Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon & Anor

[2014] HCATrans 218

[2014] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S142 of 2014

B e t w e e n -

HUNTER AND NEW ENGLAND LOCAL HEALTH DISTRICT

Appellant

and

MERRYN ELIZABETH McKENNA

Respondent

Office of the Registry
  Sydney  No S143 of 2014

B e t w e e n -

HUNTER AND NEW ENGLAND LOCAL HEALTH DISTRICT

Appellant

and

SHEILA MARY SIMON

First Respondent

WENDY ROSE

Second Respondent

FRENCH CJ
HAYNE J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 OCTOBER 2014, AT 10.19 AM

Copyright in the High Court of Australia

____________________

MR R.J. CHENEY, SC:   May it please the Court, I appear with MR N.E. CHEN, for the appellants in both matters.  (instructed by TressCox Lawyers)

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR G.R. GRAHAM, for the respondents in both matters.  (instructed by T D Kelly & Co)

FRENCH CJ:   Yes, Mr Cheney.

MR TOOMEY:   I am sorry, your Honours, can I apologise to the Court for an error on our part.  We simply overlooked the outline of argument.  I cannot explain how it happened.  I have been here often enough to know that it is necessary, and I can only tender my apologies to the Court.

FRENCH CJ:   Yes, all right, thank you, Mr Toomey.  Yes, Mr Cheney.

MR CHENEY:   Your Honours, the grounds of appeal in the notices of appeal, which are at page 786 of the appeal book, challenge the majority decision of the Court of Appeal in five respects; first, duty of care, the issue being whether a health authority can owe a duty of care to third parties in the exercise of the statutory power to detain and discharge mentally ill patients; secondly, breach of duty and, more particularly, the specificity with which the risk of harm referred to in section 5B of the Civil Liability Act need be identified, and whether breach was established.  That challenge comprises grounds 3 to 6 in the notice of appeal.

Thirdly, the majority’s rejection of the appellant’s competent professional practice defence under section 5O of the Civil Liability Act in which the majority in the court below overturned the primary judge’s finding that the defence was made out in circumstances where the primary judge accepted expert evidence from practicing psychiatrists, including evidence called in the plaintiff/respondent’s case, that they, and a reasonable body of their peers, would regard the decision to discharge Mr Pettigrove as reasonable and as according with competent professional practice.  That challenge comprises grounds 6 to 8 in the notice of appeal.

Fourthly, the Court of Appeal’s rejection of the appellant’s defence under section 43 of the Civil Liability Act on the basis that the respondents abandoned their allegations that the appellant breached its statutory duty to detain Mr Pettigrove.  That challenge comprises grounds 9 to 11.  Lastly, the Court of Appeal’s rejection of the appellant’s defence under section 43A of the Civil Liability Act in which the majority held that the section was not engaged notwithstanding that the power to detain conferred by the mental health legislation under which the appellant operated was a special statutory power within the meaning of section 43A and in circumstances where the majority held that the basis of the appellant’s common law liability was its negligent failure to detain or the negligent discharge of Mr Pettigrove, and that last challenge comprises grounds 12 and 13 in the notice to appeal.

Your Honour, I propose to address the issues in that order, but before doing so if I may take a few minutes to do three things.  First, address one aspect of the uncontroversial facts.  Secondly, provide your Honours with the appeal book references to the paragraphs in the judgment of Justice Macfarlan in the court below in which his Honour identified the basis on which he would impose liability on the appellant and, thirdly, take some time to take your Honours through some provisions of the Mental Health Act as it was in force at the time of these events because those provisions bear upon several of our arguments that we raise in this appeal. 

Your Honours, the sequence of events that brought Mr Pettigrove in to the appellant’s care and the tragic aftermath is set out in the appellant’s chronology.  We have also provided a narrative of the facts at pages 2 to 5 of our submissions.  But the uncontroversial matter of a fact that we wish to emphasise is this, that as the primary judge found at paragraph 80 of his judgment, which is at page 624 of volume 2 of the appeal books, Mr Pettigrove had no history of committing violence to others during the whole of his 20‑year history of schizophrenia.  That absence of violence in the teeth of a 20‑year psychiatric history was described by Dr Phillips, an expert called by the plaintiffs, in the passage extracted by the primary judge in paragraph 80 on page 624 as “quite critical” and suggestive of “a higher level of safety”. 

If your Honours go to volume 1 at page 217 of the appeal book, your Honours see that here the psychiatrist, Dr Coombes, has documented his observations and his plan after the 4.00 pm telephone hook‑up with Mr Pettigrove’s mother during which the decision to discharge was taken.  Consistently, we submit, with the expert opinions that the risk of Mr Pettigrove killing Mr Rose was fanciful, Dr Coombes wrote – this is at line 47 – and apologies, it is a bit difficult to read some of this annotated notes but Dr Coombes wrote that Mr Pettigrove was:

No apparent risk to self or others.

Your Honours, may we make this one point about the absence of a violent history?  That fact informed the opinions of four of the six psychiatrists who were called by the parties, including experts called in the plaintiff’s case, that viewed prospectively the risk that Mr Pettigrove would act as he did and kill his friend, Mr Rose, on the journey back to Victoria or, indeed, at any time, was fanciful.  One of the experts called by the respondents, Dr Kingswell, in answer to one of the questions that was put to the experts in joint conference, described the risk as:

so small that a clinician could not have predicted it.

Your Honours see that answer in volume 1 at page 194 of the appeal book where the joint report of the experts is set out.  That joint report starts at page 188.

FRENCH CJ:   Dominating this whole consideration though is the statutory function being carried out in relation to detention and not continuing to detain, is it not?

MR CHENEY:   Yes, your Honour.

FRENCH CJ:   And the constraints on that.

MR CHENEY:   Yes, your Honour.  Indeed, I propose - we have taken your Honours through the Mental Health Act provisions to demonstrate what we submit left the hospital with no choice but to do what it did.  I think during the leave application, your Honour Justice Hayne put to me that the appellant was faced with a binary choice, and I resisted that proposition because the view we take of it is that we were faced with no choice.  Once we are satisfied of certain things, namely that there was more appropriate care available of a less restrictive kind – reasonably available and appropriate – the Act goes on to mandate that the patient be discharged. 

The hospital is not faced with a situation where they have a mentally ill patient, they have identified appropriate care, reasonably available, less restrictive, and then they have a choice as to whether to discharge into that care.  The Act mandates that the hospital must discharge the patient.  If your Honour will permit me, I would develop that point in a moment when we travel through the Act.

But can I raise one other preliminary matter, your Honour, and that was I undertook to point to the passages in the judgment of Justice Macfarlan where his Honour set out the basis on which the appellant should be liable, that is, that the failure to detain, or alternatively but, we would submit, not relevantly differently the discharging of Mr Pettigrove on the morning of 21 July.

Your Honours, those findings are in the following paragraphs of Justice Macfarlan’s judgment, which is in the second volume of the appeal books at paragraph 10 on page 680 at line 55 and it is paragraph 10(b).

HAYNE J:   Well, all this prefaced by 10(a), namely, that the relevant inquiry about duty is whether the hospital or the doctor and thus the authority owed a duty to Mr Rose.

MR CHENEY:   Yes, your Honour.

HAYNE J:   Why?  Mr Rose was not the plaintiff.  The plaintiffs were relatives of Mr Rose, who claimed to have suffered recognised psychiatric injury by reason of the occurrence of the events.  What is the relevance of inquiring about whether the hospital or the doctor owed to Mr Rose a duty to take reasonable care to avoid physical injury to him?

MR CHENEY:   Because, your Honour, we would submit that in order for the plaintiffs, that the siblings and mother of the deceased, Mr Rose, to make good their nervous shock claims, they had to first establish that a duty was owed to the victim, through which they claimed.  That is a necessary element, we would submit, and I think it was common ground below that for the plaintiffs to succeed they first had to establish a duty owed to Mr Rose and, indeed, Justice Garling is perhaps mildly critical of us for not taking this point below but ‑ ‑ ‑

HAYNE J:   But let it be assumed, and I am not sure that the assumption is valid, but let it be assumed that it is necessary to show that the hospital owed a duty to take reasonable care to prevent physical injury to Mr Rose, does that entail, as seems to be the assumption in the Court of Appeal, that it is sufficient to show the existence of a duty by the hospital and the doctor to Mr Rose to avoid physical harm to him, to establish that they also owed a duty to avoid psychiatric injury to his close relatives?

MR CHENEY:   Your Honour, the only way I can answer that proposition is that in the manner in which this case was conducted it was accepted that that was sufficient, that there was no further obligation on the plaintiffs to demonstrate that a duty was owed to them in respect of their psychiatric injury.  Traditionally, your Honour, in almost every nervous shock claim that is ever brought it is a derivative claim as much as the plaintiff sues alleging that the act occasioning death or injury to the victim was a breach of duty owed to that victim and that they being either satisfying the requisite test that they be related to the victim, it is enough that they demonstrate a breach of duty owed to the victim.

KEANE J:   But how can that be right when one is looking at the question of risk of harm?  One can understand that nervous shock suffered by the plaintiffs, the respondents in this case, is a foreseeable risk of the homicide that occurred here.  One could not accept that as a matter of common sense that it was a risk of a minor assault on Mr Rose by Mr Pettigrove.  That just does not make any sense.

MR CHENEY:   Indeed, your Honour.  The point your Honour makes we say is relevant to the determination of what the relevant risk of harm was.  We say one has to have regard to what ultimately befell the victim, that is, his death, and that anything short of that is insufficient.

KEANE J:   But what I am struggling with actually, Mr Cheney, is why the concession that you seem to agree that was made, why that does not foreclose that argument to you.

MR CHENEY:   Well, to the extent that it was a concession, your Honour, it was a concession that if the court found, contrary to our position, that there was a duty owed to Mr Rose then the plaintiffs having demonstrated that they suffered nervous shock by reason of the manner in which they learned of his death, there was no further obligation on the plaintiffs to demonstrate that a duty was owed in respect of that nervous shock.  That was the extent of the concession, if I may put it that way.  We did not ever at any point surrender the point that a duty was not owed to Mr Rose.

KEANE J:   To talk about duty divorced from the risk of harm and the harm is perhaps where the problem arises.

MR CHENEY:   Perhaps - could I take your Honour’s point on notice?  It is something that we intend to canvass when we discuss the section 5B ground.  Could I do it that way, your Honour?

KEANE J:   Yes, sure.

MR CHENEY:   Your Honours, just to complete the two other references in the judgment below to the findings that the negligence lay in the failure to detain, the second reference is at paragraph 154 on page 738 of the appeal book.  Your Honours, the third reference is at paragraph 178 on page 746 at about line 30, where his Honour Justice Macfarlan said that:

The basis upon which I consider the plaintiffs to have established a liability of the Health Service is that there was a failure of the Hospital to continue to detain Mr Pettigrove.

I will return to those findings later, but I thought it helpful to ‑ ‑ ‑

HAYNE J:   Just while we are at the passages you have just been taking us to, the passage at 738, paragraph 154, his Honour speaks of:

the risk of harm . . . that I have identified –

I think, but correct me if I am wrong, that that risk of harm is identified at 737, paragraph 149, as encompassing both “minor” harm and “serious” harm.  Is that right, or I am wrong?

MR CHENEY:   Yes, your Honour, and indeed, at another point in the judgment, earlier in the judgment, an even wider prescription of the risk at paragraph 110 on page 725, where his Honour says – this is at about line 10:

However, the risk to be assessed was in fact the risk of any harm to Mr Rose (not simply his death) and the harm in my view included harm that Mr Rose might suffer as a result of Mr Pettigrove attempting to harm himself.

Such a prescription, your Honour, would perhaps contemplate harm suffered by Mr Rose by reason of Mr Pettigrove verbally abusing him during the trip, so wide is that prescription.

FRENCH CJ:   Now, at some point will you be addressing the extent to which the duty of care posited in its various forms is consistent with the constraints on continuing detention imposed by the Act?

MR CHENEY:   Yes, your Honour.  That is, indeed, a significant part of our argument.  Would that be an appropriate time to ask your Honours to go to the Mental Health Act?  Your Honours will hopefully have an annexure A to our submissions, a bundle of applicable statutory provisions.  Your Honours will see they are paginated in the top right‑hand corner.  Your Honours, the Act is now repealed, but for completeness, by annexure B to our submissions, we have provided the comparable statutory provisions in the current mental health legislation.

Your Honours, at page 2 of the annexure, your Honours find in Chapter 2 the objects of the Act are set out in section 4.  Your Honours will see in subsection (1)(c) one object of the Act is to facilitate the provision of hospital care for mentally ill or mentally disordered persons:

on an informal and voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis –

Your Honours in subsection (1)(d) the objective is expressed to be:

while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care.

Further, your Honours will see in subsection (2) the express intent of Parliament was that:

the provisions of this Act are to be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act is, as far as practicable, to be performed or exercised so that:

(a)persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, and

(b) . . . any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self‑respect are kept to the minimum necessary in the circumstances.

Your Honours, pausing there, may we flag two matters in respect of the objects of the Act as they are there set out in section 4.  The first is this, that section 4, as we submit, an early and but one example of provisions in the Act from which may be discerned an intention that there be detention only as a last resort and that the autonomy and individual liberty of the patient is to be given primacy, and, your Honours, on our list of authorities we have included a reference to Hunter Area Health Service v Presland 63 NSWLR 22. At page 100 of that judgment in paragraph 296, Justice Sheller said of this same Act that it is:

directed to enabling detention only as a last resort.  I doubt that the policy behind the statutory provisions contemplates or permits a party to recover damages because a medical superintendent has refused to admit the claimant to a hospital as an informal patient albeit that the decision to refuse was a negligent decision.  This “would have a tendency to discourage the due performance” by the statutory authority and medical superintendents of their statutory duties –

Poignantly, perhaps, your Honours, on page 101, his Honour went on in the middle of the page to say that:

There is no reason whatsoever to doubt that persons working in a psychiatric hospital would be applying their best endeavours to the care of those who come to the hospital.  From time to time, things go wrong.

The second point we would make, your Honours, about the objects of the Act as they are set out in section 4 and as we set out in paragraph 48 of our written submissions, contrary to the view taken by Justice Macfarlan below, the objects of the Act do not include the protection of the public or any individual other than the patient.  The Act does not, in terms, propound a need for such protection as a ground permitting the exercise of the power of involuntary detention.

HAYNE J:   Why is that so given the provisions of 9(1)(b)?

MR CHENEY:   Because, your Honour, the proper way, we submit, to read 9(1)(b) is as Justice Garling below, in dissent, read it.  That reference in 9(1)(b) to “the protection of others from serious harm” is a reference designed to inform the assessment of whether a person is mentally ill.  That is the only occasion that that phrase appears in the Act and it is for the – for want of a better term – definitional purpose of identifying a person as mentally ill.  As Justice Garling explained, thereafter, the entirety of the Act is devoted to the treatment of that person – the mentally ill person – and there is no hint that a concern for the welfare of the public informs any part of the considerations that ‑ ‑ ‑

HAYNE J:   I think that the argument against you may possibly emphasise the chapeau “care, treatment or control” is necessary for protection of others.  What is the answer to that?

MR CHENEY:   Well, in my submission, the answer is that the section requires the medico to make an assessment whether a person satisfies those criteria, that is, that his detention is necessary for the protection – I am sorry, the care, treatment or control of the person is necessary for, among other things, protection of others from serious harm.  If the medico makes that assessment, the person is regarded as mentally ill and the subsequent sections of the statute kick in to dictate how that person is to be managed.

KEANE J:   They operate even though there has been a view formed that the person does require control for the protection of others.

MR CHENEY:   Yes, your Honour.

KEANE J:   So even though that view has been breached, they operate on that footing.

MR CHENEY:   That is so.  Indeed, to demonstrate the point, one of the obligations on the hospital in respect of a person regarded as mentally ill is to discharge that person into the care of others if that care meets the statutory test, that is, appropriate care, reasonably available, less restrictive.  When the sections, which we will come to, dictate to the superintendent that the superintendent must discharge the patient in that circumstance, the sections do not invite an inquiry by the superintendent as to whether, in doing so, there will be any risk to others – whether there will be any breaching of the protection of others from serious harm.

HAYNE J:   Whether or not that point is good, I suspect that the point is that the bare determination that a person is mentally ill does not dictate the result that the person must be confined, and that is perhaps enough, I do not know.  We will see as the argument goes.

MR CHENEY:   It is a necessary condition of detention, but it is by no means sufficient.

HAYNE J:   Yes.

MR CHENEY:   Your Honours, whilst we are in the territory of section 9, I should also make the point that a similar but not identical prescription appears in section 10(b), and for reasons we have been unable to ascertain, that section speaks of “the protection of others from serious physical harm”, whereas section 9(1)(b) speaks only of “serious harm”.  Why the distinction we cannot assist.

GAGELER J:   Is it accepted that section 9(1)(b) was engaged in this case?

MR CHENEY:   Well, it is – I am sorry, your Honour, there was no evidence that the decision to treat Mr Pettigrove as a mentally ill person was based in any way on a concern about the protection of others from serious harm, that certainly did not inform the certification of him as a mentally ill person, it was the consideration in paragraph (a).  Your Honours, we have spoken of sections 9 and 10, I intended to take your Honours briefly to section 8, which makes plain that the person is only “a mentally ill person or a mentally disordered person” if that “person satisfies the relevant criteria set out in this Chapter”, and that relevant criteria is the criteria in sections 9 and 10.  To pick up your Honour Justice Gageler’s point, your Honour will see that subsection (1)(a) and (1)(b) are alternatives, that either of those criteria can qualify a person to be regarded as a mentally ill person, it is not necessary to have both.

Your Honours, section 11 on page 4 of our bundle gives some further direction to those charged with determining whether a person is mentally disordered or mentally ill, but we do not draw anything of relevance from that section.  Your Honours, Part 2 of Chapter 4 commences on page 5 of the bundle at section 20, and this is the part of the Act that is dealing with the treatment of a person who has been found to be a mentally ill person.  It deals with the involuntary admission and detention of such persons.  We deal with these provisions in paragraphs 39 to 41 of our written submissions on page 6.  Section 20 reiterates what we would call the detention as a last resort theme seen earlier in the objects provisions because the section mandates that:

A person must not be admitted to, or detained in . . . a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.

Section 21 provides for the detention of the person in a hospital “on the certificate of a medical practitioner” if the certifying practitioner, in addition to examining the patient - subsection (1)(b):

is of the opinion that the person is a mentally ill person . . . 

(c) . . . is satisfied that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary -

and we say that reiterates the detention as a last resort theme and then lastly, the examining medico must not be a relative of the patient, subsection (1)(d).  Your Honours, pausing this, the section 21 certificate in this case is seen at page 249 of the appeal book in volume 1.  Your Honours see the two pages comprise the section 21 certificate.  The evidence was that this was completed by the duty registrar who was on duty at three in the morning when Mr Pettigrove was brought in by ambulance and there was evidence that that registrar phoned Dr Coombes at home and discussed the patient and then admitted the patient as an involuntary patient by the completion of this form.

Your Honours, if I may return to the sections - it was my intention to do as I just did and, as we go to each section that generates a certificate, to take your Honours to the certificate or document that relates to it.  The next relevant section is section 28 on page 7 of our bundle which provides, regarding the refusal to detain, that:

The medical superintendent must refuse to detain a person under this Division if the medical superintendent is of the opinion that the person is not a mentally ill person or a mentally disordered person.

That would seem to be a trite thing for the Act to provide but it nevertheless supports our detention as a last resort as being the theme of the Act, the scheme behind the Act.  Section 29 then provides that:

(1)A person taken to and detained in a hospital under this Division must be examined, as soon as practicable (but not more than 12 hours) after the person’s arrival at the hospital, by the medical superintendent.

(2)A person must not be detained . . . unless the medical superintendent certifies that, in the opinion of the medical superintendent, the person is a mentally ill person -

Your Honours will note the mandatory language in subsection (2) that the person must not be detained unless the superintendent is satisfied as to his psychiatric status.

Section 29 provides what Justice Garling described as one of the prescriptive checks and balances, that is a reference to something said by Justice Garling at page 762 of the appeal book, because it requires that there be, within 12 hours of the patient’s initial detention at the hospital, a second opinion, that is secondary to the opinion of the medico who first admitted the patient, provided again by way of certificate and this time by the medical superintendent as to whether the person is mentally ill or mentally disordered.

Your Honours, the section 29 certificate in this case is seen at page 245 of the appeal book.  The superintendent was a Dr Kay Wu as the Court of Appeal found, page 689 of the appeal book.  Your Honours see on page 245 at about line 15 that Dr Wu has ticked the box that this is a certificate of the superintendent “under section 29 of the Act”.  At about line 41 she has recorded her opinion that Mr Pettigrove was “a mentally ill person”.  Your Honours if we may, then, return to the sections?

HAYNE J:   I rather suspect Mr Toomey will take us to 246.

MR CHENEY:   Yes, your Honour.  I do not suggest – it would be a rare case if it was all one way – but I do not suggest ‑ ‑ ‑

FRENCH CJ:   The harm to others was in part, in some of the evidence, based upon a concern of what you might call collateral damage in suicidal action.  Is that right?

MR CHENEY:   Yes, your Honour.  Such history as there was of Mr Pettigrove attempting self‑harm was very limited.  It related to one incident where he had left a psychiatric facility and was seen on a busy road attempting to throw himself in front of a car – a truck.

HAYNE J:   Lying down on the road.

MR CHENEY:   Your Honours, sections 30 and 31 are presently not important.  Sections 32 and 33 on page 9 of the bundle deal with the yet further examination of the patient and it is helpful, perhaps, to read these two sections together before I take the Court to the certificate that was issued by Dr Coombes, pursuant to the latter section – section 33.  Section 32(1) provides that:

If the medical superintendent has –

as occurred here -

under section 29, certified that a person is a mentally ill person or a mentally disordered person, the medical superintendent must, as soon as practicable after certifying the person, cause the person to be examined by another medical practitioner who is, if the medical superintendent is not a psychiatrist, a psychiatrist.

Subsection (2) provides that:

If the medical superintendent of a hospital. . . did not, under section 29, examine the person . . . the medical superintendent may –

perform the examination contemplated by this section.  Subsection (3) is irrelevant on the facts of this case but it may be regarded as a tie‑breaker section because:

If the medical practitioner who examines a person under subsection (1) is of the opinion that the person is not a mentally ill person –

that is, contrary to the view of the superintendent under section 29, then -

the medical superintendent must . . . cause the person to be examined by a –

yet further medical practitioner.  That did not occur here, of course.  Subsection (4) provides that:

A medical practitioner on whose certificate or request a person has been admitted to a hospital may not examine the person for the purposes of this section.

Your Honours, section 33(1) provides that:

If after examination under section 32 by a medical practitioner of a person taken to and detained in a hospital the medical practitioner is of the opinion that the person is a mentally ill person . . . the medical practitioner must advise the medical superintendent accordingly in the prescribed form.

Your Honours, here, the further examination required by section 32(1) was conducted by Dr Coombes, a psychiatrist.  Dr Coombes formed the opinion that Mr Pettigrove was a mentally ill person, and in accordance with subsection (1) of section 33, advised the medical superintendent that he held that opinion, and he did so in the prescribed form.  That is seen at pages 247 and 248 of the book.  Your Honours will see on page 247 at about line 49 Dr Coombes ticked the box to indicate that in his opinion Mr Pettigrove “is a mentally ill person”.

Your Honours, returning to the statute, section 34 makes plain the matters that the medicos must take into account in forming opinions under section 29 and 32, or at least may take into account; that is, in addition to their own observations of the patient, they may take into account “any other available evidence” they consider “reliable and relevant” in forming the opinion that someone is “mentally ill” or “mentally disordered”.  Section 35, and particularly subsection (3), is important.  Section 35(1) provides that:

A person who has, under section 29 –

as Mr Pettigrove was here, been certified as mentally ill – I am sorry, your Honours, who has –

on examination under section 32, been found to be a mentally ill person –

as Mr Pettigrove was here –

must not be detained in the hospital for a continuous period –

I am sorry, I should withdraw that.

HAYNE J:   Section 35(1) does not ‑ ‑ ‑

MR CHENEY:   Yes, I am sorry, your Honours.  Subsection (1) does not bite here because Mr Pettigrove was neither of those things.  Subsection (3) is important because:

If, on examination of a person detained as . . . a mentally ill person, a medical superintendent is of the opinion that the person is not a mentally disordered person or a mentally ill person or –

and we emphasise “or” –

that other care of a less restrictive kind is appropriate and reasonably available to the person, the person must not . . . be further detained –

Your Honours, the case at trial of the appellant/defendants was that Dr Coombes’ actions in discharging the patient into the care of Mr Rose for the purposes of taking him back to the family home in Echuca were mandated by section 35(3) for the reason that Dr Coombes formed the opinion that Mr Pettigrove, a mentally ill person, had other care of a less restrictive kind that was appropriate and reasonably available to him.

KEANE J:   Does it matter that Dr Coombes was not the medical superintendent?

MR CHENEY:   Can I deal with that question, your Honour, when I come to deal with the basis on which Justice Macfarlan held the discharge unauthorised, which is a matter that emerges in the context of our section 43A submissions?

KEANE J:   Because the case against you is not one of vicarious liability for Dr Coombes, it is liability on the part of the authority.

MR CHENEY:   Yes, your Honour.  May I briefly take your Honours to some later sections of the Act before finishing this and addressing firstly on duty?  Section 38 on page 11 of the bundle, your Honours, provides that:

A medical superintendent must, after receiving advice under section 33(1) –

and that is the Dr Coombes section 33 certificate –

that a person is a mentally ill person –

must –

bring the person before a Magistrate as soon as practicable.

We say that section is important in respect of a number of grounds.  What seems to have been assumed by Justice Macfarlan in finding that the breach lay in failing to detain Mr Pettigrove, and that that failing did not attract the protections of section 43 or 43A, is that that further detention could be achieved by doing nothing.  Our point is that if, contrary to Dr Coombes’ actions, he had decided that Mr Pettigrove should be further detained, he could not do nothing.  He had to get the medical superintendent to bring the person before a magistrate as soon as practicable.  So that if it be right that there was a negligent failure to detain, then that can only be, in our submission, a failure to exercise the statutory power to detain, that as its origins in sections 20, 21, 28 and 29 and 32 and 33, and continues through section 38.

KEANE J:   Is that relevant to your 43A argument?

MR CHENEY:   Yes, your Honour, and indeed for the section 43 argument as well.  Section 40, your Honours, calls for the termination of detention where:

at any time before a person is brought before a Magistrate under section 38, the medical superintendent is of the opinion . . . 

(b)that other care of a less restrictive kind is appropriate and reasonably available –

So that it seems to be the scheme of the Act that although required by section 38 to bring the patient before a magistrate, if in the interim period before you get him to the magistrate the superintendent forms the opinion that there is other care available, then the detention must be ceased, the person must be released from detention.

BELL J:   Perhaps part of this scheme – taking up your point respecting the magistrate’s inquiry – is that the object of that inquiry is to determine whether the magistrate is satisfied on the balance that a person is mentally ill.  That is the function of the inquiry as distinct from some consideration of protecting third parties.

MR CHENEY:   Yes, your Honour.  Even that section does not require the magistrate to have regard to the protection of the public in conducting that inquiry.  It seems that the purpose is to have at least some judicial oversight of the decision to detain a patient so that it is not entirely left in the hands of the medicos.  Your Honours, section 51, which is on page 13 of our bundle, deals with the results of a finding by the magistrate that a person is mentally ill and, significantly, we submit, subsection (2) provides that:

The Magistrate may order the discharge of the [mentally ill] person to the care of a relative or friend who satisfies the Magistrate that the person will be properly taken care of or order such other course of action in respect of the person (including a community treatment order0 as the Magistrate thinks fit.

So, again, the concern that informs the magistrate is the welfare of the patient.  Then, your Honours, subsection (3) provides that if the magistrate forms the view that there is no appropriate care available outside the hospital system:

the Magistrate must direct that the person be detained in, or admitted to and detained, in a hospital specified in –

the order.  So we say of all those provisions that the theme is that detention is one of a last resort and that at all time the medicos would be motivated by finding more appropriate care outside.

FRENCH CJ:   That ultimately reduces to the proposition, I think, in a chapeau at paragraph 4 of your outline, that the constraints on the, as it were, discretion to detain, are inconsistent with the superimposition of the duty of care which you postulate in this case.

MR CHENEY:   Yes, your Honour.  That is the point.  It may at first blush seem to be an odd or an unusual conclusion that the welfare of the public at large is not an object of the Mental Health Act, but if one stands back and puts oneself in the position of the medicos they would be cast in an impossible position if, on the one hand they were to give primary concern to the welfare of the patient and yet be constrained by, at every turn, the further inquiry whether if I discharge this person into the care of a friend or relative, or indeed, into the care of his treating - treators in another facility, that something untoward may befall the public by reason of that person’s discharge.  It would put the medicos in an impossible position, in my submission, and that ‑ ‑ ‑

KEANE J:   Well, it would put them in an impossible position or it would mean that their decision‑making would be affected ‑ ‑ ‑

MR CHENEY:   And conservative, yes.

KEANE J:    ‑ ‑ ‑ and the default position would be to detain.

MR CHENEY:   Yes, your Honour.  Your Honours, before leaving the sections, might I flag that the reason we flag sections 38 and 51 here is in order to foreshadow a point that we develop in respect of the section 43A question, namely, this.  As we have seen the basis of the appellant’s liability was found by the majority below to be its failure to continue to detain Mr Pettigrove, detention and continued detention as an involuntary patient was only permitted by the Act, including by the hospital doing that which is mandated by section 38, that is, bringing the person before the magistrate as soon as practicable, and that, in our submission, supports the conclusion of Justice Garling that is at page 773 of the appeal book at about line 60 that:

the essence of liability in this case must arise as a consequence of a failure by the Hospital through the medical superintendent to exercise the special statutory powers.  Such a failure, or omission, is caught by s 43A of the CL Act.

Hopefully, without repetition, will return briefly to that point when we address the section 43A grounds but I flag that that is where we are heading in taking your Honours to sections 38 and 51.

Your Honours, may I then with that introduction perhaps turn to the first of the appeal grounds regarding the question whether mental health authorities can owe a duty of care to third parties in the exercise of statutory powers to detain and discharge?  It is well settled, at least, and reaffirmed in Graham Barclay Oysters that the common law will not ordinarily impose a duty of care upon a statutory authority to protect another from a risk of harm unless the authority has created the risk.  It is equally well settled that a statutory power vested in a body including, relevantly, the power vested in the appellant by the Mental Health Act to detain, the exercise of which could prevent harm to persons, is insufficient to impose a duty of care to those persons, and we cite Graham Barclay Oysters at paragraph 81 and Kirkland‑Veenstra at paragraph 112.

According to the majority decision, the duty that was said to be owed to the third party, Mr Rose, involved no inconsistency with the Act, and that was so because – that was so regardless of whether the duty was, as Justice Macfarlan put it at paragraph 101 of the judgment which is at page 722, that is a duty to:

take reasonable care to prevent Mr Pettigrove inflicting harm on Mr Rose –

or the different more narrowly framed duty posited by the President being a duty:

not to release Mr Pettigrew, who was a mentally ill person, into Mr Rose’s care, or at least his sole care, for the purposes of conveying him to Victoria where it was intended or, at least, expected that he would undergo further psychiatric treatment. 

That is how the President framed the duty which her Honour said was narrower than the duty as was framed by Justice Macfarlan and that is found at paragraph 2 of the Court of Appeal’s judgment at page 677.

HAYNE J:   Now, a possible point of view would be, founded on what I said in CAL No 14 v Motor Accidents Insurance Board 239 CLR 390, particularly in the penultimate paragraph of the judgment at page 418, paragraph 68, that there is a difficulty in framing the duty in terms that are specific to the events which are said to constitute the breach. The difficulty is that the duty of care which is necessarily prospective is cast in terms that are wholly retrospective, but that was a lone statement. Mr Toomey will tell me it was crying in the wilderness.

MR TOOMEY:   I would not dare, your Honour.

HAYNE J:   Well, I will say it for you, Mr Toomey, but there is under that a question of principle about the way in which we should properly formulate the relevant duty of care.  Is it right to formulate it prospectively, a duty to take reasonable care in the exercise of the statutory powers to detain or discharge, to do something?  What, to protect against the risk of, I would have it, psychiatric injury being sustained by relatives of the person in whose company the patient is discharged?  Now, is that the proper formulation of duty, looking ahead, or is it right, as the President appears to have framed it, to look backwards at what has happened and identify the duty by reference to the breach?

MR CHENEY:   Your Honours are familiar with the notion that the inquiry descends from the general to the specific as one moves from a consideration of the duty to a consideration of breach, so that – and a point we make in connection with our section 5B challenge is that the way that the majority framed the risk of harm in this case, for the purposes of postulating the duty, and for the purposes of section 5B was to take – was too high a level of generality, as Justice Garling described it, and was to fail to recognise that it was necessary to descend into the specific, that is, to have regard to what in fact befell the victim – the plaintiff – for the purposes of determining the 5B inquiry as to what ought to have been the reasonable precautions that one would take against that risk.

The answer to your Honours question, in my submission, must be that the duty must be answered by a prospective – the duty must be framed by reference to a prospective inquiry, that is, without the benefit of the knowledge of what, in fact, befell the plaintiff.

GAGELER J:   So are we concerned with a putative duty to take reasonable care in the exercise of the statutory power to release so as to avoid what psychiatric injury to a person who might be a relative of a person who is killed by the person released?  Is that the nature of the duty we are concerned with?

MR CHENEY:   It is hard for me to say that that is the position that we should be concerned about today in circumstances where at trial and below the argument was confined to Mr Rose’s position and not by reference to the foreseeability of the plaintiffs suffering psychiatry injury if they learned of his death, but perhaps with time to run the case again we might take a different approach.

The short point, I think, that we make about the manner in which Justice Macfarlan framed the duty was that he did so without even any express or, indeed, implicit reference to the exercise of powers.  The duty, as his Honour framed it, was at 101 of the judgment:

a duty . . . to take reasonable care to prevent Mr Pettigrove inflicting harm on Mr Rose –

There was not even, with respect, a suggestion that that was a duty to take reasonable care in the exercise of the statutory powers, or a duty to take reasonable care having regard to the constraints on the appellant imposed by the Act.  It was simply and baldly put that the duty was to take reasonable care to prevent Mr Pettigrove inflicting harm on Mr Rose.

FRENCH CJ:   The way that has been framed, having regard to questions put to you earlier by Justice Hayne, is that within the framework of the concession, that duty is a necessary condition of the duty of care to the plaintiffs and you say the necessary condition was not satisfied?

MR CHENEY:   Yes, your Honour, and we say so for a number of reasons that we have put in the propositions document.  Your Honours, I think it is important, in my submission, to ‑ ‑ ‑

HAYNE J:   Just staying with 101 of the reasons of Justice Macfarlan at 722, the words “to prevent” are the words which engage the statutory power.  The only means the hospital had of prevention was under the Act.

MR CHENEY:   Detention under the Act, yes, your Honour.  That, with respect, is an aspect of this case that does not find any currency in Justice Macfarlan’s reasoning, in our respectful submission.  Your Honours, Justice Macfarlan described the postulated duty as consistent with the statute; this is at paragraph 104, your Honours see at about line 15 on page 723.  That was so according to his Honour because the definition of “mentally ill person” in section 9 used the phrases we have discussed, the “protection of others from serious harm”.  Just to complete that point, and your Honour Justice Hayne raised that with me earlier, as Justice Garling reasoned at the top of page 761 of the appeal book, the only occasion that the phrase appears in the Act is in section 9, and it is only as a means of determining whether a person is a mentally ill person, and thereafter the Act is concerned with the treatment of that mentally ill person.

Your Honours, staying on page 761 of the judgment of Justice Garling, at paragraph 233, his Honour referred to the very limited circumstances in which involuntary detention is permitted, and to the fact that it is limited to the situation:

where it is necessary for the effective treatment of the mentally ill person.  In those limited circumstances, the protection of others from serious harm, is . . . not the aim or purpose –

of the power.  Your Honours, may we return briefly to section 4 to make good this point that the object provisions – it is subsection (2) to which to which I took your Honours earlier on page 2 of the bundle - the stipulation in subsection (2) that:

It is the intention of the Parliament that the provisions of this Act are to be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act, is, as far as practicable, to be performed or exercised so that:

(a)persons who are mentally ill . . . receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, and

(b)in providing for the care and treatment of persons who are mentally ill . . . any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self‑respect are kept to the minimum necessary in the circumstances.

So that if there be room at the margins for arguing that because section 9(1)(b) speaks of the protection of others from serious harm that should be taken to inform – or that one may interpret the Act to have the protection of others from serious harm as one its objects – we would respectfully refer back to section 4(2) and reiterate that that section has the Parliament making plain its intention that primacy is to be given to the liberty of the patient.

FRENCH CJ:   But the insertion in the definition of “mentally ill persons” of “control for the protection of others from serious harm” would not be irrelevant to the question whether care of a least restrictive kind is appropriate and reasonably available.

MR CHENEY:   I accept that, your Honour, yes.

BELL J:   Is the point you are making that at the magistrate’s inquiry, if there were a concern on the part of the medical staff that the mentally ill person represented a risk to others that would be viewed as going to the question of the conclusion that a less restrictive form of provision for the mentally ill person was not appropriate and, accordingly, detention justified.  The inquiry would never focus on the protection of others as the focus. 

MR CHENEY:   Indeed, your Honour, a strict adherence to the Act would, in my submission, have the magistrate not consider the protection of others in the mix in determining where the best interest of the patient lay.

BELL J:   But in the conclusion that the patient was mentally ill ‑ ‑ ‑

MR CHENEY:   Yes.

BELL J:   ‑ ‑ ‑ and that no less restrictive treatment bar detention was the appropriate course, the magistrate would have regard to that circumstance – that is, the risk to others.

MR CHENEY:   Well, certainly, the first part of the proposition, your Honour, must be correct, that is, the magistrate in forming the opinion that the person is mentally ill as a magistrate must do under section 51 – hold the inquiry for that purpose.  In my submission, the magistrate is required to apply the same considerations as inform the section 9 and section 10 determination, at least the determination under section 20, that, pursuant to section 9 or 10, the patient is a mentally ill person.  Again, those sections only operate to permit the categorisation of the patient.  In the next question as to what should be – how should the patient be dealt with – a concern for the welfare of the public is not an issue that can be brought to bear.

Your Honours, I have perhaps laboured this point about the inconsistency between the statutory provisions and the postulated duty but it is a distiller to a single proposition.  It is this, that the hospital’s statutory obligations owed to Mr Pettigrove to discharge him if not mentally ill or, if still mentally ill, to cease his detention if other care of a less restrictive kind is appropriate and reasonably available, that obligation, or those obligations, conflict with the duty to prefer Mr Rose’s interests by detaining Mr Pettigrove as an involuntary patient for Mr Rose’s protection.  That is the inconsistency point that we make.  May I next ‑ ‑ ‑

HAYNE J:   Well, I note with interest that neither side has referred to Sullivan v Moody.  Is not that the case that we need to consider in determining whether a relevant inconsistency arises - Sullivan v Moody (2001) 207 CLR 562 where the inconsistency identified in that case, at page 582, paragraph 60, is identified when the Court said:

if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists.

Now, do you go so far as to say that inconsistent obligations would arise?

MR CHENEY:   We do, your Honour, yes.

HAYNE J:   What are those obligations that would arise that would be inconsistent?

MR CHENEY:   They are these.  If one has regard to the several places in the Act in which the reference is made to other appropriate care being reasonably available and of a less restrictive kind, that obligation, that is to avail the patient of that care, can be inconsistent with the notion that in coming to the view that that other care should be available, or the patient should be released to that other care, that that may bring people with whom the patient interacts in the community into a risk of harm.

If there is a duty on a mental health authority to have regard to the welfare of the public at large or any particular member of the public on the one hand, whilst discharging a statutory duty to discharge a patient into the community, the conflicts ‑ ‑ ‑

HAYNE J:   I suspect an argument against you might be expressed in these terms, that you can give content to the notion of less restrictive means of treatment only by having regard to what may happen if discharge occurs and I suspect the argument then has to go down a path of saying that well, that is consistent with having regard to the likelihood, the foreseeability of what kinds of risk are going to happen if this patient is discharged from compulsory detention.  Now, what answer do you make to that kind of argument, which is pretty poorly articulated?

MR CHENEY:   Your Honour, if I understand your Honour’s contrary proposition correctly, the topic is or the question is whether, in the duty as postulated by Justice Macfarlan, that such a duty on the hospital could give rise to obligations inconsistent with those under the statute.  The answer can only be, in my submission, that given that the welfare of the patient is so clearly given primacy by the various provisions to which we have been through this morning then a concern in the decision or the need for the medico to weigh into the discharge decision the prospect that there may be harm to someone encountered whilst the patient is released into that care would see the hospital in almost every case take the conservative approach referred to in Presland of preferring detention over release.

HAYNE J:   Well, that prays in aid what is said in paragraph 62 in Sullivan v Moody and no doubt we will hear what Mr Toomey has to say about paragraph 62 of Sullivan v Moody when he addresses.

KEANE J:   Of course, the lower the risk or the lower the seriousness of the risk of harm comes into this as well in terms of what is appropriate treatment of a less restrictive kind that is reasonably available.  If one says that the relevant risk here was a risk of any harm at all to anyone who came in contact with Mr Pettigrove because there might be an outburst or he might strike out and assault someone, one could readily see that in the sort of judgment that has to be made under 35(3) one could readily say that an obligation to detain in order to prevent anything happening at all, which is in fact the duty that was found against your side here, is inconsistent with the possibility of appropriate and reasonably available treatment in the community because there is always the possibility of mentally disordered people coming into contact with their fellow citizens.

MR CHENEY:   Yes, your Honour, and I think as Justice Hayne said in Romeo, that almost any adverse outcome is conceivable if one ponders ‑ ‑ ‑

KEANE J:   Well, it is the problem with hindsight, is it not?  If it has happened, of course it is foreseeable.  It is happened.  How can one not foresee it?

HAYNE J:   It would entail that the paranoid schizophrenic exhibiting symptoms could never be discharged ‑ ‑ ‑

MR CHENEY:   Yes, your Honour.

HAYNE J:   ‑ ‑ ‑ because if the paranoid schizophrenic is exhibiting symptoms ‑ ‑ ‑

MR CHENEY:   Well, what has to be borne in mind, in my respectful submission, in all of these debates is the fact that we are dealing with a patient who has been labelled – he was regarded by the medicos as mentally ill.  We are not dealing with a patient who was at one point mentally ill but has been medicated down to a balanced position and no longer suffers from that condition and is fit for discharge.  This is a patient known by the medicos to be mentally ill but because the Act requires that less restrictive care be available if available, that medicos are forced to discharge.

KEANE J:   It is not just this case.  Here, we have a case where the medical – the forms that were signed all identify suicidal ideation and the risk of suicide as a problem.  One can readily see that if Mr Pettigrove were released in those circumstances and then committed suicide, as indeed he did, there would be an argument against you that – by his family, for example – there was a duty owed to them not to release him because of that risk that he might harm himself, notwithstanding the pretty clear intention of the Act that that should not occur.

MR CHENEY:   Whilst hypothesising about these things, your Honour, a further conceivable outcome may be had Mr Pettigrove been detained, as the plaintiffs would have it, here ought to have occurred in circumstances where his mother wanted his return and Mr Pettigrove expressed a desire to be back with his mother, had Mr Pettigrove hanged himself whilst in the hospital we would be confronted with a complaint that we negligently failed to discharge –negligently failed to ‑ ‑ ‑

KEANE J:   Well not negligently – in breach of your statutory obligation.

MR CHENEY:   I am sorry, yes.  Your Honour Justice Hayne mentioned that neither party had invoked Sullivan v Moody but may I just – footnote 18 to our submissions on inconsistency, paragraph 42 of our written submissions does pick up that very paragraph.

HAYNE J:   I am suitably reproved.

FRENCH CJ:   It is under a cabbage.

MR CHENEY:   Your Honours, could I next address what has been described as a salient feature of the relationship, namely these next questions of control and the indeterminacy of the liabilities thrown up by the postulated duties?  We deal with this topic in paragraphs 50 to 52 of our written submissions.  Your Honours, a further basis on which we submit that a duty as postulated by Justice Macfarlan and the narrower duty favoured by the President ought not to have been held is that the indeterminate nature of the liabilities thrown up by such a duty, including as to its duration and whether its duty would be confined only to the road trip back to Victoria or extend to any other situation which Mr Pettigrove and Mr Rose might have come together post‑discharge.

These difficulties of control and indeterminacy are, in our respectful submission, exposed by paragraphs 242 and 243 of Justice Garling’s reasoning at page 763 of the book.  Could I ask your Honours to turn up those paragraphs, only for this purpose?  We cannot, with respect, improve on those words, that is paragraphs 242 and 243, to demonstrate the unanswered questions that are thrown up by the postulated duty.  The duty itself or at least the consideration of the duty in Justice Macfarlan’s judgment does not – and the President’s judgment – does not wrestle with any of the questions that Justice Garling poses and may we say, with respect, nor do the respondent’s submissions to this Court address those questions at all.

Your Honours, we say that those very questions give rise to similar considerations as informed the rejection of a duty in respect of prison authorities in New South Wales v Godfrey.  Although Godfrey was distinguished by Justice Macfarlan in paragraph 101 of his judgment - this is at page 722 of the book - the distinguishing feature was said to be the fact that in Godfrey the escapee’s victim was not known to him but simply encountered during his flight.  But as we put in paragraph 49 of our submissions, there is no principled reason for confining the duty only to Mr Rose and not, for example, as Justice Garling hypothesised, a hitchhiker or other members of the public who might foreseeably be encountered by the pair en route to Victoria, if not later.

Your Honours, we deal next with a further matter relevant to the question of duty, namely vulnerability, in paragraph 54 of our written submissions where we put it that Mr Rose, contrary to Justice Macfarlan’s finding about this, was not relevantly vulnerable.  We do not propose to say more about that today unless your Honours need us to. 

May we lastly say on the question of duty, your Honours, that the collection of matters that militate against there being a duty emphasise a point that we make in paragraph 45 of our submissions and a point that is canvassed in some detail by Justice Garling in paragraphs 247 to 252 at page 765 of the appeal book, and this is by reference to Smith v Leurs and Modbury and others that regarding the exceptional nature of the duty to prevent harm to others, that is, that it is exceptional to impose a duty to prevent harm to others and particularly so in respect of harm that is occasioned by unlawful acts.

KEANE J:   Well, it depends on whether or not the party said to owe the duty controls the source of the risk, and in this case the extent to which the hospital authority could be said to control the risk is resolved by the terms of the legislation.

MR CHENEY:   Yes, your Honour.  A point we make in our written submissions is that once discharge was mandated by subsection (3) of section 35, because other care was identified by Dr Coombes, we lost all control over Mr Pettigrove.  We may well, as Justice Macfarlan found, had control over his actions whilst he was admitted to our hospital, but after discharge there was no control, and absent the capacity to control, a duty will not exist.

HAYNE J:   Let it be assumed against you that the detention of Mr Pettigrove was brought to an end otherwise than by the processes prescribed by the Act.  How, if at all, does that bear upon the existence or not of a relevant duty of care?

MR CHENEY:   Your Honour, our submission is that it would not bear upon, or at least not operate to impose a duty that was not otherwise there.  We exist because of the statutory provisions.  We have our powers sourced from the statutory provisions.  If we fall, for whatever reason, in something that was not authorised by those provisions or fail to conform to the requirements of the provisions affecting Mr Pettigrove’s discharge, that fact would not inform in any way the question whether we owed a duty of care, in my submission.

Your Honours will remember I said that what he was suing for was being locked up by reason of his being released while in a state of psychosis ‑

Pertinent to the present case, his Honour went on to say:

“29  If this were a case involving self‑inflicted or accidental harm to the Respondent that arose from his mental illness or disorder, or if this were proceedings by a third party who had suffered harm at the hands of a mentally ill or disordered person, then it would fall within the intended sphere of protection to which the statutory provisions expressly relate . . . For this reason, one matter which may otherwise be entitled to considerable weight in the determination of whether a duty of care should be imposed with respect to the statutory relationship does not have such weight.”

That is because, of course, there was no physical injury to the claimant in that case.  At paragraph 94 on the next page, Justice Macfarlan said:

Contrary to the Health Service’s submissions, the decision in Presland in my view provides support for the existence of the duty alleged by the plaintiffs in the present case.

He goes on in 95:

It is apparent from the passages quoted above, that the majority judgments treated as critical the nature of the harm suffered by the plaintiff which, unlike that in the present case, could not be regarded as serious physical harm in the sense referred to in ss 9 and 10 of the now repealed Mental Health Act.  Santow JA specifically contemplated, without deciding, that his decision might well have been different in a case such as the present.  Spigelman CJ went further by stating that a case such the present, where serious harm has been inflicted on a third party, would fall within the “intended sphere of protection to which the statutory provisions expressly relate” . . . On his Honour’s analysis, the factors of control and vulnerability would in the present case, as they did in Presland, weigh in favour of the imposition of the asserted duty and the factor of coherence would not point against it to any significant degree.

His Honour then pointed to what Justice Sheller said at paragraph 292 of that judgment, which was read to your Honours by my learned friends.  Justice Macfarlan went on at paragraph 96 on 720:

An important aspect of Sheller JA’s reasoning was his concern that limits that could not sensibly be imposed on a defendant’s responsibility if a duty of the type alleged in that case were found to exist -

I think there is an extra “that” there –

This is the concern of indeterminacy to which Cardozo J referred in Ultramares Corporation v Touche . . . potential liability “in an indeterminate amount for an indeterminate time to an indeterminate class” –

His Honour went on:

This concern is not in my view applicable in the present case as the plaintiffs’ claim arises out of harm being suffered by a specific individual, Mr Rose, with whom the Hospital had direct dealings and into whose custody the Hospital released Mr Pettigrove.  As the primary judge found:

“76. . .The third party here is one known to the defendant and being specifically used to perform a service on behalf of the defendant, namely to deliver Mr Pettigrove to Victoria to receive ongoing care.  This situation is more akin, on the

plaintiffs’ reasoning, to a person being asked to transport a dangerous prisoner without precautions being taken to ensure that the prisoner could not harm the person undertaking the carriage.”

Your Honours, there is one other matter I wanted to refer to.  Your Honour Justice Keane asked me about whether there was a finding on the depot medication and I said I thought there had not been.  There is material at paragraph 147 on page 736.  It is part of Justice Macfarlan’s conclusions on breach of duty but it does touch directly on the depot medication.  On page 736, the second bullet point from the bottom:

After a psychotic episode in January 2001, Mr Pettigrove had had a further episode in February 2001 after non‑compliance with oral medication.  Regular depot injections thereafter had apparently avoided further episodes until July 2004, but by that time he had not had such injections for at least seven months.

The depot injections, which had apparently proved effective in the past, were slow acting and, due to their possible side‑effects, could not be given at the Taree Hospital in light of the intent that Mr Pettigrove and Mr Rose drive to Victoria, with Mr Pettigrove sharing the driving.  Dr Coombes agreed in cross examination that if Mr Pettigrove had been given a depot injection and it had been given time to work, the chances of something untoward happening on a road trip to Victoria would have been “vastly reduced” –

Now, your Honours, I think your Honours called on me only on the matter of – on the question of duty.

FRENCH CJ:   Yes, thank you, Mr Toomey.  Mr Cheney, in reply on that question.

MR CHENEY:   Yes, your Honour.  Two matters - in dealing first with the dicta from the Chief Justice in Presland the short submission we make is that that dicta that is set out in paragraph 29 of that judgment is just not supported by a plain reading of the provisions and to adopt the language of the Chief Justice in Presland, there is simply nothing in the Act that suggests its “intended sphere” is or includes the protection of the public from serious harm.  With great respect to Chief Justice Spigelman, the conclusion that he arrived at in Presland cannot be supported, in our submission, by a plain reading of the Act.

On that similar topic, your Honours, your Honour Justice Bell pointed out before lunch or raised the question of the considerations that must inform the magistrate’s decision under section 51 of the Act and I suggested that the magistrate must have regard to the section 9 and 10 definitions of “mentally ill person” and “mentally disordered person” because that is the same inquiry or the same task that the magistrate sets upon when conducting the inquiry.  I omitted to take your Honour to section 50 of the Act which sets out some matters that must be considered by the magistrate in the course of that inquiry.  Your Honours see that subsection (1) sets out that:

the Magistrate must consider the reports and recommendations of the medical practitioners -

Subsection (2):

the Magistrate must inquire as to the administration of any medication to the person in respect of whom the inquiry is held and is to take account of the effect of the administration of the medication on the person’s ability to communicate.

Thirdly, in subsection (3) a reference to:

the Magistrate is to have due regard:

(a)to any cultural factors relating to the person which may be relevant to the determination –

including the cultural background and the like, but notably, and I do not suggest that this section is conclusive on the matters that the magistrate must have regard to, but notably again, no reference to a concern about the public or implications for the public.

FRENCH CJ:   Thank you.

MR CHENEY:   Just one short point regarding the depot injections evidence, could I just give your Honours a judgment reference from the primary judge’s finding which we say is not disturbed.  It is at paragraphs 102 and 103 of the primary judge’s judgment at pages 630 to 631 of the appeal book.  Your Honours see there that the primary judge – this is in the context of a discussion about causation – speaks of:

The hallucinations may have been less likely to occur but that is different to a conclusion that the lack of medication caused Mr Pettigrove to have the hallucinations at all, and secondly, on the journey, I do not think the evidence allows for such a conclusion.

BELL J:   Perhaps to that, one might add appeal book 615, paragraph 42, in which his Honour notes of the evidence of the experts that:

although they commented on Mr Pettigrove’s medication the panel of experts did not address the Depot injections.

MR CHENEY:   Yes.  Indeed, in the joint report, the medicos were asked the question whether the medication administered to Mr Pettigrove whilst admitted and upon discharge was reasonable, and they agreed that what was administered during his admission was reasonable.  They split 3:3 on the question whether the medication on discharge was adequate, but ultimately, there was no finding that lack of medication played any role in what happened on the road trip.  Your Honours, can I move on to – I am conscious of the time – we have said what we wish to say about section 5B and ‑ ‑ ‑

FRENCH CJ:   Well, I think Mr Cheney, the position is that the Court will consider the appeal on the basis of the arguments heard so far.  We will adjourn until 10.15 tomorrow.

AT 2.30 PM THE MATTER WAS ADJOURNED