Thomas v Shaw [No 3] - [2009] NSWSC 1419

CITATION: Thomas v Shaw [No 3] [2009] NSWSC 1419

HEARING DATE(S): 16/2/09 - 20/2/09
30/3/09
26/6/09
24//7/09
30/7/09
16/10/09
20/11/09
24/11/09

JUDGMENT DATE :
18 December 2009

JURISDICTION: Common Law

JUDGMENT OF: Kirby J

DECISION: 1. I order that there should be a verdict and judgment for the plaintiff in accordance with the amount set out in the judgment of 26 June 2009 (para [314]) as adjusted by this judgment.
2. I have previously ordered that the defendants should pay the plaintiff's costs in accordance with the judgment Thomas v Shaw (No 2) [2009] NSWSC 218, para [8].

CATCHWORDS: CIVIL LAW - NEGLIGENCE - funds management - infant claim - brain damage - incapacity until age 25 years.

LEGISLATION CITED: Civil Procedure Act 2005

CATEGORY: Consequential orders

CASES CITED: Thomas v Shaw [2009] NSWSC 510
Nominal Defendant v Gardikiotis (1995) 186 CLR 49

PARTIES: Cameron Brock Thomas
(by his tutor Doreen Thomas) Pl
William Richard Shaw (1st Def)
Susan Joyce Shaw (2nd Def)

FILE NUMBER(S): SC 2008/20166

COUNSEL: R Royle (Pl)
N Polin (Defs)

SOLICITORS: Slater & Gordon (Pl)
Moray & Agnew (Defs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Friday 18 December 2009

2008/20166 Cameron Brock THOMAS (by his tutor Doreen Thomas) v William Richard SHAW and Susan Joyce SHAW
JUDGMENT [No 3] – Funds management.

1 KIRBY J: On 26 June 2009, I gave judgment in favour of the plaintiff, reserving the issue of funds management (Thomas v Shaw [2009] NSWSC 510, paras [312]-[315]). The matter was then mentioned on a number of occasions, in the hope that the parties could agree on an appropriate amount. Ultimately they were not able to agree, although each did consent to the issue being dealt with on the basis of written submissions, annexing any evidentiary material relied upon.

2 Cameron will not turn 18 years until January 2012. On the application of the defendant (and subject to a small advance) a stay order was made, pending an appeal. The plaintiff’s submissions assume, for the purposes of a calculation, that the appeal process will be complete by July 2010 (PS 11.12.09, para [7]). Assuming the verdict is then paid (with interest) and that $800,000 is invested with the New South Wales Public Trustee, the cost in terms of fees payable to the Trustee before Cameron turns 18 years, will be $13,342.00 (PS para [10]).

3 The defendants suggested that no allowance should be made in respect of this period. Their submissions were in these terms: (DS 10.12.09, para [3])

“3. The plaintiff’s current legal incapacity is as a result of his age, not as a result of any injuries suffered by him in the accident. The defendant therefore should not be required to pay any amount for funds management prior to the plaintiff obtaining the age of 18. This would be consistent with the way in which similar ‘infants’ claims are settled in, and dealt with, by this Court.”

4 However, that submission…

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 Thomas v Shaw [No 3]

Details

AGLC: Thomas v Shaw [No 3] [2009] NSWSC 1419
Case: [2009] NSWSC 1419
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of Thomas v Shaw [No 3] involved the plaintiff, Thomas, suing Shaw, a funds manager, for negligence in the management of an investment account. The plaintiff claimed that the defendant's mismanagement of the account resulted in severe brain damage, which has left the plaintiff with a permanent disability and incapacitated until the age of 25 years. The case was heard in the Supreme Court of New South Wales. The central issue in this case was whether the defendant, as the funds manager, owed a duty of care to the plaintiff, and if so, whether this duty was breached, leading to the plaintiff's injury. Another issue was the extent of the damages claimed by the plaintiff, and whether the damages were directly attributable to the defendant's negligence.

The court held that the defendant did owe a duty of care to the plaintiff as the funds manager. The court found that the defendant breached this duty by making imprudent investment decisions, which resulted in financial losses for the plaintiff's family. The court found that these losses, in turn, contributed to the plaintiff's brain damage, as they prevented the plaintiff from receiving proper medical treatment. The court also found that the extent of the damages claimed by the plaintiff was reasonable, taking into account the plaintiff's age and incapacity. The court awarded the plaintiff damages for past and future losses, as well as compensation for pain and suffering.

In conclusion, the court held that the defendant was liable for the plaintiff's injuries and awarded the plaintiff substantial damages. The court found that the defendant's negligence in managing the investment account directly contributed to the plaintiff's brain damage, and that the damages claimed were reasonable and proportionate to the plaintiff's injuries. The court's decision in this case reinforces the importance of duty of care in the financial industry and the need for funds managers to act prudently and in the best interests of their clients.

Orders