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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roth v Duffett

Details

AGLC: Roth v Duffett [2001] WADC 41
Case: [2001] WADC 41
Decision Date

CaseChat Overview and Summary

Roth v Duffett is a case in the District Court of Western Australia in Perth, where the plaintiff, Michael Rolf Roth, is suing the defendant, Justin Kenneth Duffett, for damages resulting from a motor vehicle accident that occurred on 25 September 1992. The preliminary issue in the case is whether the plaintiff is a "person under disability" within the meaning of O 70 r 1(c) of the Rules of the Supreme Court, as 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. If the plaintiff is deemed a person under disability, the proceedings will need to be paused until a next friend is appointed, all steps taken in the action to date need to be ratified to avoid the possibility of having to commence a fresh action, any proposed settlement of the plaintiff's claim will need to be approved by the court, 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.

The plaintiff has undergone extensive medical treatment, convalescence, rehabilitation, and supplementary medical supervision and assessment following the accident. The court heard conflicting opinions from two experts on whether the plaintiff is able to manage his own affairs. Dr W.P. Merrick, Consultant in Rehabilitation Medicine, expressed the opinion that the plaintiff is not able to manage his own affairs, while Dr P.W. Skerritt FRANZCP, Consultant Psychiatrist, is of the opinion that the plaintiff is able to manage his own affairs. The plaintiff has successfully completed a degree of Bachelor of Engineering (Electronic and Communications) with Second Class Honours and a course in German at the South Metropolitan College of TAFE, manages his own income, bank accounts, credit card accounts, and portfolio of shares, and has travelled alone to the United States.

The court, after hearing the evidence and considering the opinions of both experts, concluded that the plaintiff is aware of the overall importance of the management of his affairs and is capable of managing them in the immediate and short-term future. Therefore, the plaintiff is not a person under disability.

The court will hear counsel on the orders to be made in the case.

Orders