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:

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.

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.

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.

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

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] VSC 361
Decision Date: 30 May 2019

CaseChat Overview and Summary

Pyman v Whitefriars College Inc was a case that came before the Supreme Court, which involved a dispute regarding personal injury and the examination of the plaintiff's psychiatric condition. The plaintiff, Pyman, sought damages for psychiatric injury she alleged was caused by the defendant, Whitefriars College Inc. The central issue in the case was whether the plaintiff should be required to undergo a medico-legal examination at the defendant’s request, despite the risk that such an examination posed to her mental state.

The court needed to determine whether Pyman's refusal to submit to the examination was reasonable and if her refusal would prejudice the defendant’s ability to defend the case. The legal issues hinged on the provisions of the Supreme Court (General Civil Procedure) Rules 2015, particularly rule 33.04, and the principles set out in Stace v Commonwealth. The court considered the balance between the plaintiff's right to protect her mental health and the defendant's right to defend the claim effectively. In weighing these considerations, the court examined the risks associated with the examination and the potential impact on the plaintiff's mental state, as well as the necessity of the examination for the defendant to adequately prepare their defence.

The court concluded that the plaintiff's refusal to undergo the examination was reasonable given the significant risk to her mental health. The court found that the defendant's right to defend the claim did not outweigh the potential harm to the plaintiff's mental state. Therefore, the application for a stay of proceedings was dismissed. The court emphasised the importance of protecting the plaintiff's health and wellbeing in medico-legal examinations, particularly in cases where the risk to mental health is significant. The court ordered that the proceedings would continue without the requirement for the plaintiff to undergo the examination.

Orders