Haywood v Haywood [2006] NSWSC 568

New South Wales Supreme Court

CITATION : Haywood v Haywood [2006] NSWSC 568

HEARING DATE(S) : 12/05/06

JUDGMENT DATE : 16 June 2006

JURISDICTION : Equity Division

JUDGMENT OF : Hidden J at 1

DECISION : Defendant declared incapable of managing his affairs - Protective Commissioner appointed to manage his estate

CATCHWORDS : PROTECTIVE JURISDICTION: - Defendant awarded substantial damages in Common Law proceedings - brain damaged - appointment of Protective Commissioner to manage his estate

LEGISLATION CITED : Protected Estates Act 1983

PARTIES : Neville Clive Haywood (plaintiff) Anthony Neville Haywood (defendant)

FILE NUMBER(S) : SC 1657/2006

COUNSEL : J Gormly SC with J Mrsic (defendant)

SOLICITORS : T D Kelly (defendant) Rishworth Dodd & Co (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HIDDEN J

Friday 16 June 2006

01657/2006 Neville Clive Haywood v Anthony Neville Haywood JUDGMENT 1 HIS HONOUR: The plaintiff in these proceedings, Neville Clive Haywood, is the father of the defendant, Anthony Neville Haywood. On 9 February 2001 Anthony Haywood fell from a staircase in the Collaroy Services Beach Club to the floor below, suffering head injuries. He successfully sued the club in the Common Law Division of this Court (20252/2001), securing a substantial award of damages. The plaintiff seeks a declaration that his son is incapable of managing his affairs, within the meaning of s13 of the Protected Estates Act 1983, and an order that the Protective Commissioner be appointed to manage his estate. 2 I have before me two reports of Dr Kevin Bleasel, neurosurgeon, and reports of Dr Robert Gertler, psychiatrist and Ms Zoe Thayer, clinical neuropsychologist. Some of those reports record observations of the defendant since the accident by both of his parents. In addition, both the plaintiff and Dr Bleasel gave evidence in the Common Law proceedings, over which I presided, and the transcript of that evidence is before me in the present application. 3 It is unnecessary to summarise that material at any length. What is clear is that the accident caused the defendant significant and permanent brain damage. Dr Bleasel found him to suffer from severe cognitive disability, including a very poor memory. His parents' observation of him discloses that he is irresponsible with money and vulnerable to exploitation. Dr Bleasel wrote of him that he "is not capable of managing his own affairs and it would be very difficult for him to be without supervision". 4 Dr Gertler wrote: Because of Mr Haywood's lack of competence in the area of dealing with routine affairs, including in the handling of money, he is disadvantaged and incapable of managing his own financial affairs. He admits that he is not to be trusted with money and would like his financial affairs managed by responsible others . 5 Ms Thayer concluded in her report: With regard to his ability to make decisions, to deal in a competent manner with his daily affairs or with a large sum of money awarded by the court, it is my opinion that Mr Haywood does not have the cognitive capacity to make considered reasoned judgments or choices. In addition to impairments in aspects of his attentional capacity and his ability to think in a flexible matter, his grossly impaired memory will prevent him from recalling all of the information necessary to be fully informed regarding important decisions. Furthermore his poor judgment, impulsivity and memory problems have the potential to render him vulnerable to unscrupulous individuals. 6 The evidence clearly establishes that the defendant is incapable of managing his own affairs, within the meaning of s13 of the Act. The defendant himself has consented in writing to the orders sought. Accordingly, I make the declaration in paragraph one of the summons and the orders in paragraphs [2] to [6]. 7 The parties have liberty to apply. **********