The plaintiff commenced proceedings against Zurich Australia Limited (’ZAL’) and another seeking to recover a benefit for Total and Permanent Disablement (’TPD’). The plaintiff alleges that he is TPD due to anxiety and depression and that he suffered cognitive impairments due to those conditions, which prevented him working in any occupation for which he was suited by his education, training or experience.

To assist the court determine whether the plaintiff is TPD, ZAL requested the plaintiff undergo psychometric testing conducted by a neuropsychologist. The plaintiff objected to the proposed testing, culminating in ZAL filing a notice of motion seeking to compel the plaintiff to attend.

The motion was heard before Justice Kunc of the NSW Supreme Court on 5 May 2026. The court identified the relevant test to be whether a plaintiff should be required to undergo a medical examination is whether the examination is sought for a legitimate forensic purpose and the evidence resulting from the examination is likely to be material to an issue in dispute.

On behalf of ZAL, Moray & Agnew tendered a report from a neuropsychologist that psychometric testing was useful to assess whether a person suffered cognitive impairments associated with a mental health condition. The court relied on that report to find that the test for whether an examination should be ordered had been satisfied. Namely, the court was satisfied that an examination by a neuropsychologist was likely to produce evidence that was material to the court’s ultimate enquiry, which was whether the plaintiff was TPD.

In making this finding, the court rejected an argument that assessment by a neuropsychologist was only appropriate where there was an “organic component” to the particular disorder the plaintiff was suffering. Namely, psychometric assessment is appropriate in cases of mental illness, even if the mental illness was not attributable to an organic component, such as brain injury.

No requirement ZAL to give undertaking as a condition of plaintiff’s attendance

Earlier in the litigation, the plaintiff’s representatives had indicated that the plaintiff would undertake psychometric testing, but only on the condition that the insurer provide an undertaking that any testing material and manuals that might be referred to in the resulting report would be served at the time of the report itself.

The court found that ZAL should not be required to provide any such undertaking, stating “such a request has no place in how this kind of litigation should be conducted”. That said, the court acknowledged that after receipt and consideration of the report, the plaintiff might be entitled to additional material.

Conclusion

This decision builds on decisions such as Price v ClearView Life Nominees Pty Ltd & Ors and Harrod v MetLife Insurance Limited, that a request for a plaintiff or claimant to undergo psychometric assessment by a neuropsychologist is appropriate where a plaintiff alleges they have cognitive impairments due to a mental health condition.

Additionally, an insurer is not required to provide, as a condition of the plaintiff agreeing to attend such an appointment, an undertaking that at the time of service of the report any testing materials and manuals would also be served.

A link to the judgment can be found here.

Further information / assistance regarding the issues raised in this article is available from the author, Catherine McAdam, Partner, or your usual contact at Moray & Agnew.