Sowmi v Master Electrical Services Pty Ltd

The nature and extent of the plaintiff's disabilities: the evidence

1. It is necessary to outline the nature and extent of the injuries and disabilities claimed that particularly relate to the plaintiff's cognitive and intellectual functioning, and to consider whether the evidence assessing them permits findings that support an order in the terms sought by the plaintiff. The evidence, broadly, is of two kinds: first, the medical and neuropsychological evidence generally, but also the specific evidence directed to the plaintiff's legal capacity; and, secondly, the evidence from the plaintiff, the tutor and the plaintiff's solicitor.
2. The plaintiff sustained, on any view, an extremely severe traumatic brain injury. In the period following his fall, his Glasgow coma score was 4/15, and he suffered - amongst a range of other physical injuries - skull fractures, a left subdural haematoma as well as cerebral contusions. It is reported that the duration of the plaintiff's post traumatic amnesia was 46 days.
3. The nature and severity of the plaintiff's injuries - and a broad summary of them - are reflected in the current statement of particulars pursuant to r 15.12 of the UCPR filed 21 September 2020. Relevantly, the disabilities alleged included impaired cognition; impairment of emotion and behaviour; difficulty controlling his temper; disorganisation; impulsivity; reduced concentration, attention and focus; poor memory; "slow speed of thinking"; reduced ability to make decisions; difficulty "with word finding"; and "inappropriate behaviour".

The medical and neuropsychological evidence

1. The plaintiff underwent neuropsychological assessment in September 2017. That assessment was conducted by Dr Linda Sigmundsdottir. The results of that assessment were reported to show intact performance across "immediate attention, divided attention, working memory, visual memory, reasoning and planning skills". However, in contrast, reductions were noted in the plaintiff's "speed of information processing, verbal memory and problem-solving. [The plaintiff] was inefficient in organising unstructured and unrelated information into memory". Given the proximity of that assessment to the fall, further cognitive improvement was anticipated.
2. The plaintiff underwent further neurological testing on 27 September 2018. That assessment was conducted by Dr Kasey Metcalf. In terms of cognition, the plaintiff is reported to have complained of problems with his memory - for example, that the plaintiff had "severe difficulty recalling daily events such as what he had for breakfast or which carer he had that day". The plaintiff reported that, whilst initially his memory had improved, he "struggled more now" and this was of increasing concern to him. The plaintiff also complained of being "slower in his thinking and in his response times"; that his "attention/concentration was poor"; that he was unable to read social cues and had difficulty interacting with others; and that he left decision-making (being financial affairs and child related decisions) to his wife (report p. 2).
3. The plaintiff underwent neurocognitive testing but Dr Metcalf determined that the plaintiff's "performance was extremely poor and suggested poor application of effort". Accordingly, testing was discontinued with Dr Metcalf expressing the opinion that "any results obtained from current testing were unlikely to represent an accurate picture of his cognitive strengths and weaknesses" (report p. 2).
4. The plaintiff was reassessed by Dr Metcalf on 24 July 2019. The plaintiff reported, in connection with his ongoing cognitive concerns, that he had "good days and bad days", but that in general his day-to-day memory was "very poor". The plaintiff also reported concerns with attention and concentration and acknowledged that he had "slow speed of thinking and increased time required to complete activities. He noted that he was able to make decisions and manage his finances when given sufficient time to complete tasks" (report p. 2). In terms of speech, the plaintiff indicated difficulties, including stuttering at times and occasions "when he could not find the word he wished to use" (report p. 2).
5. The plaintiff underwent neurocognitive and neuropsychological testing which, unlike the testing in 2018, Dr Metcalf considered enabled valid interpretation of his profile and was likely to reflect his current cognitive strengths and weaknesses. There is a considerable amount of detail in the testing and it is presently sufficient to focus upon the conclusions reached by Dr Metcalf. The key conclusions reached were as follows: Current testing revealed generally intact performance in regards to his general intellectual functioning, orientation, basic attention, mental arithmetic, speeded visual scanning, selective visual attention as well as in aspects of his executive functioning (eg, abstract reasoning, verbal generativity, divided attention, problem solving, response to feedback). However, areas of ongoing cognitive weakness were also evident including variability in his speed of thinking, reduced attention regulation, poor delayed recall of new verbal and visual information and in other aspects of his executive functioning (eg, very poor self- and source-monitoring, reduced planning/organisation). His current cognitive profile is consistent with the typical sequelae of extremely severe traumatic brain injury.
6. On 27 February 2020, the plaintiff was assessed by Associate Professor Jennifer Batchelor, consultant clinical neuropsychologist, at the request of his solicitors. The plaintiff was administered a range of tests in order to examine his level of intellectual functioning, including across areas such as his working memory and his speed of information.
7. Associate Professor Batchelor considered that the current neuropsychological assessment revealed evidence of sub-optimal performance on at least some tasks, with the consequence that accurate quantification of the nature and extent of the acquired cognitive impairment resulting from the traumatic brain injury could not be accurately assessed. Notwithstanding, Associate Professor Batchelor considered that it was "very probable that [the plaintiff] is suffering residual and significant cognitive deficits. In keeping with that contention, available reports provide convincing evidence of the cognitive and behavioural changes known to characterise traumatic brain injury" (report p. 12).
8. The plaintiff was medically assessed by Dr Melissa Hughes, clinical neuropsychologist, on 18 August 2020 at the request of the solicitors for the workers compensation insurer, and she prepared a report dated 21 August 2020.
9. The plaintiff underwent extensive testing to determine the plaintiff's intellectual functioning, notwithstanding the fact that he had undergone testing involving identical tests when seen by Associate Professor Batchelor on 27 February 2020.
10. The key conclusions reached by Dr Hughes were as follows (report pp. 8-9): (a) the plaintiff sustained an extremely severe traumatic brain injury in the fall on 22 June 2017; (b) psychometric testing determined a number of intact areas of cognitive functioning, including general verbal and non-verbal intellectual skills and working memory capacity, but that the plaintiff continued to display "variability in processing speed and impairments in aspects of executive functioning, which in turn appear to impact on memory efficiency"; and (c) given the length of time since his injury, the results were essentially permanent.
11. The plaintiff was reassessed by Dr Melissa Hughes on 28 June 2022, and she prepared a report dated 30 June 2022. Dr Hughes administered a range of tests in order to determine the plaintiff's current level of intellectual functioning. In relation to those tests, Dr Hughes considered that the plaintiff's measure of performance was "largely adequate, although there was some variability suggesting engagement was questionable at times. Results may therefore to some degree underrepresent his true abilities and are interpreted cautiously" (report p. 10).
12. The plaintiff reported that his "symptoms" were "virtually the same as in 2020", albeit that the plaintiff felt "worsening in areas of cognitive and emotional distress" (report p. 6). The plaintiff told Dr Hughes that "his short-term memory was poorer and that he was slower cognitively compared to shortly after the accident" (report p. 7). The (relevant) key conclusions may be summarised as follows (report pp. 14-15): (a) although there are question marks over the plaintiff's "effort" upon presentation and in connection with the testing administered, and that the plaintiff "has now been exposed to some measures several times", nevertheless the pattern of results demonstrate "genuine difficulties, even if there is an effort component which appears to fluctuate with a combination of psychological distress and a likely desire to highlight his true difficulties"; (b) from a "purely cognitive perspective, he does have some evident strengths, such as intact general intellectual abilities which bode well for some type of employment", but against that abilities "such as executive functioning are variable and inefficient" which would likely significantly hamper employment; and (c) "fluctuations in those abilities and engagement generally are likely considerably impacted by his psychological distress…".
13. The plaintiff was reassessed by Dr Melissa Hughes on 12 September 2023 - this time at the request of his solicitors - and she prepared a further report dated 14 September 2023. The purpose of that consultation and report "was to assist with determining [the plaintiff's] capacity to give instructions in his legal claim and manage his financial affairs" (report p. 2).
14. The plaintiff underwent further neuropsychological testing, the results of which Dr Hughes considered were "largely consistent with previous assessments, although there was noted to be less variability and improvements in areas of executive functioning" (report p. 11). Dr Hughes considered that, notwithstanding the plaintiff continued to experience "some mild high-level difficulties with attention regulation and aspects of executive functioning, which would likely relate to functional inefficiencies described pertaining to attention-based short term memory difficulties and word finding", there was, nevertheless, "no convincing evidence to suggest that [the plaintiff] would not be able to provide legal instructions or manage his financial affairs" (report p. 11).
15. In relation to this last conclusion, it is relevant to note that the plaintiff provided Dr Hughes with a reasonably extensive overview of his claim, including the stage of where it is at; how he would seek the advice of not only his lawyers, but his wife and his accountant and financial advisor in connection with any settlement that was secured; that he had already spoken with his accountant "regarding investing and managing his payout"; that he had given consideration to planning what to do with any settlement monies received - notably to invest some money "to create a passive income stream as well as set a portion aside for ongoing costs related to treatment needs, and daily and household expenses"; that he and his wife do not propose to disclose, except where necessary, the nature of any payout that may be received; and he also provided an explanation about his involvement managing the expenses of the household (report pp. 5-7).
16. Dr Hughes expressed the opinion that the plaintiff would benefit "from support for his mild high-level inefficiencies, such as his wife and relevant professionals, including his legal team and financial advisor ensuring that he has received and understood information adequately prior to making decisions" (report p. 12).
17. The plaintiff was assessed by Dr Stephen Allnutt, a consultant psychiatrist, at the request of his solicitors and he prepared a report dated 10 September 2023. Dr Allnutt considered the plaintiff suffered from "no active symptoms consistent with a diagnosis of a significant mood disorder" and that "[t]he predominant diagnosis [was] a neurocognitive disorder" (report p. 7).
18. Dr Allnutt was also requested to address the question of the plaintiff's legal and fitness capacity, expressing the following opinions (report pp 7-8): [The plaintiff] has capacity to understand the reason for suing, the roles of various individuals in the [c]ourt, the effect of evidence. He communicates an ability to instruct [c]ounsel and understands the consequences of taking an oath but also the consequences of a finding for or against him in the [c]ourt as well as the purpose of the hearing. [The plaintiff], in my view, did not present with any psychiatric condition or obvious cognitive impairment in capacity [sic] to understand that he would receive a potentially significant amount of money, that this money was at risk by others who might not have his interests at heart… He provided a reasonable explanation to me as to what his plan might be with the money. There was no obvious impairment in that understanding. He presented as a person who is capable of understanding things conceptually as it pertained to his financial situation.
19. Dr Allnutt considered, from a psychiatric perspective, that the plaintiff was "competent both legally and financially at this point in time", but suggested that an opinion be sought from a neuropsychologist in order to assess this further. In that respect, Dr Allnutt indicated that, if the neuropsychologist did not identify cognitive impairments that undermined his legal and financial capacity, then he "would conclude definitively that [the plaintiff] has legal and financial capacity at this point in time" (report p. 8).
20. Dr Allnutt was provided with the neuropsychological report from Dr Hughes dated 14 September 2023, and he provided a short report dated 25 October 2023.
21. In relation to that report, Dr Allnutt indicated that whilst the neuropsychologist concluded that the plaintiff did have ongoing cognitive deficits, "they all are not to the extent that it would cause… him to be unfit with regard to conducting his legal affairs and giving legal instructions and managing his financial affairs" (report p. 1). Dr Allnutt then expressed the following opinion (report p. 1): This generally concurs with my opinion when I saw him and, on this basis, my final conclusion is that he maintains capacity to provide legal instruction and manage his financial affairs at this point in time, given his mental state at the time that I saw him.

The evidence from the plaintiff, the tutor and the plaintiff's solicitor

1. The plaintiff swore an affidavit on 4 December 2023. That affidavit annexes various medical reports, to which reference has been made.
2. In addition, the plaintiff indicated that "[i]n 2022 [he] began to feel that [he] was managing [his] depression and emotional outbreaks much more effectively", and began to deploy the techniques and tools recommended by his treating psychologist, Carolyn Broderick, and treating psychiatrist, Dr Patricia Jungfer: affidavit par 8. The plaintiff said that he considered that, by the end of 2022, his "depression had largely resolved" and, consistent with this, he had ceased taking anti-depressant medication and ceased consulting Dr Jungfer and, subsequently, Ms Broderick: affidavit par 9.
3. The plaintiff also deposed to his belief that his "condition has improved to the point where I am able to understand my legal claims and control my own affairs": affidavit par 12. He also deposed, given what he considered to be his "greatly improved outlook and emotional state", that he requested (with the support of his tutor) that his solicitors investigate whether he could "apply to remove the tutor": affidavit par 13.
4. The plaintiff's wife swore an affidavit dated 4 December 2023. In that affidavit, she deposed to observing "a gradual improvement in the plaintiff's awareness of his injuries and disabilities as well as a vast improvement in his emotional control" and, consistent with this, the plaintiff "regained his rational self and has been able to understand the consequences of his actions and decisions once more": affidavit pars 8 and 9. She also deposed to the fact that, based upon her interactions with the plaintiff, she had observed that "he is again understanding the consequences of his actions and decisions and how they will impact his future": affidavit par 10. In the affidavit, some examples were given that were said to reflect this. Nevertheless, the plaintiff continues to consult his wife "as a life partner" in connection with "decisions that have complex consequences" but she deposed to the fact that the plaintiff "is not reliant on me to make these decisions rationally": affidavit par 13.
5. The plaintiff's wife, based upon the discussions that she has had with the plaintiff about their finances, "believe[s] that the plaintiff understands the serious nature of his legal dispute and the consequences that decisions regarding it may have" and that "he is able to comprehend the complexity of the [c]ourt system and the advice his legal advisors provide to him and make rational decisions based on that advice": affidavit pars 16 and 17.
6. The plaintiff's solicitor swore an affidavit dated 27 February 2024. The solicitor has had conduct of the claim on behalf of the plaintiff since 7 March 2023. In that affidavit, the solicitor set out her interactions with the plaintiff, and described him as a "rational thinker who is fully capable of understanding his own legal and financial interests": affidavit par 5. Further, her observation was that the plaintiff "always has a clear rationale for the position he takes in our conversations and asks cogent questions intended to elucidate his understanding of the process his claim must go through" (affidavit, par 6) and, where the plaintiff does not "immediately understand" any aspect of the discussions, he "will ask probing questions until he is satisfied of his understanding and the implications for his claim": affidavit par 7.
7. The assessment of the plaintiff by his solicitor was that she believed "that he understands the nature of the litigation, its purpose, its possible outcomes, and the risks, including those of costs" and that her overall impression was that the plaintiff "comprehends the advice provided to him by his legal advisors and makes rational decisions based on that advice": affidavit pars 10 and 11.

Consideration

1. I will address first the conduct of legal proceedings and legal incapacity.
2. The plaintiff's evidence was that, in effect, his psychological symptomatology had improved significantly during the course of 2022, with the consequence that his neuropsychological disabilities did likewise. There remains, in my view, a small question about whether the improvements that the plaintiff, and the tutor, discerned occurred then. Whilst I accept that the plaintiff ceased treatment with his treating psychologist and treating psychiatrist at around this time, which might be taken to be broadly supportive of what the plaintiff and the tutor have said, I would simply observe that when assessed in June 2022 by Dr Melissa Hughes, the plaintiff reported no improvement in his symptoms and, in fact, a degree of worsening: see [27], above. Nevertheless, I am satisfied that those recognisable improvements did occur by the time the plaintiff was assessed by Dr Hughes in September 2023. At that time, the plaintiff's "mood and affect were noted to be considerably improved compared to previous presentations" and that cognitive assessment had demonstrated "improvements in areas of executive functioning" (report p. 11).
3. The plaintiff was able to provide, I accept, Dr Hughes with a detailed explanation about the current claim as well as his involvement in financial issues: see Dr Hughes' report, pp. 5-7. It was Dr Hughes' firm opinion that, based upon the available test data and the plaintiff's responses when interviewed by her, there was "no convincing evidence to suggest that he would not be able to provide legal instructions or manage his financial affairs" (report p. 11). Whilst it is true that Dr Hughes suggested that the plaintiff would nevertheless "benefit from support" from not only his wife but relevant professionals, including his lawyers and financial advisers, she did not suggest that with that assistance the plaintiff would be unable to understand and make decisions; on the contrary, she considered that this could occur (report p. 12). It should be emphasised, however, the relevant enquiry is whether the plaintiff would not be capable of understanding the issues when given adequate legal assistance. The conclusions of Dr Hughes, which I accept, were also essentially reached by Dr Stephen Allnutt, whose conclusions in this regard I also accept, in his reports dated 10 September and 25 October 2023. I add, that was the assessment of the plaintiff's wife as well which lends, in my view, practical support for the opinions expressed by Drs Hughes and Allnutt.
4. It is also highly significant that the solicitor for the plaintiff, based on her interactions with the plaintiff, considers him to have relevant legal capacity. In my view, the solicitor is particularly well-placed to reliably assess this. I attach considerable weight to this evidence given the degree of her interactions, and her undoubted professional and ethical obligations in connection with this issue. And I attach considerable weight to the fact that highly experienced senior counsel likewise has not indicated he held any concerns in his dealings and interactions with the plaintiff.
5. In my view, the above evidence satisfies me that the plaintiff is capable of understanding, with appropriate assistance including from his solicitor and counsel, the issues in his proceedings, and the course of those proceedings more generally, in the sense discussed in Masterman-Lister. Put another way, and adopting what Hallen J said in Rappard at [78], I am satisfied that the plaintiff is capable of "doing the various things that would need to be done in the course of the proceedings in which the [plaintiff] is involved".
6. In relation to the question of the plaintiff's capacity to manage his affairs, it was suggested that this question involves "a practical and realistic assessment": Perera at [88].
7. It is, even from the limited medical and neuropsychological evidence tendered on the current application, evident that the plaintiff has a considerable number of physical and cognitive deficits arising from the injury suffered in the fall in June 2017. Nevertheless, I am not satisfied that the plaintiff is a person who is incapable of managing his affairs.
8. The expert evidence which has addressed this particular issue, which I have accepted, does not support a finding that the plaintiff is incapable of managing his affairs. That evidence is also supported by evidence from the plaintiff's wife, which provides practical examples of the ways in which the plaintiff is now able to conduct his day-to-day activities: see affidavit of Anita Sowmi, pars 11 and 12. In connection with the risk of dissipation of any monies he is awarded (by settlement or judgment), the plaintiff's wife emphasised that the plaintiff has developed an ability to understand the consequences of his actions and decisions and, furthermore, although not reliant upon her for making decisions, continues to consult her in connection with what she described as "decisions that have complex consequences": affidavit par 13. I am satisfied that the plaintiff, in his domestic setting, is able to manage his financial affairs. It is not farfetched to think that, given the potential quantum of the claim, the plaintiff will require expert financial and accounting advice - but this is something that he has already undertaken, as I have noted. In my view, these are significant objective steps demonstrating a careful and responsible attitude to dealing with the potential substantial settlement that may result. Further, lack of experience in making major financial decisions is not, of itself, a basis to make a finding that a person is incapable of managing their own affairs, nor is the need to seek assistance in making them.
9. The evidence from the plaintiff's solicitor was to the same effect: she held the same view as those expressed by Drs Allnutt and Hughes about the plaintiff's ability to "manage his own finances": affidavit par 12. Again, I consider it highly significant that the solicitor has formed that assessment based upon her interactions with the plaintiff.
10. The evidence, in my view, demonstrates that the plaintiff is not incapable of dealing in "a reasonably competent fashion" with the ordinary routine affairs, nor are there real risks of disadvantage in connection with his financial affairs. The evidence from the experts, the plaintiff, the plaintiff's wife and the plaintiff's solicitor all persuade me that he has the capabilities and, to the extent that they involve matters of complexity, that he (and those around him) recognise the need to secure proper advice.

Orders

1. For the above reasons I make the following orders: 1. Declare that the plaintiff is not under a legal incapacity for the purposes of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW). 2. Order that costs of this application be costs in the cause.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2024