Dao v Cochrane & Allianz Australia Insurance Ltd [2010] QDC 526

1-1 [2010] QDC 526 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 125 of 2004 VIET HOANG DAO Plaintiff and ALLAN COCHRANE and ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 094 802 525 Defendants BRISBANE ..DATE 29/11/2010 ORDER CATCHWORDS Uniform Civil Procedure Rules r 547 Defence application for statement of loss and damage adjourned when doubts about plaintiff's mental condition raised a question of this lawyer's ability to proceed." -- 1 of 4 -- 1-2 ORDER HIS HONOUR: This is an application by the defendant under Rule 547 for an order that the plaintiff provide a statement of loss and damage in this claim which has its genesis in a motor vehicle accident as long ago as the 12th of February 2001. The claim has proceeded untidily with changes of representation on both sides of the record. There's been a "trial" already in relation to an asserted compromise of the claim. The Court's determination was that there was no standing compromise so the matter is proceeding to trial. Mr Shah of counsel, for the plaintiff, now concedes the prima facie entitlement of the defendants to the relief sought. He takes personal responsibility for raising the difficulty which he does rely on in seeking an adjournment of fairly modest duration, until the 16th of December. The concern relates to the ability of the plaintiff to give instructions which would lead to the preparation of the documents required. Mr Shah is correct that if the concerns which he has developed from perusing the material available to him and which he has communicated to the instructing solicitors are correct, then the legal people may be acting improperly in progressing the claim in the absence of a plaintiff or litigation guardian able to give instructions. There's some slim medical support from Dr Todman for the proposition that the plaintiff, who was born in 1945 -- 2 of 4 -- 1-3 ORDER apparently, may have relevant cognitive and memory impairments. The solicitor, Mr Winn, now that his attention is focussed on relevant considerations, has made the judgment that there are problems which ought to be looked into. It seems that the plaintiff, who is asserting he can no longer practice Chinese medicine, is incapable of engaging in conversations except in the Vietnamese language at a very basic level of communication. He requires an interpreter. All the circumstances are being experienced in difficult circumstances where the plaintiff is now residing with family in America and assertedly because he needs that care and is unable to do for himself. The pleadings which are now relatively ancient, 2004, refer to a closed head injury and also stress, anxiety and a psychiatric condition. The defence have not admitted that injuries along those lines were sustained. I can understand the defendants’ concern. It seems to me that the correct outcome today is to grant the adjournment sought to enable those attending to the plaintiff's interest to work out what has to be done to advance them. So, the application of the defendant will be adjourned to the 16th of December and it's inevitable the plaintiff be ordered to pay the costs thrown away by the adjournment -- 3 of 4 -- 1-4 ORDER notwithstanding that Mr Shah has earnestly sought that they be reserved. The defendants can't be criticised in any respect. They've given ample notice of this application, sent the requisite Rule 444 letter and like. So, adjourn to 16th of the 12th 2010. Order the plaintiff to pay the defendants' costs thrown away by the adjournment. It might be noted that the difficulty raised in Court today hasn't been made known over the month leading up to today, unfortunately. ----- -- 4 of 4 --