How Courts Use Psychometric Testing In Litigation

When individuals have sustained psychological injuries and make compensation claims for the same, it is becoming increasingly common for defendants to organise examinations which involve an element of psychometric testing.

Psychometric testing is used in litigation, particularly by defendants in personal injury claims, to ‘test’ or call into question, a claimant’s credibility.

Psychometric tests have built-in validity scales; where the subjective complaints of a claimant suffering from a psychological injury can be compared with the objective or expected answer of specific psychometric tests, to determine whether the claimant is exaggerating, under-reporting and/or otherwise answering questions in a way that is atypical for individuals with that psychological illness.

How this can impact your case

In personal injury matters, Courts rely heavily on medical evidence to determine matters including; whether an injury exists, how an injury was caused, or how severe an injury is amongst others.

Evidence that a claimant lacks credibility, can be a factor which influences the way in which a Court views the claimant’s evidence.

In NSW, it is established that evidence of a claimant’s unreliability will affect the weight that is given to that claimant’s evidence, as opposed to affecting the admissibility of the claimant’s evidence more generally.

Can you be compelled to undergo psychometric testing

A defendant may apply to compel a claimant to undergo psychometric testing. In which case, the Court must decide whether the request is reasonable and justified.

In accordance with rule 23.4 of the Uniform Civil Procedure Rules, a Court may make orders for medical examinations.

In Chopra v State of NSW (South Western Sydney Local Health District [2023] NSWCA 142), the NSW Court of Appeal found that when determining whether a claimant needed to attend a medical assessment, the Court had to weigh up the reasonableness of the assessment with the claimant’s refusal to attend.

Ultimately, the Court found that the insurer’s desire to have the claimant undergo psychometric testing did not outweigh the claimant’s objections to attend the appointment in circumstances where:

1. There was consistent medical evidence that psychometric testing would be harmful to the claimant’s psychological condition; and
2. There was medical evidence from the claimant’s treating psychiatrist and an independent psychiatrist which questioned the efficacy of the psychometric testing.

Similarly, in the case of Graham v Peabody Energy Australia Pty Limited [2023] NSWSC 1087, the Court refused to make an order that the claimant undergo an examination with a neuropsychologist, having regard to the claimant’s medical evidence of the likely consequences of such a further examination having a deleterious effect on her condition, as well as doubts expressed by medical practitioners about the need and benefit of such a further examination.

Signs to look out for

When a defendant notifies you of an examination, it may not always be clear whether psychometric testing is going to be involved.

We recommend looking out for the following signs:

• You have been notified of an examination with a neuropsychologist, a forensic psychologist or forensic psychiatrist as opposed to a psychiatrist; and/or
• You have been notified of the duration of the examination, and this seems excessive (i.e. longer than an hour).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.