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Plaintiff [name withheld] v Stapleton

Plaintiff [name withheld] v Stapleton

Case [2017] NSWSC 914 19 June 2017

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Plaintiff [name withheld] v Stapleton [2017] NSWSC 914
Hearing dates: 19 June 2017
Decision date: 19 June 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Requirement on the plaintiff to attend a medical examination in accordance with the first defendant’s notice pursuant to r 23.2 of the UCPR served on 18 April 2017 dispensed with

Catchwords: EXPERT EVIDENCE – claim for damages for psychiatric injury due to alleged sexual assault – request on behalf of first defendant that plaintiff submit to examination by a psychiatrist – where plaintiff has already submitted to examination by a different psychiatrist at the request of the second defendant –risk that plaintiff would be traumatised by further examination – need to balance interests of both parties
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56(3)
Uniform Civil Procedure Rules 2005 (NSW), rr 23.2, 31.20(2)(e)
Cases Cited: Angliss v Urquhart [2001] NSWCA 441
Crofts v The State of Queensland [2001] QSC 220
Prescott v Bulldog Tools Limited [1981] 3 All ER 869
Category: Procedural and other rulings
Parties: [name withheld] (plaintiff)
Kim Stapleton (first defendant)
Trustees of the Christian Brothers (second defendant)
Commonwealth of Australia (third defendant)
Representation:
Counsel:
B Gross QC, S Dixon (plaintiff)
M Daly (first defendant)
N Ward (second defendant)
A Burke (third defendant)
Solicitors:
Koffels Solicitors and Barristers (plaintiff)
Diamond Conway (first defendant)
Makinson d’Apice Lawyers (second defendant)
Henry Davis York (third defendant)

File Number(s): 2016/54398
Publication restriction: Publication of the name of the plaintiff has been withheld in this judgment pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Judgment

HER HONOUR: This is an action for damages for personal injury due to sexual assaults allegedly committed against the plaintiff by the first defendant when the plaintiff was a student at a Catholic high school and the first defendant was a cadet officer. The first defendant denies the allegations.
The proceedings are before the Court today for the hearing of a motion filed by the plaintiff concerning a requirement for him to attend an examination by a psychiatrist nominated by the first defendant. The first defendant served a notice pursuant to r 23.2 of the Uniform Civil Procedure Rules 2005 (NSW) on 18 April 2017 requesting the plaintiff's attendance for examination on a date that has now passed. The plaintiff seeks to be excused from the requirement that flows from the service of that notice.
The proceedings involve two other defendants. The second defendant is the entity I assume is correctly sued in respect of any liability on the part of the high school. The third is the Commonwealth of Australia against which it is alleged the first defendant ought never to have been approved to act in the role of an army cadet officer. Neither of those parties has taken any active role in the present application.
The principles governing the application were, for the most part, not in dispute. Mr Daly, who appears for the first…

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.

Continue reading Plaintiff [name withheld] v Stapleton

Details

AGLC: Plaintiff [name withheld] v Stapleton [2017] NSWSC 914
Case: [2017] NSWSC 914
Decision Date: 19 June 2017

CaseChat Overview and Summary

The matter before the court involved a plaintiff who sought damages for psychiatric injury, allegedly resulting from a sexual assault. The first and second defendants, who were both named, were being sued by the plaintiff. The plaintiff had already undergone an examination by a psychiatrist, at the request of the second defendant. The first defendant now sought a similar examination by their chosen psychiatrist, arguing that the evidence was necessary for their defence. The plaintiff opposed this, citing the risk of further trauma from another examination.

The legal issues before the court included whether the plaintiff was required to submit to a psychiatric examination by the first defendant's chosen psychiatrist and whether the plaintiff's opposition to such an examination could be overridden. The court needed to weigh the importance of the psychiatric evidence against the potential harm to the plaintiff from undergoing another examination.

In addressing the issue, the court acknowledged the need for a balance between the parties' interests. It considered the risk of further trauma to the plaintiff against the importance of the psychiatric evidence to the defendants' case. The court noted that the plaintiff had already undergone a psychiatric examination and that such examinations could be distressing, particularly for those alleging sexual assault. The court ruled that the potential harm to the plaintiff from undergoing another examination outweighed the need for the defendants to have their own expert's input. Thus, the plaintiff was not required to submit to a further examination.

The court ordered that the plaintiff was not required to submit to a psychiatric examination by the first defendant's chosen psychiatrist. The court's decision recognised the delicate balance required in cases involving claims for psychiatric injury and the need to protect the plaintiff from further trauma.

Orders