Davis v Greater Western Area Health Service [2005] NSWSC 1206

Procedural Posture

Notice of Motion in Negligence Proceedings / Application for Approval of Settlement and Acceptance of Resignation of Tutor

Legal Issues

1. 1 ['Whether approval should be given to the settlement.' 'Whether the settlement monies should be treated in a manner consistent with the plaintiff having a continuing incapacity.' 'Whether the plaintiff was under a legal incapacity such that the tutor should remain in place.']

Ratio Decidendi

The Court accepted the treating psychiatrist's opinion that the plaintiff was neither intellectually nor psychiatrically incapable of managing his own affairs and found no basis to reject it. Other psychiatric reports were not inconsistent with that opinion, and the plaintiff's proposed financial use of the settlement funds did not establish incapacity. Because the plaintiff was not under a legal incapacity, the settlement was approved and orders were made to accept the tutor's resignation upon formal filing and service and to permit payment of the balance of settlement monies to the plaintiff upon his signed authority.

Court Disposition

Settlement approved; agreed costs ordered; resignation of plaintiff's tutor accepted upon filing and service of formal resignation documents, with balance of settlement monies to be paid upon authority signed by the plaintiff.

Orders

• ['The settlement contained in paragraph 2 of the Terms of Settlement filed herein be approved.' "The Defendant pays agreed costs of $60,703.18 to the Plaintiff's solicitor." "The Court accepts the resignation of the Plaintiff's tutor upon a document formally recording same, with a verifying affidavit, being filed in...