Re K, an incapable person in receipt of interim damages awards [2014] NSWSC 1286 addresses the intersection between litigation for the recovery of damages for personal injuries that rendered a person incapable of managing his or her own affairs and the protective jurisdiction of the Court for the protection of the incapable person.

The decision arose against the background of an interim damages award, followed by appointment of an interim manager for that award (as opposed to for the whole of the incapable person’s estate). Later in time there came a settlement of the entire damages claim and the need for the interim manager to be appointed as financial manager for the whole estate of the incapable person.

At [40] the court commented on the interplay between the role of a tutor and that of a manager appointed before finalisation of a damages claim:

Had the foundational management orders extended to the whole of the estate of the defendant, rather than merely the amount of the first interim award of damages, the tutor’s authority to continue conduct of the proceedings on behalf of the protected person could have been called into question, and would have required confirmation by an order of the Court: Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [36]-[41].

As to the preferable approach where an interim damages payment is to be made, the court said at [42]:

On the whole, in the ordinary case, the preferable course is to leave the conduct of proceedings for damages that might, in due course, require comprehensive protected estate management orders to a tutor and the case management procedures applicable to the Common Law proceedings, maintaining the independence of an interim manager from the pressures inherent in the conduct of those adversarial proceedings. A protected estate manager, free of the burdens of the Common Law proceedings, can focus on the protective function delegated to such a manager (and supervised by the Court and the NSW Trustee in exercise of protective jurisdiction) with a greater assurance of independence than a tutor required to make strategic and tactical decisions about the conduct of Common Law proceedings in which he or she carries a risk as to costs.

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