Carrier v Bonham

[2001] QCA 234

SUPREME COURT OF QUEENSLAND

CITATION:

Carrier v Bonham [2001] QCA 234

PARTIES:

KEITH DARREL CARRIER
(plaintiff/respondent)
v
JOHN LLEWELLYN BONHAM
(first defendant/appellant)

FILE NO/S:

Appeal No 7606 of 2000
DC No 788 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2001

JUDGES:

McMurdo P, McPherson JA, Moynihan J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against the judgment given on 4 August 2000 dismissed with costs.
Appeal against the order made on 11 August 2000 allowed, by substituting "on the standard basis" for "on an indemnity basis" where those words appear in paragraph 1 of that order.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – OTHER PARTICULAR CASES – UNSOUNDNESS OF MIND – whether person of unsound mind is at common law capable of being legally liable in negligence for conduct that causes injury and loss to another – whether the appellant’s act was “calculated” in the ordinary sense to cause harm

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – PARTICULAR PERSONS AND SITUATIONS – whether a person of unsound mind is to be judged by the standard of the ordinary and reasonable person.

Criminal Code, s 27
Mental Health Act 1974 (Qld), Part 4
Supreme Court Act 1995 (Qld), s 253

Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56, considered
Bunyan v Jordan (1936) 36 SR(NSW) 350, applied
Bunyan v Jordan (1937) 57 CLR 1, considered
Cook v Cook (1986) 162 CLR 376, considered
Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258, applied
Jaensch v Coffey (1984) 155 CLR 549, considered
McHale v Watson (1964) 111 CLR 384, considered
McHale v Watson (1966) 115 CLR 199, considered
Morriss v Marsden [1952] 1 All ER 925, considered
Northern Territory v Mengel (1995) 185 CLR 307, applied
Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, distinguished
White v White [1949] 2 All ER 339, considered
Wilkinson v Downton [1897] 2 QB 57, applied

COUNSEL:

P Keane QC with D Kent for the appellant
H Frazer QC with F Forde for the respondent

SOLICITORS:

Public Trustee for the appellant
Quinn & Scattini for the respondent

1. McMURDO P.  I agree with McPherson JA generally, for the reasons he has given, that the appellant was liable to the respondent in negligence despite his mental illness.  I wish only to add the following brief comments.

1. The criminal law recognises that a person is not criminally responsible for acts or omissions done without capacity because of mental illness or mental disability.[1]

   [1]Criminal Code, s 27; Mental Health Act 1974 (Qld), Part 4.

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