Defendant’s request for further psychiatric examination was unreasonable

06 April 2021
Trigger Warning: This article contains details about abuse which may be upsetting for some readers. Reader discretion is advised.

In Issue

  • The Court had to consider whether the first defendant’s request for the plaintiff to undergo a further psychiatric examination with a different psychiatrist was reasonable. The first defendant sought that the proceeding be stayed if the plaintiff did not submit to the psychiatric assessment by 17 March 2021.

The background

The plaintiff commenced proceedings on 22 January 2020 against the first defendant, alleging that he was physically and sexually abused by two Brothers at a regional school and another at a Church between 1971 and 1974.

The proceeding was listed for trial on 13 April 2021.

According to orders made on 13 March 2020, the plaintiff’s medical reports were to be exchanged by 12 June 2020 and the defendants’ reports exchanged by 24 July 2020.

The plaintiff served a psychiatric report by Dr Sandra Hacker dated 1 August 2017. A supplementary report from Dr Hacker was served 16 November 2020.

The defendants jointly arranged for a psychiatric examination by Dr Alan Jager. Dr Jager examined the plaintiff on 23 June 2020 and provided a report dated 28 July 2020. A supplementary report was served on 15 September 2020.

On 2 December 2020 the first defendant’s solicitors requested the plaintiff submit to a further joint examination with Dr Alex Apler, psychiatrist, on 17 March 2021.

The plaintiff refused to agree to the examination with Dr Apler, stating that it was unreasonable and without explanation of a proper basis for the need for a fresh assessment at such a late stage in the proceeding.

The first defendant submitted that the further psychiatric assessment with Dr Apler was reasonable for the following reasons:

  • There was a substantial economic loss claim and the further report would explore the impact of the abuse on the plaintiff’s work capacity and clarify discrepancies between the current medical experts;
  • There had been significant changes in the plaintiff’s life since Dr Jager’s examination, and an up to date assessment of the plaintiff’s work history and capacity was required;
  • Further medical evidence would more thoroughly explore the question of apportionment;
  • The further assessment was reasonable because it was sought for a legitimate purpose and related to central issues in the proceeding; and
  • The request was made in a timely manner and well in advance of the trial date.

The first defendant submitted that the plaintiff’s refusal to attend was unreasonable for the following reasons:

  • It was unreasonable for the plaintiff to refuse the request on the ground it was made out of time, as the plaintiff had been out of time in serving his own expert material;
  • A refusal on the basis of ‘trauma informed practice’ was unreasonable, in circumstances where the plaintiff was prepared to undergo a second medical examination for the benefit of his own case;
  • There was limited evidence to justify the plaintiff’s refusal to attend; and
  • Experts are independent and must abide by the Expert Code of Conduct, and any exploration of allegations will not involve the veracity of credibility being tested by the expert.

The plaintiff submitted the request was unreasonable for the following reasons:

  • The plaintiff had already attended an examination with Dr Jager;
  • The evidence of Ms de Brugiere (plaintiff’s treating psychotherapist) was that requiring the plaintiff to undergo a further assessment with an unfamiliar psychiatrist would cause a regression in his fragile mental state; and
  • There was no adequate explanation as to why a further examination was required, and why the matters could not be addressed by way of a supplementary report from Dr Jager.

The decision at trial

The court considered the first defendant’s request that the plaintiff submit to a further medical examination by a new expert to be unreasonable for the following reasons:

  • The request was made four and a half months after the expiry of the orders providing for service of medical expert reports;
  • The first defendant failed to provide an adequate explanation as to the delay in making the request. It had ample time to arrange a further supplementary report from Dr Jager in response to Dr Hacker’s supplementary report; and
  • There was no adequate explanation as to why a new expert was required so late in the proceeding. If the first defendant was concerned with obtaining an up to date assessment of the plaintiff, including his work capacity, then Dr Jager could have been requested to address the issue in a further supplementary report.

The court concluded that the plaintiff’s refusal to attend the proposed examination was reasonable because it would cause him further harm. In this regard the court accepted Ms de Brugiere’s evidence.

The court observed that the diagnoses made by Dr Hacker and Dr Jager, together with Ms de Brugiere’s evidence, supported taking a trauma informed approach.

Her Honour concluded that, in balancing the interests of the parties, she was not satisfied that any prejudice suffered by the defendants in proceeding to trial without the further medical examination by a new expert justified a stay of the proceedings.

Implications for you

To be successful in such an application for a stay of proceedings, a defendant must satisfy the court that the defendant’s request to attend a medical examination was reasonable and that the plaintiff’s refusal to attend a medical examination was without reasonable grounds. This will necessarily involve balancing of the competing interests of both parties.

This decision also highlights the importance of considering trauma informed practice when seeking multiple medical examinations of plaintiffs in abuse claims.

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