Pratt v Dickson

[2000] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:	Pratt v Dickson [2000] QSC 314
PARTIES:	TANYA RENEE PRATT (plaintiff/respondent) v DEBORAH LOUISE DICKSON (first defendant/first applicant) and FAI GENERAL INSURANCE COMPANY LIMITED (ACN 000 327 855) (second defendant/second applicant)
FILE NO:	S4120 of 2000 (Brisbane Registry)
DIVISION:	Trial Division
DELIVERED ON:	18 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	8 September 2000
JUDGE:	Mullins J
ORDER:	The application is dismissed.
CATCHWORDS:	PROCEDURE – Person under legal incapacity - Application by one party for appointment of a litigation guardian for the other party.
COUNSEL:	R J Lynch for the applicants M P Van Der Walt for the respondent
SOLICITORS:	McInnes Wilson Lawyers for the applicants Laurie Watling for the respondent

1. MULLINS J:  The respondent who was born on 3 February 1981 commenced this proceeding on 11 May 2000 claiming damages for negligence and/or breach of duty arising out of a motor vehicle accident which occurred on 21 December 1998.  According to the respondent's statement of claim the respondent was driving her vehicle in an easterly direction on Rowley Road, Burpengary when the first applicant was driving her vehicle in a westerly direction upon the same road when both vehicles collided head on causing the respondent to suffer personal injury.  The second applicant is the compulsory third party insurer of the first applicant's motor vehicle pursuant to the Motor Accident Insurance Act 1994.

1. The applicants apply for a litigation guardian to be appointed on behalf of the respondent. Rule 95 of the UCPR (which was amended by SL2000 No127) provides:

"95.  (1)  Unless a person is appointed as a litigation guardian by the court, a person becomes a litigation guardian of a person under a legal incapacity for a proceeding by filing in the registry the person's written consent to be litigation guardian of the party in the proceedings.

(2)  If the interests of a party who is a person under a legal incapacity require it, the court may appoint or remove a litigation guardian or substitute another person as litigation guardian."   

The application is opposed by the respondent.

1. The applicants rely on what is pleaded in the statement of claim and reports obtained by them from the Acquired Brain Injury Outreach Service report dated 15 September 1999, report of consultant psychologist Robyn Murray dated 11 July 2000 and report from Dr Hazelton, director of the Brain Injuries Rehabilitation Unit at the Princess Alexandra Hospital dated 10 August 2000.

1. It appears that after the accident the respondent was admitted to the Royal Brisbane Hospital from where she was transferred to the Brain Injuries Rehabilitation Unit at the Princess Alexandra Hospital on 29 March 1999.  She emerged out of post-traumatic amnesia on 9 June 1999.  On 6 August 1999 she was discharged to her parents' home. 

1. The applicants rely on the nature of the injuries suffered by the respondent which are pleaded as including severe head injury, frontal lobe brain damage and direct trauma injury to the brain.  It is pleaded in paragraph 7(iii) of…