Thomas James Murray by his Next Friend and Mother Rebekah Murray v Murray
[2020] WADC 62
•11 MAY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: THOMAS JAMES MURRAY by his Next Friend and Mother REBEKAH MURRAY -v- MURRAY [2020] WADC 62
CORAM: LEVY DCJ
HEARD: ON THE PAPERS
DELIVERED : 11 MAY 2020
FILE NO/S: CIV 2371 of 2018
BETWEEN: THOMAS JAMES MURRAY by his Next Friend and Mother REBEKAH MURRAY
Plaintiff
AND
JAMES THOMAS MURRAY
Defendant
Catchwords:
Practice and procedure - Offer to compromise - Appointment of trustee
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application for approval of compromise granted and appointment of trustee granted
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Bradley Bayly Legal |
| Defendant | : | Tottle Partners |
Case(s) referred to in decision(s):
Morris v Zanki (1997) 18 WAR 260
Sosa v Carter [1978] WAR 123
Trout v Minister for Health [2012] WADC 172
LEVY DCJ:
Thomas James Murray (the plaintiff), by his next friend and mother Rebekah Murray, has brought an application by chamber summons seeking leave to compromise his claim against his father, James Thomas Murray (the defendant). The proposed compromise of his claim seeks orders that include:
•judgment be entered for the plaintiff against the defendant in the sum of $11,589.914 inclusive of trustee fees;
•the defendant pay the plaintiff's legal costs and disbursements of the action fixed in the sum of $210,000; and
•Australian Executor Trustees Limited (ABN 84 0047 869 794) (AET) be appointed trustee of the plaintiff's trust fund until further order of the court.
The accident and injuries suffered by the plaintiff
The plaintiff is 21 years old. His claim arises as a result of injuries that he sustained in an accident that occurred on 17 July 2017 whilst a front seat passenger in a motor vehicle driven by the defendant. The accident arose from the negligent driving of the motor vehicle by the defendant on Grand Promenade in Bedford, Western Australia. The negligent driving by the defendant caused the vehicle to veer across a median strip onto the incorrect side of the road and collide with an oncoming vehicle. The driver of the other vehicle was fatally injured as a result of the collision.
At the time of the accident the plaintiff was a first year student at the University of Western Australia. He had completed the first semester of a Bachelor of Science degree. The plaintiff had aspirations of becoming an actuary.
The plaintiff suffered multiple injuries in the collision, including, but not limited to:
•A severe traumatic brain injury
•Cerebral hypofusion with hypoxic injury to the brain
•Multiple pelvic fractures
•Grade 3 laceration of the spleen
•Grade 1 hepatic laceration
•Left haemopneumothorax
•Bilateral pulmonary contusions with left upper lobe pneumatocele
•Multiple fractures to the ribs, left L2 transverse process, and left fibula
•Urethral injury haematoma of left kidney
•Major neurocognitive disorder.
Following the collision, the plaintiff required intensive emergency treatment for his injuries and was admitted to Royal Perth Hospital (RPH). He remained a patient at RPH between 30 July 2017 and 16 August 2017. Following that, he was transferred to Fiona Stanley Hospital (FSH) to undergo rehabilitation where he remained from 16 August 2017 until 11 September 2017. He was subsequently re‑hospitalised on two other occasions: RPH between 20 September 2017 and 24 September 2017, and Hollywood Private Hospital on 30 October 2017. He also required ongoing treatment from a range of medical practitioners including: his general practitioner, urologist, physiotherapist, occupational therapist, psychiatrist, clinical psychologist, rehabilitation physician, neurologist, sexual health specialist and orthopaedic surgeon.
The medical evidence
The plaintiff is represented by Bradley Bayley Legal in these proceedings. His lawyers obtained reports from a large range of medical experts. Reports were provided by the following:
(a)Mr Carlo Divita, a senior occupational therapist at FSH, who noted that the plaintiff's executive functions were intact.
(b)Dr Karen Moller, medical practitioner at FSH, who noted some of the injuries the plaintiff suffered and the requirement for emergency treatment.
(c)Dr John Adegboye, psychiatrist at Abbotsford Psychiatry, who opined that the plaintiff:
•As a result of the Acquired Brain Injury, had suffered 'organic personality change with possible secondary depression on background of generalised anxiety disorder and attention deficit hyperactivity disorder'. The organic personality change was 'due to Acquired Brain Injury'.
•Would require ongoing support with some day-to-day activities.
•May suffer from 'associated Post traumatic Stress Disorder' which appeared to 'have been overshadowed by his cognitive deficits'.
•Exhibited 'altered executive functions that include basic cognitive processes such as attention control, cognitive inhibition, inhibitory control, working memory, and cognitive flexibility'.
•Has the potential to recover some deficits, but the changes were likely to persist to some degree for the foreseeable future and 'may also remain disabling'.
•Remained prone to mental health complications.
•Would benefit from ongoing mental health assistance and treatment.
(d)Dr Arty Fayers, consultant in rehabilitation medicine, who amongst other findings, opined that the plaintiff had suffered an 'extremely severe traumatic brain injury with neurocognitive, social, personality and psychological difficulties as a consequence of the accident'. Dr Fayers recommended the involvement of an acquired brain injury rehabilitation physician. In relation to future treatment and support, Dr Fayers opined that the plaintiff:
… will require 24 hours a day, seven days a week of carer assistance, with eight hours of inactive sleep-over time, to support him with all aspects of daily living … Nursing assistance would only be required from a continence perspective or at a time where his medical needs were to increase.
(e)Mr Sunny Lee, urological surgeon, treated the plaintiff for his urological injuries and noted that although the plaintiff had recovered to a satisfactory level, he was likely to continue to suffer from issues in the future, including erectile dysfunction and incontinence issues.
(f)Dr L J du Plessis, noted problems with the plaintiff's short term memory, balance and general mental and physical health. Dr du Plessis confirmed the finding that the plaintiff had suffered a 'very severe brain injury' and noted associated neurophysical and neuropsychological or cognitive impairments. Dr du Plessis initially opined that the plaintiff may enjoy 'at least a 10% to 15% improvement', but on later assessment suggested that any future improvement was likely to be 'less than 2% to 3%'. These improvement were not likely to be neurological or cognitive changes. Dr du Plessis, like Dr Fayers, opined that the plaintiff required somebody present for between 22 - 24 hours per day to ensure the plaintiff's safety.
(g)Dr Mandy Vidovich, neuropsychologist, reported that the plaintiff had suffered a severe traumatic brain injury, but was concerned about providing definitive opinions given 'indications of sub-optimal test-taking effort and exaggeration of pathology' which, when his behaviours were considered in context, she considered to be inconsistent with brain injury related factors.
(h)Dr Peter Silbert, consultant neurologist, also concluded that the plaintiff had suffered a traumatic brain injury and that he would not be able to return to his previous academic study of Mathematics and Statistics. Although Dr Silbert opined that the plaintiff may be able to perform some part-time or possibly full‑time work, it would not be in the area of mathematics or statistics. Nor did Dr Silbert think the plaintiff would be capable of working in a café given his cognitive deficits and reduced dexterity.
(i)Dr Danny Shub, psychiatrist, also found that the plaintiff's capacity for further education and university studies had been profoundly affected and that his 'impaired cognitive functioning [and] interpersonal style is likely to generate difficulties, and would particularly reference his tendency to disinhibition and irritability'. Dr Shub was of the opinion that the plaintiff would require appropriate psychotherapeutic management for the foreseeable future.
(j)Dr Stephen Adams, an expert in sexual health, noted that the plaintiff had suffered erectile dysfunction following the accident. His diagnosis was that of 'mixed neurogenic and psychogenic erectile dysfunction' as a consequence of the accident.
(k)Mr Gerard Hardisty, orthopaedic surgeon, confirmed that the plaintiff had suffered multiple fractures and soft tissue injuries which would leave him with 'an ongoing limp and cognitive impairment for the rest of his life'. Further, the plaintiff was at risk of developing post-traumatic degenerative arthritis in the left hip as a direct result of the injuries he suffered in the collision. Mr Hardisty opined that that the plaintiff would require ongoing physiotherapy and orthopaedic reviews.
(l)Dr Susan Ho, consultant neurologist and epileptologist, opined that the plaintiff had suffered:
•a traumatic brain injury with consequences that included frontal lobe dysfunction and focal epilepsy manifesting with focal impaired awareness seizures
•Left optic nerve trauma
•Anxiety/depression
•Urological complications
•Extensive pelvic fractures with ongoing pain.
Dr Ho opined that the plaintiff would require anti‑epileptic medication and monitoring and ongoing psychiatric and psychological treatment and management. Dr Ho also opined that the plaintiff required 24-hour carer support.
(m)Ms Julia Salmon, occupational therapist, whilst noting that the plaintiff's cognitive recovery was not consistent with his performance in occupational therapy, was of the opinion that his 'significant cognitive impairment means that he would be unable to participate in either work or study without one‑on‑one support'. Ms Salmon opined that supported employment on a part-time basis was a future possibility.
(n)Dr Carmela Pestell, neuropsychologist, noted that testing revealed that the plaintiff's general intellectual abilities and reading skills appeared to be in the average range with age appropriate scores on tasks assessing verbal and non‑verbal abilities. However, he was noted to have significant difficulties with motor planning and fine motor skills. He also had deficits with processing speed and his visual and verbal immediate attention skills were very low. He also had issues with memory and new verbal learning which was very low to extremely low. Dr Pestell also noted evidence of executive dysfunction and other deficiencies in in areas of semantic fluency, complex attention, mental flexibility, inhabitation and processing speed.
Legal Principles
The application for approval of the proposed compromise is made pursuant to O 70, r 10 of the Rules of the Supreme Court1971 (WA). This order provides as follows:
No settlement or compromise, and no acceptance of money paid into court, whenever entered into or made in any cause or matter (other than appeal to the Court of Appeal) in which there is a claim by or on behalf of an or against a person under a disability, shall be valid unless it is approved by the Court.
The requirement to obtain the leave of the court in such circumstances is a protective mechanism put in place for the benefit of the person under the disability. It ensures that the settlement is fair and reasonable. The court needs to be satisfied that all the facts relevant to the case of the person under disability have been brought together and considered by the claimant's legal advisors before recommending a compromise.
In Trout v Minister for Health [2012] WADC 172 [10], Sleight DCJ (as he then was) noted that 'the court should be slow to disagree with a settlement which is supported by independent counsel having regard to the risk of litigation'. Sleight DCJ referred to the relevant principles for approval of a compromise set out in Sosa v Carter [1978] WAR 123 where Burt CJ said:
Expressed in general terms, this court ought not and indeed cannot approve the proposed settlement unless it be of the opinion that it will be for the benefit of the infant plaintiff. In my view what the court is called upon to do is to satisfy itself that all the facts relevant to the plaintiff's claim have been brought together and considered by her legal advisors. And unless the requirement be dispensed with the settlement is supported by the opinion of independent counsel. It should itself consider the opinion given and the reasons for it. If having done that it appears that all aspects of the case have received proper consideration it should be slow to disagree with the opinion particularly on such a matter as the assessment of damages for personal injuries. The court should be aware of the risk of litigation in an area in which reasonable men can reasonably reach different conclusions and hence slow to force the infant to take a risk which the court is unable to underwrite. It should too satisfy itself that the opinion of counsel has been considered and understood by the infant's guardian and should give proper weight to the fact that the guardian, as is necessarily the case, wishes to accept the settlement. (124)
The evidence in support of the application
The application for leave to compromise in this matter is supported by three affidavits from:
1.Mr Benjamin David Hansberry, plaintiff's solicitor, sworn 20 April 2020;
2.Mr Jan Gerard Wachowski, associate of AET, sworn 17 April 2020; and
3.Ms Rebekah Murray, plaintiff's mother and next friend, sworn 20 April 2020.
Ms Rebekah Murray is the plaintiff's mother and the plenary administrator of his estate and next friend in these proceedings. Her affidavit annexes the opinion of Mr David Bayly of counsel, dated 17 April 2020 and a letter from AET dated 27 March 2020 setting out its fees for the investment and management of the plaintiff's fund to life expectancy.
I note that counsel, Mr Bayly, who has extensive legal knowledge and experience in these sorts of matters, in his written opinion dated 17 April 2020, recommends a settlement in terms of the proposed compromise. Counsel's opinion goes through an extensive analysis of the evidence, expert medical reports and the law. Counsel's opinion is well supported by the material relied upon and referred to in his opinion. Counsel opines that the proposed compromise is in the plaintiff's best interests and should be accepted.
In her affidavit, Ms Murray deposes that she has received and read counsel's opinion. She confirms that she discussed the opinion with Mr Hansberry, the plaintiff's solicitor, and she understood its contents. She approves of the proposed compromise.
Mr Hansberry, the solicitor representing the plaintiff, in his affidavit confirms that he provided the legal opinion to Ms Murray and that she had informed him that she understood its contents and approved of the proposed compromise. He opines that the proposed compromise is reasonable and for the benefit of the plaintiff.
Mr Wachowski is an associate in personal trusts of private client services, Western Australia, for AET. In his affidavit sworn in relation to the application for the appointment of AET as trustee of the plaintiff's trust fund, he satisfactorily sets out the financial security of that organisation including its regulation by a number of regulatory bodies. His affidavit, in combination with Mr Bayly's opinion, the affidavits of Mr Hansberry and Ms Murray, together the principles set out by the Full Court in Morris v Zanki (1997) 18 WAR 260, satisfies me as the appropriateness of the appointment of AET as trustees.
Conclusion
I approve the offer of compromise and will make the orders set out in the Minute of Proposed Orders dated 1 May 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy8 MAY 2020
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