Anderson v Hawke
[2016] NZHC 607
•8 April 2016
ORDER PROHIBITING SEARCH, COPY OR INSPECTION OF COURT FILE, PENDING FURTHER ORDER OF THE COURT.
PENDING FURTHER ORDER OF THE COURT, THE FILE IN THIS PROCEEDING SHALL RECORD THE PARTIES AS ANDERSON V HAWKE AND THE PROCEEDING SHALL BE LISTED AS SUCH.
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES.
THIS JUDGMENT USES FICTITIOUS NAMES AND MAY BE PUBLISHED IN THIS FORM.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-743 [2016] NZHC 607
BETWEEN ANDERSON AND ORS
Plaintiffs
AND
HAWKE
First DefendantA FACILITY OWNER Second Defendant
Hearing: 22 March 2016 Counsel:
F Joychild QC and K R Ross for Plaintiffs
S B W Grieve QC and Z A Matheson for First Defendant
P F Wicks QC, M J Dew and A Metira for Second DefendantJudgment:
8 April 2016
JUDGMENT OF HEATH J
This judgment was delivered by me on 8 April 2016 at 3.00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
ANDERSON AND ORS v HAWKE [2016] NZHC 607 [8 April 2016]
CONTENTS
Introduction [1] Should a s 100 order be made? [5] What conditions should be imposed?
(a) The issues [13]
(b) The nature of the examination [15] (c) Independence [18] (d) Can Mr Hawke use the appointee as his expert? [26] (e) Other issues [32] Outcome [36]
Introduction1
[1] Alan Anderson and five other men2 seek leave to bring a claim for alleged physical or sexual abuse against Mr Hawke, an employee of a residential institution at which each lived at various times between 1983 and 1991. Each plaintiff needs leave to bring his proceeding out of time.3 Such applications are customarily determined at the time of trial.4
[2] The owner of the residential institution (the Facility Owner) is also sued, based on alleged vicarious liability for the actions of Mr Hawke. At material times, the facility was approved for use as a home for children and young persons in need of care.5
[3] Mr Hawke has applied for an order that each of the plaintiffs submit to a medical examination by a forensic psychiatrist. His application is brought in reliance on s 100 of the Judicature Act 1908 (the Act).6 Mr Grieve QC, for Mr Hawke, submits that s 100 is engaged because an examination of their respective
mental health conditions will provide relevant evidence on both to the question
1 I have used fictitious names in this judgment to protect the identity of men who allege they were victims of sexual abuse. Orders suppressing the names and identifying particulars of the plaintiffs, the alleged abuser and residential home in which the alleged abuse occurred are in place.
2 At present, there is a pending application for leave to join one of them as a plaintiff. For convenience, I refer to all six men as plaintiffs.
3 Limitation Act 1950, ss 7(4) and 24.
4 W v Attorney-General [1999] 2 NZLR 709 (CA) at para [115] (Thomas J).
5 Under Part IX of the Children and Young Persons’ Act 1974 and, after 1 November 1989,
s 393(3) of the Children, Young Persons’ and Their Families’ Act 1989.
6 Set out at para [6] below.
whether leave to bring the proceeding should be granted, and claims for general damages.
[4] At the conclusion of the hearing, I indicated that I was satisfied an order should be made but reserved my decision so that I could consider further what conditions should be attached to it. This judgment explains why an order is being made and, subject to further submissions on their precise form, my reasons for imposing (or proposing) particular conditions.
Should a s 100 order be made?
[5] Section 100 of the Act had its genesis in the Accidents Compensation Act
1901. When a Bill was introduced to enact the provision, the Colonial Secretary, Sir Joseph Ward, explained that its purpose was to prevent abuse by plaintiffs who claimed compensation for personal injury, but were not required to submit to independent medical examination. As originally introduced, the jurisdiction to make an order was limited to examination of physical injuries, for the purpose of personal injury claims. The section was amended in 1985 to permit examination whenever
the physical or mental condition of a party to civil proceedings was in issue.7
[6] In its present form, s 100 of the Act provides:
100 Independent medical examination
(1) Where the physical or mental condition of a person who is a party to any civil proceedings is relevant to any matter in question in those proceedings, the High Court may order that that person submit himself to examination at a time and place specified in the order by 1 or more medical practitioners named in the order.
(2) A person required by an order under subsection (1) to submit to examination may have a medical practitioner chosen by that person attend that person’s examination.
(3) The court may order that the party seeking the order pay to the person to be examined a reasonable sum to meet that person’s travelling and other expenses of and incidental to the examination, including the expenses of having a medical practitioner chosen by that person attend that person’s examination.
7 My summary is taken from Miller J’s judgment in Murray v Roman Catholic Archdiocese of
Wellington (2004) 17 PRNZ 216 (HC) at paras [17] and [18].
(4) Where an order is made under subsection (1), the person required by that order to submit to examination shall do all things reasonably requested, and answer all questions reasonably asked of that person, by the medical practitioner for the purposes of the examination.
(5) If a person ordered under subsection (1) to submit to examination fails, without reasonable excuse, to comply with the order, or in any way obstructs the examination, the court may, on terms, stay the proceedings or strike out the pleading of that person.
(6) This section applies to the Crown and every department of the public service.
(7) Nothing in this section affects the provisions of the Workers’
Compensation Act 1956.
[7] There are few reported cases on applications under s 100. Those New Zealand cases that have considered the circumstances in which an order should be made have drawn on jurisprudence from other jurisdictions. In particular, the authorities consistently refer to a judgment of the Court of Appeal of England and Wales in Starr v National Coal Board.8
[8] Section 100 seeks to balance (what the Court of Appeal in Starr referred to as) “two fundamental rights which are cherished by the common law and to which attention has to be directed by the Court”.9 In my words, they are:
(a) A plaintiff’s right not to be subjected to a medical assessment to which he or she has not given informed consent; and
(b) A defendant’s right to defend himself or herself in litigation.
[9] The importance of those two policy considerations can be gleaned from rights affirmed by the New Zealand Bill of Rights Act 1990. Section 11 guarantees the right to refuse to undergo any medical treatment. Section 27 reflects a right “to the observance of the principles of natural justice” by any judicial authority. That is an
endorsement of fair trial rights, in a civil context.
8 Starr v National Coal Board [1977] 1 All ER 243 (CA). This case is discussed at paras [26]–
[28] below.
9 Ibid, at 249.
[10] In a case such as this, without access to a report from a medical practitioner on questions relating to mental health considerations affecting a plaintiff, it is difficult for a defendant against whom allegations of physical and sexual abuse have been brought to obtain a fair trial.
[11] In circumstances where each plaintiff will be challenged as to the delay in bringing the proceedings and have claimed damages for mental and emotional distress, I consider that Mr Hawke could not receive a fair trial without the ability to obtain an assessment of each plaintiff’s mental health condition.
[12] In those circumstances, I am prepared to make an order under s 100. I now consider the conditions on which an order should be made.
What conditions should be imposed?
(a) The issues
[13] Three significant questions arise for consideration:
(a) What should be the scope of the permitted medical examination?
(b) Should the person appointed be independent of both the plaintiffs and
Mr Hawke?
(c) Is it appropriate for the person appointed to conduct the examination to later be used as an expert witness by Mr Hawke?
[14] There are other subsidiary points, with which I deal separately.10
(b) The nature of the examination
[15] I shall need to hear from counsel further on the precise terms on which the appointee may examine each plaintiff. The nature of the questions to be asked, the
type of information sought to be elicited, and the admissibility of any statements
10 See paras [32]–[35] below.
made by an individual plaintiff to the medical practitioner all require consideration in the context of an examination designed to provide information about mental health considerations relevant to whether leave to bring the proceeding out of time should be granted, and the extent (if any) to which an order for distress damages should be made.
[16] In addressing these issues, I shall have regard to factors identified by Joseph Williams J in Wiffin v Attorney-General.11 I consider conditions should be crafted to minimise the intrusive nature of an examination of this type; in particular to avoid the possibility of traumatising a person who is already psychologically or emotionally fragile.
[17] To some extent, the ability of a medical practitioner chosen by a plaintiff12 to attend the Court ordered examination may alleviate that concern, and safeguard a plaintiff’s interests. But that is something that arises through the choice of a particular plaintiff, as opposed to a requirement of the Court. Whether additional protections should be provided by Court order if one or more of the plaintiffs were to decline to exercise his right to have a medical practitioner of his choice present remains for consideration.
(c) Independence
[18] Evidence was given in support of Mr Hawke’s application by Dr Ian Goodwin, a consultant psychiatrist. The s 100 application seeks orders that each of the plaintiffs submit themselves to an examination by Dr Goodwin. For present purposes, I shall assume that Dr Goodwin conducts all examinations, notwithstanding the existence of some difficulties that may make that impracticable.
[19] Given Dr Goodwin’s role in advising Mr Hawke on psychiatric issues, is he an appropriate appointee? In a statutory sense, the need for “independence” does not arise out of the wording of any particular sub-section within s 100, but from the
marginal note to the section which states: “Independent medical examination”.13
11 Wiffin v Attorney-General (2009) 19 PRNZ 307 (HC) at paras [18]–[21].
12 Judicature Act 1908, s 100(2).
13 See para [6] above.
[20] Dobson J has expressed some reservations about the use of the marginal note when interpreting s 100.14 His concern was that the provision was enacted almost
100 years before the Interpretation Act 1999 came into force. With respect, I do not share Dobson J’s concerns. The 1999 Act is referable to all legislation; it applies just as much to a statute enacted in 1901 as to one passed in 2001. Section 5(3) of the Interpretation Act states:
5 Ascertaining meaning of legislation
…
(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.
[21] As it happens, Dobson J did not determine the application on that basis.15 He began his analysis by providing an instructive description of the reasons why a s 100 order might be required:16
[13] Where the state of an inanimate object, such as a building, a bridge or machinery, is in issue, then experts for all parties will get access to it for the purposes of an analysis and production of opinions. What is different about the human body and mind when they are in issue, is that compelling access for these same analytical purposes involves an imposition on the persons involved, rather than in respect of property. It has more intrusive connotations. However, where relevance for evidentiary purposes is made out, the different nature of the intrusion does not of itself warrant the adoption of a different standard as to the identity of those authorised to undertake the analysis.
[22] After considering the distinction between “Court-appointed, and party- retained, experts” Dobson J took the view that the concept of “independence” should incorporate no more than what is required of any expert to comply with the Code of Conduct for Experts17 in the High Court. He added:18
[15] … The natural and ordinary meanings of “independent” include autonomous, thinking for oneself, not influenced by others in one’s opinions. In the context of personal injury litigation 100 years ago, that would be an appropriate and sufficient attribute. More recent articulation of the Courts’
14 Pickard v Ambrose HC Wellington CIV-2003-091-143, 1 May 2008 at para [16].
15 Ibid.
16 Ibid, at para [13].
17 High Court Rules, Schedule 4.
18 Ibid, at para [15].
expectations of experts more generally reflects similar expectations. When coupled with the requirement that all experts explicitly acknowledge that they participate to assist the Court, and not to advocate for any cause, the ultimate aim of affording assistance to the Court in determining a relevant issue is appropriately protected.
[23] Section 26 of the Evidence Act 2006 and r 9.43 of the High Court Rules combine to require an expert witness in civil proceedings to act impartially on relevant matters within his or her area of expertise, and not to act as an advocate for the party who engages him or her.19 In Prattley Enterprises Ltd v Vero Insurance NZ Ltd,20 the Court of Appeal distinguished the concept of impartiality from that of independence. Delivering the judgment of the Court, Miller J said:
[99] It is necessary to distinguish impartiality – the primary objective of the Code – from independence. An expert witness need not be independent of the party by whom the expert is briefed. Any potential conflict of interest is ordinarily treated as a matter of weight. That is so because independence goes to the relationship between the expert and the party engaging the witness, while impartiality is a behavioural quality, signifying an attitude of neutrality as between the parties. An expert witness who lacks independence may nonetheless behave impartially.
(footnotes omitted)
[24] The fact that an applicant for a s 100 order may have had some connection with the proposed expert may or may not impact on that person’s ability to give impartial evidence. Provided the Court is satisfied that the nominated expert is qualified to give the expert evidence and sufficiently autonomous in nature to reject any overtures to tailor evidence to a particular position, there is no reason to regard that person as anything other than independent. It is the ability to resist influences to give evidence that suits a particular party’s position that is important to independence. By contrast, impartiality involves a judgment about whether the expert has or has not provided evidence in a neutral manner.
[25] On an application of this type, it is part of the Court’s function to satisfy itself
that the proposed expert does have appropriate qualifications, understands his or her obligation to act independently of any party and is likely to resist overtures to act as
19 Ibid, at paras [96] and [97].
20 Prattley Enterprises Ltd v Vero Insurance NZ Ltd [2016] NZCA 67, at para [99].
an advocate. From prior experience, I have no doubt that Dr Goodwin falls into that category.
(d) Can Mr Hawke use the appointee as his expert?
[26] In this case, a question has arisen about the status of any person who might be appointed to examine one (or more) of the plaintiffs. During the course of argument, I debated with Mr Grieve whether any person appointed should be regarded as the Court’s expert, as opposed to one from whom Mr Hawke could seek advice for the purposes of trial. In responding to my questions, Mr Grieve placed significant weight on what was said by Scarman LJ, with whom on this point both Cairns and Geoffrey Lane LJJ agreed, in Starr. In addressing factors to be weighed
in the balance, Scarman LJ said:21
In the exercise of the discretion in this class of case, where a plaintiff has refused a medical examination, I think the court does have to recognise (and here I think Pickett’s case is helpful) that in the balance there are, amongst many other factors, two fundamental rights which are cherished by the common law and to which attention has to be directed by the court. First, as mentioned in Pickett’s case by Willmer and Donovan LJJ, and by Sachs LJ in Lane’s case, there is the plaintiff's right to personal liberty. But on the other side there is an equally fundamental right—the defendant's right to defend himself in the litigation as he and his advisers think fit; and this is a right which includes the freedom to choose the witnesses that he will call. It is particularly important that a defendant should be able to choose his own expert witnesses, if the case be one in which expert testimony is significant.
(emphasis added, footnotes omitted)
[27] I have doubts about the applicability (on a s 100 application) of the highlighted portion of the extract from Starr, to which I have referred. In my view, a distinction must be drawn between the type of “discretion” to which Scarman LJ referred in Starr, and the discretion to be exercised under s 100. The question in Starr was whether a discretion to stay proceedings should be exercised in favour of a defendant on the grounds that the plaintiff had unreasonably withheld consent to an examination by an expert of a defendant’s choice. The discretion to be exercised under s 100 is directed to the question whether (and if so on what terms) the Court
should compel a plaintiff to submit to an examination involuntarily.22
21 Ibid, at 249. The cases to which Scarman LJ refers are Pickett v Bristol Aeroplane Co Ltd
[1961] The Times 17 March 1961 (CA) and Lane v Willis [1972] 1 All ER 430 (CA).
22 The nature of the issue in Starr is explained by Scarman LJ at 245–247.
[28] The real controversy concerns the extent to which Mr Hawke may access the Court appointed medical practitioner to assist in preparation of his case for trial. My starting point is the particular circumstances on which Starr was decided. The plaintiff had declined to be examined in relation to claimed personal injuries by a medical practitioner nominated by the defendant. The defendant sought an order staying the proceeding “unless and until the plaintiff submitted himself to a medical examination on behalf of the defendants by a doctor … as reasonably required by the
defendants”.23 That was the context in which Scarman LJ highlighted the inherent
unfairness to a defendant where a plaintiff refuses to undergo a medical examination.24 The court retained an inherent jurisdiction to stay the proceeding until such time as the plaintiff submitted to a relevant examination.25 The position in New Zealand is that, if a s 100 order were made, an application to stay may be made if the ordered examination is frustrated by a plaintiff’s behaviour.26
[29] I do not consider it is appropriate for an order to be made to require an intrusive medical examination on terms which would permit the defendant to use the report writer as his own expert. If no Court order were made, but an examination took place by consent, any report to the defendant’s solicitor would be privileged; as
would subsequent discussions held for the purposes of the litigation.27 On the other
hand, an expert appointed by the Court will ordinarily report to the Court. Generally, the Court would release the report to all parties, so that it was available to all counsel cross-examine an expert called by a party to the litigation; or, the Court’s expert, if called.
[30] While I am not wedded to the language I employ, I consider that this problem could be addressed by conditions along the following lines:
(a) Counsel for Mr Hawke may provide to the nominated psychiatrist in advance of the examination a list of questions that would otherwise be
23 Starr v National Coal Board [1977] 1 All ER 243 (CA) at 245.
24 Ibid, at 247. See also the observations of Dobson J in Pickard v Ambrose HC Wellington CIV-
2003-091-143, 1 May 2008 at para [13], set out at para [21] above.
25 Ibid.
26 Judicature Act 1908, s 100(5), set out at para [6] above.
27 Evidence Act 2006, s 56.
put by a psychiatrist engaged by Mr Hawke to examine the individual plaintiff, for the purposes of giving an opinion for use at trial.
(b)The medical practitioner appointed to examine would be required to put those questions.
(c) A video record of the examination would be taken. That would be made available to counsel for both parties.
(d)Any psychiatrist engaged by Mr Hawke could view the video and advise him on matters within the scope of his or her expertise, to enable counsel to present his case adequately.
[31] If technological arrangements could be made for the interview to be relayed to another location by CCTV (in addition to being a video record), it may be possible to add a condition enabling the defendants’ expert to be present in person to view the interview. He or she would then have an opportunity, before the examination was completed, to talk to the s 100 expert and ask that any further questions be put.
(e) Other issues
[32] Because orders will need to be directed to individual plaintiffs, the name of the medical practitioner intended to examine each plaintiff, and the time and place at which the examination is to take place will need to be incorporated into an order. I will also need to be satisfied as to the independence of each medical practitioner, in the sense I have described.28 I have already expressed my view that I regard Dr Goodwin as independent, for this purpose.
[33] Section 100(2) gives a right to each plaintiff to decide a medical practitioner of his choice would attend the examination.29 It will be for each plaintiff to consider
his position on that topic and for counsel to advise the Court in due course.
28 See paras [20]–[25] above.
29 Section 100(2) is set out at para [6] above.
[34] For the purposes of s 100(3), I would be inclined to order that Mr Hawke pay a reasonable sum to meet an individual’s travelling and other expenses in relation to the examination, including expenses of having a medical practitioner chosen by him attend the examination. The term “expenses” does not include the medical practitioner’s fee.
[35] The question of who shall pay the medical practitioner’s fee requires further consideration. My provisional view is that the fee should be paid by the party seeking examination, on the basis that it becomes a cost in the proceeding that can be dealt with ultimately, if necessary, as part of any order for costs and disbursements
made in favour of Mr Hawke, should any particular claim be unsuccessful.30
Outcome
[36] I invite counsel to consider the proposals I have made. Counsel shall confer and submit a draft order for my consideration. That shall be filed by 4pm on 14
April 2016.
[37] In the event that there were differences between counsel as to the form of the order (or its contents) they shall be recorded in a joint memorandum, to be filed at the same time as the draft order. The points of difference raised by counsel will then be the subject of argument at the next hearing.
[38] The application under s 100 is adjourned for further consideration at 10am on
18 April 2016.
[39] Costs are reserved.
30 In a different context, I have discussed the nature of expenses claimable by a person attending a statutory examination to obtain information (ANZ National Bank Ltd v Shehan and Lock [2013]
1 NZLR 673 (HC) at paras [80]–[85]). My purposes in referring to that authority is to allow counsel the opportunity to consider it. The observations that I made in that different situation may or may not be relevant to the term of an order under s 100.
[40] I thank counsel for their assistance.
P R Heath J
Delivered on 8 April 2016 at 3.00pm.
Solicitors:
Cooper Legal, Wellington Glaister Ennor, Auckland McVeagh Fleming, Auckland Counsel:
F Joychild QC, Auckland
S B W Grieve QC, Auckland
P F Wicks QC, Auckland
M J Dew, Auckland
1
1