Daniel Smith by his tutor Debra Smith v South Western Sydney Local Health Network

[2017] NSWCA 123

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Daniel Smith by his tutor Debra Smith v South Western Sydney Local Health Network [2017] NSWCA 123
Hearing dates:	25 July 2016
Decision date:	31 May 2017
Before:	Meagher JA at [1]; Gleeson JA at [2]; Payne JA at [192]
Decision:	(1)   Appeal dismissed.  (2)   Appellant to pay the respondent’s costs.
Catchwords:	APPEAL AND NEW TRIAL – appeal – new point raised on appeal not taken below – where appellant attempted suicide at home while on a period of leave from a mental health facility – where primary judge found respondent had breached its duty of care by failing to provide adequate advice to the appellant and his parents that alcohol and contact with his ex-fiancée were stressors to be avoided, and if his parents were concerned about his condition to telephone the respondent for advice or return the appellant to hospital – where appellant sought to reformulate the content of the duty of care on appeal - where alleged breach of duty involved the failure to advise the appellant’s parents to immediately return the appellant to hospital if the appellant was exposed at all to either stressor – whether appellant could rely on new case on appeal – whether cross-examination by the respondent likely to be different – whether appellant had otherwise demonstrated exceptional circumstances justifying the Court entertaining the new point. TORTS – negligence – essentials of action for negligence – where appellant attempted suicide at home while on a period of leave from a mental health facility – causation – whether respondent’s breach of duty as found by the primary judge caused the appellant to attempt suicide – where appellant advanced alternative counterfactuals based on evidence of what the appellant’s mother would have done in a hypothetical situation – where primary judge found that no real weight could be given to such evidence – whether appellate court should interfere with the primary judge’s assessment of such evidence – whether appellant’s consumption of two beers and text messages with a friend that related to his ex-fiancée were causally connected with his later decision to attempt to commit suicide – whether factual findings open to primary judge
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5D, 43A Interpretation Act 1987 (NSW), s 5(2), 36(1) Mental Health Act 1990 (NSW), s 20 Mental Health Act 2007, ss 12, 15, 18, 19, 27, 31, 47
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 Bonnington Castings Ltd v Wardlow [1956] AC 613 Coulton v Holcombe (1986) 162 CLR 1 at 78; [1986] HCA 33 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gardner v Duve (1978) 19 ALR 659 Hunt and Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 Metwally v University of Wollongong (1985) 60 ALR 68 Roads and Maritime Services v Grant [2015] NSWCA 138 Smith v Pennington [2015] NSWSC 1168 State of New South Wales v Mikhael [2012] NSWCA 338 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 Wallace v Kam (2012) 250 CLR 375; [2013] HCA 19 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Whisprun v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343
Texts Cited:	Prof James Reason, Human Error, (1990, Cambridge University Press)
Category:	Principal judgment
Parties:	Daniel Smith by his tutor Debra Smith (Appellant) South Western Sydney Local Health Network (Respondent)
Representation:	Counsel: Mr D Higgs, SC with Dr E Peden and Ms V Thomas of counsel (Appellant) Mr R Cheney SC with Mr H Chiu of counsel (Respondent)   Solicitors: Marsdens Law Group (Appellant) Tress Cox Lawyers (Respondent)
File Number(s):	2015/279562
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 1168 Date of Decision: 28 August 2015 Before: Garling J File Number(s): 2008/316578

Headnote

[This headnote is not to be read as part of the judgment]

The appellant, Daniel Smith, claimed damages for personal injury suffered as a result of his attempt to commit suicide by hanging at his parents’ home on 16 November 2008, while on a permitted leave of absence from the Sub-Acute Mental Health Unit (SAMHU) at Campbelltown Hospital. Mr Smith suffers from Lance-Adams syndrome, a rare side-effect of the severe hypoxic brain injury that he sustained during his attempted suicide. Mr Smith sued the South Western Sydney Local Health Network as the entity responsible for what he alleged was a negligent omission to provide adequate advice to him and his parents about stressors to be avoided while on leave from the SAMHU and what his parents should do in the event that they were concerned about his condition while on leave.

Mr Smith had gone through an extended period of psychological distress that began in 2007 relating to ongoing pain from a motor vehicle accident on 30 June 2006, excessive consumption of alcohol and an unstable relationship with his girlfriend, Ms Stacey Scott.

After having attempted suicide on 31 October 2008 and again on 4 November 2008, Mr Smith was diagnosed as mentally disordered for the purposes of the Mental Health Act 2007 (NSW) and involuntarily detained in Liverpool Hospital on 7 November 2008. From there Mr Smith was transferred to Campbelltown Hospital on 10 November 2008 and admitted to the SAMHU where his involuntary detention was continued.

On 12 November 2008, Dr Purayil, a psychiatric registrar, had a lengthy meeting with Mr Smith’s parents and a social worker, Ms Withham. The primary judge’s findings about that meeting, set out below, underpinned the ultimate finding of breach of duty.

The following day, Thursday 13 November 2008, the appellant was granted leave until Monday 17 November, without any further consultation or advice being given to his parents. The primary judge described the period of leave up until 16 November as entirely uneventful. Interactions with family members and Mr Smith’s employer and other local excursions seemed to indicate to Mr Smith’s parents that he was coping well and looking forward to returning to work.

On the afternoon of 16 November 2008, Mr Smith went on a four wheel driving trip with friends that included a stop at a tavern and his consumption of two beers. Also during the trip, Mr Smith had an exchange of text messages with a mutual friend of his and Ms Scott’s, Chris Campion, about a set of car tyres that belonged to Ms Scott. Both of these matters were reported to Mr Smith’s parents upon his return at about 7:00pm. Mr Smith appeared to have enjoyed the excursion and was not upset by the text message exchange with Mr Campion.

At about 10:45 pm, Mr Smith’s father found Mr Smith hanging from a strap that was connected to a roof support in the garage of their home.

The primary judge found that Mr Smith’s involuntary detention ended on 13 November 2008 however, both parties adopted the position that the content of the duty of care owed by the respondent to Mr Smith was the same whether Mr Smith was a voluntary as opposed to an involuntary patient. The primary judge found that the Health District’s duty of care was to take reasonable steps to prevent injury to Mr Smith by hanging. The risk of harm for the purposes of s 5B of the Civil Liability Act 2002 (NSW) (Civil Liability Act) was identified as that Mr Smith would suffer physical injury or death as a result of an attempt to take his own life.

The primary judge found that the only breach of duty that had been established was the respondent’s failure to give clear instructions to Mr Smith’s parents that he was to avoid alcohol and contact with Ms Scott, and that if they were concerned about his condition they could contact Campbelltown SAMHU or, alternatively, return Mr Smith to the Unit. The primary judge found that this breach of duty occurred as a result of Dr Purayil’s omission to properly advise Mr Smith’s parents in the 12 November 2008 meeting. As a result of that meeting, the primary judge found that Mr Smith’s parents knew that excessive consumption of alcohol and contact with Ms Scott was to be avoided and that they should keep a close eye on Mr Smith, and that there was help available if they were concerned about his condition. However, his Honour found that Dr Purayil failed to give clear and explicit instructions which were necessary to convey to Mr Smith’s parents the psychiatric significance of those two stressors, nor a plan of action in the event that they had difficulty in looking after him while on leave from the Campbelltown SAMHU.

The primary judge found that the respondent’s failure to properly advise Mr Smith’s parents did not cause Mr Smith’s attempt to take his own life because there was no causal connection between his consumption of alcohol or the text message exchange with Mr Campion during the afternoon of 16 November 2008 and his attempted suicide at least four hours later that evening. The primary judge also rejected the parts of Mr Smith’s mother’s evidence that if she had been properly advised about the importance of the two stressors, she would have prevented Mr Smith from going on the excursion with his friends, or immediately returned him to the hospital upon hearing on his return from that excursion that he had consumed two beers and exchanged text messages with Mr Campion. His Honour considered that such evidence was affected by hindsight bias.

Mr Smith, by his tutor, appealed to this Court.

Issues on appeal

The issues on appeal were as follows:

1: Whether Mr Smith was entitled to rely on a reformulation of the content of the duty of care owed to him by the respondent, that the respondent should have advised his parents that he was to be immediately returned to the SAMHU if he had any alcohol or contact with Ms Scott (whether direct or indirect);

2: Whether the primary judge erred in finding that there was no causal connection between Mr Smith’s consumption of alcohol or the text message exchange with Mr Campion during the afternoon of 16 November 2008 and his attempt to commit suicide later that evening;

3: Whether the primary judge erred in rejecting the evidence of Mr Smith’s mother about what she would have done in a hypothetical situation if she had been properly advised by the respondent.

Held per Gleeson JA, Meagher and Payne JJA agreeing

In respect of (1)

1: Parties are bound by the conduct of their case at trial, and Mr Smith had not demonstrated that it was expedient or in the interests of justice or that there were exceptional circumstances justifying the Court of Appeal entertaining the new point on appeal: at [92]. Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48; Metwally v University of Wollongong (1985) 60 ALR 68; Water Board v Moustakas (1988) 180 CLR 491 cited.

2: Mr Smith should not be allowed to rely on the reformulated content of the duty of care he sought to advance on appeal, when that case had not been advanced at trial.

In respect of (2)

3: It was open to the primary judge to conclude that there was no causal connection between Mr Smith’s consumption of alcohol during the afternoon of 16 November 2008 and his attempt to commit suicide over four hours later that evening: at [138].

4: It was also open to the primary judge to conclude that there was no causal connection between the Campion text messages during the afternoon of 16 November 2008 and Mr Smith’s later attempt to commit suicide: at [149].

In respect of (3)

5: The primary judge was best placed to evaluate the matters which impacted on the weight to be given to Mr Smith’s mother’s evidence of her hypothetical actions, and his Honour was entitled to accept or reject part of the evidence of a witness as is thought appropriate, including on the ground of hindsight bias: at [178]. Gardner v Duve (1978) 19 ALR 659 cited.

9: The objective circumstances of 16 November 2008, including that Mr Smith was an adult and subject to limited control by his parents, that he appeared to be coping well and that he was unaffected by his consumption of alcohol or upset by the exchange of text messages with Mr Campion, meant that it was open to the primary judge to reject the inference based on Mr Smith’s mother’s evidence that she would not have allowed him to go on the excursion with his friends, or would have returned him immediately to the hospital on his return home: at [181]-[182], [186].

Judgment

1. MEAGHER JA: I agree with Gleeson JA.

2. GLEESON JA: The appellant, Daniel Smith, suffered severe injuries on 16 November 2008 as a consequence of self-harm whilst on a period of leave from the Sub-Acute Mental Health Unit (SAMHU) at Campbelltown Hospital. He attempted to commit suicide by hanging in the garage of his parents’ home and suffered a severe hypoxic brain injury. He now suffers from Lance-Adams syndrome (a neurological complication caused by hypoxic brain damage) and is wheelchair bound. He has extensive care needs and has not returned to work.

3. The appellant, by his tutor Mrs Debra Smith, brought proceedings for damages against the respondent, the South Western Sydney Local Health District (Health District) claiming that it was responsible for the alleged negligent conduct of Campbelltown Hospital and its staff, who made the decision to grant the appellant a period of leave from the Campbelltown SAMHU between 13 and 17 November 2008. The Health District accepted that it was responsible for the conduct of Campbelltown Hospital and its staff.

4. The primary judge (Garling J) found that the Health District had breached its duty of care to the appellant in failing to give adequate advice to his parents (before he proceeded on leave) about the stressors relating to the use of alcohol and contact with his ex-fiancée whilst on leave from the Campbelltown SAMHU. However, his Honour found that the appellant had failed to prove causation. This was because the appellant had not established that, but for any breach of duty on the part of the Health District, he would not have attempted to commit suicide on the evening of 16 November 2008. Accordingly, his Honour ordered judgment for the Health District and that the appellant pay the Health District’s costs: Smith v Pennington [2015] NSWSC 1168.

5. The appellant, by his tutor, has appealed to this Court.

6. There are two parts to the appeal. The first concerns the content of the alleged breach of duty by the Health District. The appellant contended on appeal for a different breach of duty to that found by his Honour. The appellant submitted in this Court that the Health District failed to explain adequately to the appellant and/or his parents that he should return or be returned immediately to the Campbelltown Hospital in the event, during his leave, of his having any alcohol or having any direct or indirect contact with his ex-fiancée. The Health District objected to the appellant relying on this formulation of the alleged breach of duty as it involved, it was submitted, a different case on appeal to that advanced at trial, either by the pleadings, particulars or in submissions.

7. The second part of the appeal relates to causation and the question of whether the breaches of duty by the Health District (as found by his Honour or as contended for on appeal) caused the particular harm which the appellant suffered in the sense required by the Civil Liability Act 2002 (NSW) (Civil Liability Act), s 5D. The appellant challenged the primary judge’s finding that there was no causal connection between the established breach of duty of care (involving the inadequate advice given to the appellant’s parents) and the injuries to the appellant consequent upon his self-harm for which he claimed damages.

8. For the reasons which follow, I have concluded that the appellant should not be permitted to raise a new point on appeal relating to the alleged breach of duty by the Health District. Further, the appellant has not demonstrated error in the primary judge’s findings on causation. Accordingly, the appeal should be dismissed with costs.

Facts

9. The basic facts are not in issue. The following summary is taken from his Honour’s detailed statement of the facts and findings on contested factual issues.

10. In November 2008, the appellant was aged 25. He had mostly lived at home with his parents, having attended school to Year 10 and then undertaken an apprenticeship and obtained employment as a spray painter. He had been involved in a motor vehicle accident on 30 June 2006, sustaining injuries to his left knee and a closed head injury with loss of consciousness. He was in hospital for about two weeks after that accident and remained off work for two to three months. His knee was painful and required a good deal of rehabilitation. The pain continued with varying intensity whilst he was at work. The appellant sought to cope with the pain from his injuries suffered in the car accident by drinking alcohol. Over time, his consumption of alcohol increased and continued, although not always in association with the pain in his knee.

11. The appellant had commenced a friendship with Ms Stacey Scott in September 2006. The primary judge described the relationship as lacking stability: at [33]. The appellant continued to drink to excess in the course of 2006 and subsequent years, but concealed this from his parents with whom he was living.

12. During 2007 the appellant started to feel depressed. He associated that with his physical pain, his excessive drinking of alcohol and a frequent irritability leading to a loss of temper. He was prone to regularly arguing with his parents and Ms Scott, often over minor issues at least once per week. His relationship with Ms Scott deteriorated towards the end of 2007. Ms Scott was gambling frequently, in particular, playing poker machines and turned to the appellant to assist her with paying her regular bills. By about the end of 2007, and into 2008, the appellant was regularly lending Ms Scott up to $1,000 per month. Although the appellant was working full-time and was able to manage his own financial obligations, the added burden of assisting Ms Scott with her financial obligations caused him a great deal of stress.

13. The appellant broke up with Ms Scott in about April 2008. On 15 April 2008, he attended the surgery of his general practitioner, Dr Vo, whose notes recorded the appellant complaining of depression, crying and insomnia. The appellant reported a multiplicity of stressors: the recent breakup with Ms Scott; pain related to his motor vehicle accident, particularly in his leg; court proceedings relating to that accident; and the consumption of alcohol due to pain. He disclosed that he was drinking about six standard alcoholic drinks every day and that his drinking had generally been heavier since the motor vehicle accident.

14. Dr Vo referred the appellant to a psychologist, Mr Rowland, however, he only attended one consultation with the psychologist. Subsequently, on 29 April 2008, Dr Vo administered a K10 test, being one readily available method of assessing the degree of a patient’s psychological distress. The appellant’s assessed score was 32. The maximum possible score is 50 and the minimum score is 10. A lower score is taken as an indication of a more manageable level of psychological distress. Dr Vo completed a mental health care plan for the appellant which diagnosed depression and excessive alcohol abuse.

15. The appellant next saw Dr Vo on 30 October 2008. He had broken up (again) with Ms Scott on the previous evening. He reported to Dr Vo that he was not sleeping, and that he was angry and teary. He denied that he was suicidal. Dr Vo provisionally diagnosed the appellant as suffering depression. He advised the appellant to again see Mr Rowland, the psychologist. Dr Vo administered the K10 test. The appellant’s score of 37 suggested to Dr Vo deterioration in his psychological state since April 2008. Dr Vo prescribed Diazepam (Valium).

Earlier attempts at suicide

16. The appellant attempted to commit suicide on two occasions before the incident the subject of this proceeding – first on 31 October 2008 by overdosing on the Diazepam tablets prescribed by Dr Vo while drinking two cans of Bourbon and Coke in his bedroom at his parents’ home; and next on 4 November 2008 by hanging himself in the garage of his parent’s home, where he lived.

17. After the first incident, the appellant was taken to the Emergency Department at Campbelltown Hospital, arriving shortly before midnight on 31 October 2008. Although neither the appellant nor his parents regarded this as a suicide attempt, the primary judge was satisfied that it was, adding that it was unlikely that it would have ever succeeded: at [48].

18. The appellant was assessed by Dr Divakaran, a psychiatric registrar, who provisionally diagnosed an adjustment disorder with brief depressive reaction, as well as dysthymia and psycho-social stressors. Dr Divakaran identified relationship issues and low mood as problems the appellant was facing. He prescribed anti-depressant medication and discharged the appellant on 1 November 2008, with a follow-up review to be undertaken by the Community Health Emergency Team. That review took place the next day (on 2 November 2008) at the appellant’s home.

19. After the second incident, the appellant was taken by ambulance to Liverpool Hospital on 4 November 2008 where he was examined in the Emergency Department, before being transferred to the Intensive Care Unit. He was sedated for a number of days. He was reviewed by a social worker on 6 November 2008 and by a psychiatric registrar on 7 November 2008. The registrar assessed the appellant as suffering from an adjustment disorder with depressed mood; and recommended that the appellant continue to be nursed individually.

Friday, 7 November 2008 – appellant involuntarily detained

20. On the afternoon of 7 November 2008, the appellant was transferred to the Mental Health Unit at Liverpool Hospital. His suicide risk was assessed as high, although he continued to deny any suicidal ideation. Dr Hartshorn, a psychiatrist, concluded that the appellant required a further period of hospitalisation and certified the appellant as a mentally disordered person within the meaning of the Mental Health Act2007 (NSW) (Mental Health Act), s 15. On the basis of that certificate, the appellant was involuntarily detained in the Mental Health Unit at the Liverpool Hospital. The applicable provisions of the Mental Health Act are referred to below.

Monday, 10 November 2008 – transfer to Campbelltown SAMHU

21. On Monday 10 November 2008, the appellant was transferred to Campbelltown Hospital where he was admitted to the SAMHU. Upon arrival, it was noted that the appellant was regarded as being mentally disordered, but no psychotic symptoms were observed. The background to the earlier suicide attempts was noted as social stressors/relationship breakup and chronic pain from the motor vehicle accident. The admitting nurse recorded that the appellant expressed a desire to return to work.

Tuesday, 11 November 2008

22. On the following day, Tuesday 11 November 2008, the appellant’s suicide risk was assessed as low by the nursing staff. Dr Purayil, a psychiatric registrar, examined the appellant and certified that he was mentally disordered. Following a further examination by both Dr Yenson, a specialist psychiatrist, and Dr Purayil, Dr Yenson also certified the appellant as a mentally disordered person. The hospital notes record that on examination, there was no report of pervasive low mood, no fluctuations in energy levels, no sleep disturbance, no decrease in appetite and no suicidal ideation. The appellant informed Dr Yenson and Dr Purayil that he was having financial difficulties and he wanted to go back to work as soon as possible. It was determined by the examining doctors, pending a review the following day and the receipt of additional information, that the appellant would be permitted a short period of leave with his parents for up to one hour per day.

23. A social worker recorded, shortly after this psychiatric examination, that the appellant was very keen to be discharged to get back to work. He had reported that he had many debts; over $70,000 for different car loans.

24. A risk assessment was also performed. The notes of the nursing staff recorded that the appellant demonstrated a low risk of suicide and a low risk of “non-negotiated leave” (that is, leaving the SAMHU contrary to his involuntary detention or medical advice); no immediate risks were identified; the appellant was frustrated with not being discharged; that he had an unclear recollection of events of the last two weeks; and that he had gone on a one-hour escorted leave with his parents. Upon his return from that short period of leave, it was observed that there the appellant had “limited socialisation, but reacted when engaged”.

Wednesday 12 November 2008 - meeting with appellant’s parents

25. On Wednesday 12 November 2008, Dr Purayil made a note that the appellant’s involuntary detention was to continue. Later that day there was a lengthy meeting between Dr Purayil and the appellant’s parents, Mr and Mrs Smith, which Ms Withham, a social worker, also attended. The appellant went on leave during the early afternoon, and returned shortly before 8 pm. He reported to the nursing staff that he had enjoyed his leave. He denied any suicidal ideation, and told them that he regretted his suicide attempt, even though he had no memory of the event.

26. There was a dispute at trial as to what advice Dr Purayil gave the appellant’s parents during the 12 November meeting. Dr Purayil did not make a note of this meeting until the following day, after a further consultation between the appellant and Dr Yenson and himself on the morning of 13 November 2008. His Honour did not regard Dr Purayil’s note of the 12 November meeting as in any sense contemporaneous: at [85]. To understand what follows, it is of assistance to set out Dr Purayil’s note in full:

Meeting with Daniel’s parents on 12-11-08. Mother and father attended the meeting. Reported that Daniel was quite high functioning and the problems started after the relationship break down. Client has talked to his ex-girlfriend just before the suicide attempt on both occasions, and on both occasions client was under the influence of alcohol. Parents do not remember any episodes of blackout before. There was no overt personality change after the accident 2 years back. Client lost consciousness and was in and out of consciousness after the accident, but client did not have any head injury. The CT scan showed only scalp injury. Client did not get any counselling after the accident, but client was functioning well and was working until a few days before the first suicide attempt. Mother and father did not notice any symptoms suggestive of depression but client was quite angry after his girlfriend broke up with him. Mother reports that client was spending a lot of his earnings on his girlfriend and that has led him in a lot of debt. Client did not mention any thoughts of suicide to any of his parents. Parents feel that now client has broke up with his girlfriend, he won’t have any problems and he will be able to go out to work by Monday. Parents do not feel there is any risk of patient trying to harm himself. (sic)

27. His Honour made detailed factual findings (at [214] – [228]) concerning the 12 November meeting between Dr Purayil and the appellant’s parents. Reference should be made to the following findings which underpin the ultimate finding of breach of duty:

1. the prospect that the appellant might go on leave over the forthcoming weekend was discussed and alcohol (as affecting the appellant’s behaviour) and contact with Ms Scott were both identified as causative stressors of what had happened in the past and, at least by inference, may have an effect on what may happen in the future: at [216];

2. neither Mr nor Mrs Smith were enthusiastic about, nor encouraging of, the release on leave of the appellant at that time: at [218];

3. Dr Purayil did not inform Mr and Mrs Smith that there were any conditions of leave being granted to the appellant. He gave no instructions of any formal or firm kind to Mr and Mrs Smith that they should do all in their power to prevent the appellant from either drinking, or else having access to, alcohol, and not having access to Ms Scott: at [219];

4. nonetheless, these two issues were discussed in the context of being stressors adversely affecting the appellant, and were, before that time, well-known to both Mr and Mrs Smith. They both knew that it was not in the appellant’s interests for him to drink alcohol, at least to excess, or to have contact with Ms Scott: at [220];

5. the necessity of providing clear and explicit instructions and warnings to Mr and Mrs Smith arose because they did not have Dr Purayil’s expert knowledge, were relatively unsophisticated, and were not in a position to comprehend the psychiatric importance of those matters: at [221];

6. Dr Purayil did not give “clear instructions” necessary to convey to Mr and Mrs Smith the psychiatric significance of the stressors, the obligations of Mr and Mrs Smith if they were prepared to undertake the care which was necessary for a mentally disordered person in their home with respect to those stressors, and a plan of action for them in the event that there was difficulty in enforcing the warnings and conditions: at [223]. This was contrary to Dr Yenson’s evidence, which his Honour accepted, that these things should have been addressed in a conference after the decision to allow the appellant to proceed on leave had been made: at [223];

7. had Dr Yenson been adequately informed by Dr Purayil as to the substance of his conversations with Mr and Mrs Smith on 12 November 2008, Dr Yenson would have insisted on a further meeting with Mr and Mrs Smith in which the proper information would have been conveyed prior to the appellant going on leave: at [227];

8. by the end of the meeting with Dr Purayil on 12 November 2008, Mrs Smith, and his Honour inferred that her husband, knew the following things (at [228]):

1. that Dr Purayil’s view was that the particular triggers which precipitated the [appellant’s] events of suicide were alcohol abuse and contact with his ex‑girlfriend, Ms Scott;

2. from the events which had taken place up until 12 November 2008, and from her own observations of her son, Mrs Smith knew that the combination of alcohol and contact with Ms Scott were the things, from her perspective, which were risky for the [appellant]. She informed Dr Purayil of her view;

3. although Dr Purayil did not say to Mrs Smith that the [appellant] needed to be closely monitored and supervised by her and Mr Smith, she knew that she had to keep an eye on the [appellant]. She was prepared to watch him carefully, and that is what she did;

4. although not directly informed by Dr Purayil, Mrs Smith knew of the contact details for the Brown Street Clinic, the community mental health emergency team, and she had the telephone number for the SAMHU at Campbelltown Hospital. She also assumed, correctly, that she could always put the [appellant] in her car and bring him back to the SAMHU at Campbelltown Hospital;

5. that Dr Purayil could not guarantee that the [appellant] would not again attempt to take his own life.

Thursday, 13 November 2008 - decision to grant 4 days leave

28. As mentioned, on the morning of Thursday 13 November 2008, Dr Yenson and Dr Purayil had a further consultation with the appellant. The appellant reported that he was doing fine, that he wanted to get out as early as possible, that no pervasive symptoms of depression were identified, and there were no suicidal ideas. A decision was made that the appellant could go out on leave and come back the following Monday (17 November 2008) to be reviewed and possibly discharged.

29. Shortly before lunchtime on 13 November 2008, the appellant was granted leave from the Campbelltown SAMHU. The primary judge observed that this surprised his parents who only received notice when the appellant telephoned his father and asked him to collect him: at [115]. The appellant’s father collected the appellant from the SAMHU and took him to a pre-arranged appointment with Dr Vo at about 12.30 pm that day. Dr Vo conducted a physical examination and detected nothing abnormal and administered a K10 test. The score recorded was 15, and Dr Vo recorded that the appellant did not feel hopeless or depressed at any time. Dr Vo described the score as “Okay”.

30. His Honour found that the picture presented by the appellant to Dr Vo provided external validation of the assessment by Dr Yenson that the appellant was, from a psychiatric and psychological perspective, well enough to be able to proceed home on leave with his parents: at [121].

13 -16 November 2008 period of leave

31. The primary judge described the appellant’s period of leave from Campbelltown SAMHU up until Sunday, 16 November 2008 as, to all appearances, entirely uneventful: at [127]. It is sufficient to note that on the Thursday afternoon, when the appellant’s brother, Robert, and his daughter (Katty), aged eight years, visited the home Mrs Smith observed that the appellant seemed to interact reasonably well with them. On Friday 14 November 2008, the appellant, his parents and his niece visited a local shopping centre. To Mrs Smith’s observation, the appellant seemed to be looking better and appeared to be happier and more relaxed. The appellant told his mother that he was looking forward to getting back to work. Later that day, Mr Smith took the appellant to see his employer (Sloanbuilt Trailers) to discuss his return to work. The appellant spent Saturday 15 November 2008 with his parents and other family members. According to his mother, he seemed happy and relaxed. He told his mother that he was looking forward to going back to work and was grateful for the opportunity to keep his job.

The events of Sunday 16 November 2008 in more detail

32. Two events occurred on Sunday, 16 November 2008 that require a more detailed explanation. The first was that friends of the appellant asked Mrs Smith if she would permit him to accompany them on a 4-wheel driving expedition, followed by a drink at a local tavern. The primary judge found that Mrs Smith readily agreed: at [127]. She asked the appellant’s friends to “guarantee” that the appellant would only have a couple of beers. When they informed her that they would not be staying at the tavern very long, she inferred that there would not be a great deal of drinking. She allowed the appellant to take his mobile phone with him. The appellant arrived home that Sunday evening, probably around 7 pm (at [341]), before the evening meal and whilst it was still daylight. He ate his evening meal with his parents, and he generally seemed to be in a reasonable mood. He also seemed to have enjoyed his outing with his friends.

33. The second matter was that Mrs Smith learnt that there had been an exchange of text messages between the appellant and a friend of his, Mr Campion, regarding some car tyres that had belonged to Ms Scott. She first learned this when the appellant’s friends dropped him home. They told her what had happened and that everything had been sorted out. Mrs Smith also discussed the matter with the appellant.

34. The primary judge found that Mrs Smith had no particular reason to be concerned about that exchange of text messages: at [130]. His Honour considered that, in part, this was because the appellant was not behaving as he ordinarily did when he had a dispute with Ms Scott. In addition, Mrs Smith knew that there had been no direct text messaging by the appellant with Ms Scott, nor any actual discussion with her. Mrs Smith did not take the mobile phone back from the appellant when he returned home.

35. After the evening meal, the appellant went to his bedroom at about 9 pm, taking some popcorn to eat. So far as his mother was aware, he had only had two beers at the local tavern that afternoon and no more when he came home. To her observation, the appellant was not drunk, and there did not appear to be any ongoing text messaging or arguing with Ms Scott. She had made up a bed on a lounge in the downstairs part of the house near the sliding doors leading to access to the garage. The primary judge observed that Mrs Smith, in effect, placed herself “on guard” in an attempt to prevent or deter the appellant from taking any action to harm himself, or to leave the house: at [134].

36. Whilst in his bedroom, the appellant had a telephone conversation with Mr Campion using his mobile phone. The contents of this discussion are unknown. Mr Campion was not called in the appellant’s case to give evidence at trial. At about 10.11pm, the appellant sent a text message to Ms Scott, the content of which was later recovered and is set out at [39] below.

37. At about 10.45pm that night, the appellant’s father noticed a light was on in the garage and went to investigate. He found the appellant hanging by a yellow strap tied around his neck which was connected to a metal truss supporting the roof of the garage. He called out for help and Mrs Smith and a neighbour arrived. Together, Mr Smith and the neighbour held up the appellant’s body and removed the yellow strap from around his neck and then performed CPR until the ambulance arrived. The appellant was taken to the Intensive Care Unit at Liverpool Hospital.

38. The primary judge found that neither Mr Smith nor Mrs Smith were aware that the appellant had left his bedroom and had walked outside to the garage at any time before Mr Smith’s observation that a light was on in the garage: at [136].

39. A subsequent examination by the police of the appellant’s mobile phone discovered that a text message had been sent by the appellant to Ms Scott at 10.11pm on the Sunday evening as follows:

I’m sorry. I can’t be without you. I love you too much. You don’t want to hear this, but I just can’t be without you. I love you more than anything. I’m so sorry for fucken everything. I love you and maybe see you in another life.

40. The primary judge found that there was no evidence that there had been any text messaging directly between Ms Scott and the appellant on that day: at [138].

41. The appellant left a suicide note which was found by his mother on the workbench in the garage. Although the original note was not in evidence, a copy was attached to one of the medical expert’s reports and read as follows:

I’m sorry to everyone

I can’t be as strong as you all want me to be just remember I love you all dearly especially mum, dad, Robert and most of all Katty?

Don’t ever give up like me taking the easy quitters way out and don’t ever be weak hearted like me you will all be better off without me just be strong don’t ever be weak like me. Love you all. Especially you Stacey the love of my life.

Events following the attempted suicide on 16 November 2008

42. On the morning of Monday 17 November 2008, Dr Purayil made the following note:

Daniel’s mother called the Unit and reported that Daniel is in hospital in Liverpool H. ICU after he tried to hang himself. Spoke to …. Daniel’s mother on phone, reported client has been fine on Friday and Saturday and then on Sunday evening his former girlfriend contacted him through a friend. Daniel started becoming agitated and tried to hang himself. Spoke to Registrar at Liverpool Hospital ICU. Reported that Daniel is still on ventilator and could not assess the damage by hypoxia.

43. On 21 November 2008, the appellant had a consultation with a medical registrar and, it seems, a nurse at Liverpool Hospital. The Hospital’s notes recorded that the appellant:

Today expresses regret for what he describes as an impulsive attempt after 2 beers and hearing distressing accusations/gossip from a friend. Also presents as tearful and distressed about financial stressors. … States he wants to be at home because he needs to work in order to pay debts.

Relevant statutory provisions: involuntary detention under the Mental Health Act

44. The primary judge referred to the provisions of Ch 3 of the Mental Health Act which deals with the involuntary admission to and treatment in, mental health facilities. The starting point is the general restriction on involuntary detention in s 12, which provides:

12 General restrictions on detention of persons

(1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that:

(a) the person is a mentally ill person or a mentally disordered person, and

(b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

45. As the High Court remarked in Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [28] in relation to s 20, the predecessor provision in the Mental Health Act 1990 (NSW) (which was in similar but not identical terms to s 12 of the 2007 Act):

… determining that a person was a “mentally ill person” did not entail that the person must be, or must continue to be, involuntarily admitted to and detained in a hospital.

46. A mentally disordered person is defined in s 15 of the Mental Health Act as:

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a)   for the person’s own protection from serious physical harm, or

(b)   for the protection of others from serious physical harm.

47. His Honour found that the appellant’s categorisation as a “mentally disordered person” was always on the basis that his detention was necessary to protect him from serious physical harm to himself; it was not ever thought that he was at risk of causing serious physical harm to others: at [93].

48. A person may be detained under s 18 in a declared mental health facility in a number of circumstances including, on a mental health certificate given by a medical practitioner or an accredited person under s 19: s 18(1)(a). A mental health certificate, in the specified form, may be given in relation to a person only if the conditions referred to in s 19(2) are satisfied.

49. The conditions in s 19(2) include that the medical practitioner or accredited person has personally examined or observed the person’s condition immediately or shortly before completing the certificate; is of the opinion that the person is a mentally ill person or a mentally disordered person; and, is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary. As mentioned, the appellant was regarded as a “mentally disordered person” as defined in s 15 of the Mental Health Act.

50. Section 27 requires the prompt examination by a medical practitioner or accredited person of a person detained in a mental health facility. It provides for a five-step regime. Step 1 involves the initial examination by an authorised medical officer as soon as practicable, but not later than 12 hours after the person, relevantly, arrives at the facility. Steps 2 and 3 involve examinations by a second medical practitioner as soon as possible after step 1 and, in some circumstances, by a third medical practitioner to deal with a disagreement. Step 4 relates to the circumstances in which a detained person must be brought before the Mental Health Review Tribunal for a mental health enquiry. Step 5 is contained in s 27(1)(e) which provides:

(e) If a person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and is found to be a mentally disordered person on examination in step 2 or step 3, the person may be detained in the mental health facility as a mentally disordered person.

51. Section 31, which his Honour described (at [98]) as the central provision for involuntary detention of a person on the basis of being mentally disordered, provides:

31 Limited detention of mentally disordered persons

(1) A person detained as a mentally disordered person under step 5 in section 27 (e) must not be detained in a mental health facility for a continuous period of more than 3 days (not including weekends and public holidays).

(2)    If an authorised medical officer of a mental health facility is of the opinion that an assessable person has ceased to be a mentally ill person but is a mentally disordered person, the person must not be further detained in the facility for a continuous period of more than 3 days (not including weekends and public holidays).

(3)    An authorised medical officer must examine a mentally disordered person detained in a mental health facility at least once every 24 hours.

(4)    The person must not be further detained in the mental health facility if, on any such examination, the authorised medical officer is of the opinion that the person is not a mentally disordered person or a mentally ill person or that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(5)    A person must not be admitted to and detained in a mental health facility on the grounds that the person is a mentally disordered person on more than 3 occasions in any 1 calendar month.

52. The effect of s 31, as his Honour observed (at [100]), is that a mentally disordered person cannot be detained involuntarily for a period in excess of a continuous period of three days, and in total for a period longer than nine days in any one calendar month. That three-day period does not include weekends and public holidays. In addition a person who is involuntarily detained must be examined by a medical practitioner at least once every 24 hours: s 31(3).

53. Dr Yenson’s authority to grant leave was given by s 47 of the Mental Health Act, which provides:

47    Leave of absence on compassionate grounds, medical grounds or other grounds

(1)    An authorised medical officer may permit a person to be absent from a mental health facility for the period, and on the conditions, that the officer thinks fit.

(2)    Permission may be given on compassionate grounds, on the ground that medical treatment is required or on any other ground the authorised medical officer thinks fit.

(3)   An authorised medical officer may not grant leave of absence unless the officer is satisfied that, as far as is practicable, adequate measures have been taken to prevent the person concerned from causing harm to himself or herself or others.

54. It was common ground at trial that the appellant was detained as a “mentally disordered person” on 11 November 2008, and that the three-day period of permitted detention began, relevantly, on 12 November 2008. That approach, which was not accepted by his Honour, relied on two matters. One was that periods of involuntary detention at different mental health facilities are not aggregated for the purposes of the three-day period referred to in s 31 of the Mental Health Act. His Honour referred to this construction argument at [109]. The other matter (which his Honour referred to at [191]) was that in counting time for the purposes of s 31 of the Mental Health Act, the first day of detention is excluded. The parties had referred in their submissions to s 36(1) of the Interpretation Act 1987 (NSW) which provides that if in any Act “a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that Act or event”. Neither party submitted that a contrary intention appeared in the Mental Health Act: Interpretation Act, s 5(2).

55. The parties joined issue on whether the appellant was involuntarily detained at the time he attempted suicide on Sunday 16 November 2008. The appellant’s case was that the appellant remained an involuntary patient until midnight on Sunday, 16 November 2008, since weekends and public holidays are not included in the calculation of the three-day period of permitted detention. The Health District submitted to the contrary. It submitted that the three-day period expired “just prior to midnight” on Friday 14 November 2008 and accordingly, the appellant “was no longer technically a disordered person”.

56. Contrary to the approach of the parties, the primary judge considered that as a matter of construction of s 31 of the Mental Health Act, the appellant’s involuntary detention ended on Thursday, 13 November 2008: at [108]. However, as his Honour noted, the parties accepted that Dr Yenson, when granting leave on the morning of 13 November 2008, was operating on the basis that the appellant’s involuntary detention continued until at least Monday, 17 November 2008: at [111]. The reference in [111] of his Honour’s reasons to “Monday 16 November 2008” is clearly an error.

57. It is not necessary to analyse his Honour’s finding that the appellant’s involuntary detention ended on 13 November 2008 as neither party sought to challenge that finding on appeal. Both were content to adopt the position that the content of the Health District’s duty of care was unaffected by whether the appellant was a voluntary or involuntary patient at the time of the attempted suicide.

58. That approach is open to doubt. The content of the duty owed to an adult patient on discharge from a mental health facility is not necessarily the same in terms of the advice which should be given to the patient and his or her parents, to that on a grant of leave to an involuntary patient. Further, that the patient is no longer involuntarily detained, may affect causation questions including the ability of the patient’s parents to coerce the former patient to return to the facility.

59. However, it is not necessary to address these questions since neither party submitted that any different analysis flowed in the present case, if the appellant’s involuntary detention ended on 13 November 2008, as his Honour found, or on either 14 or 16 November 2008, as the parties contended below.

Grounds of appeal

60. The amended notice of appeal raised nine grounds. Grounds 1 and 8 of the original notice of appeal were withdrawn. Ground 2 challenges the finding on breach of duty (ground 2) and the remaining grounds (grounds 3, 4, 5, 6, 7, 9, 9A and 10) challenge the findings and conclusion on causation.

A. Breach

The appellant’s case at trial

61. An understanding of the Health District’s objection to ground 2 as raising a new case on appeal, is assisted by setting out his Honour’s summary at [10] – [14] of the appellant’s case at trial:

[10] The plaintiff’s claim is set out in the Second Further Amended Statement of Claim filed on 17 July 2014. It pleads 19 separate particulars of negligence.

[11] In his final submissions, senior counsel for the plaintiff relied upon 16 of those earlier particulars. For the purpose of analysis in this judgment, it seems to me that the particulars can be reasonably grouped together in the following way:

(1) prior to undertaking an assessment of the suitability of the plaintiff to be allowed a four day leave period, the Health District failed to make all adequate and appropriate enquiries about the plaintiff’s psychiatric history and complaints, including a failure to elicit the history of depression, so as to enable a reasonable assessment to be made of the plaintiff’s risk of suicide if allowed home on leave;

(2) failing to provide to the plaintiff and his parents any adequate advice about precautions to be taken during leave, including the range of permissible activities for the plaintiff whilst on leave, including whether the plaintiff should or should not drink alcohol, and should or should not contact Ms Scott, failing to advise the plaintiff’s parents of the need to supervise the plaintiff and monitor him whilst on leave, including providing them with advice about lines of communication back to the Campbelltown SAMHU, or steps which they could take to assist in the monitoring and supervision of the plaintiff;

(3) failing to make an adequate assessment of whether the plaintiff should or should not have been allowed to go on leave including failing to identify and address any issue of impulsivity or anger, and the reluctance of the plaintiff’s parents to have the plaintiff go on leave for that length of time;

(4) granting the plaintiff leave, and allowing him to proceed on leave, in circumstances where inadequate advice was given to the plaintiff and his parents, no ongoing psychological assistance was made available during that period at the plaintiff’s home, graduated leave periods had not been adequately tested, and no conditions under s 47 of the Mental Health Act 2007 had been imposed.

[12] In their final written submissions, counsel for the plaintiff posed the issue of breach of duty in only two ways:

● was the decision of the Hospital (acting through Dr Yenson and Dr Purayil) to grant leave of absence to the plaintiff from 13 to 17 November 2008, a breach of a duty of care that the Hospital owed to the plaintiff, having regard to the requirements of s 5B of the Civil Liability Act 2002; and

● was the decision by Drs Yenson and Purayil to grant leave of absence to the plaintiff from 13 to 17 November 2008, an act or omission involving the exercise by the Hospital of a “special statutory power” within the meaning of s 43A of the Civil Liability Act. If so, was the decision so unreasonable that no authority having that power could properly consider the decision to be a reasonable exercise of that power?

[13] Counsel for the plaintiff identified seven particulars of breach of duty upon which they made specific submissions. They were:

(a) the absence of any graduated leave prior to the grant of four days’ leave;

(b) the failure by Dr Purayil to reasonably investigate and assess the plaintiff before a decision to grant leave was made;

(c) the failure to adequately assess the risk that the plaintiff may attempt to self-harm during the period of leave;

(d) a failure to impose conditions pursuant to s 47 of the Mental Health Act on the grant of leave;

(e) the failure to give adequate warnings to the plaintiff’s parents about the key stressors which would affect the plaintiff during leave;

(f) the failure to schedule an appointment with a mental health professional during the period of leave; and

(g) the failure to hold a meeting after the decision was made by Dr Yenson on 13 November 2008 with the plaintiff’s parents so that they could be advised that there were ways of reducing existing risks of self-harm, in particular, by denying access to the garage and clearly pointing out to Mr and Mrs Smith that the consumption of alcohol and conversation with the plaintiff’s girlfriend, or perhaps about her, could be sources of renewed stress and risk for the plaintiff.

[14] This approach was followed by counsel for the plaintiff in their final oral submissions. [Emhpasis added]

62. The primary judge’s description of the appellant’s case at trial was not challenged by the appellant in this Court.

Primary judge’s findings on duty of care and breach

Duty of care

63. Although no duty of care was expressly pleaded in the second further amended statement of claim, there seems to have been no dispute at trial that the Health District owed the appellant a duty of care. His Honour found (at [335]), albeit in a discussion about causation, that:

The relevant duty of care was to take reasonable steps to prevent injury to the [appellant] by hanging.

Section 5B – negligence

64. His Honour identified the risk of harm for the purposes of s 5B of the Civil Liability Act as the risk that the appellant would suffer physical injury, or death, by attempting to take his own life: at [234].

65. His Honour then applied s 5B and concluded that the risk of harm to the appellant was foreseeable as the Health District (and its employees) had actual knowledge of the risk of harm (at [236]) and the risk was “not insignificant”: at [237] - [238].

66. His Honour then turned to the question of the precautions a reasonable person would have taken (s5B(1)(c)). He noted that it was common ground that the operative decision of Dr Yenson under s 47 of the Mental Health Act to permit the appellant to proceed on leave, involved the exercise of a “special statutory power” within the meaning of s 43A(2) of the Civil Liability Act; hence the “high threshold” of s 43A of the Civil Liability Act referred to in Roads and Maritime Services v Grant [2015] NSWCA 138 (Grant) at [36] applied to the exercise of that power, given that the appellant was an involuntary patient at the time he proceeded on leave: at [245].

67. His Honour found that it was essential that a proper assessment of the patient was performed before any period of leave, and that proper advice and instructions were given to those into whose care he was released: at [212]. Since Dr Yenson never spoke directly with Mr and Mrs Smith, and his decision to grant leave rested upon an assumption that full and proper advice and instructions had either been given, or would be given to the parents, his Honour found that Dr Yenson’s decision depended upon the conduct of Dr Purayil, who had spoken with the appellant’s parents on 12 November 2008: at [213].

68. After referring to the evidence of the expert psychiatrists, his Honour addressed the seven particulars of breach of duty by the Health District: (see [62] above) and rejected all of them except one. The breach which his Honour accepted was established concerned the Health District’s failure to hold a conference with the appellant’s parents on 13 November 2008, after the decision was made by Dr Yenson to allow the appellant to proceed on leave.

69. His Honour found that proper practice required the Campbelltown Hospital, through the psychiatric registrar, or else through another senior clinician, to have had a meeting with the appellant’s parents on 13 November 2008, so that his parents could have been properly informed as to the decision, the basis for it, and the precautions which were necessary to assist the appellant to minimise the risk of any attempt at suicide: at [321].

70. The findings material to this breach of duty were:

1. Dr Yenson anticipated that in the ordinary course of events, after he made the decision to grant leave, there would have been a conference between Dr Purayil and the appellant’s parents about that decision, and relevantly, that clear instructions should have been given to the appellant’s parents on 13 November 2008 that the appellant was to have (at [317]):

“No alcohol, no contact with girlfriend”;

2. Dr Phillips and Dr Telfer, the expert psychiatrists, agreed that it was appropriate that such clear and explicit instructions or advice, or provision of information, be given to the appellant’s parents after the decision was made to allow the appellant to go on leave for a four day period: at [319];

71. The “clear advice” which his Honour found should have been given to the appellant’s parents was that (at [322]):

… the [plaintiff] should avoid drinking alcohol, and should not make contract with Ms Scott. Such advice ought to have been accompanied by counsel that, if the [plaintiff’s] parents were concerned about the [plaintiff’s] condition, they could either make contact with the Campbelltown SAMHU to obtain advice or, alternatively, return the [plaintiff] to the Unit. The return of the [plaintiff] to the Campbelltown SAMHU necessarily depended upon the co-operation of the [plaintiff]. [Emphasis added]

72. His Honour found that the provision of such advice or information in a meeting with the appellant’s parents (unlike the anterior decision to allow the appellant to go on leave), was not an act or omission of a kind to which s 43A of the Civil Liability Act applied, and accordingly, s 43A and the higher standard of proof referred to in Grant’s case, had no application to the breach of duty as found by his Honour. That conclusion is not challenged on appeal.

Ground 2

73. By ground 2, the appellant contended that his Honour should have found that there was a negligent failure by the Health District:

… to explain adequately to the appellant and/or his parents that the appellant should return or be returned immediately to its hospital (the Campbelltown SAMHU) in the event of him during this leave [13-17 November 2008]

(i) Having any alcohol (rather than the need for the appellant to return to the hospital only arising if he drank alcohol to excess); and/or

(ii) Having any direct or indirect contact with his ex-fiancée Ms Scott (as occurred during the text and other exchanges with their mutual friend, Mr Campion on 16 November 2008). [Emphasis added]

74. It will be recalled that the only breach of duty which the primary judge found was the failure by the Health District to give the appellant’s parents the “clear advice” (which is set out at [71] above).

Appellant’s submissions

75. In oral argument, the appellant initially abandoned ground 2 before later withdrawing that concession. It was ultimately submitted that ground 2 reflected the formulation of the content of the “advice” that should have been given by the Health District to the appellant’s parents in accordance with the duty of care owed by the Health District. Counsel for the appellant submitted that:

… his Honour erred in failing to find that the respondent breached the duty in failing to explain adequately to the appellant and to his parents that he should be returned in the event of any (sic) alcohol and any indirect contact with Ms Scott.

76. Ground 2 involves the proposition that the appellant was to be “immediately” returned to the Campbelltown SAMHU if the appellant was exposed to either of the stressors – consumption of alcohol or contact with Ms Scott. The appellant’s submissions in chief did not squarely address the objection by the Health District that ground 2 raised a new case on appeal.

Health District’s submissions

77. The Health District objected to the alleged breach of duty in ground 2, contending that it was outside the pleadings, the particulars, and the way in which the case was run at trial. The Health District complained that to permit this new point on appeal would give rise to unfairness of the kind described in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33: see Whisprun v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 at [51].

78. The Health District submitted that none of the psychiatric experts had expressed an opinion that advice to the effect of ground 2 should have been given to the appellant’s parents, nor did the psychiatric joint report support that conclusion, nor was ground 2 supported by the concurrent evidence given by the experts.

79. The Health District further submitted that this created Coulton v Holcombe unfairness because the experts might have been asked different questions for the purposes of their own reports, their joint expert report and when giving concurrent evidence. In addition, the cross-examination of Mrs Smith may have been different. Reference was made to possible lines of cross-examination directed to whether Mrs Smith would have deferred to such advice, if it had been given; and the means by which she might have achieved the appellant’s immediate return, since this would have required the co-operation of the appellant.

Appellant’s reply submissions

80. The appellant accepted that the psychiatric experts had not considered, nor given an opinion that the content of the Health District’s obligation to advise the appellant’s parents was as contended for in ground 2. That the expert evidence had not dealt with the content of the obligation to advise (as formulated in ground 2) did not detract, it was submitted, from the way in which the appellant’s case had been run at trial. Counsel for the appellant submitted that ground 2 was based on the “very advice” Dr Yenson said ought to have been given to the appellant’s parents.

Decision

81. Plainly the content of the Health District’s obligation to advise the appellant’s parents was an issue at trial. However, there is a significant difference between the content of the breach of duty as found by his Honour, and that contended for by the appellant in ground 2.

82. The breach of duty found by his Honour contemplated the return of the appellant to the Campbelltown SAMHU as an “alternative” to his parents contacting the hospital if concerned about the appellant’s condition. The breach of duty contended for in ground 2 would require the appellant’s “immediate” return to hospital as the only response by the appellant’s parents if he consumed any alcohol or had contact (direct or indirect) with Ms Scott. As the Health District correctly submitted, ground 2 involves a more proscriptive and onerous duty to that relied upon by the appellant at trial.

83. That the case of breach of duty as formulated in ground 2 was never run at trial is evident from three matters:

1. the summary of the appellant’s case at trial given by the primary judge, (as set out at [61] above), which summary was not challenged by the appellant in this Court;

2. the primary judge’s reasons recorded that the failure to give advice that provided an alternative to the appellant’s “immediate” return to hospital, was one of the very findings sought by the appellant. At [316], his Honour said:

The plaintiff alleges that the purpose, amongst others, of a conference with the plaintiff’s parents after the decision to grant leave was taken, was to enable clear warnings to be given to them about the stressors likely to operate on the plaintiff, which needed to be avoided, and which if identified, needed to be dealt with in one of a number of ways, including telephoning the Campbelltown SAMHU for assistance. [Emphasis added]; and,

3. the absence of expert evidence from either party directed to the proposition that the appellant’s “immediate” return to hospital was the only course that the Health District should have advised the appellant’s parents to take if he consumed any alcohol or had any direct or indirect contact with Ms Scott while on leave from the SAMHU.

84. Further and importantly, the expert evidence given at trial is inconsistent with the “immediate” return to hospital case. It is sufficient to refer to two extracts of the expert evidence. First, Dr Yenson’s evidence of his general practice, referred to in par 35 (and also par 47) of his witness statement, was that:

It was and remains my standard practice (and I train my registrars to adopt this practice), to identify a patient’s stressors and to warn family members about avoiding those stressors, to warn them that they must closely monitor the patient while he is on (weekend) leave and that they should call the Unit or bring the patient back if they have any concerns at all. [Emphasis added]

85. Second, Dr JA Telfer gave evidence in his report dated 16 August 2013, which was tendered by the appellant, that:

The known risks should have been specifically listed and addressed: the risk of using alcohol; the effect of communications about or from the girlfriend; the risk of Daniel being left alone; what to do if his mood became depressed. In each instance the advice to the parents and to Daniel should have been to call the Mental Health Service. The parents should have been advised not to leave Daniel alone for more than a few minutes if he appeared distressed, depressed or intoxicated. … [Emphasis added]

86. The appellant did not (and could not) seek to argue that the new point raised by ground 2 could not possibly have been met by further evidence at trial.

87. In Whisprun Pty Ltd v Dixon the High Court said at [51] :

… It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. [Citations omitted]

88. Insofar as the appellant argued that the alleged breach of duty in ground 2 is supported by Dr Yenson’s evidence, I do not agree. As indicated, Dr Yenson’s evidence as to the advice which should have been given to the appellant’s parents contemplated the alternatives of telephoning the hospital, or returning the appellant if they were concerned about the appellant’s condition while on leave from the SAMHU. Nor did his Honour treat Dr Yenson’s evidence in the way now contended for by the appellant.

89. In light of the express alternatives referred to in Dr Yenson’s written statement (as set out at [84] above), one would have expected that the “immediate” return to hospital proposition would have been squarely put to Dr Yenson in cross-examination, as well as to the other psychiatric experts when giving evidence at trial in the expert conclave, if this was part of the appellant’s case. The appellant did not do so.

90. The High Court has repeatedly emphasised that a party is bound by the conduct of his or her case. In Metwally v University of Wollongong (1985) 60 ALR 68, the plurality said (at 71):

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

91. As explained in Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12, if “all the facts had been established beyond controversy or where the point is one of construction or of law, then a Court of Appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied”.

92. Here the appellant did not point to the existence of any exceptional circumstances. Nor can it be accepted that all the facts relied upon under ground 2 have been established, let alone established beyond controversy. It would be unfair to allow the appellant to raise the alleged breach of duty contended for in ground 2. Ground 2 should be rejected.

B.   Causation

93. The Civil Liability Act, s 5D relevantly provides:

5D   General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) …

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) ...

94. No complaint is made in relation to his Honour’s statement of the approach to factual causation required by s 5D(1)(a). His Honour accepted that factual causation is to be determined by the “but for” test. Reference was made to Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [45]. There the High Court described the “but for” test as a necessary test, except for the “exceptional” cases to which s 5D(2) applies. Having noted at [333] that the appellant did not rely upon the terms of s 5D(2), his Honour expressed the “but for” test as obliging the plaintiff to show that it is more probable than not that but for the breach (or breaches) of duty, the appellant would not have attempted suicide on 16 November 2008: at [334].

95. His Honour observed, with reference to Adeels Palace at [51], that describing the injury as “the very kind of thing” which was the subject of the duty does not prove factual causation: at [335]. Reference was also made at [337] to the High Court’s statement in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [16] that the test of factual causation in accordance with s 5D(1)(a) “involves nothing more or less than the determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence”.

96. It is not necessary to add to the above statements. However, three general observations should be made. First, it is plain that factual causation involves the application of common sense to the proved primary facts: Hunt and Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 at [42] (French CJ, Hayne and Kiefel JJ).

97. Second, it is necessary to consider the probable course of events had the omission (breach of duty) not occurred: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 (French CJ, Gummow, Crennan and Bell JJ).

98. Third, as this Court recognised in State of New South Wales v Mikhael [2012] NSWCA 338 at [96] (Beazley JA, Allsop P and Preston CJ of LEC agreeing), there may be difficulty in establishing “but for” causation in the case of negligent omissions. The plaintiff must establish some underpinning factual circumstance that either of itself, or by inferential reasoning, enabled the Court to find that “but for” the negligent omission, the harm to the respondent would not have happened: State of New South Wales vMikhael at [96].

Primary judge’s findings on causation

99. His Honour observed that the (only) breach of duty which had been established was the deficient information conveyed to Mr and Mrs Smith relating to “the prevention of the appellant from having alcohol”: at [339] and “the issue of direct contact and/or communication between the [appellant] and Ms Scott”: at [344].

No alcohol

100. Regarding alcohol, his Honour found that, at most, the evidence was that the appellant consumed two beers with his friends on the way home from the 4-wheel driving expedition. After considering the parents’ evidence, his Honour found that on the appellant’s return there was nothing to indicate he was behaving impulsively or that anything untoward arose from this consumption. His Honour also found that no connection had been demonstrated between the appellant’s drinking beer at the tavern and his conduct (in attempting to take his own life) at about 10.30 pm, at least four hours later: at [341].

101. While his Honour accepted the medical evidence that drinking alcohol was a stressor and might constitute a risk factor for the appellant, he found that all of the evidence pointed to the appellant being entirely unaffected by his earlier alcohol intake: at [342]. Accordingly, the “but for” test was not satisfied in respect of the Health District’s failure to give any warning, or to provide any additional advice, to the appellant’s parents dealing with alcohol: at [343].

No contact with Ms Scott

102. Regarding contact with Ms Scott, his Honour noted that “the breach of duty alleged is that in some way the appellant ought to have been prevented or strongly counselled against having any contact with Ms Scott, and that his parents should have been warned or counselled to take all steps reasonably possible to prevent such contact or communication”: at [345].

103. Again his Honour was not satisfied that the “but for” test was satisfied. First he observed that there was no evidence the appellant had any contact or communication with Ms Scott from the commencement of his leave on 13 November 2008 to 16 November 2008: at [345]. Although, as indicated, the appellant sent Ms Scott a text message at 10.11 pm shortly prior to his suicide attempt, his Honour noted that there was no evidence of any telephone call between them. He considered that any such call would have been retrieved by the police at the same time as they later retrieved the text message, had any existed, and reasoned that no such call was made: at [353].

104. Second, his Honour found that the 10.11 pm text message did not, on its face, seem to relate to any events which had occurred in the immediate past and did not refer to any message which precipitated its own content and transmission at 10.11 pm: at [354]. He also observed that there was no reference to any contact with Ms Scott in the appellant’s suicide note: at [356].

105. Third, his Honour distinguished the appellant’s previous relationship disputes with Ms Scott, when Mr and Mrs Smith had observed that the appellant became distressed or disturbed, or was in some other way adversely affected, with the absence of evidence of similar behaviour at any time whilst he was on leave from the SAMHU: at [347].

106. Fourth, after referring to the subject matter of the Campion text messages: at [348], his Honour noted Mrs Smith’s evidence that, to her observation, the appellant did not appear upset by the Campion text messages, that he accepted her advice it was not worth worrying about and she thought it had all been sorted out: at [349]. His Honour found that there was no reason to conclude on the evidence that the exchange of text messages with Mr Campion caused any upset to the appellant: at [355].

107. His Honour then turned to the expert psychiatric evidence. After noting that none of the experts had given opinions on the content of the 10.11pm text message or the suicide note, his Honour found that the text message and suicide note reflected (at [357]):

… the state of the plaintiff’s mind and thought process, which he arrived at without the influence of any recent external influences. By that I mean there was no reference to, and there had not been, any contact, any evidence of any volatility in the relationship, or reference to any recent events. On the contrary the message simply suggested that the plaintiff, having reflected perhaps in a distorted way on his own life, felt that he was unable to continue his life in the absence of an ongoing stable relationship with Ms Scott. The written note reflected some doubt about the plaintiff’s own strength of character… there is no reference to any recent influences or interaction with Ms Scott.

108. Having found that there was no temporal connection between “any such contact” with Ms Scott and the appellant’s own actions, that the contact with Mr Campion did not seem to have caused any difficulty, and that the appellant had no contact with Ms Scott directly or at all while he was in hospital or on leave, his Honour concluded that the appellant’s “contact” with Mr Campion was not causally related to the events later that evening: at [358].

109. His Honour considered that given “the absence of rationality” inherent in the decision to commit suicide, it was “an exercise in speculation” to attempt to infer what caused the appellant to act as he did: at [362].

110. Having reached that conclusion his Honour referred to Mrs Smith’s evidence in her 1 August 2014 statement, as to what she would have done had there been a condition on the appellant’s leave that he was not to have any contact with “….Stacey or her friends…”. His Honour accepted that this evidence reflected a genuine belief which Mrs Smith presently held, but found that it did not carry any real weight because it was biased by hindsight: at [367]. After referring to Professor James Reason’s study of the influence of hindsight on later perceptions of what could have been done to prevent a wide range of events (Human Error, 1990, Cambridge University Press at 215), his Honour concluded that the evidence of the appellant’s parents was biased by hindsight, and noted that Mr and Mrs Smith both, and in particular Mrs Smith, felt a sense of responsibility for the appellant’s injuries: [368]-[369].

111. His Honour concluded that the “but for” test for causation was not satisfied by the Health District’s breach of its duty to give advice to the appellant’s parents in respect of the two stressors, alcohol and contact with Ms Scott: at [372].

Appeal Grounds on causation

112. The amended notice of appeal raised eight grounds directed to challenging the primary judge’s findings and conclusion on causation:

3. His Honour erred in finding the Appellant had not established that, but for any of the breaches of duty that were proven, his injuries would not have occurred.

4. His Honour erred in finding that there was no relevant causal connection between these breaches of duty of care and the damages claimed by the Appellant.

5. In relation to the breaches of duty of care his Honour ought to have found were established as referred to in paragraph 2 above, his Honour erred in failing to find those breaches and each of them caused the damages claimed by the Appellant.

6. His Honour erred in finding there was no causal nexus or anything untoward arising from:

(i) The Appellant's consumption of alcohol on 16 November 2008 and his attempted suicide later that night; and/or

(ii) The contact between the Appellant and Mr Campion and the Appellant's attempted suicide.

7. His Honour erred in finding there was nothing in the evidence to enable a conclusion to be drawn that any breach of duty relating to any direct or indirect communications with Ms Scott, in any way gave rise to the Appellant deciding to take his own life on 16 November 2008.

…..

9. His Honour erred in rejecting the evidence of the Appellant's mother that she would have returned the Appellant to the hospital had she been aware of the advice that ought to have been given to her concerning the need for the Appellant during this leave to avoid any type of contact (direct or indirect) with Ms Scott or her friends; and in failing to find on the balance of probabilities that the Appellant would have been returned to the hospital before he attempted suicide thereby avoiding damage.

9A.   His Honour erred in rejecting the evidence of the Appellant's mother that she would not have let the Appellant go out with his friends on 16 November 2008 had she been aware of the advice that ought to have been given to her concerning the need for the Appellant during this leave to avoid alcohol and also erred in failing to find on the balance of probabilities that the Appellant would thereby have avoided damage.

10. Further, and in the alternative, his Honour erred in determining this issue of causation upon the basis that the degree and quality of the Appellant's consumption of alcohol that day and/or the contact with Mr Campion did not cause or materially contribute to this suicide attempt, being irrelevant considerations (the Appellant's alternative ground being that these matters, in any event, did materially contribute to the suicide attempt).

113. Grounds 3 and 4 are expressed in general terms and do not identify any particular error by the primary judge. Those grounds may be taken as relying upon the errors asserted in the other grounds.

114. Ground 5 does not arise since it assumes an acceptance of the new breach of duty case in ground 2, which has been rejected above.

115. Grounds 6, 7 and 10 are directed to challenging his Honour’s findings that there was no causal link between either the appellant’s consumption of alcohol or the Campion text messages and his attempted suicide.

116. Grounds 9 and 9A challenge his Honour’s rejection of parts of Mrs Smith’s evidence that had she been aware of the advice that should have been given by the Health District, she would have acted either to prevent the appellant going out with his friends on the Sunday afternoon (ground 9A), or would have immediately returned him to the hospital upon his return at 7.00pm (ground 9). That evidence was relied upon by the appellant in support of the two counterfactuals advanced by the appellant (in the alternative) for the contention that there was a causal link between the breach of duty by the Health District and the harm suffered by the appellant.

117. The appellant’s written submissions did not separately address each of these grounds of appeal and the argument in relation to grounds 6, 7 and 10 was largely subsumed in the argument directed to grounds 9 and 9A, dealing with the counterfactuals. Nevertheless, it is convenient first to address the argument on grounds 6, 7 and 10 directed to the causal link between the consumption of alcohol and the Campion text messages and the attempted suicide.

Grounds 6, 7 and 10 – causal nexus

The appellant’s submissions

118. The focus of the appellant’s written submissions was on the causal connection between the Campion text messages, which were described as “indirect contact with Ms Scott”, and the appellant’s attempted suicide later on the Sunday night. Much less attention was given in argument to the asserted causal connection between the appellant’s consumption of alcohol at the tavern and his attempted suicide.

Alcohol

119. The appellant submitted in writing, without elaboration, that the primary judge wrongly concluded that there was no causal connection between the appellant’s consumption of alcohol at the tavern on the Sunday afternoon and his attempted suicide later that night, when there was nothing his parents observed to indicate that he was intoxicated or had consumed alcohol to excess.

120. In oral argument, the appellant pointed to the evidence of Mrs Smith concerning the first and second suicide attempts on 31 October and 4 November 2008, relevantly, that on those earlier occasions the appellant had also consumed alcohol and otherwise seemed content before going to his bedroom on those nights.

121. In his supplementary written submissions, the appellant contended that “there is abundant evidence of the link between these two stressors and [the appellant’s] last impulsive attempt at suicide” (par 11).

Campion text messages

122. The appellant submitted that the advice, which should have been given by the Health District, to avoid all contact with Ms Scott, clearly included any indirect contact, and that the text messages with Mr Campion constituted “indirect contact with Ms Scott”. The appellant sought support for this characterisation of the text messages in the evidence of Dr Yenson, when referring to the evidence given by Mrs Smith in her witness statement.

123. Counsel for the appellant submitted that his Honour erred in determining that the Campion text messages did not impact upon the appellant’s decision later that evening to attempt suicide. It was submitted that his Honour failed to consider the extent to which the text messages were upsetting both at the time the appellant was at the tavern, and again, by the time he returned home.

124. The appellant characterised the text messages with Mr Campion as a “dispute”, and as such could readily cause upset. While acknowledging that the appellant seemed to accept the advice of his mother that the dispute about the tyres was not worth worrying about, it was submitted that “the natural inference is that it was reasonable to think that he would worry about the dispute and become upset”. It was also submitted that it would be unlikely if the appellant was not upset by this exchange, even if he did not appear upset before retiring to his bedroom.

125. It was further submitted that the Campion text messages did cause the appellant upset (despite there being no reference to it in his 10.11 pm text message to Ms Scott) because the suicide attempt occurred relatively shortly thereafter, the appellant appeared to be coping well and the tipping point leading to his previous suicide attempts was his breakup with Ms Scott and her rejection of him.

Health District’s submissions

126. The Health District sought to uphold his Honour’s findings that the appellant’s consumption of alcohol and the Campion text messages were not causally related to the attempted suicide later on the Sunday night.

127. It was submitted that the text messages with Mr Campion in which Ms Scott was mentioned, should not be treated as constituting contact with Ms Scott, or offending Dr Yenson’s “no contact” recommendation.

128. In any event, it was submitted that there is no challenge to his Honour’s finding that there is no evidence as to why the appellant took the irrational decision to attempt to take his own life and accordingly, causation could not be established.

129. In oral argument, the Health District emphasised the absence of evidence from the experts that either the suicide note or the 10.11pm text message to Ms Scott pointed to the consumption of two beers (at least four hours earlier) or the Campion text exchange (also about four hours earlier) as being causative of the appellant’s decision. It was submitted that the appellant had not identified any evidence from which an inference could be drawn that the likely cause of the appellant’s decision to attempt to commit suicide was either the two beers consumed at the tavern or the Campion text exchange.

130. In response to the appellant’s supplementary written submissions, the Health District reiterated the length of time between the consumption of two beers at the tavern and the Campion text exchange, and the time when it should be inferred that the appellant made the decision to attempt to commit suicide. Reference was made to the acceptance at trial by the appellant’s counsel that the decision to attempt to commit suicide was formed a short period before the appellant made that attempt, about 15 or 20 minutes. It was submitted that the appeal grounds did not identify how the primary judge erred in finding that neither stressor caused the appellant’s decision to attempt suicide.

Decision

131. One preliminary matter should be noted. Ground 10 contended that the consumption of alcohol and the Campion text messages were factors which “materially contributed” to the injury which the appellant suffered. In Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 at [11], Allsop P noted that the concept of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test and that "[s]ome factors which are only contributing factors can give a positive ‘but for' answer". In the present case the appellant’s reference to material contributions is to be understood in that sense, not in the broader sense of material contributions which at common law have been taken to be causes, notwithstanding the failure to pass the “but for” test, such as in Bonnington Castings Ltd v Wardlow [1956] AC 613, a case involving the gradual accumulation of injurious silica dust from several sources of exposure, only one of which the employer was responsible for. That type of case is now taken up by s 5D(2) of the Civil Liability Act, but as mentioned, the appellant did not rely upon s 5D(2) at trial.

Alcohol

132. The essential difficulty with the causation argument relying upon alcohol as a stressor which caused or materially contributed to the appellant’s decision to attempt suicide late on Sunday 16 November 2008, is that it ignores the findings on which his Honour concluded that the appellant was entirely unaffected by his earlier consumption of alcohol: see [100]-[101] above.

133. That conclusion was based on his Honour’s acceptance of Mr and Mrs Smith’s observations of the appellant when he returned home on the Sunday evening at about 7pm; the unchallenged finding that the effects, if any, of the alcohol consumed more than 4 hours earlier in the afternoon would have long since ceased; and the absence of evidence of any alcohol reading when the appellant was admitted to Liverpool Hospital after his attempt at hanging.

134. The appellant sought to outflank these findings by pointing to the acceptance by the experts that alcohol was a stressor to be avoided, and Mrs Smith’s evidence of her perception that it did not take a lot of alcohol to act as a stressor for the appellant. So much can be accepted, but that does not undermine his Honour’s reasons for concluding that the appellant was entirely unaffected by his earlier consumption of alcohol.

135. The appellant also pointed to the consumption of alcohol prior to the appellant’s two previous attempts at suicide. Again that does not advance the appellant’s causation argument.

136. As to the first suicide attempt, the evidence is that the appellant had consumed a couple of Bourbons and Coke during the afternoon of 31 October 2008. Later that night, the appellant said something to Ms Scott while on the phone, which triggered Ms Scott’s concern. She called the appellant’s brother, Robert, and told him that the appellant had done something to himself. The appellant was found outside the front of the house staggering around. He had apparently taken a large number of Valium pills and a drink, a Bourbon and Coke or Red Bull.

137. As to the second suicide attempt, Mrs Smith observed that the appellant had consumed alcohol at home on the night of 4 November 2008 - one or two beers, so far as she was aware; he had spent time with Ms Scott, and it seemed that there may have been a reconciliation between them. The appellant also seemed happy when he went to bed that night. At some time between 10pm and 11pm, Mrs Smith received a phone call from Ms Scott asking where the appellant was. Ms Scott told Mrs Smith that she had been talking to the appellant on the phone and she thought she heard the phone drop. Mrs Smith went looking for the appellant and found him in the garage hanging by his neck unconscious.

138. There were no findings by his Honour, nor were any findings sought in this Court, that alcohol was a stressor which had any connection with the appellant’s two previous attempts at suicide.

139. In any event, having regard to the unchallenged findings which have been referred to above, it was open to his Honour to conclude that the appellant was not affected by alcohol at the time of the third suicide attempt on 16 November 20018. The appellant’s submission that there is “abundant” evidence of the link between the consumption of alcohol and the attempted suicide on Sunday 16 November 2008 should be rejected.

The Campion text messages

140. The subject matter of the text messages with Mr Campion on the Sunday afternoon related to four motor vehicle tyres and the debt which Ms Scott apparently owed the appellant with respect to them. The parties addressed much argument to the question of whether these text messages constituted contact with Ms Scott, in particular “indirect contact”, and whether that was contrary to the advice which Dr Yenson accepted should have been given to the appellant’s parents.

141. The appellant seized upon the reference in Dr Yenson’s evidentiary statement (par 51) to Mrs Smith’s evidentiary statement that “contact had been made with his ex-girlfriend contrary to our warnings and instructions”. The appellant submitted that Dr Yenson should be taken to have accepted that the text messages with Mr Campion constituted indirect contact with Ms Scott contrary to the advice that should have been given to the appellant’s parents. I do not agree.

142. First, it may be accepted, as the Health District submitted, that the cross reference in Dr Yenson’s evidentiary statement to Mrs Smith’s statement is at least ambiguous. I do not consider that it justifies a conclusion that Dr Yenson characterised the Campion text messages as amounting to contact between the appellant and Ms Scott.

143. Second and related to the first matter, it was not squarely put to Dr Yenson, nor did he say, that he regarded the Campion text messages as constituting relevant contact with Ms Scott, or that they were contrary to his “no contact” recommendation.

144. Third, there is force in the Health District’s submissions that it was not put to Dr Purayil in cross-examination that the constraint on contact with Ms Scott went beyond direct contact and included contact of the type with Mr Campion, nor did any of the expert witnesses assimilate a direction to avoid contact with Ms Scott as being breached by the Campion text messages.

145. Fourth, it is telling that Mrs Smith did not regard the text messages with Mr Campion as contact with Ms Scott. She gave the following evidence in cross-examination:

Q. You say in paragraph 212 of your statement at page 37 you said "Daniel had told me about this texting with Stacey's friend Chris Campion"?

A. That's right, Stacey's friend Chris Campion but I never said he contacted Stacey. The texting was between Chris and Daniel.

Q. Look, if you had put it together that there had been alcohol use and contact with Stacey you would have been alarmed and contacted the mental health unit?

A. But he didn't contact Stacey. It was between Chris Campion and Daniel.

Q. I understand. My question to you is had you put together alcohol use and contact with Stacey you say you would have contacted the mental health unit, is that right?

A. Yes, but he didn't. The contact wasn't with Stacey. The contact was with Chris Campion.

Q. Because you understood that those were the two triggers you were to look out for?

A. The triggers were Stacey and alcohol, not Chris Campion and alcohol.

146. Let it be assumed, however, that the Campion text messages constituted indirect contact with Ms Scott, as the appellant suggested in argument. The difficulty with the causation argument relying upon the text messages as a stressor which had upset the appellant and caused or materially contributed to his later decision to attempt suicide, is that it ignores the findings upon which his Honour based his conclusion that the Campion text messages were not causally related to the appellant’s attempted suicide.

147. That conclusion was based on his Honour’s acceptance of Mrs Smith’s observation of the appellant when he returned home that he did not appear to be upset by his text messages with Mr Campion and that he accepted her advice that the matter was not worth worrying about; his Honour’s finding that there was no further exchange of text messages or argument with Ms Scott, or anything approaching that type of incident; the absence of any reference to a ‘dispute’ or proximate contact with Ms Scott in the appellant’s 10.11 pm text message or his suicide note; and the absence of expert evidence concerning the content of the 10.11 pm text message or the suicide note, and whether it related to the stressors which had been previously identified, namely, alcohol and contact with Ms Scott.

148. Importantly, as his Honour observed at [351], Mrs Smith gave evidence in cross-examination that she was aware of the text messages, but this did not cause “alarm bells” because, when the appellant came home:

…. he was fine, he wasn’t agitated. He wasn’t carrying on as if Stacey this or Stacey that. He was quiet, still quiet, he was happy.

149. Mrs Smith also gave evidence, which his Honour noted at [352], that the appellant told her on the Sunday evening that he was looking forward to going back to work.

150. Accepting that the text messages with Mr Campion may be characterised as a “disagreement” between the appellant and Ms Scott, as reported to Mrs Smith by the appellant and his friends, it was open to his Honour to conclude that the exchange of text messages with Mr Campion had not caused any upset to the appellant and were not causally connected with his later attempted suicide.

151. The challenge in grounds 6, 7 and 10 to his Honour’s findings on causation (relating to alcohol and the text messages) has not been made out.

152. In view of the above conclusion, grounds 9 and 9A do not strictly arise. Nonetheless, I will deal with them in case others are of a different view in relation to grounds 6, 7 or 10.

Grounds 9 and 9A

153. It is of assistance to first identify the relevant parts of Mrs Smith’s evidence which underpin the appellant’s counterfactuals, before addressing the argument on grounds 9 and 9A.

Mrs Smith’s evidence

154. Mrs Smith gave evidence in her third evidentiary statement, dated 1 August 2014, directed to what she would have done in a hypothetical situation, namely, if she had been told of what she described as “conditions” of the appellant’s leave.

155. With respect to the consumption of alcohol, Mrs Smith’s evidence was that she was not told that it was a “condition” of the appellant’s leave that he must not consume any alcohol, and that if he had consumed alcohol, she was to bring him back to the hospital.

156. Mrs Smith said that if she had been told that it was a “condition” of the appellant’s leave that he not consume any alcohol, she would have complied with this “condition”, in particular, she would not have let the appellant go out with his friends at all. If the appellant had tried to drink alcohol, or tried to leave the house, she would have tried to stop him. If she could not stop the appellant by herself, Mrs Smith said that she would have called the police and asked them to take him back to the hospital.

154. With respect to contact with Ms Scott, Mrs Smith’s evidence was that Dr Purayil did not warn her that the appellant should avoid contact with Ms Scott, nor did he say that the appellant should not be allowed to have his mobile phone in case he contacted Ms Scott or any of her friends.

155. Mrs Smith said that she gave the appellant his mobile phone on the Sunday because he was leaving the house, but she would not have done this if Dr Purayil had told her that Daniel must not have contact with Ms Scott because she would have been worried about the appellant contacting her again. She said that if she had been told that it was a “condition” of the appellant’s leave that he not have any contact with Ms Scott or her friends, she would have returned the appellant to the hospital as soon as he told her that he had been texting Mr Campion and was having an argument with Ms Scott. If the appellant had refused to return to the hospital, Mrs Smith said that she would have called the police to take him there.

The appellant’s counterfactuals

159. The appellant advanced two counterfactuals based on the evidence of Mrs Smith.

(a) Mrs Smith would not have allowed the appellant to go out with his friends

160. The first counter-factual assumed that Mrs Smith received the advice which his Honour found should have been given to the appellant’s parents (see [71] above), namely that the appellant should avoid drinking alcohol, and should not make contact with Ms Scott, and that if the parents were concerned about his condition, they could either make contact with the Campbelltown SAMHU to obtain advice or, alternatively, return him to the Unit.

161. It was contended that Mrs Smith would not have allowed the appellant to go to the tavern on the road trip with his friends if these particular stressors had been explained to her. Had she refused, the appellant would have stayed at home; he would not have been exposed to alcohol; he would not have had his mobile phone; he would not have had the text message exchange about the tyres that Ms Scott wanted back; and he would not have attempted suicide on the Sunday evening.

(b) Mrs Smith would have immediately returned the appellant to hospital upon his return from his outing with fiends

162. The alternative counterfactual assumed that the appellant was allowed to go out on the Sunday with his friends. It was contended that if Mrs Smith had been properly advised by the Health District (and although the appellant appeared on his return home to be happy and unconcerned by the text messages with Mr Campion), she would have returned the appellant to hospital because “she would have joined the dots and realised that, even though he appeared happy and unconcerned at the time about matters that were stressful and that had stressed him beforehand, he was in danger”.

163. On this scenario, it was submitted, that the opportunity to attempt suicide would have been denied to the appellant because it was unlikely he would have been in a position to attempt suicide while in hospital, as the primary judge had earlier found: at [338].

The appellant’s submissions

164. The appellant’s written submissions were largely directed to the second counterfactual.

165. The appellant’s central submission was that if the Health District had informed Mrs Smith that the appellant should avoid all alcohol and all contact with Ms Scott during the period of leave, then Mrs Smith would have appreciated that Dr Yenson’s concerns extended to interactive contact with Ms Scott and there was nothing implausible about her evidence that she would have returned her son to the hospital immediately, rather than telephoning for advice or otherwise. Although it was accepted that the Campion text messages did not concern the appellant’s parents, it was submitted that the text messages should and would have been of concern to them if the Health District had properly explained to them matters which, from the hospital’s perspective, would have been of concern, namely avoiding contact with Ms Scott.

166. It was submitted that his Honour erred in rejecting Mrs Smith’s evidence as being affected by hindsight. It was reiterated that there is nothing implausible about Mrs Smith’s evidence that, if told of the “conditions” to avoid alcohol and contact with Ms Scott, her response would have been to have her son returned to the Campbelltown SAMHU “immediately” for assessment by people who were better equipped to assess the situation.

167. Any suggestion (by the Health District) that the appellant would not cooperate with his parents (and return to the hospital), was also said to be implausible. It was emphasised that the appellant had sought his mother’s permission before going to the tavern with his friends on the Sunday afternoon. Alternatively, the appellant submitted that if any problem arose in securing the appellant’s cooperation, he could have been forced to return to the hospital. This included, it was submitted, being brought back by the police if the need arose.

The appellant’s supplementary submissions

168. The appellant’s supplementary written submissions were directed to the first counterfactual (that Mrs Smith would not have allowed the appellant to go out with his friends). Reference was made to Strong v Woolworths Ltd at [32], State of New South Wales v Mikhael at [94], and Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 for the proposition that the appellant need only establish the probable course of events had the omission not occurred and that the appellant could rely upon likely inferences from proved facts.

169. The appellant submitted that the evidence of Mrs Smith that she would not have allowed the appellant to go out with his friends should have been accepted. The appellant pointed to objective considerations which, it was submitted, supported Mrs Smith’s evidence (pars 4-5). Reference was made to a previous incident in December 2005 when she called police to stop the appellant from drink-driving that she thought would put him at risk; that while on leave from the Campbelltown SAMHU the appellant had always been in her company or in the company of his father; and that Mrs Smith had slept on the lounge to monitor the appellant’s movements.

170. The appellant submitted that the only reasonable inference to be drawn is that, if Mrs Smith had refused the request from the appellant’s friends to go on the proposed outing, they would not have pressed the point and the appellant would have remained home that day under the watchful eye of his parents (par 9).

Health District’s submissions

171. In response to the first counterfactual, the Health District relied upon its submission referred to at [130] above, concerning the length of time between the consumption of two beers at the tavern and the Campion text exchange, and the time when it should be inferred that the appellant made the decision to attempt to commit suicide: supplementary written submissions (par 6).

172. In response to the second counterfactual, the Health District submitted that there were four problems. (Some of the submissions overlapped with the submissions directed to the earlier appeal grounds.) First, the text messages with Mr Campion in which Ms Scott was mentioned, should not be treated as constituting contact with Ms Scott. Second, the suggestion that Mrs Smith would have reacted to the text messages with Mr Campion by insisting upon the appellant immediately returning to the hospital was said to be so plainly implausible as to not be accepted. Third, it was submitted that there was no basis to infer that the appellant would have acquiesced in such a request by his mother to return to the hospital. Fourth, it was submitted that in any event, there is no evidence as to why the appellant took the irrational decision to attempt to take his own life.

Decision

173. The starting point is that grounds 9 and 9A both challenge his Honour’s rejection of Mrs Smith’s evidence of what she would have done in a hypothetical situation. Although not referred to in argument, some preliminary observations should be made concerning the basis on which this Court may intervene.

174. The primary judge enjoyed an advantage, not possessed by this Court, of forming some assessment of the character and personality of Mrs Smith as a witness who had given evidence and was cross-examined on it. His Honour also had the further advantage of hearing and assessing the whole of the evidence within the context of the trial. Those advantages are evident in his Honour’s careful and detailed reasons. They provide significant justification for the need for appellate restraint in the present case.

175. Of course the appeal is by way of a rehearing and Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 establishes that an appellate court is, in general, in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. Further, while an appellate court should give appropriate weight to the conclusion of the trial judge as to the proper inference to be drawn, if it is of a different opinion, it must give effect to that opinion: Warren v Coombes at 551.

176. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ, referred at [25] to Warren v Coombes and reiterated at [26] “the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not”. Nevertheless, their Honours said at [27] that the requirement to afford appropriate respect to the reasons of trial judges does not “derogate from the obligation of courts of appeal … to perform the appellate function as established by Parliament”. Their Honours continued by explaining how the dichotomy between the appellate obligation to conduct a real review of the trial and appellate restraint is to be resolved where it is established that the judge’s conclusions were erroneous by reason of incontrovertible facts or uncontested testimony or that the decision is glaringly improbable or contrary to compelling inferences: at [28]-[29].

177. Here, the rejection of Mrs Smith’s evidence by the primary judge did not turn on a finding of credibility. Indeed, his Honour generally accepted Mrs Smith’s evidence, while noting that the passage of time contributed to some inaccuracies in her recollection, and that the traumatic nature of the events and the stress which Mrs Smith suffers as a result of them also had some effect upon the accuracy of her recollection: at [143]. However, relevantly for appeal grounds 9 and 9A, his Honour found that Mrs Smith’s evidence as to what she would have done had there been a condition on the appellant’s leave that he not have any contact “….with Stacey or friends….”, although reflecting a genuine belief which she presently held, did not carry any real weight because inevitably such evidence was affected by hindsight: at [367].

178. Importantly, his Honour went on to observe at [369] that:

Mr and Mrs Smith both, but Mrs Smith particularly, feel a sense of responsibility for what had occurred to their son. Their evidence reflected this. They looked back on all of the events, and reason that had they known certain things, they would have acted differently. But that this reasoning is the classic product of knowing what in fact happened. It is biased by hindsight.

179. No objection was taken at trial to the admissibility of Mrs Smith’s evidence of what she would have done in a hypothetical situation was inadmissible. (The admissibility of this type of evidence was considered by Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73). Plainly, s 5D(3)(b) of the Civil Liability Act did not apply to exclude evidence of her mental processes relevant to the question of causation. Nonetheless, assuming its admissibility, such evidence is often of little weight because it is self-serving or given with the benefit of hindsight.

180. His Honour was best placed to evaluate the matters which impacted on the weight to be given to Mrs Smith’s evidence. He was not obliged to accept such evidence simply because he had generally accepted other evidence given by her. The court may accept or reject part of the evidence of a witness as is thought appropriate: Gardner v Duve (1978) 19 ALR 659 at 702. Here, the evidence of Mrs Smith, which his Honour generally accepted was directed to a different subject matter, being her recollection of what occurred, than the evidence which he rejected, which was directed to a hypothetical situation. It was open to his Honour to conclude that Mrs Smith’s evidence of what she would have done in a hypothetical situation was of no real weight for the reasons he gave.

181. It is noteworthy that Mrs Smith gave evidence in cross-examination that she knew alcohol was one of the risk factors for the appellant, and she was trying to control it because she knew it could be a problem; that she was not overly concerned when the appellant returned on the Sunday night because he had only had two beers at the tavern and no more when he came home; that she had limited control over the appellant and could only advise him or influence him; that she could not stop him from going out; that she only had limited control over the appellant because he was an adult; and that if she had seen anything untoward at all, especially the combination of alcohol and contact with Ms Scott, she could have called the Unit at any time.

182. Further, when asked how she would have complied with a “no alcohol” condition, Mrs Smith was somewhat equivocal responding that she “probably wouldn’t have let him go out”, before qualifying her answer with “I know I can’t stop him from going out”, and later giving evidence that she “could” have said no to the appellant going out, before being more definite that “I would have said “no” to the appellant going out”.

183. The objective circumstances were the appellant was an adult, his mother accepted that she had only limited control and influence over him, she knew that alcohol was a stressor, and she had assessed that it was safe for the appellant to have a couple of drinks on his outing with friends. The circumstances on that Sunday afternoon, when the appellant appeared to be coping well, are far removed from the occasion in December 2005 when Mrs Smith called the police to stop him driving when he came home drunk. It was open to his Honour to reject the inference that Mrs Smith would not have allowed the appellant to go out with his friends on the Sunday.

184. Likewise it was open to his Honour to reject the alternative inference that Mrs Smith would have returned the appellant immediately to the SAMHU upon his return from the outing with his friends, had she known of the “condition” that the appellant not have contact with Ms Scott or her friends.

185. To Mrs Smith’s observation, the Campion text messages had not upset the appellant; he was not distressed or disturbed or otherwise adversely affected by those text messages; he seemed happy and content. The appellant was due to return to the SAMHU the following morning for an assessment with a view to being discharged as an involuntary patient. He had indicated to his mother that he was looking forward to returning to work. There is no reason for thinking, viewing the circumstances objectively, that had the appellant’s parents been given the advice which his Honour found should have been given by the Health District, that Mrs Smith would have immediately returned the appellant to the SAMHU on the Sunday evening, and used force by calling the police if the appellant did not co-operate, when he seemed happy and content upon his return from the outing.

186. Although not mentioned by his Honour, there is an additional difficulty that Mrs Smith’s evidence was plainly directed to the appellant’s “conditions” case, which his Honour had earlier rejected: at [301]-[302]. The appellant countered that the reference in Mrs Smith’s evidentiary statement to a “condition” of the appellant’s leave, should be understood as referring to something short of “formal conditions”. That is not a fair reading of her evidence, particularly having regard to the appellant’s case at trial that it was negligent of the Health District not to have imposed “conditions” of leave pursuant to s 47 of the Mental Health Act.

187. Let it be assumed however that Mrs Smith’s reference to a “condition” of leave is to be read, as the appellant suggests, as something short of a formal condition. The stated premise of Mrs Smith’s evidence assumed that the advice which should have been given by the Health District to the appellant’s parents included that if [the appellant] had consumed alcohol, I was to bring him back to the hospital” and that it was a “condition” of the appellant’s leave that “he not have any contact with Stacey or her friends”. However, as already indicated, the advice which his Honour relevantly found the Health District should have given the appellant’s parents was that if they were concerned about his condition they could either contact the Campbelltown SAMHU to obtain advice, or alternatively return him to the Unit. His Honour did not find that the Health District should have advised the appellant’s parents that the appellant should avoid contact with friends of Ms Scott, who presumably may also have been friends of the appellant. The probative value of Mrs Smith’s evidence was significantly lessened for the additional reason that her evidence assumed a state of affairs which was not established by the evidence.

188. Having read the evidence and cross-examination of Mrs Smith, I am not persuaded that his Honour erred in rejecting Mrs Smith’s evidence directed to the issue of causation. In any event, even if error had been demonstrated in rejecting such evidence, for the reasons given above in relation to grounds 6, 7 and 10, acceptance of Mrs Smith’s evidence would not have led to a different result on causation.

189. Grounds 9 and 9A have not been made out.

Conclusion and orders

190. The appeal has failed. There is no reason why costs should not follow the event.

191. Accordingly, I propose the following orders:

1. Appeal dismissed.

2. Appellant to pay the respondent’s costs.

192. PAYNE JA: I agree with Gleeson JA.

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Decision last updated: 31 May 2017