Adamson v Enever

Case [2021] QSC 221

SUPREME COURT OF QUEENSLAND

CITATION:

Adamson v Enever & Anor [2021] QSC 221

PARTIES:

GWENDOLINE WINIFRED ADAMSON

(plaintiff)

v
LEONI CARMELLE ENEVER

(first defendant)

AND
AAI LIMITED T/A SUNCORP INSURANCE (ABN 48 005 297 807)

(second defendant)

FILE NO/S:

S206 of 2020 (Rockhampton Registry)

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

31 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2021, 26 July 2021

JUDGE:

Applegarth J

ORDER:

1. It is declared that the plaintiff is not a “person under a legal disability” as defined by s 59(1A) of the Public Trustee Act 1978 so as to require a sanction of the settlement.

2.   It is declared that the plaintiff does not have impaired capacity regarding a financial or legal matter relevant to receiving, investing and managing the settlement sum.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – PERSONS UNDER LEGAL INCAPACITY (OTHER THAN CHILDREN): JURISDICTION AND POWERS – where the plaintiff’s claim for damages for personal injuries following a motor vehicle accident was settled – where there was some concern about the plaintiff’s capacity – where the terms of the settlement required the plaintiff to apply to the Supreme Court for a determination about her legal and/or financial capacity and, if not, an order sanctioning the settlement – whether the plaintiff is a “person under a legal disability” as defined by s 59(1A) of the Public Trustee Act 1978 so as to require a sanction of the settlement

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – JURISDICTION, PROCEDURE AND EVIDENCE – where the plaintiff’s claim for damages for personal injuries following a motor vehicle accident was settled – where there was some concern about the plaintiff’s capacity – where the terms of the settlement required the plaintiff to apply to the Supreme Court for a determination about her legal and/or financial capacity and, if not, an order that the settlement fund be subject to administration – whether the plaintiff has impaired capacity regarding a financial or legal matter relevant to receiving, investing or managing the settlement sum

Guardianship and Administration Act 2000 (Qld), s 5, s 11B, s 11C, s 12, s 245, Sch 1, Sch 2 s 1, Sch 2 s 18, Sch 4
Legal Profession Act 2007 (Qld), Part 3.4, Division 8, ss 345-347
Motor Accident Insurance Act 1994 (Qld), s 79
Public Trustee Act 1978 (Qld), s 59

Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170, cited
Council of Queensland Law Society v Roche [2004] 2 Qd R 574, cited
Gray v Richards (2014) 253 CLR 660, cited
Hasted v Mackay [2020] QSC 58, cited
Hewitt v Bayntun & Allianz Australia Insurance Ltd [2015] QSC 250, cited
Hyytinen v Palmer & Anor [2020] QSC 240, cited
Nicotra v State of Queensland [2018] 3 Qd R 219, cited
Richards v Gray (2013) 66 MVR 16; [2013] NSWCA 402, cited

COUNSEL:

A…

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Adamson v Enever [2021] QSC 221
Case
[2021] QSC 221
Decision Date

CaseChat Overview and Summary

In the case of Adamson v Enever, the plaintiff sought a determination from the Supreme Court regarding her capacity to manage the settlement funds from a motor vehicle accident. The settlement stipulated that the plaintiff must apply to the court for a capacity assessment and, if found not to have impaired capacity, an order sanctioning the settlement. The central issue was whether the plaintiff was a "person under a legal disability" under s 59(1A) of the Public Trustee Act 1978, and if she had impaired capacity relevant to managing the settlement funds.

The court examined the plaintiff's capacity to make decisions independently and communicate them, as outlined in the Queensland Law Reform Commission's review of guardianship laws. The plaintiff, Mrs. Adamson, had a history of financial difficulties and limited education but demonstrated a reasonable understanding of her financial situation and the purpose of the settlement funds. She had managed a family budget and lived a frugal life, indicating a basic understanding of financial management. The court found that Mrs. Adamson was capable of making decisions about her finances and was likely to seek assistance from a professional or trusted individual if needed.

Consequently, the court ruled that the plaintiff was not a "person under a legal disability" as defined by the Public Trustee Act 1978, and she did not have impaired capacity regarding financial or legal matters relevant to managing the settlement sum. The court sanctioned the settlement, allowing Mrs. Adamson to retain and manage the funds without court-appointed oversight.

Orders

Orders of the court

1. It is declared that the plaintiff is not a “person under a legal disability” as defined by s 59(1A) of the Public Trustee Act 1978 so as to require a sanction of the settlement.

2. It is declared that the plaintiff does not have impaired capacity regarding a financial or legal matter relevant to receiving, investing and managing the settlement sum.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a 2010 Report, the Queensland Law Reform Commission concluded that this limb of the definition of capacity is ‘an important legislative safeguard’ in that an adult’s ability to make a decision independently is ‘arguably a useful indicator of the [adult’s] capacity to exercise decision-making power in his or her own interests’.[19][19]Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67 (2010) vol 1, [7.208]–[7.212].Communicating decisions The final limb of ‘capacity’ requires that an adult is capable of communicating their decisions in some way.Mrs Adamson’s circumstances Mrs Adamson was born and raised in Sydney. She was one of nine children who were raised by their mother alone. Her mother was very loving but the family was under great financial distress. She did not receive a good education. She felt that she had teachers who did not care. Her grades were poor and she left school at the age of 15. She then found work at a shoe factory. All of her subsequent work was in factories. She married at the age of 23. Her husband died from a heart attack after they had been married for 19 years. She has been single ever since. Mrs Adamson had three daughters. One daughter was the victim of an horrendous murder. One of her daughters works as a hotel manager. The other daughter has a history of work but is not presently working. Mrs Adamson relocated to Hervey Bay to be closer to her children, grandchildren and great grandchildren. For a long time, she lived in a caravan park. At the time, one of her daughters also lived there. However, in recent times they have relocated to a house which they share with her daughter’s aunt. Mrs Adamson described her current living situation as “very nice and comfortable”. She explained the financial arrangements between her, her daughter, and the aunt. All three contribute to electricity and groceries. The aunt, who owns the property, pays the land rates and water rates. Mrs Adamson indicated that, in the future, they will all contribute to those rates. Mrs Adamson had to manage a family budget when she and her husband were raising their three daughters. However, she has never had enough money to buy a house. She has had to budget to rent. She suffered a major disability to her back more than a decade ago. As a result of her disability she received a pension which she managed to live on. In more recent times she became entitled to the age pension. She lives a frugal life. She is not addicted to alcohol, drugs or gambling. I spoke to her about many matters during her evidence. She had a reasonably good memory. She did not seem to be the kind of person who would allow herself to be easily preyed upon by a family member or friend wanting to borrow money for a business or similar venture. I think it likely that she would seek assistance from a bank manager, financial adviser or a trusted family member if issues arose as to the investment or reinvestment of the funds. She gave the impression that she understood that the funds were intended to provide her with a level of security for many years to come.

Ratio Decidendi

Legal Principle Established

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