Martin v Ratahi - [2005] WADC 167

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MARTIN -v- RATAHI [2005] WADC 167

CORAM: WAGER DCJ

HEARD: 16 AUGUST 2005

DELIVERED : 26 AUGUST 2005

FILE NO/S: CIV 764 of 2005

BETWEEN: SHARON ANNE MARTIN
Plaintiff
AND
TAMARAU HARRY RATAHI
Defendant

Catchwords:

Practice and procedure - Rules of the Supreme Court O 70 r 1(c) - Whether plaintiff or person under a disability

Legislation:

Rules of the Supreme Court 1971

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr A Maughan
Defendant: Ms C Mould

Solicitors:

Plaintiff: Andrew Maughan
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Masterman‑Lister v Brutton & Co [2003] 3 All ER 162

Case(s) also cited:

Gray v Manolas (2003) 35 SR (WA) 77

WAGER DCJ: This is an application by the defendant to determine whether the plaintiff is a person under a disability incapable of managing her affairs in respect of the proceedings pursuant to O 70 r 1(c) Rules of the Supreme Court.
The plaintiff claims damages for personal injuries caused by a motor vehicle accident on 9 January 2001. It is common ground that she sustained a severe closed head injury that resulted in cognitive deficits.
An affidavit filed by the defendant on 26 July 2005 annexes nine expert medical reports in relation to the plaintiff's medical condition, her level of functioning and capacity from the date of the accident until September 2004 (annexures CLM 1 to CLM 9).
Following testing in 2001 Dr Hunt carried out further neuropsychological tests in 2002 that suggested limited improvement from the plaintiff's previous assessment and indicated continuing cognitive dysfunction particularly within the executive domain (annexure CLM 6).
Dr Merrick stated in his report dated 15 December 2003 (annexure CLM 8) that unexpectedly the plaintiff's neuropsychological tests showed evidence of deterioration and he arranged for a repeat MRI, EEG and psychiatric review. Dr Merrick suggested that until those results were obtained the plaintiff should be regarded as unfit from licensing to drive and incapable of managing her own affairs, and suggested that some form of administrative arrangement, perhaps under the Guardianship and Administration Act should be put in place.
Subsequently in his report dated 1 September 2004 (annexure CLM 9) Dr Merrick noted:
"There are risks with the uncompensated forgetfulness your client suffers. It is characteristic also in patients with this frontal brain damage that they exhibit dysfunctional judgment of people in situations, inevitably tending towards over generosity and often accompanied by the difficulty of resisting the overtures of those who would coerce. It remains my view therefore that in the event of any considerable financial recompense, arrangements, perhaps under the Guardianship and Administration Act or some form of trust should be made for her protection throughout the rest of her life"
On 13 July 2005 the plaintiff filed an affidavit setting out her intention in relation to any financial settlement, and annexing the opinion of Mr Staude, counsel, and the report of Dr Proud dated 15 December 2004.
The plaintiff had sought the advice and services of Mr Lockwood, senior financial planner at Charter Plan Pty Ltd, and she acknowledged the need for some financial assistance in the investment of the proceeds of her claim. Further, the plaintiff had spoken to Mr Staude, counsel, who reported to her solicitor Mr Andrew Maughan in relation to the question of her ability to manage her own affairs for the purposes of conducting her claim that:
"… on the latter point I was satisfied by Sharon's responses to various questions that she understood the various heads of damages and the basis upon which calculations of loss had been made in respect of each, and the matters to be considered in deciding whether or not an offer of compromise should be accepted. She also indicated her understanding of an adverse costs order if an award was recovered after trial, which was less favourable than an offer made by the defendant. Sharon indicated, and it was apparent to both of us that while she could capably give instructions in respect of her claim her ability to make decisions regarding the management of her damages was doubtful in view of her cognitive deficits which effect her memory, concentration and organisational capacity."
Dr Proud concluded that:
"Clinical testing also confirmed my impression that her head injuries, although significant, have not significantly intellectually disabled her to the point that she is not competent to manage her own affairs. Therefore, in my opinion she is competent to manage her financial affairs and she is competent to have the money from the Insurance Commission of Western Australia paid as a lump sum into her care without the need for a public trustee or a similar trustee to manage those funds from the Insurance Commission of Western Australia."
In determining whether the plaintiff is a person under a disability the court must consider whether as a party to legal proceedings she is capable of understanding, with proper explanation from legal advisers, the issues on which her consent or decision are likely to be necessary in the course of the proceedings. Masterman‑Lister v Brutton & Co [2003] 3 All ER 162. The issue relevant to these proceedings is the plaintiff's ability to instruct counsel in relation to the settlement of her claim and to understand the legal ramifications of those instructions.
The plaintiff's ability to deal with the proceeds of her claim is just one of the factors to be considered in determining this application. Mr Staude, counsel, is satisfied that she has the ability to capably give instructions in respect of her claim, a view that is shared by Dr Proud.
The plaintiff clearly accepts her personal limitations in relation to financial management and states at par 8 of her affidavit filed 13 July 2005:
"Whilst I accept that my injuries have resulted in me needing some financial assistance in the investment of the proceeds of my claim, I do not believe that the level of assistance is of any greater amount than any prudent person who received a significant lump sum payment would obtain. I do not believe that I should have my money tied up with the Public Trustee or other institution with little or no input as to the investment of the proceeds of my claim."
Her intention to engage a financial planner is clearly stated.
I do not consider that the plaintiff's cognitive deficits preclude her from understanding the matters explained by counsel in relation to possible settlement, and I consider that she is capable of providing instructions in this matter. I do not consider that a determination pursuant to O 70 r 1(c) Rules of the Supreme Court is required in relation to her ability to manage her affairs in respect of these proceedings. The application is dismissed.