Farr v State of Queensland

Farr v State of Queensland - [2009] NSWSC 906 - NSWSC 2009 case summary — Zoe

[13]

4 The plaintiff, in her affidavit sworn 28 July 2009, states that she has been advised by her counsel, David Higgs SC and Anthony Cheshire, that the settlement was within a reasonable range considering the risks associated with litigation and the potential quantum of damages she might recover if successful at trial. She has instructed her solicitor to accept the offer and understands that the proceedings against the first defendant remain on foot with the risk and potential costs associated with the continuing litigation. 5 Before the proposed settlement can proceed, various matters have arisen for consideration which include the subject of the present amended notice of motion which has been brought on behalf of the plaintiff. The orders sought are as follows: 1. A declaration that the plaintiff is not under a legal incapacity for the purposes of UCPR rule 7.14 and, in particular, for the purposes of: (a) Settling the proceedings with the second and third defendants (b) Carrying on the proceedings against the first defendant. 2. In the alternative to order 1, orders that: (a) Andrew Farr be appointed as the plaintiff's tutor; (b) The settlement between the plaintiff on the one hand and second and third defendants on the other be approved pursuant to s 76(4) of the Civil Procedure Act 2005. 3. A declaration that the plaintiff is incapable of managing her own affairs within the meaning of s 41 of the New South Wales Trustee and Guardian Act 2009 (the Act), and consequential orders thereunder. 6 The application for the orders has been properly sought on the advice of the plaintiff's counsel. The plaintiff considers she is capable of giving proper instructions for the running of the proceedings, including for the settling of the case against the second and third defendants. She is also of the view she is capable of managing her own affairs such that she should have control of the estate and in particular the settlement monies that she might receive. Notwithstanding these views, she understands counsels' advice and sees sense in the orders sought in the motion.

[15]

8 Other than the question of the ability to make serious financial decisions regarding investment, what is said by Dr Phillips raises the question as to whether the plaintiff can properly make use of the proposed settlement monies towards appropriate future treatment. It is said that, contrary to the opinion of the psychiatrist, the plaintiff does not accept that her injuries are of a psychiatric, rather than of a physical, origin and that she has a belle indifference to her condition. The suggestion is she is poorly placed to apply any of the settlement monies towards appropriate treatment. 9 Dr Phillips is of the opinion that the plaintiff developed and continues to suffer from a very significant conversion disorder and has become entrenched in a long-term sick role that confines her to a reclining wheelchair. Dr Brown, a consultant forensic psychiatrist, agrees with the diagnosis of conversion disorder. 10 The plaintiff, however, says in her affidavit that while she may have some psychiatric issues her disabilities are largely, if not wholly, due to physical causes which the doctors are currently unable to identify. She believes that the doctors, including Drs Phillips and Brown, are wrong although she accepts that she may be wrong. 11 The first question for consideration is whether the plaintiff is not under a legal incapacity for the purposes of UCPR rule 7.14 and, in particular, for the purposes of settling the proceedings with the second and third defendants and carrying on the proceedings against the first defendant. 12 UCPR rule 7.14(1) provides: " A person under legal incapacity may not commence or carry on proceedings except by his or her tutor." 13 UCPR rule 7.13 provides: "In this Division person under legal incapacity includes a person who is incapable of managing his or her affairs." 14 A person under legal incapacity is defined under s 3 of the Civil Procedure Act to mean "any person who is under a legal incapacity in relation to the conduct of legal proceedings." 15 For the resolution of this question I refer to the test applied by Chadwick LJ in Masterman-Lister v Brutton & Co [2003] 3 All ER 162 where his Honour said at [75]: "…the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem." 16 I am satisfied the plaintiff has the capacity to understand what is necessary to pursue her claim against the first defendant, to understand the precise details of the proposed settlement offer, the consequences of its acceptance or rejection, the advice proffered by counsel and has the ability to make decisions and give instructions based upon that advice for the following reasons:

[38]

34 In her report dated 12 December 2007, Dr Brown observed at page 26: "Although some Conversion Disorder patients do not seem to be able to make use of psychological insights, Ms Farr is an intelligent young woman and gentle exploration of underlying psychological issues and encouragement of increasing mobility might be usefully provided her in up to 20 sessions of individual counselling. Some individuals begin to make better use of treatment over a more extended period of time and a lengthier number of sessions allows a more gentle and non-confrontational approach to be undertaken." 35 As there is disagreement as to future treatment by the psychiatrists, it is not surprising that Mr Farr wishes to seek further professional advice and the plaintiff has indicated some resistance to the regime proposed by Dr Phillips. 36 It is submitted that the plaintiff's lack of insight goes to the heart of her consideration of further treatment and the imposition of a suitable person as manager would be of assistance by providing objective advice as to treatment. I am not persuaded that that would be the case. It seems to me that the imposition of a third person would be likely to add complexity to the plaintiff's life to little advantage. The plaintiff is more likely to accept the advice of the psychologists and psychiatrists whom she attends with the assistance of her parents. She is, as has been stated on a number of occasions, an intelligent and sensible young woman. 37 Whilst she may lack some insight, it has not been demonstrated that she lacks the competence to make reasonable decisions as to her future medical treatment. Her future needs are best served, in my opinion, by her own independence with the loving support of her family. I do not propose to make the third order sought. 38 I declare that the plaintiff is not under a legal incapacity for the purposes of UCPR rule 7.14 and in particular for the purposes of: (a) settling the proceedings with the second and third defendants, and (b) carrying on the proceedings against the first defendant.

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