Waneisian v Durston

[2024] NSWSC 1365

Supreme Court

New South Wales

Medium Neutral Citation:

Waneisian v Durston [2024] NSWSC 1365

Hearing dates:

18 September 2024

Date of orders:

18 September 2024

Decision date:

18 September 2024

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

See [44]

Catchwords:

CIVIL PROCEDURE – whether the plaintiff ought to be required to submit to a number of further examinations by the defendants’ experts – utility of psychometric testing – application to amend defence to plead s 151Z of the Workers Compensation Act 1987 (NSW) – vacation of hearing date sought

Legislation Cited:

Civil Liability Act 2002 (NSW)

Workers Compensation Act 1987 (NSW), s 151Z

Category:

Procedural rulings

Parties:

Ohanis Waneisian (Plaintiff)
Jeanette Durston (First defendant)
Matthew Durston (Second defendant)

Representation:

Counsel:
P Mooney SC (Plaintiff)
D Lloyd SC (Defendants)

Solicitors:
Steve Masselos & Co (Plaintiff)
Lander & Rogers (Defendants)

File Number(s):

2020/244502

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. This matter comes before me today by way of a motion filed by the defendants on 28 August 2024 seeking a number of orders, including:

1. the plaintiff to attend a number of further examinations organised by the defendants;

2. the defendants have leave to amend their defences to plead s 151Z of the Workers Compensation Act 1987 (NSW); and

3. the hearing date of 17 February 2025 be vacated.

2. Mr Lloyd SC appears for the defendants, and Mr Mooney SC appears for the plaintiff.

3. The defendants rely on an affidavit of Amrit Reuben Joseph dated 28 August 2024, who is a solicitor employed by the solicitor for the defendants. The plaintiff relies on his own affidavit of 16 September 2024, and an affidavit of the solicitor for the plaintiff, Gregory Masselos dated 16 September 2024. Exhibited to those affidavits is extensive material including extensive medical evidence.

4. The matter has a long history, having been commenced in 2020. It seems that for a period after commencement of proceedings the plaintiff's medical condition had not stabilised and the plaintiff did not progress the matter very far. That is no criticism of the plaintiff but it indicates that the period of case management really only goes back to 2023, when the parties started to collate and serve most of their evidence.

5. During the period since 2023, the matter has come before the Court on a number of occasions. The matter came before Chen J on 17 June 2024. His Honour ordered the matter be listed for hearing for seven days commencing 17 February 2025, directed that a mediation take place, and made various other orders for the finalisation of the evidence.

6. It seems that, following the mediation, the defendants reviewed their evidence and determined that they needed to obtain further expert medical reports, and also that they should be amending their defence to plead reliance on s 151Z of the Workers Compensation Act. The defendants assert that the plaintiff's employer was a joint tortfeasor and that, having regard to the provisions of s 151Z, the damages the defendants would be liable to pay, if any, would be reduced to the extent of the notional contribution of the employer.

7. As I said to the parties, this application raises a number of issues of concern in terms of general case management processes and the costs and conduct of these types of matters.

8. Those issues are:

1. the proliferation of expert reports in a case such as this;

2. the proposition that the defendants should be permitted to require the plaintiff to attend neuropsychological testing as part of the process of determining whether the plaintiff's complaints are genuine; and

3. the difficulties arising out of the differing statutory regimes for damages between the Civil Liability Act 2002 (NSW) and the Workers Compensation Act, and the consequences of the late joinder of the employer.

Further medical reports

9. The plaintiff has an extensive and complicated history of injury. The parties have already obtained and served substantial medical evidence. The plaintiff has not served a medicolegal neurosurgeon's or orthopaedic surgeon's report, but the injuries sustained by the plaintiff are such that the areas of injury to the plaintiff's body involve orthopaedic and neurosurgical opinions. For example, the plaintiff relies on the records of his treating neurosurgeon, Dr Timothy Steel.

10. The defendants have thus far obtained and served reports from rehabilitation consultants rather than an orthopaedic surgeon or neurosurgeon. If there was a rule in place that parties should be bound by their initial choice of experts, and that the number of experts that parties could use in these types of personal injuries cases was limited to a specific number, the defendants might not be able to require that the plaintiff attend any further examinations. However, there is no such rule in place. Each case must be assessed having regard to the particular facts and circumstances of that case.

11. I accept from the evidence relied upon by the defendants that the issues raised by the plaintiff's medical condition do require neurosurgical and orthopaedic opinions. Again, it would have been preferable if those opinions were obtained at the outset, and perhaps rather than from rehabilitation consultants, but I accept that the medical issues are such that the defendants should be allowed to obtain those additional opinions at this stage, subject of course to the question of prejudice to the plaintiff.

12. I would only say that, at least in my view, it is a rare case in which a defendant should be permitted to obtain and rely on such extensive and varied medical reports but I am satisfied that in this case the defendants should be permitted to do so.

Psychometric testing

13. The defendants obtained a report from a psychiatrist, Dr Davies, who opines in his report that the plaintiff's pain symptoms and behaviours are primarily psychologically determined. He then says the more difficult question is whether they have a degree of “voluntariness”. He says formal psychometric assessment may provide a greater degree of insight into this.

14. Those representing the defendants have responded to this by seeking to organise neuro-psychometric testing with Dr Roldan, a well-known expert in the area.

15. The point of the psychometric testing is to follow up on Dr Davies' suggestion, that is that such testing may reveal whether the plaintiff's pain complaints are not genuine.

16. As I raised with Mr Lloyd, I have some difficulty with a psychiatrist being able to offer such an opinion in a case such as this, bearing in mind that there is substantial evidence from other more qualified experts as to the likely cause and origin of the plaintiff's pain.

17. This is not a case in which the psychiatrist is being asked to consider whether a person suffering from PTSD is exhibiting genuine symptoms, or whether a person suffering from depression is exhibiting genuine symptoms. Dr Davies appears to be suggesting that the plaintiff's pain may be simply voluntary rather than based on any injury.

18. I have some concern about the increasing use of psychometric testing in these types of cases. The type of testing is proposed as a means of validating (or discrediting) the plaintiff and his symptoms.

19. The psychometric testing is of a type that purports to be able to determine the validity of responses given by an injured person over the course of a number of hours. There is a scale or rating system under the particular form of testing and, depending on the particular rating achieved, the tester may offer an opinion either that the answers are not genuine or that they are reflective of anxiety or some other mental state or merely reflective of not trying to properly complete the test. To a certain extent, any opinion as to the results of the testing itself involves a subjective element on the part of the person offering an opinion.

20. The only reason that such testing is arranged is to determine whether the plaintiff is not telling the truth, that is for credit purposes only.

21. There is already a proliferation of experts in this case.

22. The Court should be cautious before permitting the defendants to follow every suggestion in a medical report and require further extensive examination of the plaintiff.

23. The matter is listed for hearing in February 2025. It is submitted by the plaintiff, based on expert opinion, that if the plaintiff is required to subject himself to such testing over the next few months it will be necessary for the plaintiff to respond. The conventional view is that a person such as the plaintiff should not undertake more than one test every 12 months. As such, the case will need to be adjourned for perhaps 18 months so as to allow the plaintiff to respond to the defendants’ testing.

24. That is an undesirable situation. In my view, it is too late for that to occur. The plaintiff should not be required to wait a further 18 months to have his case heard because the defendants now want to organise psychometric testing.

25. As such, I reject the defendants’ application that the plaintiff be required to submit to testing by Dr Roldan.

Joining the employer

26. The final issue relates to the defendants’ proposed amended defence alleging negligence on the part of the employer. The plaintiff initially gave notice in 2020 of the potential for a work injury damages claim. However, he did not pursue that claim. Although he provided particulars of a work injury damages claim, no pre-filing statement was filed and no pre-filing defence was ever received.

27. The defendants now wish to amend their defence to rely on s 151Z of the Workers Compensation Act on the basis that at the time of his accident the plaintiff was in a hurry because he was required to deliver so many parcels that day. That may be disputed by the plaintiff but the defendant says there is evidence on which it intends to rely to support that assertion.

28. The defendants’ case is that they were not negligent. The plaintiff's accident occurred on the front porch of domestic premises. The plaintiff refers to a statement made by the occupier which might suggest that she was conscious that the area was slippery. The defendants say there were no earlier accidents, or complaints or reports of any problem with the particular area.

29. The defendants thus seeks to attribute the cause of the accident to the plaintiff hurrying and not taking care for his own safety. In circumstances in which he has previously asserted that he was forced to hurry because of the conduct of the employer, the defendants seek to attribute responsibility to the employer.

30. Because of the provisions of s 151Z there is always an issue as to whether the employer should be joined to the proceedings. That often depends on whether the plaintiff overcomes the 15 percent whole person impairment.

31. Although the plaintiff has raised a significant doubt about the merits of any claim against the employer, the defendants accept that, if they are allowed to amend their defence, the plaintiff may be forced into a position where the plaintiff is required to join the employer. That is because, if the defence is amended and the defendants are successful in their defence, the amount that the plaintiff might recover from the defendants will be reduced. This all reflects the calculations under s 151Z.

32. Although, in my view, it would ordinarily be possible for the employer to be joined and be ready to proceed at the hearing in February, the plaintiff cannot file an amended Statement of Claim joining the employer, without firstly filing a pre-filing statement and allowing 28 days for the employer to respond. There will then need to be a compulsory mediation before the plaintiff can issue proceedings in this Court.

33. In the circumstances, I accept Mr Mooney's submission that allowing the defendants either to amend their defence or to file a cross-claim against the employer at this time must result in the vacation of the hearing date. It is thus necessary to balance the competing interests so as to ensure that justice is done between the parties.

34. The plaintiff is correct in saying that this application is late, and it should have been made earlier. However, there has been non-compliance with earlier court orders about service of evidence by both parties.

35. I am conscious of the evidence from the plaintiff that he is struggling financially and that he is borrowing money just to survive. He is a relatively young man who says he has a severe injury and cannot work. I am conscious of the need to have his hearing as soon as possible.

36. There is availability in May 2025. As such, if the hearing is vacated it will only be adjourned for a period of three months. That would be sufficient time to allow the parties to do whatever is necessary to ensure the joinder of the employer. Further, Mr Lloyd says that having regard to the arguments and observations made during this application, his client would be content to file a cross-claim against the employer rather than simply amend the defence to seek notional contribution.

37. Again, minds may differ as to the strength of any case against the employer but I am satisfied that there is at least an arguable case against the employer.

38. In circumstances in which the hearing date will only need to be delayed for a period of three months, the defendants should be permitted to pursue their claim against the employer even at this late stage.

Vocational assessment

39. The other issue that is raised by the defendants is a need to have the vocational assessment by Mr Bright. A vocational assessment report may not be necessary in most cases. However, this is a case in which the plaintiff says that he intended to work as a plumber. He says that the medical evidence on which he relies supports the proposition that he will never be able to work as a plumber or in any physical capacity again. He claims full economic loss for the rest of his potential working life.

40. At least in my view, if that is established, the onus shifts to the defendants to establish that there are other jobs, that is not heavy physical work or working as a plumber, that the plaintiff might do, and the amount of money he could earn, and the availability of such jobs.

41. In circumstances in which a plaintiff claims that he cannot work in his chosen industry for the rest of his life, and that he, therefore, cannot do any work, the defendants are entitled to obtain an expert opinion to demonstrate what other work he could do.

42. The plaintiff does not have to prove what work he can do. The plaintiff has to prove that he cannot do the work that he was going to be doing. Where substantial damages are claimed because the plaintiff says he cannot do the work he was going to be doing, the defendants need some evidence to respond.

43. In those circumstances, I permit the defendants to obtain a report from Mr Bright, and order the plaintiff to attend a medical examination by Mr Bright.

44. I direct that the parties prepare short minutes of order reflecting these reasons. I have in mind the following orders, although I will not make any orders until receipt of the short minutes.

1. The defendants file any cross-claim against the employer within 14 days;

2. The defendants take all steps possible to arrange the earliest possible consultations with Dr Dan and Dr Miniter;

3. The plaintiff be required to attend examinations by Dr Dan and Dr Miniter;

4. Those examinations are to take place prior to 15 December 2024;

5. The plaintiff have leave to serve any evidence in response prior to 28 February 2025;

6. The matter be listed for further case management by me on 6 December 2024;

7. The hearing date be vacated and the matter be listed for hearing for ten days commencing 5 May 2025;

8. There be no order as to costs in respect of the vacation of the hearing date; and

9. The defendants pay the plaintiff's costs of the motion today.

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Decision last updated: 29 October 2024