Although not restricted to medical claims, the decision of Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 is interesting for its consideration of appointment of a manager in anticipation of receipt of an award of personal injuries compensation.

Although liability had been admitted (at [31]), the decision did not refer to the making of a substantial interim payment to a plaintiff, which may have given rise to a different outcome because of the need to invest and manage that sum for the benefit of the claimant.

The reason for the application in this matter is not entirely clear, though the judgment alludes to  “convenience” and perhaps avoiding a later debate as to whether funds management would be recoverable in the compensation claim: [36].

The present tutor for the plaintiff was able to adequately perform the litigation tutor role: [40].

Although the suitability of the proposed manager, a licensed trustee company, was not in issue ([26]), that was so in relation to the manager role. There was no evidence that the proposed manager was familiar enough with the proceedings to be willing, able, and sufficiently informed of what is required, to take over conduct of the litigation: [43].

Nor was there evidence as to fees proposed to be charged by the proposed protected estate manager for the conduct of the litigation: [48]. It seems implied that those fees would be a relevant consideration.

Even though a manager may well (and probably would) become necessary in due course, one of the factors that may bear upon the identity of any manager appointed might be the amount of any compensation awarded: [52].

Accordingly no order was made at the current stage of the litigation, before conclusion of the compensation claim.

Another matter considered in the same judgment was an application for revocation of earlier management orders, because compensation awarded for personal injuries had been exhausted and there was no other property of substance to be managed. That order was made: [95].

 

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