This was a decision of Harrison CJ made on 3 June 2025 concerning, among other things, that the Defendant's application pursuant to UCPR 23.4 for an order that the Plaintiff be required to undertake psychometric testing arranged by the Defendant, which was refused by the Court.
Background:
The Plaintiff (Mr Maea) sustained injuries on 22 January 2019 while employed by Bleasdale National Personnel Pty Ltd. He fell through an unguarded manhole.
While he did not sue his employer, Mr Maea sued Acciona Infrastructure Australia Pty Ltd, the project's design and construction contractor, alleging negligence.
Procedural History:
During the litigation, by notice of motion filed on 12 May 2025, the Defendant sought orders pursuant to UCPR 23.4 that Mr Maea be required to undertake psychometric testing by Dr John McMahon.
The inspiration for the application was found in the report of Dr Leonard Lee, psychiatrist, who examined Mr Maea on the Defendant's behalf 1.
UCPR 23.4 states:
23.4 Order for examination
(1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.
(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.
The Defendant submitted further that psychometric testing is necessary to assist the Court to evaluate Dr Lee's diagnosis of malingering, particularly as there was no indication of a potential diagnosis of malingering until it received Dr Lee's report on 28 April 2025 and his revised report on 1 May 2025 2.
Decision:
The rule did not authorise the making of an Order that Mr Maea submit to psychometric testing for the purposes nominated by the Defendant as:
- Dr Lee carried out a limited form of psychometric testing and expressed the opinion that Mr Maea was malingering.
- Dr Lee did not recommend further testing.
- The application was a non-medical forensic decision by the Defendant to obtain additional support for Dr Lee's opinion that Mr Maea was exaggerating. The Court stated:
-
"The application is a thinly disguised attempt to impugn Mr Maea's credit, rather than a desire to secure an expert medical opinion about his alleged injuries and disabilities.
- The Defendant's application was "not a proper purpose for a medical examination"3.
Conclusion:
The court highlighted the inappropriateness of using medical examinations to impugn a Plaintiff's credibility without proper grounds and serves as a reminder to practitioners to ensure proposed examinations and diagnostic assessments solely relate to the claimed injuries or disabilities.
Footnotes:
1 Maea v Acciona Infrastructure Australia Pty Ltd [2025] NSWSC 567 [13].
2 Ibid [15].
3 Ibid [17].
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