Wearing two hats: Lawyers acting as mediators

From the book New Directions for Law in Australia, the chapter Wearing Two Hats: Lawyers Acting as Mediators is available online.

Professor Noone from La Trobe University law school argues that as officers of the court,  lawyers do have additional responsibilities which cannot be put aside when they act as mediators. She proposes three inclusions in the various mediators codes of conduct:

• a requirement to ensure parties are aware of legal rights (access to information and/or advice) before agreeing to forego them in the negotiated settlement;
• procedures established for mediators to report systemic issues that they identify in disputes they mediate; and
• prohibition on immunity from liability in mediations.

Abolishing personal injuries law – A project

“It will by now be apparent that I am not a great admirer of our current system of distributing liability according to fault. But, and this is where the title of my lecture is misleading…”

On 16 November 2017 Lord Sumption of the Supreme Court (UK) presented the Annual Lecture for the Personal Injuries Bar Association on the topic “Abolishing Personal Injuries Law – A project“. His paper is now available online.

NDIS: Reasonable and necessary supports

Two recent AATA decisions deal with reasonable and necessary supports under the NDIS.

SSBV and National Disability Insurance Agency [2017] AATA 2174 arose in respect of a child with foetal alcohol spectrum disorder.  The first NDIS plan for the child had a total value of $75,615.00, and incorporated extensive one‑on‑one support from a team of carers, who would spend time with the applicant three to four times per week for a total of 12 to 15 hours per week, including time after school and sometimes on Saturdays. The child’s second plan significantly reduced the amount of support provided to the applicant and did not include funding for the one‑on‑one contact with carers which had been provided for in the first plan. The value of that plan was only $17,510.00.  A third plan (again for a lesser sum) followed.

The child’s mother sought an internal review in respect of speech therapy, a support person and occupational therapy. The review did not give rise to a different outcome hence the application to the AATA.

For technical reasons the plan was affirmed however the NDIA have an undertaking to review the plan so as to include certain components, including 15 hours per week of carer support and an allowance for speech pathology and occupational therapy.

Hudson and National Disability Insurance Agency [2017] AATA 2176 concerned reasonable and necessary supports in respect of a spinal cord injury. The Tribunal set aside the decision of the NDIA and held that funding for Mr Hudson to attend a two-hour activity-based exercise session once per week met the criteria for a reasonable and necessary support in accordance with the National Disability Insurance Scheme Act 2013 (Cth).


Residual earning capacity, vicissitudes + future commercial care

With thanks to David Higgs SC for drawing my attention to Smith v Alone [2017] NSWCA 287 which is of interest for its appellate consideration of burden of proof issues in relation to residual earning capacity and vicissitudes.  Future commercial care was also considered.

The trial judge had  reduced the claimant’s damages on the basis that, after a period of treatment, he would have residual earning capacity, The trial judge had also discounted  damages by 35% for vicissitudes on the basis of consequences of the claimant’s alcohol addiction and had declined to award damages for the cost of future commercial care where that care had been provided in the past by family members.

Macfarlan JA, with Meagher and White JJA agreeing, at [46] discussed the evidentiary burden:

It was necessary for the primary judge, guided by the evidence, to make a practical assessment of the likelihood of the appellant being able to obtain and retain the jobs that the respondent postulated would be suitable for him (Nominal Defendant v Livaja [2011] NSWCA 121 at [65]Mead v Kerney [2012] NSWCA 215 at[24]– [25]South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74]). In this regard the respondent bore “the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity” (emphasis added) (Kallouf v Middis[2008] NSWCA 61 at [52]Mead v Kerney at [26]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74]).

The trial judge had found that after the expiration of a two year period during which the appellant would undertake pain management/substance abuse withdrawal treatment, he would be able to earn an estimated $250 per week which would reduce his estimated future economic loss from $1,000 net per week to $750 net per week. In that regard at [53]:

Implicit in this finding is an assumption that the pain management and substance abuse withdrawal treatment would be effective to overcome the appellant’s present pain and his addiction to the drug Oxycontin. However, the validity of that assumption was not supported by the evidence. In particular, no-one who had the expertise to make good that assumption, for example a pain management expert or drug addiction treatment expert, was called to give evidence.

As regards the appropriate allowance for vicissitudes, at [63]:

The decision to allow a particular discount is an evaluative decision to which the principles in House v The King (1936) 55 CLR 499[1936] HCA 40 are applicable. Thus, in the absence of specific error (of which none is identified here), such a decision will not be reversed on appeal unless it is found to be “unreasonable or plainly unjust”. To my mind, the primary judge’s allowance of 35% was however unreasonable in this sense. The point is very much one of impression, but it seems to me that an increase from 15% to 25% (which represents an increase of two-thirds of the normal percentage) would adequately account for the above average vicissitudes that the appellant would have been likely to face but for the accident. I take into account in this respect that the appellant had been drinking alcohol heavily for some years prior to the accident, yet had been able to earn substantial income in most years. The risks he faced in the future were undoubtedly higher than those an average person would have faced, but I do not consider that they should be regarded as more than double those facing the average person. After all, the average person can hardly be regarded as a paragon of virtue when it comes to heavy drinking.

In relation to commercial care, it was noted at [75] that as Basten JA (with the concurrence of Meagher JA) stated in White v Benjamin (2015) 70 MVR 188[2015] NSWCA 75 at [88], consideration must be given to a plaintiff’s family circumstances for the purpose of determining whether commercial care will be needed in the future. Basten JA said (at [92]) that “although there is a significant chance that commercial assistance will not be obtained, a greater reduction would be self-fulfilling”: that is, if the plaintiff’s damages were reduced further, she might be unable to afford commercial assistance and therefore not be able to obtain it, however much she wanted or needed it.

Macfarlane JA then concluded at [77]:

In the present case, I consider that the appellant has established a need for commercial care and assistance for the hours that I have identified above. As I noted earlier, his primary carers are his two sisters. They have their own full-time jobs and families (each having two children) and live at a distance from the appellant. It is reasonable to assume that if the appellant has funds available to pay for commercial assistance he will use them to obtain that assistance. Clearly, he is embarrassed by having to rely on his sisters. He said in evidence that he did not like his family and friends having to take time out of their lives to help him and that he would replace their services with those from commercial providers if he had the money to do so (T 53). He also commented that it was “hard on Rebecca [the sister who is his main carer], she works 40 hours a week as well” (T 54).


NDIS: The NADIA system

Nadia Falters: teetering technology in the service of access to justice‘ is the title of an interesting article by roger Smith on the proposed NDIS AI advice system (a chatbot with a human face to answer customer queries  – initially as pre-programmed but with an AI capacity to learn):

Uncertainty swirls about what might have been the world’s most imaginative use of artificial intelligence to deliver information and advice to members of the public. Nadia is a programme developed by the Australian Disability Insurance Agency (NDIA) to answer questions on a new national disability insurance scheme (NDIS) with the voice of actress Cate Blanchett and a computer-constructed face.

Delusional psychosis + self harm: Claim against hospital.

LC by his litigation guardian KS v Australian Capital Territory [2017] ACTSC 324 saw a claim by a patient who alleged that the defendant knew or ought to have known that he was suffering from a delusional psychosis and had a tendency towards self-harm, but it nevertheless failed to put in place procedures to prevent him from harming himself.

At [59] the court held:

I accept the evidence of Dr Raftos that a mental health assessment of the plaintiff properly conducted by a medical practitioner within four hours of the plaintiff’s arrival at the hospital would, on the balance of probabilities, have resulted in an order for involuntary detention being made under s 41 of the Act. Had that occurred it is probable that the plaintiff would not have been able to abscond and would not have suffered the injuries that he did. There was a failure by the defendant to respond adequately to the knowledge that the plaintiff was delusional and prone to self-harm, in part evidenced by its failure to have the plaintiff assessed by a medical practitioner within the timeframe mandated by the Act and the consequent failure to obtain authorisation for involuntary detention under the Act. On the basis of the evidence of Dr Raftos I am satisfied that competent authority in charge of the management of the plaintiff in 2007 would have complied with the requirements of the Act and, as such, I am satisfied that there was a breach of the duty of care that the defendant owed the plaintiff. I am further satisfied that there is a sufficient causal nexus between the breach of duty and the damage sustained by the plaintiff to found an action in negligence.

The decision is the subject of a more detailed summary by Karen Kumar and Monica Pecker on the Hicksons Blog.



Limitation extension refused: ‘Just + reasonable’

Holcombe v Hunt & Anor [2017] VSC 666 saw an application for extension of of time to bring an action for negligence arising from medical treatment, with a delay of 13 years.

The court concluded that a fair trial could be held despite the delay. However at [56], it was not just and reasonable to extend time:

Mr Holcombe’s loss is potentially significant, and this decision will have a significant and harsh consequence for him. The nature and extent of the plaintiff’s loss is a factor that must be considered in the synthesis. However, his decision not to obtain legal advice until early 2016 in circumstances where he had received Dr  Penington’s advice in 2001 and was experiencing ongoing pain, weighs against granting the extension of time.  The consequence was that he was not informed as to the limitation of actions.  The inordinate length of the delay in bringing this proceeding also weighs against granting the extension.  It is not such that a fair trial cannot be held.  This latter factor should not override all the other factors.  All circumstances must be considered.  The extension must be reasonable, as well as just.  I do not think it reasonable in all the circumstances.  Justice is not simply to be assessed from Mr Holcombe’s viewpoint.  Justice demands all circumstances be taken into account, including what is just for Dr Hunt and the hospital.  Synthesizing all the relevant factors, it is not just and reasonable to extend time in this proceeding.