Parr v Slater and Gordon Ltd
[2018] WASC 140
•11 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PARR -v- SLATER & GORDON LTD [2018] WASC 140
CORAM: DERRICK J
HEARD: 3 MAY 2018
DELIVERED : 11 MAY 2018
FILE NO/S: CIV 3146 of 2017
BETWEEN: ALISTAIR LACHLAN PARR
Plaintiff
AND
SLATER & GORDON LTD
Defendant
Catchwords:
Practice and procedure - Alleged negligence of solicitors - Allegation solicitors should have made use of psychiatric report concerning plaintiff - Application for order that plaintiff submit himself to psychiatric examination pursuant to O 28 r 1(2A) of the Rules of the Supreme Court 1971 (WA)
Legislation:
Rules of the Supreme Court 1971 (WA), O 28 r 1
Result:
Application allowed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr G R Hancy |
| Defendant | : | Mr G P Bourhill |
Solicitors:
| Plaintiff | : | Fletcher Law |
| Defendant | : | Denman Popperwell Lawyers |
Case(s) referred to in decision(s):
Cranston v Kiernan [2017] WASCA 100
Falkingham v Hoffmans (A Firm) [2014] WASCA 140; (2014) 46 WAR 510
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Perpetual Trustees (WA) Ltd v Naso [1999] WASCA 80; (1999) 21 WAR 191
DERRICK J:
The defendant applies pursuant to O 28 r 1(2A) of the Rules of the Supreme Court 1971 (WA) (RSC) for an order that the plaintiff submit himself to examination by Dr Diane Neill, psychiatrist. The application is supported by an affidavit sworn by Mr Sean Popperwell on 13 April 2018 and a further affidavit sworn by Mr Popperwell on 1 May 2018. Mr Popperwell is a partner in the firm of the solicitors acting for the defendant.
The application is opposed by the plaintiff.
Background to the application
On 24 September 2008 the plaintiff suffered an injury (the work injury) while he was working as a boilermaker welder at the Argyle Diamond Mine. He subsequently commenced an action in the District Court of Western Australia (the first action) against the entities for which he was working (the primary claim defendants) claiming damages for loss suffered as a result of the work injury. He retained the defendant to represent him in the first action on a 'no win no fee' basis.
On 28 August 2012 at a pre‑trial conference in the District Court the primary claim defendants made an offer to settle the first action (the settlement offer). The plaintiff accepted the settlement offer with the result that the first action was settled. The plaintiff's acceptance of the settlement offer was in accordance with the recommendation of the defendant.
The plaintiff commenced the present action against the defendant in August 2015. He alleges that the defendant was negligent in its representation of him in the first action. He also alleges that the defendant breached the retainer that he entered into with the defendant.
The plaintiff alleges that by reason of the defendant's negligence and breach of the retainer he suffered loss and damage in that he lost his right to recover damages and the associated opportunity to recover at a later settlement or after trial a greater sum than the amount paid to him on his acceptance of the settlement offer.
The defendant denies the alleged breach of duty and breach of retainer. The defendant denies that the plaintiff is entitled to damages.
One of the specific allegations that the plaintiff makes as part of his allegation that the defendant was negligent and breached the retainer is that the defendant failed to advise him 'on, and on the significance of', and failed to make proper use of, a report that the defendant had obtained from psychiatrist Dr Michael Epstein dated 16 December 2011 following Dr Epstein's psychiatric assessment of him on 15 December 2011. The plaintiff's contention is, in essence, that had the defendant made proper use of Dr Epstein's opinion in its negotiations with the primary claim defendants it would have secured for the plaintiff a higher settlement offer, or allowed the matter to proceed to trial with the result that he would have received an award of damages higher than the amount which he received on acceptance of the settlement offer.
In his report Dr Epstein concluded that the plaintiff had suffered, in association with the work injury, the development of a Major Depressive Disorder with significant symptoms of anger, anxiety and depression. Dr Epstein also concluded that the combination of the physical and psychological effects of the work injury had led to the plaintiff being 'totally incapacitated for work at the moment'. Dr Epstein expressed the view that the plaintiff's prognosis for improvement was limited unless he had psychiatric treatment.
Legal principles
Order 28 r 1(2A) vests a discretion in the court. The discretion is to be exercised in the interests of justice having regard to the evident subject matter, scope and purpose of the power: Cranston v Kiernan [2017] WASCA 100 [39]. In the exercise of the discretion the court will ordinarily do the following:
1.Assess whether the request of the applicant for the respondent to submit to an examination is reasonable in light of the information and advice received from the applicant's expert;
2.Assess whether the respondent's refusal to submit to the examination is reasonable;
3.If both the request and the refusal are reasonable, balance the respondent's right to personal liberty against the applicant's right to defend the litigation, one right not being considered more important than the other; and
4.Examine objectively the weight of the reasonableness of the applicant's request against the weight of the respondent's objection and balance one against the other to ensure a just determination of the cause: Cranston v Kiernan [24] ‑ [25], [39].
Although an order that a party to proceedings undergo a medical examination is normally made in personal injuries cases, it is not confined to those types of cases: Cranston v Kiernan.
The defendant's asserted basis for the application
The defendant has obtained a witness statement from Mr Anthony Basile dated 27 March 2018. Mr Basile is a legal practitioner and a partner in the law practice SRB Legal. Mr Basile is the solicitor who acted for the primary claim defendants in the first action.
In his statement Mr Basile states that he was provided with a copy of Dr Epstein's report in early August 2012, that is, prior to the pre‑trial conference. He states that when he received the copy of Dr Epstein's report he identified issues that would have encouraged him to recommend to his clients that he seek a second opinion on the plaintiff's psychiatric injury as diagnosed by Dr Epstein. He notes in this regard that there are references in Dr Epstein's report to the suicide of the plaintiff's partner, the plaintiff's drug and alcohol abuse, and to some other issues also. He further notes that Dr Epstein makes no comments in his report about treatment and future capacity. Mr Basile states that in circumstances where issues such as these arise in a medical report served in support of a plaintiff's claim, it is his usual practice to test the medical evidence presented by requesting a different medical practitioner to review and report on the particular plaintiff. He states that when instructing that medical practitioner his usual practice is to seek a diagnosis of the plaintiff's condition and to request the medical practitioner's opinion on the cause of the plaintiff's condition, the plaintiff's capacity and the plaintiff's treatment needs.
It is apparent from reading Mr Basile's statement that the reason he did not, in light of Dr Epstein's report, proceed to request a different medical practitioner to review the plaintiff is that the plaintiff did not, in the lead up to the pre‑trial conference or at the pre‑trial conference, press a claim in reliance on Dr Epstein's report that he had a continuing incapacity for work.
The defendant makes its application with a view to obtaining a report of the type that Mr Basile would have obtained in the first action if the first action had not settled. The defendant submits that given that what has to be assessed is the value of the loss of the plaintiffs' right to claim damages as at the date on which the cause of action against the defendant is said to have crystallised, namely the date on which the first action settled, it is necessary for it, in order to properly defend the action, to obtain a report from a psychiatrist in the same manner that the primary claim defendants or their solicitor would have done if the plaintiff had in the first action placed reliance on Dr Epstein's report. The defendant submits that it is necessary for it to obtain such a report because it is only by doing so that it can assess the likelihood that any reliance by the plaintiff on Dr Epstein's report in the first action would have resulted in an increased settlement offer or an award of damages after trial that was in excess of the settlement offer.
In support of its submissions the defendant refers to a number of decisions in which it has been made clear that in assessing the value of a plaintiff's lost opportunity alleged to have been caused by the negligence of solicitors, evidence obtained after the cause of action against the solicitors is said to have arisen is admissible subject to questions of foreseeability: Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, 368 ‑ 369; Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, 404; Falkingham v Hoffmans (A Firm) [2014] WASCA 140; (2014) 46 WAR 510 [226] ‑ [229]. Thus in Johnson v Perez Wilson, Toohey and Gaudron JJ said (368 ‑ 369):
[T]he fact that the respondent's damages are to be assessed as at the time each action was dismissed for want of prosecution does not mean that evidence is excluded of events occurring since the dismissal. Such evidence may be relevant in a number of ways. In the first place, it may assist the court in placing itself in the position of the trial judge at the notional trial when a judgment was to be made of the likely losses that would be suffered by the respondent in the future and for which the employer was to be held responsible …
Secondly, in a case where witnesses have died or there is a paucity of evidence (perhaps because of the negligence of the solicitor) touching the condition of a plaintiff at the time of a notional trial, the evidence relating to subsequent events (including, for example, later medical reports on a plaintiff) may assist a court in piecing together the case that could, but for the negligence of the solicitor, have been made out in the trial of the earlier action … In each of these two respects, the evidence is received for the purpose of assessing the damages that the plaintiff was likely to have been awarded had the action gone to trial. Of course, difficult questions may arise as to whether a particular disability was known or foreseeable at that earlier time but that does not detract from the basic principle. There is a third basis on which evidence of subsequent events may be tendered, namely, in the prosecution of a claim of aggravation of injury or other loss directly attributable to the negligence of the solicitor.
Similarly, in Nikolaou v Papasavas, Phillips & Co Wilson, Dawson, Toohey and Gaudron JJ said (404):
For reasons which are set out in some detail in Johnson v Perez, his Honour should first have focused on Mr Nikolaou's situation when his claim for damages for personal injuries became statute‑barred. He should have assessed damages by reference to the loss at that date of the right to claim damages. That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved - the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and (an issue which would not be a problem in the present case) the prospects of any judgment given in favour of the plaintiff being satisfied - in order to arrive at a figure representing the loss suffered by the plaintiff when his action against the defendant was dismissed.
The plaintiff's opposition to the application
The plaintiff opposes the application essentially on three main grounds. First, the plaintiff contends that what the defendant is seeking by the application is not actually an 'examination' of the plaintiff within the meaning of O 28 r 1 of the RSC. Second, the plaintiff contends that even if what is being sought by the defendant is an examination within the meaning of O 28 r 1, the evidence that the defendant is seeking to obtain by way of the examination is irrelevant. Third, the plaintiff contends that the proposed examination the subject of the application will, in the circumstances of the case, be of no utility. I will deal with each of these grounds of opposition to the application in turn.
I note that it is common ground between the parties that for the purpose of dealing with the application I should proceed on the assumption that a later settlement or trial of the first action is likely to have occurred by no later than the end of 2014.
First ground - the application is not seeking an examination
In Perpetual Trustees (WA) Ltd v Naso [1999] WASCA 80; (1999) 21 WAR 191, 196 the court held that the term 'examination' used in the context of O 28 r 1 is to be understood in the light of normal medical practice and may involve tests and injections. The court concluded that the proposed psychiatric examination in that case, which involved computerised tomography and probably magnetic resonance imaging, prima facie appeared to be within 'such an understanding of examination'.
Annexed to the first affidavit of Mr Popperwell is the defendant's proposed letter of instruction to Dr Neill. By the letter the defendant requests Dr Neill to 'review' the plaintiff in her rooms and, having conducted the review, to provide her opinion in response to a number of questions. Specifically, Dr Neill is asked for her opinion in response to the following questions:
a.[W]hether, as opined by Dr Epstein, it is probable that by December 2011 [the plaintiff] had developed a Major Depressive Disorder with significant symptoms of anger, anxiety and depression;
b.[W]hether, at the date of your review, [the plaintiff] continues to suffer from the Major Depressive Disorder diagnosed by Dr Epstein and:
i.if so, whether you consider, as Dr Epstein opines, [the plaintiff's] Major Depressive Disorder has been significantly caused by his workplace injury, and whether you agree with the reasons on which Dr Epstein based his diagnosis or whether you base your diagnosis on different reasons; and
ii.if not, are you able to say when [the plaintiff] ceased to have that Major Depressive Disorder;
c.[W]hether, as opined by Dr Epstein, it is probable that in December 2011 the combination of the physical and psychological effects of the workplace had resulted in [the plaintiff] being totally incapacitated for work, and if so, what percentage would you attribute to a diagnosable psychiatric injury directly resulting from the workplace injury;
d.[A]re you able to identify any limitations on the type of work that [the plaintiff] would have been capable of undertaking as a result of a Major Depressive Disorder;
e.[W]hether, as opined by Dr Epstein, it is probable that in December 2011 [the plaintiff]: (1) required the use of psychotropic medication to help deal with a Major Depressive Disorder; and (2) whether, as opined by Dr Epstein, it is probable that in December 2011, [the plaintiff's] prognosis for improvement was limited unless he had some psychiatric treatment. If so:
i.identify the psychotropic medication (or other treatment) that, in your view, ought to have been prescribed and for what period; and
ii.what impact, if any, do you consider that medication or treatment would have had on [the plaintiff's] capacity for work;
f.[W]hether, as opined by Dr Epstein, it is probable that in December 2011 [the plaintiff's] Major Depressive Disorder was stable;
g.[W]hether, at the date of your review, you consider [the plaintiff] requires the use of psychotropic medication (or other treatment) to deal with a Major Depressive Disorder (or some other diagnosable psychiatric injury). If so:
i.identify the medication or treatment that, in your view, ought to be prescribed and for what period; and
ii.what impact, if any, do you consider that medication or treatment would have had on [the plaintiff's] capacity for work; and
h.[W]hether, at the date of your review, you consider [the plaintiff's] diagnosable psychiatric injury, if any, is stable.
It is clear from reading the proposed letter of instruction that the defendant is not contemplating by its request that Dr Neill subject the plaintiff to any form of physical examination or other form of physically invasive testing. Rather, it is clear that what is envisaged is that Dr Neill will carry out her review of the plaintiff by interviewing him and then, on the basis of the information obtained during the interview and from other material provided to her (which is specified in the proposed letter of instruction), arrive at the opinions necessary to enable her to answer the questions asked of her. In the context of psychiatric examinations and assessments there is, of course, nothing particularly unusual about this. Many psychiatric assessments are carried out by the psychiatrist interviewing the patient with a view to obtaining information that the psychiatrist needs in order to arrive at an opinion about the patient's psychiatric state. Indeed, it is apparent from reading the report of Dr Epstein that this is exactly the procedure that he adopted when he reviewed the plaintiff for the purpose of providing the opinions set out in his report.
The submission made on behalf of the plaintiff, however, is that what makes the present proposal something that falls outside the scope of an 'examination' within the meaning of O 28 r 1 is that the defendant, by asking Dr Neill (at least in some of the proposed questions) for her opinion as to the condition of the plaintiff, the impact of his condition on his work capacity and his need for medication and psychiatric treatment at the time of Dr Epstein's review of the plaintiff, is necessarily asking Dr Neill to interview and question the plaintiff about his recollection of his personal circumstances, his mental health and his presentation generally at the time that he was reviewed by Dr Epstein, that is, in excess of six years ago. As the plaintiff's counsel put the argument, the defendant is not seeking an opinion on the plaintiff's current psychiatric condition but is seeking, through Dr Neill, to conduct an interrogation of the plaintiff as to his recollection of how he felt several years ago. It is submitted that this process cannot be said to be normal psychiatric practice and is therefore not an 'examination' within the meaning of O 28 r 1.
I do not accept the submission made on behalf of the plaintiff. As was pointed out by the defendant's counsel, psychiatrists are on occasions required to express their opinion about a patient's psychiatric condition at different times and, as a consequence, to question the patient about his or her recollection of their personal circumstances, symptoms and condition generally at different times. This being the case I am not persuaded that what is being proposed by the application is not an 'examination' of the plaintiff in light of normal medical (psychiatric) practice.
Second ground ‑ the evidence sought to be obtained by the examination is not relevant
I turn to the plaintiff's relevance argument.
The plaintiff accepts, consistently with the above referred to authorities, that evidence relating to facts or matters that occurred or arose after 28 August 2012 and up until the assumed date of a later settlement or trial of the first action, and that came into existence during that time period, is relevant to determining the value of the plaintiff's claimed lost right. The plaintiff's submission, however, is that the evidence that the defendant is seeking to obtain by the application does not fall within this category of evidence and is therefore irrelevant. The plaintiff's submission in this regard needs to be considered by reference to the two categories of questions set out in the proposed letter of instruction to Dr Neill, those two categories being the questions directed at obtaining Dr Neill's opinion in relation to the plaintiff as at the date of Dr Epstein's review of the plaintiff, and the questions directed at obtaining Dr Neill's opinion in relation to the plaintiff as at the date of Dr Neill's review of the plaintiff.
The first and third to sixth of the questions set out in the proposed letter of instruction (questions a, c, d, e and f), are directed at seeking Dr Neill's opinion as to the plaintiff's condition, the impact of the plaintiff's condition on his work capacity, and the plaintiff's need for medication and psychiatric treatment as at the date of Dr Epstein's review of the plaintiff. The plaintiff advances, in essence, two arguments in support of the submission that the evidence sought to be obtained from Dr Neill by asking these questions is irrelevant.
The first of the arguments advanced by the plaintiff is that Dr Neill's opinion as to the condition of the plaintiff, the impact of the plaintiff's condition on his work capacity, and the plaintiff's need for medication and psychiatric treatment as at the date that Dr Epstein reviewed him, namely December 2011, is not relevant given that the date on which the plaintiff's cause of action is said to have crystallised is 28 August 2012. I accept this submission. Indeed during the course of his oral submissions the defendant's counsel seemed to approach the matter on the basis that what the defendant was really intending to obtain from Dr Neill was her opinion as to the matters covered in the questions as at 28 August 2012 and up until the assumed date of any later settlement or trial of the first action. In any event, in my view this difficulty with the application can be remedied relatively easily by requiring the defendant to redraft the proposed letter of instruction in terms requesting Dr Neill's opinion as to the condition of the plaintiff, the impact of the plaintiff's condition on his work capacity, and the plaintiff's need for medication and psychiatric treatment during the period between 28 August 2012 and the assumed date of any later settlement or trial of the action. Accordingly, I would not refuse the application on the basis of the current wording of the first and third to sixth questions set out in the proposed letter of instruction.
The second of the two arguments advanced by the plaintiff in support of its contention that the evidence sought to be obtained from Dr Neill by asking the first and third to sixth questions set out in the proposed letter of instruction is irrelevant, is that there is no evidence that Mr Basile would have instructed Dr Neill, as opposed to some other psychiatrist, to report on the plaintiff's psychiatric condition at any time before the assumed date of a later settlement or trial of the first action. It is argued that Dr Neill cannot give evidence in 2018 of an opinion that another unknown psychiatrist would have expressed in 2011 or at any time before a later settlement or trial of the first action. To put it another way, the argument is that the opinion of a psychiatrist who is not shown on the evidence to be the psychiatrist who would have been instructed to provide the relevant opinion is not relevant to the determination of the value of the plaintiff's claimed lost right.
I do not think that it is strictly correct to say, as the plaintiff does, that the defendant is seeking by the application to obtain from Dr Neill evidence of the opinion that another unknown psychiatrist would have given in 2011 or at any time prior to the assumed date of any later settlement or trial of the action. Rather, the defendant is seeking by the application to obtain from Dr Neill her opinion as to the plaintiff's condition, the impact of his condition on his work capacity and his need for medication and psychiatric treatment at a point in time prior to the assumed date of any later settlement or trial of the action, and then to rely on her opinion as evidence of the psychiatric opinion that would, or that might, have been obtained by the primary claim defendants had the plaintiff pressed a claim in reliance on Dr Epstein's report that he had a continuing incapacity for work. It is on this basis that the defendant asserts that the opinion evidence sought to be obtained is relevant.
It obviously would be preferable from the defendant's perspective if it could, by the evidence, establish the identity of the psychiatrist that it would have instructed to provide an opinion if the plaintiff had, in reliance on Dr Epstein's report, pressed a claim that he had a continuing incapacity for work. However, the defendant, for obvious reasons and through no fault of its own, is unable to do this. In any event, I do not accept the submission that is in substance made by the plaintiff, that is, that the only psychiatric opinion that could be of relevance to the determination of the value of the plaintiff's claimed lost right is the opinion of the psychiatrist who would have been instructed by Mr Basile to provide an opinion if the plaintiff had pressed a claim in reliance on Dr Epstein's report that he had a continuing incapacity for work. In my view, the opinion of Dr Neill given in response to the first and third to sixth of the questions set out in the proposed letter of instruction will be evidence of the opinion that at least might have been obtained by the primary claim defendants if the plaintiff had pressed a claim in reliance on Dr Epstein's report that he had a continuing incapacity for work. It is also my view that evidence of the opinion that might have been obtained by the primary claim defendants if the plaintiff had pressed a claim in reliance on Dr Epstein's report that he had a continuing incapacity for work, is evidence that will be relevant to the court's determination of whether the plaintiff has proved on the balance of probabilities that he did in fact lose the claimed right as a result of the alleged negligence of the defendant (Falkingham v Hoffmans [216] ‑ [218]); that is, the right to recover at the assumed date of the later settlement or trial of the first action a greater sum than the amount paid to him on his acceptance of the settlement offer. Finally, I also consider that the evidence of the opinion that might have been obtained by the primary claim defendants if the plaintiff had pressed a claim in reliance on Dr Epstein's report that he had a continuing incapacity for work, is evidence that may be relevant to the quantification of the value of the plaintiff's claimed lost right, assuming that he proves on the balance of probabilities that he did lose the right: Falkingham v Hoffmans [219] ‑ [223]. For these reasons I do not accept the plaintiff's second argument advanced in support of the submission that the evidence sought to be obtained from Dr Neill by asking the first and third to sixth questions set out in the proposed letter of instruction is irrelevant.
That leaves the second, seventh and eighth of the questions set out in the proposed letter of instruction (questions b, g and h). These are the questions directed at obtaining Dr Neill's opinion in relation to the plaintiff's condition, the impact of his condition on his work capacity, and his need for medication and psychiatric treatment as at the date of her review of the plaintiff. Evidence of a psychiatrist's opinion as to these matters is self‑evidently not evidence that could have been obtained by the defendant during the period between 28 August 2012 and the assumed date of the later settlement or trial of the first action, namely the end of 2014. Thus, and although the plaintiff's counsel conceded in oral argument that evidence relating to the plaintiff's condition for a short period of time after the end of 2014 might be relevant and admissible in order to show the evidence that might have been presented to a decision maker at the end of 2014, the submission made on behalf of the plaintiff is that the evidence sought to be obtained by the asking of the second, seventh and eighth questions, which are aimed at obtaining Dr Neill's opinion in relation to the plaintiff's condition some three and a half years after the assumed date of a later settlement or trial of the action, is not relevant to the determination of the value of the plaintiff's claimed lost right.
In response to the plaintiff's submission the defendant contends that the evidence sought to be obtained by the second, seventh and eighth questions is relevant because evidence of the plaintiff's current condition may be indicative of what his psychiatric condition was during the relevant period, that is, between 28 August 2012 and the assumed date of any later settlement or trial of the first action. Consequently, it is submitted, the evidence is potentially relevant to the determination of the plaintiff's claimed lost right.
Even allowing for the significant time lapse between the end of 2014 and the date on which Dr Neill will be able to review the plaintiff, I accept the defendant's submission that Dr Neill's opinion as to the plaintiff's current psychiatric condition, work capacity, and need for medication and psychiatric treatment is potentially relevant to the determination of his psychiatric condition, work capacity and need for medication during the relevant period (that is, between 28 August 2012 and the assumed later date of any settlement or trial of the first action), and is therefore also relevant to the determination of the value of the plaintiff's claimed lost right, assuming the plaintiff proves that he lost the claimed right by reason of the defendant's alleged negligence. This being the case I would not refuse the application to the extent that it relates to the second, seventh and eighth questions set out in the proposed letter of instruction to Dr Neill on the ground that the evidence sought to be obtained is irrelevant.
Third ground ‑ proposed examination will be of no utility
I turn to the third of the plaintiff's grounds for opposing the application.
The essence of the plaintiff's submission in support of his third ground of opposition to the application is that the defendant has failed to demonstrate why it is necessary for Dr Neill to examine (that is, interview) him in order to provide the opinions that the defendant proposes to seek from her. It is pointed out in this regard that orders have been made for the exchange of witness statements with the result that the defendant will in due course be provided with the plaintiff's witness statement to which Dr Neill will be able to have access in order to provide the requested opinions. It is further pointed out in this regard that there are a number of reports (including, of course, the report of Dr Epstein) and a significant quantity of medical records relating to the plaintiff created prior to and during the relevant period (including the documentation to which Dr Epstein had access), all of which Dr Neill will be able to have access to in order to provide the requested opinions. The plaintiff contends that in these circumstances there is no reason why he should be subjected to an examination by Dr Neill in which he will necessarily be asked about his recollection of his personal circumstances, his mental health and his presentation generally during the relevant period, that is, during the period between 28 August 2012 and any later settlement or trial of the first action in December 2014. To use the plaintiff's counsel's words, there is no potential benefit to the defendant in requiring the plaintiff to be subjected to a 'memory test' when there are contemporaneous records of the plaintiff's condition during the relevant period which Dr Neill will be able to rely upon.
I note in this context that copies of the reports and other documentation that the defendant proposes to provide to Dr Neill under cover of the proposed letter of instruction, all of which are specifically identified in the proposed letter of instruction, are annexed to Mr Popperwell's first affidavit. I have therefore been able to review the reports and other documentation that the defendant currently proposes to provide to Dr Neill.
In support of the contention that it is necessary for Dr Neill to interview and question the plaintiff in order to answer the questions asked in the proposed letter of instruction, the defendant's counsel argued that any medical examination by any specialist medical practitioner involves a level of interaction between the practitioner and the patient because it 'is the practitioner who knows what the issues are that will provide the answers to the questions [they are] concerned with'. Counsel argued, in effect, that it is only by way of a face to face questioning, carried out in light of available medical records, that the specialist medical practitioner is able to obtain all of the information that they consider pertinent to the issues in respect of which their opinion is being sought.
In further support of the contention that it is necessary for Dr Neill to interview and question the plaintiff in order to answer the questions asked in the proposed letter of instruction, the defendant relies on a letter recently written by Dr Neill to the defendant's solicitors dated 27 April 2018. Dr Neill provided her letter in response to an inquiry made of her by Mr Popperwell that was in the following terms:
[A]re you able to tell me whether you can express an unqualified opinion on a person's current or historical mental health condition simply by reference to contemporaneous and/or historical medical records and statements made by the person. In other words, does an unqualified opinion require you to examine the person? If so, could you briefly state why you consider it is necessary to examine the person in order to express an unqualified opinion on their current or historical diagnosis.
Dr Neill's response as set out in her letter is as follows:
Capacity to provide an expert opinion on an individual's current and/or historical mental health condition based solely upon contemporaneous and/or historical medical records and statements made by the individual, relies upon the specific mental health condition/s under consideration, the comprehensiveness, reliability, and quality of written materials, the degree to which they are up to date, and the ability to cross‑reference data from contemporaneous sources.
Given those variables and also the propensity for psychiatric diagnoses to change over time, provision of an unqualified psychiatric opinion does require an examination of the individual. There is a caveat that there are rare circumstances where an unqualified opinion on the presence or absence of any psychiatric condition is not able to be made.
Thus in the first paragraph of her above quoted response Dr Neill seems to be making the general observation that there are limitations associated with the provision of an expert opinion based on contemporaneous and/or historical medical records relating to, and contemporaneous and/or historical statements made by, the person being assessed. In the second paragraph of her response Dr Neill appears to be saying that due to these limitations, and due also to the propensity for psychiatric diagnoses to change over time, provision of an 'unqualified' psychiatric opinion does require an examination of the individual.
I note that during the course of the hearing the defendant's counsel informed me that Dr Neill has not to this point been provided with any of the medical documentation referred to in the draft letter of instruction. Counsel explained that the reason for this is that it would not be appropriate to provide Dr Neill with the documentation when she may not be required to see the plaintiff. Counsel stated that all that Dr Neill has been asked is whether she needs to see the plaintiff in order to 'do the examination'. Although counsel did not actually tell me whether Dr Neill has been provided with a copy of the proposed letter of instruction, I will proceed on the assumption that she has not been.
I am not sure what is meant by Dr Neill's use of the term 'unqualified' psychiatric opinion. Further, I think it is fair to say that Dr Neill's letter does not clearly explain why in the circumstances of this particular case it is necessary for her to examine the plaintiff in order to provide the opinions sought. Having said this, it might be the case that if she had been provided with a copy of the proposed letter of instruction she would have been able to explain by reference to the specific questions asked in the letter why she needs to actually interview and question the plaintiff about his recollection of his personal circumstances, his mental health and his presentation generally during the relevant period, rather than rely on the contemporaneous medical records.
So there are, in my view, deficiencies in the documentary material put before the court in support of the contention that it is necessary for Dr Neill to actually see and interview the plaintiff in order to provide the opinions sought by the defendant. Despite these deficiencies, however, I think it is fairly self‑evident that if a psychiatrist is being asked to express an opinion as to the psychiatric condition of a person, even at a point in time prior to the date of the actual assessment, the optimal course, for the above referred to reasons advanced by the defendant's counsel, is for the psychiatrist to be able to speak to, question and interact with the person. This being the case, I do not accept the plaintiff's submission that the application should be refused on the ground that it is not necessary for Dr Neill to actually see and interview the plaintiff in person in order to provide the opinions requested in the proposed letter of instruction.
Additional arguments
During the hearing of the application the plaintiff's counsel also contended as an adjunct to the argument as to the utility of the proposed examination, that to require the plaintiff to submit himself to examination by Dr Neill would or may carry with it certain 'burdens' on the future progress of the litigation which militated against the granting of the application. The burdens identified as potentially flowing from allowing the application are an increase in the amount of documentation that will need to be discovered, the need for any examination of the plaintiff by Dr Neill to be 'check reviewed' by another specialist, and the further delay of the final resolution of the litigation. I accept that some or all of these possible 'burdens' may eventuate from allowing the application. However, I do not consider that any of them, either individually or collectively, justify me coming to the conclusion that despite the views that I have expressed above it is not in the interests of justice to allow the application.
Conclusion
For the reasons I have stated, and subject to what I have said about the proposed wording of some of the questions to be asked of Dr Neill, I am persuaded that it is in the interests of justice that the plaintiff should be ordered pursuant to O 28 r 1(2A) to subject himself to the proposed psychiatric examination having regard to the evident subject matter, scope and purpose of the power contained in the rule. In arriving at this conclusion I have obviously borne in mind that the examination will not involve any physical examination or any form of physically invasive testing. I therefore allow the application. I will hear the parties in relation to the precise terms of the orders that I should make in order to give effect to my decision.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK11 MAY 2018
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