Australian Capital Territory v Crowley - [2012] ACTCA 52

THE AUSTRALIAN CAPITAL TERRITORY v JONATHAN ANTHONY CROWLEY AND THE COMMONWEALTH OF AUSTRALIA AND GLEN PITKETHLY
[2012] ACTCA 52

PRACTICE AND PROCEDURE – Appeals – where first instance decision delivered two years after conclusion of trial – circumstances in which open to appeal court to review findings of fact.

TORTS – Negligence – where plaintiff mentally ill and wielding kendo stick as weapon in public – where plaintiff shot by police officer – where plaintiff conceded police officer not negligent in discharge of weapon – whether duty of care owed by police to plaintiff – consideration of scope and application of police immunity from civil liability – whether breach of duty.

Held: Appeal allowed. The police did not owe the plaintiff a duty of care.

TORTS – Negligence – liability of statutory authority – whether ACT Mental Health owed duty of care to plaintiff – where plaintiff seen by ACT Mental Health for purposes of determining possible involuntary detention under subs 37(2) of Mental Health (Treatment and Care) Act 1994 (ACT) – where plaintiff not admitted to approved health facility – characterisation of duty of care – whether ACT Mental Health under duty to exercise statutory power to detain – whether breach of duty.

Held: Appeal allowed. ACT Mental Health owed the plaintiff a duty of care to follow up mental health assessment; however, ACT Mental Health did not breach this duty.

Australian Federal Police Act 1979 (Cth) ss 4, 6, 64B

Crimes Act 1900 (Part 8)
Evidence Act 1995 (Cth) ss 4, 79

Mental Health (Treatment and Care) Act 1994 ss 9, 12, 13, 14, 15, 17, 18, 23, 25, 26, 27, 28, 37, 40, 41

Public Sector Management Act 1994 (ACT)

Supreme Court Act 1933 (ACT) Part 2A

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, cited
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Australian Securities and Investments Commission v Vines (2003) 48 ACSR 291, cited
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Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, cited
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Zalewski v Turcarolo [1995] 2 VR 562, cited

R Clayton QC and H Tomlinson QC (Eds) Civil Actions Against the Police (3^rd ed, Sweet & Maxwell, 2005)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 33 – 2011
No. ACTCA 36 – 2011
No. SC 367 of 2002

Judges: Lander, Besanko and Katzmann JJ
Court of Appeal of the Australian Capital Territory
Date: 17 December 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 33 - 2011
  )          No. SC 367 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:
THE AUSTRALIAN CAPITAL TERRITORY Appellant
AND:
JONATHAN ANTHONY CROWLEY First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent

GLEN PITKETHLY
Third Respondent

ORDER

Judges:  Lander, Besanko and Katzmann JJ
Date:  17 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

The orders made by the Honourable Justice Penfold on 10 June 2011 (“the said orders”) be set aside.

In lieu of the said orders there be orders as follows:

(a) that judgment be entered in favour of the second defendant against the plaintiff; and

(b) the plaintiff pay the second defendant’s costs of the trial.

The first respondent pay the appellant’s costs of the appeal to be agreed or taxed including the costs of the Notice of Contention.

IN THE SUPREME COURT OF THE       )          No. ACTCA 36 - 2011
  )          No. SC 367 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:
THE COMMONWEALTH OF AUSTRALIA
First Appellant
GLEN PITKETHLY
Second Appellant
AND:
JONATHAN ANTHONY CROWLEY
First Respondent
THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent

ORDER

Judges:  Lander, Besanko and Katzmann JJ
Date:  17 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

The orders made by the Honourable Justice Penfold on 10 June 2011 (“the said orders”) be set aside.

In lieu of the said orders there be orders as follows:

(a) that judgment be entered in favour of the first and third defendants against the plaintiff; and

(b) the plaintiff pay the first and third defendants’ costs of the trial.

The first respondent pay the appellants’ costs of the appeal to be agreed or taxed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 33 – 2011
  )          No. SC 367 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:
THE AUSTRALIAN CAPITAL TERRITORY Appellant
AND:
JONATHAN ANTHONY CROWLEY First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent

GLEN PITKETHLY
Third Respondent

Judges: Lander, Besanko and Katzmann JJ
Date: 17 December 2012

Place:  Canberra
IN THE SUPREME COURT OF THE       )          No. ACTCA 36 – 2011
  )          No. SC 367 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:
THE COMMONWEALTH OF AUSTRALIA
First Appellant

GLEN PITKETHLY
  Second Appellant
AND:
JONATHAN ANTHONY CROWLEY
  First Respondent
THE AUSTRALIAN CAPITAL TERRITORY
  Second Respondent

Judges:  Lander, Besanko and Katzmann JJ
Date:  17 December 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:
INTRODUCTION

In the early afternoon of 11 December 2001 in a suburban street in Canberra Jonathan Crowley, then 34 years old, was shot in the neck by a senior constable of the Australian Federal Police (“AFP”). The bullet shattered Mr Crowley’s spinal column at the level of the C5-6 vertebrae leaving him with quadriplegia. At the time of the shooting Mr Crowley was mentally ill. His behaviour was erratic and aggressive and police had been unable to subdue him or to fend off his attacks. On any view of the matter this was a tragedy.

The following year Mr Crowley sued for damages. He named as defendants both the AFP officer who fired the shot, Senior Constable Glen Pitkethly, and the Commonwealth of Australia, who is legally responsible under the Australian Federal Police Act 1979 (Cth) (“AFP Act”) (s 64B) for the wrongful acts of AFP members. He also sued the Australian Capital Territory (“ACT”) for the allegedly negligent acts and omissions of the ACT Mental Health Service and certain of its employees which he claimed contributed to the conduct of the police. Liability was vigorously contested by all three defendants, but Mr Crowley ultimately prevailed and he was awarded $8m in damages. We should point out at the outset that counsel for Mr Crowley did not contend that SC Pitkethly was negligent in firing his revolver and the trial judge did not find that either he or his companion, SC Ben Willis, was negligent in using capsicum spray.

The ACT on the one hand and, on the other, the Commonwealth and SC Pitkethly (together “the police”) appealed against the judgment. In broad terms, the ACT challenges the trial judge’s findings that it owed Mr Crowley a duty of care, that it was in breach of such a duty and that any breach caused Mr Crowley injury. The police challenge only her Honour’s findings on duty and breach.

The grounds of appeal are numerous. Some of them challenge factual findings, some inferences drawn from the facts.

The right to appeal is conferred by Part 2A of the Supreme Court Act 1933 (ACT) (“Supreme Court Act”). It is an appeal in the nature of a rehearing (Huen v Hyland [2004] ACTCA 5 at [54]), albeit that error must still be shown: Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 at [21]–[30]. On such an appeal the Court is obliged to conduct “a real review of the trial” and the judge’s reasons and give “the judgment which in its opinion ought to have been given in the first instance”: Dearman v Dearman (1908) 7 CLR 549 at 561 quoted with approval in Fox v Percy (2003) 214 CLR 118 at 125 [23].

For the reasons that follow we are of the view that the trial judge fell into error and the appeals must be allowed.

THE PARTIES

Mr Crowley is a single man who at the relevant time lived at his parents’ premises in a caravan.

The Commonwealth has the responsibility for the AFP which is constituted under the AFP Act. The AFP consists, amongst others, of AFP employees: AFP Act, s 6. Both SC Pitkethly and SC Willis were employees, as were all other AFP police officers. They were also members of the AFP. A function of the AFP is to provide police services in relation to the ACT: paragraph 8(1)(a).

“Police services” is defined in s 4 of the AFP Act and “includes services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise”.

The ACT had at the relevant time as one of its administrative units of the ACT Public Service, the Department of Health and Community Care (“the Department”). It was established under the Public Sector Management Act 1994 (ACT) (“PSMA”). Sections 12, 13 and 14 of the PSMA provided:

12. (1)The body known as the Australian Capital Territory Government Service that was, immediately before the day fixed for the Public Sector Management (Amendment) Act 1995, section 2 (2), in existence because of this Act continues in existence by force of this subsection under the name of the Australian Capital Territory Public Service.
(2)The service is constituted by—
(a)       the chief executives; and
(b)       the executives; and
(c)       other employees; and
(d)       officers.

(3) The Territory is the employer of all members of the service.
13. (1) The Chief Minister may, from time to time, in writing—
(a) establish administrative units; and
(b)place chief executives in control of the administrative units.

(2)An administrative unit consists of the offices within that administrative unit.
(3)An instrument under subsection (1) is a notifiable instrument.
14. (1)The Chief Minister may, in writing—
(a)allocate to a Minister responsibility for 1 or more administrative units; and
(b)allocate to an administrative unit responsibility for all or any of the enactments and matters for which the relevant Minister is responsible.

(2) An instrument under subsection (1) is a notifiable instrument.

The Chief Minister of the ACT exercised the powers given in s 13 and s 14 of the PSMA by an administrative instrument (Administrative Arrangements 2001 (No 2) (NI 45 of 2001)) and:

(a) established the Department;
(b) allocated to the Minister for Health (the Minister) responsibility:
(i)for the Department; and
(ii)for various enactments including the Mental Health (Treatment and Care) Act 1994 (ACT) (“Mental Health Act”); and
(iii)for community health services;

(c)allocated to the Department responsibility for those enactments and matters for which the Minister was responsible.

The Australian Capital Territory Mental Health Services (“ACTMH”) and a team referred to in ACTMH records as “CATT” (apparently Crisis Assessment and Treatment Team) were part of the administrative unit of the Department. Like the trial judge we will refer to CATT as the Crisis Team. Persons employed in the Department were employed by the ACT: subs 12(3) of the PSMA. Thus the ACT has the responsibility for the conduct of persons who provide services and treatment under the Mental Health Act.

At the relevant time, the objectives of the Mental Health Act were set out in s 7 and included the following:

(a)to provide treatment, care, rehabilitation and protection for mentally dysfunctional or mentally ill persons in a manner that is least restrictive of their human rights;
(b)to provide for mentally dysfunctional or mentally ill persons to receive treatment, care, rehabilitation and protection voluntarily and, in certain circumstances, involuntarily;
(c)to protect the dignity and self-respect of mentally dysfunctional or mentally ill persons;
(d)to ensure that mentally dysfunctional or mentally ill persons have the right to receive treatment, care, rehabilitation and protection in an environment that is the least restrictive and intrusive, having regard to their needs and the need to protect other persons from physical and emotional harm;
(e)to facilitate access by mentally dysfunctional or mentally ill persons to services and facilities appropriate for the provision of treatment, care, rehabilitation and protection.

Section 9 of the Mental Health Act requires that a person exercising a function under the Mental Health Act:

… in relation to a mentally dysfunctional or mentally ill person must endeavour to ensure that any restrictions on that person’s personal freedom and any derogation of that person’s dignity and self-respect are kept to the minimum necessary for the proper care and protection of the person and the protection of the public.

The Mental Health Act establishes the Mental Health Tribunal. It provided for mental health orders. A mental health order is defined in the Mental Health Act as an involuntary psychiatric treatment order, a community care order or a restriction order. An involuntary psychiatric treatment order is an order made under s 26(1) of the Mental Health Act by the Mental Health Tribunal. Subsection 26(1) provides:

The tribunal may make an involuntary psychiatric treatment order in respect of a person if—
(a) the person has a mental illness; and
(b)the tribunal has reasonable grounds for believing that, by reason of that illness, the person is likely to do serious harm to himself or herself or others, or is likely to suffer serious mental or physical deterioration unless subject to involuntary psychiatric treatment; and
(c)the tribunal is satisfied that psychiatric treatment is likely to reduce the harm referred to in paragraph (b) and result in an improvement in his or her psychiatric condition; and
(d)the treatment can not be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.

A person can make an application for a mental health order if the person satisfies the criteria in s 13 of the Mental Health Act. A person may make an application for a mental health order in respect of another person if the criteria in s 14 of the Mental Health Act are satisfied.

A referring officer may refer an alleged offender to the Mental Health Tribunal for a mental health order if the referring officer (who includes a police officer) has the beliefs identified in s 15 of the Mental Health Act.

Division 4.2 of Part 4 of the Mental Health Act provides for psychiatric or psychological assessments.

Section 16 of the Mental Health Act allows the tribunal to make an order for an assessment of a person who satisfies the criteria in that section. If an order is made for an assessment, the assessment is to be conducted as soon as practicable: s 17.

The tribunal has power to make an order for the person who is to be the subject of the assessment to be removed to a mental health facility for the purpose of conducting the assessment: s 18.

Section 23 provides that the tribunal shall not make a mental health order in respect of a person without having regard to an assessment of the person conducted pursuant to an order under s 16 or another assessment of the person that the tribunal considers appropriate.

Section 25 identifies the matters which the tribunal must take into account in respect of a person before making a mental health order. Section 26 identifies types of orders that may be made.

Section 27 provides the tribunal with power to make a restriction order in respect of a person if satisfied that in the interests of the person’s health or safety or public safety the person should not be discharged from the order unless the tribunal has reviewed that order.

As we have said, included in s 26 are involuntary psychiatric treatment orders that may be made if a person has a mental illness. Other powers are given in Part 4 in relation to mental health orders and psychiatric treatment.

Part 5 deals with the emergency apprehension and detention of persons with a mental illness. In particular s 37, which deals with apprehension, provides:

37 Apprehension
(1)If a police officer has reasonable grounds for believing that a person is mentally dysfunctional or mentally ill and has attempted or is likely to attempt—
(a) to commit suicide; or
(b)to inflict serious harm on himself or herself or another person;

the police officer may apprehend the person and take him or her to an approved health facility.
(2)Where a doctor or mental health officer believes on reasonable grounds that—
(a) a person is mentally dysfunctional or mentally ill and—
(i)as a consequence, requires immediate treatment or care; or
(ii)in the opinion of the doctor or mental health officer, the person’s condition will deteriorate within 3 days to such an extent that the person would require immediate treatment or care;

(b)the person has refused to receive that treatment or care; and

(c)detention is necessary for the person’s own health or safety, social or financial wellbeing, or for the protection of members of the public; and
(d)adequate treatment or care cannot be provided in a less restrictive environment;

the doctor or mental health officer may apprehend the person and take him or her to an approved health facility.
(2A)The tribunal shall, on application, review the decision of a doctor or mental health officer under subsection (2)(a)(ii) within 2 working days of the date of receipt of the application.
(3)For the purposes of subsections (1) and (2), a police officer, doctor or mental health officer—
(a)may use such force and assistance as is necessary and reasonable to apprehend the person and take him or her to the facility; and
(b)if there are reasonable grounds for believing that the person is at certain premises—may enter those premises using such force and with such assistance as is necessary and reasonable.

Two separate powers of apprehension are given under s 37; the first to a police officer in subs 37(1) if the police officer has reasonable grounds for believing that a person is mentally dysfunctional or mentally ill and has attempted or is likely to attempt to commit suicide or to inflict serious harm on himself or herself or another person; the second is in subs 37(2) where, relevantly, a mental health officer believes on reasonable grounds that a person is mentally dysfunctional or mentally ill and as a consequence requires immediate treatment or care, and the person has refused to receive that treatment or care and detention is necessary for the person’s own health or safety or for the protection of members of the public, and adequate treatment or care cannot be provided in a less restrictive environment. A person can only be apprehended under subs 37(2) if the doctor or mental health officer has first formed the belief that either the person is mentally dysfunctional or mentally ill and requires immediate treatment or care, or the person is mentally dysfunctional or mentally ill and that person’s condition will deteriorate within three days to such an extent that the person would require immediate treatment or care. In this case, the relevant limb of s 37 is subs (2). The power in subs (2) is conferred on a doctor or mental health officer and the circumstances in which it may be exercised are considerably broader than the power conferred on police officers by subs (1).

A person who is taken to an approved health facility pursuant to the exercise of power in s 37 must be held in accordance with s 38. The person who takes the action under s 37 must provide a statement under s 39. The tribunal has the responsibility of reviewing the opinion of a doctor or mental health officer formed under paragraph 37(2)(a)(ii).

Section 40 requires the person in charge of the approved health facility to whom a person is taken under s 37 to provide a doctor to examine the person within four hours of the person arriving at the facility.

If the doctor who examines the person has reasonable grounds for believing that the person is mentally dysfunctional or mentally ill, and as a consequence requires immediate treatment or care, and the other criteria in s 41 are met, the doctor may authorise the involuntary detention and care of the person at an approved mental health facility for a period not exceeding three days.

The Mental Health Act also provides for treatment during detention and after release. The Mental Health Act also addresses convulsive therapy and psychiatric surgery (Part 7) and referrals by courts under the Crimes Act 1900 (ACT) (Part 8). The Mental Health Act also provides for the licensing of private psychiatric institutions.

THE CASE BELOW

Mr Crowley claimed that his injuries were caused by the negligence of each appellant.

First, he claimed that the Commonwealth was negligent in its own right in failing to have in place certain protocols, in failing to supervise and enforce those protocols and also the Commissioner’s orders, and in failing to properly train AFP officers. He also pleaded that the Commonwealth was negligent in using capsicum spray before deciding whether it was appropriate in the circumstances. No allegation was made that the gun was fired negligently nor, indeed, about the use of the gun. At the trial Mr Crowley’s counsel apparently informed her Honour that there was no criticism of SC Pitkethly over his use of the gun.

Mr Crowley further claimed that the Commonwealth was vicariously liable for the conduct of SC Pitkethly, and of SC Willis, who was with SC Pitkethly when Mr Crowley was shot. He claimed that SC Pitkethly was negligent in his conduct immediately before and at the time of shooting him. The case against SC Willis was that he confronted Mr Crowley in a loud and aggressive manner and used capsicum spray on him, without first ensuring that he had back-up and when there was no immediate need to do so.

Separately, and rather obliquely, Mr Crowley claimed that SC Pitkethly had committed an assault and battery upon him. The trial judge did not decide whether SC Pitkethly was liable in assault or battery, but Mr Crowley abandoned that claim on the appeal.

Mr Crowley also alleged that the ACT (or more particularly ACTMH), which managed, controlled and employed members of the Crisis Team, was negligent in relation to the conduct of its officers or employees shortly before he was shot and that that negligence was an additional cause of his injuries. Specifically, he claimed that ACTMH was negligent in not following up on a recommendation made by Jon Wells, a member of the Crisis Team, to have a mental health officer assess him on the morning of the day he was shot for the purpose of determining whether to exercise the power of involuntary detention under subs 37(2) of the Mental Health Act. Mr Crowley also claimed that Jason Morris, another ACT employee working in ACTMH, but who was not a member of the Crisis Team, failed to advise Mr Crowley’s parents and the Crisis Team of observations of him made at about 10.50am the same morning. Finally, Mr Crowley alleged that the ACT’s officers were also negligent in failing to notify the AFP of his behaviour and provide the AFP with information that would have assisted SC Pitkethly and SC Willis when they confronted him.

Mr Crowley originally included in the proceeding a claim against a fourth defendant, Ms Rose Wrdah Al Sweity, who was the driver of a motor vehicle which collided with his motor vehicle at 7.30pm on 19 October 2000. It appears that he made the claim related to the motor vehicle collision in the proceeding because it explained or partially explained the reasons he was in an emotional and disturbed mental state on 10 and 11 December 2001. In the Second Further Amended Statement of Claim Ms Al Sweity ceased to be a party and the statement of claim deleted some, but not all, references to that motor vehicle collision.

Although Mr Crowley’s claim against the remaining three defendants is in negligence, he did not expressly plead that any of the defendants owed him a duty of care. Nor did he identify the content of the duty. Ordinarily the defendants might expect that a plaintiff in his or her pleading would identify the duty of care, the material facts which are said to give rise to its existence and the content of the duty.

The absence of any plea of a duty of care and its content is particularly significant in the case of the claim against the ACT. On the appeal, Mr Crowley’s counsel contended that the ACT had an obligation to provide him with treatment which was additional to the obligation to assess and apprehend Mr Crowley under s 37 of the Mental Health Act. The submission was put to support the trial judge’s finding that ACTMH and Mr Crowley had a doctor and patient relationship which informed the standard of care that ACTMH was required to observe. It was contended that the obligation to provide treatment arose because ACTMH had “entered upon treatment of the plaintiff” by having Mr Wells visit the residence of his parents the night before he was shot for the purpose of assessing Mr Crowley under s 37 of the Mental Health Act.

In fact, ACTMH never embarked on the treatment of Mr Crowley. Nor did it undertake to provide treatment. The assistance of the Crisis Team was sought to engage the process in s 37 and to facilitate Mr Crowley’s admission to hospital where he would, if admitted, receive treatment: see s 40 and s 41 of the Mental Health Act.

If the police were found to be negligent they sought contribution from the ACT. Similarly, the ACT, if it was found to be negligent, sought contribution from the Commonwealth and SC Pitkethly. The trial judge said at [446] that there was “a separate claim in negligence by the [ACT] against the [police] in respect of the ongoing costs of care provided to Jonathan Crowley by the [ACT]”. The trial judge also said at [447] that “the [ACT’s] pleading in fact particularises several further instances of negligence by the police that have not been raised by Jonathan”. The contribution issues were agitated at the trial but, as mentioned below, the trial judge did not decide those issues and they remain undecided.

None of the defendants claimed that if they were guilty of negligence Mr Crowley was guilty of contributory negligence.

THE COURSE AND CONDUCT OF THE TRIAL

Before addressing the issues arising in the appeals, it is necessary to say something about the course and conduct of the proceedings in the court below.

Mr Crowley commenced these proceedings in 2002 and, for reasons which are unknown (at least to this Court) the trial did not begin until 19 May 2008. After 10 sitting days it was adjourned until 24 February 2009. It then resumed and proceeded for a further 12 sitting days until 19 March 2009 when the evidence concluded. The trial judge reserved her decision on 19 March 2009.

More than two years later, on 27 May 2011, the trial judge delivered her reasons, and on 10 June 2011 entered judgment against the defendants for $8m and ordered the defendants to pay Mr Crowley’s costs. After her Honour had delivered her reasons, but before the orders were made on 10 June 2011, the defendants agreed that the quantum of damages should be assessed at $8m, which explains why judgment was entered for that sum.

The orders made by the trial judge if allowed to stand do not, however, conclude the proceedings because the trial judge had not yet addressed the issues raised by the defendants in the contribution proceedings. Mr Crowley’s claim against SC Pitkethly for assault and battery was noted by the trial judge, but she said that she had not reached any conclusions about the claims because those claims were not argued in the trial or in subsequent written submissions, and in those circumstances, she was unsure whether the claim was maintained by Mr Crowley against SC Pitkethly or whether the claim was still a live issue between the defendants on the contribution proceedings. It is unclear whether that claim was left by the trial judge to be considered in the event that SC Pitkethly succeeded on appeal against the trial judge’s finding in negligence or whether she treated that claim as abandoned. When this Court pressed Mr Crowley’s counsel on this point, it was told that Mr Crowley’s claim against SC Pitkethly for damages for assault and battery was, indeed, abandoned, although if the appeal were unsuccessful the issue would still have to be resolved because it is raised in the ACT’s claim for contribution. There is a further matter to be noted. It appears that the ACT has a claim against SC Pitkethly for loss suffered by it as a result of its provision of health care to Mr Crowley. Although the appeal books do not include the ACT’s claim, we note that it appears to be independent of any claim which relies on the ACT being held liable to Mr Crowley.

During that part of the trial which proceeded in May 2008, Mr Crowley’s witnesses gave evidence, as did two expert witnesses called by the defendants.

In March 2009, when the trial resumed, the police witnesses who were called on the question of liability gave evidence. The ACT called two experts. Thus it was that the trial judge heard effectively Mr Crowley’s case in 2008 and the defendants’ case in 2009, and gave her decision in May 2011.

At the commencement of the trial, the trial judge was told that the parties agreed that the matter should proceed on liability only, and that the question of quantum should be addressed after a decision was made on liability.

Mr Crowley not only relied upon the evidence of his witnesses, but he also tendered, without objection and without explanation, 72 statements made to investigating authorities prior to the trial by the witnesses who were called and also from other persons who were not called. The trial judge identified those statements in an annexure to her reasons.

Some of the statements were of witnesses subsequently called by the defendants. All of the representations in the statements would have been hearsay, but the parties did not address that question. It is not clear why the statements were admitted, or how the parties expected the trial judge to use those statements in her consideration of the issues.

Mr Crowley gave very brief evidence-in-chief during the trial to the effect that he had little or no memory of the events which resulted in his injuries. He was cross-examined briefly by counsel for the police in relation to his attitude towards police officers. The whole of his evidence occupied less than seven pages. Most of what is known of Mr Crowley is derived from his parents’ evidence.

A number of witnesses who it might be thought would be called were not called. Presumably the party who did not call those witnesses relied upon those witnesses’ out of court statements, even though those statements were hearsay and “the evidence” contained in those statements was not tested and not capable of being tested in the witnesses’ absence.

Mr Crowley made a forensic decision to call Jason Morris in the absence of a proof of his evidence or the benefit of a conference with him. We will address Mr Morris’s evidence in detail later.

Mr Crowley also tendered documents obtained from ACTMH and the AFP. The ACT called no-one from ACTMH to give evidence. It called only two witnesses; one a surveyor, and the other an expert on mental health, neither of whom it employed. There was no evidence about how ACTMH compiled its records or how they were kept. In particular, there was no evidence of whether reports upon which Mr Crowley relied were made contemporaneously or at some later time. There was no evidence of how ACTMH made and kept records of telephone calls.

Although the trial proceeded over 28 sitting days, the evidence was taken over 8 days. Most of the factual issues to be determined were not seriously contested, although the parties were not agreed about the emphasis which ought to be put upon the different facts or, in some cases, the inferences to be drawn from facts not really in dispute. Those differences can be identified when the facts are addressed.

There is nothing in the reasons which would indicate why it was necessary for the trial judge to take more than two years to consider her decision, except that the reasons are very long and detailed. The reasons published in the Federal Law Reports are 209 pages long comprising 1,093 paragraphs: (2011) 251 FLR 1; [2011] ACTSC 89. The Appendices are a further six pages. The ACT described the reasons as overly elaborate which “serve to undermine the public confidence in the judiciary and in the judicial system in the same way that insufficient reasons can”: Beale v GIO for NSW (1997) 48 NSWLR 430 at 443.

Her Honour proceeded by considering the facts and making some findings of fact. She then dealt with the primary submission of the police that they owed no duty of care to Mr Crowley. Having ruled against that contention, she discussed Mr Crowley’s case against them and considered whether a duty of care arose and whether it was breached, and whether the breaches were causative of his injuries, and in doing so, reconsidered the evidence and made further findings of fact. She adopted a similar approach in considering the case against the ACT. The findings of fact can therefore be found at a number of different places in the reasons. This makes it difficult to address the findings in a logical and coherent manner.

The trial judge made general observations in relation to the witnesses. Her Honour said that, with minor qualifications, they impressed her as honest people genuinely trying to give truthful evidence. She noted the difficulty the witnesses faced giving evidence some six or seven years after the events. She said (at [22]) that because of feelings of guilt there was “an incentive for people to remember things in the way that they find most comforting and most defensible”. She considered it was “likely that such a tendency has, in this case, been reinforced by the repeated retelling of their stories that have been required of the key witnesses.”

Her Honour made special mention of the two police officers who were most closely engaged in the events; one of whom was SC Pitkethly, the other SC Willis. She said at [23]:

For instance, the two police officers engaged in the shooting took part in two police interviews each shortly afterwards. One of them underwent extensive counselling that involved re-telling his story. An interview with SC Willis was recorded for police training purposes. Each of the two officers gave evidence at the trial over several days (four days for SC Pitkethly and two days for SC Willis), and was cross-examined at length by counsel for the plaintiff and counsel for ACTMH. It is fair to say, while rejecting the specific attacks on SC Willis’s credibility made by counsel for ACTMH, that SC Willis had a discernable tendency (which may reflect a sense of guilt over the outcome of events) to remember his own actions in a favourable way that was not always borne out by more objective evidence; I have rejected aspects of SC Willis’s evidence in relation to several important issues. SC Pitkethly, on the other hand, seemed more satisfied that what he had done was the only thing he could have done, and less inclined to put any kind of spin on it; this suggested a certain lack of imagination on his part, but did not require the same level of scepticism in assessing his evidence.

Her Honour also made mention of Mr Crowley’s father at [24]:

Keith Crowley took part in two police interviews. No doubt he also told his story on a number of occasions to family members, friends and possibly medical professionals. He gave evidence over two days and was also cross-examined at length. Mr Crowley was 75 years old when he gave evidence at the trial—his age and the burdens he has shouldered since Jonathan’s shooting have no doubt also had an impact on the clarity of his memory for the events of December 2001.

The trial judge concluded at [25]:

For these reasons, I have considered that the fact that the evidence of the key witnesses tends generally to favour their own interests is simply an inevitable outcome of the circumstances of this case rather than any indication of a casual or dishonest attitude to the truth, and I have seen my task not as trying to work out who to believe but as trying to sort out the most probable course of events from the multifarious confused and inconsistent versions of events that have been presented to me.

The appellants not unnaturally complained in their submissions about the delay which was taken by the trial judge to decide the issues at trial. They submitted that, because of that delay, this Court should examine the trial judge’s reasons with special care.

In our opinion, whatever advantage the trial judge would otherwise have had in hearing the witnesses give evidence and observing their demeanour in the witness box was lost in the time taken to write her reasons: Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [23]. Moreover, as we have said, the parties did not call a number of witnesses but relied on statements those witnesses made and/or records of interview they gave in the course of investigations into the incident. For those two reasons, this Court is in as good a position as the trial judge to make findings of fact. This is one case when an appeal court need not defer to the trial judge when considering the facts.

In these reasons we have identified the relevant facts that need to be decided to determine the legal issues raised. We have indicated where we differ from the trial judge and the reasons for those differences. We have not attempted to summarise all the facts considered by the trial judge and all the findings made. Those findings of fact which we have not addressed we have considered unimportant. We have not addressed all of the intermediate findings arrived at by the trial judge. We have attempted to keep the findings relevant to the issues that need to be decided.

THE APPEAL

The appeal was argued over four days. Counsel for the police provided the Court with written submissions of 52 pages and a chronology of five pages. Counsel for the ACT provided written submissions of 49 pages and two attachments of six pages and a chronology of seven pages. At the hearing, counsel for the ACT handed up what he called Speaking Notes of 18 pages. Submissions from Mr Crowley’s counsel totalled 42 pages. They were supplemented by a document called a List of Findings made by the trial judge of 50 pages. The police filed submissions in reply of 13 pages, and the ACT’s submissions in reply were six pages.

At the hearing, Mr Crowley sought an extension of time to file a Notice of Contention to uphold the trial judge’s reasons for finding the ACT liable on grounds which were in fact rejected by her. Against the objection of the ACT an extension was granted and Mr Crowley provided a further written submission of five pages in support of the Notice of Contention.

After the hearing additional documents were sent to the Court: Trial Judge’s Views re the Police Liability; References to Parties Liability Experts on issue of police negligence; and an Index to the Judgment.

The events under consideration occurred in all within a time frame of no more than 15 hours over 10 and 11 December 2001. The critical events occurred within a time frame of 42 seconds on 11 December 2001. The trial judge and this Court have been inundated with information which has made the wood very difficult to see for the trees.

THE FACTS

Background

Mr Crowley was born on 14 June 1967. He is the sixth child of Keith Crowley, a retired school principal, and Paloma Crowley, a retired school librarian.

Only two of Mr Crowley’s siblings need to be mentioned because they played a minor part in the events leading up to the shooting. The fourth child of the family is Mark Crowley, who is affected by a psychiatric condition which has prevented him from working. The fifth child is Catherine Crowley, who is a medical practitioner in general practice. His other siblings are in diverse occupations.

At the time of the incident Mr Crowley was somewhere between 6’ and 6’ 3” tall and weighed in excess of 100 kilograms.

Mr Crowley was educated to Year 12 level at Edmund Rice College, a Christian Brothers college in Canberra. He worked for a period of two and a half years as a security guard, and for a period as a book salesman. He was interested in creative writing and wrote poems.

His father described him as creative and diverse. He displayed an interest in the under-privileged. He was interested in politics, being a member of the Australian Labor Party, and, in particular, he was interested in a Bill of Rights. He was also an advocate of Australia becoming a republic and had just completed a dissertation on that subject.

In 1987, when he was about 20 years of age, he fell from a cliff and suffered head, back and wrist injuries. In 1990 he was involved in a motor vehicle accident. In 1997 he was assaulted and robbed. After that third incident he was granted a disability support pension. After 1998 he suffered from chronic back pain. On 19 October 2000, he was involved in the motor vehicle accident to which reference has been made, which aggravated his previous back condition. Thereafter he was treated by Dr Hislop, a general practitioner, who prescribed medication in the form of painkillers for him.

Mr Crowley also suffered from intermittent depression which was treated by medication. He was also diagnosed as suffering from an obsessive compulsive disorder. He had not suffered from any psychotic episodes prior to the day or days immediately before the shooting.

Mr Crowley was a long term user of marijuana, which his father said gave him some pain relief.

After the motor vehicle accident on 19 October 2000, Mr Crowley was interviewed by a police officer in relation to the cause of the accident. His father said that his son was cross-examined by the police officer which put him at a disadvantage because he was not good at estimating distances. Mr Keith Crowley said that his son felt that he was being put at a disadvantage because he was not able to adequately answer the police officer’s questions. Eventually Mr Crowley was advised that both parties to the accident were found to be each guilty of careless driving to the extent of 50%.

After the 19 October 2000 accident, Mr Crowley’s parents cared for him at his flat which was about a kilometre from the parents’ home. However, they could not cope with caring for their son in his flat so they bought a caravan in which he resided thereafter to the date of the incident. The caravan was on their property.

An issue in the trial was Mr Crowley’s perception of the police. He was cross-examined as we have said in relation to this issue. He was evasive in answers to the questions put by counsel for the police.

It was put to him that he had a significant dislike of the police at the time of the incident, but he was only prepared to concede that he had a significant dislike of some of the laws in which the judicial system has to act upon.

Mr Keith Crowley’s evidence in respect to this issue was also somewhat evasive.

However, the uncontested evidence was that Mr Crowley was quite dissatisfied with the police investigation of the motor vehicle accident of 19 October 2000 and remained so at the time of this incident in December 2001.

The trial judge found that, rightly or wrongly, Mr Crowley believed that on some occasions he had not been treated properly by the police.

Her Honour said (at [93]-[94]):

I have provided some detail of the evidence before me about Jonathan’s attitude to police because Jonathan and both his parents were subject to extensive cross-examination about the topic. Although they were all inclined to minimise Jonathan’s antipathy to the police, some member of the Crowley family told Jon Wells on the night before Jonathan was shot that he “did not get on with police” (at [115] below), and it seems that Keith Crowley told Andrea Twell on the Tuesday, just before the shooting, that Jonathan had “a significant dislike of the AFP” (at [171] below).
Accordingly, I find that as at the day of the shooting, Jonathan had a negative attitude to the police.

Her Honour’s conclusion is somewhat ambiguous and what she stated at [94] seems to us to be an understatement having regard to Mr Keith Crowley’s reported out of court statement which was hearsay but apparently treated as evidence that his son had a significant dislike of the AFP. Not only was Mr Keith Crowley reported as making that statement, but the subsequent conduct of Mr Keith Crowley and Mrs Crowley is consistent with it. The Crowleys did not want the police to become involved in the subs 37(2) assessment for fear of further upsetting their son. Mr Crowley’s brother, Mark Crowley, said that his brother did not get on with police. The appropriate finding would be that Mr Crowley disliked the AFP.

On Saturday 8 December 2001, Mr Crowley attended his church, St John Vianney’s, in the ACT and made a number of inappropriate statements which created a disturbance within the church.

10 December 2001

At 5.00am on 10 December 2001, Mr Crowley woke both his parents’ neighbours and his parents telling them that he was “Jesus Christ”. He continued in that vein, that day telling his sister Catherine that he was the son of God and that he had 1,000 years to save the world. Mrs Crowley was concerned about her son’s condition and asked her husband to contact Dr Hislop. At 2.42pm, Mr Keith Crowley telephoned Dr Hislop who told him that the behaviour he had described was outside his experience, but Dr Hislop thought it indicated a serious psychiatric problem.

Some time during the day Mr Crowley threw his cannabis and a bong, and his cigarettes and medication into a rubbish bin, claiming that he was healed and did not need them any more. He described his condition as a miracle.

Apparently Catherine Crowley, whose statement was tendered, observed written on her brother’s chest and arms the words “Jesus Lord”. Dr Crowley called ACTMH at 6.53pm asking them to attend. The ACTMH record was made by Campbell Anderson and includes the following at 18.53.43pm:

Call from sister concerned that this man who lives with his aged parents is quite delusional. He apparently believes that he is Jesus, has exhibited poor judgment and is neglecting his self care. The sister is happy to be present when we assess him. He has a long Hx of THC abuse but no previous psychotic episodes.

The record contains a risk assessment which could only have been made on what Mr Campbell was told. He recorded: “May be at risk from acting on delusion”. He made an assessment of “deliberate self harm” or “harm to others” at low and “accidental self harm” and “non-compliance absconding” at moderate. The record indicates that the report was referred to the Crisis Team for assessment. The report proposed an action that “CATT to assess tonight”. The report answered “No” to “First Onset Psychosis”, “No evidence of Mental Illness” and “Is the client currently depressed?”. It was recorded that the availability of records was unknown.

At about 9.00pm that night Jon Wells, who was a clinician with ACTMH, went to Mr Crowley’s parents’ home where he carried out an assessment of Mr Crowley. There was no evidence of the qualifications or training necessary to be a clinician although it is known that a clinician is not a medical practitioner. Mr Wells was a mental health officer. A “mental health officer” cannot be appointed under the Mental Health Act unless the Minister is satisfied that the person is a mental health nurse, psychologist or social worker: s 119 of the Mental Health Act. It is probable that Mr Wells is a psychologist, as he later signed a letter above that description. That letter was tendered. Mr Wells did not give evidence in the trial, but his assessment was tendered by Mr Crowley.

By the time Mr Wells attended at the house, Mr Keith Crowley had formed the opinion that his son was “mentally quite unwell”. After Mr Wells had examined Mr Crowley, a conversation ensued at which Mr Keith Crowley, Mrs Crowley, Dr Crowley and Mr Wells were present, but Mr Crowley was not.

Evidence was led from Mr Keith Crowley as to what was said in that conversation. The evidence of what Mr Wells said is hearsay as its apparent purpose was to prove the truth of what he said, but no objection was taken. However, the evidence would have been admissible for the purpose of proving Mr Keith Crowley’s state of mind, if his state of mind subsequently became relevant.

In his evidence, Mr Keith Crowley said:

Jon Wells certainly put the case that he was going to need help, which we agreed, and that he should be admitted to hospital and because it was getting late at night we suggested he might wait until the morning, because we couldn’t see that he was a danger to anyone, or to himself. He was just so happy and peaceful. Jon Wells agreed and Cathy agreed, my wife, that we would leave it until the morning, and that I would keep a close eye on him. I stayed with him until he went to sleep.

Mr Wells completed a Patient Progress form although it is not clear when that form was completed. The first page of the form refers to a time of 22.27.49pm. The Patient Progress form is addressed to the Canberra Hospital, but no evidence was given in relation to its publication to that hospital. The remaining seven pages of the form entitled “Module B” gives a time of 23.00.48pm. We think it is likely, therefore, that both the Patient Progress form and the Module B form were completed on 10 December 2001.

In the Patient Progress form Mr Wells commented upon the bizarre nature of his conversation with Mr Crowley. Mr Wells wrote that Mr Crowley introduced Mr Wells to his friends, James and Saint Nicholas. He mentioned that his brother, Mark Crowley, was on the road to Damascus. Mr Crowley said he had met Judas the day before and Judas had shown remorse for his actions by hanging himself. Mr Wells wrote:

I then discussed situation with Jon’s parents and sister Cate. They advised me that he has not presented like this before. They stated that Jon had been using marijuana since he was teenaged and that he had history of having bad accidents. They advised that he did not get on with police, particularly since a road accident he had recently which he and his family believe was clearly the fault of the other driver but for which Jon got blamed. They advised that when Jon is coming off marijuana he is usually angry and aggressive, punching holes in walls as he demands money. Jon told them he threw his marijuana in the bin this morning and he shows no signs of aggression or anger. They said that Jon had always been charismatic and had lots of friends but he has never really had a career. They also advised he had a history of compulsive behaviour (e.g. checking he has locked his car many times) and was on Aurorix for this but he has had no medication for that for some time.

He continued:

Parents agreed that there was no immediate risk of harm to self or others and assured me that they could manage him overnight. They have our number in case the situation takes a turn for the worse. It is my judgment that Jon requires admission to assess and control risk and to initiate treatment. Jon’s parents advised that they are not hopeful about our ability to bring him in for assessment without police involvement but would prefer if we could manage without if possible. They believe Jon could leave if he knew we were coming to assess him.
PLAN: AM Assessment. P/C to father (Keith) on his mobile (number given) first.

Mr Wells filled out a risk assessment form in which he wrote:

Jon has a history of anger and property damage when coming off marijuana. His current presentation is unlike any previous presentation. He is euphoric and graniose [sic], and states that he feels better than he has ever felt. He stated that he has no intention to self harm and expressed universal love.

Mr Wells assessed Mr Crowley’s risk of accidental self harm, deliberate self harm, and harm to others as low but assessed non-compliance and absconding at high.

In another part of Module B he wrote:

Jon is a 34 year old single male living with his parents and brother. He is unemployed and on a Disability Support Pension. He has been a heavy marijuana smoker for many years but has had no previous psychotic episode. He apparently believes he is Jesus and that he has to fix the world. He announced this to his father by waking him from his sleep early this morning. He stated that he feels better than he ever has and that he has thrown away his marijauna [sic] because he no longer needs it. Jon appears totally convinced of his delusions and his parents and I agreed that he is unlikely to agree to psychiatric treatment. I advised them that I considered an involuntary admission would probably be required to assess and control risk and commence treatment, after which he could possibly become a voluntary patient or be managed in the community. I advised that if it was necessary to take Jon to hospital involuntarily police would have to be involved and suggested that CATT could visit after about 9am tomorrow to see if we could get him to agree to come to hospital voluntarily for a psych reg assessment. I advised them that if Jon was unwilling to go voluntarily we would most likely leave and return with police to take him to hospital.
Family stated that they would prefer that police not be involved but were aware that they may be required.
PLAN: AM dom to assess. P/C to father (Keith) on his mobile (number given) first.

Mr Wells also gave instructions to the Crisis Team to telephone Mr Keith Crowley to organise a visit to assess Mr Crowley early the next morning.

Ms Andrea Twell worked in the Crisis Team in December 2001. She was not called as a witness at the trial but in a statement to the police, she said that when she arrived at the Crisis Team at 8.00am on 11 December 2001, Mr Crowley was discussed and there was a plan in place for the Crisis Team to go back and see Mr Crowley “that morning, first thing”.

In a letter to the police dated 28 February 2002, Mr Wells said that after his visit to the Crowley home on the evening of 10 December 2001, he went back to the office and wrote up his notes. Those notes provided that the Crisis Team should telephone Mr Keith Crowley to organise a visit to assess Mr Crowley early the next morning. In his letter, Mr Wells said:

I also wrote this plan on the CATT whiteboard.

As noted earlier, Mr Crowley did not plead that ACTMH had embarked upon a treatment regime by providing Mr Wells’s services. As we understand it, no such case was advanced before the trial judge. However, as already noted, on the appeal, senior counsel for Mr Crowley contended that Mr Wells’s attendance at the Crowley home on 10 December 2001 meant that ACTMH had “entered upon treatment” of Mr Crowley.

The notes to which we have referred and Mr Wells’s conduct show that no such treatment regime was undertaken or agreed to be undertaken by Mr Wells attending on that night. The whole point of Mr Wells’s attendance was to assess Mr Crowley under s 37 of the Mental Health Act. The documents which Mr Wells created did not contemplate ACTMH providing any treatment to Mr Crowley, but instead contemplated that ACTMH would assess Mr Crowley to determine whether subs 37(2) of the Mental Health Act was engaged. In those circumstances the finding made by the trial judge, to which reference will be made later, that ACTMH was in a “doctor-patient relationship” with Mr Crowley, cannot be supported by the evidence and should be set aside.

Mr Crowley was effectively left in the care of his parents. Mr Keith Crowley said that there was an agreement between them and Mr Wells that Mr Keith Crowley would “keep a close eye on (Jonathan)”.

He did so by remaining with Mr Crowley until 1.00am or 2.00am the next morning, when he left because Mr Crowley seemed to be sleeping soundly.

The trial judge has inferred that neither Mr Wells nor any other ACTMH staff member told the Crowley family that, until Mr Crowley could be admitted to hospital, Mr Crowley had to be supervised closely. She inferred that at most they encouraged Mr Keith Crowley and Mrs Crowley to “just keep an eye on him”.

Her finding does not properly reflect Mr Keith Crowley’s own evidence where he said he thought the agreement was that he would keep a “close eye” on his son. The appropriate finding should be that Mr Keith Crowley and Mrs Crowley understood and agreed that they were to keep a close eye on their son until he could be admitted to hospital.

11 December 2001

At 6.00am on 11 December 2001, Mr Keith Crowley visited his son in his caravan to find him listening to the radio. Mr Crowley told his father that “I have never been so happy in all my life”. Mrs Crowley also visited her son, in her case around about 7.00 or 7.30am, and found him to be calm and peaceful, and claiming to be happy.

Although Mr Keith Crowley was still of the opinion that his son would need to be hospitalised, he said he did not think that his son needed to be watched at all times. It is not clear why Mr Keith Crowley was of that opinion, having earlier agreed to keep a close eye on his son until he could be hospitalised.

The ACTMH records show that at 7.53am on 11 December 2001 Mr Keith Crowley telephoned and spoke to Ms Jennifer Williams, who apparently was a registered mental health nurse who sometimes worked as a clinician. It is not without significance that Mr Keith Crowley initiated the telephone call in advance of the ACTMH calling him, which was the way it had been left the previous night. Ms Williams recorded:

Call from father.
father feels that J will go to Calvary voluntarily.
plan
- await outcome of attempt at calvary admission (father will let Catt know later today).

The reference to Calvary is a reference to Calvary Hospital, the other public hospital in the ACT.

Mr Keith Crowley’s evidence was consistent with Ms Williams’s note. He said:

I reported that Jonathan had a good night and at present he was peaceful and there was no need for an involuntary retreat or entry [sic] to the hospital and that I’d keep them advised. And they said they would keep in touch.
And did you tell them what your intentions were about getting further treatment for Jonathan? – Yes, I told them I was keen to get him to Calvary, because I knew Calvary from his brother Mark.

He later said:

I advised them that (the plaintiff’s) condition had not deteriorated and that I would report to them as soon as there was any sign of deterioration.

Mr Keith Crowley said that he telephoned ACTMH at 7.53am on 11 December 2001 because he wanted to make them aware that the situation had not deteriorated before they went to the trouble of attending with the police.

When he made the telephone call he was of the opinion that the Crisis Team need not attend, and he agreed that he probably told ACTMH that there was no need for them to do so at that stage as he was negotiating with his son and getting him in the state of mind to go to Calvary voluntarily. Importantly, he also agreed that he informed ACTMH that Mr Crowley was:

peaceful, he’s not aggressive, he’s not harmful to himself or anyone else … We’ll take some more time.

Mr Keith Crowley told ACTMH he would be in touch with them if and when his son’s condition deteriorated. Her Honour remarked (at [133]) that Mr Crowley was not asked in that conversation what he understood to be the symptoms of a deterioration or advised about advance warning signs.

ACTMH relied upon Mr Keith Crowley’s observations and assessment of his son’s medical condition. Ms Twell said in a statement tendered at the hearing that “we were concerned but respected the family’s decision to take him to Calvary”. As a consequence, no-one from ACTMH attended the Crowley home to carry out any further assessment of Mr Crowley as Mr Wells had suggested be done in his plan. Her Honour found (at [227]) that:

Despite these concerns, ACTMH staff took no further action to implement Mr Wells’ recommendation that Jonathan be properly assessed on Tuesday until Andrea Twell called Keith Crowley five hours later because of Jason Morris’s report.

We will deal with the telephone conversation referred to in her Honour’s finding and Mr Morris’s report in due course but, insofar as her Honour’s finding is a criticism of ACTMH and its staff, it is a finding with which we cannot agree. ACTMH needed to make a decision when Mr Crowley telephoned at 7.53am. It needed either to follow the recommendation made by Mr Wells the night before or accept the proposition put by Mr Keith Crowley.

Mr Keith Crowley and Mrs Crowley did not take any steps to persuade their son to attend the Calvary Hospital before a visitor, Michael O’Connor, arrived at their home. It would seem from the evidence that Mr Keith Crowley and Mrs Crowley had no further contact at all with their son before his arrival, and after that, only short contact 10 minutes before Mr O’Connor left.

Mr Crowley’s brother, Mark Crowley, suffers from a psychiatric illness for which he was at the relevant time undergoing rehabilitation. ACTMH provided a service by which Jason Morris, who was a rehabilitation officer within ACTMH, would pick up clients who were to undergo rehabilitation to take them to a rehabilitation activity. The evidence about Mr Morris’s qualifications, duties and experience supports the following conclusions:

(1) There was no evidence that, in December 2001, Mr Morris was qualified to be a mental health officer under s 119 of the Mental Health Act. In other words, it is not suggested that he was a mental health nurse, psychologist or social worker. The evidence was that he had done some nursing training since December 2001.

(2) At some stage prior to December 2001, Mr Morris had worked in the psychiatric unit in the Canberra Hospital, but his employment had never involved the psychiatric assessment of patients.

(3) It was not part of Mr Morris’s job to attend to Mr Crowley. He was not one of Mr Morris’s clients. Mr Morris was not a member of the Crisis Team, but was employed in the Department as a member of the Woden Mental Health Team which was located at the Phillip Health Centre on the corner of Corinna and Keltie Streets, Phillip, ACT. The Crisis Team team, of which Mr Wells was a member, was located at the Canberra Hospital Campus at Palmer Street, Garran, ACT.

(4) Mr Morris had studied courses called Psychology 1 and 2 at the Canberra Institute of Technology and had also obtained a certificate in mental health from an unnamed institution; and

(5) As a rehabilitation officer, Mr Morris’s job was, as he described it, to try and link people into mainstream community activities:

So to be an access kind of worker, get them from their home or flats or parents or wherever it was out to actually do some useful meaningful group and activities.

Mr Morris had provided Mr Mark Crowley with that service for some time, and during those dealings had dealt with the family and Mr Crowley. Mr Crowley was known to Mr Morris, but prior to 11 December 2001 Mr Morris had never observed Mr Crowley displaying any symptoms of mental illness.

At or about 10.45am or a little later on 11 December 2001, Mr Morris arrived at the Crowley home to pick up Mr Mark Crowley to take him to the rehabilitation activity. He had not at that stage picked up any of his other clients.

Mr Morris’s observations of Mr Crowley at that point were as follows. He observed Mr Crowley come out onto the road and stand in front of his van. He observed Mr Crowley talking to himself. Mr Crowley had a long black sword which looked to Mr Morris like a Samurai sword. At one point, Mr Crowley held up the sword and waved it around. He glared at Mr Morris, raising his eyebrows. There was also reference in the evidence to him staring at Mr Morris. Mr Crowley raised his fist, although as we understand it, he had his palm facing outwards. Mr Morris gave Mr Crowley the “thumbs up” sign and Mr Crowley responded in kind. Mr Crowley then returned to his caravan on the Crowley property.

Mr Morris contemplated speaking to Mr Keith Crowley and Mrs Crowley, and spoke to Mr Mark Crowley. Mr Mark Crowley told him that the family was aware of his brother’s behaviour and had been in contact with the Crisis Team who had visited the previous night, and that they were hoping to get Mr Crowley admitted to Calvary Hospital.

It is not clear whether Mr Morris had that conversation with Mr Mark Crowley whilst outside the Crowley home, or whether it was in the van after leaving the home, but in the end result, the trial judge found that the conversation occurred before Mr Morris drove away from the Crowley home, and that Mr Morris did not leave “until he was aware that Jonathan Crowley was under the care of the Crisis Team”. It is not clear from this finding whether the trial judge meant that Mr Crowley was in fact under the care of the Crisis Team or that Mr Morris was told by Mr Mark Crowley that Mr Crowley was under the care of the Crisis Team. In fact, as the evidence clearly shows, the only contact the Crisis Team had had with Mr Crowley was Mr Wells’s visit at 9.00pm the previous night. Mr Keith Crowley had earlier agreed with ACTMH that he would facilitate his son’s voluntary admission into Calvary Hospital. It seems that the trial judge’s finding as to Mr Morris’s state of mind was an inference. It does not seem to be justified on the evidence.

In his interview with the police on 22 January 2002, Mr Morris said that Mr Mark Crowley told him that:

(1) The Crisis Team had been out the night before and done an assessment of Mr Crowley and felt that there was no need to admit him straight away;

(2) the family was going to encourage Mr Crowley to go to Calvary if they felt that was necessary; and

(3) Mr Crowley was left in his father’s hands to see how he progressed.

In his oral evidence, Mr Morris said that Mr Mark Crowley told him that the Crisis Team had been there the night before and that they (it is unclear whether he meant the Crisis Team or the Crowley family or both) were going to try to have him admitted to Calvary Hospital “if that was a reasonable option”. He did agree with the proposition that he understood the Crisis Team to be “managing” Mr Crowley’s case and that he was a “client” of the Crisis Team, although whether that was the focus of his answer is not clear. In cross-examination, he talked about the Crisis Team “currently having some contact involvement with him” and “that the crisis team were having involvement”.

Mr Morris did not speak to Mr Keith Crowley and Mrs Crowley, nor did he report his observations to ACTMH prior to returning Mr Mark Crowley to the Crowley home at 12.45pm.

After the rehabilitation activity, Mr Mark Crowley told Mr Morris that he would report Mr Morris’s observations of his brother to his father. The primary Judge’s finding as to whether that occurred was as follows (at [1009]):

Keith Crowley’s evidence was that Mark had mentioned Mr Morris’s observations to him, but he did not specify when, and the implication was that this might have happened only after Jonathan was shot.

Mr Keith Crowley said that, if Mr Morris had told him that Mr Crowley was behaving strangely and was in possession of some sort of weapon, he would have acted by calling the Crisis Team and confiscating the weapon.

Mr Keith Crowley said that the visitor, Mr O’Connor, arrived at 11.30am and left at about 1.00pm for a 2.00pm appointment. Mr O’Connor was not called, so the evidence of Mr Keith Crowley and Mrs Crowley is the only evidence of the time that Mr O’Connor was in the house.

Both Mr Keith Crowley and Mrs Crowley said that Mr Crowley came into the house about 10 minutes before Mr O’Connor left. He was not carrying anything, and in particular was not carrying a wooden stick.

Apparently, after the incident Mr O’Connor wrote a report, but that report was not tendered. As we have said, Mr O’Connor was not called to give evidence. There is a suggestion in the evidence that Mr O’Connor said in his report that Mr Crowley “looked a bit stressed”. That of course could not be evidence of the fact.

About 10 or 15 minutes after Mr O’Connor left, Mrs Crowley took Mr Crowley’s lunch to him in his caravan, but he was not present. Mr Keith Crowley said that about 4 or 5 minutes after his wife reported that their son was missing he got in his car and went looking for him.

If Mr Keith Crowley’s evidence is right about the time when Mr O’Connor left and when his wife went to the caravan and he left to look for his son, Mr Keith Crowley must have left his house at between 1.14pm and 1.19pm. But that evidence cannot be right because when Mr Keith Crowley went looking for his son he travelled only a very short distance before he came upon the police, who by that stage had formed a road block as a result of the shooting. It is likely, therefore, that Mr Keith Crowley did not leave his house to look for his son before his son had been shot which would mean that he did not leave until about 1.40pm at the earliest.

Mr Morris spoke to the Crisis Team and passed on his observations of Mr Crowley according to the ACTMH records at 12.52.55pm. Although the ACTMH records may be questioned as to their accuracy in this case, the record of the time the call was made corresponds with the evidence of Mr Morris. It also accords with the time that Mr Morris returned Mr Mark Crowley to the house.

The telephone call from Mr Morris was made to Karen Eggins. The ACTMH record includes the following note:

P/c From Jason Morris From Wmhu
Jason went to pick up Jonathon’s[sic] brother Mark and he was greeted by Jonathon who was holding a large samarai [sic] sword. Jason reports that Jonathon has been smoking large quantities of cannabis and appears to be displaying psychotic symptoms.
Plan: CATT to follow up by contacting Jonathon’s father to arrange further assessment by CATT.

Mr Morris was called by Mr Crowley as part of his case and, as we mentioned earlier, he was called in the absence of a proof of his evidence or the benefit of a conference with him. Ms Eggins was not called. Mr Morris denied at trial that he had used the word “large” in describing Mr Crowley’s sword, or the word “psychotic” in describing his symptoms. Mr Morris was cross-examined about his interview with the police on 22 January 2002. During the course of the interview, Mr Morris agreed that the ACTMH record was accurate, whereas a short time later (after an interruption by his representative, Mr Franchie), Mr Morris denied that he had said that Mr Crowley was displaying psychotic symptoms. In the result, Mr Morris did not admit during his cross-examination that he had told Ms Eggins that Mr Crowley was displaying psychotic symptoms.

The trial judge found that Mr Morris had used the word “psychotic” to Ms Eggins by reference to various matters: the ACTMH record; Ms Eggins’s statement to the police that Mr Morris had said that Mr Crowley seemed to be “acting in a psychotic manner” or “portraying psychotic symptoms”; the fact that Mr Morris had studied courses in Psychology 1 and 2 at the Canberra Institute of Technology, which deal with the Diagnostic and Statistical Manual of the American Psychiatric Association; and lastly, because there was no reason to think that Ms Eggins made an interpretation of the symptoms rather than Mr Morris.

This is an example of the difficulty presented by the way this trial was conducted. Ms Eggins was not called but her unsworn, untested evidence was relied upon for the purpose of making a finding contrary to the sworn evidence of Mr Morris who was examined and cross-examined, and in circumstances where her Honour found (at [20]) “with minor qualifications noted in this judgment, all the witnesses impressed [her] as honest people genuinely trying to give truthful evidence”. She made no qualification in respect of Mr Morris.

In our opinion, the reasons the trial judge gave for finding, contrary to Mr Morris’s own evidence, that he used the word “psychotic” are unconvincing. For reasons which we will express, which accord with a later finding made by the trial judge, it could not be said that the ACTMH telephone records have any inherent integrity. The trial judge did not have any evidence from Ms Eggins, except Ms Eggins’s statement to the police that Mr Morris said something different to his evidence in relation to Mr Crowley’s conduct. The fact that Mr Morris had studied courses which relied upon the Diagnostic and Statistical Manual of the American Psychiatric Association is not a reason, in our respectful opinion, for the conclusion arrived at by the trial judge. Lastly, the reason that Ms Eggins was no more qualified than Mr Morris to make a diagnosis of psychosis is not a sound reason for rejecting his evidence. The inference simply does not arise.

Her Honour should have found that the ACTMH was not advised by Mr Morris at 12.52pm that Mr Crowley was displaying psychotic symptoms. Her Honour should also have found that Mr Morris did not use the word “large” in relation to the Samurai sword.

At no time after Mr Keith Crowley had spoken to ACTMH at 7.53am when he said that he felt his son would go to Calvary Hospital voluntarily did Mr Keith Crowley and Mrs Crowley raise with their son the question of his admission to that hospital. Nor did they make any observations of their son after 6.00am (in the case of Mr Keith Crowley), and about 7.00 to 7.30am (in the case of Mrs Crowley). Mr Crowley was unsupervised in every sense of the word after that time. After those two occasions, the next time Mr Keith Crowley and Mrs Crowley saw Mr Crowley was 10 minutes before Mr O’Connor left at 1.00pm and then only for a very short time.

Mr Keith Crowley and Mrs Crowley were never made aware of Mr Morris’s observations of their son at about 10.50am, nor was ACTMH until, in the case of ACTMH, at 12.52.55pm.

At no time before Mr Crowley left the Crowley home at some time perhaps between 1.00pm and 1.10pm was ACTMH advised by Mr Keith Crowley and Mrs Crowley that they had not taken any steps to persuade Mr Crowley to be admitted to hospital, or that they had not made any observations of him after 7.30am.

Unbeknown to his parents, Mr Crowley must have left their property on at least two occasions after 7.30am and before entering his parents’ kitchen when Mr O’Connor was present. Mr Crowley left the premises at approximately 10.50am when he was observed by Mr Morris. He returned, however, almost immediately. He was also seen by residents of Chapman a little over an hour later. At 12.07pm, the police received an anonymous call from a woman who observed that someone who was obviously mentally ill was walking along Perry Drive, Chapman ACT. At 12.10pm, Police Communications advised police officers of the information provided by the female caller that the person was “playing chicken with the cars driving along Perry Drive just near the school”. SC Pitkethly said that he would respond to the call. At 12.10pm, two police cars, one containing SC Pitkethly, were despatched to find that person. In his search for Mr Crowley he spoke to the principal of Chapman Primary who decided to keep the children in over lunch time until the man was found. At 12.11pm, police received a further call from a caller who said that he had seen a man wearing a white t-shirt with a “golden covered sword” who looked “grumpy” in the middle of Perry Drive near Namatjira Drive at Chapman. At 12.12pm, another caller telephoned the police and advised that he had seen a man on Tauchert Street near Namatjira and Perry Drives, whom he described as “a young bloke, mid-30s, long hair, open shirt carrying what looks like a Samurai stick in the middle of the road swinging it around and shouting at the traffic. Obviously as high as a kite …”. At 12.15pm, Police Communications advised SC Pitkethly that the man he was looking for was carrying “something like a Samurai sword”. At 12.20pm, the car in which SC Pitkethly was travelling advised Police Communications that the man could not be found. At 12.35pm, SC Pitkethly reported that he could not locate the person about whom the complaints had been made because he had gone to ground or gone inside and the job could be marked complete. The various sightings made between 12.07pm and 12.12pm must have been of Mr Crowley.

The likely reason SC Pitkethly could not locate Mr Crowley was because he had already returned to his caravan. The uncontroverted evidence was that Mr Crowley spoke to his parents and Mr O’Connor some time shortly before 1.00pm, probably about 12.50pm.

At 1.08pm, a call to the police was made by Andrew Oakley, a postman, whom Mr Crowley had confronted in Lincoln Close in Chapman. The timing of that observation is consistent with the evidence of Mr Keith Crowley and Mrs Crowley.

Mr Oakley, who was delivering mail in Chapman on a motorised bicycle or motor bike, noticed while travelling along Lincoln Close that several logs had been placed across the road. He stopped to remove the logs and heard a person, who was Mr Crowley, telling him to stop what he was doing. He continued and next he noticed Mr Crowley, with writing over his body, running towards him with a wooden stick that Mr Oakley thought was a kendo stick, saying that he was God and Jesus.

Does that regime erect or facilitate ‘a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence’?
Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant.

It is important to note that, in this case, the trial judge did not find that a failure to exercise the power in subs 37(2) of the Mental Health Act was a breach of a duty of care that ACTMH owed to Mr Crowley. Rather, her Honour held that ACTMH’s “failure” to exercise the power was relevant at the causation stage of the inquiry. She held that a proper assessment of Mr Crowley on the morning of 11 December 2001 would have found him to require admission, involuntarily if necessary. She said that even if that was wrong, had the breach of failing to pursue Mr Crowley’s admission to hospital on the Tuesday morning not occurred, he would not have been left unsupervised by his parents until his condition had been resolved.

In considering whether the common law duty of care included a duty to exercise the power in subs 37(2), her Honour examined the decision in Presland at some length. Mr Presland was discharged from a psychiatric hospital by a psychiatrist. Six hours later, he killed his brother’s fiancée. Mr Presland was acquitted of murder on the ground of mental illness and detained in strict custody as a forensic patient.

At first instance, Mr Presland was awarded damages against the psychiatrist and the hospital. It was found that they had been negligent in failing to care for and restrain him and that Mr Presland was at risk of injury to himself and others as a consequence of his mental illness. The risk of injury included harm suffered in detention as a forensic patient.

On appeal, Sheller JA and Santow JA held that neither the psychiatrist nor the hospital was liable. Sheller JA said (at [300]) that the nature of the harm suffered pointed, as a matter of common sense, against the existence of a legal responsibility for that harm. Santow JA said (at [315]) that it would be unjust as a matter of legal policy based on community values for the common law to allow a remedy to the patient for his non-physical injuries in the circumstances.

Spigelman CJ and Santow JA each discussed whether the duty of care owed by the psychiatrist and the hospital to the patient included a duty to exercise a statutory power to detain the patient.

Spigelman CJ noted that there were findings of negligence and that the issue on the appeal was one of the scope of the duty of care. He noted that the psychiatrist and the hospital had a duty to the psychiatric patient, who was a patient at the hospital, to provide proper care with respect to diagnosis and, subject to consent, to treatment. The question was whether the duty of care encompassed the exercise of the statutory power to detain the patient. Spigelman CJ held that it did. His Honour considered the matters identified by Gummow, Hayne and Heydon JJ in Stuart vKirkland-Veenstra. He considered the purpose to be served by the exercise of the power, and whether the patient was a beneficiary of the power. He found that the psychiatrist and the hospital exercised a high level of control and the patient exhibited a high level of vulnerability. Spigelman CJ said that although there was an option of voluntary admission, on the evidence, there was no basis upon which the psychiatrist and the hospital could assume that the patient could look after his own interests in seeking a voluntary admission or requesting a discharge. Finally, the Chief Justice considered coherence, and he concluded that that was not a factor which was entitled to significant weight. His Honour reached that conclusion because the review process in the statutory scheme meant that the possibility of defensive medicine impinging on the performance of the statutory scheme was unlikely. His Honour said (at [41]):

One of the reviewing practitioners or the Magistrate should be able to resist the institutional imperative of minimising the risk of civil action.

Santow JA agreed with Spigelman CJ’s “powerfully reasoned exposition” of the principles for determining the scope of liability of statutory authorities for negligence (at [325]). However, his Honour disagreed with the application of those principles to the facts. His Honour said that the statute did not generate a common law duty, but that that was not the end of the matter because there was a pre-existing general law duty (at [366]). After examining the relevant factors, Santow JA said that there was no duty with respect to non-physical harm, essentially based on loss of liberty. He left open the question whether there was a duty in the case of serious physical harm suffered by a third party (at [369]).

The primary judge discussed the decision in Presland and, in particular, discussed the reasons for judgment of Spigelman CJ (at [885]-[909]). Her Honour concluded (at [909]) that a common law duty of care arising out of the statutory power conferred by the Mental Health Act may apply to a similar range of injuries “to those assumed to be covered in Presland”.

With respect to the trial judge, we do not think that the scope of any duty of care owed by ACTMH to Mr Crowley early in the morning on 11 December 2001 included a duty to exercise the power in subs 37(2) of the Mental Health Act. It is not suggested that the power had been engaged on the previous evening. We are disposed to think that ACTMH owed a duty of care to Mr Crowley as a result of the events which transpired on the evening of 10 December 2001 to, in effect, follow up on the matters discussed on the previous evening with Mr Crowley or his family. We realise that that describes the scope of the duty at a high level of generality. However, we do not think that the scope of the duty can be expressed in more precise terms. In saying this, we acknowledge that the scope of the duty could have been enlarged by events on 11 December 2001. However, as it happened, that did not occur. There was an effective “follow up” when Mr Keith Crowley spoke by telephone to Ms Williams on the morning of 11 December 2001. We do not think that the scope of the duty can be defined in terms of a duty to carry out an assessment. For example, Mr Crowley may have gone to hospital voluntarily and in those circumstances there would have been no duty to carry out an assessment under subs 37(2) of the Mental Health Act.

Was there a breach of duty by ACTMH?

If the ACT did owe Mr Crowley a duty of care, in our opinion her Honour erred in deciding it had been breached.

At the trial, both Mr Crowley and the police alleged that ACTMH had been negligent. Mr Crowley did not call any medical evidence in support of his case against ACTMH, but the police did and Mr Crowley relied on that evidence.

The police called Dr Jonathon Phillips who is a consultant psychiatrist. He prepared two reports (dated 18 July 2006 and 15 May 2008 respectively) in which he addressed the particulars of negligence alleged against ACTMH. For the purposes of the appeal, attention can be confined to the live issues (see [260] above). For example, Dr Phillips criticised the Crisis Team’s decision not to assess Mr Crowley on the morning of 11 December 2001, describing it in various ways, including an error of judgment, an unwise decision, and an inappropriate judgment. He also said that he was critical of the departure from Mr Wells’s “treatment plan”.

ACTMH called medical evidence in support of its case that it had not been negligent. It called Dr James Telfer who is also a consultant psychiatrist. He prepared two reports (dated 21 April 2008 and 23 February 2009 respectively), and he also addressed the conduct of ACTMH. For example, in relation to the fact that the Crisis Team did not assess Mr Crowley on the morning of 11 December 2001, Dr Telfer said that it was reasonable to allow Mr Crowley’s parents to attempt to have him voluntarily admitted later that day.

Both medical experts were eminently qualified in the area of psychiatry. Both were cross-examined at length.

As we read the trial judge’s reasons, her Honour did not express a general preference for one witness over the other. She seems to have been more critical of aspects of Dr Telfer’s evidence, for example, of certain assumptions he made, than she was of Dr Phillips’ evidence. We doubt that Dr Telfer implicitly accepted in cross-examination that the Crisis Team should have visited the Crowley family on the morning of 11 December 2001 (see the trial judge’s reasons at [983]) but, even if he did, there are important matters to bear in mind when considering the weight to be accorded to the expert evidence.

First, the question of whether there is a duty of care and the scope of the duty is a question of law for the Court. The determination of the scope of the duty of care is in turn clearly critical to whether or not there has been a breach of duty. Secondly, the question of breach or no breach is also ultimately a question for the Court. Thirdly, ACTMH may be described as a publicly-funded mental health provider with certain statutory powers. But those statutory powers are subject to clear limitations. The circumstances of this case are somewhat unusual, and the issues of breach involved fine issues of both timing and judgment. It is not clear to us that there was a generally accepted practice for publicly-funded mental health providers, or whether there was such a practice in the particular factual circumstances of this case. The trial judge clearly shared some of these reservations when she said that there was a question in her mind about whether the running of publicly funded mental health services was itself a field of “specialised knowledge” (at [60]). A little later in the same passage her Honour said:

Furthermore, while it was clear that both medical witnesses were well qualified and respected in terms of their medical knowledge and experience, and that each of them had been in some form responsible for a publicly funded mental health service, there was no evidence before me of their expertise (as distinct from their experience) in running such a service.

The task for the trial judge and for this Court on appeal is to apply the approach taken in Wyong Shire Council v Shirt, sometimes referred to as the “Shirt calculus”. The relevant factors are a consideration of the magnitude of the risk and the degree of the probability of its occurrence, as well as the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have (at 47-48 per Mason J (as his Honour then was)). Aspects of the test formulated in Wyong Shire Council v Shirt have been criticised (see, for instance, New South Wales v Fahy at [213]–[225] per Callinan and Heydon JJ), but the matters to be considered in determining the reasonable person’s response to the risk remain the same.

In applying the test, it is important to bear in mind that the assessment is a prospective one: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126]-[129] per Hayne J; New South Wales v Fahy at [56]-[58] per Gummow and Hayne JJ.

In our opinion, ACTMH did not breach any duty owed to Mr Crowley by not having someone from the Crisis Team attend the Crowley home on the Tuesday morning. In the first place, it is not entirely correct to say that this was Mr Wells’s plan. As Dr Telfer pointed out, Mr Wells added a rider. That was that Mr Keith Crowley should be telephoned first. Mr Keith Crowley and the Crisis Team spoke by telephone early in the morning. The Team then made a reasoned judgment upon the information given to it by Mr Keith Crowley that the assessment could be delayed so that Mr Crowley could go to Calvary voluntarily if possible.

In our opinion, Ms Williams was entitled to rely upon Mr Keith Crowley’s statement that Mr Crowley would go voluntarily to Calvary Hospital. She was told that Mr Crowley’s condition had not deteriorated and that he had apparently agreed, or was not disagreeing, to an admission to Calvary Hospital. While it is true that the Crisis Team had knowledge of how Mr Crowley’s symptoms might develop, that is but one matter to be considered. We do not think that, in all the circumstances and in the absence of any further information, it was unreasonable for the Crisis Team not to attend upon Mr Crowley on the Tuesday morning.

If Mr Crowley were to admit himself voluntarily to Calvary Hospital, which was an approved health facility, the preconditions in subs 37(2) of the Mental Health Act to the mental health officer exercising the power to apprehend the person could not be met. A mental health officer can only apprehend a person who is mentally dysfunctional or mentally ill if that person has refused to receive the treatment or care that the person needed. ACTMH was told that Mr Crowley would submit to treatment or care and, in those circumstances, ACTMH could not have apprehended him and taken him to an approved health facility. In our opinion, the ACT did not breach any duty owed to Mr Crowley by failing to further assess him after receiving the advice from his father.

The ground upon which the ACT was held liable for Mr Morris’s conduct is by no means clear. It seems to us that, in theory, the possibilities are as follows:

(1)Mr Morris owed a duty of care to the plaintiff and breached it. The ACT was liable on the basis of vicarious liability.
The first point to note about this suggested basis of liability is that it is arguable that vicarious liability was not pleaded against the ACT. Vicarious liability was pleaded against the police in relation to the conduct of Senior Constables Pitkethly and Willis. This would not be decisive if a case of vicarious liability had been run at trial. It appears not to have been, and we can find only one reference to Mr Morris owing a duty of care to the plaintiff in the trial judge’s reasons (at [1009]).
(2)Plainly, Mr Morris was not the controlling mind of the ACT or even of one of its administrative units in the sense referred to in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (see also Hamilton v Whitehead (1988) 166 CLR 121), and no statutory provision whereby Mr Morris’s knowledge was to be attributed to the ACT was either identified or relied upon. The knowledge of an agent or servant might, in a particular case, and for a particular purpose, be attributed to a corporate or statutory entity (here we are dealing with a government entity), but that is not how the primary judge reasoned to her conclusion and, in fact, her Honour’s conclusion that Mr Morris had not breached any duty – whether owed by him or by the ACT – by not informing the Crisis Team of his observations of Mr Crowley would seem to be inconsistent with such a line of reasoning.
(3)Mr Morris was “affected” by the duty of care ACTMH owed to Mr Crowley. What is meant by this is not entirely clear to us. The trial judge said (at [987]):
First, I am satisfied, in the absence of evidence or argument to the contrary, that Jason Morris as an employee of ACTMH was affected by the duty of care owed to Jonathan by ACTMH. It is possible to imagine a case in which not all employees of a medical service provider would owe a duty care to patients, but given Mr Morris’s role in the care of patients, the evidence about his experience and qualifications, and the absence of any evidence of organisation or arrangements that could that could exclude him from such a duty, I am satisfied that this is not such a case.

It is clear enough that what the trial judge found was that Mr Morris breached the ACT’s duty of care to Mr Crowley.

The essence of the trial judge’s reasoning was that the ACT’s duty of care encompassed a duty on the part of its employees to report, to an appropriate person, a person known to be a Crisis Team patient about to be admitted to hospital who was both behaving oddly and apparently not being properly supervised.

A number of points may be made about this reasoning. First, as a general comment, the approach seems to define the duty and its scope in terms of the particular breach found by the trial judge. This suggests the impermissible use of hindsight. Secondly, it presupposes that Mr Morris had a duty to act, despite the fact that he was only acquainted with Mr Crowley through his relationship with his brother. Thirdly, for reasons we have given, we do not think Mr Crowley was a patient of ACTMH on 11 December 2001. Fourthly, there is no reference in the above formulation to a report being made within a particular period. Presumably, having regard to her Honour’s finding of breach, the report was to be made promptly, if not immediately. Finally, it is clear enough, we think, that the trial judge’s approach was to consider Mr Morris’s conduct by reference to his position as a rehabilitation officer (see [1008]) and with the knowledge that he had. In other words, there is no suggestion in the trial judge’s reasons that all of ACTMH’s knowledge was to be attributed to Mr Morris.

The trial judge addressed the two particulars of negligence in relation to the ACT and Mr Morris and found that Mr Morris breached the ACT’s duty in not passing on his observations of Mr Crowley to the Crowley family, but that he did not breach the ACT’s duty in not passing on his observations to the Crisis Team. The first finding is the subject of the appeal by the ACT and the second is the subject of Mr Crowley’s notice of contention.

As to both matters, the trial judge had evidence from Dr Phillips and Dr Telfer. For example, in his first written report Dr Phillips said that Mr Morris would face moderate criticism in delaying the process of reporting to the Crisis Team. The trial judge must be taken to have rejected that evidence. For reasons set out above (at [399]), she was entitled to take that approach. The points made earlier are even stronger in this area where we think there must be a real question as to whether there would be said to be a generally accepted practice.

The trial judge’s reasons for rejecting the particular of negligence which is the subject of Mr Crowley’s notice of contention were as follows (at [1000]):

Jason Morris’s failure to contact the Crisis Team urgently about his observations of Jonathan does not seem to me to have been a breach of ACTMH’s duty of care. Although Mr Morris observed odd behaviour on Jonathan’s part incidentally to doing his job in relation to Jonathan’s brother, I am satisfied that he was not negligent in failing to report his observations to the Crisis Team as a matter of urgency given that:
(a)He did not personally find Jonathan’s behaviour threatening, only a bit odd;

(b)When he raised the matter with Jonathan’s brother, Mark, before driving away from the Crowley home, he learned that his colleagues in the Crisis Team were aware of Jonathan’s condition, had already made preliminary assessment of him, and had planned an admission for him on that morning; and

(c)He had his own immediate responsibilities to another group of ACTMH clients.

It is not clear upon what basis her Honour found that an admission had been planned for Mr Crowley “that morning”. Her Honour may have inferred that from the fact that an assessment was to take place in the morning on her interpretation of the evidence referred to in [128] above. In any event, there is a tension in her Honour’s reasons in finding no breach in not urgently reporting Mr Crowley’s behaviour to the Crisis Team but a breach in not speaking to the Crowley family. There would not appear to be any difference in terms of expense, difficulty or inconvenience. It might be said that a report to the Crowley family was more immediate than a report to the Crisis Team. Nevertheless, it seems to us that her Honour’s reasons as set out in the above passage are correct and that the notice of contention must be dismissed. For the same reasons we do not think the ACT was negligent because Mr Morris did not report his observations of Mr Crowley to the Crowley family. As we have already observed, the question of liability must be approached prospectively and not with the wisdom of hindsight. Having regard to what Mr Morris saw and knew it is a counsel of perfection to suggest that he acted unreasonably in not speaking immediately to Mr Crowley’s parents.

Causation and ACTMH

The ACT appealed on the issue of causation. In other words, it contended that even if it owed a duty of care to Mr Crowley and even if it acted in breach of that duty in the respects identified by her Honour, the breaches identified by her Honour did not cause the loss and damage sustained by Mr Crowley.

The breaches of duty by the ACT identified by her Honour are set out in paragraph 258 above. As we have said, Mr Crowley does not seek to support the third breach or particular of breach.

Mr Crowley, as we have said, has filed and served a notice of contention contending that the alleged breach or particular of breach rejected by her Honour, that is, Mr Morris’ failure to contact the Crisis Team urgently about his observations of Mr Crowley ought be reversed by this Court. In addition, he asks this Court to reverse her Honour’s finding that, even if a breach, it was not causative of his injuries.

In this case, causation involves a number of complex issues. In order to consider it we would have to make a number of assumptions contrary to our earlier conclusions not only concerning Mr Crowley’s case against the ACT, but also concerning his case against the police. We do not think that such an exercise would be useful in the circumstances.

In our opinion, the ACT’s appeal should be allowed and the judgment entered against it set aside. Instead, there should be an order there be judgment for the ACT against the plaintiff.

CONCLUSIONS

Both appeals must be allowed and the orders made by the trial judge on 10 June 2011 set aside. In lieu thereof there should be an order that judgment be entered for each defendant against the plaintiff. The plaintiff should pay the costs of trial of each defendant and, as first respondent in each appeal, the costs of the appellant or appellants.
I certify that the preceding four hundred and eighteen (418) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 17 December 2012

Counsel for the Australian Capital

Territory: Mr J Maconachie QC with Mr J Watts

Solicitor for the Australian Capital

Territory: ACT Government Solicitor

Counsel for the Commonwealth of Australia
and Mr Glen Pitkethley: Mr P Semmler QC with Mr G Stretton SC

Solicitor for the Commonwealth of Australia

and Mr Glen Pitkethley: Australian Government Solicitor

Counsel for Mr Jonathan Crowley:                   Mr B Gross QC with Mr S Dixon
Solicitor for Mr Jonathan Crowley:                   Collaery Lawyers
Dates of hearing:  19, 20, 21, 22 March 2012
Date of judgment:  17 December 2012