Case Note: Hellessey v MetLife Insurance Limited

Published on 12 July 2019 at 12:12pm

Hellessey v MetLife Insurance Limited [2017] NSWSC 1284 (25 September 2017)

I INTRODUCTION

The expert medical evidence in Hellessey was fundamental to the eventual outcome of the case. The primary issue was whether the plaintiff met the definition for total and permanent disablement under the insurance policy such that she was incapacitated to the extent of being rendered unlikely ever to engage in any gainful employment for which she was reasonably qualified.[1] Despite some consideration of lay witness evidence, the majority of the lengthy judgement outlined, analysed and critiqued the expert evidence because the outcome of the case ultimately hinged on medical expert opinions. As Robb J noted in his judgement, the court was ‘particularly reliant upon expert medical testimony and lay evidence of the outward manifestations of the [plaintiff’s] injury’ because there were ‘no effective objective measures of the true effect and seriousness of the psychological injury’.[2] The expert evidence was the only means by which the court could determine the true nature and extent of the plaintiff’s incapacitation.

II EXPERTS

A total of four medical experts provided evidence at the hearing and the reports of all four experts were also tendered to the court. The plaintiff called the following experts:

1. The plaintiff’s treating psychiatrist, Dr Anthony Durell

2. Forensic psychiatrist, Dr Bruce Westmore; and

3. Clinical neuropsychologist, Mr Peter Rawling

The defendant did not call expert psychiatric evidence at the hearing and instead relied solely on the evidence of psychologist Professor Richard Mattick. The defendant referred the plaintiff to a consultant psychiatrist, Dr Barbara Hodgson, for assessment and report on 20 September 2012 and 30 May 2013 but they did not call her to give expert evidence at the hearing and ‘No explanation was given as to why Dr Hodgson was not called’.[3] It is possible that selection bias was the reason for the defendant failing to call Dr Hodgson to provide expert evidence, as her assessment of the plaintiff did not support the defendant’s case.[4]

Justice Robb relied exclusively on the expert medical evidence at the hearing to reach his conclusion that the plaintiff was entitled to TPD. He placed great emphasis on the evidence of Dr Durell, especially because he was the plaintiff’s treating psychiatrist for over six years and the defendant failed to give sufficient weight to the doctor’s opinions or properly contest them by countervailing expert psychiatric evidence.[5] As Robb J explained, ‘Dr Durrell had the benefit of examining [the plaintiff] or speaking to her over the telephone on a great many occasions over the whole of the period between the assessment date and the hearing’ and this ‘experience would naturally assist him in avoiding the errors that could occur from a single examination of a person claiming psychological illness’.[6]

III EXAMINATION IN CHIEF AND CROSS-EXAMINATION

All four medical experts provided oral evidence in chief and were subject to cross-examination.

A DR DURELL

Dr Durell confirmed in his oral evidence in chief that the plaintiff had been his patient since 27 September 2010 and that he continued to consult with her over the telephone or by email. In examination in chief, he was asked when he formed the opinion that the plaintiff was unlikely ever to return to work and replied that ‘usually you get a feel for that after four to six sessions’.[7] This question was effective in both demonstrating Dr Durell’s long-standing relationship with the plaintiff and indirectly undermining Professor Mattick’s report, as he only examined the plaintiff once. The line of questioning in the examination in chief also allowed Dr Durell to emphasise the benefits of his longitudinal assessment of the patient, as he noted that he was able ‘to see the patient through all the machinations of life and events and through medical trials and dosage adjustments and the psychologists [and ultimately] to witness that longitudinally and sharpen [his] prognosis accordingly’.[8] He ended the examination in chief on a strong point, by bringing the court back to the primary issue and affirming his opinion that the plaintiff was chronically incapacitated and unlikely to ever return to any gainful employment.[9]

The cross-examination of Dr Durell was largely unsuccessful, as the Court did ‘not consider MetLife to have seriously challenged Dr Durell in respect of the opinions he expressed as Ms Hellessey’s treating psychiatrist’.[10] The tactics that were employed by the defendant in cross-examination appear to have baffled the Court. For example, Dr Durell was asked whether he used any other names and responded that he used a different name in meditation circles and, in response to further questioning by the defendant’s counsel, he stated his nicknames.[11] The Court halted this line of questioning and the issue was not taken further.[12] The defendant may have been attempting to undermine Dr Durell’s credibility, but this aspect of cross-examination appears to have been poorly executed as the Court noted it was raised ‘somewhat bizarrely’.[13]

Counsel for the defendant then suggested that Dr Durell should have reported the plaintiff’s horse-related activities to the defendant but this question was met with the reply that he was ‘actually very annoyed that they ventured without [the plaintiff’s] consent into a private Facebook account’.[14] Counsel then asked him why he was annoyed and he replied that ‘this was one of [the plaintiff’s] sole outlets to interact with the world’.[15] Dr Durell confirmed that he encouraged the plaintiff to participate in horse-related activities and that her use of Facebook was ‘therapeutic’ but ‘she is still quite impaired [and] sharing, ventilating over Facebook is now gone for no good reason’.[16] This line of questioning had the unfortunate effect of allowing Dr Durell to strengthen the plaintiff’s case that she is chronically incapacitated and her condition is being worsened by the defendant’s actions.

The defendant’s counsel then attempted to introduce a new line of questioning to suggest that the plaintiff could make a living out of a horse-related activity.[17] Dr Durell sought clarification of whether counsel for the defendant meant she could seek employment in the safety of her property.[18] Counsel raised with the Court that Dr Durell may have been acting as an advocate with this question but the Court held that it was reasonable for Dr Durell to seek clarification before responding to the general question that was posed to him.[19] The court’s rejection of the suggestion that Dr Durell was acting as an advocate appears to have discouraged any further questioning on this issue.

When asked about the evidence of Mr Rawling or Professor Mattick that the plaintiff may have exaggerated her symptoms, Dr Durell emphasised that they were not treating psychiatrists but accepted that there was a suggestion of exaggeration.[20] He asked whether he was required to clarify whether his opinion had changed in light of this evidence but counsel for the defendant did not pursue the issue and stated that he had completed his cross-examination as far as was possible without access to Dr Durell’s clinical notes.

Dr Durell was asked at the outset of the cross-examination why he did not provide the defendant with access to his clinical notes, pursuant to the subpoena.[21] Dr Durell replied that he assumed he would be given a number of weeks’ notice of the date of return of the subpoena and if he had known he only had seven days to produce the notes, he would have attended to it with due haste.[22] Dr Durell’s answer seemed to imply that the defendant was either insufficiently organised or was acting strategically in providing him with short notice. Dr Durell said he would take steps to ensure the defendant received his notes and the cross-examination concluded on the basis that the defendant might give Dr Durell notice that he was required to attend court for further cross-examination.[23] However, Justice Robb noted in his judgement that this ‘is the last the court heard of the matter’ and it can be presumed that Dr Durell complied with his offer to provide the defendant with his notes but the defendant did not take the matter any further.[24] The cross-examination appeared to strengthen the plaintiff’s case due to the astute manner in which Dr Durell answered the defendant’s questions and the failure of the defendant to pursue questioning on the reports of Mr Rawling and Professor Mattick.[25]

B MR RAWLING

Mr Rawling prepared two reports for the plaintiff on 8 August and 21 November 2016. His methodology included conducting psychometric testing on the plaintiff, which led him to conclude that the plaintiff ‘has a severe and chronic psychological disability [which] would, in my opinion, lead to her being classified as having a total and permanent disablement’.[26]

In his oral examination in chief, Mr Rawling was given the opportunity to confirm his conclusions relating to the results of the plaintiff’s psychometric testing and to explain that her score of 81 on the Negative Impression Management (‘NIM’) test was ‘elevated’ compared to others with psychological disorders, ‘but not significantly so’ and ‘like a lot of people with a psychological disorder, they tend to see their symptoms in extreme forms’.[27] In cross-examination, Mr Rawling maintained that the plaintiff’s NIM test result was not so high as to be inaccurate and conceded that the Validity Scales performed by Professor Mattick were significantly higher than the results obtained by Mr Rawling such that there must have been ‘an element of exaggeration there somewhere’.[28] This line of questioning was an effective means of raising a reasonable doubt as to the veracity of Mr Rawling’s results and consequently, the accuracy of his opinions.

Counsel for the defendant also raised the issue of the superiority of psychiatric evidence over psychological evidence and asked whether it would ‘be your professional opinion that…the psychological evidence…is a superior basis to make judgments?’ Mr Rawling replied that ‘I wouldn’t go that far. I would say it adds significantly to the assessment process, but it is a one only consultation. It’s a one only sampling of behaviour’.[29] The question was ultimately a ‘catch-22’ because if Mr Rawling were to reply in the negative, he would undermine the utility of his results, but if he were to reply in the affirmative, he would undermine Dr Durell’s evidence. Mr Rawling’s response may have suggested the limited utility of his evidence but it also undermined the defendant’s case by highlighting the fact that both psychologists had a ‘one only consultation’. This statement was especially powerful given Professor Mattick was the only expert called by the defendant.

Mr Rawling was then asked whether the plaintiff’s Facebook activities reflected a normal social interaction and he replied that ‘I suppose that’s true, but there is no reason why she couldn’t do that…she is not going to be totally socially incapacitated every single moment of her life’.[30] He suggested that the Facebook posts might not be a useful measure of the plaintiff’s psychological state.[31] Counsel for the defendant also posed the following question, ‘Would you expect [the plaintiff’s] condition to get better once this claim is resolved one way or another?’[32] Mr Rawling responded that he was unsure how counsel could make that claim when the plaintiff’s condition has ‘been getting slightly worse over the past four or five years’ and ‘she’s had a lot of treatment from psychiatrists and psychologists’.[33] He acknowledged that Professor Mattick held the view that the plaintiff’s condition would improve but noted that ‘I don’t know how he arrived at that opinion’.[34] This line of questioning served to further weaken the defendant’s case because it highlighted their lack of scientific data. This was further confirmed in re-examination, where Mr Rawling emphasised that there was no objective scientific evidence to support the conclusion that the plaintiff deliberately exaggerated her condition.[35] Mr Rawling also further illuminated the flaws in the defendant’s case, by noting that ‘it just seemed a big leap to me to take one test result at one time and discount the evidence of four years or five years of observations by her doctors and psychologists, her family, friends’.[36]

C DR WESTMORE

Dr Bruce Westmore provided reports on 9 December 2015, 20 June 2016 and 30 November 2016. He outlined in his first report that the plaintiff had a poor prognosis with ‘very significant functional impairment associated with her chronic psychiatric conditions’ and ‘is, on the balance of probability, effectively unemployable and that situation will not alter in the foreseeable future if it ever does at all’.[37]

He confirmed this position in oral examination in chief and rebutted Professor Mattick’s report by arguing that in his clinical experience, it is not uncommon for a plaintiff in an adversarial process to exaggerate some of their symptoms.[38]Dr Westmore was also given the opportunity to explain that ‘In relation to the Facebook issues, I suspect and I don’t know of any studies, but I suspect postings on Facebook are very unreliable’.[39] The value of this statement is doubtful, considering that Dr Westmore explicitly stated that he did not have any scientific data to support his assertions but the Court appeared to be persuaded by the notion that Facebook posts are not reliable indicators of one’s mental state.[40]

Similar to the cross-examination of Dr Durell, the defendant asked Dr Westmore whether it would be beneficial for the plaintiff to obtain employment in a horse-related job.[41] He accepted that this may be beneficial but confirmed his earlier position that he did not believe the plaintiff could obtain employment.[42] The defendant then attempted to undermine the plaintiff’s credibility, by asking Dr Westmore whether he believed the plaintiff’s account of her history but Dr Westmore vaguely responded that ‘we have no experience in truth’ and the matter was not pressed.[43] The defendant then raised questions about inconsistencies with the history that the plaintiff gave to Dr Westmore and the evidence, Dr Westmore replied that he did not believe there were any inconsistencies and restated his opinion that ‘I don’t think there’s any prospect of her getting to work at all’.[44] The indirect answers of Dr Westmore meant that the defendant’s questions failed to achieve their desired purpose of undermining the credibility of the plaintiff and the expert.

Professor Mattick’s report was raised with Dr Westmore and he was asked to respond to suggestions of the plaintiff’s exaggeration of her symptoms.[45] He replied that this was not within his expertise but ‘If one looks at…the number of independent assessments she’s had from various people, there is a really remarkable consistency in the findings about her’.[46] This statement weakened the defendant’s case by indirectly contrasting the range of assessments conducted by the plaintiff with the limited ‘one off’ assessment relied on by the defendant.

D PROFESSOR MATTICK

Professor Mattick provided reports to the defendant on 13 July 2016 and 4 November 2016, with the latter report only outlining the raw scores on psychometric testing conducted by Professor Mattick with the plaintiff.[47] His methodology involved the use of psychometric testing to determine the plaintiff’s psychological state. His report outlined that the plaintiff’s scores on the Beck Anxiety Inventory and the Beck Depression Inventory caused concern ‘that she may be exaggerating or overstating her emotional disturbance on questionnaires’ and prompted him to require the plaintiff to perform the ‘Minnesota Multiphasic Personality Inventory’, which he stated ‘has a number of specific scales to assess for symptom validity, overstatement of problems and indeed understatement of problems’.[48] He concluded at paragraph 12.11.10 of his report that, while the plaintiff might have ‘some emotional problems’, the ‘results taken together indicate that on four of the five symptom validity subscales there is clear evidence that [the plaintiff] is exaggerating her emotional disturbance’.[49] He outlined these tests and their results in his oral examination in chief.[50]

Following his examination in chief, Justice Robb posed a series of questions to Professor Mattick, causing him to concede that some patients may suffer from chronic PTSD but he added the caveat that ‘the truly disabling disorders which stop people from functioning and working really are those disorders like the psychoses, particularly schizophrenia, which is terribly impairing, and severe – really severe – melancholic depression or bipolar disorders’ experienced by victims of rape or torture.[51] He added that war veterans suffering from PTSD were still ‘able to function and – and do things day to day’.[52]

In cross-examination, Professor Mattick was asked whether he agreed with the argument that the claim for TPD was such an extended process that it might cause defensiveness on the part of the plaintiff to demonstrate the severity of their condition.[53] The court notes that he agreed with this proposition ‘in a guarded way’, as he stated that he had ‘no problem that [the plaintiff] does suffer emotional disturbance [but] the issue, really, before this process is whether she can’t work’.[54] The cross-examination questioning was also effective in prompting him to concede that he had no scientific data to support the view he espoused in the examination in chief that the plaintiff’s symptoms would likely improve once the proceedings concluded.[55] He argued that psychologists may be better equipped to treat PTSD than psychiatrists but the cross-examination was again effective in highlighting that he did not have any scientific data to reflect his arguments.[56]

Professor Mattick’s view that PTSD is insufficient to constitute TPD, unless it amounts to psychosis, was ultimately fatal to the defendant’s case because it was not raised in the defendant’s procedural fairness letters to the plaintiff, nor was it raised in its case at the hearing.[57] Justice Robb expressed particular concern with Professor Mattick’s view because it was ‘at odds’ with not only the other expert witnesses in this case but also ‘all other expert witnesses that have given evidence in other cases that I have heard that have raised this issue’.[58] Ultimately, Professor Mattick’s examination served to weaken the defendant’s case by highlighting the unconventional views and ‘relatively isolated evidence’ of the defendant’s only expert.[59] Professor Mattick also did not provide any opinion on the Facebook posts, which left the court with little choice but to conclude that the posts were not indicative of the plaintiff’s true psychological state.[60]

IV CONCLUSION

Counsel for the plaintiff secured their position by selecting three expert witnesses to provide medical evidence of the plaintiff’s psychological state over a six-year period. The defendant’s case suffered due to their reliance on a single expert, who had only examined the plaintiff once. Their case would have greatly benefited from the presentation of countervailing psychiatric evidence. Even absent such evidence, the defendant should have engaged in a more tactical line of questioning in cross-examination that would have prevented the plaintiff’s experts from further undermining the evidence of the defendant’s sole expert. Ultimately, the case serves to highlight the importance of engaging a variety of experts to support your position. There are significant costs and delay associated with engaging multiple experts but, in a case like the present, the number of experts may just mean the difference between winning and losing the case for your client.

[1] Hellessey v MetLife Insurance Limited [2017] NSWSC 1284 (25 September 2017) (‘Hellessey’) [11]. [2] Ibid [87]. [3] Ibid [236]. [4] Ibid [231]-[234]. [5] Ibid [175], [206]. [6] Ibid [1,028]. [7] Ibid [662]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 273.10 (A Durell). [8] Hellessey [663]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 274.1 (A Durell). [9] Hellessey [664]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 274.11 (A Durell). [10] Hellessey [675]. [11] Ibid [667]. [12] Ibid. [13] Ibid. [14] Hellessey [669]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 282.21 (A Durell). [15] Hellessey [669]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 282.25 (A Durell). [16] Hellessey 670; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 283.17 (A Durell). [17] Hellessey [671]. [18] Ibid. [19] Ibid. [20] Ibid [672]. [21] Ibid [666]. [22] Ibid; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 278.15, 279.36 (A Durell). [23] Hellessey [673]. [24] Ibid [674]. [25] Ibid [675]. [26] Ibid [699], [703]. [27] Ibid [704]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 144.35 (A Durell). [28] Hellessey [706]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 157.27, 158.5 (A Durell). [29] Hellessey [705]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 153.44 (A Durell). [30] Hellessey [707]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 159.30 (A Durell). [31] Hellessey [708]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 160.41 (A Durell). [32] Hellessey [709]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 162.5 (A Durell). [33] Ibid. [34] Ibid. [35] Hellessey [710]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 163.33 (A Durell). [36] Hellessey [711]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 165.18 (A Durell). [37] Hellessey [712]-[713], [721]. [38] Ibid [721], [722]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 196.24 (B Westmore). [39] Hellessey [723]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 196.39 (B Westmore). [40] Hellessey [724]. [41] Ibid [726]. [42] Ibid. [43] Ibid [727]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 199.45 (B Westmore). [44] Hellessey [727]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 201.23, 203.33 (B Westmore). [45] Hellessey [728]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 204.33 (B Westmore). [46] Ibid. [47] Hellessey [676]. [48] Ibid [679]. [49] Ibid. [50] Ibid [682]. [51] Ibid [684], [690]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 245.27, 245.44, 265.36-266.22 (R Mattick). [52] Hellessey [684]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 245.27, 245.44 (R Mattick). [53] Hellessey [685]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 255.39, 256.16 (R Mattick). [54] Ibid. [55] Hellessey [687]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 260.2 (R Mattick). [56] Hellessey [688]; Transcript of Proceedings, Hellessey v MetLife Insurance (Supreme Court of New South Wales, Robb J) 260.43, 261.28 (R Mattick). [57] Hellessey [694]. [58] Ibid [693]. [59] Ibid [993]. [60] Ibid [1,001].