Farrar v Houlton

[2020] NSWSC 641

Supreme Court

New South Wales

Medium Neutral Citation:	Farrar v Houlton [2020] NSWSC 641
Hearing dates:	In Chambers
Date of orders:	27 May 2020
Decision date:	27 May 2020
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) Ross Farrar is removed as tutor in these proceedings.  (2) No order as to costs.
Catchwords:	CIVIL PROCEDURE — parties — persons under legal incapacity — tutors — application for removal of tutor — plaintiff now has capacity to give instructions — tutor removed from proceedings
Legislation Cited:	Uniform Civil Procedures Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Gail Maree Farrar by her tutor Ross Farrar Philip John Curtis Houlton
Representation:	Solicitors: S Legzdin (Plaintiff) L Robinson (Defendant)
File Number(s):	2017/146485
Publication restriction:	Nil

Judgment

1. The plaintiff commenced proceedings in the Professional Negligence List of this Court on 16 May 2017. At the time she was 55 years of age. She brought the proceedings by her tutor, her husband Ross Farrar. She alleges that she sustained injuries to her throat during an anaesthetic procedure performed by the defendant in 2011 causing severe damage to her airway and exacerbating pre-existing chronic dysphasia as well as triggering a post-traumatic stress disorder.

2. The proceedings are near completion.

3. A notice of motion was filed on behalf of the plaintiff on 29 April 2020 seeking the removal of Ross Farrar as tutor.

4. The reason cited for seeking removal is that the plaintiff herself is now fully capable of managing all of her own affairs and has normal capacity to give instructions to her lawyers regarding this claim.

5. The notice of motion is supported by an affidavit of the plaintiff’s solicitor, Stephen Legzdin, sworn 29 April 2020.

6. The defendant consents to the order sought. In the circumstances I determined that the application could be dealt with on the papers in chambers.

7. When the proceedings were commenced they were supported by an expert report of Dr Patricia Jungfer, Psychiatrist, dated 13 December 2016 reporting on an assessment conducted on the same date. That report evidenced that the plaintiff had developed a chronic post-traumatic stress disorder with intrusive recollected experiences, phobic avoidance behaviour and altered arousal symptoms. Dr Jungfer concluded that the plaintiff had significant impairment in her functioning.

8. In a supplementary report dated 8 May 2017, Dr Jungfer observed that the avoidance behaviour included a reduced ability to respond to communications from her solicitor because this had become a traumatising activity and therefore she was avoiding dealing with those matters. This was a disadvantage in the management of her case since the time of injury and on an ongoing basis. Dr Jungfer concluded that the post-traumatic stress symptoms amounted to a disability that substantially impeded the plaintiff from management of her affairs in relation to the matter since August 2011.

9. A report of Psychiatrist Dr Anne-Marie Rees in May 2018 indicated some improvement. Dr Rees observed that:

“…The legal process is likely to have activated the PTSD in recent times. She is also struggling to deal with interviews and contact related to the case earlier on, but actually managed quite well in interview with me today and did not need her husband to come and help her, demonstrating that her anxiety levels and avoidance issues related to the PTSD are likely to be fairly manageable nowadays”

10. Dr Jungfer reassessed the plaintiff on 11 March 2019 and concluded that the plaintiff has and will continue to have episodes of fluctuation of her psychological symptoms, but the frequency of these is more likely to reduce once the litigation is resolved.

11. A statement of the plaintiff’s tutor and husband Ross Farrar dated 27 April 2020 has been provided in which he observes that his wife has shown improvement and is able to speak about what happened and how she feels. She has managed, with support, to return to some contracting work with the family company. As the case progressed she was able to sit down with lawyers and provide a detailed evidentiary statement, attend further medical examinations and showed an ability and willingness to make decisions about the case and talk with the lawyers about how it should be resolved. He believes he is no longer needed in the role as tutor.

12. A report from the plaintiff’s General Practitioner, Dr Ian Martyn, dated 25 April 2020 stated that in his view, the plaintiff is now fully capable of managing all of her own affairs and has normal capacity to give instructions to her lawyers regarding her claim.

13. Mr Legzdin observed in his affidavit that since he had been involved in the matter (late 2018) he felt that the plaintiff was able to understand the issues, recount the events that had occurred and provide considered responses to questions asked and has not displayed to him any of the avoidance behaviour that had previously occurred.

14. Rule 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) provides that the Court may order removal of a tutor. It is pursuant to that rule that the application is made, submitting that the evidence supports the proposition that the plaintiff is no longer under a legal incapacity and no longer requires a tutor.

15. Both the plaintiff and her tutor have been served with a copy of the application and the tutor has indicated his support for the proposed orders.

16. I am of the view that the order sought in the notice of motion should be made. The evidence clearly supports that the plaintiff is able to make the necessary decisions and give appropriate instructions and is not under any relevant incapacity. It seems to me that the issues present prior to commencement of the proceedings and in the early stages have well and truly passed and the plaintiff no longer needs the assistance of a tutor.

17. I make the following orders:

1. Ross Farrar is removed as tutor in these proceedings.

2. No order as to costs.

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Decision last updated: 27 May 2020