Barr v Amalgamated Property Maintenance Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Barr v Amalgamated Property Maintenance Pty Ltd  [2020] QSC 170

PARTIES:

LISA MAREE MCLAUGHLIN AS LITIGATION GUARDIAN FOR ANTHONY ROY BARR

(applicant)

v
AMALGAMATED PROPERTY MAINTENANCE PTY LTD
ABN 62 093 139 514

(respondent)

FILE NO/S:

BS No 4309 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

12 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2020

JUDGE:

Williams J

ORDER:

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

2.     The plaintiff does not have an impaired capacity regarding a financial matter relevant to receiving, investing and managing the settlement sum.

3.     There be no order as to costs.

CATCHWORDS:

HEALTH LAW – MENTAL HEALTH GENERALLY – GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY – CONDUCTING LEGAL PROCEEDINGS – COMPROMISE – where the parties reached a settlement agreement – where the applicant suffered from PTSD, major depressive disorder and alcoholism – whether applicant is a “person under a legal disability” – whether the applicant has an impaired capacity regarding a “financial matter”  or a “legal matter” as defined by the Guardianship and Administration Act 2000 (Qld) – whether a compromise of action should be sanctioned under s 59 of the Public Trustee Act 1978 (Qld)

Guardianship and Administration Act 2000 (Qld)
Public Trustee Act 1978 (Qld), s 59

Hewitt v Bayntun & Allianz Australia Insurance Ltd [2015] QSC 250, followed

Morris v Clair [2004] QSC 127, followed

COUNSEL:

DJ Murphy for the plaintiff/applicant

SOLICITORS:

Sciaccas Lawyers for the plaintiff/applicant
Mullins Lawyers for the defendant/respondent

  1. This is an application on behalf of the plaintiff, by his litigation guardian, for the following declarations and orders that:

    (a)the plaintiff is not “a person under a legal disability” as defined in s 59(1A) of the Public Trustee Act 1978 (Qld) (Public Trustee Act);

    (b)the settlement of the plaintiff’s claim does not require a sanction of the Court or Public Trustee as prescribed by s 59(1) of the Public Trustee Act;

    (c)the matter does not require referral to the Queensland Civil and Administrative Tribunal for consideration of the appointment of an administrator or guardian;

    (d)the plaintiff does not have impaired capacity regarding a financial matter relevant to receiving, investing and managing the settlement sum; and

    (e)there be no order as to costs.

  2. In support of the application, the applicant relies on the following material:

    (a)Affidavit of Anthony Roy Barr sworn on 29 May 2020;

    (b)Affidavit of Lisa Maree McLaughlin sworn on 29 May 2020;

    (c)Affidavit of Conrad Jason Freeman sworn on 29 May 2020; and

    (d)Affidavit of Conrad Jason Freeman sworn on 3 June 2020.

  3. The affidavit of Conrad Jason Freeman sworn on 3 June 2020 exhibits at “CJF2” a number of medical reports as follows:

    (a)Dr Michael Hagan dated:

    (i)10 September 2015;

    (ii)29 September 2015;

    (iii)25 February 2016;

    (iv)1 March 2016;

    (v)7 March 2016;

    (vi)24 May 2016;

    (vii)7…

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Details
Case
[2020] QSC 170
Decision Date

CaseChat Overview and Summary

In the matter of Barr v Amalgamated Property Maintenance Pty Ltd, the Court was required to determine whether a settlement agreement reached by the parties, in the context of a personal injury claim, required the sanction of the Court. The plaintiff, who suffered a workplace injury and subsequently developed Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder, had entered into a settlement agreement with the defendant for the sum of $700,000. The key legal issues revolved around whether the plaintiff was considered a “person under a legal disability” under the Guardianship and Administration Act 2000 (Qld) and whether he had impaired capacity regarding a “financial matter” or a “legal matter,” necessitating the sanction of the settlement under s 59 of the Public Trustee Act 1978 (Qld).

The Court examined the statutory definitions and considered the evidence provided, including affidavits from the plaintiff and his sister, as well as expert opinions. The evidence demonstrated that while the plaintiff had a history of alcohol dependency and had experienced cognitive impairments, there was no clear impediment to his decision-making capacity at the time of the settlement. The most recent evaluations by a clinical neuropsychologist indicated that the plaintiff could understand the nature and effect of the compromise, make the decision to accept it, and communicate that decision. The Court concluded that the plaintiff was not a “person under a legal disability” and did not have impaired capacity regarding the financial matter of compromising the legal proceeding.

The Court found that the plaintiff was capable of managing the settlement funds and did not require the sanction of the Court for the compromise. The Court ruled that the plaintiff was not a “person under a legal disability” and did not have impaired capacity for the relevant financial matter, thus the settlement did not require sanction under s 59 of the Public Trustee Act. The Court made no order as to costs.

Orders

Orders of the court

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

2. The plaintiff does not have an impaired capacity regarding a financial matter relevant to receiving, investing and managing the settlement sum.

3. There be no order as to costs.

Background

Background to the litigation

The defendant appeared at the hearing of the application but made no submissions. The defendant’s position is that it will abide by the order of the Court.[1] [1]Affidavit of Conrad Jason Freeman of 29 May 2020, Annexure “CJF4(b)”. Background facts The background facts are not contentious and can be briefly summarised as follows:(a)The plaintiff suffered a workplace injury on 13 March 2015 when employed as a painter by the defendant.(b)The plaintiff suffered injuries when he fell three stories from a rooftop onto concrete ground below.(c)The plaintiff suffered multiple injuries including:(i)Fracture of his right first TNTJ of his foot;(ii)Fracture of his right medial malleolus;(iii)Fracture of his left patella;(iv)Multiple extensive facial fractures;(v)Fracture of left ribs;(vi)Cervical spine injury;(vii)Lumbar spine injury;(viii)Disfigurement of his face and body;(ix)A closed head injury;(x)Dental injuries;(xi)A psychiatric injury being either a Post-Traumatic Stress Disorder or Major Depressive Disorder. (d)On or about 19 October 2016, the plaintiff was involved in a motorcycle accident. The plaintiff also suffered a number of other falls post the workplace accident. Proceedings were commenced in the Supreme Court of Queensland on 24 April 2019 seeking damages for breach of contract and/or negligence, and interest. The matter proceeded to a mediation on 11 December 2019 conducted by the Honourable Duncan McMeekin QC. At the mediation, the plaintiff’s claim was settled for the sum of $700,000.00 clear of the WorkCover statutory refund of $269,233.27, plus administration fees if so determined by the Court.Statutory provisions ‒ sanction and capacity The issue to be determined is whether the settlement of the personal injuries claim requires a sanction of the Court pursuant to s 59(1A) and (1) of the Public Trustee Act. Section 59(1A) and (1) of the Public Trustee Act provide as follows:“(1A) In this section— appropriate person, for a person under a legal disability, means— (a) an administrator for the person under the Guardianship and Administration Act 2000; or (b) if the person does not have an administrator—an attorney for a financial matter for the person under an enduring power of attorney under the Powers of Attorney Act 1998; or (c) if the person does not have an administrator or an attorney mentioned in paragraph (b)—the public trustee. court means a court within whose jurisdiction an amount or damages are claimed by or for a person under a legal disability suing either alone or with others, and includes a judge or magistrate of the court. person under a legal disability means— (a) a child; or (b) a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000. taxing officer of a court means an officer of the court whose duties include the taxation or other assessment of costs in the court.(1) In any cause or matter in any court in which money or damages is or are claimed by or on behalf of a person under a legal disability suing either alone or in conjunction with other parties, no settlement or compromise or acceptance of money paid into court, whether before, at or after the trial, shall, as regards the claim of such person under a legal disability, be valid without the sanction of a court or the public trustee, and no money or damages recovered or awarded in any such cause or matter in respect of the claims of any such person under a legal disability, whether by verdict, settlement, compromise, payment into court or otherwise, before or at or after the trial, shall be paid to the next friend of the plaintiff or to the plaintiff’s solicitor or to any person other than the public trustee unless the court otherwise directs.”

Evidence

Evidence Before The Court

In relation to the second issue as to whether an administrator should be appointed, his Honour determined that it was not warranted in the circumstances being considered. His Honour stated at [28] to [30]:“Where, as here, the taking or using of narcotic drugs is apparently six years in the past then it is difficult to see how the definition of impaired capacity is met. It is couched in the present tense and I think deliberately so. I am conscious of the general principles set out in Sch 1 of the Guardianship and Administration Act concerning self-reliance and a presumption of capacity. What exists here is a potential impairment not an actual one.Margaret Wilson J did not make any order transferring the matter to QCAT in Morris (supra) observing that if the plaintiff there did suffer from a florid episode in the future an application could then be made.With respect I think her Honour’s approach is right. That an impairment might, but not necessarily must, manifest itself in the future is not, I think, sufficient to justify the making of such an order.”Evidence before the Court In the application before me, Mr Barr swore an affidavit in support of the application. Mr Barr’s affidavit addresses his understanding of the compromise that has been reached, the steps he has taken in relation to his level of alcohol consumption, his ongoing treatment and his commitment to keeping his alcohol consumption “under control.” Further, Mr Barr states:“20.My alcohol consumption is definitely under control, particularly compared with what it was like before. I have made a promise to myself that, once this case is all over, I intend changing my life completely and starting over.21.I am firmly of the view that I can manage my financial affairs.22.My sister, Lisa McLaughlin, currently helps with my finances as she helps to pay my bills. I did have a computer prior to the accident but I turned it off because I had no need for it after the accident. Lisa pays my bills online but, once my case settles, I intend paying my bills myself. I am currently unable to drive, but I am hopeful that I will be able to get my driver’s licence back and I intend attending at the post office, which is where I used to pay all of my bills.23.I am prepared to take advice in relation to managing my financial affairs, should I receive the bulk of the settlement moneys. I have accounts with the Commonwealth Bank and I intend speaking with someone at the bank and obtaining financial advice in relation to the best investment strategies relating to my settlement moneys.24.If I do receive my settlement moneys, I intend getting my teeth fixed and then I will speak to the bank about how best to invest the balance of my money.” Ms Lisa McLaughlin, the plaintiff’s litigation guardian, has also provided an affidavit. The affidavit outlines the compromise of the claim and her previous concerns about her brother. Further, in the affidavit she states:“5.The difference that I have observed in Anthony between then and now is very significant. He is now in a much better place. … He is now proactive with his bills and accounting. I would say that he is aware of his bank account and, whilst he does not know his balance to the last cent, he is certainly aware of when it is running low. He is being very cautious.6.He is a totally different person. …”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Ms Anderson provided a final report on 28 May 2020 where she was asked to provide an opinion in relation to the plaintiff’s capacity to “give instructions to settle his claim” and “thereafter manage his settlement funds”. In her most recent report, Ms Anderson was of the opinion that:(a)The plaintiff is “able to understand (and remember) the nature and effect of decisions, engage in the decision making process without direction and communicate those directions.”(b)“Whilst it would be optimal for [the plaintiff] to obtain independent advice, he was able to demonstrate a satisfactory level of knowledge and understanding about the relevant matters during our discussion.”(c)“… there was no clear impediment to decision making” in relation to giving instructions to settle his claim and afterwards to manage his settlement funds.Consideration Consistent with the authorities and the relevant statutory definitions, the question to be determined by the Court is whether the plaintiff has the necessary capacity at the present time. Historically, two issues of concern were identified: the plaintiff’s alcohol dependency and whether he also suffered from a cognitive impairment. It is clear from the evidence that the plaintiff has previously had an alcohol dependence disorder. However, there is evidence that he has participated in an alcohol detoxification program and is receiving ongoing support. His current consumption of alcohol has been drastically reduced. In respect of whether the plaintiff suffered from any cognitive impairments, there is evidence both ways on this issue. In April 2017 Dr Jill Harding-Clark identified cognitive impairments in memory, concentration and attention. However, this assessment was for the particular purpose of the WorkCover rehabilitation process. Dr Harding-Clark was not expressing an opinion about whether those cognitive impairments impaired the plaintiff’s capacity for decision making of financial matters. Professor Whiteford had the opinion, from a psychiatric perspective, that the plaintiff did have an impaired capacity because of his substance abuse and cognitive impairments. However, Professor Whiteford did not undertake his own cognitive testing but relied on the results of Dr Harding-Clark. It is also noted that Dr Andrew Byth concluded, from a psychiatric perspective, that the plaintiff’s cognitive defects could be explained in terms of “high anxiety and depression”. Ms Debbie Anderson, clinical neuropsychologist, twice performed her own cognitive testing on the plaintiff and also expressed an opinion specifically in relation to the capacity of the plaintiff for the types of “matters” that are being considered by the Court on this application. Further, Ms Anderson evaluated the plaintiff on two occasions since he has undergone the detoxification program. These two evaluations are the closest to the present time and therefore the most relevant. Based on the evidence before the Court, and in particular the 2020 evaluations of Ms Anderson and the affidavits of Mr Barr and Ms McLaughlin, I am satisfied that the plaintiff is presently capable of understanding the nature and effect of the compromise, freely and voluntarily making the decision to accept the compromise, and communicating that decision. The plaintiff does not presently have impaired capacity for the “matter” of compromising the legal proceeding. Accordingly, the plaintiff is not “a person under a legal disability” as defined in s 59(1A) of the Public Trustee Act so as to require a sanction of the settlement.