Pratt v Dickson [2000] QSC 314

"95. (1) Unless a person is appointed as a litigation guardian by the court, a person becomes a litigation guardian of a person under a legal incapacity for a proceeding by filing in the registry the person's written consent to be litigation guardian of the party in the proceedings.

(2) If the interests of a party who is a person under a legal incapacity require it, the court may appoint or remove a litigation guardian or substitute another person as litigation guardian."

[3] The applicants rely on what is pleaded in the statement of claim and reports obtained by them from the Acquired Brain Injury Outreach Service report dated 15 September 1999, report of consultant psychologist Robyn Murray dated 11 July 2000 and report from Dr Hazelton, director of the Brain Injuries Rehabilitation Unit at the Princess Alexandra Hospital dated 10 August 2000.

[4] It appears that after the accident the respondent was admitted to the Royal Brisbane Hospital from where she was transferred to the Brain Injuries Rehabilitation Unit at the Princess Alexandra Hospital on 29 March 1999. She emerged out of post-traumatic amnesia on 9 June 1999. On 6 August 1999 she was discharged to her parents' home.

[5] The applicants rely on the nature of the injuries suffered by the respondent which are pleaded as including severe head injury, frontal lobe brain damage and direct trauma injury to the brain. It is pleaded in paragraph 7(iii) of the statement of claim that the respondent:

"suffered significant permanent brain damage which has rendered her unemployable and almost fully dependent upon her parents and other family members for gratuitous domestic assistance in all respects."

[6] The report from the Acquired Brain Injury Outreach Service was prepared by rehabilitation coordinator/occupational therapist Judy Roser. It appears to have been based on interviews by Ms Roser with the respondent and her family and observations as a result of treatment given to the respondent by the Service. In relation to language and communication, the report states:

"Tanya also has mild to moderate high level cognitive language deficits inhibiting her ability to comprehend what she has read or to complete forms without assistance."

"Reports also indicate that she demonstrated significant difficulty with sustained and basic divided attention tasks (required a quiet distraction free environment with cueing to attend to detail), slow mental processing speed, and significant impairment of high level cognitive skills (including sequencing, planning, organisation and problem solving, mental flexibility, abstraction and judgement) when engaged in functional tasks. Throughout therapy sessions Tanya has demonstrated that she appears to learn new tasks more effectively through repetition and practice in functional settings ie. she learns well through procedural memory."

[7] Ms Murray has not interviewed the applicant. Her report is qualified as follows:

"My opinion is necessarily limited by not having had personal contact with Ms Pratt, and by not having details of her current cognitive functioning."

In the light of the information available to Ms Murray, Ms Murray expresses the opinion that "it is highly likely that Ms Pratt does not have the capacity to give instructions and action should proceed by way of litigation guardian".

"1. Does Ms Pratt have the capacity to give instructions in relation to proceedings including (a) the ability to give instructions to commence the action (b) the ability to give instructions to settle the action for an amount of money and (c) the ability to handle that amount of money?

On none of the above accounts would Ms Pratt have the cognitive capacity to give instructions, nor handle any settlement monies. Ms Pratt has severe neurobehavioural impairment. Her cognition including memory is severely impaired including that of insight and judgement. Significant behavioural problems exist particularly in relation to feeding and other issues, which would also impair her ability to successful undertake the above.

2. Ms Pratt would have no recollection of the accident, nor will she gain any recollection of the accident."

[9] The solicitor who is acting on behalf of the respondent, Mr Kurt Anthony Fowler, swore an affidavit on 7 September 2000 in which he states:

"I have obtained instructions from the plaintiff personally either at my office or at her residence on about four (4) occasions and have spoken to her over the telephone numerous times and I am satisfied that the plaintiff has capacity to provide instructions to her legal representatives concerning these proceedings."

"A person under a legal incapacity may start or defend a proceeding only by the person's litigation guardian.

According to the dictionary in the schedule to the UCPR the words "person under a legal incapacity" have the meaning given in schedule 2 to the Supreme Court of Queensland Act 1991. Relevantly that definition refers to the definition of "a person with impaired capacity" which is defined in schedule 2 to that Act as follows:

"'person with impaired capacity' means a person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings."

[11] As the respondent has not been deemed by any Act to be incapable of conducting proceedings, the applicants rely on the first limb of the definition and therefore need to show that the respondent is a person who is not capable of making the decisions required of a litigant for conducting proceedings. As Ms Murray expressly acknowledges in her report, her opinion is speculative when she has not had the advantage of evaluating the current cognitive skill level and functioning of the respondent. The report from the Acquired Brain Injury Outreach Service is now almost 12 months old. As what is in issue on this application is the respondent's present ability to make the decisions required of a litigant for conducting proceedings, the opinions expressed by Ms Roser are too remote in time to be relevant. As Dr Hazleton's opinion appears to be based on either the records of the Princess Alexandra Hospital or, if he did treat the respondent, on his observations prior to the respondent's discharge in August 1999, his opinions are also too remote to be relied on for assessing the respondent's existing capacity.

[12] The question of the respondent's recollection of the accident or otherwise goes to the evidence which is able to be adduced on behalf of the respondent at the hearing and is not probative of whether the respondent at this stage is a person who is not capable of making the decisions required of a litigant for conducting proceedings.

[13] It was also submitted on behalf of the applicants that the respondent's prospects of success in the action were slim. That itself does not overcome the effect of the material relating to the respondent's capacity to give instructions. In any case, the applicants have the benefit of the order obtained on 12 July 2000 directing that the issue of liability be determined first and separately from the issue of quantum.

[14] On the material that was relied upon by both parties in connection with this application, I am not satisfied that it has been shown by the applicants that the respondent is a person who is not capable of making the decisions required of a litigant for conducting proceedings. The application is therefore dismissed. I will hear submissions on costs.