Graham v Peabody Energy Australia Pty Ltd [2023] NSWSC 1087

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.
The issues arising on this type of application have been considered in a number of other cases, such as Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142; Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425; JKZ v The Scots College [2018] NSWSC 1526; and Plaintiff [name withheld] v Stapleton [2017] NSWSC 914.  
At [36] and [37], the Court, through Cavanagh J, provided:
I am required to balance all of the factors to which I have referred, in accordance with the principles to which I have also referred. I am particularly influenced by the significant medical evidence put forward by the plaintiff of the likely consequences of such a further examination. I am also influenced by the doubts expressed by various practitioners about the need and benefit of such a medical examination. Of course, the fact that the case is coming on for hearing in November, and depending on the result of the examination, the hearing might be adjourned, is of some importance. However, I give that limited weight because, in a sense, the plaintiff’s continued resistance to attending the medical examination is the cause of that. 
Balancing all of these factors, I am not satisfied that the order should be made and, in the circumstances, the motion is dismissed.

Ultimately, on 23 August 2023, the New South Wales Supreme Court dismissed the defendant’s application and ordered that the defendant pay the plaintiff’s costs of the motion.

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