Wendy Dale Ridgwell (by her Next Friend the Public Trustee) v Fitch - [2015] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WENDY DALE RIDGWELL (by her Next Friend THE PUBLIC TRUSTEE) -v- FITCH [2015] WADC 109

CORAM: FENBURY DCJ

HEARD: 7 SEPTEMBER 2015

DELIVERED : 18 SEPTEMBER 2015

FILE NO/S: CIV 648 of 1970

BETWEEN: WENDY DALE RIDGWELL (by her Next Friend THE PUBLIC TRUSTEE)
Plaintiff
AND
RODNEY FITCH
Defendant

Catchwords:

Damages for personal injuries - Compromise of action in 1971 - Orders for variation of terms of payment of monies by consent in 1986 - Factual error by senior counsel alleged, resulting in alleged unwarranted discount - Application to vary order and claim for repayment of discounted funds - Turns on own facts

Legislation:

Nil

Result:

Summons dismissed

Representation:

Counsel:

Plaintiff: Mr J R Brooksby
Defendant: Mr J P Wilson

Solicitors:

Plaintiff: Kim Sobey, Solicitor for Public Trustee
Defendant: WHL Legal Pty Ltd

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

Nil

FENBURY DCJ: Nearly 50 years ago, in 1967, the plaintiff was a passenger in a Triumph Herald saloon being driven in Riverside Drive, Perth when it was involved in a crash causing her catastrophic injuries.
On 1 September 1971 the plaintiff's claim brought in the Third Party Claims Tribunal, came on for hearing before Judge Good QC, the Chairman. It settled on the terms agreed which were then made as orders, as follows:
1.The Plaintiff have leave to accept in full satisfaction of her claim:
(a)the lump sum of $61,683.10 being $42,000 general damages and $19,683.10 special damages; and
(b)periodical payments of $2,400 to be paid annually and in advance to the Public Trustee in and for the State of Western Australia on behalf of the Plaintiff, the first of such payments deemed to be due and payable on the 1^st day of September 1971. Such payments to continue during the lifetime of the Plaintiff and be based on the yearly cost of;
(i)travelling expenses for treatment;
(ii)hospitalisation;
(iii)medical expenses;
(iv)physiotherapy;
(v)domestic help;
(vi)renewal and repairs of appliances; and
(vii)chemist expenses.
2.There be liberty to apply for variation of such annual payments, and as to the investment money.
3.In satisfaction of the Plaintiff's claim the Defendant within seven days after service of this order:
(a)Do pay the sum of $19,683.10 to the Plaintiff's solicitors, Messrs Solomon & Clarke of 27 Market Street, Fremantle on their undertaking through Counsel to pay thereout the special damages and to account to the Plaintiff for the balance.
(b)Do pay to the Public Trustee the sum of $42,000 for investment on trust for the Plaintiff, such investment be not restricted to the common fund.
(c)Subject to any varying the periodical payments do pay to the Public Trustee the sum of $2,400 annually, the first of such payments being deemed to have fallen due and payable on the 1^st day of September 1971, and thereafter on the 1^st day of September in each year such periodic payments to be continued [the balance of that paragraph is indecipherable].
(d)The defendant do pay the plaintiff's costs …
So far as can be ascertained from the file (which was retrieved from microfiche records within the court) (and which was incomplete) and by reference to the statement of claim, it was asserted at par 8(h) that 'the plaintiff's earning capacity has been totally destroyed'. There was no other specific claim pleaded for loss of earning capacity in the future nor specific assertion of loss. In par 9(iv) there was a particularised claim for loss of earnings in the past which was in the amount of $4,374.06, which formed part of the award for special damages of $19,400.
It is put on behalf of the plaintiff that no or very little allowance was made in the award of general damages for loss of earning capacity. None was made specifically. None can be inferred, it was argued, given 'the overall quantum' of the award.
This is a difficult proposition to accept in my view. It appears the award was a substantial one in its day. The legal representation for each party was expert and experienced. There was no doubt the plaintiff was totally and personally disabled and had lost all her earning capacity.
In my view the award of $42,000 general damages, although not specifically broken up in this way, more likely than not included provision for loss of earning capacity.
By originating summons dated 4 March 1981, issued on behalf of the defendant, application was made for 'an order that the periodical payments to the plaintiff in this action paid to the Public Trustee on behalf of the plaintiff by the defendant pursuant to the order of the Third Party Claims Tribunal made on 1 September 1971 be redeemed by payment of a lump sum to be fixed by the court (copy summons has been printed off from microfiche and forms part of the papers).
The fate of the originating summons issued by the defendant is unclear but the court was informed from the Bar table, that in that year, 1981, the periodical payments being paid to the plaintiff were increased to $11,640 per year. This obviously amounted to a variation of the 1971 orders made in the Third Party Claims Tribunal (see the affidavit of Shaun William Conlin sworn 5 March 2015, par 7).
By memorandum from Mr V Evans of the Motor Vehicle Insurance Trust dated 21 August 1986 to Mr A C Gibson, who was counsel for the defendant the following appears (exhibit 1):
We have now reviewed our position in relation to the application to increase periodical payments for Ms Ridgwell's claim back to the 26^th of February 1984.
For the record, we wish to advise the order for periodical payments currently remains at $11,640 per annum and such payments are made in advance on the 1^st September each year.
The past period of review is approximately 2 ½ years and in consequence calculations have been made in two categories, namely the upgrading of the expenditure allowance from 26^th of February 1984 to the 31^st of August 1986 and secondly, a calculation relating to the continuing annuity to commence on the 1^st of September 1986.
From the figures that follow you will note the first category lists costs for the preceding 2½ years and apart from the Quadriplegic Centre calculations, they agree with recommendations you have previously made.
The Quadriplegic Centre calculations are set out in Schedule A and in calculating $53,124.95, no deduction was made for board and maintenance saved for the days Ms Ridgwell was confined to the Quadriplegic Centre.
I believe a deduction should be made and $15 per day is reasonable. You will note from Schedule A, during the preceding 2½ years, Wendy Ridgwell would have been in the Quadriplegic Centre for 655 days. This means a saving of $9,825, giving a net cost in the Quadriplegic Centre of $43,299.95 (as appears in column 1 hereunder). Column 2 as previously expressed makes no deduction for the saving of board and maintenance during Ms Ridgwell's stay in the Quadriplegic Centre.
Under the second category, similar calculations have been made in columns 1 and 2 under the heading of 'Annuity Commencing 1^st of September 1986'. Still on the annuity, it is requested that you endeavour to agree to have payments made on a quarterly basis (in advance) and not yearly as currently exists. (emphasis added)
Please now write to the plaintiff's solicitors on our behalf, offering to pay an amount of:
(a)$20,058.17 to cover additional costs incurred between 26^th February 1984 and 31^st August 1986;
(b)$5,792.90 being quarterly payments in advance to be made on 1^st September, 1^st December, 1^st March and 1^st June.
The calculations of these figures are as per column 1 of the calculations immediately hereunder. Column 2 is the same calculations made without making any deductions for the saving of maintenance and board.
Although no consequential documentation has been produced, it appears that Mr Gibson did what he was requested to do. The plaintiff's then solicitors, Norm Srdarov, Maraj & Co, must have sought advice from Mr H Wallwork QC of the Independent Bar. The only document produced as to what occurred is an unsigned office copy of a six‑page letter written to senior counsel dated 1 December 1986. The letter seeks a written opinion from counsel. That opinion was not produced.
However the letter contained certain comments which purportedly indicate what senior counsel's views were. I do not propose to set it out in full but the opening paragraphs are as follows:
We refer to our discussions with you on 31 October, 1986 regarding the aspect of deduction from the annuity in respect to an allowance for board and your reference to the decision of Campbell v Nangle and where a figure representing 12% of the hospital expenses was selected as being the appropriate amount for calculation of amount to be set off in respect to board.
On the basis of our discussions with you, we put to Mr Athol Gibson the advice given by you to us that the board deduction should be at the rate of 12% of the hospital expenses.
As per our discussions with you on 28 November 1986 we are pleased to advise that the Motor Vehicle Insurance Trust are prepared to accept that board should be deducted at the rate of 12% of the hospital expenses. Furthermore, the Motor Vehicle Insurance Trust are only applying the 12% to the hospital rates for the weekdays Monday to Friday and not on the days of the weekend.
There then followed reference to other matters and then a series of calculations concerning the annuity firstly from 26 February 1984 to 31 October 1984, then 1 November 1984 to 31 October 1985, then 1 November 1985 to 31 August 1986, and then from 1 September 1986.
With respect to each of the periods of calculation set out the 12% discount for board was applied. These calculations then revealed that it was agreed that the amount to be paid to the plaintiff by way of periodical payments be from 1 February 1986 increased to $24,424.40.
It strongly appears, and Mr Brooksby for the plaintiff conceded, that in spite of the absence of documentation it was agreed in 1986 that, on senior counsel's advice, a 12% deduction for board was to be applied to the plaintiff's entitlement for hospitalisation costs. The inference that this must have occurred is overwhelming.
The issue was brought before the court, presumably by some form of summons, perhaps an originating summons, and on 22 December 1986 in chambers Judge Healy made a number of orders by consent amending the periodical payments to be paid by the defendant to the plaintiff. The orders were as follows:
(a)The Defendant do pay to the Public Trustee of Western Australia on behalf of the Plaintiff the sum of $18,811.45 (which includes a periodical quarterly payment of $6,106.10 deemed due on the 1^st day of September 1986) in respect to increase to periodical payments for the period 26 February 1984 to 30 November, 1986;
(b)The periodical payments previously paid annually in advance by the defendant to the Public Trustee of Western Australia on behalf of the Plaintiff pursuant to the Order of the Third Party Claims Tribunal made on the 1^st of September, 1971 and as varied by Orders made by his Honour Judge O'Dea on the 21^st of August, 1981, be increased from the 1^st of September, 1986 to the sum of $24,424.40 and be paid quarterly in advance by the Defendant. (emphasis added)
There was no reference to the fact of there being a deduction for board in the amount of 12% of hospital expenses. However, there is no doubt it was applied and agreed.
No further proceedings were commenced by either party in respect of this matter after December 1986 relating to variations of the quantum of payments.
However, the court was informed from the Bar table that there were regular variations in the form of increases made to those payments over the following years. There is no documentary evidence about that.
Furthermore the court was told from the bar table that the 12% deduction above referred to was applied throughout the 24 year period up until 31 August 2010 when the Insurance Commission of Western Australia ceased to deduct that sum.
The plaintiff has commenced proceedings by issuing a chamber summons for orders filed 23 March 2015 seeking the following orders:
1.The orders dated 22 December 1986 be varied.
2.The defendant pay the plaintiff the sum of $399,587.07 (being back payment of the 12% deducted from the payment of the plaintiff's hospitalisation allowances during the period between 26 February 1984 to 31 August 2010 totalling $427,213.63 less a set of $27,626.56 in respect of overpayments made by the Insurance Commission of Western Australia during the period 2008 to 2010 for travel, domestic care and wheelchair repairs) plus interest from 1 September 2014.
Put shortly, it is asserted on behalf of the plaintiff that the deduction of 12% above referred to, agreed to by the parties commencing on or about 1984, should never have been made. In short, senior counsel was in error in recommending that it be made. In the result it is argued on behalf of the plaintiff that the agreement reached in 1986 (retrospective to 1984) but prospective until 2010, although reached by consent, should be somehow undone and the Insurance Commission be obliged to reimburse the plaintiff for the sums wrongly deducted.
I am not persuaded I can nor should make the order sought. The alleged error by the plaintiff's legal advisers was the acceptance or assumption the plaintiff had the ability to support herself but for the accident as evidenced by the size of the award for general damages.
There must have been allowance made in that award for loss of earning capacity in my view. There was no error. It was agreed the deduction for board should be made. It was made and the court in effect so ordered.
Even if there was an error made by the plaintiff's legal representatives in 1986 in so agreeing, I do not accept I can simply repair the damage so to speak by somehow revoking or varying the order.
If there was error made then it can only be corrected on appeal in my view. It seems to me that is so, whether or not the court has 'the father of the land' jurisdiction asserted.
The plaintiff's application must be dismissed with costs.