provided with an explanation from your office as to why the proposal for a supplementary assessment with Dr Alan Jager is insufficient.
We note that we are again willing to consider a supplementary assessment of the Plaintiff by Dr Alan Jager if the Defendants can express why a further assessment is necessary in all of the circumstances.[24]
[23]Ibid Exhibit ‘MA-18’.
[24]Ibid Exhibit ‘MA-18’.
First Defendant’s submissions
The first defendant asserts that a defendant is entitled to defend the claim in the manner it sees fit, and to choose the experts on which it wishes to rely. It says that its request for a further psychiatric assessment was reasonable for the following five reasons.
Firstly, the plaintiff has made a substantial economic loss claim and there is an irreconcilable divide in the positions of the current medical experts. Dr Hacker opines that the plaintiff is most unlikely to return to work in a similar role to that he previously held while Dr Jager concludes that his capacity for work is not limited. The substantial size and potential scope of the quantum here is such that it is not unreasonable to obtain further assessment: JKZ v The Scots College.[25] The amount of $2,474,033 is claimed for economic loss. The further report sought would explore the impact of the abuse on the plaintiff’s work capacity and clarify discrepancies between the current medical experts.
[25][2018] NSWSC 1526 (‘JKZ v The Scots College’).
Secondly, there have been significant changes in the plaintiff’s life since the defendants last arranged for the plaintiff to be assessed on 23 June 2020 by Dr Jager. The supplementary report of Dr Hacker notes the plaintiff has commenced voluntary work, which was found to be a positive development. In addition, Dr Hacker referred to a number of other positive developments in the plaintiff’s life including his continued weekly attendance at therapy, and ongoing performance of daily activities of life such as managing the property and household. A further medical examination will provide a more accurate and up-to-date assessment of the plaintiff’s work capacity and whether his ongoing volunteer work will provide the basis for a return to paid employment. Given that his future economic loss claim exceeds $1.4 million, this is a significant question which is reasonable for the defendant to investigate prior to trial. An up-to-date assessment of the plaintiff’s work history and capacity will assess whether there have been any changes to his condition, symptomatology and prognosis since the assessment with Dr Jager on 23 June 2020. Dr Jager’s supplementary report makes no comment in respect to the plaintiff’s work capacity.
Thirdly, there is limited evidence of the causative role played of the alleged abuse by Fitzgerald, Farrell and/or Ridsdale on the plaintiff’s condition. Further medical evidence will more thoroughly explore the question of apportionment. Current medical evidence does not fully explore the apportionment issue. Neither Dr Hacker nor Dr Jager address it in their original reports. Dr Hacker provides a brief comment in her supplementary report, affixing a percentage of liability in relation to the abuse by Ridsdale. However, she provides a combined figure for the abuse by Fitzgerald and Farrell. It is therefore unclear the exact contribution of the abuse by each respective perpetrator to the plaintiff’s condition.
Dr Jager’s supplementary report provided three brief paragraphs addressing apportionment although he had been requested to respond to that issue. Dr Jager did not respond sufficiently on the issue of apportionment. Although there is a percentage breakdown, there is not fulsome comment. In circumstances where Dr Jager has been given the opportunity to provide comment and has not, a new expert is required. It is reasonable to have a new expert deal with all the economic issues, not just apportionment.
The lack of evidence inhibits the defendants’ preparation for trial and also the prospects of settlement negotiations. Further medical assessment would assist the parties by providing further clarity as to the potential scope of liability.
Fourthly, the further medical assessment is reasonable because it is sought for a legitimate purpose and relates to central issues in the proceeding: Downing v Wein.[26] It would explore liability, causation, the plaintiff’s condition, work capacity and prognosis, which are all in dispute.
[26][2005] VSC 134 [7] (‘Downing v Wein’).
Fifthly, the request has been made in a timely manner upon the receipt of further expert material from the plaintiff and well in advance of the trial date. It was made promptly following the service by the plaintiff of the supplementary report of Dr Hacker on 16 November 2020 and the Thompson report on 9 September 2020. The request was made two weeks after receiving the supplementary report of Dr Hacker.
The first defendant also submits that the plaintiff’s refusal to attend further medical assessment was unreasonable for the following reasons.
Firstly, it was unreasonable for the plaintiff to refuse the request on the ground the first defendant’s request was out of time in circumstances where the plaintiff had been out of time in serving his own expert material, namely the Thompson report, and where the first defendant’s request was made over five months ahead of the trial date. Moreover, Dr Hacker’s supplementary report involved a full reassessment of the plaintiff and detailed opinions on all key issues. It was unreasonable for the plaintiff to refuse to submit to the medical examination where this further material needed to be considered for the first time by the defendants and responded to by them.
Secondly, a refusal on the basis of ‘trauma informed practice’ is unreasonable in circumstances where the plaintiff had attended two separate medical examinations by experts appointed on his behalf and one examination with an expert appointed by the defendants. No evidence in relation to the plaintiff’s condition was provided. It is unreasonable for the plaintiff to refuse to undergo a second medical examination for the defendants despite being prepared to undergo a second one for the benefit of his own case.
Thirdly, there is limited evidence to justify the plaintiff’s refusal to attend. He has not provided an affidavit in himself. Ms de Brugiere does not say when she last examined the plaintiff. The de Brugiere report relies on large part on the further potential stress that would be caused to him. Stress is an insufficient reason for refusal to attend a medical examination: Pyman v Whitefriars College Inc (‘Pyman’)[27]; Thomson v Transport Accident Commission (‘Thomson’)[28]. The report does not detail the impact of attending previous medical appointments upon the plaintiff and the very real [risk of] harm going forward cf. Pyman; Boyle v The Salesian Society (Vic) Inc (‘Boyle’).[29]
[27][2019] VSC 361 (‘Pyman’).
[28](2020) 92 MVR 181 (‘Thomson’).
[29][2021] VSC 47 (‘Boyle’).
Fourthly, the de Brugiere report refers to a risk to the plaintiff arising from his experiences being disbelieved in his allegations. However any experts appointed are independent and must abide by the Expert Code of Conduct. Any exploration of allegations will not involve the veracity of credibility being tested by the expert.
Alternatively, the right of the first defendant to prepare its defence and engage in a medical expert of its own choosing outweighs the plaintiff’s interest in refusing to submit to a further medical examination.
The first defendant’s submissions and application are supported by the second defendant.[30] The second defendant did not make any substantive submissions.
[30]Letter to the Institutional Liability List of the Court from the second defendant’s solicitors dated 1 March 2021.
Plaintiff’s submissions
The plaintiff contends that the first defendant’s request that he attend an examination with a new medicolegal psychiatrist at this late stage of the proceeding is unreasonable.
Firstly, the plaintiff has already attended a psychiatric examination organised by the defendants with Dr Jager. Dr Jager has produced two reports in which he opines that the plaintiff fulfils the diagnostic criteria for chronic post-traumatic stress disorder and that his current psychopathology is entirely due to the abuse the subject of this proceeding. On behalf of the plaintiff, Dr Hacker produced two reports in which she diagnoses the plaintiff as suffering from post-traumatic stress disorder resulting from the abuse the subject of the proceeding.
Secondly, the evidence of the Ms de Brugiere, psychotherapist, is that requiring the plaintiff to attend another assessment by an unfamiliar psychiatrist will cause a regression in his fragile mental state. Ms de Brugiere refers to the stress and anxiety caused by the plaintiff having to attend previous assessments, and the resulting deterioration in his mental health including sleepless nights, nightmares, constant agitation, and a heightened number of intrusive traumatic memories that left him feeling helpless and hopeless. Ms de Brugiere goes into a great deal of detail. It shows there will be a real detriment to the plaintiff in having a further assessment.
Ms de Brugiere is the plaintiff’s treating psychotherapist. The evidence is that since early 2016, he has weekly therapy with Ms de Brugiere and weekly group psychotherapy sessions.[31]
[31]Aloisio Affidavit (n 4) Exhibit MA-9 [32].
In reply to the first defendant’s submissions: the plaintiff’s expert reports were three years apart, namely Dr Hacker’s reports in 2017 and 2020. On the other hand, the defendants are seeking to have the plaintiff examined twice by different experts in the space of nine months.
Thirdly, the first defendant has not given any or adequate explanation as to why further examination is required and why the matters it says it wishes to address cannot be addressed by way of a supplementary report from Dr Jager.
The Kemp affidavit deposes that a further medicolegal opinion is sought on ‘the question of the extent (if any) that the plaintiff’s loss and damage relates to the alleged sexual assaults, as distinct from other potential causative factors, and the impact (if any) of the alleged sexual assaults on the plaintiff’s employment capacity’. However, Dr Jager has already clearly opined that in his view the only current contributor to the plaintiff’s psychopathology is the abuse the subject of the proceeding. He does, however, opine that the plaintiff’s capacity for work is not limited, in comparison to Dr Hacker. It appears from the Kemp affidavit that the first defendant is merely looking for a fresh pair of eyes in respect of the causation of the plaintiff’s current psychiatric condition. This is an insufficient reason to make the request for a new examination reasonable: Thomson.
The reasons previously given by the first defendant in their correspondence dated 9 February 2021 (cited above) no longer appear to be pressed. If they are, the plaintiff refers to his solicitor’s correspondence dated 12 February 2021 (cited above).
There is no reason why Dr Jager could not have been asked to opine further about the extent of the plaintiff’s economic loss claim in his supplementary report. That report was provided after the Thompson report was served.
As to the supplementary report of Dr Hacker, there is no reason why Dr Jager could not have been asked to comment on it long before now and equally no reason why it could still not be done, providing it can be served within a timeframe that does not prejudice the trial date. Dr Hacker’s supplementary report was served within the timeframe made by the orders on 13 March 2020, and indeed almost three months prior to the deadline.
Dr Jager responded to the second defendant’s questions in his report including on the question of apportionment.[32] The defendant criticises the expert but has failed to follow up with him to clarify: see Thomson and Boyle where the Court criticised the defendant failing to do so.
[32]Aloisio Affidavit (n 4) Exhibit MA-8, [7.3].
In their correspondence of 10 December 2020 and 28 January 2021 (both cited above), the plaintiff’s solicitors sought an explanation as to why a further expert was required. The Kemp affidavit deposes that it is not anticipated that Dr Jager’s views would change if a further supplementary report is sought.[33] That was not stated in the first defendant’s correspondence of 9 February 2021 (cited above). It was not until receiving correspondence that the first defendant provide an explanation as to why a further expert was required. However it did not address why a different expert is required.
[33]Kemp Affidavit (n 4) [24].
It is not uncommon for the Court to deal with experts that do not agree. Divergent views are tested through cross-examination or clarified by supplementary reports. Obtaining a further report from a new expert does not necessarily bring clarity. It may do the opposite.
Whilst the quantum of the plaintiff’s claim is large, that should not be a licence to engage in new medical expert. Here, in comparison to JKZ v The Scots College (relied on by the second defendant), the plaintiff has already been examined by medical experts. Moreover, the plaintiff discovered and provided the defendants with copies of his financial documents in May 2020 (as discussed above). The defendants have been on notice since the correspondence of the plaintiff’s solicitor dated 17 June 2020 (cited above) that the plaintiff proposed to obtain an actuarial report and serve it with his particulars of special damage.[34]
[34]Aloisoi Affidavit (n 4) [5] and [8].
Fourthly, the plaintiff has indicated a willingness to attend a further examination with Dr Jager if a proper basis for it is articulated by the first defendant: see letters of 12 and 26 February 2021 (cited above).
Applicable principles
The first defendant’s application is made pursuant to r 33.04 of the Rules. Rule 33.04(1) permits a defendant to request a plaintiff submit to appropriate examinations by a medical expert or experts at specified times and places. Rule 33.04(2) states:
Where a plaintiff refuses or neglects, without reasonable cause, to comply with the request under [r.33.04(1)], the Court may, if the request was on reasonable terms, stay the proceeding.
The relevant principles are not in dispute. In Pyman, Forbes J outlined the following principles, which I gratefully adopt:
The application of a stay of proceedings sought by the defendant requires the exercise of discretion by the Court. I must be satisfied of two things:
(a)that the plaintiff’s refusal to attend was without reasonable grounds, and
(b)that the defendant’s request to attend the examination was reasonable.
Where both the request is reasonable and the refusal is on reasonable grounds, I am required to balance the competing interests of the parties in the litigation and their ability to present and defend their case. Both parties referred in submissions to Stace v Commonwealth. That case sets out the following three general principles in considering applications of this kind:
1.The decision whether or not to grant a stay involves the exercise of a discretion;
2.In exercising the discretion it is necessary for the Court to balance the right of the plaintiff to personal liberty against the right of the defendant to prepare a defence of the litigation as it sees fit; and
3.In determining whether either the request of the defendant and the refusal of the plaintiff is reasonable the question is not whether the request or objection is objectively reasonable but whether it is reasonable in light of the information or advice which the parties receive from their respective advisers.[35]
[35]Pyman (n 27) [11]–[12] citing Stace v Commonwealth (1989) 51 SASR 391 (citations omitted).
I also note the summary of relevant cases by Clayton JR (as her Honour then was) in Thomson.[36]
[36]Thomson (n 28) 180-181 [20] – [35].
In Downing v Wein, Kaye J held that a plaintiff should submit to an MRI scan. Kaye J was satisfied on the evidence that the scan was sought for legitimate purposes relating to a central issue in litigation, namely causation.[37] The first defendant relied upon that as a general proposition and says it is applicable here. I disagree. The circumstances are very different to here. Firstly, here both Dr Hacker and Dr Jager agree that the alleged abuse is the only cause of the current symptomology of the plaintiff’s post-traumatic stress disorder. Secondly, in Downing v Wein, there was no evidence that the plaintiff was at any real risk of injury by undertaking the scan if it could be administered without a general anaesthetic and without contrast dye.[38] Here, as outlined below, there is evidence of the plaintiff being harmed if required to undergo another psychiatric examination.
[37]Downing v Wein (n 26) [7].
[38]Ibid [14].
Analysis
I find the first defendant’s request that the plaintiff submit to a medical examination by a new expert to be unreasonable for the following reasons.
Firstly, the request was made on 2 December 2020, approximately four-and-a-half months after the expiry of orders providing for service of expert medical reports by 24 July 2020. The defendants had ample notice of that deadline because the orders were made over four months earlier, namely on 13 March 2020.
Secondly, the first defendant has failed to provide an adequate explanation as to why it delayed so long in making the request. Its submissions that the request was made in a timely manner must be categorically rejected. The first defendant refers to the service of the service of the Thompson report on 9 September 2020 as one explanation for its late request. However, that report was received by the first defendant prior to it receiving the supplementary report from Dr Jager and there is no proper explanation as to why it did not provide the Thompson report to Dr Jager in order for him to address it in his supplementary report. The failure to provide Dr Jager with the Thompson report is at odds with the first defendant’s submission that the size of the plaintiff’s economic loss claim warrants another assessment. I should add that the Thompson report was served late, however, as outlined previously, the defendants were on notice from 17 June 2020 that the plaintiff proposed to obtain an actuarial report and serve it with his particulars of special damage. Prior to that, the defendants had received the plaintiff’s financial documents in May 2020 as part of the discovery process.
The first defendant refers to the service of the supplementary report of Dr Hacker on 16 November 2020 as another explanation for the request. It says that that report contains a full reassessment of the plaintiff. The report is substantial, however, it is a supplementary one, and it is noted to be read with the previous report by Dr Hacker. Dr Hacker’s supplementary report was provided three months early, that is three months prior to the date by which supplementary reports needed to be filed, namely 13 February 2021. Accordingly, the first defendant had ample time to arrange a further supplementary report from Dr Jager in response to Dr Hacker’s supplementary report.
Thirdly, the first defendant has provided no adequate explanation as to why a new expert is required so late in the proceeding. It refers to divergent opinions between Dr Jager and Dr Hacker on the question of the plaintiff’s work capacity. Dr Jager opines the plaintiff’s work capacity is not limited.[39] On the other hand, Dr Hacker opines that although the plaintiff may be able to undertake a certain type of work on a part-time basis, namely board work, it is most unlikely that the plaintiff will be able to return to work in a role similar to that he previously held.[40] It is ultimately a matter for the Court to assess the competing medical opinions before it, together with other evidence, including any evidence given by the plaintiff, as to whether or not he has work capacity. As the plaintiff submits, obtaining a further medical report will not necessarily resolve the issue. Moreover, if the first defendant was truly concerned with obtaining an up-to-date assessment of the plaintiff, including as to his work capacity, then it could have requested Dr Jager address the issue in a further supplementary report.
[39]Aloisio Affidavit (n 4) Exhibit MA-6, 9 [8.10].
[40]Kemp Affidavit (n 4) Exhibit VEK-4, 11-12.
The first defendant submits that there is limited evidence of the causative role played of the alleged abuse of the plaintiff’s condition and that further medical evidence would more thoroughly explore the question of apportionment. However, as the plaintiff submits, both Dr Hacker and Dr Jager have opined that the plaintiff has chronic, or complex, post-traumatic stress disorder, entirely due to the alleged abuse.[41]
[41]Aloisio Affidavit (n 4) Exhibit MA-3, 8; Exhibit MA-9, 10; Exhibit MA-8 [7.2] and [7.4].
The first defendant submits that Dr Jager has not sufficiently addressed apportionment. However, it appears that Dr Jager answered the question asked of him by the defendants regarding apportionment. This included providing a percentage breakdown of apportionment and a general comment.[42] In this regard, the Kemp affidavit is telling. It is deposed that the defendants do not anticipate that Dr Jager’s opinion will change if a further supplementary report is sought from him.[43]
[42]Ibid Exhibit MA-8 [7.3].
[43]Kemp Affidavit (n 4) [24].
Given all of the above, I reject the first defendant’s submission that a medical report by a new expert is required because there is a lack of evidence and that may inhibit preparation for trial and any settlement negotiations.
I find the plaintiff’s refusal to attend the proposed examination to be entirely reasonable.
Firstly, I accept evidence of his treating psychoanalyst, Ms de Brugiere, that it will cause him further stress and harm. Ms de Brugiere has treated the plaintiff for more than five years. He attends weekly therapy with her, and also weekly group therapy.[44] Ms de Brugiere’s opinion is that the plaintiff’s emotional and mental state is fragile, and that assessments that demand his recollection of the abuse will re‑trigger his trauma.[45] She states that she has witnessed the effect of three previous assessments on the plaintiff. Ms de Brugiere refers to a regression of the plaintiff’s condition and details its manifestations.
[44]Aloisio Affidavit (n 4) Exhibit MA-9 [32].
[45]Ibid Exhibit MA-18, 1.
I reject the first defendant’s submission that because the medical expert would not be testing the veracity of the plaintiff’s allegations, and is bound by the Expert Code of Conduct, that there is very little risk to the plaintiff arising from his experiences of being disbelieved. That submission ignores the evidence given by Ms de Brugiere of the effect of previous examinations on the plaintiff. It is inconsistent with her opinion that the further examination will cause the plaintiff further stress and harm.
I also reject the first defendant’s criticism of the plaintiff’s solicitors taking a trauma‑informed approach. Such an approach is entirely reasonable. The first defendant says it is unreasonable because the plaintiff had attended two separate examinations with Dr Hacker and another with Dr Jager. However, as the plaintiff says, the reports with Dr Hacker were three years apart, and the second report with Dr Hacker was a supplementary one. Here the defendants are seeking to have the plaintiff examined twice by different experts in the space of eight to nine months. I observe too that the diagnoses by both Dr Hacker and Dr Jager, together with Ms de Brugiere’s report, support taking a trauma informed approach.
Secondly, the plaintiff has already attended a psychiatric examination by Dr Jager, which was arranged by the defendants.
Thirdly, as outlined in the correspondence earlier, the plaintiff has repeatedly offered to attend a further examination with Dr Jager if the defendants articulate a proper basis as to why it is needed. There is no satisfactory explanation as to why this offer has not been taken up.
Finally, even if the first defendant’s request was considered reasonable, justice lies in disallowing the application. In balancing the interests of the parties, I am not satisfied that any prejudice suffered by the defendants in proceeding to trial without further medical examination and opinion from a new medical expert justifies stay of the proceedings. I am not satisfied it is such that it prevents their defence of the proceeding. On the other hand, the risk of harm to the plaintiff associated with such an examination is evident.
Conclusion
I gratefully acknowledge the assistance of both counsel. Their written and oral submissions facilitated timely disposition of the matter.
I made the following orders ex tempore.
The first defendant’s application made by summons filed on 24 February 2021, and supported by the second defendant, is dismissed.
The first defendant pay the plaintiff’s costs of, incidental to and occasioned by the first defendant’s summons filed on 24 February 2021.
The second defendant bear its own costs in respect of the summons filed on 24 February 2021.
SCHEDULE OF PARTIES
| S ECI 2020 00289 | |
| BETWEEN: | |
| JOHN KELLY | Plaintiff |
| - v - | |
| TRUSTEES OF THE CHRISTIAN BROTHERS (as the proper Defendant for the OCEANIA PROVINCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS pursuant to the Legal Identity of Defendants (Organisational Child Abuse) Act 2018) | First Defendant |
| THE CATHOLIC DICOESE OF BALLARAT | Second Defendant |
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