Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019

Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019

Although the evidence did not establish that it was unreasonable per se for the plaintiff to attend a further examination in Sydney, and did not establish a real risk of re-traumatisation, the overriding purpose of the proposed examination by Dr Roldan was to determine whether the plaintiff was malingering and whether his history and symptoms should be believed. That was an impermissible purpose for an order under r 23.4 because it sought evidence going to the plaintiff's veracity generally rather than properly obtaining medical evidence about his condition. The plaintiff therefore should not be compelled to attend the examination.

Jurisdiction
Australia
Judgment Date
14 August 2024
Procedural Posture
Personal Injury Damages Claim; Interlocutory Civil Procedure Motion for Medical Examination / Determination of the Second Defendant's Notice of Motion Filed 11 June 2024 Seeking an Order Under R 23.4 Uniform Civil Procedure Rules 2005 (nsw)
Outcome
Second defendant's notice of motion dismissed with costs.
Legal Topics
['further Medical Examination' 'symptom Validity Testing' 'malingering' 'plaintiff Credibility' 'reasonableness of Request and Refusal' 'overriding Purpose Under R 23.4']
['civil Procedure' 'personal Injury' 'medical Examinations' 'evidence'] ['further Medical Examination' 'symptom Validity Testing' 'malingering' 'plaintiff Credibility' 'reasonableness of Request and Refusal' 'overriding Purpose Under R 23.4']

Case Brief

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Procedural Posture

Personal Injury Damages Claim; Interlocutory Civil Procedure Motion for Medical Examination / Determination of the Second Defendant's Notice of Motion Filed 11 June 2024 Seeking an Order Under R 23.4 Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ["Whether the second defendant's request that the plaintiff attend a further medical examination with a neuro-psychologist for symptom validity testing was reasonable under r 23.4 Uniform Civil Procedure Rules 2005 (NSW)." "Whether the plaintiff's refusal to attend the further examination was reasonable because of prior examinations, travel burden, and asserted risk of re-traumatisation." 'Whether the overriding purpose of the proposed examination was an impermissible attempt to test whether the plaintiff was malingering or to obtain evidence going to his veracity generally.']

Ratio Decidendi

Although the evidence did not establish that it was unreasonable per se for the plaintiff to attend a further examination in Sydney, and did not establish a real risk of re-traumatisation, the overriding purpose of the proposed examination by Dr Roldan was to determine whether the plaintiff was malingering and whether his history and symptoms should be believed. That was an impermissible purpose for an order under r 23.4 because it sought evidence going to the plaintiff's veracity generally rather than properly obtaining medical evidence about his condition. The plaintiff therefore should not be compelled to attend the examination.

Court Disposition

Second defendant's notice of motion dismissed with costs.

Orders

  • ["Dismiss the second defendant's notice of motion filed 11 June 2024." "Second defendant is to pay the plaintiff's costs of this motion."]