GEORGE MANOS & GLENN ANTHONY JOHN McCULLOCH [2004] SASC 102
Civil
DEBELLE J. The issue in this application is whether the plaintiff is at liberty to prosecute this action himself or must prosecute the action by his next friend. I set out the facts which lead to this action and to this application.
A Serious Motor Vehicle Accident
The plaintiff is now aged 38 years. On 27 August 1984, when he was aged eighteen years, he was involved in a motor vehicle accident when the motor vehicle he was driving was struck by a semi-trailer. The plaintiff suffered serious head injuries and serious brain damage. In addition he suffered a fracture of the right clavicle, pneumothorax, a fracture of the jaw, and a fracture of the pelvic girdle. He underwent neuro-surgery at Queen Elizabeth Hospital. As a result of his head and brain injuries, he suffers extensive neurological impairment causing epilepsy and a loss of intellectual and cognitive ability, he has lost sight in his right eye, and he suffers from a range of emotional and personality changes. He takes anti-convulsive drugs in order to prevent epileptic seizures from which he has suffered from time to time as well as other forms of medication.
One of the doctors who treated the plaintiff for his head injuries was Dr G McCulloch.
A Protection Order
The plaintiff issued proceedings to recover damages for the injuries he received in the motor vehicle accident. The action was settled. The plaintiff recovered damages in the sum of $756,156.00. Of that sum $641,467.57 was the subject of a protection order made on 20 June 1990. It was further ordered that Public Trustee manage that sum pursuant to the Aged and Infirm Persons’ Property Act 1940.
The Protection Order is Revoked
In October 1992 the plaintiff instructed Mr George Manos, a solicitor, to act on his behalf. On 3 November 1992 Mr Manos filed an ex parte application in this Court seeking an order to rescind the protection order made on 20 June 1990. Affidavits in support of the application were sworn by the plaintiff, his father, Dr McCulloch, and the plaintiff’s social worker. On 27 November 1992 a Master of this Court made an order rescinding the protection order.
A Second Action
The plaintiff has lost a considerable amount of the funds the subject of the administration order in unwise investments. On 3 July 2002 this action was commenced in order to recover damages for the losses he had incurred. For convenience, I will call it “the second action”. The defendants in the second action are Mr Manos and Dr McCulloch.
The plaintiff claims that Mr Manos was guilty of negligence, breach of contract and breaches of his fiduciary duties as the plaintiff’s solicitor in advising the plaintiff and in securing orders releasing the funds from the protection order. It is alleged that he failed to obtain all appropriate medical evidence including psychiatric and psychological assessments…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Dalle-Molle v Manos
Sign in free to access the full text
Details
AGLC
Dalle-Molle v Manos [2004] SASC 102
Case
[2004] SASC 102
Decision Date
CaseChat Overview and Summary
In the matter of Dalle-Molle v Manos, the Supreme Court of South Australia was tasked with determining the plaintiff's capacity to manage his personal affairs and instruct his legal representatives. The plaintiff, who had sustained severe injuries in a motor vehicle accident, including blindness in one eye, epilepsy, and paralysis, faced questions regarding his cognitive abilities and susceptibility to influence. The primary issue before the court was whether the plaintiff possessed the mental capacity to make informed decisions about his legal proceedings and financial matters.
The court considered expert opinions from medical professionals and psychological assessments that highlighted the plaintiff's cognitive impairments. While some experts believed that the plaintiff could understand and manage his personal finances, others argued that he was unable to do so effectively due to his mental condition. The court had to weigh these differing opinions and determine the plaintiff's actual capabilities.
The court ultimately concluded that the plaintiff's cognitive impairments significantly affected his ability to manage his affairs and make informed decisions. Despite some capacity to handle day-to-day issues, the plaintiff demonstrated an inadequate understanding of complex matters and a limited insight into his mental condition. The court accepted the evidence that the plaintiff was susceptible to emotional factors and undue influence from family members, which further complicated his ability to make rational decisions. Based on these findings, the court ruled that the plaintiff was not capable of managing his legal proceedings and financial affairs independently.
The court ordered that a trustee be appointed to manage the plaintiff's substantial award of damages on his behalf, ensuring that his interests were protected and that his financial decisions were made in his best interest. This decision aimed to balance the plaintiff's autonomy with the need to safeguard his interests due to his cognitive impairments.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is obviously necessary that, at the earliest opportunity, advice be obtained from experienced counsel on the several issues in this action, the prospects of success, the possible outcomes and the risks faced by the plaintiff.The Medical and Psychological Evidence There are reports from three specialists, the plaintiff’s neuro-surgeon Dr McCulloch, his psychiatrist Dr Furze, and a psychologist Mr Quinton. In a report dated 29 May 1989, Dr Furze expressed the view that it would have been difficult for any person to have come to terms with the major disabilities the plaintiff suffered in the motor vehicle accident in the form of blindness in one eye, epilepsy and a degree of paralysis. He said that the fact that the neurological impairments are added to the plaintiff’s disabilities meant that his ability to come to terms with the profoundly altered state of his existence is greatly reduced. Although Dr Furze concluded that it is prudent for the substantial award of damages to be managed by a trustee on behalf of the plaintiff, he believed that the plaintiff could give instructions in respect of his claim for damages. He examined the plaintiff one year later and had no cause to alter his opinion. Mr Quinton conducted a series of neuro-psychological assessments between 1985 and 1990. In February 1986 he reported that the plaintiff was not able to read or do simple mental arithmetic. He said that the plaintiff was mentally slow, had impaired adaptive skills but had an average intellectual ability. Because of his impaired adaptive skills he was not capable of looking after himself. He did not believe the plaintiff could understand and manage his personal finances. He expressed the view that the plaintiff was, nevertheless, able to instruct solicitors because he would understand if all the possibilities were explained to him. If everything was explained, Mr Quinton said, the plaintiff was capable of appreciating the nature of the proceedings and could make rational decisions. Mr Quinton’s assessment at that time was unduly negative. The plaintiff has demonstrated a capacity to look after himself and manage the more simple aspects of his personal finances. In September 1988 Mr Quinton reported a general improvement but he believed that the plaintiff still had problems with reading and reading comprehension, he was mentally slowed, he had problems integrating information and with adaptive behaviour, he had problems with sequences and his mental arithmetic skills had declined. He expressed the view that the plaintiff was very slow and found it very hard to learn new matters. He did not believe he could secure employment in the open market. He was best fitted to simple repetitive tasks and he believed the most suitable working environment was in a sheltered workshop. As to that last matter, it is relevant to note that the only employment which has been provided to the plaintiff is by members of his family. In 1990 Mr Quinton again assessed the plaintiff. He found little change in the plaintiff’s condition and he did not believe any significant improvement was likely. He had conducted tests which showed that the plaintiff had bilateral frontal lobe deficits. In his view the most important finding was that, in spite of normal intelligence, the plaintiff continued to experience learning difficulties.
Decision
Reasons for decision
DEBELLE J
In Mr Rothwell’s view the plaintiff had the capacity to understand relatively complex, ethical and moral dilemmas. He said that he could understand right from wrong, had the capacity to hold a number of important concepts in mind and process these so that he could then use the information to form a reasonable argument and opinion based in logic. Notwithstanding the cognitive impairment suffered in consequence of his severe brain injuries, Mr Rothwell believed that the plaintiff was able to understand legal proceedings and give instructions on his own account if given sufficient time for processing information given to him and to form his opinions.Conclusion Mr Rothwell suggested that his tests are more consistent with those undertaken at the earlier stages of the plaintiff’s recovery from his injuries. Mr Walsh does not agree. I prefer the opinion of Mr Walsh to that of Mr Rothwell. His tests produced the same results as earlier tests, albeit that the plaintiff performed less satisfactorily. That is explained by the plaintiff’s stress and lack of sleep at the time. The fact that the plaintiff was under stress at that time only serves to indicate the plaintiff will have difficulty when he is required to make decisions whether to prosecute or compromise this action which involves complex issues. I accept Mr Walsh’s evidence that the plaintiff’s impairment continues to be of the same order as when he was first assessed. In addition, both Mr Walsh and Mr Rothwell agree that the plaintiff may be swayed by emotional factors. That is borne out by the plaintiff’s emotional views about the propriety of this action. There is one other topic on which both Mr Walsh and Mr Rothwell agree. It is that the plaintiff is susceptible to undue influence from members of his family. That opinion is borne out by the events which have happened. It is an opinion borne out also by Ms Simeone’s experience of her dealings with the plaintiff. Other factors support Mr Walsh’s opinion. They include the plaintiff’s poor capacity to understand more complex financial transactions. I do not accept the basis for Mr Rothwell’s distinction between giving instructions and engaging in more complex financial transactions. While different factors must be considered when entering into an important financial transaction and when giving instructions in litigation, the factor which is constant to both is that each involves a major decision made after a detailed explanation where there is time to reflect. Decisions in respect of the major financial transactions into which the plaintiff has entered were not, as Mr Rothwell believed, made quickly or in circumstances where there is no sufficient time for explanation or for the processing of new information. The plaintiff’s major financial dealings have been of a kind where there was ample time for explanation and consideration. The plaintiff gave his evidence carefully. It was quite apparent that he was able to deal very adequately with ordinary day to day issues. However, it was also quite apparent that his understanding of complex issues and his memory were inadequate. He displayed a confusion about some financial issues involving his brother David. One clear example concerned payments of rent and repayments of a loan to his brother to purchase a truck. The plaintiff believed that his brother David and his wife had vacated the property at Nairne. That is incorrect. His evidence was that Mr Hill was his accountant before the accident but that was not so. He had a clear misunderstanding as to the effect of his shareholding in his brother’s company. It is apparent that the plaintiff has a limited insight into the extent of his mental impairment. I have already referred to his almost obsessive view that the action should discontinue. It is plain that he has this view for emotional rather than logical reasons. His emotional reasons are not irrelevant but the decision to discontinue this action must primarily be made for logical and not emotional reasons.