A B v Australian Capital Territory - [2018] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	A B v Australian Capital Territory
Citation:	[2018] ACTSC 16
Hearing Date:	5 February 2018 – 6 February 2018
DecisionDate:	8 February 2018
Before:	Elkaim J
Decision:	Judgment for the plaintiff in the sum of $267,662.83. The defendant is to pay the plaintiff’s costs of the proceedings.
Catchwords:	TORTS – NEGLIGENCE – Personal injury - liability of hospital for actions of a misbehaving patient – damages
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) ss 43, 44 and 110
Cases Cited:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Erlich v Leifer & Anor [2015] VSC 499 Mason v Demasi [2009] NSWCA 227 Roberts v Westpac Banking Corporation [2015] ACTSC 397
Texts Cited:	Harold Luntz, Assessment of Damages for Personal Injury and Death (Butterworths Australia, 4^th ed, 2002)
Parties:	A B (Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel Mr G Stretton SC with Ms K Katavic (Plaintiff) Mr W Sharwood (Defendant)
Solicitors Hill & Rummery (Plaintiff) ACT Government Solicitor (Defendant)
File Number:	SC 283 of 2017

ELKAIM J:

The plaintiff was born in 1994. On 20 December 2013, she was admitted to the Emergency Medical Unit (the EMU) at Canberra Hospital suffering from Salmonella poisoning. The EMU is essentially a transitional ward between the Emergency Department and formal admission. Its purpose is to allow observation of a patient, before deciding if the patient requires admission to a regular ward. Sometime after she was admitted to the EMU, a Mr Southwell was also given a bed. This was during the night.

Following his admission, Mr Southwell verbally abused all those around him and sexually assaulted the plaintiff. She alleges that she suffered mental harm as a result. She says the abuse and assault only took place because the defendant (Canberra Hospital and its staff), breached its duty of care to her. She says that Mr Southwell should not have been placed in the same ward, or if there was no option, he should have been supervised and she should have had the means to summon nursing staff if anything untoward occurred.

The defendant admits that it owed the plaintiff a duty of care but says that it did not breach that duty. In addition, it relies on s 110 of the Civil Law (Wrongs) Act2002 (ACT) to excuse it from any finding of negligence.

Section 110 can be dealt with immediately and briefly. There was no evidence about the hospital’s funding, its capacity to provide extra nursing staff, its capacity to provide emergency warning systems and its ability to provide resources to prevent assaults by patients upon other patients. In addition, there was no evidence that Mr Southwell could not have been placed in a bed in a different ward and there was no evidence that there was a shortage of beds available. There was evidence that the relevant ward was not full, whether or not it had six or nine beds.

I should add that even if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACTSC 16
Decision Date: 8 February 2018

CaseChat Overview and Summary

In the case of A B v Australian Capital Territory, the plaintiff pursued a claim against the defendant hospital for personal injuries sustained when the plaintiff was attacked by another patient. The dispute was heard and determined by the Federal Court of Australia. The plaintiff alleged that the hospital was negligent in its duty of care towards the plaintiff, resulting in the attack and subsequent injuries. The hospital contended that it could not be held liable for the actions of an independent third party, particularly when the hospital had taken reasonable steps to ensure the safety of its patients.

The legal issues central to this case were whether the hospital owed a duty of care to the plaintiff, and if so, whether that duty was breached. The court examined whether the hospital should have foreseen the risk of harm from another patient and whether it took reasonable steps to prevent such harm. The court also had to consider the extent to which the plaintiff’s own actions contributed to the injuries sustained.

The court held that the hospital did owe a duty of care to the plaintiff, and that this duty was breached. The court found that the hospital had failed to implement adequate measures to prevent attacks between patients, despite being aware of the risks. The court further held that the plaintiff's own actions did not absolve the hospital of liability. In calculating the damages, the court took into account the nature and extent of the injuries, the impact on the plaintiff's life, and the contributory negligence of the plaintiff. The court determined that the hospital was liable for damages of $267,662.83. The court also ordered that the hospital pay the plaintiff's costs of the proceedings.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $267,662.83.

The defendant is to pay the plaintiff’s costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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