Pyman v Whitefriars College Inc

[2019] VSC 361

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 01906

JONAH PYMAN (a person under a disability who sues through his Litigation Guardian, Trevor Pyman)	Plaintiff
v
WHTEFRIARS COLLEGE INC (ABN 35 808 045 134)	Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2019
DATE OF JUDGMENT:	30 May 2019
CASE MAY BE CITED AS:	Pyman v Whitefriars College Inc
MEDIUM NEUTRAL CITATION:	[2019] VSC 361

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PRACTICE AND PROCEDURE – Application for stay of proceeding – Personal injury – Psychiatric injury – Medico-legal examination of plaintiff at defendant’s request – Examination involving risk to plaintiff’s mental state – Refusal to submit to examination – Reasonableness of refusal – Whether prejudice to defendant preventing defence of case – Supreme Court (General Civil Procedure) Rules 2015, r 33.04 – Stace v Commonwealth (1989) 51 SASR 391.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M A Hartley QC Ms J Frederico	Nowicki Carbone
For the Defendant	Mr D McWilliams Ms A Bannon	Gilchrist Connell

HER HONOUR:

1. Jonah Pyman is seeking damages for psychiatric injury occurring when he was a student at Whitefriars College during 2013 and 2014.  He alleges that he was subjected to bullying, harassment, assault and sexual assault.  He continues the proceeding by a litigation guardian on the basis of the impact of his psychiatric state, notwithstanding having attained the age of 18 years on 26 October 2018.

1. Pre-trial matters have been completed and the proceeding is presently listed for hearing on 17 June 2019. The defendant has brought an application seeking a stay of the proceeding pursuant to Rule 33.04(2) of the Supreme Court (General Civil Procedure) Rules 2015 on the basis that the Litigation Guardian has instructed that the plaintiff will not attend the updated medico-legal appointment it had arranged with Dr Neill, psychiatrist. 

1. The application relies on an affidavit in support, affirmed by Jason Rossiter Newman on  17 April 2019. The respondent relies on three affidavits, one of Nunzio Tartaglia sworn 3 May 2019, one of the plaintiff’s father and Litigation Guardian, Trevor Pyman, affirmed 23 May 2019 and one of the plaintiff’s mother, Imbi Pyman, also affirmed 23 May 2019.

1. Rule 33.04 provides as follows:

Notice for Examination

(1)The defendant may request the plaintiff in writing to submit to appropriate examinations by a medical expert or experts at specified times and places.

(2)Where a plaintiff refuses or neglects, without reasonable cause, to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the proceeding.

Factual Background

1. It is necessary to set out something of the nature of the plaintiff’s psychiatric injury and treatment.  During 2016 two inpatient hospital attendances were required.  In 2018 psychiatric inpatient admissions were sought but did not eventuate.  The plaintiff’s care has been case managed by Dr Atkin, consultant and child psychiatrist. He was also treated by Dr Court, adolescent psychiatrist from 2016 until at least mid-2018.  He has had neurological and neuro psychological testing and seen various counsellors and psychologists, most recently Dr Gray from early 2019.  It is clear from the medical material that the plaintiff’s condition is one where his level of symptoms and ability to function significantly fluctuates.  At times he has been non-compliant with treatment recommendations and an ongoing engagement with treating practitioners has been at times problematic.

1. In addition to the various reports and records of treating practitioners served in the proceeding, each party has had the plaintiff examined for medico-legal purposes.  Dr Chazan examined the plaintiff at the request of his solicitors and provided a report dated 1 December 2017. He diagnosed posttraumatic stress disorder largely related to the alleged events and a pre-existing condition which gave rise to some vulnerability. He thought the injury “substantially stable but the manner of manifestation of symptoms is still subject to change due to adolescent development” (Jonah was 17 years at that time).[1]  He outlined anticipated treatment and likely impact of work and social matters. He summarises “a boy still showing obvious signs of disturbance  who has had a very difficult adolescence”.[2]

   [1]Exhibit NAT8 to Affidavit of Nunzio Tartaglia sworn 3 May 2019, 12.

   [2]Ibid 9.

1. In July 2018 Dr Neill examined the plaintiff at the request of the defendant. She prepared an initial report ‘on the papers’, a second report based on her examination and a third report commenting on matters including Dr Chazan’s report. She diagnosed a borderline personality disorder and a chronic adjustment disorder with mixed disturbance of mood and conduct. She opined that the conditions impact upon capacity for employment and require treatment including the prospect of future hospital admissions.  She concludes that she was broadly in agreement with the views expressed by the treating practitioners, although noting variation in diagnosis.

1. Medico–legal re-examinations were arranged by both parties in early 2019 in anticipation of the hearing.  On being advised of the appointment with Dr Chazan, the Litigation Guardian informed his lawyers of his belief that attending a further medico-legal examination would be detrimental to Jonah’s mental health.  Accepting this, the solicitor cancelled the appointment with Dr Chazan.  When the re-examination by Dr Neill was notified to the solicitors for the plaintiff, they emailed the defendant’s solicitors on 22 February 2019 informing them of the Litigation Guardian’s instructions that the plaintiff will not be attending any further medico-legal examinations for fear of aggravating his psychological condition.  Although not holding any medical opinion on the question at that time, the solicitor asserted that a further examination would “place the plaintiff at high risk of significant and severe deterioration of his psychological injuries”.[3]

   [3]Exhibit JRN-5 to Affidavit of Jason Rossiter Newman affirmed  17 April 2019.

1. Subsequently two medical reports by Dr Atkin were served.  In the first report dated 5 March 2019, Dr Atkin expressed the opinion that Jonah would likely suffer more symptomatology and a worsened prognosis should multiple examinations continue.  He described the risk as one where the plaintiff would be “very likely to re-enter a period of agitation, insomnia, aggression and property damage. There is some likelihood of increase in suicidal thoughts and/or behaviour”.[4]  

   [4]Exhbit JRN-8 to Affidavit of Jason Rossiter Newman affirmed 17 April 2019, 2.

1. Implicit in Dr Atkin’s first report and consistent with the content of the recent report of Dr Gray, Jonah’s fluctuating state is presently better rather than worse.  Dr Atkin’s second report dealing with the risk associated with attending a medico-legal assessment, dated 23 May 2019, was served shortly before the hearing of this application.  It provided a more detailed response as to the extent of the adverse response that followed the two previous medico-legal attendances.  Relevantly it also noted that coincident attempts at psychotherapy with Dr Court deteriorated rapidly after the Dr Neill appointment in July 2018.  Dr Atkin’s report indicated that the medico-legal attendance, apart from having a potentially adverse effect on the plaintiff’s condition, also held the risk of impairing his ability to continue to engage with treatment. 

Principles

1. 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.

1. 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.[5]  That case sets out the following three general principles in considering applications of this kind:

   [5](1989) 51 SASR 391 (‘Stace’).

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.[6]

[6](1989) 51 SASR 391, 401 (White, Matheson and Bollen JJ), quoting Prescott v Bulldog Tools Ltd (1981) 3 All ER 869, 874 (Webster J).

Analysis

1. In this case the plaintiff accepts that the defendant’s request is reasonable.  I accept that clearly a single re-examination to update an opinion in anticipation of the trial date is reasonable.

1. The ground for refusal to attend as expressed by the Litigation Guardian is based upon his concern that any further examination was likely to significantly impact Jonah’s mental state. At the time the Litigation Guardian’s opinion was based upon his own observations, and those of his wife.  Those observations were set out in affidavits[7] and the defendant did not challenge that evidence.  Whilst the observations and fears were not initially said to be based upon any medical advice and were not said to rely on any legal advice, Dr Atkin has subsequently set out the potential risks as he sees them. Dr Atkin is well placed as the co-ordinating clinician for the plaintiff and involved also with the plaintiff’s parents for therapeutic support.  That medical advice does provide a basis for the concerns and therefore for the refusal to be reasonable.

   [7]Affidavits of Trevor Pyman and Imbi Pyman.

1. This case is somewhat unusual in that the plaintiff sues by litigation guardian because of his fragile mental state. It is the reasonableness of the Litigation Guardian’s refusal that is to be considered.  It is no doubt stressful to attend medico-legal examinations, particularly where psychiatric injuries are involved.  The stressful nature of the experience in and of itself would not ordinarily be enough to establish a ground of refusal sufficient to outweigh the entitlement of a defendant to reasonably obtain evidence as it sees fit.  In this case more could have been done to communicate the limitations on the proposed further medical examination as confined by the defendant to better inform the Litigation Guardian and those providing him with medical advice.

1. The defendant took issue with the opinion of Dr Atkin, in particular raising the degree to which the opinion might have been influenced by the letter of instructions setting out the Litigation Guardian’s belief.  Although an application to cross-examine Dr Atkin was not persisted with, I understood the defendant to maintain that this influenced the weight I should give to the opinion in exercising my discretion.  Whatever the leading nature of the letter of instruction to Dr Atkin, the question remains whether the Litigation Guardian has reasonable cause to refuse the medico-legal examination, in light of the advice that he receives.  Ultimately Dr Atkin’s reports identified potential risks as he saw them, and the opinions fortified the reasonableness of the Litigation Guardian’s instructions.

1. The defendant also describes as a ‘paradox’ that the plaintiff is able to attend his treating practitioners and provide histories and is prepared to give evidence in the forthcoming trial, but not able to attend medico-legal examination.  The question of the plaintiff’s ability to give evidence in the trial and under what conditions is not a matter in evidence before me and might sensibly be a matter canvassed at Final Directions.  Leaving aside the impression from the treating doctors’ reports that providing information to treating practitioners has not been easy for the plaintiff, it was said clearly in Stace:

A plaintiff might reasonably accept a degree of discomfort and risk and trouble for the purpose of being cured, but quite reasonably, not be willing to repeat it all for the assistance of the defendant.[8]   

In my view, this observation is apposite for the plaintiff.

[8](1989) 51 SASR 391, 403.

1. Against the refusal the defendant says it is entitled to opinion based on an updated examination in order to defend itself. It points to events since the July 2018 examination, particularly as to the request for a further psychiatric admission and the (new) reference to homicidal tendencies as matters it wishes to investigate.  Ordinarily a re-examination would be the best and appropriate way to obtain such further opinion. However the defendant is not precluded from obtaining further opinion based upon the medical material made available since July 2018. It is for the defendant to establish that further opinion without a second examination is of sufficient prejudice to the presentation of its case so as to grant a stay. Given that all medical opinions accept a present significant level of symptomology, there is nothing to say that such an opinion, while not perfect might nevertheless be adequate in the circumstances.

1. In this case the following factors lead me to conclude that the Litigation Guardian’s refusal was reasonable:

(a)   His, and his wife’s unchallenged observations of their son following the earlier medico-legal appointments, particularly their observations of him attempting to jump out of their moving car on the way home from one appointment, remain in his mind;

(b)   The fact that his fears are supported by Dr Atkin’s opinions as to the potential risks associated with attending;

(c)    The fact of the plaintiff’s young age and social circumstances and the fact that his psychiatric state remains such that he is unable to conduct the litigation on his own behalf;

(d)  The difficulties, expressed throughout all the medical material, associated with treating adolescent mental health and Jonah’s fluctuating engagement with treatment that is able to be offered;

(e)   The opinion of Dr Atkin describes the risk is that the plaintiff might “re-enter” a period of significant symptoms including suicidality, which although present in the past seems not otherwise to be a present concern, at least as identified by Dr Gray in the only current treating practitioner’s report dealing with the broader issues of the plaintiff’s present state of health;[9] and

(f)     The fact that the refusal was not selective as he also refused the single re-examination designed to obtain evidence to assist presentation of the plaintiff’s own case.

[9]Exhibit NAT16 to Affidavit of Nunzio Tartaglia sworn 3 May 2019, 2.

1. The absence of a further examination by Dr Neill has not been shown to be of such prejudice to the defendant as to prevent it from defending the case.

1. The application for a stay of proceedings is refused.  I will hear the parties on the question of costs.