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Circumstances in which a Plaintiff’s refusal to undergo a medical assessment is “reasonable” – a Victorian example

Circumstances in which a Plaintiff’s refusal to undergo a medical assessment is “reasonable” – a Victorian example

Published on January 24, 2020 by Charles HarrisonCharles Harrison

Pyman v Whitefriars College Inc [2019] is an interlocutory decision of the Victorian Supreme Court (Forbes J) handed down on 30 May 2019.

This decision concerned an application by a defendant seeking to stay a proceeding in circumstances where a plaintiff would not attend an updated medico-legal appointment with a psychiatrist.[1]

Accordingly, it provides guidance in determining the requisite threshold of “reasonableness” in assessing a plaintiff’s refusal to attend such an examination.

Applicable Rule

The Defendant brought its application seeking to stay the primary proceeding, pursuant to rule 33.04 of the Supreme Court (General Civil Procedure) Rules (VIC) 2015. This rule, titled ‘Notice for examination’, states:

“(1)     The defendant may request the plaintiff in writing to submit to appropriate examinations by a medical expert or experts at specified times and places.

(2)      Where a plaintiff refuses or neglects, without reasonable cause, to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the         proceeding.”

Introduction and Factual Summary

A summary of the key facts are outlined below.

Background

At the time of judgement, pre-trial matters had been completed and the proceeding was listed for a hearing on 17 June 2019.[2]

Jonah Pyman (‘the Plaintiff’), via his Litigation Guardian (his father, Trevor Pyman) (‘the Litigation Guardian’), sought damages for psychiatric injury arising out alleged bullying, harassment, assault and sexual assault whilst a student at Whitefriars College during 2013 and 2014. The Plaintiff continued his proceeding, via a Litigation Guardian, given the impact of his psychiatric state, despite turning 18 years of age in October 2018.[3]

Medical evidence

The Plaintiff’s ongoing care and treatment were case managed by Dr Atkin, a child psychiatrist and consultant.

The Plaintiff had engaged in various treatments and therapy since 2016 including two inpatient hospital attendances, treatment by an adolescent psychiatrist, and neurological testing. His level of compliance with such treatment had varied over time and his Honour held that “it is clear from the medical material that the plaintiff’s condition is one where his level of symptoms and ability to function significantly fluctuates”.[4]

In 2017, the Plaintiff had undergone a medico-legal assessment with Dr Chazan (commissioned by his own lawyers), followed subsequently by a medico-legal assessment with Dr Neill (commissioned by the Defendant) in July 2018. Dr Neill prepared three reports, one being from the initial assessment, a second based on the papers, and the third after having reviewed Dr Chazan’s report. There were natural similarities and differences in these two opinions, as well as the opinions expressed by the Plaintiff’s treating practitioners.[5]

Circumstances resulting in the application

In early 2019, in anticipation of the forthcoming hearing, both the Plaintiff and Defendant  lawyers sought to arrange updated medico-legal opinions from Dr Chazan and Dr Neill respectively. This would entail the Plaintiff attending these further assessments in person.

Importantly, the Litigation Guardian informed his own lawyers of his belief that a further assessment with Dr Chazan would be detrimental to the Plaintiff’s mental health and this assessment was accordingly cancelled. When the lawyers for the Defendant informed the Plaintiff of Dr Neill’s assessment, attendance at this assessment was rejected by the Litigation Guardian on similar terms.

Basis of the Plaintiff’s refusal to attend the examination

The obvious question, which goes to the heart of rule 33.04(2)’s “without reasonable cause” threshold, is what circumstances existed and what evidence was available to demonstrate that the Litigation Guardian’s refusal for the Plaintiff to attend the examination was reasonable.

The Litigation Guardian’s instructions were that a further examination would “place the Plaintiff at high risk of significant and severe deterioration of his psychological injuries”.

This initial position was based on the belief of the Plaintiff’s parents, one being the Litigation Guardian, both of who would obviously have unique insight into the Plaintiff’s mental health state, and the effect of his treatment. Following the Plaintiff’s lawyers conveying this position, two medical reports were obtained from Dr Atkin, the Plaintiff’s consultant/child psychiatrist, dated 5 March 2019 and 23 May 2019. Dr Atkin provided compelling evidence of the potential deterioration of the Plaintiff’s mental health state if he attended a further assessment, including that there was “very likely to be a period of agitation, insomnia, aggression and property damage”, as well as a suicidal ideation, and risk of impairing his ability to continue to engage with treatment.[6]

Relevant Principles

His Honour noted that he must be satisfied of two things for the application of a stay of proceedings in these circumstances to succeed: firstly, that the Plaintiff’s refusal to attend was without reasonable grounds, and, secondly, that the Defendant’s request to attend the examination was reasonable.

His Honour relied upon Stace v Commonwealth[7], which laid out the following relevant principles to provide guidance in such applications[8]:

  1. That the decision involves the judge’s discretion;
  2. The requirement to balance a plaintiff’s personal liberty against a defendant’s right to prepare a defence as it sees fit; and
  3. Whether the defendant’s request for a plaintiff to undergo an assessment, or a plaintiff’ objection of this request, is “reasonable in light of the information or advice which the parties receive from their respective advisers”.

His Honour’s Decision

It was not in dispute between the parties that the Defendant’s request for the updated medico-legal assessment was reasonable.[9]

Ultimately, His Honour found the two reports of Dr Atkin “fortified the reasonableness of the Litigation Guardian’s instructions”, noting that Dr Atkin is well placed as the co-ordinating clinician for the Plaintiff and involved also with the Plaintiff’s parents for therapeutic support that medical advice does provide a basis for the concerns and therefore for the refusal to be reasonable”.[10]

His Honour relied on the following factors to find in favour of the Litigation Guardian:

  1. The evidence from the Plaintiff’s parents and Dr Atkin;
  2. The Plaintiff’s young age and circumstances (and the ongoing requirement for a Litigation Guardian) and his fluctuating engagement with treatment;
  3. The Plaintiff’s refusal was “not selective” in that he refused to undergo further assessments from Dr Chazan and Dr Neill; and
  4. The absence of a further examination by Dr Neill not being of such prejudice to the Defendant so as to prevent it from adequately defending the case.

His Honour also commented on the   Defendant’s arguments that Dr Atkin’s opinion might have been influenced by his letter of instruction which the Defendant’s viewed as being overly leading, and the “paradox” that the Plaintiff could attend his treating practitioners and give evidence at the forthcoming trial but could not attend the medico-legal examination. In response, his Honour noted that the Defendant did not persist with an application to cross-examine Dr Atkin and also noted that any question of the Plaintiff’s ability to give evidence at trial and in what circumstances might be more sensibly canvassed at final directions.[11]

Analysis/How does it affect you?

In summary, this interlocutory decision provides practical guidance for practitioners acting for both plaintiffs and defendants alike in determining whether medical assessments (and particular further medical assessments) are “reasonable” and appropriate, in circumstances where there is a particularly psychologically fragile plaintiff.

Considerations in this regard are required, as is often the case, to be assessed on a case-by-case but they will generally include:

  1. The stage of the proceeding in which the assessment is proposed;
  2. Whether an assessment or assessments have previously taken place;
  3. The availability of other evidence to assist the Court in its overall determination of the primary proceeding, including its assessment of the plaintiff’s mental health state; and
  4. The prejudice, in light of the circumstances of the claim and the available evidence, which may be faced by the defendant in the primary proceeding if the relevant assessment does not occur.

It is apt to conclude with comments made in Stace v Commonwealth[12]: a “plaintiff might reasonably accept a degree of discomfort and risk and trouble for the purpose of being cured, but quite reasonably, not be willing to repeat it all for the assistance of the defendant”.


[1] Above n 1, at 2.

[2] Above n 1, at 2.

[3] Above n 1, at 1.

[4] Above n 1, at 5.

[5] Above n 1, at 7.

[6] Above n 1, at [9]-[10].

[7] [1989] SASC 1508, (1989) 51 SASR 391

[8] [1989] SASC 1508, (1989) 51 SASR 391, 401, (White, Matheson and Bollen JJ), quoting Prescott v Bulldog Tools Ltd (1981) 3 AII ER 869, 874 (Webster J).

[9] Above n 1, at 13.

[10] Above n 1, at 14.

[11] Above n 1, at 16-17.

[12] [1989] SASC 1508, (1989) 51 SASR 391, 403, (White, Matheson and Bollen JJ).

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