DOE v NSW Trustee and Guardian

[2018] NSWCATAD 256

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DOE v NSW Trustee and Guardian [2018] NSWCATAD 256
Hearing dates:	22 October 2018
Date of orders:	06 November 2018
Decision date:	06 November 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Scarlett, Senior Member
Decision:	The decision of the NSW Trustee and Guardian made on 2 May 2018 to take no further action on behalf of the Applicant with respect to a Motor Vehicle Accident claim against the Nominal Defendant is affirmed.
Catchwords:	Guardianship – administrative review – application for review of decision of the NSW Trustee & Guardian – internal review – where internal review finalised – where Applicant offered no evidence
Legislation Cited:	Administrative Decisions Review Act 1987 (NSW), s.58 NSW Trustee and Guardian Act 2009 (NSW), s.46
Cases Cited:	Bauer Media Pty Ltd v Wilson (No.2) [2018] VSCA 154
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DOE (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Applicant, In person by telephone   Solicitors: Ms Macmillan, NSW Trustee and Guardian (Respondent)
File Number(s):	2018/00238501
Publication restriction:	With the exception of expert witnesses or officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under s. 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. This is an Application for review of a decision made on 2 May 2018 to take no further action with respect to a motor vehicle accident claim against the Nominal Defendant.

2. By his Application, filed on 3 August 2018, the Applicant expresses his dissatisfaction with an internal review of the decision made on 22 June 2018, affirming the decision made on 2 May 2018 to take no further action. In his Application for Administrative Review, which was apparently drafted by his mother, the Applicant states:

“We are not satisfied with the internal decision and are requesting an external review. [DOE] still suffers from the accident and the future doesn’t look good.”

3. Apart from a letter to the Tribunal requesting permission to attend the hearing by telephone, the Applicant has not filed any other documents, nor has he provided a written submission.

4. The Respondent has not filed a written submission and relies on the Internal Review Decision made by Principal Legal Officer Luke Williams on 22 June 2018.

Background

5. The Applicant is a man of 51 years of age [1] , having been born on 20 February 1967. He lives in a country town in the Hunter Region. He is not employed and receives a Disability Support Pension.

   1. For some reason, the Applicant is described in some of the Respondent’s documents as being aged 60, but there appears to be no doubt that his date of birth is 20 February 1967

6. On 18 December 2014 the Mental Health Review Tribunal made an order that his estate be subject to management by the NSW Trustee under s. 46 the NSW Trustee and Guardian Act 2009.

7. On 22 August 2016 the Applicant was riding his bicycle along a road when a white motor vehicle struck his bicycle and knocked him onto the road. He was admitted to John Hunter Hospital in Newcastle, where he was treated for a right acetabular fracture (a break in the hip socket) and inferior pubic ramus fracture (a broken pelvis). He remained in hospital until 31 October 2016.

8. The Applicant obtained legal representation from a firm of solicitors, instructing them to commence proceedings against the Nominal Defendant. The Nominal Defendant denied liability. On 12 October 2017, the solicitors, having become aware of the Applicant’s financial management order, sought instructions from the Trustee and Guardian to continue to act for the Applicant. They advised that the case was very difficult but they were prepared to continue to act on a conditional basis. They prepared a conditional costs agreement providing for fixed costs of $220,000.00, including a 25% uplift fee, and disbursements of $40,000.00, including GST.

9. The Trustee and Guardian sought independent advice from Shaw McDonald Lawyers about the merits of pursuing the Applicant’s personal injury claim. They advised that there appeared to be sufficient evidence to justify making a claim, but whether or not to make a claim would depend on the Applicant’s circumstances and the damages he might be able to recover.

10. They advised that:

1. Any claim for economic loss would be minimal as the Applicant receives a Disability Support Pension and did not appear to be capable of undertaking paid employment;

2. Whilst the Applicant’s injuries were serious, it would be unlikely that any permanent impairment would exceed the necessary 10% impairment threshold;

3. Any claim for out-of-pocket expenses would be minimal as the Applicant was treated in a public hospital and apparently holds a pension card;

4. It did not appear that the Applicant had received the level of voluntary domestic assistance required to support claim for past gratuitous care; and

5. The NDIS plan provides for support and transport, which would partially meet any need for future attendant care services.

11. The upshot of all this was that Shaw McDonald doubted that it would be worth pursuing a claim. They noted that whilst the Applicant’s solicitors had indicated that they were willing to continue to act and attempt to negotiate a settlement, they had declined to provide an advice on the merits or amount of damages that might be claimed, and they had declined to provide a revised costs disclosure reflecting the amount of damages that might be sought.

12. On 12 March 2018 an officer of the Trustee and Guardian approved a recommendation that no further action be taken with respect to a motor vehicle accident claim against the Nominal Defendant.

13. Officers of the Trustee and Guardian spoke with the Applicant’s solicitor on 14 March and on 1 May 2018 about the merits of the Applicant’s claim. The solicitor said that he doubted that the Nominal Defendant would settle the matter, although he sought an opportunity to attempt to settle the matter for a figure not exceeding $50,000.00.

14. On 2 May 2018, an officer of the Trustee and Guardian approved a recommendation that the Trustee and Guardian should take no further action in relation to the claim.

15. On 16 May 2018, the Applicant’s mother requested a review of the decision to take no further action, on the basis that the accident was very serious and had caused the Applicant anxiety, depression and pain and suffering. The review was carried out by Luke Williams, Principal Legal Officer of the Trustee and Guardian.

16. On 22 June 2018 the Principal Legal Officer affirmed the decision made on 2 May 2018 to take no further action with respect to a motor vehicle accident claim against the Nominal Defendant.

Evidence

17. The Applicant has not filed any evidence. He attended the Tribunal hearing by telephone. He confirmed that he had not filed an affidavit in these proceedings. He told the Tribunal that his medical documents and X rays were available on the John Hunter Hospital Website and his treating surgeon was a Dr Balogh. He also said that he had made an application for legal aid, which was refused, and his former solicitors were not going to represent him anymore.

18. The Respondent has filed what appear to be all relevant documents under the provisions of s.58 of the Administrative Decisions Review Act 1997 (NSW).

Submissions

19. The Applicant submitted that the Respondent, in deciding not to pursue his claim any further, had not compared his case to any other case involving someone who had been injured by being knocked off a bike by a motor vehicle. He said that the Trustee and Guardian had no comparison to any other case involving someone with less pain and suffering than he had endured.

20. It was the Applicant’s view that he should receive an award of some $1,000,000, based on a recent award of damages to the well-known Australian actress, Rebel Wilson, in defamation proceedings against a magazine publisher. His view was that if Ms Wilson was able to obtain damages in excess of $4,000,000, he should be entitled to receive the sum of $1,000,000.

21. There is, of course, no comparison between an award of damages for defamation and an award for personal injuries received in a motor vehicle accident. The Applicant was apparently unaware that the Victorian Court of Appeal recently reduced the damages awarded to the plaintiff from $4,749,920.60 to $650,000 (Bauer Media Pty Ltd v Wilson (No.2) [2018] VSCA154).

22. The Applicant told the Tribunal that he received a Disability Support Pension but claimed that he was still quite capable of working.

23. He said he had not had any medical examinations other than at John Hunter Hospital.

24. For the Respondent NSW Trustee and Guardian, Ms Macmillan said that the Internal Review decision was based on the advice of the solicitors Shaw McDonald that the Applicant’s claim was unlikely to be successful. The damages recoverable would be minimal. She submitted that the applicant was now relatively fit and is again able to ride his bicycle. His own solicitors were not willing to proceed with his claim on a speculative basis.

Conclusions

25. The Applicant has claimed that the Respondent did not conduct a proper examination of the merits of his claim for damages for personal injuries arising out of a motor accident. He claims that they did not compare his case to other comparable cases, but did not provide any examples other than a defamation case, which is not at all relevant.

26. The fact is that the Applicant’s own solicitors were doubtful of the Applicant’s chances of success, noting that the Nominal Defendant had denied liability. They described the Applicant’s case as very difficult, but said that they would be willing to attempt to negotiate a settlement but thought it was unlikely that the Nominal Defendant would settle the case.

27. The Respondent then sought independent legal advice from Shaw McDonald Lawyers. Their opinion was equally gloomy, noting that the Applicant’s claims for economic loss and out of pocket expenses would be minimal. They expressed the view that, whilst the Applicant’s injuries were serious, it would be most unlikely that any permanent impairment would be sufficient to exceed the required impairment threshold.

28. In the Tribunal’s view, the Respondent Trustee and Guardian took appropriate steps to investigate the viability of the Applicant’s claim for damages, noting that the Applicant’s own solicitors estimated his likely costs and disbursements would amount to some $260,000.00, which would greatly outweigh any amount of damages that the Applicant could expect to receive.

29. The Applicant’s estimate of his chances of success and the amount of damages that he might receive are, in the Tribunal’s view, unrealistic.

30. The Tribunal affirms the decision of the Respondent NSW Trustee and Guardian made on 2 May 2018 to take no further action on behalf of the Applicant with respect to a motor vehicle accident claim against the Nominal Defendant.

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Endnote

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 November 2018