H v Nominal Defendant [1997] QSC 233

vehicle accident on 16 September 1991, issued 1.7.94

(d) Plaintiff's statement of loss and damage 21.02.95

(f) Interrogatories delivered by defendant 27.09.96

(g) Plaintiff's answers to interrogatories 08.11.96

Mr Matthews' outline is marked Exhibit "A" and placed with the papers in accordance with Practice Direction 12 of 1995. Paragraph 3 stated that on 12 August 1997, settlement of this action was reached on the basis that the defendant pay the plaintiff the sum of $380,000 plus party and party costs. Paragraph 4 stated that the settlement was then complete in the sense that the settlement sum and the amount agreed as party/party costs had been paid by the defendant, those moneys now remaining in the plaintiff's solicitors' trust account. Paragraph 5 stated that the plaintiff's solicitor/own client costs of and incidental to the action (up to 6 October 1997) have been paid.

The further affidavit filed 14 November 1997 stated in paragraph 1 that settlement moneys and agreed party and party costs have now been paid and remain in his firm's trust account, less payment of the plaintiff's solicitor/own client costs incurred up to 6 October 1997. It was understood that the amount remaining to be transferred to the Public Trustee was $380,000, adjusted only by the difference between solicitor and own client and party and party costs. Paragraph 2 of the affidavit stated that at a conference which resulted in settlement of the action on 12 August 1997, Senior Counsel and solicitor explained to the applicant and his family about obtaining a protection order and why it was desirable. The affidavit stated that the plaintiff accepted Senior Counsel's advice that a protection order should be made. By paragraph 3 he stated that on 13 October 1997 he wrote to the plaintiff advising that this application was listed for 7 November 1997 and on 10 November 1997 he spoke to the plaintiff's father (who was described as the plaintiff's spokesman), who confirmed that the plaintiff wished that a protection order be made. There was no application listed for 7 November 1997. There was nothing to show that the plaintiff had notice of the application returnable 17 November 1997.

Paragraph 7 of Exhibit "A" stated that a protection order would be proper in the circumstances because of the latest lengthy opinion expressed by Dr D A Grant, Clinical Associate Professor of Psychiatry on 4 April 1996 in which he said that the plaintiff would not be fit to manage any substantial compensation settlement he might receive. He said that the plaintiff lacked the ability to plan and organise such an investment and would be vulnerable to exploitation. He said that he believed it would be in the plaintiff's own interests that the Public Trustee be involved in caring for his compensation sum. Mr Matthews submitted that this opinion which was the only Specialist Psychiatrist opinion (the obtaining of which was strongly urged as extremely important as long ago as 7 December 1992 by Dr R S J Simpson, Consultant Physician) was more appropriate and more recent than an earlier opinion of Dr John Cameron (Consultant Neurologist) dated 12 June 1995 that he believed that the plaintiff was capable of an independent existence and would be capable of looking after his own financial affairs, but with the important rider that he was restricted because of a poor level of English understanding and expression. As will later appear, but subject to its true effect and some qualifications in relation thereto, I accept that Dr Grant's opinion is in relevant respects more appropriate and particularly where Dr Grant had access to and reviewed some 15 reports concerning the plaintiff's history and treatments from 26 September 1991 up to and including Dr John Cameron's report of 12 June 1995 and Helen Coles' report dated 23 February 1996, whereas Dr Cameron in his report indicated that he had access only to early hospital records in 1991-2 but no other and of course he did not have the later detailed report of Helen Coles (Occupational Therapist) dated 23 February 1996. Dr Grant did not come to the same opinion as Dr Cameron in critical respects.

Paragraph 8 of Exhibit "A"stated that the plaintiff on the face of the medical and other reports appeared to be a man who could manage his daily affairs but was simply in a position of being unable to manage the large sum received by way of settlement from the defendant. On a cursory perusal of the material, that observation appeared to be very doubtful. Dr Grant at p.4 of his report of 4 April 1996 stated that the plaintiff's mother managed his money for him. He told Dr Grant that he had nothing to do with any banking. Dr Grant concluded that he probably did not have a bank account. He told Dr Grant that he gave his mother more than half his pension when he received it and kept the rest in his pocket for spending when he went to school or out with his siblings. Dr Grant said at p.9 of his report of 4 April 1996 -

"H will permanently be to some extent dependent upon others. Although he is independent in many everyday activities the planning of his life and the care of his ongoing nutritional and social needs will, I feel, be beyond his own independent skills. His family are currently providing this caring role but if they were not available he would almost certainly require some kind of other supportive agency to assist him."

Some of the other reports also suggested that the foregoing submission may not have been correct. See e.g., the report of Robyn Klouda dated 21 November 1994 which showed that the plaintiff relied on his mother to organise him and he became confused very easily, had significant cognitive difficulties, had reduced attention and concentration and was unable to perform any of the processes involved in organised and planned thinking. A report by Mr F Walsh, Clinical Psychologist referred to very severe deficits in physical and cognitive function and in many other respects which in fact bore upon the plaintiff's mental capacity to manage his affairs.

(a) The plaintiff suffers both physical and mental infirmities;

(b) It is not sought to place any funds in the hands of any private Trustee;

(c) The plaintiff is a relatively recent immigrant (came to Australia in 1990);

(d) A protection order will protect the interest of the plaintiff not only against his own incapacity but also against any attempts which could be made by unscrupulous persons, or even persons acting mistakenly;

(e) The plaintiff is still relatively very young (DOB 3.10.1972)" (emphasis added).

From the foregoing, it was abundantly clear that the plaintiff's physical and mental capacity to properly manage his affairs was a live issue requiring close consideration. A protection order was sought in accordance with the strict requirements of s.65(1) of the Act which, in a case such as this, founds the jurisdiction of the Court, on the basis that the plaintiff was by reason of -

".... physical and mental infirmity ... either continuously or intermittently -

(i) unable, wholly or partly to manage his affairs; or

(ii) subject to, or liable to be subjected, to undue influence in respect of his estate, or any part thereof or the disposition thereof."

Notwithstanding that Dr Grant also said that the plaintiff (who at all times spoke only through the presence of an interpreter or his father), "appeared" to understand that he was involved in the compensation process and that Dr Grant "believed" that the plaintiff had sufficient ability to instruct his solicitors and to understand implications of his legal instructions, he added a significant rider as follows:-

"However in a practical sense he is somewhat reliant on his family for assistance in this regard."

All of the medical and other reports confirm that observation. Section 67 of the Act under which the application was brought provides:-

s.67(1) Where in any action in the Court (whether commenced before or after the commencement of this Act) by a person for damages for personal injury sustained by the person it appears to the Court that that person ("the plaintiff") is a person in respect of whom a protection order might be made under section 65, the Court may, subject to sub-section (2) make such a protection order."

Section 67(2) then confers a discretion upon the Court to make a protection order under the section either on its own motion, but if not on its own motion, only on an application by any one of the following:-

(e) any other person who appears to the Court to have a proper interest in making such application.

Section 67(3) then provides:-

"The Court shall, before making a protection order under this section, of its own motion or on the application of any person other than the plaintiff, cause notice of its intention to consider the making of a protection order to be given personally to the plaintiff, unless the Court in any special case otherwise directs."

The plaintiff's solicitor presumably fell within category (e) if the application was not in fact brought on behalf of the plaintiff . In the latter event, s.67(3) imposes a mandatory obligation requiring that the Court shall, before making a protection order under this section, cause notice of its intention to consider the making of a protection order to be given personally to the plaintiff unless the Court in any special case otherwise directs: O'Dell v. Barwick. As indicated, the plaintiff was not present. As the sub-section states, there must be special reason why that notice, which the Court shall otherwise give personally, may be dispensed with either under s.67 or s.65. Gibbs J in Re Whight [1963] QWN 95 refused to dispense with notice and did not regard as a special case, the fact that there was medical evidence that the person could not understand the effect of documents and was unable to manage his affairs when he had not been certified as insane and was still at large in the community. The Court has always insisted on being absolutely certain that the person concerned has full notice of precisely what is proposed and when, whether or not he at some stage appeared to have agreed to the making of a protection order: e.g. O'Dell v. Barwick. Previous discussions between the plaintiff (by his father as his mouth piece) and the plaintiff's legal advisers at the settlement conference on 12 October 1997, or other facts referred to above did not constitute a special case justifying dispensation of the mandatory notice which the Court must give to him personally.

When a protection order is made and moneys are ordered to be paid to the Public Trustee, in an action, the form of order must be precise. In an ordinary case it includes a standard order with respect to solicitor and own client costs and party and party costs and other orders of the kind set out in Phillips v. Munro, Kyte v. Georgettis, and in countless orders by Judges and Masters. The Public Trustee in such cases where an order is made in an action, has a duty with respect to costs of the action to ensure that they are reasonable because they affect the protected person's estate: Stephenson v. Geiss 136 of 1995, Lee J, 4 July 1997 unreported. The material did not disclose the quantum of the actual sum sought to be made the subject of an order to be paid to the Public Trustee. Nor were any details provided as to the difference between the solicitor and own client costs and party and party costs or whether any sums were required to be ordered to be paid out of the plaintiff's moneys as is commonly done before the net residue is ordered to be paid to the Public Trustee, e.g., for past Griffiths & Kerkemeyer expenses, or rebates, if any, to two statutory bodies, all of which items were claimed in the plaintiff's statement of loss and damage on the file, or whether such items had already been paid. Nor was there any information as to Public Trustee charges, if any, which are always allowed as part of the plaintiff's damages when a protection order is made.

Accordingly, a further affidavit was necessary giving those details, including proof of due service of the notice of the application on the plaintiff with notice of the actual resumed hearing date (in the event that a protection order would be made under s.65). It was also requested that the plaintiff, who is physically mobile, be present in Court on the return date because if s.67 applied, it required the Court itself to advise the plaintiff of its intention to consider the making of a protection order, otherwise the procedure adopted in O'Dell v. Barwick would be necessary. Also because of the long standing practice in this jurisdiction on settled authority, the Court is entitled to take into account its own observations of the plaintiff in addition to the necessary close consideration of the numerous medical and other reports which could not be undertaken on a busy Chamber day. The matter was adjourned on 17 November 1997 to 19 November 1997. Because of the doubt as to whether there was power to make a protection order under s.67 if the settlement was otherwise validly entered into, Mr Kelly was subsequently invited to attend. Under s.65, an application for a protection order may only be brought by the Public Trustee.

On the return date, the plaintiff together with his parents were present in Court. Mr North immediately corrected the information conveyed on 17 November 1997 that the application was not brought by and on behalf of the plaintiff but by the solicitors. This eliminated the need for the Court to give notice under s.67(3) if that section otherwise applied. Nevertheless, the profession should be reminded that in all cases when a protection order is made in an action, including the situation when a sanction of a compromise is given, and when the plaintiff himself does not apply for a protection order (often it is opposed by the plaintiff or his or her family), s.67(3) must be strictly complied with or the matter could be adjourned to either have the plaintiff in Court or, if immobile to effect service on him by other means: O'Dell v. Barwick, with added expense involved.

Mr North's outline is marked Exhibit "B" and is placed with the papers Leave was granted to file a further affidavit by the plaintiff's solicitor sworn 19 November 1997, with annexures to which reference will later be made. It sets out the history of the action, the attendances on the plaintiff and his view that the plaintiff knew and understood the nature and effect of the litigation and to the extent that he was able to give instructions without the need of a next friend. He said he was fortified in his opinion by opinions expressed by Dr John Cameron, Neurosurgeon, and Dr Don Grant, Psychiatrist, and Mr Frank Walsh, Psychologist. He had also used the services of independent interpreters which many of the medical and other experts did, as appears from the extensive medical and other reports to which reference will later be made. He acted on Senior Counsel's opinion that the plaintiff was capable of giving instructions with respect to the action and any possible settlement. The plaintiff's family was present during the settlement conference. In the affidavit of 14 November 1997, he said that he spoke to the plaintiff's father who he said was always the plaintiff's spokesman. At the conference he said that the plaintiff told him (via his father) that he was content to settle the action provided the defendant was prepared to offer an amount considered reasonable by Senior Counsel and solicitor. The plaintiff's solicitor expressed the view that, in his opinion, the settlement was reasonable and this was confirmed by Senior Counsel's advice. It was likewise confirmed before me. There is no doubt that the plaintiff's poor understanding of English prevented any direct communication.

Mr North submitted that the plaintiff sustained a head injury which caused a severe effect on his physical capacity because of certain neurological deficits and that :

"there has evidently been some impairment of the plaintiff's intellectual capacity and psychological functioning as summarized in the reports of Mr Frank Walsh of 19 September 1994, Dr John Cameron of 12 June 1995 and Dr Donald Grant of 4 April and 1 May 1996."

That impairment has been referred to in detail in many other reports. All of the experts say that the plaintiff's condition was made much worse because of his severe language disabilities and his inability to learn English as a result. Mr North relied upon the fact that the plaintiff had been assessed by Mr Walsh, Psychologist in his report on 19 September 1994 as functioning within the low-normal range within the bottom 25% of the population although this will be referred to again subsequently. Mr North also submitted that the plaintiff had some deficit with respect to understanding some aspects relating to value and concepts regarding money, but that nevertheless medical opinion was to the effect that the plaintiff was capable of giving instructions (Dr Grant's report of 4 April 1996 - although he significantly qualified this opinion) and that there was the Neurologist's opinion (Dr Cameron's report of 12 June 1995) to the effect that he was capable of independent existence, and of looking after his financial affairs, although as Mr Matthews had submitted and as I accept, Dr Grant's opinion should obviously take precedence over that of Dr Cameron. As already indicated, Dr Grant did not express any such view. Indeed his view is quite to the contrary (p.9 of his report of 4 April 1996).

"The concern in this case arises because of concern that this Plaintiff might be unable, either wholly or partially to manage his affairs and might be subjected to undue influence in respect of his estate when in possession of a substantial sum of money (see ss.65 and 67 of the Act and the concerns of Dr Grant in his report of 4 April 1996)".

Mr North quoted large extracts from Cocchi v. Cocchi which he submitted justified the approach taken by the plaintiff's legal advisers. In that case, Ambrose J at Mt Isa considered the meaning and effect of the term "under a legal disability" which must exist before a sanction of any settlement was necessary pursuant to s.59 of the Act. Mr North recognized the difficulty with respect to the term under s.59 because of its elliptical definition in s.6 of the Act:-

"Under a legal disability or other like expression means not of full age or not of full mental capacity or having the status of an incapacitated person."

It was further submitted that legal practitioners become obliged to consider a sanction of a settlement when the mental deficit suffered by an injured plaintiff is of such a consequence that the plaintiff is unable to understand or appreciate the significance and effect of the action and of the settlement so as to give informed consent. This is perfectly true because if the plaintiff (of full age) was in fact able to understand the significance and effect of the action and of any settlement so as to be able to give an informed consent, it could not possibly be said that he was under a relevant legal disability within the meaning of s.59, (i.e., that he was not "not of full mental capacity" within the definition) nor could he, without more, be a person who was unable to manage his affairs so as to justify the making of a protection order within the meaning of s.65 of the Act. In support of the foregoing, Mr North relied upon a passage in the judgement of Cocchi at 269 l.30 and following:

"However I am not persuaded that it necessarily follows that because a plaintiff has suffered `some intellectual impairment', therefore that person is `not of full mental capacity' and therefore under a legal disability of the sort with which section 59(1) of the Public Trustee Act deals.

It is abundantly clear to my mind that the mental capacity of a person will vary at different stages of his life. To consider that a person is not of `full mental capacity' at a particular stage in his development because he was previously of greater mental capacity or might at some time in the future be of a greater mental capacity seems to me to be an approach for which the legislature could not have in mind when it enacted section 59 of Act.

Similarly the legislature could not have had in mind the optimum mental capacity of a hypothetical ordinary or reasonable man so that anybody with less than that mental capacity could be said to be `not of full mental capacity'.

One might in any event when considering the definition of s.6 ask `full mental capacity to do or to understand what thing'. It seems fruitless to contemplate capacity in isolation from the thing or things to which that capacity relates."

There was nothing in any of the material in that case to suggest that the plaintiff was unable to wholly or partly manage his affairs or to give instructions to a solicitor to settle her action, or to suggest that she was liable to be subjected to any undue influence on the part of her husband or anybody else for that matter in the agreement to settle her action for the sum paid into Court, but to the contrary. The facts in Cocchi are substantially different to the facts in the current case.

His Honour's concern arose from the fact that the plaintiff's Counsel had apparently flown specially to Mt Isa where the application for sanction of a settlement was made. His Honour was incorrectly informed of an alleged "understanding" or a "rule of practice" which purported to require a sanction in all cases where the plaintiff was simply not of "full mental capacity" or had merely suffered "some intellectual impairment". His Honour noted at 268 that the rationale for the suggested "rule of practice" was that the term "legal disability" in s.59(1) of the Act goes far beyond the sort of "legal disability" needed to justify the making of a protection order under ss.65 and 67.

There never was any such "rule of practice". Nor was there any rationale that the term "legal disability" in s.59(1) went beyond the sort of "legal disability" needed to make a protection order under s.65 - 67. I totally concur in His Honour's comments that it is quite erroneous to suggest that whenever there was some diminution, however minor, in the mental capacity or some variation in mental capacity so that it could be said that there was "some mental impairment", therefore that person was automatically a person under a disability within the meaning of s.59 and so unable to give proper instructions, with the consequence that any settlement had to be sanctioned. It is well known that persons at the lower range of normal intelligence (not sub-normal) may, in the absence of other factors, be perfectly able to manage their affairs, whilst persons at the higher range may be quite unable to do so, depending on other factors. See Flemming v. Gibson (CA 2523 of 1997, 19 December 1997 unreported at 19 per Lee J, McPherson JA, Williams J agreeing). Rather the view was held, and indeed as did His Honour at 269 l.49-54, that the one was, in the case of a person under a legal disability because of brain damage and intellectual impairment, virtually synonymous with the other i.e., where the mental infirmity was of such a nature as to found jurisdiction to make a protection order under ss.65, 67, (i.e., by reason of mental infirmity the person concerned was unable to manage his affairs, or was liable to be subjected to undue influence which is an aspect of the former), he was also under a "legal disability" within the meaning of s.59(1).

When the circumstances require the sanction of a settlement of an action, because of a relevant mental incapacity rendering the person under a legal disability, a protection order invariably follows and the moneys are ordered to be paid to the Public Trustee and rarely, if ever, to a private trustee or next friend or the plaintiff himself: Kyte v. Georgettis (Douglas J.) Re Ross (per Macrossan J., 8 May 1981 - referred to in Re Ross at 64); Flood v. Williscroft. Of course a protection order is not made in the case of a settlement regarding an infant unless the infant was also under a relevant mental incapacity because s.59 empowers the Court to order the funds to go to the Public Trustee until the infant is of age. The foregoing is abundantly clear from His Honour's remarks in Cocchi at 269 ll.49-54, with which I respectfully agree and which the profession have at times appears to have misunderstood:-

"To my mind, although s.65 of the Act is in a different part of the Act from that in which s.59 is to be found, it does indicate the appropriate test for determining whether a person is `not of full mental capacity' within the meaning of section 59. Section 65 relates to the inability of such a person `wholly or partially to manage his affairs' or `liable to be subjected to undue influence in respect of' settling his action'."

What should be mentioned is that the profession was advised and should now be reminded that in cases where the medical evidence shows a substantial basis for concern as to whether or not a settlement should be sanctioned and a protection order made, it is advisable that considerable care be taken by the solicitors for both sides. It is often prudent for the parties (and their solicitors) in their own interests in such a case to refer the matter to the Court: Flood v. Williscroft at 359; Luntz Assessment of Damages 2nd Ed. (1983) [11.3.02], 3rd Ed (1990)[11.4.2] under the heading "Sanction of Compromises". The author points out that it would in any event be in the defendant's interest to seek the Court's approval of the compromise where there is a real doubt because if the person, in truth under a disability at the time, later ceases to be under a disability, he or she could attack the compromise which would not be valid because of s.59 of the Act. The defendant would not get a valid discharge. As Mr North recognized, defendants as a matter or prudence frequently sought a sanction in such cases. Plaintiffs did not object because the defendant paid the costs. It may be noted that the costs of the current application would be as much if not more than the costs of an application for sanction had such an application been made.

Also if moneys are paid either to a plaintiff who is under a relevant legal disability or to some family member or other person on his behalf and it is wrongly dissipated and someone else subsequently discovers the fraud or at least the misuse of those moneys (as was unfortunately a not uncommon experience of the Public Trustee and of Masters who for many years, almost exclusively dealt with sanctions of settlements and the making of protection orders), further distressing litigation may ensue, at times against a relative who dissipated the plaintiff's funds. See e.g. the matters raised in Henderson v. Elbers (391 of 1984, 5 September 1986, where Carter J said that a protection order should have been made in the first place); Sinitski v. Munro (W 219 5 of 1995, 4 September 1979; Sinitski v. Rolly (W4831 of 1980, 31 August 1984); Stephenson v. Geiss at 13-14. There are other examples. As Philp J warned in Phillips v. Munro at 430, large sums by way of damages are frequently regarded as "family moneys" with little appreciation of the legal duty of the parents or other relatives to preserve the estate of the person under a disability. There may also be a potential claim against the solicitors for not seeking a sanction by the Court in such circumstances, so that solicitors should exercise considerable care in often difficult circumstances and often where plaintiffs (or their family) wish to avoid a protection order and keep control of judgment moneys, which is not suggested in this case. Also care is needed to consider whether a next friend should be appointed, if not initially, then when further information comes to hand. This is not to say that the Court should not rely on the profession in the prosecution and defence of claims. It is only where such matters come to the Court's attention, as in this case, that the Court's special jurisdiction is invoked.

"The issues which arise upon this application, i.e. under s.67, which is found in a different part of the Act are not the same as those to be considered upon the sanction of a settlement, i.e. under s.59(1) (see for example Cocchi v. Cocchi at 269)."

On the sanction of a settlement in a matter of this type, the Court must be satisfied that the person is under a legal disability within the meaning of s.59 and must consider whether the settlement is for the plaintiff's benefit in accordance with well settled principles: Fowler v. Gray, Stephenson v. Geiss. This involves consideration of whether the plaintiff is unable to manage his affairs and or is subjected to relevant undue influence so that a protection order under s.65 usually follows as of course.

Paragraph 11 is an obvious reference to the passage from the judgment in Cocchi v. Cocchi at 269 l.49-54 quoted above. In my respectful opinion, the passage quoted by His Honour does not support the submission in paragraph 11 of Ex. B. His Honour's statement has the opposite effect with respect to a person not of full mental capacity within the meaning of s.59. What His Honour was there saying was that even though s.65 is in a different part of the Act than that in which s.59 is found, s.65 indicates the appropriate test for determining whether a person is "not of full mental capacity" within the meaning of s.59, that being a person who, by reason of mental infirmity, was "unable, wholly or partly to manage his affairs" or was "subject to, or liable to be subjected to undue influence in respect of his estate, or any part thereof or the disposition thereof.". The issues involved under each section are intertwined. Nevertheless, paragraph 12 of ex.B further states that when the facts of the current case are considered, they fall within the ambit of further remarks in Cocchi v. Cocchi and in particular what was said to be the guidance given to the profession by the judgment at 269-70 where the following observations were made:

"There is nothing in any of the material placed before me to suggest that the plaintiff is unable wholly or partially to manage her affairs or more importantly to give instructions to her solicitor to settle her action. There is nothing to suggest that she is liable to be subjected to any undue influence on the part of her husband or anybody else for that matter in agreeing to settle her action for the sum paid into court.

In my view it is no part of the judge's function to embark upon an inquisition whether as parens patriae or otherwise to ensure that a plaintiff appearing without a next friend and instructing a solicitor to act on her behalf has a mental capacity which has not been so diminished as to render her unable to manage her affairs or unable to give proper instructions to her solicitor merely because it appears that there is some medical evidence to the effect that the plaintiff suffers from some intellectual impairment. The adoption of such a course would seem to lead logically to the situation that whenever any intellectual impairment were asserted in the pleading or appeared in a medical report to be found on a court file there would arise an obligation to inquire whether indeed such a plaintiff could conduct her action without the appointment of a next friend. In my view it is no part of the function of this Court to embark upon such inquisitions and if a case is settled out of court on behalf of a plaintiff apparently able to give proper instructions to her legal advisers there is no warrant for an application being made to a judge or master for a sanction of that settlement merely because there is some material from which it may be inferred that that plaintiff has suffered `some intellectual impairment' however minimal that impairment may in fact be.

For the purposes of s.59(1) sanction of the plaintiff's settlement would be required only if her mental capacity was such that she was unable wholly or partly to manage her affairs and to give proper instructions to her solicitor with respect to that settlement. Neither the solicitors for the plaintiff nor the solicitors for the defendant by election asserted any such impairment of the plaintiff's mental capacity and certainly none of the medical reports placed before me would support such an assertion."(emphasis added)

On the facts before His Honour, I respectfully agree with the above comments. Nevertheless, reliance was placed by Mr North on the word, "or" where underlined in the first paragraph and the word "and" underlined in the last paragraph. It was said in effect that even where a plaintiff was unable to manage his affairs and was liable to be subjected to undue influence, as Dr Grant said and as this application was advanced, (due to physical and mental infirmity), an opinion could simultaneously be held that the plaintiff "appeared" to be able to give proper instructions to a solicitor to settle her action with the consequence that the need for a sanction of the settlement pursuant to s.59 would be eliminated. His Honour's change from the conjunction "or" to "and" appears to have caused some confusion in this case. It appears to have been thought that His Honour intended to convey that notwithstanding that a person could not manage his affairs or was liable to be subjected to undue influence due to mental infirmity (that latter being an aspect of the former), so that he was relevantly "not of full mental capacity" and so "under a legal disability" for the purposes of s.59, there could still exist an "apparent" capacity to give a full and informed consent to the conduct of the action and any settlement, and to understand the nature, significance and risks associated with the claim, so eliminating any need for a sanction.

I do not think, when the judgment is considered as a whole, that His Honour intended to say any such thing. His Honour was saying that the tests were the same under each provision (ss.59, 65) so that if one condition was established, so was the other in the case of relevant mental incapacity. If His Honour intended what appeared to have been the approach in this case, and I do not for a moment consider that it was, I must respectfully disagree with it. If a person is unable "wholly or partially to manage his affairs" by reason of a relevant mental incapacity, either on its own or in combination with other factors mentioned in s.65(1)(a), or if, by reason of those factors, he is "subjected to or liable to be subjected to undue influence", it comprises the test which His Honour at p.269 l.49-54 said provided the meaning of whether or not a person was "not of full mental capacity" within the meaning of s.59. Accordingly, by virtue of the definition "under a legal disability" in s.6 of the Act, such a person would be a person under a legal disability within the meaning of s.59 such that a sanction of any compromise would be necessary before it could be held valid. The situation might be different in the case where a person is of normal mental capacity (within that range, not being sub-normal) but, due only to severe physical infirmity, he is unable to manage his affairs: Re D (OS 99/1975, Hanger J, 19 March 1975); O'Dell v. Barwick pp 122-3. Cocchi was not dealing with any such case.

The current application was advanced on the basis of Dr Grant's evidence that the plaintiff, by reason of physical and mental infirmity, either continuously or intermittently was unable, wholly or partially to manage his affairs or was subjected to or liable to be subjected to undue influence which, for the purposes of the Act, if that was the true position, would render the plaintiff as a person under a relevant legal disability within the meaning of s.59, in accordance with the paragraph in Cocchi at 269 ll.49-54. If the plaintiff was in fact under a legal disability, I repeat what was said in Fowler v. Gray at 349 as follows:

"... the Court has a special responsibility for the welfare of persons under a legal disability. They lack full legal capacity, they are incapable of waiving their rights, and they cannot give a discharge to the defendant under the `agreement' unless it is sanctioned by the Court. This is the defendant's primary concern: s.59(1), (3). In Day v. Victorian Railway Commissioners (1948-9) 78 CLR 62 at 85, Rich J said:

`It is the interposition of the court, charged with the duty to watch over the infant's interests, that lends sanctity to a judgment for or against an infant and binds him: Arabian v. Tufnall & Taylor Ltd [1944] 1 KB 685 at p.688'.".

"According to law an infant cannot give a valid discharge for payment of moneys due to it nor can a father or other guardian of the person give a valid discharge on behalf of the infant."

Those passages apply equally to a person under a relevant mental incapacity or infirmity for the purpose of the Act. It has always been accepted that a person who is under a relevant legal disability (due to mental incapacity or infirmity) for the purposes of s.59 is unable to give instructions either to conduct or to settle the action or as to the disposition of significant parts of his award: Stephenson v. Geiss; Flemming v. Gibson. Once one or more of the conditions set out in s.65(1) of the Act are established where the plaintiff suffers from a relevant mental infirmity, it is irrelevant that to an observer, the plaintiff is apparently able to give instructions, whether by way of his father as his mouthpiece or through an interpreter. Indeed, one report indicates that the family was reluctant to accept the disability of a loved one, with some element of denial.

The foregoing approach is supported by the history of protection orders. The scheme authorising such orders was introduced to remove the perceived stigma of a formal declaration of mental illness, often regarded as akin to insanity, with a change of status and much less flexibility, involving, as it usually did, the appointment of a committe to the estate and of the person. It required not only a finding of mental illness, but also a finding that such a person was unable to manage his affairs, because not all mentally ill persons are so unable: Cocchi 268 ll.5-10; Re W [1993] 2 Qd R 232. Nevertheless, a protection order still imposes severe restrictions on the person concerned as Part 6 of the Act demonstrates: Re Ross at 73-74; O'Dell v. Barwick at 121; Flood v. Williscroft at 361-2.

This form of protection was made available to persons who may be mentally ill and unable to manage their affairs (but not declared to be mentally ill as such) or persons otherwise than those suffering from a mental illness strictly so called but from some mental incapacity whether natural born or due to disease or injury, providing they were also unable to manage their affairs. This could involve a lesser degree of "mental illness", and includes a person of reduced mental capacity which could not be described as mental illness: RAP v. AEP [1982] 2 NSWLR 508; GPG v. ACF [1983] 1 NSWLR 54; Re W at 233-4. But, as indicated, the essential requirement remained that the person was unable to manage his or her affairs or be subject to relevant undue influence in relation to his estate, the latter being simply an aspect of the former. The Supreme Court Act of 1867, s.22 which, after conferring equitable and common law jurisdiction of the Lord High Chancellor or other equity Judges of England on the Supreme Court, provided the power (inter alia):-

"... to appoint guardians and committees of the persons and the estates of infants and of natural-born fools lunatics and persons deprived of understanding and reason by the act of God and unable to govern themselves or their estates ..."

See the history of the development of this jurisdiction in Re: Ross at 71-72; See also Re Magavalis and Katundi & Katundi v. Hay [1940] St R Qd 39 which dealt with former legislation, and "Protected Persons and their Property in NSW" (Porter and Robinson - LBC 1987 Chapter 5). The relevant provisions ss.65-67 find their place in Part 6 "Management of Estate of Incapacitated Persons" and in Division 2 thereof headed "Protection of Persons under Disability": Acts Interpretation Act 1974, s.35C; Jennys v. Public Curator of Queensland. Section 64 groups together as an "incapacitated person", not only a protected person, but a patient whose estate the Public Trustee is committe or manager pursuant to the provisions of the Mental Health Act 1974, and the other person therein referred to. This grouping suggests a common requirement for the making of a protection order, and for the purpose of this Act, a common meaning of the expression "under a legal disability" (s.59, s.6).

The constant requirement in all cases where any form of protection was thought necessary because of a relevant mental infirmity is the inability of the person concerned to manage his or her own affairs or property. This was also the significant requirement when the question of "unsoundness of mind" for the purpose of s.29 of the Limitation of Actions Act 1974, was in issue: King v. Coupland [1981] Qd R 121 at 137. The term "affairs" is used in its widest sense: DW v. JMW (1983) 1 NSWLR 61 per Powell J pp 63-64; "Protected Persons and their Property in NSW", pp.40-41.

The situation in the United Kingdom is summarised in "Assessment of Mental Capacity - Guidance for Doctors and Lawyers" - BMA (London) 1995, paragraphs 3.2, 3.21, 6.1. Paragraph 3.2 states that where a person by reason of mental disorder was incapable of managing and administering his or her property or affairs, an application could be made to the Court of Protection for the appointment of a receiver to deal with the day to day management of that person's affairs. Paragraph 6.1 states:-

"The legal test for capacity to sue or be sued is whether that person has capacity to manage and administer his or her property and affairs."

This is reaffirmed by the Court of Appeal (Qld) in Flemming v. Gibson. A person who lacks the capacity to manage and administer his or her property and affairs because of the mental infirmity and is therefore under a legal disability, cannot at the same time be capable of giving proper and informed instructions to his legal advisers about the conduct of his litigation and about any question of the risks involved or when a compromise is reached. Whether a person is in fact under a legal disability therefore depends on the evidence adduced in the particular case, as well as the Court's observations of the plaintiff in question. It has also been held that where an application is made for a protection order on the application of the plaintiff and supported by his family and other relevant persons, including experts, this may in an appropriate case be some evidence of inability to manage affairs: O'Dell v. Barwick at 126, either where the only basis is that the applicant is seriously physically disabled, or in any other case such as the present where mental incapacity is also in issue.

It is therefore necessary to consider the medical evidence. During the course of the hearing, substantial reference was made to the plaintiff's condition and disability. This occurred only after Mr North assured the Court that there was no reason why the matter should not be discussed in the presence of the plaintiff who had previously shown no sensitivity in relation to them. There is the added factor that he had difficulty with English. There was no indication that his parents, who understood English, made attempts to interpret the proceedings to the plaintiff. I accordingly come now to the circumstances of the accident and the consequences to the plaintiff which should be considered in more detail.

The reports are quite clear as to his injuries and their consequences. He suffered a severe head injury and was grossly injured. The CAT scan at the time showed extensive intra-vascular bleeding and a small right frontal haemorrhage. He also had a right pulmonary contusion with associated pneumothorax and pneumonediastinum. He suffered a chest infection in hospital. He was unconscious and had no memory of the accident. He remembers waking in hospital but does not know how long it was after the accident. He had a substantial period of amnesia for events both before and after the accident. He was paralysed down the right side. He said that he was hospitalised for about six months at the PA Hospital. He told Helen Coles on 5 October 1995 that he underwent an "operation on the right side of the head to take out clotted blood". He also underwent physiotherapy in hospital and exercises.

He was initially admitted to QE II Hospital then transferred to the PA Intensive Care Unit. He was then transferred to the head injury unit for rehabilitation on 12 November 1991, which indicates that it was almost two months following the accident that he was in intensive care., an exceptionally long period thus demonstrating the seriousness of his injuries. According to the Princess Alexandra Hospital report on 11 March 1992, his major disabilities on transfer to the head injury unit were confusion, a right hemiparesis, a right third cranial nerve palsy, moderate cognitive defects and moderate cognitive language problems. His mobility improved over time and he was mobile on discharge on 21 February 1992, ie. five months after the accident. He continued to have a persistent right hemiplegia and a non-functional right arm. He had a permanent limp. He had difficulty in self care in bathing, fastening clothes and cutting of food. He spent further time as a day hospital patient at the PA until about May 1992 when he started school at Oxley High School in an attempt to learn English.

Dr Simpson, a consulting physician, saw the plaintiff on 27 November 1992 with the aid of his father as interpreter. His mother was also present. In his report of 7 December 1992 he noted a persistent cough, difficulty in sleeping, bad dreams, weakness in the right arm and legs, difficulty with clothing and with holding a knife and fork, and an ungainly walk. He complained of trouble with vision which the doctor took to be double vision. There were significant mood changes; he was easily upset; his concentration was poor; he angered easily. He often hit his fist on the wall. His father described him as having a complex of inferiority and the family at times were hard pressed to control his emotional outbursts. He also claimed of micturition problems, headaches everyday over the left eye, worse when he was tense and tired. Reading became a blur after 10 seconds. He experienced a change of sensation of touch in the right hand but found it impossible to explain the differences from what it was previously. He frequently dropped things. Dr Simpson expressed the view that it was extremely unlikely that the plaintiff would make any further recovery and the right haemparises would be a major disability throughout his life. He said the plaintiff's problem was compounded by the fact that he was at a most vulnerable age for any major disability to occur and by his poor command of the English language. Employment prospects were poor. The doctor said that the plaintiff experienced enormous psychological stress and had even mentioned suicide. That possibility also appears in later reports. Dr Simpson urged the importance of a full psychiatric assessment which, as indicated, occurred by Dr Grant's examination on 3 April 1996 resulting in his report of 4 April 1996.

David Shumm, Psychologist, saw the plaintiff on 30 March 1993 and 6 April 1993 with the aid of an independent interpreter and furnished a report of 12 May 1993. He conducted tests. He referred to memory problems, headaches, sleeping difficulties and difficulty in keeping up with English lessons. He said he was not getting much support and understanding from other members of his family. He had worked in Vietnam for a limited time but never in Australia. Mr Shumm has said the level of functioning and general knowledge, non-verbal reasoning, motor speed, speed in processing visual stimuli and delayed visual-spatial memory were all found to be lower than expected. There was also evidence of verbal learning difficulties.

Rhonda Klouda, Physiotherapist from the Department of Human Services and Health in her report of 7 June 1993, referred to the right hemiplegia, the non-functional right arm, increased extensor tone, right calf resulting in loss of right angle dorsi flexion, decreased light touch sensation and proprioception right foot, poor coordination, decreased balance, inability to stand on the right leg only and had to concentrate to stand on left leg only for a few seconds, poor trunk stability and poor gait. He walked slowly and awkwardly and in an uneven way. He had to concentrate on maintaining his balance and had difficulty feeling where he was placing his right foot.

There were reports by speech therapists Vicky Wilks dated 27 August 1993 and 11 November 1990 and a report by Silvia Dimes dated 24 January 1994. Both therapists noted his poor concentration and other problems. Silvia Dimes reported on his language and learning disabilities. During Vicky Wilks' examination with the aid of an independent interpreter, the plaintiff said he had difficulty remembering what people had said to him and that he often forgot words in both English and Vietnamese and occasionally came out with a wrong word. He said that his memory was deteriorating. His family laughed at him and called him a silly boy and he felt like an outsider to his family. She conducted various tests. The evidence suggested mild sequencing difficulties possibly related to impaired auditory memory and he tended to repeat himself which altered the overall chain of events. He found it difficult to perform the processes of reasoning and problem-solving and at times appeared to find it difficult to change set. He often merely stared at her or played with his right hand. In court he often appeared to stare in different directions with no apparent purpose. She concluded that the plaintiff had significant cognitive and memory difficulties. He was slow to process information, was unable to comprehend the more complex linguistic structures, had reduced attention and concentration and was unable to perform many of the processes involved in organised and planned thinking. This she said, explained his difficulty in learning English.

Ms Wilks' second report, dated 11 November 1993, focused mainly on training strategies to improve retention and recall of auditory information. She reiterated the problems referred to in her previous report, mainly difficulties in both auditory memory, storage, retention and recall and simple organisational processes.

Mary Nagel, a social worker, made a home visit on 27 September 1993 aided by an independent interpreter. She prepared a lengthy report. Both parents and all four children were present. The parents preferred communicating in Vietnamese even though their command of English was fairly good. Miss Nagel said the three other children, unlike the plaintiff, were very comfortable with both Vietnamese and English. This put the plaintiff at a permanent added disadvantage.

The family, which appeared to her to be anxious and defensive, disclosed their difficulties with the plaintiff, including anger outbursts, ease of irritation, and his feeling that people in the community stared and laughed at him because of his deformed arm. He lacked ambition and motivation, watched TV late at nights and kept the rest of the family awake. She noted that at the time of the accident both parents and the two eldest children were in full-time employment. The parents had purchased their own four-bedroom house with a bank loan and the youngest child and the plaintiff were students. She said that like most Vietnamese, their financial security and home purchase were a high priority. All working family members were employed as factory process workers. Apart from the accident, this was a probability open to the plaintiff which was destroyed by the accident. She noted various problems about sleeping and the like. She described him as having suffered a severe disability which required a lot of positive encouragement and help in linking into the community and people of his own age.

The plaintiff and his family appeared to her to have a prejudice against voluntary work or any connection with disabled people. She thought this may have been a cultural way or may signify the denial of the plaintiff's disability. She said there were obvious cultural and grief factors hindering his development. The family were ashamed of his physical and mental presentation and seemed to her to encourage his isolation. They would not agree to his involvement with disabled groups, possibly because of their prejudices. Her opinion was that the family were highly sensitive to Government interference and any interference from any members of their own cultural group. She formed the opinion that the plaintiff's injury and disabilities were a major inconvenience to the family and their plans for the future.

Mr F. Walsh, clinical psychologist, saw the plaintiff on 30 August 1994, 7 September 1994 and 15 September 1994. During the first two sessions he was assisted by an independent interpreter. He also separately interviewed the plaintiff's parents and sister on 30 August 1994. He furnished a report dated 19 September 1994. His report was detailed and referred to the plaintiff's history. The plaintiff could not remember his father's age or precise details about his family and their history. He had no memory of the accident at all, that is when or where it happened or how it happened. The plaintiff reported headaches, dizziness and blurred vision and strange feelings in his head. He also found it difficult to lift things that required two hands. He also said that he forgot everyday things and his concentration was limited to reading for a few minutes at a time. The family reported to Mr Walsh that some three or four months after the accident he was able to remember back a day or so at a time but could not recall events that were two to three days or more ago. They said that his ability to learn new material was not improving and he could not learn anything new since the accident. They reported that the plaintiff felt sorry for himself and that he cried frequently, banged his head against the wall and stated that he wanted to die. They reported that they tried to comfort him and that he responded somewhat to that.

Various psychological assessments were conducted. Some tests were performed which showed that the plaintiff was in the subnormal range, and some tests showed that about 98 per cent of the population would exceed his verbal score and about 99% of the population would exceed his performance score. Mr Walsh said that the results should not be interpreted literally and that "it seems reasonable to me to assume that Mr H is currently functioning intellectually in the low/normal range", which he said would place him in the bottom 25% of the population. He did not say at which approximate point within that range. Mr Walsh's opinion was expressed as an assumption. The plaintiff was unable to give a complete account of recent events and of his past history. He had most difficulty with tests requiring concentration, verbal abstract reasoning ability, social and cultural awareness and understanding and visual and verbal sequencing. He concluded that this pattern of results was consistent with his reported head injury particularly the injury involving the frontal lobe. The plaintiff did very poorly on short-term verbal memory and new learning ability. His results showed that he was unable to learn new verbal material beyond which he could hold in his immediate attention span, and his memory performance was not improved with cued recall. Mr Walsh concluded that the results suggested that he has quite a significant verbal memory and new learning ability deficit and that his problems are with the storage of information memory not its recall from memory. He also said that it was then more than two years post-accident and it was unlikely that he would make any further significant gains in terms of memory capacity.

Mr Walsh said that the plaintiff also had difficulty following instructions. His organisational ability was quite poor and he had considerable difficulty shifting concepts. His obvious right-sided motor deficits and essentially non-functional right hand and limb were noted. Mr Walsh concluded that he did not believe the plaintiff was exaggerating any of his deficits.

Mr Walsh took into account the reports from the family that the plaintiff was unable to learn new material which was non-existent since the accident. He could only remember things from the previous day but not further back. There were significant emotional problems since the accident. His mood was changeable and he became very emotionally distressed at his losses. He was irritable and short-tempered.

Mr Walsh reiterated the foregoing in his conclusions. He reaffirmed that the plaintiff had particular difficulty with tests requiring concentration, verbal abstract reasoning ability, social and cultural awareness and understanding and visual and verbal sequencing. In particular, his verbal and abstract reasoning ability and verbal and visual sequencing ability was in the extreme deficit range. His memory functions were quite severely impaired. His short-term verbal memory and new learning ability was essentially non-existent. His capacity for planning, following instructions and shifting concepts all suffered from quite severe deficits. He was essentially unable to learn a complex serial learning task and showed clinically significant signs of persistent rule-breaking, back-tracking, and perceveration of errors. Again he said that those results were consistent with significant frontal lobe damage. Mr Walsh concluded that the plaintiff suffered quite severe cognitive impairment and it was unlikely that his overall level of intellectual functioning, his memory and his new learning ability and his ability to control and regulate his own behaviour would be likely to improve. They were significantly impaired. He also had significant impairments of motor function and is quite severely emotionally disturbed. It was unlikely there would be any further improvement. Mr Walsh said that the plaintiff had a very supportive family so that it was possible that his emotional state may stabilise and improve over time, although other reports suggested to the contrary and that the plaintiff viewed his family support in a different light. Mr Walsh said that the plaintiff would be essentially unemployable for life. (emphasis added).

Mr Walsh did not specifically state whether or not the plaintiff had the ability to manage his own affairs or whether or not the plaintiff was able to understand the nature of the legal process, his claims, the risks associated therewith, and any question relating to whether or not his claim should be compromised. Nevertheless, it is not essential that medical practitioners or others must necessarily use the precise words of the section before the Court can be satisfied that the conditions prescribed in s.65 have been made out: See Flood v. Williscroft at 360 and authorities there referred to, including W v. L [1974] 1 QB 711 (CA ), 719 per Lawton J, referred to in Re Ross at 70 and in R v. Enright [1990] Qd R 563 at 572. Mr Walsh's report justifies all findings necessary under s.65 for a protection order based on a finding that the plaintiff was under a legal disability for the purposes of s.59, including a finding that he was not in fact able to understand and comprehend the nature of the legal process and all of its various ramifications.

A report received on 21 November 1994 from the Commonwealth Rehabilitation Service (Robyn Klouda) indicated an initial interview with the plaintiff and his mother through an independent interpreter on 22 February 1993. Ms Klouda who had furnished a report of 7 June 1993 referred to above, had access to neuro-psychological assessments performed by Dr Schumm on 30 March 1993 and 6 April 1993. She referred to the number of physiotherapy sessions in which the plaintiff participated, and language assessments which were performed on 27 August 1993. Information at the interview primarily from his mother showed that the plaintiff relied very much on his parents to organise him. He became confused easily, was very forgetful, very isolated, very conscious of appearance, unable to learn English, did very little activity, had residual physical problems, became angry quickly, and endured strained family relationships. Reference was made to the cognitive deficits, residual physical problems and poor language and communication. Language assessments were performed. Miss Klouda said that he displayed significant cognitive deficit, as did Mr Walsh. He had deficits in motor speed, nonverbal reasoning, decreased new learning and delayed recall. He was slow to process information, was unable to comprehend the more complex linguistic structures, had reduced retention and concentration and was significantly unable to perform many of the processes involved in organising and planned thinking. He also suffered from psychological problems which included lack of understanding and support by family members and his sense of loss of control in his life. He also suffered isolation and boredom. (emphasis added). This report reinforces the findings open on Mr Walsh's report.

Dr John Cameron, Consultant Neurologist saw the plaintiff on 7 April 1995 with the aid of an independent interpreter. His parents were present. He furnished a report of 12 June 1995. He referred to the injuries mentioned in the hospital records at the time and treatment up to his discharge on 21 February 1992. He referred to the fact that there was an overall impression that at the time of his discharge his mentation and memory seemed largely intact. However, on questioning the plaintiff, Dr Cameron formed a different view. He noticed that the plaintiff had no recall whatsoever of the accident or when he started to form memory after the event. His mother said he only had islands of memory but they were usually inaccurate with respect to time and place. He mentioned his shame because of his poor memory and physical appearance. He now used the left hand because of the right arm paralysis. He tired easily. His mother said that he was easily upset, short-tempered and tended to worry over trivial events. He felt ashamed because of his disability. He experienced headaches with loud noise and when he was hot. His memory was defective. He suffered occasional diplopia. Tests revealed that his mentation appeared to be quite slow, unlike the view expressed in early hospital reports. The doctor referred to his severe physical disability. The doctor concluded at that time that it was highly unlikely that he would gain any further recovery. An EEG study was performed on 13 April 1995. However, he concluded:-

"I believe this man is capable of an independent existence and will be capable of looking after his own financial affairs. He is, however, restricted because of poor level of English understanding and expression. I believe he could only be employed in some unskilled supervising labouring position."

There is nothing to indicate whether Dr Cameron was aware at that time of the likely extent of the plaintiff's financial affairs or the extent of his experience with his pension. However, as indicated, it appears from Dr Cameron's report that he did not have access to all of the numerous documents to which I have referred, other than a reference to the early hospital records, and even so he qualified his opinion by the final comment that the plaintiff was restricted because of a poor level of English understanding and expression. Indeed, this opinion seems to be somewhat at odds with what may reasonably be inferred from the views of all other professionals to that time as to his capacity. It is also at odds with other reports about his ability to work at all, as well as with the subsequent reports of Helen Coles and Dr Grant.

Helen Coles, Occupational Therapist, assessed the plaintiff on 5 October 1995 with the aid of an independent interpreter, and furnished a report 23 February 1996. She reviewed previous reports of Mr Walsh (19 September 1984), Dr Simpson (7 December 1992) and Dr Cameron (12 June 1995). She referred to the plaintiff's awareness of all of his injuries and disabilities. He suffered constant pain in the neck and moved it a lot to relieve the pain. In winter his right arm and leg became stiff and he experienced pain. He had limited fine finger dexterity. His right leg was weak and he tended to trip and he had lost his toe nail once. His back hurt if he had to bend. His balance was poor and he tended to stumble. He found moving around more difficult than before. He could use both arms to perform a task reliably but could not lift or carry heavy or large items. He had difficulty in descending stairs because of his right leg weakness, his energy levels were low and he tired easily. He experienced sleep difficulty and then did not sleep long once he got to sleep.

The plaintiff described his change in personality, memory problems and concentration difficulties. He was unable to do many of the physical activities which he experienced before the accident. During convalescence he was cared for by his mother. He was initially in a wheelchair for a period and then used a walking frame. He required assistance with bathing and dressing. At the present time he required assistance with difficult and tight trousers or anything needing two hands. He needed help with transport. He hated his loss of independence which apparently frustrated him. He was not able to prepare meals and cook. He could not do anything requiring two hands. He was able to attend a laundry and brush his clothes with one arm. He could peg out with his left hand. He did not believe that he could live on his own. He would need help with cooking and doing anything with two hands. He did not consider that he was able to perform any open employment.

Helen Coles also separately interviewed the plaintiff's father and mother who gave a history of the plaintiff's background and changes since the accident including mood changes, anger and becoming upset easily. When he first came home he tried to hit his head against the wall. He became aggressive, angry, cranky and upset and needed calming down. He was afraid of noise, even the creaking noise in the house. His memory was bad and he got mixed up in memories and needed a lot of reminder. He regularly forgot instructions. He seldom went out alone for long. He had difficulty with word finding and often used the wrong word which frustrated him. They said they could not envisage him living alone. His mother worried about how the plaintiff would take care of himself were she not there. She thought that he will not marry because of his instability and mood. He had been very intelligent and well-balanced and involved in sport and music and had a lot of friends before the accident according to his mother, and now has only one or two friends who see him.

Helen Coles then conducted various assessments. She concluded that the plaintiff experienced quantitative and qualitative deficiencies in functional capacities, impairment of both physical and cognitive function, deficiencies in his ability to recall specific instructions, his capacity for forethought, forward-planning and task organisation. His interaction was indicative of his having experienced frustration by the substantial impact the incident had on virtually every aspect of his lifestyle personally, interpersonally, psycho-socially and vocationally. There were indications of depressed mood and difficulty accepting his dependent situation. His enjoyment of amenities was substantially compromised. He had limited capacity to care for himself during convalescence and had a substantial reliance upon his parents. She said that the extensive care and assistance of someone with the level of difficulty of the plaintiff was substantial. He required assistance of a personal and domestic nature but required substantial emotional support and therapeutic companionship as currently provided by his parents, without which his psychological/ emotional condition would deteriorate substantially. Despite rehabilitation intervention towards restoration of physical function and independence in daily living, he had little likelihood of obtaining any realistically remunerative employment and had little prospect on the competitive labour market given his limited English, limited proven history of employment, and obviously limiting handicapping conditions. She noted that although it was proposed by an earlier remark of Dr Cameron that the plaintiff could engage in unskilled labouring positions, her view was that commercial reality meant that a prudent employer would not consider it practical to engage a person with poor balance and right sided paresis in unskilled work when such is usually labour intensive, usually requiring balance, bi-manual co-ordination and substantial load handling and or manoeuvering. It would be exceptional in her view that he was likely to obtain any work. It is difficult not to agree with that opinion. It accorded with that of Mr Walsh.

Dr Donald Grant, Clinical Associate Professor in Psychiatry, saw the plaintiff on 3 April 1996. He furnished a detailed report on 4 April 1996. Of significance, he tabulated some 15 reports dated since 21 September 1991 and right up to the report of Dr Helen Coles dated 23 February 1996 which he had reviewed. He interviewed the plaintiff in the company of an interpreter. He then interviewed the plaintiff's father. After referring to the history and the sequelae of the accident, he noted the plaintiff's physical disabilities and the plaintiff's report of his cognitive disabilities, his poor memory, his forgetfulness, gaps in long term memory, his quite severe problems with temper and his easily erupting anger. He frequently hit his head against the wall which made people think he was crazy. He said this still happened occasionally but he was not able to explain why. In terms of mood, the plaintiff stated that he at times felt depressed and particularly when he went out and felt that people were looking at him. He felt alienated from others and not like other people. This made him feel uncomfortable. At home if he felt depressed he tried to distract himself by doing some homework. He felt that he had lost a lot of confidence and self-esteem. He had lost the ability to use chop sticks. He changed his own bed linen but he did not do any housework. He occasionally did some ironing. He had a very limited social life. He had quite a few friends prior to the accident but now only one or two. Of significance is the following at p.4 of the report:

"In terms of his ability to manage money H reported that he is currently on a pension. He believes that he receives $345 per fortnight. His mother manages his money for him. He says he has nothing to do with any banking and it sounded as if he did not have a bank account. He said that he gives his mother more than half his pension when he receives it and he keeps the rest in his pocket for spending when he goes to school or out with his siblings. He said that he knows if he can afford to buy something by the price on the item, but he is not sure that he would know how much change he should receive.

When I asked him how much change he would receive from $20 for a $2-40 drink he thought for some time and replied $18-70.

H seemed to understand that he was involved in a compensation process. He knew that his solicitor was assisting him in this task, but said that his father does most of the talking for him. He knew that there was a possibility he would receive a sum of money in the future as compensation. He was not sure what he would do with his money but thought that he would put it in the Commonwealth Bank for it to be safe. He did not know about the potential role for the Public Trustee. I explained how the Public Trustee might be asked to manage his money and he "seemed" to understand this explanation." (emphasis added).

Dr Grant then interviewed the plaintiff's father who confirmed the problems outlined by the plaintiff, physical, psychological and otherwise. His father referred to personality changes, short temper, his slow memory and particularly difficulty with learning new things. The plaintiff's father felt that the plaintiff would be able to manage money reasonably satisfactorily and had not noticed any tendency to spend money unwisely at the moment. His father said that he thought the plaintiff had reasonable understanding of the compensation process. He expressed concerns about his son's future prospects from the social point of view and felt there were limited opportunities for him to have relationships or get married. He said the family were happy to care for him in the future and if he had the opportunity to get married they would support him because this would mean he would have a wife to care for him. The plaintiff managed the bulk of his pension money and he retained less than half to spend on his daily needs. His father's opinion concerning ability to manage money is therefore of very little value.

Dr Grant then conducted various tests. On examination, the plaintiff appeared quite anxious during the interview and was restless. He appeared to comprehend questions asked through an interpreter. Dr Grant noted no obvious abnormality in thought processes. His mood during interview appeared fairly normal and there was then no irritability or aggressiveness and no effective lability. No psychotic features were evident. He was apparently oriented to day and date. He knew he was in the city but could not tell the address of the office. Tests of concentration were performed with some mild error. Retention of verbal material showed moderately severe abnormalities. Limited testing of frontal lobe functioning was carried out and this showed moderately severe deficits with three sequencing errors in dual track task, showing difficulty in shifting cognitive set.

Dr Grant said that the chest injury in combination with the head injury was a potentially serious combination since anoxia from the chest injury can worsen the extent of brain damage from the head injury. He noted that the post traumatic amnesia was probably in the order of at least two months indicating a very severe closed head injury which was confirmed by the physical and radiological findings at the time and the symptoms which subsequently remain. He said that the plaintiff, in addition to his substantial physical sequela, had a range of memory and cognitive defects which resulted from his brain injury. He had some language difficulty and significant memory deficits particularly in terms of retention of new verbal information. His verbal recall problems represented a serious barrier to the plaintiff's rehabilitation and potential for any retraining. He had great difficulty with the learning of English because of his memory difficulties. It appears that the rest of his family have been able to learn English satisfactorily. Dr Grant referred to the personality changes and problems with temper control representing a barrier in terms of socialisation. The plaintiff felt depressed, became frustrated and experienced a loss of esteem and self-confidence as a result of his injuries. Social implications were severe. Dr Grant referred to the serious physical consequences, namely a severe right hemiplegia with a virtually useless right arm and the fact that the plaintiff walked with a spastic hemiplegic gait. Those physical disabilities alone represented a wide range of limitations to his everyday activities and represented a serious barrier to any future employability. Dr Grant then made the following important observation at p.8:

"H has some understanding of his financial position and does not seem to have too many difficulties with the limited money managing that he is currently involved in. However his concepts about the value of money, his ability to plan and organise a substantial financial investment would be very limited." (emphasis added).

This highlights the little value of the view of the plaintiff's father about the plaintiff's capacity to handle money. The doctor considered that all deficits were consistent with a severe brain injury as a result of the accident, complicated by his cultural and social situation and language problem. He expressed the view that the plaintiff's deficits and other aspects of his situation will make him permanently unemployable. His deficits represented an insuperable barrier to future employment. He also said that the plaintiff would be permanently to some extent dependent upon others. Although he was independent in many everyday activities, the planning of his life and the care of his ongoing nutritional and social needs would be beyond his own independent skills. He said that the family were currently providing his caring role but if not available he would be in need of some supportive agency. Dr Grant then stated at p.9:

"In my opinion H would not be fit to manage any substantial compensation settlement which he might receive. He lacks the ability to plan and organise such an investment and would be vulnerable to exploitation. I believe it would be in his own interests that the Public Trustee be involved in caring for his compensation sum.

H appears to understand that he is involved in a compensation process and I believe that he has sufficient ability to instruct his solicitors and to understand the implications of his legal instructions. However in a practical sense he is somewhat reliant on his family for assistance in this regard. I believe that this is appropriate." (emphasis added)

Dr Grant's latest report of 1 May 1996 referred to the plaintiff's considerable difficulty in achieving academic success. He said that this was consistent with the memory and cognitive difficulties which he displayed at examination. Notably, far from concluding as did Dr Cameron that the plaintiff was capable of an independent existence, Dr Grant's opinion is to the opposite effect. So also with his ability to manage his financial affairs.

It is clear from the above reports that the plaintiff has suffered and still suffers from severe physical, cognitive and other intellectual disabilities. It is also clear that notwithstanding that Mr Walsh categorised the plaintiff as in some cases performing worse than 98 or 99 per cent of the population and assumed that he was in the low/normal range which involves some place in the lower 25 per cent of the population, this does not mean that because he was in that range he was able to manage his affairs. As already indicated, whilst it is well-known that a person of relatively low intelligence (but not sub-normal) may be perfectly able to manage his affairs whereas a person of a relatively high level of intelligence may not be able to do so, other factors obviously come into play: Flemming v. Gibson.

The Court is not bound to act upon the opinions of experts, particularly isolated excerpts from the opinions: Flood v. Williscroft at 360; Re Cochran (1965) 46 DLR (2d) 587, 591 per Disbery J; Re Ross. Nor, as already indicated, is it essential for an expert to use any particular language couched in terms of the legal requirements of s.65 or s.59: R v. Enright at 572. As indicated, the plaintiff in Court appeared to be totally disinterested and appeared to stare aimlessly about the room during all of the proceedings as one report also mentioned during an interview with no apparent attempt by his parents to interpret the proceedings for him.

Even taking into account the personal contact the plaintiff's legal advisers had with the plaintiff and his family, the whole of the material and submissions compel the conclusion that by reason of physical and mental infirmity, the plaintiff is, within the meaning of s.65, continuously or intermittently, unable, wholly or partially to manage his affairs and that he is subject or liable to be subjected to undue influence in respect of his estate or part thereof or in the disposition thereof. I also have no doubt on all of the evidence presented and submissions that he is a person under a relevant legal disability within the meaning of s.59 and that he is a person unable to understand in an informed way the nature of the legal proceedings, his claims, the risk associated therewith and any settlement in relation thereto. In these circumstances, his estate clearly needs protection as his legal advisers properly recognized and have advised him and his family accordingly, hence this application.

Mr North then outlined the history of the action, its nature, and matters bearing upon the quantum of the settlement. Liability had been very much in issue. The action was a speculative one and there was a risk of failure. There was a discount because of risk factors. Mr North stated that an amount had been allowed for the Public Trustee charges in the settlement. Mr Tait who represented the Nominal Defendant stated that a figure of some $30,000 was included in the initial global sum for Public Trustee charges during negotiations which led to the ultimate settlement. Its final component does not appear but it has been taken into account. Having regard to the plaintiff's detailed statement of loss and damage, the submissions by Mr North and the opinion by Mr North and the plaintiff's solicitor that the settlement was reasonable, there would be no doubt that the settlement arrived at was for the plaintiff's benefit and would have been sanctioned had application been duly made in that regard. There is no doubt that the plaintiff's interest have been well cared for in this respect by his legal advisers.

The further affidavit exhibited the Solicitor Own/ Client Memorandum of Costs and Outlays clarified by reference to scale. These were not adjusted in any way to reflect the fact that it was a fully speculative and risky action with respect to solicitors' costs and outlays. It is not generally recognized that many solicitors in the public interest take on actions such as this with considerable risk to themselves as to costs and outlays. A document was exhibited setting out the party and party costs drawn up by Monsour Legal Costs Pty Ltd. I accept without question that all of the sums involved were fair and reasonable having regard to costs involved in many other cases that have become before the Court. There was only a minor difference of $3,382.65 between solicitor and own/client costs and party and party costs and that included a figure of $1,284.24 interest in respect of the overdraft funding of outlays. The further affidavit shows that the plaintiff's solicitors received a cheque from the defendant's solicitors of $325,290.48. This represented the sum of $380,000 less $11,083.01 it repaid to the Commonwealth Rehabilitation Service pursuant to a charge upon the defendant and less a further sum of $43,626.51 it repaid to the Department of Social Security pursuant to a charge upon the defendant. Paragraph 14 of the affidavit states that there is a net sum of $321,349.52, standing to the plaintiff's credit, being the settlement moneys less refunds plus party/party costs and no doubt the costs involved in preparation of the bills. This is the sum that is sought to be paid to the Public Trustee.

This leaves the question of whether s.67 is applicable because of the apparent limiting words in s.67(1): "Where in any action in the Court ...", the Court may in accordance with that section make a protection order. The question is whether, if the settlement or compromise arrived at was a valid settlement because the plaintiff was not a person under a legal disability within the meaning of s.59, there was still any action remaining "in the Court". This section has always been regarded as being applicable in a case where a Judge (or a Master) was hearing an action or even an application for a compromise in an action which was still pending. See for example, Fowler v. Gray at 337 and Cocchi v. Cocchi at 268 l.45-50. I do not accept that the summons seeking the order on this application was an action in the Court. An action is a proceeding commenced by a writ: See the annotations to Order 2, RSC, Queensland Supreme Court Practice [2.1.5] and Fielding v. Janosevic [1983] 1 Qd R 352 at 356. Mr Kelly for the Public Trustee submitted that s.67 was spent. This is made clear by Halsbury's Laws of England 4th ed Vol 37 para.391 as follows:

Where the parties settle or compromise pending proceedings, whether before, at or during the trial, the settlement or compromise constitutes a new and independent agreement between them made for good consideration. Its effects are

(1) to put an end to the proceedings, for they are thereby spent and exhausted;

(2) to preclude the parties from taking any further steps in the action, except where they have provided for liberty to apply to enforce the agreed terms; and

(3) to supersede the original cause of action altogether."

There are several authorities cited in support of that proposition which in my respectful opinion is clearly correct. This means that on the plaintiff's approach, the Court has no power to make an order under s.67. There would no longer be remaining "any action in the Court". On directing attention to s.65 under which the Court may make a protection order but only on the application of the Public Trustee, and upon asking Mr Kelly whether the Public Trustee would be prepared to make an application for a protection order, he stated that upon all of the information now available to him, the Public Trustee would be prepared to bring such an application instanter. He requested that if such an order was made, the Court should declare whether or not the costs incurred were reasonable as this is a matter which ordinarily concerns the Public Trustee when a protection order is made consequent upon an action for damages. Mr Kelly cited the well known authority of McPherson SPJ (as His Honour then was) in Re W at 235 where, on a petition presented under the Mental Health Services Act 1974 for a declaration that Mrs W was mentally ill and incapable of managing her estate, His Honour held that the plaintiff was not "mentally ill" within the meaning of cl.4(2) of the 5th Schedule to that Act, but His Honour was well satisfied that she was suffering from an intellectual or "cognitive" defect that rendered her "in some degree incapable of managing her own affairs". Whilst not holding that she was "mentally ill", His Honour held that she was "vulnerable in financial matters" which caused His Honour then to consider s. 65(1)(a) of the Act which provided that a person who "by reason of age etc" is unable "wholly or partly" to manage her own affairs. His Honour said that that being so, the Court may on the application of the Public Trustee, make a protection order appointing the Public Trustee Manager to take possession of and manage all, or such part as the Court directs, of the estate of such a person. On indicating that if the Public Trustee applied then and there, an order would be made. Mr Kelly stated that this was what occurred in that case. Mr North did not oppose an order made on the application of the Public Trustee.

Mr Kelly drew attention to ss.71, 72 of the Act which are also within Division 2 of Part 6. If the Public Trustee is satisfied from information available to him that a person is a person whose estate should be managed in accordance with that Part, and such person requests the Public Trustee to undertake such management, the Public Trustee may sign, seal and file in the court a certificate of disability. The Public Trustee must have regard to the purposes of Part 6 of the Act in order to be satisfied that a person's estate required protection and should be managed due to the inability of the person concerned to do so. This provision is of general application and does not require an action. Nevertheless, a Certificate of Disability is not issued for the mere asking. There has to be good reason. Even if an application is made pursuant to ss. 71, 72, the Public Trustee may elect to apply to the Court under s.65 for a protection order if it is thought that the Court's ruling is necessary in the particular case. By s.72, when a certificate is filed, the person to whom it relates shall become a protected person and the Public Trustee shall be manager of the estate of such person. All other consequences shall ensue as if a protection order had been made under s.65. On all of the information available, and having regard to Mr Kelly's preparedness to apply for a protection order, the Public Trustee would no doubt be satisfied that the plaintiff was such a person.

Mr Kelly submitted that in an appropriate case this course was very simple and may avoid an application to the Court and any costs. It is not clear why this scheme was not attempted by the plaintiff's solicitors, having regard to their firm view that the settlement was valid without a compromise as it would have saved the costs of this application if the Public Trustee acted under s.71 and did not apply to the Court under s.65. Mr North did not ask that the application be dismissed and be allowed to proceed by that method. He submitted that the Court should make a protection order including a costs order against the Nominal Defendant and conceded that the protection order could be made with respect to the whole estate of the plaintiff, and not limited to the net moneys received from the defendant.

A practical course should now be followed. The following are the possibilities:

1. That the application under s.67(2) be dismissed, leaving the applicant to apply to the Public Trustee under s.71. The delay would not be in the plaintiff's best interests because Mr North submitted that there are urgent financial constraints on the plaintiff and costs of the application have already been incurred. A protection order should be made as soon as possible.

2. Declare that the plaintiff was in fact a person under a relevant legal disability so that the compromise should have been sanctioned, the consequence being that the compromise is of no force and effect (s.59) so that the action is revived and is still an action in the Court for the purpose of s.67. The Court could then sanction the compromise which would clearly have been done in any event, and then make a protection order pursuant to s.67 on the application of the plaintiff as advanced; or

3. Declare that the settlement arrived at between the parties was for the applicant's benefit and make a protection order on the application of the Public Trustee pursuant to s.65.

It should be stated that no reliance was placed upon s.65(1)(b) of the Act. It is therefore not necessary to consider its scope in any detail. That section has generally been regarded as a catchall requiring similar considerations to the policy represented in s.65(1) generally, having regard to its overall place in Part 6 of the Act. This application is based on s.65(1)(a).

I accept that the plaintiff's legal advisers acted in the belief, with some justification in difficult circumstances, that the applicant was capable of giving instructions, notwithstanding his mental incapacity, even though I have formed a contrary opinion. No detriment has been caused to the plaintiff but the contrary, the plaintiff's interests have been well cared for by his legal advisers both as to the quantum of the settlement and as to the need for the protection of his estate by an independent trustee. I propose to act in accordance with the number 3 above. Mr North and Mr Kelly both agreed that this is a special case where notice of the application under s.65(2) of the Act need not be served on the plaintiff personally. I direct accordingly.

Mr North submitted that the Nominal Defendant should pay the costs of the initial appearance in Chambers and the adjourned hearing on 19 November 1997. Mr Tait for his part submitted that the Nominal Defendant should have costs for one day. Mr Kelly did not seek costs on behalf of the Public Trustee, having regard to the fact that he appeared at my invitation to assist the Court and the plaintiff. As indicated, the costs of an application for a sanction would have been incurred in any event. I am not prepared to accede to Mr Tait's submission, even though an adjournment was necessary, having regard to all the circumstances. In the result, the following declaration and orders are made:-

1. The compromise arrived at is for the plaintiff's benefit and is sanctioned.

2. The Public Trustee of Queensland be appointed manager to take possession of and to control and manage the estate of the plaintiff including:-

(a) the sum of $321,349.52 being the moneys received from the defendant, less solicitor and own client costs and refunds, plus party and party costs, on behalf of the plaintiff, (hereinafter called the "trust sum"). The Court declares that those costs are reasonable.

3. The solicitors for the plaintiff pay the trust sum to the Public Trustee of Queensland whose receipt therefore shall be sufficient discharge.

4. The plaintiff's costs of and incidental to this application be taxed as between party and party and as between solicitor and own client.

5. The amount of costs taxed as between party and party including costs (for both days) be paid by the defendant to the solicitors for the plaintiff.

6. The Public Trustee pay out of the trust sum to the solicitors for the plaintiff the difference between the amount of costs received from the defendants and the amount of costs taxed as between solicitor and own client with liberty to the plaintiff's solicitors to apply in case of non-recovery of party and party costs for such costs to be paid out of the trust sum paid to the Public Trustee.

7. Direct that the Public Trustee of Queensland hold the trust sum in trust for the plaintiff absolutely and apply such funds as the Public Trustee of Queensland thinks fit for the benefit of the plaintiff.

8. That a copy of this order and the reasons for decision delivered this day be forthwith delivered to the Public Trustee by the plaintiff's solicitors.