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- Unreported Judgment
Slaughter v Harvey QDC 156
DISTRICT COURT OF QUEENSLAND
Slaughter v Harvey  QDC 156
JOHN COLIN SLAUGHTER
DEAN CHARLES HARVEY
29 July 2021
21 July 2021
Barlow QC DCJ
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – PERSONAL INJURY OR FATAL ACCIDENTS PROCEEDINGS – PRELIMINARY REQUIREMENTS – the respondent plaintiff obtained leave to commence claim against applicant defendant for damages for personal injury – proceeding stayed pending completion of pre-proceeding steps under the Personal Injuries Proceedings Act 2002 (PIPA) – defendant requested that plaintiff undergo independent medical examination by doctor – defendant provided panel of doctors for plaintiff to choose – plaintiff sought to impose conditions on examination that were unacceptable to all doctors on panel – whether proposed examination is for the purposes provided in s 25(1) of PIPA – whether doctors are qualified – whether examination is unreasonable – whether plaintiff entitled to place conditions on examination.
Personal Injuries Proceedings Act 2002, ss 25, 35
Bona v Jeffries  QSC 84, cited
Day v Woolworths Group Ltd  QCA 105, cited
D L K Atkinson QC, for the applicant
G R Mullins, for the respondent
Hall & Wilcox for the applicant
Piper Alderman for the respondent
- The applicant (to whom I shall refer as the defendant), Dr Slaughter, is a psychiatrist who has practised for many years.
- Between 1984 and 2018, the respondent (to whom I shall refer as the plaintiff) attended on the defendant for psychiatric advice and treatment. The plaintiff alleges that the defendant advised him that he suffered from a depressive illness that would require lifetime treatment with drugs. The plaintiff received treatment from the defendant, comprising regular consultations and the prescription of a large number of drugs, between 1984 and 2016.
- The plaintiff stopped taking the prescribed drugs in 2016, although he continued to see the defendant until 2018. He claims that, thereafter, he recovered his joie de vivre and he has since been diagnosed by other psychiatrists as suffering no psychiatric illness and as likely never to have suffered such an illness. He contends that, while on the medications, he suffered a large number of serious side effects that have caused him personal injury and loss.
- In 2019, the plaintiff obtained leave to commence a claim in this court, against the defendant, seeking damages for personal injury caused by the defendant’s alleged negligence, breach of contract, battery and misleading or deceptive conduct over the period of the defendant’s treatment of the plaintiff up to 2016. That proceeding was commenced and, by the order giving him leave, was stayed pending completion of the pre-proceeding steps required under Chapter 2, Part 1 of the Personal Injuries Proceedings Act 2002 (PIPA). Those steps are still underway, having been commenced by an extensive notice of claim provided to the defendant on 1 June 2020. The limitation period relating to his causes of action was also later extended to October 2020.
- In this proceeding, commenced by originating application, the defendant seeks the orders that:
- (a)the claim made pursuant to the PIPA be stayed permanently, or as the court otherwise sees fit, unless the plaintiff undergoes an independent medico-legal examination by Dr John Chalk on 27 August 2021 at 1:00pm or such other date as the parties may agree;
- (b)in the alternative, the PIPA claim be stayed permanently, or as the court otherwise sees fit, unless on or before 31 August 2021 the Plaintiff undergoes a medico-legal examination by a psychiatrist, to be selected by the plaintiff from the Dr Jill Reddan, Dr Jon Steinberg and Dr John Chalk;
- (c)the medico-legal examination occur on such terms as the psychiatrist directs; and
- (d)a copy of the report resulting from the examination be provided to the defendant’s solicitors.
- His application is, in essence, made under s 35 of PIPA, under which, if a party fails to comply with a duty imposed under (relevantly) s 25, the court may order that party to take specified action to remedy the default and may make consequential or ancillary orders.
- In support of his application, the defendant contends that, in accordance with s 25 of PIPA, he requested the plaintiff to undergo a medical examination by a doctor to be selected by the plaintiff from a panel provided by the defendant, but the plaintiff has refused to do so without imposing conditions on the examination that are not acceptable to any member of the panel.
- The plaintiff opposes the application, essentially on three grounds:
- (a)the defendant’s solicitors have not clearly stated the issues to which the examination – and the doctor’s consequent opinions - will be addressed;
- (b)the defendant has not demonstrated that the doctors named on the panel have appropriate qualifications and experience in all the relevant fields nominated by the defendant in the request, nor (if they intend to consider the treatment of the plaintiff since 1984) for the entire period relevant to the claim; and
- (c)the examination sought is unreasonable because the proposed doctors will not comply with conditions for the examination on which the plaintiff insists.
- I do not understand the defendant to dispute that it is his obligation, on this application, to demonstrate that he has satisfied the criteria in s 25 that oblige the plaintiff to undergo an examination. The question is whether he has done so. I shall address the issues by considering the matters raised by the plaintiff.
Authorities relied on by the parties
- The defendant submits that the Court of Appeal’s decision in Day v Woolworths Group Ltd supports the view that a claimant cannot impose conditions on attending for a medical examination, nor refuse to attend such an examination if, objectively, the manner in which the examination will proceed is reasonable. A defendant is entitled to insist that the plaintiff be examined by a doctor chosen by the plaintiff from a panel put forward by the defendant, whatever concerns the plaintiff may have about the doctors concerned or the procedure for examination that the doctors propose to utilise, provided that the examinations are not unreasonable. It is reasonable for the examining doctor to carry out the examination in the manner in which the doctor usually conducts such an examination and it does not make it unreasonable simply because a plaintiff wishes to have the examination carried out in a different manner. How the doctor carries out the examination is a matter for the doctor’s professional judgment, absent any improper behaviour on the part of the doctor (of which there is no suggestion in this case). If the plaintiff considers that the examination or the resulting report does not accurately reflect the plaintiff’s circumstances, the report or the reporting doctor can be challenged during the trial.
- The plaintiff submits that his situation and the reasons why he will not agree to an examination without the conditions he seeks to impose are entirely different to those in Day. Counsel for the plaintiff relied on the reasons of Burns J in Bona v Jeffries for the proposition that the defendant and his insurer must satisfy the court that what is sought by way of examination is not unreasonable. There will be no “default” under s 25 (for the purpose of s 35) where, relevant to the facts of the particular case, a claimant has refused an unreasonable request to be examined.
- The plaintiff submits that, in determining whether a proposed examination is reasonable, the parties and the court must take into account the claimant’s personal circumstances. While a particular method of examination may be reasonable in some (even most) cases, it may be unreasonable to carry out an examination in the normal manner if the particular claimant’s history and current needs require special methods of examination. Having regard to the plaintiff’s history and the reasons for his claim in this case, it would be unreasonable to require him to undergo a psychiatric examination without allowing for him to have in place the special procedures he has requested.
Reasons for examination & appropriateness of the doctors
- In an affidavit of Anne Wilson (the solicitor having the carriage of this proceeding on behalf of the defendant) filed on 25 June 2021, at paragraph 2(f) she deposes that the defendant wishes to have the examination conducted in order to determine:
- (a)the cause or probable cause of the plaintiff’s behaviour since 1984;
- (b)whether or not the plaintiff was (presumably during the period 1984 to 2018) suffering from a psychiatric condition and whether or not he has suffered side effects from medication;
- (c)the plaintiff’s current medical condition and prospects of rehabilitation; and
- (d)the plaintiff’s cognitive, functional and vocational capacity.
- On a strict reading of paragraph 2, it appears that Ms Wilson is saying that the plaintiff claims that that is the defendant’s wish. I construe it as intended to set out what is in fact the defendant’s wish, in a paragraph that should have been separately numbered rather than subsidiary to paragraph 2 of the affidavit. I approach the issues on that basis.
- The purposes of the examination were stated differently in correspondence reiterating the defendant’s request. The plaintiff complains that the purposes set out in that correspondence are different to those now sworn to and therefore the defendant has not demonstrated clearly that the request satisfies the criteria in subs 25(1). In that letter (annexure 23 to Ms Wilson’s affidavit), the defendant’s solicitors said that the defendant wanted to have a psychiatrist of his choosing examine the plaintiff and address the following issues:
- (a)whether the plaintiff had a medical condition that required treatment (again, presumably during the period 1984 to 2018);
- (b)whether the medication prescribed by the defendant was appropriate;
- (c)if the plaintiff had been over-medicated, how that might have affected him; and
- (d)how any resulting sequelae will affect the plaintiff in the future.
- I do not consider that the differences in expression between these lists of issues results in them not falling within the subject matters listed in subs 25(1). The matters listed in the affidavit simply adopt those subject matters in the words of the subsection. The issues described in the correspondence provide a more focussed description, by reference to the particular claims and issues in this proceeding, of matters to which the examination and the opinion that will be sought will relate.
- The plaintiff also submits that the request itself does not comply with the criteria prescribed by s 25 for such a request, because:
- (a)the plaintiff currently suffers from neurological conditions and not psychiatric conditions and the psychiatrists proposed by the defendant do not have the qualifications or experience to opine on those conditions and on his prospects of rehabilitation, nor on the pharmacological effects of the medications that the defendant had prescribed the plaintiff;
- (b)none of the psychiatrists proposed has any expertise in psychiatric practice in the 1980s; and
- (c)the request does not provide details of the extent of the issues to be investigated and it would be oppressive and unreasonable for the psychiatrist to seek to obtain a detailed history from the plaintiff, covering his conditions for the entire period in which the defendant treated him.
- In my view, each of the psychiatrists selected by the defendant has qualifications and experience appropriate to assess the matters referred to in the defendant’s solicitor’s letter comprising annexure 23 to her affidavit and in the body of her affidavit. I would expect that none of them would express opinions about matters that are beyond his or her expertise. But clearly each of them has the expertise to examine the plaintiff and to express opinions, based on that examination and the psychiatrist’s expertise, about each of the matters referred to in the letter and the affidavit. Of course, they would do so from the perspective of a psychiatrist and not from that of a neurologist or a pharmacologist.
- The plaintiff contends that one reason the nominated psychiatrists are not appropriately qualified and experienced is that none of them was in practice as a psychiatrist in 1984: they qualified in medicine in 1980 (Dr Reddan), 1982 (Dr Chalk) and 1987 (Dr Steinberg) respectively and, in that order, each became a Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) in 1989, 1990 and 1996 respectively. However, Dr Reddan was a psychiatry registrar as early as 1984 and has practised in psychiatry continuously since then and each of Dr Chalk and Dr Steinberg has practised in psychiatry since 1990. I have little doubt that, in their practices and in their earlier studies, they each became familiar with psychiatric practices in the second half of the 1980s. But I would expect that, if any of them was unable to comment on practices in that era, she or he would say so in a report.
- I disagree with the plaintiff’s third contention about obtaining a full medical history from the plaintiff. I expect (and the evidence is) that it would be the usual practice of any competent psychiatrist, especially one asked to provide a report about matters stretching back across three decades, and it would be necessary for that purpose, to obtain a full history from the person being examined. No doubt the process of doing that, as well as the information provided by the examinee and from past medical records, would inform the practitioner’s opinions about the patient’s past and present conditions and treatment from the perspective of the examining psychiatrist.
- For these reasons, I do not agree with the plaintiff’s objections on the basis that the defendant has not demonstrated the matters in subs 25(1).
Whether examination unreasonable
- The conditions that the plaintiff has sought to impose on any examination have varied from time to time. They have included each of the following:
- (a)he be permitted to attend the examination with a support person, who can be present throughout the examination;
- (b)he be permitted to record the examination by a voice recording device;
- (c)no photograph of him be taken;
- (d)the examination last no longer than 1½ hours;
- (e)there be no invasive tests of him;
- (f)the defendant not provide to his insurer a copy of any medical information provided to the examining doctor, including any report provided by the doctor, although a representative of the insurer may attend at the defendant’s solicitors’ office and view a hard copy of any such information and report; and
- (g)if the examining doctor discovers an “unrecognised condition”, that doctor inform the plaintiff directly of that condition, the diagnostic tool used to diagnose the condition, the diagnostic criteria that constitute the condition and the clinical data and evidence (and their source) relied on to attribute the condition.
- I understand, from the plaintiff’s counsel’s submissions on this application, that the conditions he now seeks to impose are limited to the first five.
- The plaintiff submits that each of those conditions is reasonable having regard to the plaintiff’s claimed experience under the defendant’s treatment and therefore it would be unreasonable to conduct an examination of him without the examiner agreeing to comply with those conditions. Therefore, he submits, as the members of the panel proposed by the defendant have refused to comply with the conditions, under subs 25(3) he is not obliged to undergo such an examination.
- Dr Chalk has told the defendant’s solicitor that he will not conduct any invasive tests without the patient’s consent. I expect the other psychiatrists chosen by the defendant would take the same view, so that condition is not an issue.
- As to the first three conditions, the plaintiff’s evidence is that, as a result of his experiences with the defendant, he has an entrenched distrust of the medical profession that takes time for him to overcome with any new practitioner whom he sees. He has not attended an initial consultation with any medical practitioner without a support person present since 2018. He has informed his solicitor that he is much more likely to be less open in his responses to questions if he does not have a support person present and he would similarly be concerned about being misunderstood or misinterpreted if he were not able to record the examination, whereas he would feel comfortable being open and frank if the conversation was being recorded. These concerns stem from his lack of trust and his experiences and conflicts with the defendant.
- I might add that this distrust appears to have been exacerbated by a paragraph of the defendant’s solicitor’s affidavit, in which she said that the defendant had instructed her that he is concerned that the plaintiff may pose a risk to himself or others if left untreated and that the defendant himself feels vulnerable because his private address is publicly available. There is no basis in the evidence for such a concern and the plaintiff’s evidence includes psychiatric reports that disagree strongly with that assertion. Also, with respect, it seems to be irrelevant to the issue now before the court. It is not surprising that it might have caused considerable distress to the plaintiff.
- The plaintiff’s evidence about the need for a support person and the length of the examination is supported by two reports from his general practitioner (Dr Golik). He says that, in order to minimise the negative effects on the plaintiff’s current medical conditions that the stress of such a consultation may cause him, he should have a support person present during the examination and he should not participate in meetings beyond an hour. Similarly, a psychiatrist (Dr Jon Jureidini) from whom the plaintiff has obtained a report for the purposes of his claim has also provided a report in relation to the requirement that the plaintiff submit to a further psychiatric assessment. Dr Jureidini agreed with Dr Golik’s opinions, saying to the effect that there was no reason for a psychiatrist examining the plaintiff not to allow him to take a break or to have a support person present during the examination.
- On the other hand, the defendant’s solicitor deposes that she has been informed by Dr Chalk that, in his long experience and in his opinion, the presence of a support person in an interview detracts from a full and frank discussion and examinees are less likely to be open in their responses. Also, it is important clinically to be in a position to direct the interview and the presence of a support person in the room can interfere with that process.
- The plaintiff also deposes that he does not understand why an examination would take over 1½ hours and particularly why it may be of unlimited duration but will be at least 2½ hours (which he has been told by the defendant’s solicitors). He says he has never experienced such a consultation. He has produced a leaflet from the RANZCP about first psychiatric consultations, in which it says such a consultation will usually last 1 to 1½ hours and the patient may have a family member or friend at the consultation.
- I note, however, that the leaflet also says that it may take a few appointments for the psychiatrist to make a full diagnosis and Dr Chalk considers it necessary to take a full history directly from a patient, which can take some time. Also, the situation here is different from the usual first consultation with a person’s psychiatrist, undertaken to provide medical diagnosis and treatment to the patient. This, of course, will be a forensic examination for forensic purposes. The leaflet is not relevant to such a case.
- It is not for this court, nor for the plaintiff, to gainsay the professional opinions of an expert psychiatrist about how an examination should be conducted, at least in considering the issues now before me. Although that psychiatrist may differ from others in those opinions, that does not make the examining psychiatrist’s opinions and practice necessarily unreasonable. If the psychiatrist considers it best, for clinical reasons, not to have a support person present during the examination, then it is for the psychiatrist to determine that and to conduct the interview in a manner that he considers to be appropriate. Dr Chalk’s opinion in this respect is apparently supported by the other psychiatrists on the panel. It cannot be said to be unreasonable in those circumstances, even though other psychiatrists may have other opinions.
- Having regard to the plaintiff’s particular past experiences, issues of trust and the practices of at least some psychiatrists to allow a support person to be present during an examination, as well as the purpose of the proposed examination (for a forensic report), another psychiatrist may not insist on a support person not being present during the examination, but that does not make it unreasonable for these psychiatrists to have a different view and method of examination. If that method results in the plaintiff not being forthright, that is likely to become apparent, either during or after the interview and it may well have an adverse effect on the case of one party or the other. But that would be a choice that the plaintiff makes and it is an attitude with which I am sure an experienced psychiatrist would be familiar.
- Therefore, I do not consider that an examination without the presence of a support person in the room would be unreasonable.
- Given the plaintiff’s current medical conditions disclosed by his general practitioner and the opinions expressed by Dr Golik and Dr Jureidini about the plaintiff’s physical inability to cope with a long meeting, I consider that it would be unreasonable to insist on the examination taking place for more than about two hours in one session, although a session could last longer with the plaintiff’s consent. It would be reasonable to allow a break of at least half an hour, or a longer period if the plaintiff feels that he needs it, after any session lasting about two hours. If that means that the examination must be undertaken over several sessions and on several different days, it would be reasonable to require the plaintiff to attend several sessions. If that were to become necessary, then the plaintiff would be obliged to attend more than one session in order to comply with his obligation under s 25.
- I turn now to the issue of recording the examination. Given that the examination is for a forensic purpose, meaning that what was in fact said and done during it may well be the subject of dispute, there is certainly a forensic advantage to both parties in having the session recorded. That is also supported by the plaintiff’s evidence that, without such a recording, it is likely that he would not be able to be as forthright as he otherwise would be. A recording would limit the possibility of any dispute about what was said during the examination even though, as Dr Chalk has noted to the defendant’s solicitor, a recording would not show non-verbal reactions of the plaintiff. However, I expect that it would be unusual for a psychiatrist to permit the recording of an examination.
- Even though it might be considered reasonable, for these reasons, to allow the session to be recorded, that does not mean that it is unreasonable for the psychiatrist to refuse to allow the session to be recorded. Both views may reasonably be held. The psychiatrists nominated by the defendant take the view that it is not appropriate for clinical reasons. Again, it is not for the court or the plaintiff to gainsay the psychiatrists’ professional opinions for the purposes of this application. While the plaintiff says that he would not be forthright if it were not recorded, that would be a choice the plaintiff makes: a choice that may affect the opinion given by the psychiatrist, possibly to the plaintiff’s own disadvantage. If the plaintiff, after seeing the report, disagrees with what is recorded in it about what he said, or considers that, if he had been forthright, it may have affected the opinion, then he can give appropriate instructions to his lawyers at trial and they can put the alternative propositions to the psychiatrist and seek an opinion based on that assumption and on facts that the plaintiff says are true and relevant to the psychiatrist’s opinion, or otherwise challenge the psychiatrist’s evidence.
- Dr Chalk has informed the defendant’s solicitor that his practice is to take a photograph of each person whom he examines in order to assist in recalling that person when he writes his report and to ensure that there is no later suggestion that the person he examined was not the relevant person. While I understand those reasons for his general practice, this is not a matter of clinical expertise and opinion. I consider that it would be unreasonable for him (or any other examining psychiatrist) to insist on taking a photograph over the objection of the examinee. If he were to prepare the report shortly after the examination, with the aid of his clinical notes he should be able to recall the person. There is no suggestion that, in this case, the plaintiff will not be the person who attends on the doctor.
- I have thus considered each of the conditions that the plaintiff now seeks to impose on an examination. I consider that it would be unreasonable to insist on taking a photograph of the plaintiff as part of or a precursor to the examination. It would also be unreasonable if an examination were to last longer than about two hours without a break, or without the plaintiff’s consent, before or during a session, to going for a longer period in one session. But I do not consider that the examination would be unreasonable because the psychiatrist refused to allow the plaintiff to record the examination or to allow a support person to be present in the room during the examination. Nor do I consider that it would be unreasonable for the examination to last for more than two hours over a number of sessions, each lasting no more than about that period or a longer period agreed by the plaintiff.
- Although I understand that the plaintiff no longer insists on the last two conditions that I have listed above, it is appropriate that I address each of them briefly.
- The proposition that a copy of the examining psychiatrist’s report not be provided to the defendant’s insurer is extraordinary. The insurer must be able to see it and to review it carefully, in order to consider its contents and to give instructions to the defendant’s solicitor about the proceeding, including any possible settlement. It would not be sufficient, in my view, for an officer of the insurer to be able simply to read the report in the defendant’s solicitors’ office. It would inevitably be necessary for the officer to report to the defendant and to others within the insurer, disclosing details from the report, in order to determine the defendant’s and the insurer’s attitude and to provide appropriate instructions to the defendant’s solicitors. Of course, any copy or extracts must be kept confidential by the defendant and the insurer and could only be used for the purposes of this proceeding, including settlement.
- In any event, any proposal to provide a copy of the report to the insurer would not make the examination itself unreasonable.
- As to the last condition, again it does not make the examination unreasonable for the examiner to decline to undertake to take these steps. The examiner owes no duty to the plaintiff. Her or his duty is to assist the court and he has immunity from liability for the contents of any report. The examiner is likely, in any event, to include in the report any relevant condition she or he diagnoses and the bases for that diagnosis. But it is not an obligation of a practitioner conducting a forensic examination necessarily to diagnose and inform the examinee of any medical conditions that the practitioner diagnoses, unless that condition and diagnosis are relevant to the matters in issue in the proceeding that the examiner has been asked to address.
- The result is that I consider that two of Dr Chalk’s requirements for an examination would be unreasonable. The first is if he were to insist that the plaintiff’s photograph be taken. The second is if any session of the examination were to last for more than about two hours without a break or the plaintiff’s consent to continuing. However, his refusal to agree to the other conditions that the plaintiff has sought to impose on an examination does not make the examination unreasonable.
- One might consider that the appropriate course, in the light of these conclusions, would be to dismiss the defendant’s application. However, that may result in considerable further expense and delay. It would not be in the interests of justice to adopt that approach.
- The more appropriate course is to adjourn the application to enable the defendant to ascertain if Dr Chalk (being the psychiatrist whom the plaintiff has selected from the panel) or the other two psychiatrists on the panel will agree to conduct the examination without taking a photograph of the plaintiff and on the basis that no session will last more than about two hours without the plaintiff’s consent. If Dr Chalk, or both the other two on the panel, will agree to those conditions, then the plaintiff will be obliged to comply with the defendant’s request. If only two psychiatrists on the panel will agree, then the practical result will be that the panel may be reduced to those two, pursuant to subs 25(4), unless the defendant can locate another appropriate psychiatrist who will agree to conduct an examination on those bases. The plaintiff will then have to select one of those psychiatrists to conduct the examination. If none of them agrees, then the plaintiff will not be obliged to attend an examination by any of them.
- I shall therefore adjourn the application until a suitable date and reserve the costs to await the outcome of the further enquiries and any consequent steps.
- Published Case Name:
Slaughter v Harvey
- Shortened Case Name:
Slaughter v Harvey
 QDC 156
Barlow QC DCJ
29 Jul 2021