Re N

[2001] NSWSC 345

CITATION:	Re N [2001] NSWSC 345
CURRENT JURISDICTION:	Equity Division Protective List
FILE NUMBER(S):	SC 103/00
HEARING DATE(S):	17/04/01
JUDGMENT DATE:	17 April 2001
PARTIES :	The names of the parties arer suppressed in cases in the Protective List
JUDGMENT OF:	Young J

COUNSEL :	The proceedings were heard in Chambers without representation
SOLICITORS:
CATCHWORDS:	MENTAL HEALTH [8]- Protection of property- Motor car accident victim- Application by carer for payment of Griffiths v Kerkmeyer damages- Matters to be considered.
LEGISLATION CITED:	Protected Estates Act 1983
CASES CITED:	Re B [2000] NSWSC 44 Re DJR [1983] 1 NSWLR 557
DECISION:	See paras 6 and 7

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROTECTIVE LIST

YOUNG J

TUESDAY 17 APRIL 2001

103/2000 - RE N

JUDGMENT

1 HIS HONOUR: On 2 February 2001, I declared N an incapable person and appointed her husband as manager of her estate. As a result of negligence, N received common law damages by way of a settlement of proceedings in the Common Law Division. The settlement was for a lump sum on a “without admission of liability” basis. In the affidavit of N’s solicitor, tendered to the learned Master who approved the settlement, the figure of $225,000 was detailed as for “past gratuitous care and interest”. The affidavit also said that N’s solicitor had advised N’s husband of his entitlement to make a claim in respect of the past gratuitous care component of the damages subject to the provisions of the Protected Estates Act 1983.

2    The husband has now made such a claim. It is supported by N’s parents and so far as she is able to do so, by N herself. The Protective Commissioner also supports the application, noting that N has complete reliance on her husband, that the verdict was given in a case where there was no deduction for contributory negligence, and the settlement was not one that was the result of any compromise. Further, the figures in the affidavit before the learned Master were, it would seem, negotiated between the plaintiff and the insurer as to what was commercially reasonable.

3    I am accordingly asked to approve the payment of $225,000 out of the estate to the husband in recognition of past gratuitous care.

4 As I have said on previous occasions, see Re B [2000] NSWSC 44 and note (2001) 75 ALJ 213, although Griffiths v Kerkmeyer damages are damages which belong to an injured person and are not subject to any trust, the Court on its protective side may permit the payment out of that person’s estate of an appropriate amount for past care. This may be done where (a) it can be seen to be for the benefit of the person; or (b) it is more likely than not that had that person remained fully capable, that person would have made the payment herself.

5    The fact that N has indicated that she is in agreement with the payment, must of course, be discounted by the fact of her own incapacity to form that judgment.

6 On the facts of this case, the probabilities are that N, had she remained capable, would have made the payment to her husband on whom she is still completely reliant. In view of the circumstances of the case, the probabilities would have been that she would have wished to give her husband the full amount of the Griffiths v Kerkmeyer damages. Indeed, this is more often than not the appropriate sum; see Re DJR [1983] 1 NSWLR 557, 567-8.

7    Accordingly, I give the approval sought by the Protective Commissioner.

****************

Last Modified: 05/04/2001