DANIEL SELLEN v DEREK DILLON [2024] SADC 88

Applicant: DANIEL SELLEN Counsel: MR M ROBERTS KC - Solicitor: TINDALL GASK BENTLEY Respondent: DEREK DILLON Counsel: MR B AUSTIN - Solicitor: JONES HARLEY TOOLE Hearing Date/s: 30/11/2024 File No/s: DCCIV-17-1476 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. SELLEN v DILLON [2024] SADC 88 Reasons for Decision of her Honour Judge Deuter 26 July 2024 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN The Applicant was involved in a motor vehicle accident on 2 January 2015. He brings these proceedings seeking damages for injuries sustained therein, including a brain injury. The Respondent challenges the diagnosis of an organic brain injury. The Applicant continues to seek medical assessment and treatment and is not progressing his claim towards resolution. The Respondent sought a Determination Hearing regarding whether the Applicant is a person under a disability and required a litigation guardian to be appointed. The Applicant opposed an order for a litigation guardian. A Determination Hearing proceeded. Two psychiatrists remained in court whilst the Applicant gave evidence. They gave evidence by way of ‘hot tub’ arrangement. Consideration of UCR 23.8 and 23.9 regarding ‘legal incapacity’ as defined in UCR 2.1. Held: The Applicant is not a person under a legal incapacity. Uniform Civil Rules 2020 (SA), referred to. Manning v Russell (2013) 123 SASR 135; Slaveski v State of Victoria (2009) 25 VR 160; Dalle- Molle v Manos (2004) 88 SASR 193; Washington v Washington [2018] SASC 102; Matute v Cramer [2022] SADC 78; Matute v Cramer [2023] SASCA 78; Perera v Alpha Westmead Private Hospital [2022] NSWSC 571; Farr v State of Queensland [2009] NSWSC 906; Masterman-Lister v Brutton & Co [2003] 3 All ER 162; Murray v Williams [2010] NSWSC 1243; Murphy v Doman (as representative of the estate of the late Min Simpson) and Another (2003) 58 NSWLR 51; Martin v Azzopardi (1973) 20 FLR 345; Attorney General v Parnther [1792] EngR 2455; M'Naghten's Case (1843) 10 Cl&Fin 200; Price v Department for Education [2020] SAET 43; Goddard Elliot v Fritsch [2012] VSC 87, considered. -- 1 of 25 -- -- 2 of 25 -- SELLEN v DILLON [2024] SADC 88 Introduction 1 Daniel Edward Sellen (the applicant) was 32 years old when he was cycling north along Colley Terrace at Glenelg on 2 January 2015. Derek Dillon (the respondent) was driving a car in the same direction along Colley Terrace. He turned left and collided with the applicant, causing him to be knocked from his bicycle (the collision). 2 The applicant claims that the collision was caused by the respondent.1 The respondent denies fault, and pleads that the applicant caused or contributed to the collision.2 Mr Sellen claims that he suffered multiple serious injuries. The extent of those injuries and any loss suffered is in dispute. 3 Mr Sellen has pleaded that he suffered a traumatic brain injury (TBI) in the collision. This has caused several issues for him including headaches, depression, vision impairment, speech impairment, loss of body control and a pain disorder. 4 The respondent denies that any organic brain inquiry was sustained, and says that the applicant has recovered from any other injuries. It is pleaded that Mr Sellen has suffered from longstanding psychiatric disorders including mood disturbance, severe anxiety, severe depression, together with Aspergers Syndrome or other autism spectrum disorder, diagnosed in 2013. These longstanding disorders are said to be the cause of the applicant’s difficulties in obtaining employment; undertaking activities of daily living; and his need for medical treatment. District Court Proceedings 5 The proceedings were commenced by the applicant on 27 October 2017. They have taken an arduous course through the interlocutory stages, as the respondent has sought information from Mr Sellen regarding his pre-accident medical status and functioning. This led to a stay of the proceedings between 26 June and 21 September 2020. 6 The applicant did not comply with timelines for him to file and serve an Affidavit of Personal Injuries Particulars (APIP), and to obtain all initiating medical evidence by the end of 2020. This timeline was extended to February and March 2021 respectively, which was not adhered to. These timelines were not met. As a result, the respondent sought that the applicant’s claim be struck out pursuant to Rule 70.3 of the Uniform Civil Rules 2020 (UCR) for failure to comply with court orders. Alternatively, that the proceedings be stayed from 16 November 2020, when the orders were made.3 1 FDN 6 – second Statement of Claim (SOC). 2 FDN 20 – second Defence (Defence). 3 FDN 29. -- 3 of 25 -- [2024] SADC 88 2 7 The applicant filed an updated APIP on 1 June 2021, and the respondent did not pursue the application in FDN 29. The parties then attended to obtaining historical medical evidence, and medico-legal reports. Mr Sellen also pursued further investigation of his medical issues, including recent seizures said to have been suffered after undergoing spinal surgery. 8 On 18 January 2023, the applicant was ordered to file a further APIP within 21 days; obtain his GP records within 28 days; and make all attempts to obtain a copy of his Medicare Claims History Statement from his MyGov account before the next Directions Hearing listed on 14 March 2023. Both parties also sought a judicial mediation. 9 Mr Sellen’s updated APIP was not filed by the next hearing. I was advised that he had a medical appointment with a neurologist on 12 April 2023 and that two independent medical reviews had been completed. By consent of both parties, a mediation was set for 19 June 2023. 10 The mediation did not proceed. On 22 May 2023, the respondent, noting that the updated APIP had still not been lodged, filed an urgent application.4 An order was sought that the court proceed with a determination inquiry as to whether Mr Sellen was a person under a disability and required a litigation guardian. In the alternative, if Mr Sellen was found to have capacity then, that a coercive order be made for a compliant updated APIP to be filed no later than 31 May 2023. Application for Determination of the Applicant’s capacity 11 The respondent’s application was based upon several issues pertaining to the applicant not progressing the proceedings.5 These include: • difficulties the applicant’s solicitors have had obtaining his instructions, including in relation to the preparation of an updated APIP; • that the applicant had ceased treatment with the neurologist Professor Lee after he had opined, in his report of 1 September 2020, that the applicant did not suffer from epilepsy, and withdrew his epileptic medication; • that the applicant had been reviewed by the neurologist Dr Thyagarajan, by a video telehealth assessment on 17 December 2021, and he had concluded that the applicant’s presentation was suggestive of non-organic factors. Dr Thyagarajan had recommended referral to the epilepsy service at the Royal Adelaide Hospital for a detailed assessment including an EEG and video EEG; 4 FDN 59. 5 As set out in Affidavit of Ms Lyly Graham of 23 May 2023 (FDN 58). -- 4 of 25 -- [2024] SADC 88 3 • that Dr Chantal Baldwin, a neurologist, had reviewed the applicant, following his alleged seizure episode after a spinal procedure. This included review of the EEG and video of the applicant. She diagnosed the applicant as having suffered a psychogenic non-epileptiform seizure; • that Dr Baldwin had referred the applicant to the neurologist Dr Martin Robinson. There was no evidence that the applicant had attended upon Dr Robinson; • that on 14 March 2023, the applicant’s solicitor indicated that he was to be reviewed by the neurologist Dr James Triplett on 12 April 2023. It is not known whether the applicant attended, and no report from Dr Triplett had been provided; • that the applicant withdrew his consent to the mediation scheduled for 16 June 2023, as he planned to see an alternative neurologist; • that the applicant had been diagnosed by the psychiatrist Dr Gunapu with a conversion disorder, in medico-legal reports dated 5 November 2019 and 18 April 2023. This was despite the applicant insisting that he has suffered from the effects of an organic TBI, including a seizure disorder; • that Dr Sarah Lucas, neuropsychologist, and Associate Professor Geoffrey Herkes neurologist, agreed with Dr Gunapu’s diagnosis in reports of 23 July 2021 and 6 March 2023. 12 In summary, the respondent’s application was based upon a view that Mr Sellen has an obsession with being assessed by alternative medical specialists to prove his view that, he suffers from an organic medical condition that is causing seizures. This has led to the proceedings not being progressed towards finalisation. The applicant’s obsession with the cause of his medical symptoms has led to an inability to provide adequate instructions. 13 Before the matter was set for argument, the applicant filed an updated APIP on 1 June 2023.6 Additional medical evidence was provided. Dr Sarah Lucas, neurologist, in a report of 30 May 2023, opined that Mr Sellen’s view that he had suffered a significant TBI; his entrenched beliefs in this regard, and him refusing to take on board the opinions of many specialists was almost delusional. It was her view that the applicant was not capable of instructing his solicitors.7 6 FDN 61. 7 Exhibit LG 20 to FDN 63. -- 5 of 25 -- [2024] SADC 88 4 14 Dr Gunapu, in his report of 8 June 2023, concurred with that opinion, and agreed that Mr Sellen would be vulnerable in managing a large sum of settlement monies. He stated that the reason for this was: The level of fixity that he has severe TBI which has not been properly diagnosed. His continued venture in seeking opinions which would validate his fixed view is concerning.8 15 The respondent also relied upon a report of Dr Tony Davis, psychiatrist, dated 8 July 2023,9 provided to the applicant’s solicitors. Dr Davis concluded that Mr Sellen suffered from a Functional Neurological Disorder (FND). There was little treatment that could assist the applicant and his prognosis was poor. Dr Davis acknowledged the applicant’s rigidity and concretism of thought, but found that he did not suffer from psychotic illness or cognitive impairment. He did not believe that Mr Sellen was delusional, but rather his beliefs were a reflection of overvalued ideas. Dr Davis opined that Mr Sellen would struggle to provide well informed instructions and to make rational decisions regarding resolution of the proceedings. He concluded that the applicant’s best interests ‘may well be served by the appointment of a litigation guardian’. 16 The respondent’s application was listed for hearing as an inquiry on 6 November 2023. It was agreed that the determination hearing would proceed with the applicant giving evidence in the presence of Dr Gunapu and Dr Davis. The two psychiatrists would then give evidence. The issue to be decided 17 The sole issue to be decided is whether Mr Sellen is a person under a ‘legal incapacity’, taking account of UCR 23.8 and 23.9, and for whom a litigation guardian must be appointed.10 A person under a legal incapacity is defined in UCR 2.1 to mean: a person: (a) under the age of 18 years; (b) who, because of a mental or physical disability or illness, is not capable of managing their participation in a proceeding; or (c) whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities; 18 It is the definition in part (b) that is applicable to the factual scenario in these proceedings. There has been no judicial determination of UCR 2.1(b). 19 The definition in UCR 2.1(b), regarding disability or illness preventing participation in proceedings, is different to the definition in the 2006 District and 8 Ibid. 9 Ibid. 10 UCR 23.8(1). -- 6 of 25 -- [2024] SADC 88 5 Supreme Court Civil Rules (06R). Rule 78 provided that as a general rule, a person under a ‘disability’ may only take or defend proceedings through a litigation guardian. The definition of disability in 06R4 is similar to UCR 2.1 in relation to persons under 18 years of age, and persons under protection orders. The third category in 06R4 of a person under a disability, was set out as: (c) a person who is not physically or mentally able— (i) to manage his or her own affairs; or (ii) to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others); 20 This differs to a person who, ‘due to mental or physical disability or illness, is not capable of managing their participation in a proceeding’, as per the UCR definition of legal incapacity. This is the test I am to apply: Is the applicant, due to any psychological or psychiatric disorder, not capable of managing his participation in these proceedings? 21 The definition under previous rules, that has led to the requirement for a litigation guardian, has been judicially considered. In Manning v Russell,11 Justice Nicholson referring to Slaveski v State of Victoria (Slaveski)12 said that the starting point was a presumption that an adult is capable of managing their own affairs, including managing litigation to which they are a party. He articulated that there is no universal test for capacity with regard to litigation. However, a party must be able to understand the nature of the litigation, its purpose, and its possible outcomes, including risks on costs. He concluded that the test was, does the party have the ability to participate in litigation? It is not whether they have capacity in other parts of their life. 22 It follows that a person’s capacity must be considered in the context of the litigation. This includes the number of issues that are involved, and the complexity of the issues to be determined. The varying interests of all opposing parties must be understood. It must be ascertained whether the party has the mental capacity to understand the nature of the issues and requirements (such as medical examinations) on which they have to give instructions. These issues can only be decided by considering the subject matter of the litigation. 23 A test to determine legal capacity to prosecute proceedings was set out by Debelle J in Dalle-Molle v Manos (Dalle-Molle)13 and later adopted by Parker J in Washington v Washington (Washington):14 11 (2013) 123 SASR 135. 12 (2009) 25 VR 160. 13 (2004) 88 SASR 193 at [26]. 14 [2018] SASC 102. -- 7 of 25 -- [2024] SADC 88 6 The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes. 24 Justice Parker adopted the views of Debelle J that the level of understanding required must relate to the ‘facts and the subject matter of the particular case’. As a result, the capacity to give instructions must be determined by considering the subject matter and issues involved in the litigation.15 However, it is clear that for there to be capacity, a party must be able to give sufficient instructions. 25 In Matute v Cramer,16 Judge Dart on an appeal from a Master found the applicant to be an intelligent and articulate woman. However, her attitude to the litigation, in which she was claiming damages for injuries in an accident, and her conduct in court were concerning. She believed that there was a conspiracy against her, and that both sets of solicitors, and the court were involved. Judge Dart concluded that the applicant needed the assistance of a litigation guardian to conduct the claim and its possible resolution. 26 The Master who made the order for a litigation guardian, had directed that the psychiatrist Dr Tony Davis assess the applicant, but the applicant refused to attend an appointment. Dr Davis provided an assessment based on his review of the applicant’s medical records. These included a previous diagnosis of a Bipolar Affective Disorder. He concluded that despite being an intelligent woman, the applicant presented in an irrational manner when attending independent medical reviews. 27 On appeal, the Court of Appeal noted that Judge Dart had found that the applicant’s approach to her proceedings was concerning. She believed that there was a conspiracy against her by all involved, and sought damages of $7 million with no rational basis for such a claim. They did not grant leave to appeal for several reasons, including that the applicant had not demonstrated any relevant or material error. They noted that: 17 …the existence and effect of the applicant’s disability have been demonstrated by the terms of the psychiatric report as well as by the observations of those who have interacted with the applicant in the course of conducting the litigation. 28 In Perera v Alpha Westmead Private Hospital18 (Perera), the court was faced with an applicant who no longer wanted a litigation guardian in their proceedings. They believed they were competent to run their own proceedings in negligence, and damages. 15 Ibid at [103]. 16 [2022] SADC 78. 17 Matute v Cramer [2023] SASCA 78 at [26]. 18 [2022] NSWSC 571. -- 8 of 25 -- [2024] SADC 88 7 29 The NSW Civil Procedure Act 2005 at s 3(1) sets out that a: Person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings … and in particular includes: … who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will with respect to his or her property or affairs. 30 Justice Johnson considered what was meant by legal incapacity, considering previous decisions in the context of s 3(1). He set out the following: 39. The present application is similar to that considered by Price J in Farr v State of Queensland [2009] NSWSC 906, namely, in the context of a proposed settlement, a declaration that the Plaintiff is not under a legal incapacity for the purposes of Rule 7.14 UCPR. Price J said at [11]-[16]: “The first question for consideration is whether the plaintiff is not under a legal incapacity for the purposes of UCPR rule 7.14 and, in particular, for the purposes of settling the proceedings with the second and third defendants and carrying on the proceedings against the first defendant.: UCPR rule 7.14(1) provides: A person under legal incapacity may not commence or carry on proceedings except by his or her tutor. UCPR rule 7.13 provides: In this Division person under legal incapacity includes a person who is incapable of managing his or her affairs. A person under legal incapacity is defined under s 3 of the Civil Procedure Act to mean ‘any person who is under a legal incapacity in relation to the conduct of legal proceedings. For the resolution of this question I refer to the test applied by Chadwick LJ in Masterman-Lister v Brutton & Co [2003] 3 All ER 162 where his Honour said at [75]: …the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem. (Emphasis added) I am satisfied the plaintiff has the capacity to understand what is necessary to pursue her claim against the first defendant, to understand the precise details of the proposed settlement offer, the consequences of its acceptance or rejection, the advice proffered by counsel and has the ability to make decisions and give instructions based upon that advice for the following reasons … . -- 9 of 25 -- [2024] SADC 88 8 40. In Murray v Williams [2010] NSWSC 1243, Hammerschlag J determined that the Plaintiff in that case was not a person under legal incapacity so that a tutor was not required. His Honour said at [26]-[28]: There is no dispute that the test to be applied in determining Christopher’s mental capacity or lack of it is that applied by Chadwick LJ in Masterman-Lister v Brutton & Co [2003] 3 All ER 162 (and accepted by Price J in Farr v State of Queensland [2009] NSWSC 906 at [15])19 To similar effect is what was said by Handley JA in Murphy v Doman (as representative of the estate of the late Min Simpson) and Another (2003) 58 NSWLR 51 at 58 [34]-[36]: The definition of an incompetent person in the Rules reflects the earlier law. See Martin v Azzopardi (1973) 20 FLR 345, 347 per Fox J. At 348 Fox J referred to evidence that the plaintiff was incapable of managing his own affairs and continued: If, and as soon as, the plaintiff was in this condition he would be unable to retain a solicitor. That is to say, he would not have the mental capacity to understand the nature of the acts or transactions which he would be authorising. The cases do not consider the level of mental capacity required to be a ‘competent’ litigant in person but it cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation. There is a presumption of sanity which applies unless and until the contrary is proved. Attorney General v Parnther [1792] EngR 2455; (1792) 3 Bro CC 441, 443 [29 ER 632, 634]; M'Naghten's Case (1843) 10 Cl&Fin 200, 210 [8 ER 718, 722]. This means, in modern terms, that there is a presumption that a person of full age is capable of managing his or her affairs. Hence I approach the matter by considering whether with proper explanation from legal advisers and experts Christopher has capacity to understand what he needs to understand to pursue (or decide to pursue or not to pursue) the claim which Narelle has made.” (Emphasis added) 31 Justice Johnson concluded, that there were two considerations in determining legal incapacity, and that all relevant evidence should be considered by applying these20: (a) whether the Plaintiff is capable of understanding and communicating with her legal representatives in the conduct of the proceedings and settlement discussions and has the ability to provide instructions to them; and (b) whether the Plaintiff is capable of managing her affairs, including the making of financial decisions and receiving advice concerning financial affairs. 32 He added however: … even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct 19 As set out in the previous paragraph. 20 [2022] NSWSC571 at [48]. -- 10 of 25 -- [2024] SADC 88 9 of legal proceedings, and for that reason fall within the definition of ‘person under legal incapacity’. 33 Having reviewed the decisions where ‘legal incapacity’ has been considered, I agree with the applicant’s counsel that the approach of Johnston J in Perera (adopting Chadwick LJ’s test) should be followed in determining if Mr Sellen is a person under a legal incapacity. This only relates to part (a) of Johnston J’s test, as there is no submission that Mr Sellen is not capable of managing his financial affairs. 34 I also agree with the applicant’s counsel that neither Chadwick LJ or Johnston J suggest that if a person understands the legal issues and procedural steps in proceedings, but takes a contrary view to their legal team as to how they should proceed, that this necessarily means that they do not have legal capacity.21 As was submitted, clients often provide instructions that are contrary to legal advice after having the legal issues in proceedings explained to them. The test is rather, does the person have capacity to understand, with assistance from his legal advisors, the legal issues in the proceedings, upon which he must give instructions.22 35 Importantly, as noted by Nicholson J, and as set out in Slaveski: There is a presumption that a person of full age is capable of managing his or her own affairs, which must include the management of litigation to which he or she is a party. The party who alleges the contrary bears the onus. 23 As a result, where Mr Sellen has managed the proceedings to date with the support of his legal team, I must act with caution in determining that he is no longer capable of doing so. The Evidence 36 Mr Sellen gave evidence with the psychiatrists Dr Davis and Dr Gunapu sitting in the body of the court. They later gave evidence, including being cross examined together in a ‘hot tub’ arrangement. 37 I review all the evidence in the context of the issue to be determined. Is the applicant capable of understanding and communicating with his legal team in the conduct of the proceedings, including in settlement discussions? Is he capable of providing instructions to his lawyers? Can he make reasonable financial decisions? 38 Three volumes of documents were tendered solely for the purpose of the application in FDN 59. They are not admitted for the applicant’s claim generally. 21 T24. 22 This was the test applied by Judge Rossi in Price v Department for Education [2020] SAET 43. 23 [2009] VSC 396 at [25] per Kyrou J. This principle was also confirmed by Parker J in Washington v Washington [2018] SASC 102 at [104]. -- 11 of 25 -- [2024] SADC 88 10 The first two books contained 463 pages of medical reports and records.24 The third book contained 58 pages of the applicant’s financial records.25 The Applicant’s Evidence 39 Mr Sellen is now 41 years of age. He has a brother and sister with whom he has infrequent contact. Although his parents are separated, he has contact with each of them. He currently lives with his mother after having lived independently, or with his grandmother after his grandfather was placed in a nursing home. Mr Sellen contributes $80 per week to rent and pays a share of his mother’s quarterly expenses. 40 Mr Sellen has not worked since the collision and is currently receiving a Disability Support Pension (DSP). His work history began after he left St Peter’s College half-way through year 12. It has consisted of hands-on manual work, office work, and truck driving. He was working as a delivery driver with Tilt Trays Australia at the time of the collision. He had obtained all the necessary licences for the different types of trucks he had driven. 41 Mr Sellen’s evidence was that several years before the collision, he was diagnosed by Dr Robyn Young of Headstart, with autism spectrum disorder. I pause to note that there was no evidence provided to confirm that diagnosis. However, it was referred to, as if a fact, by most of the medical professionals who have reviewed Mr Sellen, including Dr Davis26 and Dr Gunapu.27 Dr Gunapu, in his report of 26 November 2019, opined that 40% of Mr Sellen’s psychiatric impairment was related to his pre-accident autism spectrum disorder.28 This was confirmed in his report of 13 February 2023.29 42 Mr Sellen said he was earning between $1,000 and $1,200 at the date of the collision. He was managing his own finances, as he had been since he started work whilst still at school. He enjoyed a multitude of activities and had an active social life. He enjoyed sports, especially cycling. 43 Since the collision, Mr Sellen has managed his expenses, managing a credit card account, with a limit of $2,000. He pays all his outgoings, and controls his finances without assistance. 44 Mr Sellen manages his own medical treatment and investigations, following recommendations of his general practitioner. He is aware of the medical issues in dispute in these proceedings, and has read all the relevant medical reports. These 24 Exhibit P1. 25 Exhibit P2. 26 Exhibit P1 at pages 109 and 122. 27 Exhibit P1 at pages 269, 270, 271, 273, 278, 279, 280, 281, 286, 287, 296, 299, 313, 315, 316, 317, 319 and 323. 28 Exhibit P1 at page 280. 29 Exhibit P1 at pages 315, 316, 317 and 319. -- 12 of 25 -- [2024] SADC 88 11 include his seizures, his cognitive and vision issues, and his body spasms. He described painful neck spasms, known as dystonia. 45 It was clear from his evidence, that Mr Sellen has a very detailed understanding of his current medical problems. He was able to set out in detail the history of the onset of his seizures that were diagnosed by Dr Lee in 2017, two years after he had first become aware of his symptoms. He understood his multiple diagnoses and medically what they involved. He understood that there were opinions regarding his symptoms and their cause, different to the ones that he held. 46 Mr Sellen agreed that when he saw Dr Davis on 30 March 2023, he was struggling with memory and concentration issues together with word finding and planning. He confirmed that he had told Dr Davis that he had sought treatment from: • Dr Seneviratne, general practitioner • Dr Ulich, specialist in Botox treatment • Ms Saelinger, neuro-physiotherapist • Dr Schultz, ENT specialist • Dr Andrew Lee, neurologist • Dr Triplett, neurologist • Dr Michael Selby, spinal and orthopaedic surgeon 47 The majority of these consultations, and any resultant treatment, was related to his spinal symptoms and seizures. The applicant explained that Dr Selby had started treatment by steroid injection into the C5-C6 level of his spine. However, as a result of suffering a seizure after that procedure, Dr Selby was not prepared to perform the next stage of treatment. He requires confirmation that the seizures are under control before proceeding further. 48 Mr Sellen is aware that many of the medical professionals who have reviewed him were of the view that all injuries sustained in the collision had resolved, and that his ongoing problems could be explained by a FND or a conversion disorder. He was also aware that, as a result, the application had been brought to determine his capacity to provide instructions to his legal team. 49 Mr Sellen had no difficulty telling me what his legal proceedings were about; the limits to compensation (pursuant to the Civil Liability Act) (CLA); and that offers would be put based on a FND, rather than an organic brain injury. He explained that although some may believe he is entrenched in his opinions, all he has wanted was to have his health managed ‘whether due to a head injury or due -- 13 of 25 -- [2024] SADC 88 12 to conversion’.30 In essence, he wants his quality of life back, whatever the diagnosis. Mr Sellen would not accept that he was obsessed with finding a specialist who would diagnose a severe brain injury, and that this explained all his symptoms. He was seeking treatment for those symptoms. 50 In relation to finalising the proceedings, Mr Sellen said he was willing to accept that his claim may be resolved on the basis of him suffering a FND rather than an organic injury. This included attending a mediation where the basis of any resolution would be on a FND and its consequences. Mr Sellen appeared, by his evidence, to fully understand the nature of his claim and how it could be resolved. I found his evidence in this regard to be insightful. It displayed a detailed knowledge of his injury claim, its limitations pursuant to the CLA, and how it would be negotiated.31 51 Mr Sellen was taken to Dr Davis’ report of 8 July 2023, and the finding that he held: … significant concerns about his [Mr Sellen’s] ability to weigh up and consider alternative views about the cause of his condition and to engage in meaningful discussions about his injury claim. It is apparent that Mr Sellen has not been able to accept the possibility that he could be wrong in his views and that an alternative explanation may carry more weight in a legal assessment.32 52 Mr Sellen’s response to that opinion was measured. He disagreed with Dr Davis explaining: I respect Dr Davis’ opinion, however I believe I do have the capacity to work with my legal team to be able to provide instructions. And I’m not the legal expert here, I’m relying on my legal team to advise me and guide me through the matter.33 53 He also denied that he was concrete in his thoughts or fixated on proving an organic head injury. Again, he confirmed that he just wanted his symptoms managed. If there were any concrete symptoms, Mr Sellen said that he believed that these was caused by the effects of his Asperger’s Syndrome. In his view, he has always been open-minded; has followed all medical advice; and has accepted any treatment offered. He agreed that he had sought out multiple opinions. However, this was always to find the best way to manage his symptoms. 54 In relation to his vision impairment, Mr Sellen disputed Dr Gunapu’s view that he was not open to accepting all opinions. He understood that it was the case that all neuro-ophthalmologists and neuro-optometrists had found that his vision problems were related to a head injury. Although he preferred those opinions over 30 T27.35 - 28.21. 31 T30.8-37. 32 P1 at pages 121-122. 33 T32.11-15. -- 14 of 25 -- [2024] SADC 88 13 Dr Gunapu’s, he accepted as a possibility that the vision problems may not be related to a head injury.34 Cross Examination 55 Mr Sellen was taken to a number of medical opinions that ultimately found that his symptoms were non-organic. He acknowledged those opinions, including that of Dr Lee, that led to his seizure medication being stopped in December 2018. He was asked what he thought was wrong with him and said:35 I believe I have a bunch of symptoms that are due to the accident; some may be conversion related, some may be head injury related. I’m not the medical expert, I can’t self-diagnose myself, but I’m more than accepting that – I don’t agree with the assertions that this is based on me having Asperger’s and an inability to deal with change. Whether, you know, it’s been a result of the head injury or the consequences of that and the changes that occurred to the body and mind; that’s the only thing I disagree with in the fixation of me having Asperger’s as the cause of my symptoms. 56 I found that to be a reasonable answer, although not accepted by the respondent’s counsel. The applicant was asked to explain Dr Lee’s opinion. His response was that he did not agree with how Dr Lee had changed his view of what the cause of his symptoms were; and with the fact that he did not offer any alternative treatment. This appeared to be a significant issue for Mr Sellen, namely that after Mr Lee had changed his opinion regarding the cause of his seizures, no alternative treatment was offered, and his medication was withdrawn. 57 Mr Sellen was able to explain in great detail what treatment had been provided, by whom, and for what purpose.36 I found that Mr Sellen was very knowledgeable regarding his symptoms, treatment and the medical dispute regarding the cause of his symptoms. He indicated some frustration that opinions were provided in medico-legal reports, but treatment options were not. This may be him not understanding the purpose of medico-legal reports. 58 As the cross examination progressed, there was clear tension between the respondent’s counsel and Mr Sellen as they exchanged views regarding the medical evidence and opinions. This led to Mr Sellen becoming defensive. It appeared that he felt he was not being listened to regarding the opinions of the numerous medical specialists, and his ongoing symptoms. Unfortunately, in some instances when matters were denied by Mr Sellen, counsel did not have before him the records to establish those matters as put.37 59 It was suggested to Mr Sellen that he was trying to find confirmation from a medical specialist that he was suffering seizures as a result of a TBI or epilepsy. This was denied. Mr Sellen agreed however that he was upset that Dr Lee had changed his mind. An unhelpful exchange followed regarding who had diagnosed 34 T37.7-13. 35 T43.28-38. 36 T45-47. 37 T52-54. -- 15 of 25 -- [2024] SADC 88 14 the applicant with organic seizures. Mr Sellen has a detailed understanding of the medico-legal issues and has a strong view that he has not been appropriately tested by many of the specialists who have provided opinions.38 60 As the cross examination continued, it became clear that Mr Sellen also has a comprehensive knowledge of the tests he has had for seizures and why; the different parts of his body that he believes have been impacted by the collision; and the extent of the testing he has been subject to. This was very clear when the Seer EEG testing was raised.39 The applicant explained in great, and persuasive detail, why he believed the test was not conducted in the correct manner. 61 Mr Sellen was asked to explain why he did not provide instructions on several legal steps required in his proceedings, including mediation. He denied giving instructions to cancel the mediation set for June 2023. He denied that it was cancelled because he intended to be reviewed by Dr Triplett. He understood his legal team was awaiting the outcome with Dr Triplett before proceeding with a mediation. He agreed that he preferred not to proceed without that further review.40 62 The cross-examination then turned to the claim Mr Sellen would put in seeking damages. He said that he understood that any claim would involve a ‘layer’ of head injury and a ‘layer’ of conversion. Mr Sellen tried to explain this; however, he was constantly challenged by the respondent’s counsel. When allowed, I found the applicant to give appropriate and informed evidence regarding the status of the injuries he understands were sustained in the collision.41 That counsel did not like the answers being given, is of no relevance to the issue I have to decide. The Evidence of Doctors Davis and Gunapu 63 Dr Davis has provided three medico-legal reports to the applicant’s solicitors, dated 12 October 2017, 20 April 2023 and 8 July 2023.42 Dr Gunapu has provided four reports to the respondent’s solicitors dated 5 November 2019, 12 November 2019, 18 April 2023 and 17 July 2023.43 The doctors were first examined by the applicant’s counsel, followed by the respondent’s counsel. 64 Dr Davis confirmed his view that none of the applicant’s ongoing symptoms could be explained by an organic brain injury. After hearing the applicant’s evidence, although there may have been some movement, it was clear that he still believed that an organic brain injury was part of his claim. He therefore had not moved to a point where Dr Davis believed Mr Sellen could give careful, thoughtful 38 T55-60. 39 T60-63. 40 T64-69. 41 T69-73. 42 Exhibit P1 at pages 106-122. 43 Exhibit P1 at pages 266-325. -- 16 of 25 -- [2024] SADC 88 15 advice to his legal team regarding his claim.44 This confirmed his opinion in his report of 23 July 2023.45 65 Dr Davis then set out recent factors that he believed added complexity to the assessment of the applicant’s injuries. The first was Dr Triplett’s letter of 25 April 202346 that suggested the possibility of a seizure disorder. However, he noted that this was provided before the EEG was performed on 17 May 2023.47 As a result, no one knows what Dr Triplett’s current view would be, given the finding on the EEG of non-epileptic seizure activity. 66 Dr Davis noted that the views of Ms Straga an orthoptist,48 and Professor Crotty a rehabilitation specialist,49 suggested a lack of clarity or definitive diagnosis relating to the applicant’s symptoms. Given Mr Sellen is seeking treatment/rehabilitation, their comments could suggest to him that the issue of an organic injury remained open. 67 In all the circumstances, and having heard his evidence, Dr Davis was not convinced that Mr Sellen was yet ready to accept that there was a non-organic explanation for his condition. When asked, given that conclusion, how Mr Sellen could, as a non-medical person, rationalise the provision of physical treatments by some specialists, if there was no organic injury, Dr Davis agreed that this was a dilemma. It was a problem for Mr Sellen, as ongoing treatment lead to affirmation of an organic process. He had been engaged in such treatment for several periods since the collision. This understandingly confirmed in his mind that there was an organic injury.50 68 Dr Davis set out the extensive history of medical treatment provided to Mr Sellen. This included referral to the Brain Injury Unit. He was treated by that team, and prescribed serious medication used for ABI. It was therefore reasonable that by all the treatment he had in the first two years, a TBI was confirmed in Mr Sellen’s mind.51 However, the clinicians then began to be concerned by the ongoing symptoms. The neurologist, Dr Lee told the applicant he was wrong and there was no organic seizure disorder. Dr Davis opined that this would have been confronting, and confusing for Mr Sellen. 69 Dr Davis noted that this was all complicated by legal processes, as the applicant’s symptoms continued to impact him, especially given his fixated and rigid thinking. Dr Davis described the applicant as very intelligent and very 44 T92. 45 Exhibit P1 at pages 121-122. 46 Exhibit P1 at pages 445-447. 47 Exhibit P1 at page 449. 48 Exhibit P1 at pages 407-409. 49 Exhibit P1 at pages 426-427. 50 T94-95. 51 T96. -- 17 of 25 -- [2024] SADC 88 16 thoughtful, but concrete and literal about his claim. He cannot fully understand that the change in the nature of his claim after Dr Lee’s opinions changed.52 70 Dr Davis concluded by the end of his evidence that he was worried that the applicant could not give good, solid instructions if the brain injury is found to be functional, rather than organic. 71 However, despite Mr Sellen’s presentation, and view of his injuries, Dr Davis did not believe he suffered a cognitive impairment, nor a psychotic illness, the conditions often associated with delusions.53 Mr Toon’s rigidity about his condition was not caused by any cognitive injury sustained in the collision. It arose from other factors including the applicant’s Asperger’s Syndrome and the early views of some of the medical practitioners who had reviewed him. 72 Dr Davis did not believe that the applicant was vulnerable, and he would lose money by pursuing alternative therapies. He also agreed that one way to test the extent of the applicant’s concrete thinking was to test in a real-life scenario. A judicial mediation would assist in reaching a decision as to whether Mr Sellen could give reasonable and proper instructions. 73 Dr Gunapu was then examined by the applicant’s counsel. He confirmed the opinions outlined in his report of 17 July 2023. They were that Mr Sellen’s level of fixity that he had suffered a severe ABI, which had been properly diagnosed, showed impaired judgment. This meant that he was a vulnerable person who was likely to chase experimental treatments and therapy, and thereby be robbed of his money. Mr Sellen’s health anxiety was almost on the verge of being delusional; described by Dr Gunapu as an ‘overvalued idea’. He would not be able to manage large sums of money due to the risk of exploitation.54 74 These opinions of Dr Gunapu are in direct conflict of those of Dr Davis who did not believe the applicant was vulnerable to exploitation by those providing alternative health options, or that he was delusional. 75 Dr Gunapu said that the evidence he had heard in court made him more confident in his opinion. He agreed with Dr Davis that as the day went on Mr Sellen’s anxiety became more obvious. He was then less willing to give up the ‘model’ of illness that he has constructed. In his view, Mr Sellen defaulted to that when under stress. He was not as confident as Dr Davis regarding that much would be learned by conducting a mediation.55 52 T97. 53 T98. 54 Exhibit P1 at pages 324-325. 55 T102-103. -- 18 of 25 -- [2024] SADC 88 17 76 Having heard Dr Gunapu’s views, Dr Davis agreed that there was a shift in Mr Sellen’s presentation as his evidence progressed. By the afternoon, he appeared more anxious and had ‘regressed to the [his] default position’. 77 The respondent’s counsel put to the psychiatrists whether the applicant had now become entrenched in his position. Dr Davis was not sure, as he had considered some new opinions. It was also important to take into account that in the first three years after the collision there were medical opinions that reinforced the scenario that the applicant had in fact suffered an organic brain injury. It therefore made sense that he had held onto that view, even as other medical evidence and data was produced. Dr Davis said that this did not however mean that Mr Sellen’s position was more entrenched.56 78 Dr Gunapu’s view was that Mr Sellen’s belief system and constitution meant that, he could not accept what should have been relieving information that, he did not have an organic brain injury. His opinion was that Mr Sellen had an overvalued, or a delusional-like belief, in relation to his medical condition. However, that had not led to him losing his personality, or his ability to manage his finances. His rationality is lost only in relation to the extent of his injury. It is not a global loss of personality, or decision-making. 79 Dr Gunapu considered that a person can still have capacity in all other aspects of their life, and yet still be delusional regarding their health. In this regard, his view is that capacity is a specific matter, stating:57 Capacity needs to be assessed for every specific matter, every time. You cannot assume loss of entire capacity, unless it's a progressive neurological disorder like dementia or - or something of that nature, where you can assume that science says that it's progressing matter, the brain cells will degenerate and therefore can assume the capacity will - capacity loss will progress. So every capacity question is specific, and it to the specific context, and you have to assess it for that particular reason. 80 This meant that where there were delusional beliefs in one area of functioning, i.e., health related behaviour, then capacity may be impaired to that particular discreet area of life. Dr Davis agreed with this; that a person can be rigidly stuck in one part of their life, and function well in all others. This loss of function could be impacted by a stressful process such as a mediation.58 Determination 81 The final decision with respect to determining legal incapacity is to be decided by the Court. It does not rest with either party, nor any of the medical specialists.59 I begin with the presumption that Mr Sellen, as an independent adult is capable of managing his own affairs, including these proceedings. The onus is upon the respondent to satisfy me that this is not the case. The respondent must 56 T105. 57 T109.28-38. 58 T111-112. 59 Goddard v Elliot [2012] VSC 87 per Bell J at [562]. -- 19 of 25 -- [2024] SADC 88 18 establish on the balance of probabilities that Mr Sellen does not, and can not, understand the nature of the proceedings, their purpose and the possible outcomes, including the risks of not succeeding and him therefore being liable on costs. Respondent’s Case 82 In satisfying the onus of establishing that Mr Sellen is a person under legal incapacity, the respondent argued that, based upon the evidence of the psychiatrists, Dr Davis and Dr Gunapu, both in court and in their reports, it was clear that Mr Sellen can not provide rational instructions to his legal team that would allow his claim to proceed to resolution. It was submitted that neither psychiatrist had substantially changed their view regarding the applicant’s legal incapacity during their evidence. 83 The respondent also relied upon the reports of Dr Sarah Lucas, neurologist, of 28 July 2021 and 30 May 2023.60 Her conclusion in 2023 was: I had previously indicated that there was no organic reason why Mr Sellen could not provide instructions, but that his unusual beliefs or significant inflexibility of thought may be influencing his thought processes. Since I last saw him, it appears that he has become even more entrenched in his beliefs around the accident and his injuries, and has continued to consistently seek out medical referrals and investigations to try to confirm evidence of organic injury. He refuses to take on board the opinions of a multitude of specialists of all backgrounds that have continuously (aside from a very small few) indicated that he has not had a significant traumatic brain injury and that he instead has a functional neurological disorder or somatisation. It appears that his beliefs may have reached a stage where they are considered to be almost delusional, and this leads me to concern about how he can instruct his solicitors in a balanced manner if he is so unwilling to consider the bulk of the medical evidence before him. I do not believe he would be capable of weighing up the pros and cons of any settlement discussions in order to make an informed decision about any potential offer.61 84 It was argued that Mr Sellen’s inability to make well-reasoned decisions impacted his capacity to manage these proceedings. If Mr Sellen will not accept what the medical experts are saying regarding the nature of his head injury, then it was argued he cannot provide rational instructions to his legal team. This, it was suggested, could put him in breach of his obligation as a litigant pursuant to UCR 3.1(1)(d) in that: (1) A party or a person appearing or required to appear before the Court must in relation to a proceeding - … (d) not make an assertion or response to an assertion for which they do not, on the material available at the time, leave a proper basis. 60 Exhibit P1 at pages 366 to 402. 61 Exhibit P1 at page 400. -- 20 of 25 -- [2024] SADC 88 19 85 This obligation is argued to extend to a lawyer appearing for a party. Uniform Civil Rule 3.1(2)(a) provides that a lawyer in such circumstances must comply with UCR3.1(1), and must not engage in conduct that allows a party to act contrary to subrule 3.1(1). 86 The respondent argued that Mr Sellen, by asserting that he suffers from an organic ABI in the absence of supportive medical evidence, was in breach of UCR 3(1)(d). Whilst in most personal injury claims there is competing medical evidence, in relation to Mr Sellen there was now no evidence of an organic brain injury, despite thorough investigation by multiple assessors. 87 It was argued that upon the evidence presented at the hearing, Mr Sellen did not meet the test for capacity set out by Chadwick LJ in Masterman-Lister v Brutton & Co.62 He does not have the capacity to understand that which he needs to understand in order to pursue his claim. 88 The respondent submitted that Mr Sellen also did not meet the test of capacity set out by Debelle J in Dalle-Molle, in that he did not comprehend all the aspects of the proceedings including their possible outcomes. It was argued that Mr Sellen did not have the capacity to give instructions and consider advice about steps in the proceedings. 89 It was acknowledged that the extent of Mr Sellen’s incapacity was limited to the specific issue of his ability to understand the medical issues, and accept that there might be another explanation for his seizures, vision issues, and other medical problems. That is, an explanation that does not involve an organic TBI. It is his entrenched view that he sustained such a brain injury that leads to his incapacity. 90 The respondent argued that I should adopt the conclusion of Dr Davis that Mr Sellen will continue to struggle to provide well informed instructions in relation to these proceedings. This includes instructions to resolve his claim in damages. Despite the evidence given by Mr Sellen that he understands the alternative explanation for his current symptoms, Dr Davis was not convinced that he had in fact reached the point of accepting that explanation. This was particularly as the hearing continued and Mr Sellen continued to be challenged on his need to find an organic basis for his ongoing symptoms. When asked about this, Dr Davis said:63 Q. What, though, leads you to ultimately conclude that he would be incapable of distinguishing between what has transpired in the past that you have just explained and a willingness to accept, in terms of the court proceedings, that his claim might only be resolved on the basis of him suffering from a functional neurological disorder and being able to provide instructions on that footing. 62 [2003] 3 All ER 162 at [75]. 63 T97.32-98.6 – T98.12-28. -- 21 of 25 -- [2024] SADC 88 20 A. Well, that's how I understand, you know, where the process is going, but I wasn't convinced this morning that he really hears that. I think at a level, yes, and I must say this morning the first hour or two was a different commentary than I had in April. … A. But by the end of the examination I, again, thought I'm not sure he has moved there at all, or if so, only partly so. So it does worry me about his ability to then give good, solid instructions if the balance of the argument is towards FND and probably FND only. We use - I mean the word 'delusion' or 'overvalued idea', I did wonder and Dr Gunapu may comment on this, whether the fixed belief is so rigidly held that it is a delusion, but it's a bit academic. He has a view and you can see why it's so strong. He does not have a psychotic illness, he doesn't have a cognitive impairment which are the things we often find with delusions. People have got nasty brain diseases or psychotic illness, he doesn't have them, but he has a very fixed and rigid view about this condition. I use the term 'overvalued idea', but it's a bit of a grey zone. 91 It was argued that Dr Davis had not really changed his opinion from the conclusion in his report of 23 April 2023. Both doctors were concerned that Mr Sellen’s anxiety would increase as the litigation moved towards trial or resolution. As a result of his concrete thinking, he would retreat and not be able to provide rational instructions. 92 In summary, the respondent argues that Mr Sellen does not have legal capacity to continue to prosecute his claim without a litigation guardian. He will not accept the considerable evidence that he did not sustain an organic brain injury in the collision. As a result, he is fixated upon finding medical opinion that supports his view. This means that he cannot provide rational instructions to his legal team to enable these proceedings to be prosecuted to resolution. Whilst this may be a subtle issue, and limited to only a particular area of Mr Sellen’s thinking, it is critical to being able to bring these proceedings to resolution. Conclusion 93 This application is an unusual one, in that it does not involve a party to proceedings who suffers from a clear incapacity or cognitive impairment. Rather, I found Mr Sellen to be a person of intelligence, who had insight into the issues to be determined in the proceedings and on the respondent’s application. During his evidence he was able to explain the issues in dispute and in particular, the detail of whether he was suffering from FND rather than an organic brain injury. Mr Sellen’s primary concern was to retain his independence and to get his pre- accident life back. This included having treatment for whatever his condition involves. 94 As Mr Sellen’s counsel submitted, the appointment of a litigation guardian is a very serious step that deprives him of a fundamental civil right under common law.64 That is to manage his own affairs, including making decisions in relation to the conduct of these legal proceedings. In M v L, Hinton J stated that such an 64 See Goddard Elliot v Fritsch [2012] VSC 87 at [545] – [547] per Bell J. -- 22 of 25 -- [2024] SADC 88 21 interference with “individual autonomy is not to be taken lightly”.65 That sentiment was confirmed by Parker J in Washington. 95 I take this into account and have had regard to all of the submissions made on Mr Sellen’s behalf. It was noted that he had not been diagnosed with a psychiatric illness and that Mr Sellen’s main issue was rigidity of thinking regarding his ongoing symptoms. However, his evidence was that he was prepared to explore the diagnosis of a FND, but no treatment had been offered. I was asked to consider whether rigidity of thinking and fixed views leads to a legal incapacity. Does any client who does not follow rational legal advice require a litigation guardian? 96 The answer to that is, that it depends upon the circumstances. This Court is regularly confronted by parties who have extreme or non-traditional views regarding their legal rights. They are often unrepresented. They are not however required to have a litigation guardian simply for those reasons. In other circumstances, clients do not accept the reasonable and rational advice of their legal team, and instruct them to pursue a legal matter that may have limited or no prospect of success, or in a different way to that recommended. With signed instructions, the solicitor continues to act for the client despite their reservations. 97 In Manning v Russell66, Nicholson J was of the view that in assessing legal capacity, a person may lack capacity to conduct legal proceedings in person, but not where they are represented by legal counsel.67 In Washington,68 Parker J noted with approval that in Manning v Russell Nicholson J had taken: … into account the fact that the plaintiff was represented by experienced counsel who were confident in the capacity of his client to give instructions and who was prepared to take and rely on those instructions. His Honour also accepted that the plaintiff’s counsel was aware of r 78 but had not sought the assistance of the Court in that respect and was actively resisting the application made by the defendant for the appointment of a litigation guardian.69 98 Ultimately, this was one of the factors that led Nicholson J to find that he was not persuaded that the plaintiff was a person under a disability. The same circumstances exist in these proceedings. Mr Sellen is represented by a legal firm with significant experience in prosecuting personal injury claims. They have engaged Senior Counsel who is similarly experienced. They are supporting the applicant in resisting the respondent’s application. This is therefore not a case of an applicant who has not had the benefit of sound legal advice. 99 Upon the evidence presented at the Inquiry hearing. I am satisfied that Mr Sellen understands with the assistance of his legal team, the issues to be 65 [2017] SASC 39 at [10]. 66 (2015) 123 SASR 135. 67 Ibid at [20]. 68 [2018] SASC 102. 69 Ibid at [106]. -- 23 of 25 -- [2024] SADC 88 22 determined in these proceedings. This was clear from his evidence. What I am asked to do by the respondent is to impose a litigation guardian because Mr Sellen may take a contrary view to his legal advice, and this means that he is incapable of giving rational instructions. 100 However, pursuant to UCR 2.1(b), I must be satisfied that Mr Sellen is suffering a mental or physical disability or illness, and it is that illness that leads to him not being able to manage his participation in the proceedings. Upon the current medical evidence, it is not clear what mental or physical disability or illness is being relied upon by the respondent. Dr Gunapu in his 2023 medical reports describes a Conversion Disorder; Mild Somatic Pain Disorder and Autism Spectrum Disorder.70 Dr Davis at 8 July 2023 confirmed his diagnosis of a FND. He did not believe Mr Sellen suffered from psychiatric illness involving anxiety or depression.71 101 On the evidence, the respondent is arguing that Mr Sellen’s legal incapacity flows from his entrenched view that he has suffered an organic brain injury, leading to rigidity of thought. Dr Davis and Dr Gunapu appear to base their opinions on this. However, a review of Mr Sellen’s evidence confirms that he understands the medical issues, and the dispute regarding his capacity. He is however, privately pursing treatment with Dr Triplett and Dr Crotty after Dr Lee changed his view and treatment was withdrawn. In my view, this is not sufficient to find legal incapacity. 102 There remains diagnostic uncertainty regarding the cause of Mr Sellen’s symptoms. Mr Sellen in evidence confirmed that he understood that they could be part of a conversion disorder or FND. He would be prepared to resolve his claim on those bases, if there is no evidence of an organic brain injury. In his mind, the evidence has not yet reacted this point as he is still seeking treatment. Mr Sellen denied that he was obsessional about seeking treatment. 103 I am satisfied that Mr Sellen has legal capacity to continue to instruct his solicitors in these proceedings, including at mediation and/or trial. This includes understanding the advice provided by his legal team, and the consequences of accepting or rejecting that advice, The reasons for this finding are: (i) The proceedings were commenced by Mr Sellen without a litigation guardian; (ii) Mr Sellen’s solicitors and senior counsel are experienced personal injury lawyers and have a duty to the Court to apply to have a Litigation Guardian appointed if they are concerned about legal incapacity. They have not done so and support Mr Sellen in opposing this application; 70 Exhibit P1 at pages 312-319 and pages 323 -325. 71 Exhibit P1 at pages 119-122. -- 24 of 25 -- [2024] SADC 88 23 (iii) I found Mr Sellen to have insight into his medical issues and the dispute in relation to causation. Whilst he is bewildered as to how a medical specialist can change his opinion regarding his medical condition, he was aware that it had occurred and understood the legal consequences of that; (iv) The issues in dispute involve diagnostic uncertainty and what that may lead to in assessing damages. This is not an issue of legal incapacity; (v) The definition of legal incapacity in UCR 2.1 no longer includes “a person who cannot make rational decisions about taking, defending or settling proceedings”, as per the definition of the 06 Rules. The removal of those words from the definition must have been intentional. The respondent’s submissions are largely based upon Mr Sellen’s rigid thinking leading to a lack of capacity to make rational decisions. Under the UCR, I find that this is insufficient to necessarily prove legal incapacity. This is particularly in circumstances where Mr Sellen clearly articulated the basis of his legal proceedings; (vi) Mr Sellen testified that if after further investigations the final diagnosis was of a FND and/or a Conversion Disorder, that he would accept that in relation to his claim. However, at the current time he still wants to pursue treatment and investigation with Dr Triplett and Dr Crotty. This may not be possible as Dr Triplett does usually assess applicants in legal proceedings; (vii) Mr Sellen demonstrated an understanding of the legal issues and procedural steps in the proceedings. He takes a contrary view as to how they should proceed; (viii) There is no evidence that Mr Sellen cannot communicate with his legal team in the conduct of the proceedings, or provide instructions, including in settlement negotiations. (ix) In circumstances where Mr Sellen manages all other aspects of his life, and the only dispute is the nature of his injury, I find that the appointment of a litigation guardian would only add unnecessary complexity to these proceedings. 104 I declare that Mr Sellen is not a person under a legal incapacity pursuant to UCR 12.1. -- 25 of 25 --