By notice of motion filed on 25 April 2020, the plaintiff through his tutor brings an application for removal of the tutor for the remainder of these proceedings, which are listed for hearing on 20 July 2020 (estimate four days). The defendant neither consents to nor opposes the application brought.
The plaintiff's application is supported by the tutor and his solicitors, who have put before me a series of medical reports concerning the plaintiff's current wellbeing.
The affidavit material filed in support of the application is as follows:
1. Affidavit of Thomas Goudkamp sworn 23 April 2020;
2. Affidavit of Thomas Goudkamp sworn on 6 May 2020;
3. Affidavit of the tutor sworn on 7 May 2020; and
4. Affidavit of the plaintiff sworn on 12 May 2020;
The plaintiff claims damages arising from the circumstances in which he was struck by a vehicle whilst a pedestrian on 11 January 2017. The plaintiff suffered a severe traumatic brain injury with a Glasgow Coma reading of 3 out of 15. His injuries and subsequent treatment are described by Dr Alexandra J Walker in a neuropsychological report dated 25 January 2019 as follows:
"He was treated at St George Hospital (11/1/17 to 21/2/17) and CT brain scan was stated to show right subdural haematoma, right temporal contusion, right cerebral oedema and 3mm midline shift to the left, right basal ganglia and lentiform nucleus haemorrhages, left temporal haemorrhages and left frontal bone fracture. He required EVD and was managed in ICU for raised intracranial pressure. His neurological recovery was slow and he was agitated and restless. He developed right arm thrombosis which resolved with Clexane. He commenced rehabilitation at Liverpool Hospital and was then transferred to Royal Rehab (15/6/17 to 1/9/17). Post traumatic amnesia was 57 days.
Mr Poole had poor insight, planning, problem and memory on initial neuropsychological assessment at Liverpool Hospital and in the context of significant debts, his brother Damian was appointed as his Financial Manager on 10/3/17; his current Financial Manager is understood to be his accountant. The public guardian was appointed to make lifestyle decisions for 12 months from 29/3/17; this has now lapsed.
Neuropsychological assessment by Joe Hanna in July 2017 demonstrated significant improvement since the initial assessment with residual difficulties with concentration, particularly divided attention and visual attention, poor planning and mildly reduce speed of processing information. Occupational Therapist Belinda Carr reported (26/9/18) that Mr Poole was capable of using strategies such as note taking, audio recording of information and organising information but required additional time, prompting to use them consistently and assistance with time management and setting up systems. Issues with fatigue were also noted. Speech pathologist Colleen Kerr (22/8/18) noted considerable improvement but there were issues with inappropriate laughter and aspects of communication, such as misreading emails; dysarthric speech with erratic rate and intermittent precision; poor scheduling and reluctance to practice with assistance. Psychologically, Joe Hanna (15/9/18) has continued to work with Mr Poole to help with mood and confidence, anxiety, improving relationships and adjusting to the effects of the injury. Dr Bui (4/8/18) noted that Mr Poole has a shuffling gait and poor balance with a high risk of falls with a progressive physical decline over the 12 months with numbness and incoordination in both legs. Dr Bui noted that Mr Poole reported an improvement in energy levels with Ritalin. Nerida Savage is working with Mr Poole on steps to return to work in a suitable role."
It was during this period that a financial management order was made by the NCAT (on 16 October 2017).
It is a tribute to the plaintiff's own courage as well as the excellent medical treatment he received that he not only recovered from his injuries but was able to return to work in July 2019, albeit at a level well below the work he was performing prior to the accident. Although not read on this application, I note there is an affidavit of Varsha Khandelwal sworn on 30 April 2020; as a co-worker, she is able to describe his abilities to perform this work in a way that corroborates the material set out in the plaintiff's own affidavit.
The plaintiff has commented on his own abilities in his affidavit of 12 May 2020 and I note in particular the following:
"3. I have been asked to comment on my ability to understand the legal proceedings and provide instructions. I think my abilities to work is relevant to this question, so I have provided details of how I feel I am performing.
4. I am aware I am not the person I was before the accident. My injuries have impacted on every aspect of my life and I find it very depressing to think about what I am no longer able to do. I have good days and bad days.
5. I am very happy to be back at work. I returned to work in July 2019. The work I am doing is at a junior level and well below the work I was doing before the accident. However, I think I am doing it to a reasonable standard.
6. My role is that of a business analyst. The work I have been allocated is at a fairly junior level. I spend a lot of time testing systems to check for errors.
7. I make some mistakes. This is usually caused by my difficulty with my short-term memory. I quite often have to ask my supervisor to repeat her instructions, which I find embarrassing. I take notes during the day which I keep on my Ipad to aid my memory, but sometimes I'll accidentially leave a job unfinished."
He goes on to explain the NCAT proceedings at paragraphs 12 and 13:
"12. There is an order from NCAT in place appointing a family friend (Alvin Lee) to look after my finances. He arranges for my bills to be paid. I live in a rented apartment. He pays the rent and electricity and gas bills. The income I receive from work goes to an account that he manages.
13. I am seeking to overturn the NCAT financial management order. I feel I am able to look after the small income I receive from work and pay my bills."
I understand that an application to set aside the NCAT financial management order is listed for hearing in the NCAT next month. Whether or not the financial orders are set aside is a matter for that tribunal; I note that Dr Walker expresses reservations concerning this (see her 18 November 2019 report).
The plaintiff has stated that if I grant this application, he would "still like both of my sons involved in my correspondence with lawyers" because he wants their "support and reassurance" (affidavit, paragraph 16). He is keen to take responsibility for giving instructions, but understands the need to consult.
An essential part of recovery and rehabilitation is a good psychological attitude. Enabling the plaintiff to feel in control of his own litigation is a small but important part of restoring some of the dignity he lost when he suffered the serious injuries which are the subject of this claim.
It is important to note that not only the tutor but the plaintiff's solicitors, experienced specialists in this area, support this application. It is also important that the plaintiff has indicated a willingness to continue to consult both his sons, and that he is doing so well at work, where it is called upon to make decisions of a kind similar to those necessary for the purpose of this litigation. While I note Dr Walker does not agree that the plaintiff can manage his financial affairs, she does not suggest that he is incapable of conducting his litigation.
Although there is no specific provision in the Uniform Civil Procedure Rules 2005 to allow for removal of a tutor without replacement, the circumstances in which a plaintiff may ask the court for a tutor to be removed in this fashion are fortunately identified and explained by Hallen J in Rappard v Williams [2013] NSWSC 1279 and Cavanagh J in Malin v Sydney Local Health District (t/a Royal Prince Alfred Hospital) [2019] NSWSC 1765. The court's power to make such orders arises under r 7.18 Uniform Civil Procedure Rules 2005 (NSW), which I have also relied upon. Mr Nesbeth, counsel for the plaintiff, also relies upon ss 14 and 16 of the Civil Procedure Act 2005 (NSW).
Taking into account the comprehensive nature of the medical evidence in relation to this application, the support of the tutor and of the plaintiff's solicitors, and most importantly the plaintiff's own affidavit, I am satisfied that the orders sought should be granted and the tutor removed.
[2]
Orders
1. Plaintiff's notice of motion filed on 25 April 2020 granted.
2. Pursuant to ss 14 and 16 of the Civil Procedure Act 2005 (NSW) and r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW), Max Poole be removed as tutor of Richard Poole in District Court proceedings 2019/236254.
3. Grant leave to the plaintiff to amend the statement of claim to remove the tutor, such amended pleading to be filed in 7 days.
4. Costs of this application to be costs in the cause.
5. Confirm the hearing date of 20 July 2020.
[3]
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Decision last updated: 29 May 2020