Highfold v HOWARD

[2014] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Civil)

HIGHFOLD v HOWARD

[2014] SASC 67

Judgment of The Honourable Justice Gray

28 May 2014

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - GENERAL

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - OTHER MATTERS

Application for the approval of a settlement reached between the parties to a personal injury claim and for orders as to the appointment of a manager of the plaintiff’s estate.  The plaintiff suffered significant personal injury and ongoing disability when she was struck by a motor vehicle driven by the defendant while riding her bicycle on a footpath.  Liability to pay damages was conceded and the parties reached a settlement whereby the defendant is to pay an amount of $1,049,500.00 in addition to all amounts previously paid by the defendant to and on behalf of the plaintiff.  The defendant has agreed to pay the legal costs of the plaintiff on a solicitor-client basis.

Held (allowing the application):

1.  The settlement reached between the parties is approved.

2.  There is good reason for the plaintiff to be protected by a management order.

HIGHFOLD v HOWARD
[2014] SASC 67

Civil

GRAY J.

1. This is an application for the approval of a settlement reached between the parties. 

2. On 16 April 2014, I made an order approving the settlement and further orders as to the appointment of a manager to take possession of and to control and manage the whole of the estate of the plaintiff.  I now provide my reasons for making these orders.

3. The within proceeding was commenced by the plaintiff through her litigation guardian, the Public Trustee.  The originating summons referred to the plaintiff by the name Melina Highfold, although affidavits purportedly signed by the plaintiff and tendered at the hearing of the present application indicate that the plaintiff now goes by the name Melina Highfold Ward. 

4. The plaintiff was born on 7 September 1994.  When aged 7 years, while riding her bicycle on a footpath, the plaintiff was struck by a motor vehicle driven by the defendant.  As a consequence, she suffered significant personal injury.  In particular, she sustained an injury to her cervical spine, damage to her bladder, a compound right femur fracture and lacerations to her head, face, both feet and right thigh.  The plaintiff also sustained a head injury involving a loss of consciousness, cognitive deficits and a neurological dysfunction in her upper limbs.  She also sustained psychological injury.

5. The plaintiff fortuitously made an unexpected recovery from her cervical spine injury.  However, she has been left with a number of ongoing disabilities as a result of the overall effect of her injuries. 

6. Liability to pay damages was conceded and the parties have reached a settlement whereby the defendant is to pay an amount of $1,049,500.00 in addition to all amounts previously paid by the defendant to and on behalf of the plaintiff, with the one exception that credit was to be given to the defendant in respect of an interim payment of $20,000.00 made to the plaintiff.  In addition, the defendant has agreed to pay the solicitor-client costs of the plaintiff, agreed in the amount of $130,131.07. 

7. Opinion of counsel has been filed in court.  Ms Nelson QC advised that, in her opinion, the settlement summarised above is a compromise in the best interests of the plaintiff and has advised its approval.  Ms Nelson QC outlined the ongoing and permanent disabilities of the plaintiff.  She has been left with a residual deformity in the right femur, some weakness in both hands, a pelvis that is described as being oblique by one centimetre, and a level of atrophy in the muscles of both legs.  She has been left with general aches, pains and muscle tightness in her body.  This affects, in particular, her right knee, her left shoulder and causes some backache.  In addition, she experiences headaches.  She has suffered a loss of self-esteem and has become withdrawn.  As a consequence of her injuries, she has been left with some loss of her ability to perform domestic activities, in her earning capacity and in her ability to engage in recreational activities. 

8. Ms Nelson QC, in her opinion, has assessed the component of future care as calling for an award in the order of $350,000.00.  This sum will allow the plaintiff to have about 7 hours per week domestic support for the balance of her life.  Ms Nelson QC has also allowed $400,000.00 in respect of future loss of earning capacity, noting a need to allow a discount for adverse contingencies.  Ms Nelson QC also noted that a larger than usual discount was called for because of factors that would have impacted on the plaintiff’s earning capacity in any event. 

9. Ms Nelson QC, in reaching her conclusion that the compromise should be approved, had regard to a number of other heads of damage, including pain and suffering, past economic loss, past loss of superannuation, future superannuation, future medical and like expenses, past voluntary services, future equipment, housing modification, Wilson and McLeay damages, and interest.

10. On the hearing of the application, Ms Nelson confirmed her view about the settlement being in the interests of the plaintiff. 

11. There is a further matter to be discussed.  In January 2008, the defendant in the within proceedings commenced District Court proceedings seeking orders for the disclosure and production of documents in relation to the plaintiff.  A District Court Master joined the State of South Australia in the proceedings, ordered the preservation of evidentiary material and appointed the Public Trustee to act as the plaintiff’s litigation guardian.  On 24 August 2012, the District Court Master ordered that the Public Trustee continue as litigation guardian in the District Court notwithstanding that the plaintiff was to obtain her majority on 7 September 2012.  On 11 September 2012, the Master uplifted the District Court action to this Court and the matter came on for hearing before me.  When it became apparent that the Public Trustee had issued the within proceedings, discussion took place as to the appropriate course to be followed. 

12. The plaintiff, her father, solicitors for the defendant and the Public Trustee attended in court and all agreed that the matter be referred to a Judge of this Court to mediate the issues then arising and, in particular, whether the plaintiff should attend medical examinations arranged by the defendant.  The Public Trustee gave an undertaking not to serve the proceedings without the leave of the Court.  The matter was adjourned for the mediation to take place before Sulan J.  Initially, the mediation was to address the question of the plaintiff attending medical appointments arranged by the defendant’s insurer.  The mediation proceeded and, as a consequence, the plaintiff attended the medical appointments.  One of the medical referees, Paul Carney, a neurosurgeon, provided an opinion which included the following:

    I consider it important to note that Melina Highfold has not suffered a significant head injury and does not have any impairment of cerebral function or the high mental function or intellectual function, as a consequence of this accident or any other factor that I am able to determine.  Further, the condition of a Brown-Sequard syndrome as evident here, does not affect intellectual capacity, reasoning power, higher intellectual function in any significant way.  Thus on the basis of the effects of the accident, there is no reason to consider Melina Highfold has any impairment which would affect her legal competence.

    As a consequence of this opinion, an application was made on 8 March 2013 on behalf of the plaintiff by solicitors that she had instructed seeking the termination of the Public Trustee’s appointment as litigation guardian. 

13. On 22 March 2013, Blue J made several orders, including the termination of the litigation guardianship of the Public Trustee.  The Judge, in permitting the plaintiff to proceed, ordered that she was to be represented by Xenophon & Co Solicitors and further ordered that there be no compromise in the proceedings without the approval of the Court.  The Judge further ordered that the plaintiff be at liberty to proceed with the action.  The Judge made other orders directed to the preservation of documents by Families SA, Novita Children’s Services, Whyalla Hospital and Health Services, Children Youth and Family Health Service, the South Australian Police Department, the Department of Education and Children’s Services, and Dr Peter Cundy. 

14. The mediation before Sulan J continued and, at the request of the parties, the mediation was extended to discuss a resolution of the plaintiff’s claim.  The plaintiff was represented throughout the mediation by her solicitor, Mr Jackson of Xenophon & Co, and by Ms Nelson QC.  From time to time, the plaintiff’s father was present.  The defendant was represented by solicitors and counsel.  In the course of the mediation, agreement was reached, the terms reduced to writing and the document signed by the plaintiff and a representative of the defendant.  Mr Jackson and Ms Nelson QC gave advice to the plaintiff prior to the agreement being signed.  This is the agreement the subject of the present application for approval.

15. On the application, the plaintiff was represented by Ms Nelson QC.  The plaintiff did not attend in person.  Her father, Mr Ward, was present in court.  I noticed that as Ms Nelson QC was making submissions and answering questions, Mr Ward was at times demonstrably shaking his head and nodding.  At the conclusion of Ms Nelson’s submissions, I invited Mr Ward to address the Court.  Mr Ward had been present on the occasions in 2012 when I first had dealt with the matter.  At that time, he appeared to link complaints he had against the welfare department with issues concerning the plaintiff’s claim.  He appeared quite unable to separate out the different issues.  To my observation, he appeared to exercise a measure of control over the plaintiff’s activities.  He did not appear to be able to discuss any of the matters in an unemotional, detached or reasonable manner.  I gained the impression that he had an imperfect understanding of the issues, of the legal questions arising and of the need for the plaintiff’s claim to be the subject of proper independent consideration. 

16. On the present application, Mr Ward handed two documents to Ms Nelson QC which in turn were made available to the Court.  Both were affidavits apparently declared by the plaintiff on 15 April 2014.  Ms Nelson QC suggested that the documents were the work of Mr Ward and when I questioned him on that topic, he acknowledged that he had played a role in their preparation, but pointed out that the plaintiff had typed the documents.  I was unable, however, to discern precisely what role Mr Ward played in their preparation.  I find both affidavits to be confusing documents.  They appear to raise complaints concerning what is described as “SCR79 representation”, complaints against the Aboriginal Legal Rights Movement in regard to their involvement in the proceedings, the suggestion that the plaintiff has been taken advantage of in a way that is disrespectful to her immediate family relationships, complaints about emotional pressure being placed upon the plaintiff and complaints about some unpaid monies.  In the course of one of the affidavits, the plaintiff describes her medical condition as being not stable, and says that she is “without a regular General Practitioner doctor”.  It is further said that her relationship with medical authorities and health services remains compromised.  In the second affidavit, there is substantial repetition of some of the earlier material and an assertion that she is not being represented, that she is not being heard and an application to have “those asserting that [she has] mental incapacity to prove that”. 

17. Ms Nelson QC submitted that the plaintiff’s father was, in effect, the person behind the affidavits and that he was intent on pursuing his own interests in regard to some unidentified claim that he has against the welfare authorities.  I am unable to make any findings in this respect, other than to observe that when I invited him to speak to the Court, the plaintiff’s father continued to demonstrate that the concerns that he had raised in 2012 remained.  Those concerns related to his wish for his claims against the welfare authorities to be determined at the same time as his daughter’s claim.  In some way that is unclear to me, he has linked the two issues and, as a consequence, he is unduly interfering in regard to his daughter’s rights and entitlements.  My observations suggest that there is good reason why the plaintiff should be protected by a management order, at least in the short to medium term. 

18. When regard is had to Mr Carney’s earlier extracted opinion, it is apparent that there may come a time when it is appropriate to vary or discharge the protection order.  To my mind, that should not happen until the Court can be satisfied that the plaintiff is able to properly manager her affairs without any inappropriate influences from others.

19. I consider it appropriate to publish these reasons so that my approval of the settlement and of the protection order may be clearly understood.