Civil Procedure – Case Law Update – Medical Assessments

In the matter of Graham v Peabody Energy Australia Pty Ltd [2023] NSWSC 1087, the plaintiff, Mr Sidney Allan Graham, commenced court proceedings in the New South Wales Supreme Court against the defendant, Peabody Energy Australia Pty Ltd, seeking damages for personal injuries and losses as a result of a psychiatric injury suffered by him whilst he was working at a coal mine.  

The plaintiff alleges that during the period in which he worked for the defendant at the coal mine, he was subject to bullying, harassment, belittling and intimidation. The plaintiff alleges that the injury, loss and damage suffered by him was caused by the negligence of the defendant. The plaintiff also alleges that the defendant is vicariously liable for the persons alleged to have engaged in the conduct. 

On 30 March 2023, the defendant sought an order that the plaintiff attend a medical appointment arranged by the defendant with Dr Jane Lonie, who is a neuropsychologist. This application followed the assessment of the plaintiff by a psychologist, Dr Glen Smith, who recommended that the plaintiff be referred for neuropsychological assessment so that they could offer an opinion on the nature and extent of the plaintiff’s symptoms, the possible diagnosis and other issues (such as causation). 

The plaintiff declined to attend the medical examination and resisted the orders sought in the application. The plaintiff opposed the examination on three bases:  

1. Having regard to the medical evidence on which the plaintiff relies, such further examination is not reasonably necessary;  
2. The further examination of the plaintiff will be injurious to his health, having regard to the opinions of his treating psychiatrist, Dr Pai, and the medico-legal expert, Dr Smith, as well as the observations of his wife, Ms Graham; and  
3. The real reason why such further examination is required is to determine whether the plaintiff might be malingering. The plaintiff says that examination for that purpose is not permissible.