| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GRAY -v- MANOLAS [2003] WADC 205 CORAM : COMMISSIONER GREAVES HEARD : 20 & 28 AUGUST 2003 DELIVERED : 25 SEPTEMBER 2003 FILE NO/S : CIV 3113 of 2002 BETWEEN : GLENICE ANNE GRAY Plaintiff
AND
PATRICIA MARY MANOLAS
Defendant
Catchwords: Person under disability - Whether plaintiff capable of managing her affairs in immediate and shortterm future - Long reliance of plaintiff upon family members and solicitors in managing her financial affairs and these proceedings - Likelihood of undue influence being exerted upon plaintiff - Medical opinion divided on ultimate issue - Facts establish plaintiff not capable of managing her affairs in respect of these proceedings
Legislation: Supreme Court Rules, O 70 r 1(c)
(Page 2)
Result:
Declaration that plaintiff a person under disability Representation:
Counsel:
Plaintiff : Mr P B Kakulas
Defendant : Mr D R Sands
Solicitors:
Plaintiff : Kakulas & Kakulas
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2002] WASC 72
Roth v Duffett [2001] WADC 41
Taylor v Walawski; unreported; FCt SCt of WA; Library No 8992; 9 August 1991
Todorovic v Waller (1981) 150 CLR 402
Case(s) also cited:
Fry v Fry (1890) 15 PD 50
Jarvinen v Minister for Health (WA) (1998) 19 SR (WA) 338
Jones & Anor v Moylan (1997) 18 WAR 492
Morris v Zanki (1997) 18 WAR 260
Porter v Porter (1888) 37 Ch. D. 429
Rhodes v Swithenbank (1889) 22 QBD 577
Smith v Reynolds & Ors [1989] VR 309
Wickens v Wickens [1952] 2 All ER 98
Wood v Public Trustee (WA) (1995) 14 WAR 251
(Page 3)
1 COMMISSIONERGREAVES: This preliminary issue comes before the Court consequent upon the order of the learned Deputy Registrar in order that the Court may determine whether the plaintiff is a "person under disability" within the meaning of O 70 r 1C because she is a person who by reason of mental illness, defect or infirmity, however occasioned, is declared by the court to be incapable of managing her affairs in respect of the proceedings commenced in her name in the belief that she was sui juris.
2 In Taylor v Walawski; unreported; FCt SCt of WA; Library No 8992; 9 August 1991, Murray J spoke of the purpose of an application such as the present when he said at p 21 of his reasons: "It is an order which is designed, whether the Court acts of its own motion to make the declaration or is so moved by an application upon which is presented evidence of disability of a relevant character, to ensure that the Court has the assurance that there is someone of full capacity, answerable to the Court on behalf of the disabled litigant, so that crucial decisions in the course of the litigation are properly and responsibly made, that there is an assurance that the interests of the disabled person are responsibly provided for after judgment, and that, for the sake of the defendant, if necessary there is some responsible person who can bear the costs ordered to be paid by the disabled litigant: State Rail Authority of New South Wales v Hammond (1988)15 NSWLR 395, 400." 3 In that case, his Honour was of the view that there was no, or insufficient evidence, capable of sustaining the conclusion adverse to the respondent that she was incapable of managing her affairs in general terms so as to deprive her of the capacity to exercise full power of control over the award made in her favour for an indefinite period. He continued: "Nor can I see any need for such an application by the respondent. She could always voluntarily establish an appropriate trust. In my view, a court even having such a power, or to hesitate long before making orders of this character which deprive the respondent absolutely of the capacity to manage her own affairs subject only to the reserve liberty to apply." 4 As E M Heenan J pointed out in Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2002] WASC 72 at [5], the issue is one of fact and requires the court to make findings of fact. For
(Page 4)
that purpose in this case, oral evidence has been adduced from the plaintiff, her former sister-in-law and a number of eminent medical practitioners. His Honour also observed (at [29]) that it is important to appreciate the broad nature of the jurisdiction and its capacity to respond to any necessitous circumstance involving persons unable, for reasons of disability, to care for themselves. One should not treat the jurisdiction as having any rigid components or applying differentially to situations where an infant or disabled plaintiff is seeking, or has recovered, damages for personal injuries. His Honour went on to say at [31] of his judgment that Rules of the Supreme Court, O 70 is to be read and applied having regard to the nature and purpose of the jurisdiction rather than as a code. 5 In this case, I propose to adopt the approach that I considered to be applicable to the circumstances revealed by the evidence in Roth v Duffett [2001] WADC 41. The Court should consider whether the plaintiff is capable of managing her affairs in respect of these proceedings in the immediate and short-term future, the next five to 10 years. If the plaintiff is found to be capable of managing her affairs in respect of these proceedings, it is a fundamental principle of the law of damages that the Court has no concern with the manner in which the plaintiff uses the damages awarded and the plaintiff is free to do what he or she likes with them: Todorovic v Waller (1981) 150 CLR 402 at 412 per Gibbs CJ and Wilson J, Luntz, Assessment of Damages for Personal Injury and Death 4th ed at [1.1.11] and [11.4.1]. If the plaintiff is incapable of managing her affairs in respect of these proceedings, then in the immediate and short-term future any award of damages to the plaintiff must remain under the supervision of the Court in its inherent jurisdiction encapsulated in Rules of the Supreme Court O 70 and ultimately by the establishment of a protective trust. 6 Counsel for the defendant submitted in this case and I accept that the Court is not required to determine whether the plaintiff is capable of managing any award of damages, but is required to determine whether the plaintiff is capable of managing her affairs in respect of these proceedings. In making that determination upon the evidence, it may be relevant to consider on the evidence the plaintiff's capacity to make financial decisions in the immediate and short-term future. 7 The plaintiff was born on 2 March 1945. She suffered injuries in the motor vehicle accident of 5 March 1998 which is the subject of these proceedings. Particulars of those alleged injuries are contained in par 5 of the statement of claim:
(Page 5)
"(a) Head injury with associated dizziness and headache;
(b) Trauma to the right ear with associated tinnitus and sensitivity to noise or cold weather; (c) Right extradural haematoma; (d) Fracture of the mastoid process of the temporal lobe; (e) Loss of taste and smell; (f) Trauma to the jaw; (g) Facial palsy; (h) Trauma to the cervical spine; (i) Post concussion syndrome; (j) Trauma to the right shoulder with associated pain and weakness of the rotator cuff; (k) Trauma to the right arm and hand with associated reduction of strength; (l) Trauma to the mid and low back; (m) Trauma to the right hip; (n) Trauma to the right knee; (o) Trauma to the left heel; (p) Trauma to the right eye with associated sensitivity to bright light; (q) Bruising to the right elbow, right knee and both ankles; (r) Depression and anxiety"
8 The injuries relevant to the present proceedings are primarily those particularised in sub-pars (a), (b), (c), (d) and (r). It is the extent of the disability arising from these injuries on the evidence as a whole which requires determination in this case. At par 8(a) to 8(d) of the statement of claim, the plaintiff provides the following particulars of her residual disabilities:
(Page 6)
"(a) From the date of the collision until approximately May 1999 the Plaintiff suffered from constant headaches with associated bouts of dizziness and problems with balance. Travelling in a vehicle exacerbated these symptoms. Since May 1999 the Plaintiff has suffered from severe headaches on average twice weekly. The severity of the headaches is often such that she is rendered bedridden. The Plaintiff is also sensitive to bright lights and if she is subjected to bright lights she experiences a sharp pain behind the right eye. In addition to the severe headaches which occur on average twice weekly, the Plaintiff wakes with a headache most mornings. Physical activities exacerbate the headaches. The Plaintiff continues to suffer from bouts of dizziness on average once per fortnight. On occasions the dizziness is associated with nausea. (b) The Plaintiff experiences intermittent episodes of double vision. (c) The Plaintiff suffers from motion sickness even when travelling short distances. (d) As a result of the head injury the Plaintiff suffers from poor concentration, irritability and poor memory. Her mental function is impaired and she experiences problems with such things as spelling simple words and doing simple arithmetic calculations. She is very forgetful and is overwhelmed by even small organisational tasks. She experiences difficulty following the plot of a television show. Her forgetfulness results in her leaving appliances such as the stove on. She experiences problems judging the speed of traffic and is easily confused when trying to drive or when attempting to cross a road." 9 The plaintiff has undergone a lengthy and comprehensive course of hospital and medical treatment, convalescence, rehabilitation and supplementary medical supervision and assessment. On 6 March 1998, she underwent a CT investigation of the brain which revealed the right extradural haematoma and a fracture through the mastoid process of a portion of the right temporal lobe. On 25 May 2002, the plaintiff underwent MRI investigation of the brain which revealed right inferior
(Page 7)
frontal lobe and anterior temporal lobe surface contusions and ischaemic damage from microvascular disease. 10 At T5 counsel for the plaintiff said the concern of all is that the plaintiff may be someone who could be vulnerable to others when dealing in financial matters. The plaintiff gave evidence she was divorced some 10 years ago and subsequently formed a de facto relationship with Mr Campbell-Henderson which came to an end in September 2001. She said she took out a loan to cover the balance of the purchase price of her Cleaver Street town house and her motor vehicle. The loan was initially $15,000. The plaintiff operated a joint account with Mr Campbell-Henderson. She gave evidence that Mr Campbell-Henderson wrote cheques on the joint account which increased the outstanding balance of the loan to approximately $50,000. She said when she realised what had happened she asked her sister-in-law Glenys Roberts to help her to instruct the bank to prevent further drawing on the loan account. Her sister-in-law recommended that she and Mr Campbell-Henderson should cut up their credit cards. The plaintiff gave evidence the current outstanding balance of this loan is $45,770.31, which she was able to identify in the bank statement. She said she is required to pay a minimum of $252 per month to maintain the loan. She said she currently pays $270 per month. She was able to identify the interest rate applicable. 11 The plaintiff required Mr Campbell-Henderson to sell the Jeep Cherokee the purchase of which he had funded from the loan account. It appears her purpose was that they should purchase two smaller cars. The plaintiff subsequently found Mr Campbell-Henderson had taken out a further loan for the purchase of his vehicle. For some months the plaintiff made repayments under that loan until her sister-in-law recently advised her to cease such repayments. 12 The plaintiff gave evidence that from 2 February 2001 she has operated a BankWest Reward Plus account which requires a minimum credit balance of $2,000. She said her Centrelink payments and her small salary is paid into this account. She said she checks the balance in the account each week at the ATM. She said she runs the account herself. She said if she has to make an incidental payment for council rates, sometimes her son will lend her the money and she pays him back. She said she pays most of her bills at the Post Office. She does not operate a cheque book account. She said (T27) she pays her bills as soon as they come in because she is too frightened to leave them because she might forget.
(Page 8)
13 The plaintiff went on to explain how she instructs her tax agent to prepare her annual tax return. The plaintiff went on to explain why she was giving evidence (T32). She said she was giving evidence because some of the doctors think she cannot handle her affairs. She said she knew she is not the best person in the world with money, but she thought she could do it. She says she asks her family for help when she needs it. She has discussed with her sister-in-law what she might do with any award of damages she might receive. She wishes to pay off her debts. She plans to speak to a financial adviser from the bank with her sister-in-law.
14 The plaintiff explained how she cared for her daughter's children for a few months while her daughter was seriously ill. 15 At T79 the plaintiff made it clear that she relies upon her solicitors in relation to quantum of damages. She said her solicitors had discussed with her how much she might receive, but she had no idea now. In cross-examination, she went on to say (T81) she thought her solicitor would decide whether she should accept any offer in settlement of her claim. She said she expected her sister-in-law to be present at any settlement conference. She said her sister-in-law plans to leave Western Australia for Tasmania shortly and thereafter the plaintiff said she could get her daughter to help her. She sees her daughter about twice a week. 16 The plaintiff's sister-in-law, Mrs Glenys Roberts, gave evidence. She confirmed much of the evidence of the plaintiff and the role that she has played in helping the plaintiff over the last six years both in relation to her financial affairs and these proceedings. It is clear Mrs Roberts has had and continues to have a very close involvement in the management of the plaintiff's affairs. At the same time, she confirms she has had no involvement in the day-to-day control of the plaintiff's bank account. Her involvement has at all times been in relation to the structure of the plaintiff's financial affairs. 17 At T124 I asked Mrs Roberts how she thought the plaintiff would cope if she were subjected to undue influence. She said she had thought about it a lot and discussed it with the plaintiff a lot, because she saw that as the only risk. In short, she thought a second signatory to the plaintiff's bank account was required. She said she thought that would make the plaintiff feel secure, because she was concerned Mr Campbell-Henderson "could put pressure on her for money" (T126). Mrs Roberts said she believed she could act as a second signatory to the account for large sums over a given amount, from Tasmania. In cross-examination, (T131),
(Page 9)
Mrs Roberts made it clear that the plaintiff is of course abiding the decision of the court. They have discussed the potential appointment of a protective trustee. If the plaintiff is found to be capable of managing her affairs in respect of these proceedings, then she and the plaintiff have discussed making arrangements with Wealthsure to put in place arrangements for the management of the plaintiff's funds. 18 As I have observed, it is relevant to consider on the evidence of the plaintiff herself and Mrs Roberts the plaintiff's capacity to make financial decisions in the immediate and short-term future. I find on their evidence that for the last six years Mrs Roberts has had a close and continual involvement in the management of the plaintiff's financial affairs. I find on their evidence that Mrs Roberts has had a similar involvement in the management of these proceedings, including regular attendances upon both medical and legal practitioners. At the same time, I find that in the face of adversity the plaintiff has increasingly controlled her day-to-day affairs, particularly over the last two years. I find the plaintiff seeks help from Mrs Roberts or her son or daughter when she requires it. I find that the plaintiff and Mrs Roberts are both aware of the contingency that undue influence might be exerted upon the plaintiff if she is in receipt of a substantial award of damages. In my opinion, they have properly reached that conclusion from their experience involving the events which took place in the relationship between the plaintiff and Mr Campbell-Henderson. Mrs Roberts is concerned similar influence might be exerted again. I find that in the absence of Mrs Roberts, the plaintiff would not have been capable of restructuring her financial affairs in the last two to three years. 19 I reach very much the same conclusion in relation to the conduct of these proceedings. I find on the evidence of the plaintiff and Mrs Roberts that the plaintiff has desired and required the help and comfort of Mrs Roberts in the conduct of these proceedings. Given the nature of the plaintiff's injuries and her medical treatment over a prolonged period of time and her residual disabilities, this is perhaps not surprising. It is, however, equally apparent that the plaintiff has been dependent upon Mrs Roberts and her solicitors to conduct these proceedings for her and that the plaintiff expects them to continue these proceedings and bring them to a conclusion in her best interests. Having said that, I do not wish to detract from the plaintiff's contribution to her own recovery and her desire to benefit from that to the greatest extent possible. 20 The medical opinion in this case is eminent and divided in relation to the ultimate issue. It is, however, for the Court to determine the ultimate
(Page 10)
issue upon the facts found, assisted as necessary by the expert opinion. In view of the facts established by the evidence, it is unnecessary to resolve the difference of opinion that exists between the experts in relation to the ultimate issue. It goes without saying that the doctors all recognised the difficulty in the determination of the ultimate issue and offered their respective opinions in the interests of the plaintiff upon the information available to each of them. 21 Dr Paul Skerritt expressed the opinion (T61) that anxiety and depression both affect the efficiency of brain function. He noted the plaintiff gave accounts of getting flustered and muddled very easily. He considered such a predicament would make it difficult for the plaintiff to represent herself properly and to manage her affairs (T61). Subsequently, Dr Skerritt expressed the opinion that the plaintiff is not capable of managing her affairs and referred to the extent to which the plaintiff had relied on her sister-in-law as a factor which led him to conclude the plaintiff would have difficulty in making decisions for herself. He added (T66): "I think in saying that I was really going for safety really, I think I was looking at the safe option of her global disturbance, not getting her into financial troubles." 22 Dr Skerritt concluded (T67) that "as head injuries go it wasn't a very severe one. The question is whether it has a subtle interaction with the so-called functional symptoms that she has." He believed it has. 23 I conclude, therefore, on the facts established by the evidence as I have found them and in accordance with the opinion of Dr Skerritt that the plaintiff is not capable of managing her affairs in respect of these proceedings in the immediate and short-term future as I have described it. I will make a declaration accordingly.
|