Jafari v Khoury & McDonalds Australia Ltd [2019] NSWDC 394

Jafari v Khoury & McDonalds Australia Ltd [2019] NSWDC 394

The first defendant did not justify an order compelling psychometric testing. The evidence showed that the proposal was lawyer-driven, not raised as necessary by any medical practitioner, and was plainly aimed at detecting malingering and undermining the plaintiff's credibility, reliability or veracity on factual matters rather than obtaining necessary evidence about her medical condition. The proposed testing was also oppressive and productive of unnecessary expense and delay. Accordingly, the orders under UCPR r 23.4 were refused and the motion was dismissed with costs.

Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Civil Proceedings Claiming Damages for Alleged Negligence in Respect of Alleged Physical and Psychological Injuries Arising From a Motor Vehicle Striking a Pedestrian in a Car Park / Interlocutory Notice of Motion by the First Defendant Seeking Orders Under UCPR R 23.4 Compelling the Plaintiff to Attend Psychometric Testing, With Related Case Management Directions Concerning Expert Evidence
Outcome
The first defendant's amended notice of motion was dismissed with costs, and a case management direction was made for Dr Vickery to prepare a single consolidated report.
Legal Topics
['medical Examination Under UCPR R 23.4' 'psychometric Testing' 'credibility and Malingering' 'expert Reports' 'case Management Directions Under UCPR R 31.20(j)']
['practice and Procedure' 'civil Procedure' 'personal Injury' 'motor Accidents' 'expert Evidence'] ['medical Examination Under UCPR R 23.4' 'psychometric Testing' 'credibility and Malingering' 'expert Reports' 'case Management Directions Under UCPR R 31.20(j)']

Case Brief

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Procedural Posture

Civil Proceedings Claiming Damages for Alleged Negligence in Respect of Alleged Physical and Psychological Injuries Arising From a Motor Vehicle Striking a Pedestrian in a Car Park / Interlocutory Notice of Motion by the First Defendant Seeking Orders Under UCPR R 23.4 Compelling the Plaintiff to Attend Psychometric Testing, With Related Case Management Directions Concerning Expert Evidence

Legal Issues

  1. 1 ['Whether the Court should order the plaintiff to submit to psychometric testing by a clinical psychologist under UCPR r 23.4.' "Whether the proposed psychometric testing was sought for a permissible medical assessment purpose or for the impermissible purpose of attacking the plaintiff's credit, reliability or veracity." 'Whether the proposed six-hour testing process was oppressive and contrary to the dictates of justice.' "Whether the first defendant's psychiatric expert should be directed to prepare a single consolidated report reflecting his evidence in chief."]

Ratio Decidendi

The first defendant did not justify an order compelling psychometric testing. The evidence showed that the proposal was lawyer-driven, not raised as necessary by any medical practitioner, and was plainly aimed at detecting malingering and undermining the plaintiff's credibility, reliability or veracity on factual matters rather than obtaining necessary evidence about her medical condition. The proposed testing was also oppressive and productive of unnecessary expense and delay. Accordingly, the orders under UCPR r 23.4 were refused and the motion was dismissed with costs.

Court Disposition

The first defendant's amended notice of motion was dismissed with costs, and a case management direction was made for Dr Vickery to prepare a single consolidated report.

Orders

  • ["The first defendant's motion filed on 27 May 2019, as amended on 22 July 2019, is dismissed." "The first defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered." 'The exhibits may be returned.' 'Liberty to apply on 7 days notice if further or other orders...