Morris v Clair [2004] QSC 127

[1] WILSON J: This is an application that the compromise of the proceeding be sanctioned.

[2] The plaintiff was injured in a motor vehicle accident on 2 May 1997. Her husband and infant son were killed in the accident. The plaintiff brought this proceeding for damages for personal injuries and loss of dependency. It was compromised at a mediation conference in January 2004 on terms that the second defendant pay the plaintiff $535,000 damages together with costs. The compromise was made subject to the sanction of the Court.

[3] The plaintiff was born on 6 May 1971. In the accident she sustained a range of facial and dental injuries as well as seatbelt bruising and abrasions to her chest area. There is conflict in the medical reports whether she sustained an organic brain injury. By far the most significant injury was a severe adverse mental reaction to the deaths of her husband and son. She has developed a psychotic illness.

[4] The plaintiff has sworn an affidavit in which she has deposed to the course of that illness since the accident, her present circumstances, her consultations with her legal representatives before and during the mediation, her satisfaction with the compromise, and the arrangements proposed for dealing with her financial affairs in the future.

[5] The plaintiff lived independently from shortly after the accident until about June 2001 when she experienced her first psychotic episode. She was hospitalised in Perth for a period of weeks. Upon her discharge, she moved to Newcastle where her parents and brother live. There she lived sometimes independently, sometimes with her brother, and sometimes independently but close to her father. She was prescribed antipsychotic and antidepressant medication.

[6] In about May 2003 she became non-compliant with her medication, and in about July 2003 she suffered another psychotic episode, which necessitated a short period of hospitalisation. She has since been compliant with her medication, and has not suffered any further psychotic episodes. She is under the care of a consultant psychiatrist, Dr Graham Vickery, who is to review her intermittently.

[7] The plaintiff is employed fulltime as a dental nurse. She is living in a self-contained cottage at the same address as her father. This allows her independence while at the same time giving her daily contact with her father who is able to assist her if the need arises.

[8] In a report dated 10 March 2004 Dr Vickery said -

Ms Morris was seen with her father and was casually dressed and appeared reasonably relaxed. She was responsive, cooperative and gave a coherent and chronological history. There was good eye contact and her speech was normal in speed, rhythm and syntax.

Ms Morris's mood range was normal and there was no evidence of clinical anxiety or depression. There was no evidence of paranoid ideation however she was aware of having 'a strange thought sometimes that I can reason about and have insight into...'. There was no thought disorder involving either her thought process or thought content. There was no perceptual disorder, hallucinations or evidence of gross cognitive impairment.

There were no apparent intrusive or distressing recollections of traumatic events or images, dissociative symptoms, flashback episodes, excessive physiological reactivity, efforts to avoid traumatic thoughts or an inability to recall traumatic events.

There was no evidence of clinically significant psychopathology while she was stabilised on her current psychotropic medication.

Ms Morris experienced shizophreniform disorder on several previous occasions which had responded particularly well to the current medication, the novel antipsychotic, Zyprexa. Ms Morris was not currently suffering from any active psychotic process or psychopathology.

There had been significant stressors which she had managed reasonably well without any subsequent recurrence of her disorder. She was insightful into the need to take medication if she was symptomatic. There was no evidence of any clinically significant cognitive impairment. There was no mood dysfunction or any evidence of active psychotic phenomenology."

[9] Another psychiatrist who has examined her, Dr Tom Bell, said in a report dated 11 October 2003 -

"1. You have asked whether the accident has caused Ms Morris to become more predisposed to psychiatric illness in the future.

The answer to this is in the affirmative. There is a definite probability that she will have future episodes of psychosis of indeterminate severity and duration. These episodes are likely to recur over a period of many years into the future.

4. You have asked whether Ms Morris will be capable of managing any lump sum settlement that she may receive.

This is also a little difficult to answer. The problem is that, when she is not suffering from psychotic symptomatology, she would be able to handle large sums of money; but when she is suffering from psychotic symptomatology, or even when she is significantly depressed without being psychotic, she would not able to handle large sums of money."

[10] In summary, the plaintiff has developed a psychotic illness as a result of the accident. It is episodic in nature. If she were floridly psychotic, she would probably be incapable of making decisions about her financial affairs. However, when she is well, she does not lack that capacity.

"10. I have read the report of Dr Tom Bell dated 11 October 2003 and note his view that I would not have sufficient capacity to look after large sums of money while I was very depressed or having a psychotic episode. Those two distinct periods of my life i.e. June 2001 and July 2003 have certainly made great changes to my life but I am hoping that they will not be a pattern for the future. While advised that that is possible, I understand that arrangements must be made for those possible future occurrences.

11. I though, like any other litigant before the Court would prefer my financial decisions to be autonomous and to as far as possible be free of any restrictions. I do appreciate though that there must be a balance between on the one hand my desire for this autonomy and the possibility that at some stage in the future I may lose the capacity even for short periods of time to deal with funds."

[12] The plaintiff has granted an enduring power of attorney to her father and her brother. She and her father have made arrangements with her bank whereby funds can be withdrawn from an account only with their joint signatures. They have sought financial planning advice and appointed Narelle Clement of ABN Amro Morgans to provide a report and recommendations for investment of the proceeds of the compromise.

[13] The compromise will not be valid unless sanctioned by the Court or the Public Trustee if the plaintiff is "a person under a legal disability" within the meaning of s 59(1) of the Public Trustee Act 1978. Relevantly, such a person is defined as -

"(b) a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000."

[14] Thus it is necessary to consider some of the provisions of the Guardianship and Administration Act. It deals with various types of "matters", namely personal matters, special personal matters, special health matters, and financial matters: s 10. A financial matter is a matter relating to the adult's financial or property matters including, for example, a matter relating to one or more of the matters set out in s 1 of schedule 2. Those matters include "a legal matter relating to the adult's financial or property matters". A "legal matter", for an adult, includes a matter relating to -

"(d) bringing or defending a proceeding, including settling a claim whether before or after the start of a proceeding"

(schedule 2 s 18).

[15] The compromise of this proceeding is thus a "matter" within the meaning of the Guardianship and Administration Act. The sanction of the Court is required if the plaintiff has "impaired capacity" for that matter.

[16] Pursuant of schedule 4 of the Guardianship and Administration Act -

"'impaired capacity', for a person for a matter, means the person does not have capacity for the matter.

'capacity', for a person for a matter, means the person is capable of -

(a)

understanding the nature and effect of decisions about the matter; and

(b)

freely and voluntarily making decisions about the matter; and

(c)

communicating the decisions in some way."

[17] On the evidence the plaintiff is presently capable of understanding the nature and effect of the compromise, freely and voluntarily making the decision to accept the compromise, and communicating that decision. She does not presently have impaired capacity for the "matter" of compromising her legal proceeding. Accordingly, the sanction of the Court is not required.

[18] If at some future time the plaintiff becomes incapable of managing her own financial affairs, consideration can then be given to making an appropriate application to the Guardianship and Administration Tribunal.

[20] The cautious approach of the defendants which ultimately resulted in this application being made was understandable. However, in all the circumstances I consider that the plaintiff's costs of and incidental to this application should be her costs in the cause, to be assessed on the standard basis.