Vincent v SAS Trustee Corporation

[2016] NSWDC 73

District Court

New South Wales

Medium Neutral Citation:

Vincent v SAS Trustee Corporation [2016] NSWDC 73

Hearing dates:

14 March 2016

Date of orders:

14 March 2016

Decision date:

14 March 2016

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Notice of motion is dismissed

 

Defendant to pay plaintiff’s costs of the motion

 

Hearing date of 18 April 2016 confirmed

 Leave to the defendant to serve an up-to-date comment from Dr George on the opinion of Dr Anderson

Catchwords:

POLICE SUPERANNUATION – Practice and Procedure – Motion to compel plaintiff to attend a forensic psychological examination - Assessing doctor diagnosed plaintiff with 3% WPI in 2014 and 7% in 2015 and indicated difference between 2014 and 2015 figures relates to a degree of variation and inconsistency in the plaintiff’s presentation – Assessing doctor recommended “MMPI-2-RF” forensic psychological examination – Medical examinations must be relevant to a party’s physical or mental condition where it is an issue in the proceedings and cannot be used for a collateral purpose such as testing a party’s credibility – No distinction between seeking to obtain evidence about a party’s reliability generally and seeking to obtain evidence concerning the reliability of statements taken into account when performing WPI assessment for psychiatric or psychological injury – No proper purpose in ordering plaintiff to attend upon examination

Legislation Cited:

Evidence Act 1995
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Boral Transport Pty Limited v Gulic [2013] NSWCA 150
Rowlands v State of NSW [2009] NSWCA 136

Category:

Procedural and other rulings

Parties:

Andrew Vincent (Plaintiff)
SAS Trustee Corporation (Defendant)

Representation:

Counsel:
Mr T Ower (Plaintiff)   
Mr L Robison (Defendant)

  Solicitors:
Walter Madden Jenkins (Plaintiff)   
Kaden Boriss Legal & Business Strategists (Defendant)

File Number(s):

RJ322/15

Publication restriction:

No

Judgment

1. HIS HONOUR: There is currently before me a motion on notice, the notice of which was filed on 4 March 2016. The first three prayers for relief are these:

"1. That the plaintiff be compelled to attend a forensic psychological examination with Dr Jennifer Batchelor, neuro psychologist/psychologist, on a date to be re-scheduled by the defendant.

2. That the hearing of this matter listed on 18 April 2016 be vacated.

3. That the matter be listed for further callover on 14 April 2016."

2. The following chronology should be borne in mind:

Date

Event

25 May 1967   

Plaintiff was born.

26 June 1987

Plaintiff attested as a probationary constable of police.

2001

Plaintiff involved in a siege whilst stationed at Byron Bay and serving as a member of a target action group focusing on mid-level drug crime and violent crime.

Plaintiff involved in a siege. Thereafter plaintiff starts suffering panic attacks.

Plaintiff is diagnosed with post-traumatic stress disorder by Dr Jill Pryor, general practitioner, at Lennox Head.

These are the first of a number of incidents of which the plaintiff has given a history, which events are alleged to have given rise to PTSD

2003

Plaintiff involved in another siege at Ballina where an alleged offender commits suicide.

2006

Plaintiff attends a fatal motor vehicle accident between a semi-trailer and a campervan.

August 2011

Plaintiff injured his right shoulder whilst moving equipment in a police armoury.

September 2011

Plaintiff is detected driving with a high range PCA.

17 January 2012

Notional date of injury (semble day on which plaintiff last performed duty) [statement of claim par 6].

January 2012

Plaintiff detected driving with a mid-range PCA. Plaintiff suspended from duty

16 November 2012

Plaintiff applies to defendant for a gratuity under s 12D.

30 January 2013

Plaintiff's mother dies.

16 April 2013

Plaintiff examined by Dr Graham George, psychiatrist, for administrator of Police Superannuation Fund.

Dr George diagnoses chronic post-traumatic stress disorder, panic disorder, alcohol abuse and normal grief reaction related to plaintiff's mother's death.

29 April 2013

Date of commencement of plaintiff's superannuation benefit under the Police Regulation (Superannuation) Act 1906

11 August 2014

Commissioner of Police accepts that the conditions of chronic post-traumatic stress disorder, panic disorder and alcohol abuse were caused by the plaintiff’s having been hurt on duty

17 November 2014

Plaintiff examined again by Dr George for the administrator of the police superannuation fund. Dr George diagnoses WPI of 2% because of plaintiff's certified infirmities.

7 January 2015

Defendant says the plaintiff has no entitlement to a gratuity under s 12D: statement of claim par 7.

8 July 2015   

Statement of claim is filed.

10 August 2015   

Defence filed.

20 November 2015

Plaintiff seen again by Dr Graham George, who diagnoses WPI of 7%.

29 February 2016

Matter is called over by me and set down for hearing on 18 April 2016 with leave being granted to the defendant to file and serve the present motion returnable today.

3. It has to be borne in mind that there are what my now retired colleague Burke CCJ described as irrefragable facts. The first irrefragable fact is that the plaintiff suffers from the three certified infirmities of chronic PTSD, panic disorder and alcohol abuse. The second irrefragable fact was that those conditions have collectively, and indeed separately, rendered the plaintiff incapable of discharging the duties of his office as a member of the New South Wales Police Force. The third irrefragable fact is - and it is probably a series of related irrefragable facts - that each of the certified infirmities was caused by the plaintiff’s having been hurt on duty when he was a serving member of the NSW Police Force.

4. The issues as tendered by the pleadings before me are firstly whether the plaintiff has a whole person impairment caused by a certified infirmity or any combination of the three. If so, the extent of the impairment and, if the impairment was caused by a number of events, I am required to apply s 323 of the Workplace Injury Management and Workers Compensation Act 1998 because events that occurred prior to 1 January 2002 are to be ignored. That might lead to an apportionment of any impairment and a reduction in the amount of the gravity.

5. The current application results from a comment appearing at the end of Dr George's second report dated 12 November 2015. After certifying the WPI of 7% the doctor said this:

"I would comment this represents more than a 3% variation over 12 months on my previous assessment. I would emphasise that whole person impairment assessment has not any published validity or reliability scales associated with its measure. I believe the difference between 2014 and 2015 assessment relates to a certain degree of variation and consistency [sic] and [sic] answers provided by Mr Vincent. I would not regard any whole person impairment assessment of Mr Vincent as having a great degree of reliability or validity.

The only way the veracity of his answers could be tested would be through forensic psychological testing inclusive an MMPI-2-RF examination."

What exactly Dr George meant in the second sentence of the first paragraph I just quoted is unclear. I believe the best way of reading that sentence is this:

"I believe the difference between 2014 and 2015 assessments relates to a certain degree of variation and inconsistency in answers provided by Mr Vincent."

6. The thrust of what the doctor wished to express is, however, clear. On what the doctor was told on 17 November 2014, Dr George could only find a WPI of 2% but on what he was told on 12 November 2015, he diagnosed a 7% WPI. In assessing WPI an expert is required to consider six categories and to assign to each category a class. The categories are:

1. Self-care and personal hygiene

2. Social and recreational activities

3. Travel

4. Social functioning

5. Concentration, persistence and pace

6. Employability

The classes are between 1 and 5. In 2014 Dr George set out his findings thus:

Self-care and personal hygiene	1
Social and recreational activities	1
Travel	1
Social functioning	1
Concentration, persistence and pace	1
Employability	5

In 2015 Dr George made these findings:

Self-care and personal hygiene	1
Social and recreational activities	2
Travel	1
Social functioning	2
Concentration, persistence and pace	2
Employability	5

Once given that data, the expert is required to make an aggregate and find the median class, and that results by using another table providing an assessment of the whole person impairment.

7. I have carefully read the reports of Dr George and find it difficult to understand how the doctor made different findings in respect of social and recreational activities, social functioning, and concentration, persistence and pace between the two examinations. No doubt he can explain that if he gives oral evidence.

8. There are a number of things that should be noted. The first is that doctors are not always totally consistent, either themselves or amongst themselves as a class. The second is that sometimes a person's functioning can differ from day to day, from week to week, from month to month, from year to year; that the one condition may not always causing the same similar symptoms or having the same impact on the patient's day to day life. Those are merely general observations.

9. Following upon the final suggestion of Dr George in his shorter report of 12 November 2015, the defendant's solicitor required the plaintiff to undergo assessment by Dr Jennifer Batchelor. Unfortunately the defendant has not been able to put before me a copy of Dr Batchelor's curriculum vitae. Many psychologists often arrogate to themselves the title of doctor and they have no entitlement to it. However, I infer that Dr Batchelor has a doctorate because she appears on exhibit 3-3 as a "doctor" and exhibit 3-3 is a web post from Macquarie University concerning Dr Batchelor. It appears that she is a senior lecturer. Relevant to Dr Batchelor is the following material contained in exhibit 3-3:

"Senior Lecturer, researcher and medico-legal consultant specialising in outcome following mild and severe traumatic brain injury sustained during adulthood.

Research interests

Mild traumatic brain injury; severe traumatic brain injury; assessment of malingering; prospective memory; Neuro psychology."

The document then lists publications to which Dr Batchelor has contributed. The first refers to patients suffering from mild traumatic brain injury. The second concerns cognitive difficulties for those suffering from multiple sclerosis. There is no evidence on this application that the plaintiff suffers from multiple sclerosis. The third publication concerns patients suffering mild traumatic brain injury. The fifth and final publication concerns neuro-psychological comparison of siblings with neurological versus hepatic symptoms of Wilson's Disease. There is no suggestion that the plaintiff suffers from Wilson's Disease, nor is there any evidence of any hepatic symptoms as far as I am currently aware. One article that I have not mentioned is the fourth in the list but that concerns a comparison of the degree of effort involved in two different sorts of tests which appear to relate to word choice. The significance of the article is unclear to me but it does not, in my view, relate to anything concerning the current proceedings.

10. It appears that Dr Batchelor's background and practice relate to brain injury, which is normally what neuro-psychologists deal with and for which they test but it is clear that her work also involves "assessment of malingering". Malingering is the simulation or disease, a concept with which the Courts of the English speaking world have been dealing with for centuries. It is patently clear from Dr George's recommendation that he believes the psychological testing that ought be conducted is to test the veracity of the plaintiff's answers to his questioning of the plaintiff both on 17 November 2014 and 12 November 2015 when he was asking the plaintiff questions relating to matters taken into account in assessing whole person impairment for those with a psychological or psychiatric injury. This is, in essence, what was put forward by the plaintiff to the defendant.

11. The defendant's solicitor required the plaintiff to attend upon Dr Batchelor under cover of letter dated 15 December 2015 on 28 January 2016 at 9am. The plaintiff's solicitors' response to that requirement is contained in a letter dated 7 January 2016. The substance of the letter is this:

"We understand Dr Batchelor is a psychologist/neuro-psychologist and is not accredited by WorkCover NSW to conduct whole person impairment assessments under the WorkCover Gudies for the Evaluation of Permanent Impairment.

Given the nature of these proceedings, please advise the purpose and utility of the proposed examination."

The letter goes on to ask for an urgent response bearing in mind the appointment was scheduled for 28 January 2016. On the following day the defendant's solicitors replied thus:

"The nature and purpose of the assessment with Dr Batchelor is not to assess the plaintiff's whole person impairment. The assessment has been arranged to undertake an MMPI-2-RF examination of the plaintiff as recommended by Dr George, qualified on behalf of our client."

The letter went on to enclose copies of Dr George's various reports and sought the plaintiff's solicitors' confirmation that the plaintiff would attend upon the examination by Dr Batchelor on 28 January 2016.

12. On 18 January 2016 the plaintiff's solicitors advised that the plaintiff objected to attending upon the examination arranged with Dr Batchelor. In a letter of 21 January 2016 the defendant's solicitors set out certain contentions. The letter states, amongst other things, this:

"The purpose of the proposed assessment with Dr Batchelor is outlined in the various reports of Dr George which have been served upon your office, and reference is also made to our letter dated 8 January 2016 in this context."

It appears, therefore, that the only purpose for requiring the plaintiff to undergo examination by Dr Batchelor was that Dr Batchelor administer the MMPI-2-RF examination as suggested by Dr George. The only reason advanced by Dr George for carrying out that testing was to test "the veracity" of the plaintiff's answers to questions put to him by Dr George when Dr George examined him on two occasions I have earlier referred to, 17 November 2014 and 12 November 2015. But that questioning, of course, could extend back to Dr George's first examination of the plaintiff on 16 April 2013.

13. The only relevant qualification Dr Batchelor has appears to be the "assessment of malingering".

14. No general evidence has been put before me as to the reliability of MMPI-2-RF tests. I understand that MMPI refers to the Minnesota Multiphasic Personality Inventory and the rest of the abbreviated title may refer to some revised edition of one form of that test. I am aware that the test is in fact a questionnaire to be filled out by the patient. I know those facts from having dealt with similar matters in the past. However, as I said, there is no general evidence before me as to how valid the test may be.

15. If such a test could successfully substantiate whether a person is telling the truth or not, then one would think that that test would replace every other mechanism known to our civilisation which tests the reliability of certain statements. One could do away with oaths and affirmations. One could do away with our courts and lawyers. A mere requirement for a person to state what happened and any application of the MMPI might be sufficient to ascertain whether what was said was truthful.

16. In Rowlands v State of NSW [2009] NSWCA 136 Hodgson JA, with whom Allsop P concurred, said this:

" 48 Ground 4 included a ground that the orders were obtained for the collateral purpose of attacking the applicant’s credit. As argued on appeal, the focus was on the statement of the primary judge, made in support of making the order, that the tests were needed to test the veracity of the plaintiff’s contentions, and matters of that kind, coupled with the comment that causation looms very large in this case.

49 That statement could possibly be given a narrow construction, as directed only to the veracity of the plaintiff’s contentions insofar as they affected the reliability of the testing being undertaken by the respondents’ medical expert; but it does not appear to me to be so limited. In my opinion, the ordering of particular medical examinations must be for the purpose of obtaining evidence about a plaintiff’s medical condition, and cannot be justified by the purpose of obtaining evidence that might go to the plaintiff’s veracity generally. Accordingly, in my opinion this statement does indicate error."

In the same case Tobias JA said at [61] that as had been observed earlier by Hodgson JA, tests must be relevant to a party's physical or mental condition where that is the issue in the proceedings.

17. The rules with which I am here concerned cannot be used for a collateral purpose such as testing a party's credibility. The rules, of course, are UCPR Pt 23 Div 1. The same point is made in Boral Transport Pty Limited v Gulic [2013] NSWCA 150 but that was a very different case. In that case the plaintiff had suffered many years before relevant events a low back injury. In the proceedings then before the Court the plaintiff suffered in February 2010 injuries to his shoulders, head and cervical and thoracic spines but not on that occasion to his lumbar spine. The defendant required that plaintiff to undergo examination of his low back or lumbar spine, which was objected to by the plaintiff himself. Sorby DCJ rejected the defendant's application but it was allowed by the Court of Appeal. It was a relevant fact as to whether the plaintiff had recovered from his low back injury and if not, whether that interfered with his ability to earn wages which would have reduced his claim for economic loss in respect of his case for the injury in 2010 when he was working for Boral.

18. Mr Robison drew these cases to my attention very properly. His submission is that the examination should be allowed because there is no attempt being made to obtain evidence relating to the plaintiff 's reliability generally but there is an attempt to obtain evidence relating to the reliability of his statements in respect of the matters which must be taken into account in assessing whole person impairment for persons suffering from a psychiatric or psychological injury.

19. With the utmost respect, I cannot see any difference in principle. The test is merely to ascertain whether the statements made by the plaintiff from time to time about his medical condition are truthful or not. They may be true, they be false. They may be understated, they may be overstated. However, whether we are talking about the feigning of symptoms, that is malingering, or exaggeration of symptoms or the under-expressing of symptoms, we are, in essence, talking about the same thing, that is, whether the plaintiff's statements can be accepted at face value or not. The test appears to be merely, as proposed by Dr George, to test the veracity of the statements of the witness from time to time. The purpose of the examination by Dr Batchelor is no more than to test the reliability, therefore, test the veracity of what the plaintiff has said from time to time about his physical and or mental health.

20. Section 102 of the Evidence Act 1995 states the credibility rule. That rule is that evidence relating to the credibility of a witness is not admissible. Section 103 contains what is said to be an exception to the general rule and permits cross-examination as to credibility. Cross-examining a person as to credibility was always admissible at common law and did not infringe the credibility rule at common law that the evidence purely related to credibility was not admissible. In my view if Dr Batchelor carries out the testing involved, the purpose of the testing is merely to challenge the credibility, that is the veracity of the plaintiff and therefore would be inadmissible.

17. In my view there is no proper ground for ordering the plaintiff to attend upon an examination with Dr Batchelor merely for the purpose of having his credibility tested. His credibility can be contested in open court in the normal fashion when the plaintiff can be cross-examined about things such as inconsistent histories and the like, the traditional way in which such things have been tested for centuries.

18. I should add that the plaintiff did not pursue the argument that Dr Batchelor ought not be permitted to examine the plaintiff because she was not "WorkCover" certified. I understand that such certification is now carried on by the State Insurance Regulatory Authority, which now publishes the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. Such certification by the SIRA is completely irrelevant because the current proceedings are under the Police Regulation (Superannuation) Act 1906 in the District Court of New South Wales and have nothing to do with ordinary workers compensation proceedings pursued in the Workers Compensation Commission of New South Wales, the one which exists at the current time, which is not a Court, unlike the earlier body bearing the same name but which was a Court.

19. I accept, bearing in mind what is put before me in exhibit 3-3, that Dr Batchelor is a neuro-psychologist and that if she is interested in the assessment of malingering, she would no doubt be able to administer an MMPI-2-RF test. There is no substance in that objection originally taken by the plaintiff's solicitors but not pursued by learned counsel for the plaintiff before me.

20. For those reasons the notice of motion is dismissed. I order the defendant to pay the plaintiff's costs of the notice of motion. I confirm the hearing date of 18 April 2016.

21. I grant leave to the defendant to serve an up to date comment from Dr George on the opinions of Dr Anderson, such up to date report is to be served by 4 pm on Monday 21 March 2016.

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Decision last updated: 13 May 2016