District Court New South Wales Medium Neutral Citation: Bain v Bain [2022] NSWDC 415 Hearing dates: 26 August & 16 September 2022 Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Tutor's notice of motion filed on 5 August 2022 seeking removal of tutor pursuant to UCPR r 7.18 is dismissed; 2. Each party is to pay their own costs of the dismissed motion; 3. Exhibits are to remain with the Court file; 4. Liberty to apply on 7 days' notice for further or other orders if required. Catchwords: PROCEDURE – dismissal of application for removal of tutor in personal injury damages proceedings – review of evidence of plaintiff's legal capacity Legislation Cited: Civil Procedure Act 2005 (NSW), s 3, s 58(2) Motor Accidents Compensation Act 1999 (NSW), s 61 Uniform Civil Procedure Rules 2005 (NSW), r 7.13, r 7.18, Sch 7, cl 5(1)(c) Cases Cited: IA v TA [2016] NSWCA 179 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Pham v Shui [2006] NSWCA 373 Stokes v McCourt [2014] NSWSC 61 Category: Procedural rulings Parties: Laurence Bain bht Nuning Bain (Plaintiff) Edmund Bain (Defendant) Representation: Counsel: Mr B Jones (Plaintiff) Mr J Bruce, solicitor (Defendant) Solicitors: Stacks Goudkamp (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2016/377031 Publication restriction: None Judgment Application for removal of tutor 1. This is an application filed on 5 August 2022 on behalf of the plaintiff seeking the removal of his tutor in proceedings in which he claims damages for personal injuries: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 7.18. Background 1. On 8 February 2014, the plaintiff, then aged 12 years, sustained a very severe traumatic brain injury and skull fracture in a motor vehicle accident. That injury resulted in bilateral haemorrhagic contusions to the temporal and frontal lobes requiring bilateral craniectomies, and involved an estimated 37-day period of post-traumatic amnesia. 2. The plaintiff's injury occurred whilst he was on his skateboard. With the knowledge of the defendant, his father, he, and others, had "skitched" a ride by holding onto the back of the defendant's moving vehicle. In those events the plaintiff sustained a head injury when he fell from his skateboard onto the ground as the vehicle was being driven over a rough patch of ground. 3. On 16 December 2016, the plaintiff's mother, as his tutor, commenced these proceedings claiming damages for negligence in respect of those events. At that time, the plaintiff was a minor aged 14 years. The plaintiff is now aged 20 years. In this application for removal of the plaintiff's tutor, his legal capacity stands to be assessed according to the medical evidence tendered in support of that application. 4. The defendant at the outset submitted to any orders the Court might make on the plaintiff's motion. As there was no contradictor to the application for the removal of the tutor, it was therefore important for the Court's protective jurisdiction to be exercised in accordance with the dictates of justice: s 58(2) of the Civil Procedure Act 2005 (NSW) ("CP Act"). 5. On 26 August 2022, the hearing of that application commenced before me. At that time, following a review of the evidence in support of the application a number of evidentiary matters of concern and difficulty arose which needed to be addressed. This necessitated an adjournment of the part-heard hearing until today, 16 September 2022, for the purpose of obtaining updated expert evidence touching upon the issue of the plaintiff's legal capacity. Evidence 1. On 26 August 2022, at the commencement of the hearing of the motion for the removal of the tutor, the applicant relied upon the following evidence: 1. The affidavit of the plaintiff's tutor and mother, Ms Nuning Bain, affirmed on 5 August 2022, with annexures; 2. The affidavit of Mr Thomas Goudkamp, solicitor, affirmed on 5 August 2022, with annexures; 3. The medico-legal paediatrician rehabilitation opinion of Dr Stephen O'Flaherty dated 8 June 2021: Exhibit "A"; 4. The MAS Medical Assessment Certificate of Dr Robin Fitzsimmons dated 20 May 2022 which assessed the plaintiff's brain injury sequelae pursuant to s 61 of the Motor Accidents Compensation Act 1999 (NSW). 1. Mr Goudkamp's affidavit annexed some reports in addition to those listed above. These included: 1. A report dated 6 August 2021 from Ms Lauren Alach, an occupational therapist; 2. A report dated 30 March 2021 from Dr Jeanette Stewart, a clinical neuropsychologist; 3. A report dated 24 May 2021 from Professor Ian Cameron, a consultant occupational medicine physician. 1. The plaintiff did not provide his own affidavit, nor did he give oral evidence on the application. 2. Today, a further affidavit affirmed on 15 September 2022 by one of the plaintiff's solicitors, Ms Karina Goodall, was added to the body of evidence to be read on the application. The substance of Ms Goodall's affidavit, which was responsive to matters raised in argument on 26 August 2022, was that there would be an unforeseen delay in obtaining an up-to-date neuropsychological opinion as to the plaintiff's legal capacity. Legislation 1. A "person under legal incapacity" is defined in s 3 of the CP Act to include "any person who is under a legal incapacity in relation to the conduct of legal proceedings... and, in particular, includes... (a) a child under the age of 18 years". Rule 7.13 of the Uniform Civil Procedure Rules 2005 provides that a person under legal incapacity, "includes a person who is incapable of managing his or her affairs". 2. The Uniform Civil Procedure Rules 2005 provide for the appointment and the removal of a tutor. Rule 7.18 provides: 7.18 Court may appoint and remove tutors (1) In any proceedings in which a party is or becomes a person under legal incapacity— (a) if the person does not have a tutor, the court may appoint a tutor, or (b) if the person has a tutor, the court may remove the party's tutor and appoint another tutor. (2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings. (3) If the court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor. (4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person's tutor, on the tutor. (5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include— (a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and (b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. (6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor. Legal principles 1. The Court has the power to not only appoint, but also remove a tutor: UCPR, r 7.18(1)(b). The exercise of the jurisdiction to determine whether a person has or lacks legal capacity requires the Court to determine that question as a matter of fact: IA v TA [2016] NSWCA 179, at [72]. That exercise must be guided by appropriately focussed expert evidence in each particular case. 2. In the context of litigation involving a claim for substantial compensatory damages, the Court's approach to determining the question of legal capacity against a prior history of legal incapacity must necessarily be cautious and protective of the claimant. 3. In cases of former minority, legal incapacity no longer exists because the claimant has reached legal age of majority and is sui juris, all that is required to make an order for removal of a tutor is proof that the claimant is no longer a minor who requires the benefit of a protective representative order for a tutor. 4. In cases where litigation has been commenced and continued by a tutor, not only because the claimant was a minor at the time of commencement, but also because of concerns over the cognitive capacity of the claimant, the inquiry is more complex, and requires satisfactory evidence, including expert evidence, focussed on the specific question of legal capacity. An approach that relies on inferences from inadequately reasoned material to draw conclusions as to legal capacity is unlikely to be satisfactory. 5. Those propositions are well illustrated by the following extracted portion of the decision in Stokes v McCourt [2014] NSWSC 61. Respectfully, I adopt what McDougall J said in that case, at [31]: "… it is necessary to ask whether the relevant party (in this case the plaintiff) can deal with the issues in the proceedings with the assistance of appropriate explanation from his or her lawyers and experts retained. … this must extend to all the aspects of conducting a case at law or in equity. It would thus comprehend seeking advice on prospects or on evidence; considering and evaluating risks, costs and reward; dealing with the lawyers in the preparation of the case; and generally being in a position, at any given time, to give appropriate and informed instructions on issues that arise to be dealt with. But, as I have said, that task is not to be seen as one undertaken in a vacuum. It is a task to be undertaken with such advice from the lawyers (and where relevant, from experts) as may be required." 1. In that case, the task was further explained at [66], as follows: "… the question of assessment of capacity requires consideration not only of the … experts' reports but also of the entire relevant history. ... I accept that (for example) the history shows that the remission currently enjoyed by the plaintiff may not be permanent; indeed, if is not in the nature of remission, in a definitional sense, to be permanent." 1. A decision on those questions necessarily depends upon the facts disclosed in the medical evidence in each particular case. Hearing on 26 August 2022 1. At the hearing on 26 August 2022, the plaintiff presented written submissions in support of the application: MFI "1". Those submissions were explored in the course of the ensuing discussion. During the course of that hearing some relevant aspects of the available medical evidence which related to the plaintiff's legal capacity were reviewed in the course of submissions. That medical evidence is summarised below in the chronological sequence in which it was obtained. That review indicated there was insufficient evidence at that point to justify an order for the removal of the tutor. Neuropsychological report of Dr Jeanette Stewart 1. The 12 April 2021 neuropsychological report of Dr Jeanette Stewart, which was obtained by the solicitor for the defendant, was extensive, and was based on a detailed historical review and on her own neuropsychological testing of the plaintiff which had followed similar earlier testing by other practitioners. 2. Dr Stewart noted the plaintiff's post-injury cognitive complaints of persisting and debilitating fatigue, poor short-term memory, difficulty retaining new information, difficulty studying and difficulty with word finding. 3. Dr Stewart's assessment of the plaintiff was that he performed in the borderline range of intellectual functioning, that is, in the range of the 2nd to the 8th centile. She identified the plaintiff's executive functioning as performing variably. Whilst she noted no evidence of impaired intellectual functioning, she qualified that view by stating she ascertained that the more complex and abstract problem solving undertaken by the plaintiff fell in the low average range, whereas his pre-morbid IQ and intellectual functioning was in the superior range of the 91st percentile. She also noted the possibility that his mood state affected the appraisal of his day-to-day abilities. 4. Dr Stewart identified a decline in the plaintiff's pre-morbid levels of functioning. She stated that he had ongoing difficulties with aspects of his behaviour known to be associated with frontal system dysfunction. She was of the opinion the plaintiff would continue to have ongoing cognitive difficulties as a result of his injury. She predicted he would need the ongoing support of his parents due to his age, level of maturity and lack of experience. The effect of her opinion was that it was guarded. 5. The above review of Dr Stewart's report, in the context of nearly 18 months that have passed since she provided her report, indicates the need for a more current opinion on the plaintiff's cognitive capacity. Rehabilitation report of Professor Ian Cameron 1. At the request of the solicitor for the defendant, the plaintiff was assessed by Professor Ian Cameron, a rehabilitation physician, in an interview on 11 May 2021. 2. Professor Cameron referred to a neuropsychological assessment dated 26 February 2019 by a Dr Parry, a neuropsychologist, which stated that the plaintiff "displayed a remarkable cognitive outcome given the severity of his traumatic brain injury". That report was not tendered in the present application. 3. Professor Cameron's commentary went on to refer to the issues of cognitive fatigue, attentional vulnerabilities and reduction in complex processing speed and some executive impairment was noted, along with physical symptoms. Professor Cameron noted that despite the plaintiff's good recovery, it was likely that he would be left with residual effects on his abilities. The effect of Professor Cameron's opinion was that it was guarded. 4. It appears that the primary focus of Professor Cameron's report was on statistical considerations to do with the plaintiff's eligibility to participate in the statutory lifetime care scheme and statutory questions such as the assessment of the plaintiff's percentage whole person impairment under the scheme of the Motor Accidents Compensation Act 1999 (NSW). 5. Those statistical considerations were not particularly informative on practical matters to do with legal capacity. He identified the need for an assessment of the plaintiff's emotional and behavioural functioning, noting that there was a "mild limitation of daily social and interpersonal functioning". 6. Professor Cameron made the following sweeping statements, the first being: "The plaintiff is capable of managing a large amount of money and would approach this with input from his parents", and the second being: "Mr Bain is capable of instructing his legal advisors". 7. I give those cited opinions little weight for the purpose of determining the present application because they are not appropriately reasoned: UCPR, Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87]. Professor Cameron's opinions do not comply with the Expert Witness Code notwithstanding that he has acknowledged that code: UCPR, Sch 7, cl 5(1)(c). Rehabilitation report of Dr Stephen O'Flaherty 1. The 8 June 2021 opinion of Dr Stephen O'Flaherty, which was obtained by the plaintiff's solicitor, concluded with the concern that the plaintiff would be potentially susceptible to being taken advantage of, given his cognitive issues and his immaturity. Dr O'Flaherty made the emphatic statement that the plaintiff does not have the capability to manage his own financial affairs, including any compensation funds he may receive. 2. He therefore recommended the appointment of a funds manager. He also recommended the appointment of a case manager to oversee the plaintiff's future needs. Dr O'Flaherty cited some of the plaintiff's answers to specific questions which included questions as to how he would manage his compensation funds. 3. The cited answers revealed a basic, superficial, and imperfect understanding, which was of concern on the question of the appropriate management and expenditure of those funds. 4. That evidence does not allay concerns over the plaintiff's cognitive capacity and it does not allay concerns as to the plaintiff's ability to manage his compensation funds. Occupational therapy report of Ms Lauren Lalach 1. The occupational therapy report from Ms Lauren Lalach dated 21 August 2021, which was obtained by the plaintiff's solicitor, identified the fact that the plaintiff has a short-term memory problem. She cited relevant examples to support the view that his memory is not as good as it should be. She also identified the phenomenon of fatigue that affected the plaintiff's cognitive functioning. That evidence raises doubts over the plaintiff's legal capacity at the time he was reviewed by Ms Lalach. MAS Certificate of Dr Robin Fitzsimmons 1. The 20 May 2022 MAS medical certificate of Dr Robin Fitzsimmons, a consultant neurologist, addressed the issue of the plaintiff's impairment in connection with his mental status. The context was his history of a skull fracture and a related cerebral haemorrhage. She identified a history of possible mental status deterioration and indicated that this was unlikely to change soon. She identified the plaintiff's issues with forgetfulness, frequently being late for work, difficulties with time, relationships, and motivation. She also raised concerns about subtle executive function as revealed on neuropsychological testing, with slowing in the processing of some matters, including some difficulties in problem solving in specific circumstances: Exhibit "B". 2. Whilst strictly speaking, the MAS certificate is not a determinative medical opinion, as was explained in Pham v Shui [2006] NSWCA 373, at [90], it must nevertheless be taken into account and given due weight on the issue of legal capacity, where the views and conclusions expressed in the certificate fall within the professional remit of the Assessor and the views are appropriately reasoned. Adjournment of 26 August 2022 hearing to 16 September 2022 1. As a result of the consideration of the medical evidence tendered on 26 August 2022, as reviewed above, counsel for the plaintiff requested that the motion for removal of the tutor be stood over part-heard to enable further evidence to be obtained. After discussion, the hearing of the application was adjourned to 16 September 2022. Resumed hearing on 16 September 2022 1. In the lead up to the resumed hearing on 16 September 2022, the plaintiff's legal representatives indicated they were seeking a further adjournment for 6 to 8 weeks in order to obtain further neuropsychological evidence as to the plaintiff's legal capacity. This became necessary because Dr Stewart was not in a position to undertake a further review of the plaintiff in the short term. The parties agreed to obtain an alternative joint expert report from another neuropsychologist on that question. 2. Notwithstanding that agreement, at the hearing today the parties announced an agreement that had the effect of discontinuing the motion filed on 5 August 2022, with each party to pay its own costs of the discontinued and therefore dismissed motion. At that time the parties were informed that in the interest of open justice, the events which led to that position would be embodied within these reasons, as outlined above. Orders 1. Accordingly, the notice of motion filed on 5 August 2022 seeking the removal of the plaintiff's tutor is discontinued and dismissed, with each party to pay their own costs of the dismissed motion, exhibits are to remain with the Court file, with liberty to apply on 7 days' notice if further or other orders are required. ********** 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: 16 September 2022