| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TANNER by his next friend JULIE LEE WHITE -v- BRESLAND [2005] WADC 18 CORAM : SLEIGHT DCJ HEARD : 21 & 28 JANUARY 2005 DELIVERED : 28 JANUARY 2005 FILE NO/S : CIV 3366 of 1997 BETWEEN : LESLIE JAMES TANNER by his next friend JULIE LEE WHITE Plaintiff
AND
MEGAN ELIZABETH BRESLAND
Defendant
Catchwords: Leave to compromise infant's claim - Power to order investing of trust fund beyond infancy - Jurisdiction of District Court to order payment to providers of past gratuitous services
Legislation: District Court of Western Australia Act 1969, s 50(2), s 55, s 57(1)
Supreme Court Act 1935, s 16(1)(d)
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Result:
Orders as per infant plaintiff's application Representation:
Counsel:
Plaintiff : Mr D M Bruns
Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : Yesner & Company
Defendant : B C Sierakowski
Case(s) referred to in judgment(s):
Cadwallender v The Public Trustee [2003] WASC 72
Jones v Moylan (1997) 18 WAR 492)
Jones v Moylan [No 2] (2000) 23 WAR 65
Kars v Kars (1996) 187 CLR 354
Wood v Public Trustee (WA) (1995) 16 WAR 58
Case(s) also cited:
Nil
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1 SLEIGHT DCJ: On 21 January 2005 I made a number of orders approving a compromise reached by the parties to settle the infant plaintiff's claim in the sum of $4,905,000.
2 Paragraph 2 of the application sought orders as follows: "In satisfaction of the plaintiff's claim, the defendant within seven days after service of the order pay: (a) to the Public Trustee in and for the State of Western Australia the sum of $4,750,000 for investment in trust for the plaintiff until the plaintiff attains the age of 21. Such investment not to be restricted to the common fund. (b) to the plaintiff's solicitors: (i) the sum of $115,000 for Julie White the next friend being for past gratuitous services; (ii) the sum of $30,000 for Peter Tanner, the plaintiff's father being for past gratuitous services; (iii) the sum of $10,000 for Lynne Tanner and Peter Tanner Senior, the plaintiff's grandparents being for past gratuitous services (c) There be liberty to apply in respect of investment monies of the plaintiff. 3 I reserved my decision on two issues: 1. Whether I had the power to order that the trust fund be held until the infant plaintiff reached the age of 21 (as opposed to 18); 2. Whether I had the power, and if so, whether I should exercise my discretion to order the payment of the amounts sought for past gratuitous services provided by the next friend (the infant plaintiff's mother), the father of the infant plaintiff, and the infant plaintiff's grandparents.
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Does the District Court have power to make an order that the trust fund be held until the plaintiff reaches the age of 21?
4 Order 70 r 12(1) provides for the payment of the amount of money so ordered to be paid to the Public Trustee for investment "on behalf of the person under disability". 5 In my view this suggests that the investment is only whilst the person is under disability. 6 In Cadwallender v The Public Trustee [2003] WASC 72 Heenan J at [45] stated: "It follows from these considerations that the only justification for the legal estate in the trust fund to be held and administered by the trustee is the protection of the disabled person rendered necessary by his or her own incapacity. Such an incapacity deemed to exist by reason of infancy alone will disappear on the beneficiary attaining the age of majority, and then the beneficiary will be entitled to call for the transfer of the entire corpus of the trust estate". 7 Later at [48] Heenan J stated as follows: "The rule in Saunders v Vautier may only be invoked by a beneficiary who is sui juris, that is of full age and without capacity, but if sui juris, I see no reason why such a beneficiary should not be entitled to apply to the court which established the trust at some time in the past when he or she was disabled, and on the proof of the passing of that disability, demand, as of right, the termination of the trust, and the transfer absolutely of the trust property". 8 The plaintiff in this matter is an infant person under disability by virtue of his age. He becomes sui juris at the age of 18. 9 The next friend swore an affidavit on 14 January 2005 and in par 8 explained the reasons for seeking the order that the settlement proceeds be held until the age of 21 as follows: "(a) In addition to the plaintiff being rendered a quadriplegic, my son has also sustained a mild head injury which has caused some subtle brain impairment.
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(b) I have read the report of Beverley Green, psychologist, dated 13 January 2003, and the reports of Carmela O'Connor, clinical psychologist, dated 15 August and 7 November 2004 which referred to the fact that the plaintiff is vulnerable to emotional disturbances. (c) Arising from the plaintiff's disability my son does not have many friends. I am concerned to protect him from any situation where he could be financial taken advantage of by 'so called friends'. (d) My other son, Shannon White, currently aged 22 was between the age of 18 and 20, somewhat immature when it came to making financial decisions. My other son, Ashley White, currently aged 19 has followed the same pattern as his brother Shannon. I am concerned that the plaintiff may follow the same pattern". 10 The infant plaintiff on admission to hospital had mild cerebral oedema and a CT scan demonstrated damage in the left temporal lobe. However a report on an MRI conducted on 24 November 2004 concluded that there was no present evidence of intracranial injury and no morphological abnormalities were demonstrated. 11 The reports of Beverly Green, psychologist, dated 13 January 2003 and Carmela O'Connor dated 15 August and 7 November 2004 indicate that the infant plaintiff has suffered mild cognitive deficits, the full extent of which will not be known until he has reached adulthood. Also there is evidence to suggest that the infant plaintiff has suffered emotionally as a result of his severe injuries, and is at increased risk of developing severe psychological problems. 12 However, notwithstanding such conditions, the overall assessment does not indicate that the infant plaintiff will suffer a mental illness such as to make him incapable of managing his affairs. For the purposes of these proceedings he has been treated as a person under disability as defined in O 70 r 1 by virtue of his infancy, not his mental incapacity. 13 Of course, the amount of the award raises some concern as to the ability of an 18-year-old to prudently manage the funds. However, in my opinion the infant plaintiff has the right to demand the transfer of the funds on attaining 18 years, and therefore I should not make an order for investment of the funds beyond the age of 18.
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Payment for gratuitous services
14 The question of whether the District Court has jurisdiction to make an order as sought by the next friend is a matter of some uncertainty. 15 It is clear that the Supreme Court has such jurisdiction based upon the power and duty to protect the interest of a disabled person under the Supreme Court's role as parens patriae and especially as a result of s 16(1)(d) of the Supreme Court Act 1935 (see Morris v Zanki by his next friend Zanki (1997) 18 WAR 260). 16 Section 57(1) of the District Court of Western Australia Act 1969 provides as follows: "The several rules of law and equity enacted and declared by the Supreme Court Act 1935, shall, unless express provision is otherwise made in this Act, be enforced and take effect in the court, so far as the matters in which those rules relate are respectively cognisable by the court". 17 Order 70 r 12(2) provides in relation to the control of money invested for a person under a disability as follows: "The court may at any time, and from time to time, give directions for the application of the income or of the capital and the income of the investment for the maintenance, welfare, advancement, or otherwise for the benefit of the person under disability". 18 McKechnie J in Jones v Moylan [No 2] (2000) 23 WAR 65 at 79 expressed the view, obiter, that the District Court lacks jurisdiction to make such an order. His Honour stated that the power to make an order was not incidental to the equitable powers given under the District Court of Western Australia Act 1969. 19 Section 55 of the District Court of Western Australia Act 1969 provides as follows:
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(a) to grant, and shall grant, in the action or matter such relief, redress or remedy, or combination of remedies, either absolute or conditional; and (b) to make any order that could be made in regard to any action or matter, and shall in each such action or matter give such and the like effect to every ground of defence or counterclaim equitable or legal, in a full and ample manner as might and ought to be done in the like case by the Supreme Court or a Judge thereof." 20 This section must be read with s 50(2) of the District Court of Western Australia Act 1969 which provides as follows: "(2) The Court has the same jurisdiction to hear and determine, and may exercise all the powers and authority, that the Supreme Court has and may exercise from time to time in relation to all personal actions making a claim for damages in respect of the death of or bodily injury to a person and in relation to all proceedings arising with respect to those personal actions under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947." 21 In my opinion the combination of these provisions is that the District Court does have authority to make an order of the type sought by the next friend in this matter as being incidental to the court's jurisdiction in personal injury matters providing that it can be said that the orders are for the benefit of the infant plaintiff. There is ample authority supporting this view (see Jones v Moylan (1997) 18 WAR 492); Wood v Public Trustee (WA) (1995) 16 WAR 58 at 64).
Exercise of the discretion 22 The relevant facts in this matter are as follows: 1. The infant plaintiff was born on 21 October 1992. He was involved in a tragic car accident on 22 January 1996 in which he suffered damage to the spinal cord at C6/7 level, and which has left him a tetraplegic with a profound loss of useful function of the right hand and weakness evident in the left hand;
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2. At the time of the accident, the infant plaintiff was aged 4 years and he is now 12 years; 3. The infant plaintiff remained in hospital for six months after the accident and there have been other periods of hospitalisation, but the bulk of the care of the infant plaintiff has been provided by his mother, the next friend; 4. Mrs White has performed such tasks as helping the infant plaintiff with the catheterisation process, helping him with transfers, helping him with bowels, massages, leg stretches, helping him with standing in a standing frame, and attending his many needs. She has had to take the infant plaintiff to many medical appointments and other examinations. She is on call during the night and attends the infant plaintiff on many occasions for example to roll him over, attend to bladder and bowel accidents. 23 She refused assistance for the infant plaintiff's care from paid agencies until the end of February 1999. She did this because she felt a special responsibility to personally care for her son, and the only persons she trusted was the infant plaintiff's father, Peter Tanner, and his parents Lynne and Peter Tanner Sr. 24 Mrs White lives with the infant plaintiff and her two older children, Shannon and Ashley White. 25 Mrs White has sworn a comprehensive affidavit which details the extent of the care provided by her, her husband and his parents. She has assessed the contribution to the gratuitous services as follows: Mrs White 85.7% Mr Tanner 11.1% Grandparents 3.4% 26 As this matter has been settled without the claim going to trial there is no specific allocation in the compromise sum for past gratuitous services. However, I note that in the opinion of Mr David Bruns, which is exhibited to the affidavit of the next friend in support of the application for leave to compromise, that the plaintiff's solicitor allowed in a prepared schedule of damages $311,000 for past gratuitous services, and the defendant's solicitors in their schedule of damages allowed $303,000.
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27 The amount being asked to be paid directly to persons providing the past gratuitous services is $155,000. This represents approximately one half of the amount allowed by the plaintiff and the defendant in their respective calculations as to past gratuitous services. Counsel appearing on behalf of the defendant has described the application for payment direct to Mrs White, and Mr Tanner and Mr and Mrs Tanner Sr as "eminently fair" in all the circumstances.
28 I have no doubt that the amount being sought by Mrs White, Mr Tanner and the grandparents is very fair and a conservative claim. It is well below what would be a commercially appropriate recompense for the gratuitous services provided. 29 The law in Australia is now clear that amounts awarded to the plaintiff for services provided gratuitously are damages awarded to the plaintiff, and not a legal entitlement of the provider of the services (see Kars v Kars (1996) 187 CLR 354 at 372). However, it has been well recognised that there is a very strong moral obligation for an infant plaintiff to make some recompense for the gratuitous services provided. It was recognised in Jones v Moylan (No 2)(supra) (see McKechnie J at 88) that there are a number of reasons why persons who provide gratuitous services should receive some recompense: 1. Persons who provide gratuitous services should be encouraged and supported, and that the moral obligation owed to them should be recognised where possible; 2. It is in the interests of the infant plaintiff and the public that gratuitous services continue, and one measure of providing encouragement that these services continue, is to provide some recompense. 30 Another issue which arises in such an application is whether the next friend has a conflict of interest. 31 As observed by Wallwork J in Jones v Moylan (1997) (supra)the conflict is often apparent rather than real (at 504). However, Wallwork J at 506 went on to say as follows: "Applying the above comments, it is my view that, in a case like this where a parent is the next friend and the carer at the same time, a court has a duty to consider the best interests of the injured person. That requires the court, in my opinion, to make a judgment after hearing the evidence which the next friend wishes to put forward. I think that should be done orally with
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the opportunity being offered to the Crown, if it wishes, and having in mind its historical role in these matters, to cross-examine and to call evidence. The court could then decide any 'conflict' questions if they arise in accord with the best interests of the injured person." 32 In this matter I am clearly of the view that it is in the best interests of the infant plaintiff to pay the amounts sought to be paid to the carers. I reached this conclusion for the following reasons: 1. In this case Mrs White has provided long and emotionally draining support to the infant plaintiff, and at some considerable personal and psychological cost. According to a medical report of Dr Jane Fitch dated 9 November 2004, Mrs White has suffered depression, fatigue and frustration as a result of her providing care to the infant plaintiff. She is likely to receive a boost from the payment proposed. She is in need of psychological counselling and the benefits of this will flow to the plaintiff; 2. The plaintiff has a moral obligation which these orders will fulfil. In a broad sense it is to the benefit of the infant plaintiff that he fulfil the moral obligation that exists; 3. The payments are likely to be a boost to all carers. It provides a recognition of their dedication to the infant plaintiff and their efforts in the past. This is likely to increase their willingness to continue to assist the infant plaintiff in the many difficulties that are likely to be faced in the future in caring for such a severely disabled young man. 33 Also I have taken into account the size of the trust fund and the modest nature of the claim being made. 34 Having concluded that the payments sought to be paid to the carers are in the best interests of the infant plaintiff, I do not believe further steps are necessary to resolve any apparent conflict of interest.
35 Taking into account all these factors, I am prepared to make orders in terms of par 2 of the application save that as to par 2(a) the order is that the sum to be paid to the Public Trustee of $4,750,000 is to be "for investment in trust for the plaintiff until the plaintiff attains the age of 18 such investment not to be restricted to the common fund".
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