Davis v Greater Western Area Health Service
[2005] NSWSC 1206
•1 December 2005
CITATION: Davis v Greater Western Area Health Service [2005] NSWSC 1206
HEARING DATE(S): 11 November 2005
JUDGMENT DATE :
1 December 2005JURISDICTION: Common Law Division
JUDGMENT OF: Rothman J at 1
DECISION: 1. The settlement contained in paragraph 2 of the Terms of Settlement filed herein be approved.; 2. The Defendant pays agreed costs of $60,703.18 to the plaintiff's solicitor.; 3. The Court accepts the resignation of the plaintiff's tutor upon a document formallly recording same, with a verifying affidavit, being filed in the Registry, a copy of which shall be served on the defendant, whereupon the defendant shall pay the balance of settlement monies upon authority to receive signed by the plaintiff.
CATCHWORDS: Notice of Motion - Orders sought to allow resignation of tutor - whether legal incapacity
LEGISLATION CITED: Uniform Civil Procedure Act
Uniform Civil Procedure RulesPARTIES: Plaintiff - Elton DAVIS
Defendant - Greater Western Area Health ServiceFILE NUMBER(S): SC 20390/1999
COUNSEL: P - Mr Hill
D - Mr WindsorSOLICITORS: P - Longman Hill
D - GIO - General Insurance Law Department
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ROTHMAN J
1 DECEMBER 2005
20390/1999
1 ROTHMAN J: By Notice of Motion the plaintiff moves for four orders, the effect of which, together with terms of settlement, would bring these proceedings to an end. The orders have the effect of allowing the case to settle by allowing the resignation of the tutor.
2 On 4 October 2002, the Court appointed a tutor for the plaintiff although it is unclear to what extent the tutor has been involved in reaching the decisions necessary to get to this stage. The stage of proceedings currently is that the Plaintiff and Defendant have each executed Terms of Settlement to the effect that judgment will be entered for the Plaintiff in the sum of $299,296.82 plus costs as agreed in the sum of $60,703.18.
3 If the tutor remains in place at the time of judgment and/or implementation of the settlement then the judgment monies will need to be paid into court and dealt with in accordance with the Uniform Civil Procedure Act (ss. 75, 76 and 77) and the Rules.
4 The motion seeks approval of the settlement, an order for costs as agreed; acceptance of the resignation (when received) of the tutor and an order that the defendant pay the balance of settlement monies upon authority to receive signed by the Plaintiff; and, in the alternative to the last mentioned order, for payment of the settlement monies into court to be paid out to a manager upon appointment by a supreme court in a State or Territory.
5 The only issue is whether approval should be given to the settlement and, if so, whether the monies should be treated in a manner consistent with the plaintiff having a continuing incapacity.
Nature of Substantive Proceedings
6 The plaintiff was admitted to a psychiatric facility conducted by the defendant. He required and received in-patient psychiatric care. The plaintiff claims damage from the defendant because, the plaintiff says, it treated the plaintiff negligently and breached its duty of care to the plaintiff. This negligence, says the plaintiff, arose from the administration of anti-psychotic medication from which, it is said, the plaintiff developed Neuroleptic Malignant Syndrome (NMS). This, he says, caused him to suffer permanent impairment.
7 Both liability and damage were in issue in the proceedings. The issue of liability included both the question of whether there had been a breach of the relevant duty of care and causation, if there were a relevant breach. The assessment of damage issues included the extent of the impairment to the plaintiff and the length of time that it is likely the plaintiff would be impaired either to that extent or at all. It should also be noted that there is a real issue as to whether the plaintiff has or ever had NMS and, if so, whether it was caused by his treatment by the defendant. The plaintiff’s case is not the strongest on either liability or damage. It is in that context that the current motion is pressed. On one view the current application supports in some respects the defendant’s view on the nature and duration of any impairment of the plaintiff.
8 The plaintiff now resides in the Northern Territory as does some of his immediate family. The tutor also resides interstate.
Relevant Principles
9 The defendant does not oppose the orders but, quite properly, has referred the Court to various principles, it says govern the exercise of the discretion.
10 The defendant submits that Uniform Civil Procedure Rule 7.18 is the relevant provision for the removal of a tutor. However Rule 7.18 is more concerned with the removal and replacement of a tutor. The Rule is essentially concerned with a person under a legal incapacity. Where, as here, it is alleged (assuming the Court finds the allegation proven) that the party is not under a legal incapacity then Uniform Civil Procedure Rule 7.14 does not operate and the party is entitled to carry on the proceedings directly and is not required to do so through a tutor. Indeed, once the legal incapacity is at an end, a tutor is incapable of continuing the proceedings e.g. when a minor attains majority by reaching 18 years. At that stage the plaintiff may either continue the proceedings or they are dismissed.
11 The defendant has drawn attention to two major factors on the exercise in which the Court is engaged:
Medical Reports(a) historical medical reports evidencing, it is said, incapacity; and
(b) the financial report disclosing material inconsistent with the capacity of the plaintiff to understand fully his welfare needs and to manage his own affairs.
12 The plaintiff relies on the motion, on a report of his treating psychiatrist. He has been treating the plaintiff since 30 August 2004 and, although, because of the plaintiff’s absence from Darwin on account of these proceedings, he has not seen the plaintiff regularly this year, he has reported on his capacity. That report, in part, says:
- “While Mr Davis’s [sic] mental state has been unsettled throughout the time I have known him, he is neither intellectually nor psychiatrically incapable of managing his own affairs. …
- In the case of your client, I do not believe there would be any value in initiating an application under the relevant legislation. It is not possible to establish that this man is incapable of managing his own affairs and/or requires guardianship. I am not saying that he will necessarily be fully responsible in managing a financial settlement, only that there is no psychiatric basis to consider guardianship. He is neither psychotic nor intellectually handicapped in any sense and I would not support such an application. …”
The above report by Dr N McLaren MBBS FRANZCP, Consultant Psychiatrist, was dated 3 November 2005 and provided to Longman Hill, Solicitors for the Plaintiff. There is little, if any, basis for the Court rejecting the opinion there stated and I find that the plaintiff is not under any legal incapacity.
13 While there are other psychiatric reports, the overwhelming view is that there is no psychosis and no permanent incapacity. While some of these reports stress the plaintiff’s lack of formal education, inabilities in memory and the existence of some cognitive problems, none of them are inconsistent with the opinion of Dr McLaren above.
Financial Report
14 It is probably unnecessary for me to consider the other issues but, as they have been raised to show, amongst other things, incapacity, I will do so.
15 The defendant submits that the content of the financial advice and affidavit show an incapacity, it is said, because of the inability to face reality. The argument, as I understand it, is that the stated desire of the plaintiff to achieve all the expenditure does not marry with the funds available. The argument is misconceived for two reasons. The first is that the mere fact that a person seeks goods (or investments) greater than their current means does not necessitate a finding of incapacity.
16 The second reason is one of fact. The defendant misunderstands the financial report. The report states that the settlement sum is $360,000 (the sum inclusive of costs) and reduces the sum by awarded costs and other expenses to arrive at a total expenditure of $270,000, leaving $90,000 of which $5,000 is to be retained in a Streamline Account and $85,000 to be invested.
17 The submission of the defendant double counts $75,000 to be spent on a car, a caravan and other sundry items. The $75,000 is included as “additional expenses” in the total expenses of $270,000. It also ignores a refund of $36,000 which is expected from HIC and is otherwise not included in the above figures. The expenditure on a house does not, in a remote aboriginal community in the Northern Territory, need to be more significant than these figures provide.
18 For those reasons the stated intention in relation to the manner in which the settlement sum is to be used does not detract from the opinion of Dr McLaren and I make the following orders which, on their face, do not take effect until the tutor formally resigns and a document evidencing that resignation and verified by affidavit, is filed in the Registry and a copy served on the defendant.
Orders
- 1. The settlement contained in paragraph 2 of the Terms of Settlement filed herein be approved.
2. The Defendant pays agreed costs of $60,703.18 to the Plaintiff’s solicitor.
3. The Court accepts the resignation of the Plaintiff’s tutor upon a document formally recording same, with a verifying affidavit, being filed in the Registry, a copy of which shall be served on the Defendant, whereupon the Defendant shall pay the balance of settlement monies upon authority to receive signed by the Plaintiff.
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