Derrick v Kunde & Ors [2000] QSC 212

5o9Cb State Reporting TRANSCRIPT OF PROCEEDiNGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. ,,. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE J No 8064 of 1997 SCOTT LEE DERRICK and FRANCIS PHILLIP KUNDE and GALE ANNE KING and FAI GENERAL INSURANCE COMPANY LIMITED (ACN 000 327 855) and PTE HYDRAULICS PTY LTD (ACN 009 805 458) BRISBANE .. DATE 05/05/2000 JUDGMENT 1 REVISED COPr=.....S ISSUED State Reporting Bureau ·J I / Date ;;;-. '-1 '> I <-.,__C Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant -- 1 of 9 -- 05052000 T2/JAP22 M/T 7438/2000 (White J} HER HONOUR: This is an application for sanction pursuant to section 59 of the Public Trustee Act 1978 and the making of a protection order under section 65 of that Act. But having said that the plaintiff's instructions, which are reflected in his affidavit produced to the Court, are that notwithstanding severe head injuries which he sustained in a motor vehicle accident in 1994 such an order or orders ought not to be made. Mr Richard Douglas SC who appeared on behalf of the plaintiff submitted that the application has been made out of an abundance of caution to protect the plaintiff's legal advisers, the defendants and to take account of comments in a medical opinion. I am grateful for the care that he has taken in presenting the arguments for and against making any order. I should also say that the Public Trustee has been served with all of the material on this application. It must therefore be plain to the officers of the Public Trustee that the plaintiff does not seek to have the settlement sanctioned or a protection order made on this application. I note that the Public Trustee has not appeared on this application. The facts, very briefly, of this matter are that the plaintiff in the course of his employment delivering equipment in the early evening of 9 September 1994 left his work vehicle to cross the road, perhaps to seek some instructions. It was a rainy evening and, it seems, dark. He was struck by a motor vehicle when he stepped somewhat abruptly into its path. 2 JUDGMENT IO 20 30 40 50 60 -- 2 of 9 -- 05052000 T2/JAP22 M/T 7438/2000 (White J) The plaintiff has no recollection of the accident at all. He was then aged 20 years. In the accident he sustained severe injuries including a severe head injury, fractures of the facial bones and ribs and heart and lung contusions. He has, to a large extent, recovered from his physical injuries. It is the issue of his mental deficits which give rise to this application. 10 On 24 January this year the action was compromised subject to sanction. The compromise was for the sum of $284,948.28 clear 20 of and with the plaintiff being relieved from the obligation to refund the sum of $75,117.72 already paid to him by WorkCover Queensland, the insurer of his employer. Included in the compromise were terms to the effect that the motor vehicle insurer would pay any reasonable fees to be paid by way of management fees in the event that the Court made a protection order and that it would pay the costs associated with the action and the mediation. Could I say at the outset that the basis of settlement with 40 per cent being attributed to the plaintiff 1 s contributory negligence in failing to keep a reasonable look out as he crossed the road seems to me entirely appropriate. The employer was joined as a defendant but, as Mr Douglas has written, in his opinion to his instructing solicitor, that seemed to be an action which did not have strong prospects of success. 3 JUDGMENT 30 50 60 -- 3 of 9 -- 05052000 T2/JAP22 M/T 7438/2000 (White J) The plaintiff has recently become engaged to his long term partner. It is their intention to marry and to make a life together as a family which includes his fiance's 11 year old son. The plaintiff and his fiance intend to purchase a house in the area of Lennox Head which is a place halfway between his family in New South Wales and hers in Queensland with the proceeds of the action. They are both currently in recept of social security support pensions. 10 The plaintiff also proposes to purchase a new motor vehicle 20 and in the immediate future to find a course at a TAFE college in the area where he could learn some skills associated with furniture making. He has not undertaken this kind of occupation before but he was clearly a good worker as a fitter and welder prior to the accident and has said in evidence before me that he was good with his hands and had enjoyed this kind of work in the past. One of the reasons why this application has been brought is that Dr David Alcorn, a psychiatrist, who saw the plaintiff for the purposes of a medico/legal report, in the course of a long and careful analysis of the plaintiff's condition suggested that the plaintiff's poor money management meant that serious consideration should be given to his affairs being placed in the hands of the Public Trustee. Dr Alcorn thought that the plaintiff would be able to handle minor sums of money involved in shopping but that because he had expended his Workers Compensation payment moneys rapidly 4 JUDGMENT 30 40 50 60 -- 4 of 9 -- 05052000 T2/JAP22 M/T 7438/2000 (White J) and that some of his ideas about his work future appeared unrealistic in view of his deficits that this needed exploring. Dr Alcorn spoke to the plaintiff's mother about the plaintiff's capacity to handle money who thought it was probably equivalent to most 20 to 25 year olds but thought he could handle money and had sensible plans for the future. The difficulties experienced by the plaintiff relate to his short term memory for day to day working and in some behavioural difficulties. It is said that he is functioning at a 20 to 30 per cent reduction of his former performance level. His overall intellectual functioning has not been altered but he may have some cognitive difficulties. Dr Field has assessed the plaintiff as having functioned prior to injury in the average range and she has now assessed him as performing in the low average range. It is thought that he will have difficulty with employment in the future largely because of his difficulty in retaining instructions because of his short term memory deficits. The plaintiff has set out in his affidavit the way in which he expended the money from WorkCover. The real problem seems to be that he purchased a motor vehicle which turned out to be more of a burden than a benefit. It was not mechanically sound and so he continued, as it were, to throw good money after bad in an attempt to make it roadworthy. 5 JUDGMENT 10 ~o 30 40 50 60 -- 5 of 9 -- 05052000 T2/JAP22 M/T 7438/2000 (White J) There were some expenditures that were frankly improvident but it should be born in mind that he was a young man in his very early 20s and even without the difficulties that he had arising from his motor vehicle accident it seems to be the kind of approach to money that a mildly thoughtless young man of that age might very well have engaged in and it seems not inconsistent with his general background prior to the accident. He is very conscious of the fact that he did spend much of that money inappropriately. I have had the advantage of seeing and hearing him in the witness box and it seems to me that his answers and his insight into those problems and how he might avoid falling into that kind of trap in the future with any further sum of money was sensibly responded to. Just because a person may be improvident in the way he approaches the expenditure of funds provided by way of compensation is no basis for making a protection order. Neither does it mean that a sanction of the settlement is necessary. The plaintiff seemed to me to be a person who was able to give his solicitors proper instructions to deal with this matter and that he recognised the basis upon which the settlement was reached. He also has appropriate plans for the future use of his settlement money. He recognises that it must last for a long time. He knows that "friends" may seek to take advantage of him and will seek advice should that occur. He has insight into his mis-handling of his earlier compensation fund and is unlikely to repeat those errors. 6 JUDGMENT 10 '20 30 40 50 60 -- 6 of 9 -- 05052000 T2/JAP22 M/T 7438/2000 (White J) I have had the advantage of the decisions of Mr Justice Ambrose in Cocchi v Cocchi [1989] 2 QdR 266 and of Mr Justice Helman in the unreported decision of Morris v Mills of 20 August 1999 where his Honour followed the principles set out by Mr Justice Ambrose in Cocchi. This application has quite properly been brought to the Court to canvass the concerns raised by Dr Alcorn, however, I am of the view that it is unnecessary to sanction the settlement that has been reached between the parties. Neither need a protection order be made. Those remarks are subject to revision when they come. MR DOUGLAS: Certainly. HER HONOUR: I will perhaps put in better quotations from the doctors about his condition. MR DOUGLAS: Your Honour, could I ask for - in consequence, of your Honour's reasons could I ask for two orders, please? HER HONOUR: Yes. MR DOUGLAS; The first order is just an order for costs. I ask for the order for costs - it would have been noted in any event and we may as well have it on the record if there has to be an assessment at a later time. Can I ask your Honour to make an order by reference to the draft order that I handed up. An order in terms of paragraph 1.3. HER HONOUR: Just a moment, I seem to have----- MR DOUGLAS: I can give you another copy if need be. HER HONOUR: I do not think I have been that careless with it. Yes. MR DOUGLAS: Can I ask for an order in terms of paragraph 1.3. My friend has a copy of this and I also ask for an order still in terms of paragraph 11 and I should also ask for an order, I think, that a copy of your Honour's order and reasons be supplied by the plaintiff's solicitors, the Public Trustee 10 20 30 40 50 again on the footing that there is nothing to stop the Public 60 7 JUDGMENT -- 7 of 9 -- 05052000 T2/JAP22 M/T 7438/2000 (White J) Trustee from making an appropriate application at some future time. HER HONOUR: It also allows them to close off the file, I would have thought. MR DOUGLAS: Certainly. HER HONOUR: Yes. MR DOUGLAS: Those are, in my submission, the appropriate orders. HER HONOUR: And 13, I suppose, liberty to apply. It may be that that actually has got more meaning where no sanction or protection order is made. So, it really ends the action completely now. 10 MR DOUGLAS: Yes. Yes, thank you, your Honour. Is that all 20 right? MR JESSER: I have no objection. HER HONOUR: You are happy with the costs order? That's the only one that really concerns you? MR JESSER: No objection, your Honour. MR DOUGLAS: Your Honour, there's no order as to costs as 30 between the plaintiff and the fourth defendants but it is best in that event just to say nothing about it. I indicate that that is the agreement. HER HONOUR: Well I also should dismiss the application should I not? MR DOUGLAS: Yes, otherwise dismiss it. Yes. HER HONOUR: Thank you for your assistance. MR DOUGLAS: Would your Honour prefer us to submit a draft order to you? HER HONOUR: Yes, or I am sure my associate would prefer that but it is really quite easy just to take it out from here. I do not know that you need to do that, Mr Douglas. MR DOUGLAS: Yes, thank you. HER HONOUR: They are quite clearly set out here. MR JESSER: Excuse me, your Honour, just for the sake of completeness. My firm does not appear on the record for the fourth defendant. Do you want to see a letter from the fourth defendant? HER HONOUR: Yes. Would you file that. 8 JUDGMENT 40 50 60 -- 8 of 9 -- 05052000 T2/JAP22 M/T 7438/2000 (White J) MR JESSER: I will hand that up. HER HONOUR: Do you have a copy of it? MR JESSER: Yes. I can hand that up your Honour. HER HONOUR: Well, I will make that Exhibit 4 on this application but that need not go in the sealed envelope. That can actually go on the file. MR DOUGLAS: Your Honour, the order from paragraph 11 when your Honour's associate deals with that it should, in fact, read such that the words "filed by leave on 5 May 11 ----- HER HONOUR: Be produced. MR DOUGLAS: Yes. If your Honour deletes those words then, in fact, it accords with the way in which those documents were 10 dealt with, namely that they were tendered and they be placed 20 on the file. So, I ask your Honours to delete the words "filed by leave on 5 May 2000. 11 HER HONOUR: Yes, that is fine. MR DOUGLAS: Thank you. 30 40 50 60 9 JUDGMENT -- 9 of 9 --