Keen v The Attorney-General HC Wellington CIV 2007-485-769
[2008] NZHC 2597
•26 September 2008
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2007-485-769
BETWEEN WAYNE BARRY KEEN Plaintiff
ANDTHE ATTORNEY-GENERAL First Defendant
ANDTHE SALVATION ARMY Second Defendant
ANDCROWN HEALTH FINANCING AGENCY
Third Defendant
CIV 2006-485-2934
AND BETWEEN JULES PIERRE NICHOLAS MIKUS Plaintiff
ANDTHE ATTORNEY-GENERAL First Defendant
ANDCROWN HEALTH FINANCING AGENCY
Second Defendant
ANDTHE SALVATION ARMY Third Defendant
Hearing: 23 September 2008
Appearances: A. Hill - Counsel for Plaintiffs
R. Schmidt & B. Leslie - Counsel for Defendants
Judgment: 26 September 2008 at 11.30 am
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
This judgment was delivered by the Registrar on 26 September 2008 at
11.30 a.m. pursuant to r 540(4) of the High Court Rules 1985.
Solicitors: Sonja M Cooper, Solicitors, PO Box 10899, The Terrace, Wellington 6143
Crown Law, PO Box 2858, Wellington 6140
Hesketh Henry, Solicitors, CP24017, Auckland Mail Centre, Auckland
WB KEEN V THE ATTORNEY-GENERAL AND ORS HC WN CIV 2007-485-769 26 September 2008
a) The plaintiff in each proceeding, Mr Mikus and Mr Keen submit themselves for a medical examination for the purposes of assessing their mental condition; and
b)The plaintiff in each case file a reply to the defendants’ affirmative defence under s. 4(1) Limitation Act 1950.
[2] So far as the second application is concerned, before me counsel for the plaintiffs confirmed that the orders sought were not opposed.
[3] Orders are now made therefore that the plaintiffs, Mr Mikus and Mr Keen respectively are to file a reply to the defendants’ affirmative defence under s. 4(1) Limitation Act 1950 within 15 working days of the date of this judgment.
[4] I turn now to consider the application for orders for medical examination.
[5] The plaintiffs in each case have brought proceedings against the Department of Social Welfare, the Crown Health Financing Agency and the Salvation Army for events alleged to have occurred for Mr Mikus in the 1970s and for Mr Keen in the
1960s and 1970s while both plaintiffs were in homes and hospitals operated by the defendants (or their predecessors).
[6] Both plaintiffs allege that the defendants are directly and vicariously liable for damage suffered by them first in the case of Mr Mikus at Porirua Hospital and secondly in the case of Mr Keen at Lake Alice Hospital and thirdly, at a number of Department of Social Welfare institutions and homes operated by the Salvation Army.
[7] As I have noted, the Crown defendants filed interlocutory applications seeking orders for medical examination of each of the plaintiffs under s. 100
Judicature Act 1908.
“(1) Where the physical and 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 one or more medical practitioners named in the order.”
[9] Rule 318 High Court Rules is also relevant here. It states:
“318. Order for medical examination
(1) An order under section 100(1) of the Act may be made -
(a) At any time after pleadings are closed, on the application of any party to the proceeding; or
(b) By the Court of its own motion.
(2) The time and place of the examination shall be fixed by the order.”
[10] In the present cases it would appear that both claims by the plaintiffs are prima facie statute barred under s. 124(4) Mental Health Act 1969 and s. 4(7) Limitation Act 1950.
[11] Indeed, initially here, both plaintiffs filed interlocutory applications for orders granting leave to proceed if leave was required. These applications were supported in each case by affidavit evidence from the plaintiffs themselves and from a consultant psychiatrist.
[12] In addition, on 18 July 2007 in a letter from the plaintiffs’ solicitors, both plaintiffs consented to a psychiatric examination by a psychiatrist to be jointly instructed by all defendants.
[13] Matters had proceeded for some time on the basis that the plaintiffs required leave to commence their proceedings. In memoranda dated 8 February 2008
however, counsel for the plaintiffs withdrew those applications for leave. This was on the basis that it was said neither plaintiff could reasonably have made the link between the alleged abuse suffered as a result of the defendants’ actions and his alleged adult difficulties until 2 years before the proceedings were filed.
[14] In those 8 February 2008 memoranda, counsel for the plaintiffs sought to reserve the right to make an application for leave at trial should the Trial Judge make factual findings that indicated leave would be required. In a minute issued on 12
February 2008, however, I refused orders reserving leave in such a situation and indicated that was a matter for consideration by the Trial Judge at the time if indeed it was to arise.
[15] The plaintiffs now refuse their consent to the medical examinations sought by the defendants. In doing so, however, it is important to note that in submissions advanced by counsel for the plaintiffs she confirmed that this refusal is not absolute and in her words:
“Consent will be provided if and when a date for a hearing is on the horizon.”
[16] The issue for consideration therefore relates to the timing of these medical examinations.
[17] Before me counsel accepted that the principles to be applied when determining an application for medical examination under s. 100 as confirmed in Anderson v Northland Health Limited (1998) 12 PRNZ 338 are those set out by the English Court of Appeal in Starr v National Coal Board [1977] 1 All ER 243.
[18] McGechan on Procedure at para. J100.05 sets out these principles in the following way:
“J100.05 Discretion
The power to order a medical examination(s) is discretionary — “may order”.
The Court has adopted the principles formulated by the English Courts under its inherent jurisdiction to stay a proceeding where medical examination is unreasonably refused: Anderson v Northland Health Ltd (1998) 12 PRNZ
338.
These principles are:
(a) Interests of justice: An examination will only be ordered if reasonable in the interests of justice. The relevance of the proposed medical evidence to what is in issue at trial is of obvious importance. A countervailing factor is any risk or unpleasantness involved in the medical examination.
(b) Balancing exercise: Exercise of a discretion involves weighing the reasonableness of the defendant’s request against the reasonableness of the plaintiff’s reservations.
(c)Onus: If the plaintiff declines examination, the defendant must satisfy the Court that it cannot properly prepare its case without independent medical examination, eg by adducing evidence that its medical expert would be at a significant disadvantage in assessing the plaintiff’s condition and expressing an opinion, should he not be able to examine/interview the plaintiff himself.
(d) Objection by plaintiff to examination by particular practitioner: A plaintiff’s objection to examination by a particular medical practitioner nominated by the defendant will only be upheld if soundly based, eg if that practitioner is not properly qualified, or not expert in the area.
These principles are drawn from Anderson v Northland Health Ltd (above) and Murray v Roman Catholic Archdiocese of Wellington [2005] NZAR 173; (2004) 17 PRNZ 216.”
[19] In short the Court is required to enter into a balancing exercise:
“Weighing the reasonableness of the defendant’s request against the reasonableness of the plaintiff’s reservations” always bearing in mind “the interests of justice, of the just determination of the particular case” – Murray v Roman Catholic ArchDiocese of Wellington at para. 30.
[20] Essentially, as I have outlined above the opposition from each plaintiff to the present orders sought by the defendants is simply that although the medical examinations will be required at some point it is premature for them to be carried out when no dates for hearing of these proceedings have been allocated.
[21] Further, the plaintiffs advance their opposition with the suggestion that these medical examinations are sought by the defendants for the purposes of bringing future strike-out applications and any psychiatric assessment is not necessary for such applications.
[22] In assessing the reasonableness of the defendants’ request for medical examinations here, it is significant that the plaintiffs have already accepted that these examinations are appropriate and will be required at some point, but that the date this should occur needs to be deferred. In my view the mental condition of each plaintiff will lie at the heart of important issues in these proceedings. Psychiatric evidence is likely to be essential to determine not only issues of causation and damage but also to address questions of disability and reasonable discoverability to establish whether or not the plaintiffs have a prima facie argument in favour of granting leave to proceed if in fact it turns out that such leave is required.
[23] There can be no question in my view that the defendants’ request that the plaintiffs submit themselves to medical examinations is an entirely reasonable one.
[24] Turning now to the reasonableness of the plaintiffs’ refusal at this point to submit to such examinations, before me counsel for the plaintiffs advanced no arguments concerning the risks or unpleasantness to the plaintiffs involved in the examinations. Indeed some time ago each plaintiff consented to these medical examinations being undertaken but this consent was later withdrawn.
[25] As I have noted above, essentially the plaintiffs’ only opposition to the present application is that it is premature and the defendants are seeking orders for medical examinations in isolation. The plaintiffs contend that to do so without any other applications before the Court must indicate that the defendants are engaging in
a mere fishing expedition and that this simply wastes the time of the Court the parties and counsel.
[26] As I have noted at paragraph [9] above r 318 High Court Rules envisages that an order for medical examination under s. 100(1) Judicature Act 1908 is to be made by a party “at any time after pleadings are closed” or by the Court of its own motion. Other than this provision there appears to be no restriction on the time at which a medical examination may be ordered.
[27] In the present case, as I understand the position, the pleadings are closed. Both proceedings are ready to be set down for hearing although as I understand it no hearing date has as yet been set.
[28] As I have noted above limitation will be a live issue in these proceedings. Both of the plaintiffs’ claims would appear to be prima facie statute barred under s.
124(4) Mental Health Act 1969 and s. 4(7) Limitation Act 1950.
[29] In a somewhat similar proceeding which was recently before the Court of Appeal, Pikari v Crown Health Financing Agency [2008] NZCA 362 Glazebrook J. summarised the Court’s majority ruling on the question of leave in mental health proceedings in the following way:
“By majority (Glazebrook, O’Regan and Robinson JJ) the following procedure should apply. If a defendant considers, in relation to any relevant proceedings, that leave should have been applied for, then he or she should apply either to have the question of leave dealt with as a preliminary issue and/or to strike out the proceedings. In deciding any application to strike out the proceedings, normal strike out principles apply.” – at para. 78.
[30] In the present cases, counsel for the defendants has signalled the possibility of applications being made pursuant to r 418 High Court Rules for determination of this limitation leave issue as a preliminary question. There is also a possibility that strike out applications may be brought.
[31] Before me counsel for the plaintiffs argued that it was unreasonable to order a medical examination where no trial date had yet been set. In my view, however, this misrepresents the purpose of any such examination. Psychiatric evidence here is likely to be essential at trial to determine a range of issues including causation and damage. That, however, is not the only possible use of such evidence. As the Court of Appeal signalled in Pikari, it is open to defendants to determine the issue of leave at an interlocutory stage whether by applying to deal with it as a preliminary issue or by bringing a strike-out application. Indeed, as I see the position, independent psychiatric evidence is necessary here to establish whether or not the plaintiffs have a prima facie argument in favour of granting leave. As a result, an order for medical examination is appropriate here to enable the defendants to properly assess the way to progress these proceedings brought against them. Although any strike-out application contemplated by the defendants is generally to proceed on the basis of the matters pleaded by the plaintiffs, a r. 418 separate question application is different. And, in addition, in appropriate cases even on a strike-out application the Court is entitled to receive affidavit evidence and will do so – Attorney General v McVeagh [1995] 1 NZLR 558. In that decision the Court of Appeal made clear that there may be cases where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.
[32] Further, in my view, there is no good reason why medical examinations of the plaintiffs, which they have acknowledged are appropriate at some point, should be delayed. The present cases before the Court relate to claims for alleged historic abuse. Discoverability of their right to bring these claims and disability on the part of the plaintiffs are live issues. It is in the interests of justice as I see it for any delay in carrying out these medical examinations to be kept to a minimum. The plaintiffs have already submitted to their own medical examinations. The further independent examinations sought should be carried out promptly and with reasonable proximity to those earlier examinations.
[33] I find therefore that it is in the interests of justice for the medical examinations sought by the defendants here to be ordered at this point.
[34] The applications therefore succeed and orders will follow subject to the matters I note below.
[35] I turn now to the requirements for the orders to be made. Rule 318(2) High Court Rules requires those orders to state the time and place of examination. In addition s. 100(1) Judicature Act 1908 requires the orders to specify the medical practitioner or practitioners who are to undertake the examinations. On these aspects, see McGechan on Procedure para. HR319.02.
[36] The present applications by the Crown defendants do not specify the medical practitioner or practitioners concerned nor the time and place suggested for the examinations.
[37] A direction is now made therefore that:
a) Within 15 working days of the date of this judgment the Crown defendants are to file and serve a memorandum specifying the name or names of the medical practitioners who are to undertake the medical examinations and the suggested time for and place where these are to be carried out in the case of each plaintiff.
b)Within a further 15 working days from that time the plaintiffs are to file and serve their memorandum in response.
c) Those memoranda are then to be referred to me and in the absence of either party indicating they wish to be heard on the matter I will make appropriate orders for the medical examinations based upon the material before the Court.
[38] As I have noted above, the present applications have succeeded. As to costs, if these are in issue between the parties, then counsel may file appropriate memoranda sequentially (the defendants to file first) which are they to be referred to me and I will make a decision on the issue of costs based upon the material before the Court.
‘Associate Judge D.I. Gendall’
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