Roth v Duffett - [2001] WADC 41

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ROTH -v- DUFFETT [2001] WADC 41

CORAM: COMMISSIONER GREAVES

HEARD: 19 JANUARY 2001

DELIVERED : 22 FEBRUARY 2001

FILE NO/S: CIV 6347 of 1994

BETWEEN: MICHAEL ROLF ROTH
Plaintiff
AND
JUSTIN KENNETH DUFFETT
Defendant

Catchwords:

Person under disability - Whether plaintiff capable of managing his affairs - Expert evidence of ability to conduct current proceedings - Division of expert opinion about plaintiff's ability to manage substantial award of damages in future - Evidence sufficient to satisfy court plaintiff capable of managing his affairs in the immediate and short term future

Legislation:

Rules of the Supreme Court, O 70 r 1(c)

Result:

Declaration that plaintiff not a person under disability

Representation:

Counsel:

Plaintiff: Mr E M Heenan QC & Mr P B Kakulas
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Kakulas & Kakulas
Defendant: K N Allan

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

Taylor and Walawski; unreported; FCt SCt of WA; Library No. 8992; 9 August 1991

Case(s) also cited:

Nil

COMMISSIONER GREAVES: A preliminary issue has arisen in this case whether the plaintiff is a "person under disability" within the meaning of O 70 r 1(c) because he is a person who by reason of mental illness, defect or infirmity, however occasioned, is declared by the court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates. As Senior Counsel pointed out, if the plaintiff is a person under disability it will not be possible to continue these proceedings unless and until a next friend is appointed; the next friend and, possibly, the defendant will need to ratify all steps taken in the action to date to avoid the possibility that it may be necessary to commence a fresh action; any proposed settlement of the plaintiff's claim will need to be approved by the court pursuant to the provisions of the Rules of the Supreme Court O 70 r 10; and part or all of the damages payable to the plaintiff will need to be paid to a protective trustee to be held on terms of proof by the court for such period as the court may direct. He referred to O 70 r 12(1) in which case any award of damages should contain an additional component for administration expenses occasioned by the appointment of the protective trustee.
Senior Counsel pointed out also that these proceedings were commenced by the plaintiff in his own name and on his own behalf in the belief that he was sui juris. No question arises in this case about the power of the court to determine whether the plaintiff is a person under disability within the meaning of the rule.
In Taylor and 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 judgement, 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."
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."
Senior Counsel expresses the material facts in his outline of submissions as follows:
"9.The Plaintiff Michael Rolf Roth was born on 4 January 1974 and suffered serious injuries in the motor vehicle accident of 25 September 1992 (then aged 18 years and some 9 months) which is the subject of this litigation. At issue in the proceedings is the alleged negligence of the defendant, an allegation of contributory negligence raised by the Defendant against the Plaintiff and the quantification of damages. Although no admissions have been made it seems very probable, on the plaintiff's instructions and the evidence available, that the Defendant will be found to have been negligent and that the important issues at the trial will be the degree, if any, of apportionment because of the alleged contributory negligence and the overall assessment of the Plaintiff's damages. In the court supervised negotiations prior to trial the Plaintiff's solicitors have, on the basis of the schedules of damages filed in the proceedings, been contending for an amount of damages (before apportionment if any) of $1,536,901. That figure has not been accepted by the Defendant who continues to contend for a lower figure (which if the court so directs can be disclosed on a 'without prejudice' basis) but which is, nevertheless, a substantial sum.
10.The Plaintiff has undergone a very lengthy and comprehensive course of hospital and medical treatment, convalescence, rehabilitation and supplementary medical supervision and assessment. Details of the medical treatment and history are to be found in the file of medical reports filed for this hearing (269 pages). A convenient summary of his major injuries can be found in the SCGH report of 12 January 1993 (208-9) and, more comprehensively, in the recent reports of the examining consultant general physician Dr D.O. Watson FRACP dated 20 June, 3 July and 15 August 2000 (at pages 83‑96).
11.While it will, clearly, be necessary to notice the course of treatment and the many investigations and procedures undertaken by the several surgical and medical specialists, including a neurosurgeon, an ophthalmologist, a dermatologist, a plastic surgeon, an orthopaedic surgeon, a urological surgeon and a general surgeon and other specialties, those ranges of interventions have now all been concluded so that no further treatment of that kind is contemplated. The question which remains is whether the Plaintiff, by virtue or the generalised head injury which he sustained, should now be regarded as unable to manage his own affairs. On this crucial issue there are conflicting opinions from: -
• Dr W.P. Merrick, Consultant in Rehabilitation Medicine, who has overseen the overall program for rehabilitation of the Plaintiff and who has expressed the opinion that he is not able to manage his own affairs;
• Dr P.W. Skerritt FRANZCP, Consultant Psychiatrist, who has been treating the Plaintiff and who has expressly been asked to provide an opinion upon his mental ability in the light of this issue, and who is of the opinion that the Plaintiff is able to manage his own affairs.
The report and opinions of Dr David O. Watson (pages 83-96) and the neuropsychologist, Mr Michael Hunt, (pages 74-82) may also bear on this issue.
12.Since his accident and convalescence the Plaintiff has successfully completed a degree of Bachelor of Engineering (Electronic and Communications) with Second Class Honours graduating from Curtin University at the end of 1999. He has also completed a course in German at the South Metropolitan College of TAFE in Ardross during the year 2000. He manages his own modest income (mainly a disability pension from Centrelink) his own bank accounts, credit card accounts and a portfolio of shares. He successfully completed an overseas trip from Perth to the United States (Anchorage in Alaska) via Los Angeles and Seattle alone. When in Alaska he stayed with his paternal aunt but personally attended to all bookings, foreign currency transactions and flight exchanges.
13.the Plaintiff is presently able and licensed to drive a motor vehicle. In December 1996 he successfully completed a senior first aid certificate course by the St. John Ambulance Association. He is self sufficient at home and can attend to all his daily routine and personal requirements. His parents are each confident that he is able to manage his own affairs."
Senior Counsel told me that his researches had not revealed any instance where a question similar to that in this case has arisen in this way. He submitted that the court ought to be principally concerned with the immediate and short-term future, the next five to 10 years.
Dr Merrick spoke about the severity of the plaintiff's injuries in this way:
"I think this one came very close to losing his life. In fact I think many people at the time of his injury was surprised that he survived his injury. I think they were that severe. I describe the injuries to his brain, to the right side of his brain as extensive injuries, extensive contusional injuries, and haemorrhage and it would be really quite reasonable to refer to them as massive rather than extreme in their extent, so he has done a lot of damage to the right side of his brain from the frontal lobes right through to the back of his brain."
Dr Merrick was asked to describe the plaintiff's enduring disabilities now and he said:
"He has the remnants of a left hemiplegia and a bilateral limb dyspraxia with some evidences of disco-ordination in the limbs and imbalance. He had a right third nerve palsy and that resulted eventually in haziness of vision, having initially been causing intermittent diplopia or double vision, but I'm not quite sure at what stage that is now in its recovery. He gets headaches. He gets two types of headaches. He gets headaches when he concentrates that are relievable by the use of simple analgesics, mild analgesics, and he gets more severe headaches that are determined by the fracture that he suffered to his cervical spine. He had a C5-6 fracture dislocation and that causes him quite severe headaches at times that are partially relieved by the use of Panadeine Forte, which is a modestly strong analgesic drug. He had, at an earlier phase, a period when he went through a number of different forms of epileptic seizure. He went though seizures that are referred to adversive seizures and seizures that are referred to as grand mal seizures and he had a very abnormal electro-encephalogram. In other words, the electrical activity of his brain was very abnormal in two ways. Firstly, it showed extensive slow wave activity, which is the result simply of injury to the mantle, the cortical mantle of the brain. Secondly, it showed sharp wave high-frequency electrical activity, which is epileptic or pre-epileptic in its implication. That has settled somewhat in that the epileptiform features are now no longer present in his electro-encephalogram, but he's seen at least two neurologists since this happened to him and it's their combined opinions that he still has an unstable cortex and he will need to take anticonvulsant therapy for the rest of his days. That was a big issue when it came to decision-making regarding his fitness or otherwise to drive a motor vehicle."
Dr Merrick was of the opinion that with professional and family advice, the plaintiff has the cognition and ability to conduct and negotiate the current proceedings. He said, however, that he has concerns about the plaintiff's ability and the calibre of his decision-making over a whole lifetime to effectively manage a sum of money in the vicinity of $1,000,000. It is in that context that Dr Merrick expressed the opinion in his report of 4 December 2000 as follows:
"It is natural that those who are close to this young man, would seek to endow him with a level of personal independence, including financial independence, that is as close as possible to normal. I believe this attitude to be wrong, understandable but wrong; there needs to be in my view a benevolent protective trustee arrangement."
In his evidence before me, Dr Merrick continued:
"The reason why I think there would be difficulty here is because this young man undoubtedly has organic pathology in the frontal lobes of his brain. I'm aware that I'm the odd man out in this opinion and that the other specialists you mentioned before, particularly Dr Skerritt and Mr Hunt, both said that they don't think that there is significant damage to his frontal lobes. But you only have to look at his CT scan to see that he hardly has any right frontal lobe left and sometimes the effects of damage to the frontal lobes is subtle, and it's subtle in this young man's case. It makes him slow and hesitant and indecisive. It might in his decision-making impose impulsivity on him and various other traits that are quite unsuitable when you're called upon to make quick decisions about financial transactions. That was the reason for me remaining with that stance. I hoped that it was going to be supported by Dr Skerritt and I was surprised when it was not."
Dr Skerritt expressed the opinion that the plaintiff is able to manage a sum of money in the range of $1,000,000. He was of course aware of the opinion of Dr Merrick and the reasons for it. Before me he spoke about the issue and the difference of opinion in this way:
"I have great respect for Dr Merrick's opinion and experience and I suppose many of the cases that have formed his experience have probably been the same cases as I have because we worked together for many years and I think this is a very difficult decision. I mean, I remain very concerned about this sort of decision and I suppose the medical way of approaching it is to go for safety's sake which isn't necessarily perhaps the legal view that there might be in protecting his rights to self determination. The problem is we've got a lot of evidence which doesn't all point in exactly the same direction. There is no doubt that he has brain damage along the right side, the frontal and temporal and parietal regions, and that the frontal region does affect forward judgment and planning. There's no doubt about that. The neuropsychological tests are quite consistent with that, in fact down to the details because there are two parts of the overall assessment of somebody's intelligence. They are called the verbal and performance, and there's quite a marked difference of about 20 points between the verbal and the performance, with the verbal being in front, which is exactly what you'd expect with a right-sided injury in that respect, and that would mean that the sorts of tasks that he would find difficult and the sorts of planning would be more in the way of organising things in space rather than of choosing the right words to describe things. Even on the performance side, there were some features which suggested that the way that the actual demonstrated damage translated into neuropsychological abnormality was perhaps less than one might expect. There was a test called the complex figure test which he performed quite well and it's a question of remembering and reproducing rather a complicated figure which is quite a sensitive test of frontal lobe damage, so that was not too bade. So it was certainly in neuropsychological terms very definite, considerably more on the performance than on the verbal side, and so that so far was consistent. Then we find somebody who's got severe brain damage who's gone on to graduate from university and I think that one can't really ignore that fact and conclude that it is absolutely necessary that somebody with those consistent objective findings need necessarily have them translated into performance in the same way. If we ask how he got himself through university, it was because he was very slow and very systematic. I think that sums it up. My impression is that that's the sort of person he always was; that he was always given to orderliness. A great psychiatric writer has written about a tendency to orderliness as a way that many people have of adapting to brain damage; that they'll keep their whole life in a very orderly fashion and it helps them to cope with it. Finally, at a clinical level, when we put aside the various findings and – as I interrogated him at some length about his understanding of the situation and how he would deal with the money and how he would plan it, he did that perfectly well to my satisfaction, and I think if we had that description without any of the foregoing things I don't think there would have been any question that he would've been able to manage it, so along the line from imaging change I his brain through to getting him to describe the actual tasks that are involved, it becomes quite a discrepancy. I think the reason is, firstly, that the performance – the verbal side of his brain is relatively intact. He's got a score of 108 which would barley get you into university, let alone engineering, so he must've had more than that beforehand but nevertheless it's passable. It's enough for him to communicate and to write exams and do those sort of tasks. It was interesting that I asked him about his performance in spatial tasks, which one would think would be very prominent in engineering, and he described designing circuit boards, which he seemed to have little problem with, which again suggested that even the non-dominant, the right-sided damage which was demonstrated, didn't seem to be passing through to performance in that respect. So my conclusion was that if we say this: he certainly has significant damage. There's no question about that at all. It's in the frontal region which we know involves forward planning but nevertheless we've got somebody who graduated from university. We've got somebody who can describe these tasks perfectly well and that his personality has been in his favour as far as producing the maximum psychological adaptation to the organic damage, and that was how I reached my conclusion, which I appreciated was different from Dr Merrick's and I would always have great respect for his opinion in that subject."
All concerned in this case recognised that the task at hand is to say the least difficult. I had the opportunity to listen to the plaintiff speak about himself and his endeavours both academic and practical. What the plaintiff told me and the way he dealt with the questions which he was asked in the formal courtroom atmosphere (given the stress which that may impose), convinced me the plaintiff was aware of the overall importance of the management of his affairs and that he is capable of managing them in the immediate and short term future.
In the end, both Dr Merrick and Dr Skerritt recognise the importance and difficulty of the issue. I recognise that each gave his evidence in the responsible way expected of such eminent experts and expressed their opinions in what each believed to be the best interests of the plaintiff.
I conclude, therefore, that the plaintiff is not a person under disability.
I will hear counsel on the orders to be made.