News and Insights

Kelly v Trustees of the Christian Bros & Anor [2021] VSC 110

Facts

By Supreme Court proceedings, the plaintiff sought damages for alleged physical and sexual abuse, when he was a boy, by two Christian Brothers and a Catholic Priest from 1971 to 1974, resulting in PTSD with anxiety and depression.

In May 2020 his lawyers provided discovered documents, including a report from Dr Hacker dated August 2017.

The defendants exchanged reports from Dr Jager. The plaintiff, a forensic accountant’s report and a supplementary Hacker report. The hearing was listed for 13 April 2021.

On 2 December 2020 the defendants’ lawyers advised of an assessment on 17 March 2021 with Dr Apler. The plaintiff refused to attend.

On 27 January 2021 they advised of an assessment on 2 February 2021 with Dr Saboisky. The plaintiff refused to attend.

On 24 February 2021 a summons and supporting affidavit, seeking to compel the plaintiff to attend, was served. On 26 February 2021 the plaintiff’s lawyers filed an affidavit and report from the plaintiff’s psychotherapist Ms de Brugiere.

Submissions

Defendants

A defendant is entitled to defend the claim as it sees fit and rely on experts of its choosing.

The economic loss claim, over $2 million, is significant and capacity is disputed.

Dr Hacker’s supplementary report was a full reassessment, with detailed opinions. The plaintiff’s refusal to submit to an examination is unreasonable.

There is limited evidence to justify his refusal. He has not sworn an affidavit.

Plaintiff

Has attended an examination with Dr Jager, who provided 2 reports. Both Drs Jager and Hacker diagnosed PTSD and say the psychopathology was entirely due to the alleged abuse.

Ms de Brugiere states that requiring the plaintiff to attend another assessment will cause a regression in his fragile mental state.

Neither the forensic accountant’s, nor Dr Hacker’s reports were put to Dr Jager for comment.

The defendants seek a further expert report because Dr Jager’s views are unlikely to change. The defendants seek a fresh pair of eyes.

Ruling

Rule 33.04(2):

Where a plaintiff refuses… without reasonable cause, to comply with the request… the Court may, if the request was on reasonable terms, stay the proceeding.

Where both the request and refusal are reasonable, the court is required to balance competing interests. Three principles apply:

1. The decision whether or not to grant a stay is discretionary;
2. Balance the plaintiff’s right to personal liberty against the defendant’s right to adequately defend the litigation; and
3. The court asks whether the request and refusal are reasonable given the information or advice provided by the advisers.

The application was refused.

There was no explanation for not providing the forensic accountant’s and Dr Hacker’s reports to Dr Jager for comment.

Her Honour accepted Ms de Brugiere that an examination would cause the plaintiff further stress and harm.

Any prejudice to the defendants in going to trial without a ‘new’ medical opinion did not justify a stay.

 Considerations

Could also apply to workplace injury, motor vehicle, or medical malpractice cases.

Ask your expert carefully considered and focussed questions and be prepared to seek supplementary reports.