Singh (bhnf Singh) v Calvary Hospital ACT Inc & Anor [2008] ACTSC 118 (3 November 2008)

Last Updated: 11 November 2008

JASPREET SINGH (BY HER NEXT FRIEND PARAMAJIT SINGH) v CALVARY HOSPITAL ACT INC AND ANOR

[2008] ACTSC 118 (3 NOVEMBER 2008)

TRUSTS AND TRUSTEE – Compromise – Next friend – Incapable child plaintiff recipient of damages award – Appointment of Public Trustee as manager of infant’s estate – Compromise including allowances for past and future gratuitous services rendered and to be rendered to infant – Whether appropriate to direct payment of gratuitous services to next friend – Moral obligation to make payment to provider of gratuitous services – Principles to be considered in making payment

DAMAGES – Whether compromise should be sanctioned – Application not a formality

Evidence Act 1995 (Cth), s 56

Public Trustee Act 1985 (ACT), s 25

Court Procedures Rules 2006 (ACT), s 275, 1015

Karvelas v Chikirow (1976) 11 ACTR 22

In Re Birchall, Wilson v Birchall (1880) 16 Ch D 41

Sztockman v Taylor [1979] VR 572

Fowler v Gray [1982] Qd R 334

Stephenson v Giess [1998] 1 Qd R 542

C (by his next friend) v FAI General Insurance Company Ltd (QSC, No 3849 of 1987, Lee J, 16 June 1998, unreported)

Page v Rodgers (1977) 16 ALR 40

Elliott (by his next friend) v Diener (1978) 21 ACTR 21

In re Taylor’s Application [1972] 2 QB 369

Naso v Cottrell (1994) 11 WAR 475

Re Forsaith’s Settled Estates (No 2) (1903) 20 WN (NSW) 190

Re Barbour’s Settlement: National Westminster Bank Ltd v Barbour and Ors [1974] 1 All ER 1188

McWilliams v McWilliams (1967) 87 WN (Pt 1) (NSW) 6

Sosa v Carter [1978] WAR 123

National Bank of Australasia Ltd v Solar and Anor (1977) 14 ACTR 1

Chapman v Freeman [1962] VR 259

Kyte v Georgettis [1969] QWN 46

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Smith v Reynolds (No 2) [1990] VR 391

Jones v Moylan (1997) 18 WAR 492

Re L [2000] NSWSC 721

Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557

W v Q [1992] TASSC 62; (1992) 1 Tas R 301

O’Keefe v Schluter [1979] Qd R 224

Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341

In the matter of GDM and the Protected Estates Act 1983 (NSW) (1992) Aust Torts Reports ¶81-190

Beasley v Marshall (No 4) (1986) 42 SASR 407

Jones v Moylan [No 2] [2000] WASCA 361; (2000) 23 WAR 65

Re B [2000] NSWSC 44

Marinko and Anor v Masri (2000) Aust Torts Reports ¶81-581

Goode v Thompson & Anor (2001) Aust Torts Reports ¶81-617

Re N [2001] NSWSC 345; (2001) 33 MVR 237

Protective Commissioner v D and Ors [2004] NSWCA 216; (2004) 60 NSWLR 513

Public Trustee for the Australian Capital Territory v Thompson and Anor [2000] ACTSC 4; (2000) 155 FLR 18

Radovanovic by her next friend and father Radovanovic v Cutter and Anor [2004] ACTSC 9

Robertson v Whitefield (1988) 90 FLR 311

Tanner (by his next friend) v Bresland (2005) 347 SR(WA) 285

Kars v Kars [1996] HCA 37; (1996) 187 CLR 354

JUDGMENT

No. SC 416 of 2001

Judge: Refshauge J

Supreme Court of the ACT

Date: 3 November 2008

IN THE SUPREME COURT OF THE )

) No. SC 416 of 2001

AUSTRALIAN CAPITAL TERRITORY )

JASPREET SINGH bhnf PARAMAJIT SINGH

First Plaintiff

PARAMAJIT SINGH

Second Plaintiff

CALVARY HOSPITAL ACT INCORPORATED

Defendant

DR SYDNEY ROBERT ARMELLIN

Third Party

ORDER

Judge: Refshauge J

Date: 3 November 2008

Place: Canberra

THE COURT ORDERS THAT:

1. From the moneys to be paid into court by the defendant under the compromise approved by order made on 20 October 2008, the sum of $700,000 be paid out to Paramajit Singh, the plaintiff’s mother, being an allowance paid to her in respect of:

(a) all post gratuitous services rendered to the plaintiff by her; and

(b) all past medical and other expenses including transportation costs incurred by her for the plaintiff.

2. The exhibits tendered on this application re retained on the Court file until further order.

1. Tragically, the plaintiff in these proceedings was born significantly and permanently disabled. Through her mother as litigation guardian (r 275, Court Procedures Rules 2006 (ACT)) she sued the hospital where she was born and the hospital, in turn, joined the attending obstetrician, each claimant alleging (respectively) that the other’s negligence caused the plaintiff’s condition.

2. The proceedings have been compromised by agreement between the parties and on 20 October 2008 I entered orders by consent to bring the litigation to a conclusion. I congratulated the parties and their legal representatives on achieving a compromise of the proceedings; this expression is no mere formality enunciated by the courts. It is clearly to the benefit of all parties and their witnesses to any litigation to resolve disputes between themselves, even though this inevitably means a level of compromise. I need hardly enumerate the obvious advantages which are all well-known.

3. In almost all respects the application followed the procedure well-known in this Territory as set out in Karvelas v Chikirow (1976) 11 ACTR 22. An opinion on the compromise was provided by senior and junior counsel for the plaintiff. That such an opinion is required has a long history: In Re Birchall, Wilson v Birchall (1880) 16 Ch D 41 at 43. This was supplemented by extensive submissions by counsel and oral evidence by the litigation guardian. It was, in my view, sufficient to enable me to form a proper view that the compromise should be accepted and I made an order accordingly. The costs on the proceedings were dealt with separately as is appropriate: Sztockman v Taylor [1979] VR 572.

4. In Karvelas v Chikirow, supra, Blackburn J (as he then was) noted at 23 that the opinion of counsel and, if in an affidavit, that affidavit, and any detail of the instructions given to counsel, the disclosure of which would, in the event of the Court not approving the compromise, be an embarrassment to the plaintiff, should be withheld from the defendant. Indeed, Master Lee QC (as he then was) suggested that such material should be “placed in a sealed envelope with a suitable notation thereon”: Fowler v Gray [1982] Qd R 334 at 352. I took this course of action. It was the course of action taken in Stephenson v Geiss [1998] 1 Qd R 542 at 544.

5. Mr F Saccardo SC who, with Mr M D Wilson, appeared for the plaintiff sought to expand on the material, it having been prepared with some haste over about the previous 12 hours or so. This opportunity would certainly have avoided the criticisms of Lee J (as Master Lee QC had then become) in C (by his next friend) v FAI General Insurance Company Ltd (QSC, No 3849 of 1987, Lee J, 16 June 1998, unreported), where his Honour, at 2, was critical of such applications being treated as “mere formalities” because, his Honour opined, it was “assumed that because ‘settlement’ had been achieved ... involving hard bargaining ... the sanction would present little difficulty.” To a similar effect are the comments of members of the Northern Territory Supreme Court in Page v Rodgers (1977) 16 ALR 40 at 41 (per Toohey J) and Robertson v Whitefield (1988) 90 FLR 311 at 311-2 (per Asche CJ) that the court needs proper material before it.

6. Given the circumstances in which the compromise was reached and having regard to the matters set out above, it was appropriate for Mr Saccardo SC to address me in some detail about the proposed compromise, the plaintiff’s case, its strengths and weaknesses, and the amount of the compromise sum, including the elements which were included and how they were calculated. This was important for a significant issue is whether the plaintiff would, by proceeding rather than settling the case, be likely to recover more in damages and whether it was worth taking the risks inherent in litigation. See Karvelas v Chikirow, supra, at 23; Elliott (by his next friend) v Diener (1978) 21 ACTR 21 at 22.

7. Since such information and submissions, if they were to be given as frankly as the Court would require, could be quite sensitive and at least embarrassing if not actually damaging to the plaintiff’s case were the compromise not to be accepted and the trial have to proceed, I took the unusual, perhaps extraordinary, step of inviting the defendant’s legal representatives to leave the court and of then closing the court.

8. To understand why this was an appropriate course, the nature of the application needs to be understood. It was put this way in Fowler v Gray, supra, at 349:

The Court is, in reality, a persona designata, vested with responsibility of protecting the interests of the person under a legal disability. If the compromise is sanctioned, agreement entered into between the parties has legal effect insofar as that person is concerned, and binds him. The Court is not determining a lis inter partes. It does not try issues in dispute nor does it arrive at a decision as at a trial. It is only concerned whether, in all of the circumstances of a particular case as presented, the settlement is reasonable and for the benefit of the person under the disability.

9. This passage was repeated by his Honour (as he had then become) in C (by his next friend) v FAI General Insurance Co Ltd, supra, at 3.

10. I further note that a similar step to the one I took was taken in Stephenson v Geiss, supra, where at 544, it is recorded:

Counsel for the defendants and instructing solicitors consented to then leave the courtroom to enable certain aspects of the matter, including counsel’s opinion, to be discussed in camera with plaintiff’s counsel.

11. Counsel then addressed me, handed up a report and a table to supplement the opinion and I added those to the material placed in the sealed envelope.

12. Evidence was also given by the plaintiff’s next friend, her mother. She confirmed that she consented to the proposed compromise and agreed that it was in the best interests of the plaintiff.

13. There is some controversy about whether this evidence is relevant and, therefore, admissible (see s 56, Evidence Act 1995 (Cth)). In Karvelas v Chikirow, supra, Blackburn J said at 23-4:

The views of the plaintiff’s next friend, approving the compromise, are not necessarily of any weight, especially if the next friend is a parent who is maintaining the plaintiff and bearing the primary liability for the costs of the action. The question is always, and only, what is in the interests of the infant. The views of a parent may be relevant, and may help to clarify the matter, if they are genuinely related to that question and that question only. Unless they are so related, they are irrelevant and may be misleading. I expressly refrain from commenting on the possible, though unusual, case of a compromise opposed by a next friend, except to say that it may be that the strict rule enunciated in Re Birchall (1880) 16 Ch D 41 (that the court will never approve a compromise which is opposed by the next friend) might not always now be followed.

14. It is clear that, even were the “strict rule” not applied, the attitude of the next friend is at least relevant; whether the court might override it does not make it irrelevant. I pause to note that a very powerful re-affirmation of the “strict rule” was expressed by the English Court of Appeal as recently as in In re Taylor’s Application [1972] 2 QB 369.

15. In Australia, the Full Court of the Supreme Court of Western Australia has more recently reaffirmed that an application for approval of a compromise cannot be made over the objection of the litigation guardian: Naso v Cottrell (1994) 11 WAR 475

16. As to the views of the litigation guardian on the terms of the compromise, the opinion of Blackburn J does not seem, if taken properly, to mean that the court should not receive evidence from the litigation guardian, even if a parent.

17. As long ago as 1903, Simpson CJ in Equity said in Re Forsaith’s Settled Estates (No 2) (1903) 20 WN (NSW) 190 at 190-1:

I think it desirable where the court is asked to make an order affecting the interest of infant defendants or respondents that there should be in all such cases an affidavit by the guardian ad litem of such infants, stating that he has gone carefully into the matter and his opinion thereon. Even in matters such as the present application where as a general rule the guardian would have no personal knowledge of the matter, the infants are entitled and the Court will require that before the sanction of the Court is given to the proposal there should be an affidavit by the guardian stating that he has carefully considered the matter, and would himself approve of the proposal were his interests in the matter those of the infants. This rule of practice is not confined to cases where the Court is asked to sanction a compromise in which the rights of infants are concerned. Unless guardians have some such duty as the above I am unable to see what purpose is served by their appointment.

18. That passage was quoted with apparent approval in Naso v Cottrell, supra, at 479.

19. To similar effect, that distinguished jurist Megarry J (as his Honour then was) said in Re Barbour’s Settlement: National Westminster Bank Ltd v Barbour and Ors [1974] 1 All ER 1188 at 1191:

Second, there is the important matter of the minors’ benefit. When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned. The solicitors must see that all the relevant matters are put before counsel, that the right questions are asked, and that the guardian ad litem or next friend of the minor fully understands and weighs counsel’s advice when it is given. Counsel has to discharge what in my judgment is one of the most important and responsible functions of the Bar, that of helping those unable to help themselves; and the guardian ad litem or next friend must understand the advice given and carefully weigh the advantages of the proposed compromise to the minor against the disadvantages.

20. Indeed, in McWilliams v McWilliams (1967) 87 WN (Pt I) (NSW) 6, Moffitt J (as his Honour then was) specifically sought out the views of the mother, even though she was the defendant in the proceedings, because the infant’s father, though the next friend, had had little contact with the infant, who lived with the mother from whom the father had been long separated. The father had no idea about the circumstances of the infant.

21. As was said by Burt CJ in Sosa v Carter [1978] WAR 123 at 124, the court should “satisfy itself that the opinion of counsel has been considered and understood by the infant’s guardian and it should give proper weight to the fact that the guardian, as is necessarily the case, wishes to accept the settlement”.

22. This passage, too, was expressly quoted with apparent approval by the Full Court of the Supreme Court of Western Australia in Naso v Cottrell, supra, at 478.

23. In this context and despite what might be suggested was the irrelevancy of it from the comments of Blackburn J in Karvelas v Chikirow, supra, I heard from and took into account the evidence of the plaintiff’s mother, the litigation guardian of the plaintiff, about the circumstances of the plaintiff, that she had had carefully explained to her the advice contained in counsel’s opinion and that she accepted it and considered the compromise to be in the best interests of the plaintiff. She also gave helpful evidence about the condition of the plaintiff and the assistance she needed and which was provided. I also had the benefit of some photographs of the plaintiff being tendered.

24. The settlement was resolved not by judgment for a sum in favour of the plaintiff but by a compromise. Thus, even though the terms of the compromise were, it appears, to be confidential between the parties, it would appear that nothing I was asked to do would impinge on the well-established principle of openness in the court enunciated in National Bank of Australasia Ltd v Solar and Anor (1977) 14 ACTR 1.

25. The approach I was asked to take can, perhaps, be accurately said to be that adopted by Moffitt J in McWilliams v McWilliams, supra, at 7 where his Honour noted:

The settlement, which the parties agreed was on terms not to be disclosed, was for the sum of [amount not included in report]. The agreement about non-disclosure, of course, was merely an agreement between the parties which I noted and, in accordance with my usual practice, I have not made any order of the court concerning this matter because in this case, as in other cases, it may be necessary for the terms to be disclosed in certain places either in connection with the working out of the terms of settlement, or for other reasons. However, subject to that, I would expect persons concerned to respect the agreement of the parties.

26. Thus, and consistently with National Bank of Australasia Ltd v Solar and Anor, supra, I have made no order forbidding publication of any part of the proceedings other than the opinion of counsel and associated documents.

27. The compromise nevertheless required the defendant to pay money into court: r 1015, Court Procedures Rules 2006 (ACT). Thereafter the moneys paid into Court were to be paid out to the Public Trustee to be held on trust and applied, together with any interest on income derived from it, for the maintenance, advancement or benefit of the plaintiff: s 25, Public Trustee Act 1985 (ACT). Such payment to the Public Trustee and application of them for the benefit of the plaintiff are subject to any direction of the Court: ss 25(1), (5)(b), Public Trustee Act 1985 (ACT).

28. Having approved the compromise, the plaintiff then sought payment out to the litigation guardian, the plaintiff’s mother, of a substantial sum, a sum which exceeded but included the amounts already paid, for example, by the plaintiff’s mother, for past medical expenses and the like. An order for payment of such amounts would, of course, be unexceptional: Chapman v Freeman [1962] VR 259 at 261; Kyte v Georgettis [1969] QWN 46.

29. The payment, however, also to include a substantial portion of the amount allocated in the compromise sum to represent the damages awarded for the provision in the past of services provided gratuitously to the plaintiff in accordance with the principles set out in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

30. The order was not an order for the payment of the moneys paid into court to a trustee other than the Public Trustee which is possible under s 25 of the Public Trustee Act 1985 (ACT) and is an order apparently made with increasing frequency: Smith v Reynolds (No 2) [1990] VR 391; Jones v Moylan (1997) 18 WAR 492; Re L [2000] NSWSC 721.

31. The order sought was that out of the sum paid into Court under the terms of the settlement there should be paid to the plaintiff’s mother and litigation guardian an amount representing a portion of the damages awarded for past expenses but most significantly for the services gratuitously rendered to the plaintiff by her mother, a head of damages recognised as payable to the plaintiff by the High Court in Griffiths v Kerkemeyer, supra.

32. It is worth noting that in that case, Mason J (as his Honour then was) pointed out at 193 that it was not now accepted that “the plaintiff was not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability to pay for them.” It is clear, too, that there is no trust imposed on this portion of the damages whereby the plaintiff holds that sum on trust for the provider of the services. Such a position was expressly rejected by Stephen J in Griffiths v Kerkemeyer, supra, at 177. See, also, Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557 at 561.

33. Further, in Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, Toohey, McHugh, Gummow and Kirby JJ said at 372:

This conclusion is now too deeply entrenched in this part of the law in Australia for this Court to reopen it. It is an accepted principle in Australia that the damages for past and future gratuitous services constitute a sum designed to provide for the injured plaintiff’s established needs. That sum may be calculated by reference to what the provider does and even what the commercial costs of doing it would entail. But the focus is upon the plaintiff’s needs. The plaintiff might, or might not, reimburse the provider. According to the repeated authority of this Court, contractual or other legal liability apart, whether the plaintiff actually reimburses the provider is entirely a matter between the injured plaintiff and the provider.

34. It is clear from this passage that the possibility of reimbursement is within the contemplation of the principles under which the award of damages has been made, though it is clearly neither mandated nor necessarily required.

35. It may be, however, as was said by the Full Court of the Supreme Court of South Australia in Beasley v Marshall (No 4) (1986) 42 SASR 407 at 410 per King CJ with whom Cox and Bollen JJ agreed:

Nevertheless there is an expectation upon the part of a court which awards damages under this head that the plaintiff will discharge to the best of his ability what must be regarded as a moral obligation to compensate those who have assisted him gratuitously, or will do so in the future, to the extent of the damages which have been awarded under that head. The trustee or manager of an infant or disabled plaintiff’s estate should regard himself, in my opinion, as subject to the same moral obligation as would attach to the plaintiff if he were not under the disability. He should therefore, in the absence of compelling considerations to the contrary, make use of the moneys which have been awarded under the relevant head to recompense those who have rendered gratuitous services to the plaintiff.

36. That, however, may be taking the principle too far. For example, in Kars v Kars, supra, the principal carer who provided the services was the tortfeasor. Though that provides a conceptual challenge to the approach suggested, it is to be recognised that the funds would usually be provided in fact by an insurer standing behind the tortfeasor. I note, however, that Crawford J in W v Q [1992] TASSC 62; (1992) 1 Tas R 301 at 305 expressly disagreed with the comments of with King CJ as quoted at [35].

37. Nevertheless, the courts have continued to recognise that some form of moral obligation appears to arise when such damages are recovered: O’Keefe v Schluter [1979] Qd R 224; Re DJR and the Mental Health Act 1958, supra, at 564-5; Jones v Moylan, supra, at 502.

38. There are, now, many decisions which make it clear that a court, at least a court with the power to supervise the management of trust funds such as those provided from the damages awarded to a plaintiff under a disability, has the jurisdiction to order or approve payment of an amount which represents some or all of that part of the quantum of damages paid for the provision of gratuitous services to a plaintiff and that such amount may be paid to the person who provided the services, even if that person is the plaintiff’s litigation guardian. See DJR and the Mental Health Act 1958, supra; Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341; Beasley v Marshall (No 4), supra; In the matter of GDM and the Protected Estates Act 1983 (NSW) (1992) Aust Torts Reports ¶81-190; W v Q, supra, Jones v Moylan, supra; Jones v Moylan [No 2] [2000] WASCA 361; (2000) 23 WAR 65; Re B [2000] NSWSC 44; Marinko and Anor v Masri (2000) Aust Torts Reports ¶81-581; Goode v Thompson & Anor (2001) Aust Torts Reports ¶81-617; Re N [2001] NSWSC 345; (2001) 33 MVR 237, Protective Commissioner v D and Ors [2004] NSWCA 216; (2004) 60 NSWLR 513.

39. Indeed, in Marinko and Anor v Masri, supra, Handley JA referred at 64,204 to the fact that the provider of gratuitous services “had every prospect of receiving most of the [amount of damages] awarded to his wife for his past gratuitous services”.

40. The position in this Territory has probably been put beyond doubt by the decision of Miles CJ in Public Trustee for the Australian Capital Territory v Thompson and Anor [2000] ACTSC 4; (2000) 155 FLR 18 at 20 who held that there was undoubted power to make an order for payment to the provider of gratuitous services of an amount representing some or all of the damages awarded a plaintiff under that head of damages. I note also that in the orders made on 6 April 2004 following the decision of Gray J in Radovanovic by her next friend and father Radovanovic v Cutter and Anor [2004] ACTSC 9, his Honour ordered that a portion of the damages for provision of gratuitous services provided by the plaintiff’s mother and father be paid out to them though no reasons for that order were published.

41. The issue then is the procedure for such an application and the criteria by which it should be judged.

42. In a number of jurisdictions, such applications are made by the relevant trustee; such is done frequently in New South Wales. Indeed, in Tasmania, in W v Q, Crawford J (as his Honour then was) actually dismissed the application by the next friend, commenting at 305-7:

Having determined that the Public Trustee has the necessary power I do not consider it appropriate, in the circumstances of this application, to make any order but instead will leave the question whether to make a payment to the Public Trustee to resolve. I say this particularly because in this case the application has come to me, not from the Public Trustee, but in the form of an application by the plaintiff, by his next friend who is one of the persons who stands to benefit.

...

There may however arise cases where a court will need to consider whether a moral obligation exists and whether it should be satisfied and if so, to what extent.

...

In the case of an infant plaintiff different considerations may arise. It is unnecessary for me to determine whether a judge who approves the compromise of an infant’s claim for damages has a power to authorise or direct a payment to the provider of gratuitous services.

...

For the reasons I have stated I propose to dismiss the application made in the name of the plaintiff by his father, the next friend, for an order authorising and directing payment to the plaintiff’s parents for their past services. My doing so should not be interpreted as a sign of disapproval of the making of a payment to them but instead a determination to leave the decision to the person who at law is responsible for it in his capacity as the committee of the plaintiff.

43. As will be seen, however, his Honour did not hold that the court could not hear and determine an application by the next friend.

44. I note, too, that the only reported Territory case, Public Trustee of the Australian Capital Territory v Thompson, supra, was an application made by the Public Trustee for approval of the proposed payments to the carers, though nothing in that case suggests that it was the only proper method of dealing with such an application.

45. In other jurisdictions, the court approving the compromise has heard and determined the application. In Jones v Moylan, supra, the Court of Appeal directed the trial judge to determine the application and then, on appeal in Jones v Moylan [No 2], supra, proceeded to determine the application which the trial judge had dismissed. In Queensland, the trial judge himself considered the application of the plaintiff through his next friend and made an order for payment out of such moneys in Goode v Thompson and Anor, supra.

46. As noted above, in this jurisdiction, the trial judge in Radovanovic by her next friend Radovanovic v Cutter and Anor, supra, considered such an application and made an order. I have been provided with a similar order made in the Supreme Court of Victoria where the judge who approved the compromise in the case also ordered that a sum representing something less than the amount awarded for gratuitous services be paid out to those who provided them, including the plaintiff’s litigation guardian.

47. I note, too, that, following Jones v Moylan [No 2], supra, the District Court of Western Australia has in at least one reported case, proceeded in this way: Tanner v Bresland (2005) 37 SR(WA) 285.

48. Accordingly, I am of the view that the court which approves a compromise in favour of a disabled plaintiff has the jurisdiction and power to consider an application for the payment to the provider of gratuitous services to the disabled plaintiff of an amount of damages awarded under that head even if that application is made by the plaintiff through her litigation guardian. Of course, as to whether the court, in its discretion, considers the application, requires the trustee and manager of the trust fund to be made a party or requires the trustee and manager to make the decision will depend on the circumstances.

49. Here, I was provided with detailed material about the position of the plaintiff who is severely disabled and who will need ongoing full-time care and support to provide her with a reasonable quality of life. Her mother, her litigation guardian, has provided much of that care, despite herself having a job which she needs to support herself, as a widow, and her other child.

50. It was clear that the plaintiff’s mother provided much of the support and assistance to the plaintiff, supplemented by the plaintiff’s sister and aunt. The plaintiff’s mother was, I have no doubt, especially after hearing her in the witness box, a woman of the highest character who has shown unstinting devotion to the plaintiff and a selfless commitment to her. I cannot contemplate that the mother of the plaintiff would act to the detriment or disadvantage to the plaintiff.

51. Her evidence was that she would use any payment to her ultimately for the welfare and benefit of the plaintiff.

52. The proposed payment would not significantly deplete the fund which would be available for the maintenance of the plaintiff and, indeed, would assist the plaintiff’s mother to provide better care and support to the plaintiff.

53. I was taken in detail through the heads of damage by counsel and the amounts estimated as recoverable as well as the discount applied and where it was applied to particular items of damage to show how the settlement sum was calculated. I note that the proposed payment was less than the full amount notionally allocated under the settlement for the payment for gratuitous services: See Jones v Moylan, supra, at 503.

54. I am conscious, too, of the particular sensitivity where the applicant is not only the plaintiff’s litigation guardian, but also the provider of the gratuitous services. As was said by Wallwork J (with whom Pidgeon J agreed) in Jones v Moylan, supra, at 502-3:

With respect to the position such as in the present case, where the carer is said to be in a position of conflict with the injured person, and where there has been no contested case with the matter being compromised on the opinion of counsel, which opinion presumably has been obtained on information supplied, in part, in collaboration with the next friend who is also the carer, the situation becomes more delicate. There is a conflict of interest because the next friend is to receive the money. It is complicated further by the fact that the court has not assessed the correct amount to be paid after hearing evidence.

55. In this case, I heard evidence from the plaintiff’s litigation guardian and so I had a good opportunity to assess her. As noted, I also heard detailed submissions on the amounts allocated to various heads of damage and how they were calculated.

56. It is clear that the court has a broad discretion in such a matter: Beasley v Marshall (No 4), supra, at 411. Of course, the court’s overriding duty is to ensure that the plaintiff’s estate is so managed and of such an amount as to serve the plaintiff’s best interests: Re E S and the Mental Health Act 1958, supra, at 343. The mere fact that the funds available for the maintenance of the plaintiff will be reduced by the payment made under this application will not of itself preclude the authorisation of a payment out of the judgment sum of the proposed amount, though such authorisation should be made only where it is shown that some benefit will thereby flow to the plaintiff: Re ES and the Mental Health Act 1958, supra, at 344; Jones v Moylan [No 2], supra, at 88.

57. There are a wide number of ways in which this can occur. I note that in Public Trustee for the Australian Capital Territory v Thompson, supra, at 22, Miles CJ held that it is in the best interests of a plaintiff such as the plaintiff in these proceedings “that family life be preserved as far as possible”. Whilst his Honour was referring to the avoidance of disharmony, I consider that this also includes the need to permit as normal a family life to be established so that, for example, the plaintiff’s sibling can feel that her needs are also able to be recognised, especially given the contribution she has made to the care and support of the plaintiff.

58. Having considered all the evidence, I am clearly of the view that such a payment of the amount sought would be to the benefit of the plaintiff.

59. Accordingly, I am prepared to approve the proposal that a substantial sum be paid out to the litigation guardian, the plaintiff’s mother and I so order.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 3 November 2008

Counsel for the plaintiff: Mr F Saccardo SC and Mr M D Wilson

Solicitors for the plaintiff: Collaery Lawyers

Counsel for the defendant: Mr R L Crowe SC and Mr R Clynes

Solicitors for the defendant: Minter Ellison

Counsel for the Third Party: Mr J Topfer

Solicitor for the Third Party: Mallesons

Date of hearing: 21 October 2008

Date of judgment: 3 November 2008