Hunter Area Health Service v Presland - [2005] NSWCA 33

No judgment structure available for this case.

Reported Decision:
63 NSWLR 22

Court of Appeal

CITATION:
HUNTER AREA HEALTH SERVICE & ANOR v PRESLAND [2005] NSWCA 33

HEARING DATE(S):
15 November 2004, 16 November 2004, 17 November 2004

JUDGMENT DATE:

21 April 2005

JUDGMENT OF:
Spigelman CJ at 1; Sheller JA at 103; Santow JA at 309

DECISION:
1 Appeal allowed; 2 Set aside the verdict and judgment for the plaintiff; 3 In lieu thereof verdict and judgment for the defendants; 4 The plaintiff to pay the defendants' costs of the trial and of the appeal but to have a certificate under the Suitors' Fund Act 1951, if so entitled.

CATCHWORDS:
NEGLIGENCE - duty of care - nature and content of duty of care owed to psychiatric patient - Mental Health Act 1900 - ex turpi causa non actio - public policy - causation

LEGISLATION CITED:
Crimes Act 1958 (Vic)
Fatal Accidents Act 1975
Mental Health (Criminal Procedure) Act 1990
Mental Health Act 1990

CASES CITED:
Adamson v Jarvis (1827) 4 Bing 66
AMP v RTA (2001) Aust Torts Rep 81-619
Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195
Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Torts Rep 81-636
Barnes v Hay (1998) 12 NSWLR 337
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Beresford v Royal Insurance Company Ltd [1937] 2 KB 197; [1938] AC 586
Boruschewitz v Kirts 554 NE 2d 1112
Burrows v Rhodes [1899] 1 QB 816
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cattanach v Melchior (2003) 215 CLR 1
Champagne v United States, Supreme Court of North Dakota (513 NW 2d 75) (N.D. 1994)
Chappel v Hart (1998) 195 CLR 232
Chief Constable of West Yorkshire [1989] AC 53
Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147
Clunis v Camden & Islington Health Authority [1998] QB 978
Cole v South Tweed Heads Rugby (2004) 78 ALJR 933
Cole v Taylor 301 NW 2d 766 (1981)
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Cross v Kirkby The Times, 5 April 2000
Czarnikow Limited v Koufos [1969] 1 AC 350
Devries v Australian National Railways Commission (1993) 177 CLR 472
Diamond v Minter [1941] KB 656
Diamond v Simpson (No 1) (2003) Aust Torts Reports 81-695
Dorset Yacht Co Ltd v Home Office [1970] AC 1004
Edwards v Attorney General (NSW) (2004) 208 ALR 605
Environment Agency v Empress Car Co (Abertillery) Ltd [1992] 2 AC 22
Everett v Griffiths [1920] 3 KB 163; [1921] 1 AC 631
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Fitzgerald v Penn (1954) 91 CLR 268
Fox v Percy (2003) 214 CLR 118
Gala v Preston (1991) 172 CLR 243
Glazier v Lee 171 Mich. App. 216, 429 NW 2d 857 (1988)
Godbolt v Fittock (1964) NSWR 22
Gollan v Nugent (1988) 166 CLR 18
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Gray v Barr [1971] 2 QB 554
Haber v Walker (1963) VR 339
Hall v Herbert [1993] 2 SCR 158
Hardy v Motor Insurers' Bureau [1964] 2 QB 745
Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315
Harvey v PD (2004) 59 NSWLR 639
Haynes v Harwood [1935] 1 KB 146
Henville v Walker (2001) 206 CLR 459
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Hill v Chief Constable of West Yorkshire [1989] AC 53
Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629
Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120
Holt v Manufacturers Mutual Insurance Ltd [2001] QSC 230
Home Office v Dorset Yacht Company Ltd [1970] AC 1004
Huber v Walker (1963) VR 449
Hyde v Tameside Area Health Authority English Court of Appeal (Civil Division) Transcript No 130 of 1981
Jackson v Harrison (1978) 138 CLR 438
John Pfeiffer v Canny (1981) 148 CLR at 241
Kirkham v Chief Constable of Manchester [1990] 2 QB 283
Knight v Home Office [1990] 3 All ER 237
Lock v Ashton [1848] 12 QB 871, 116 ER 1097
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McLoughlin v O'Brian [1983] 1 AC 410
Meah v McCreamer (No 1) [1985] 1 All ER 367
Meah v McCreamer (No 2) [1986] 1 All ER 943
Miller v Jennings (1954) 92 CLR 190
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601
National Coal Board v England [1954] AC 403
New South Wales v Godfrey (2004) Aust Torts Rep 81-741
New South Wales v Moss (2000) 54 NSWLR 536
New South Wales v Paige (2003) 60 NSWLR 371
O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262
Oropesa [1943] P 32
Paff v Speed (1961) 105 CLR 549
Pallister v Waikato Hospital Board [1975] 2 NZLR 725
Perre v Apand Pty Ltd (1999) 198 CLR 180
Pitts v Hunt [1991] 2 QB 24
Progress & Properties Ltd v Craft (1976) 135 CLR 651
Pyrenees Shire Council v Day (1998) 192 CLR 330
Reeves v The Commissioner of Police of the Metropolis [2001] 1 AC 360
Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43
Rimert v Mortell 680 NE 2d 867 (1997)
Rogers v Nationwide News (2003) 201 ALR 184
Rogers v Whitaker (1992) 175 CLR 479
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Ruddock v Taylor (2003) 58 NSWLR269
Saunders v Edwards (1987) 1 WLR 1116
Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342
Smith v Jenkins (1970) 119 CLR 397
Smith v Leurs (1945) 70 CLR 256
Standard Chartered Bank v Pakistan National Shipping Corporation (No 2) (2001) Lloyd's Reports 218
State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113
State of New South Wales v Paige [2002] NSWCA 235
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500
Sullivan v Moody (2001) 207 CLR 579
Summers v Salford Corporation [1943] AC 283
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tambree v Travel Compensation Fund (2004) Aust Contract R 90-195
Tame v New South Wales (2002) 211 CLR 317
Thackwell v Barclays Bank plc [1986] 1 All ER 676
The King v Porter (1933) 55 CLR 182
Tinsley v Milligan [1994] 1 AC 430
Triggell v Pheeney (1951) 82 CLR 497
Vellino v Chief Constable of Grater Manchester Police [2002] 1 WLR 218
W v Meah and D v Meah [1986] 1 All ER 935
Williamson v Liptzin 539 S.E 2d 313 (NC App 2000)
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) HCA 16; 78 ALJR 628
Worrall v British Railways Board (Court of Appeal, Civil Division, unreported 29 April 1999)
Wyong Shire Council v Shirt (1980) 146 CLR 40
X (Minors) v Bedfordshire County Council [1995] 2 AC 633

PARTIES:
Hunter Area Health Service - First Appellant
Jacob Nazarian - Second Appellant
Kevin William Presland - Respondent

FILE NUMBER(S):
CA 40821/03

COUNSEL:
P R Garling SC/G Gregg - Appellants
B W Walker SC/G P Craddock - Respondent

SOLICITORS:
Francess Allpress - Appellants
Steve O'Connor - Legal Aid - Respondent

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
20192/98

LOWER COURT JUDICIAL OFFICER:
Adams J

CA 40821/03
SC 20192/98

SPIGELMAN CJ
SHELLER JA
SANTOW JA

HUNTER AREA HEALTH SERVICE & ANOR v PRESLAND

This is an appeal from the judgment of Adams J of 21 August 2003, whereby the plaintiff (Presland) was awarded damages as a result of the negligence of a psychiatric hospital (Hunter Area Health Service) and a psychiatrist (Dr Nazarian) in discharging and failing to restrain him and care for him, in circumstances where he was at risk to himself and others as a consequence of a mental illness.

Six hours after Presland was released from the psychiatric hospital, he killed the fiancée of his brother, Ms Laws. Presland was acquitted of the murder of Ms Laws on the grounds of mental illness and was detained for a period in a psychiatric hospital until released pursuant to the Mental Health (Criminal Procedure) Act 1990.

The substantive issues for determination by the Court of Appeal included:

(i) the nature and content of the duty of care owed to patients presented for psychiatric assessment both at common law and under the Mental Health Act 1900 and whether there was a breach of the duty of care;

(ii) whether the killing of Ms Laws, disentitled Presland to recover damages under the principle of ex turpi causa non actio or on the basis of a break in the chain of causation or on public policy grounds; and

(iii) whether the award of general damages was manifestly excessive.

Held in relation to the duty of care, breach and causation;

Per Sheller JA:

1. There was no difficulty in accepting that Dr Nazarian and through him, Hunter Area Health Service, owed the respondent a general duty of care to exercise reasonable care and skill in the provision of professional advice and treatment.

Rogers v Whittaker (1992) 175 CLR 479 applied.

2. While Presland was acquitted of the murder of Ms Laws on the grounds of mental illness, his act was and remained an unlawful act. The act was not justifiable homicide but an unlawful homicide for which he was not criminally responsible.

3. The damages sought are for the consequences of acts of killing. The result of those acts was that the plaintiff was lawfully detained in strict custody in a psychiatric hospital as a forensic patient until released by due process of law. Public policy must loom large in a court’s consideration of whether the plaintiff should be compensated for the harm so suffered.

4. The Mental Health Act 1900 is directed to enabling detention only as a last resort. It is doubtful 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.

5. The nature of the harm suffered by the plaintiff points as a matter of commonsense against the existence of a legal responsibility in the defendants for that harm.

Per Santow JA:

1. The duty of care that Dr Nazarian (and hence Hunter Area Health Service) as a psychiatrist owed to the respondent, did not extend to Dr Nazarian’s decision whether or not to detain the respondent so as to permit any recovery for non-physical injury, essentially based on loss of the respondent’s liberty.

2. No such extended duty can be derived from, or properly accommodated to, the Mental Health Act 1990 and is not sufficiently justified by the factors of control of risk, which is necessarily incomplete, or vulnerability. To impose such an extended duty for loss not derived from serious physical injury would be inappropriate by reason of the purpose and scope of the statutory scheme, distorting the impartiality of the exercise of discretion under the Mental Health Act 1990. It would in some cases distort its focus by introducing a detrimentally defensive frame of mind, and by promoting a bias towards detention, when that should be an impartial decision, taken only when fully justified, if not a last resort.

Per Spigelman CJ (dissenting):

Mental Health Act

2. The significance of moral culpability in determining the weight to be given to unlawful conduct is clearly established on the authorities. Where a person has been held not to be criminally responsible for his actions on the grounds of insanity, the common law should not deny that person the right to a remedy as a plaintiff and the acts which would otherwise constitute a crime do not break the causal chain.

Per Sheller JA (Spigelman CJ and Santow JA) agreeing:

1. The award of general damages of $225,000 was so high as to fall outside that range of what could reasonably be regarded as appropriate.

Triggell v Pheeney

2. There was no doubt that Presland suffered in the ways described immediately after his arrest in terms of the prison environment which he endured on remand, his confinement as a forensic patient and for loss of amenities over a limited period of time. An appropriate award for general damages would be $100,000 attributable as 75 per cent for past damages and 25 per cent for the future.

Legislation:

Crimes Act 1958 (Vic)
Fatal Accidents Act 1975
Mental Health (Criminal Procedure) Act 1990
Mental Health Act 1990

Cases cited:

Adamson v Jarvis (1827) 4 Bing 66
AMPv RTA (2001) Aust Torts Rep 81-619
Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195
Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Torts Rep 81-636
Barnes v Hay (1998) 12 NSWLR 337
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Beresford v Royal Insurance Company Ltd [1937] 2 KB 197; [1938] AC 586
Boruschewitz v Kirts 554 NE 2d 1112
Burrows v Rhodes [1899] 1 QB 816
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cattanach v Melchior (2003) 215 CLR 1
Champagne v United States , Supreme Court of North Dakota (513 NW 2d 75) (N.D. 1994)
Chappel v Hart (1998) 195 CLR 232
Chief Constable of West Yorkshire [1989] AC 53
Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147
Clunis v Camden & Islington Health Authority [1998] QB 978
Cole v South Tweed Heads Rugby (2004) 78 ALJR 933
Cole v Taylor 301 NW 2d 766 (1981)
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Cross v Kirkby The Times, 5 April 2000
Czarnikow Limited v Koufos [1969] 1 AC 350
Devries v Australian National Railways Commission (1993) 177 CLR 472
Diamond v Minter [1941] KB 656
Diamond v Simpson (No 1) (2003) Aust Torts Reports ¶81-695
Dorset Yacht Co Ltd v Home Office [1970] AC 1004
Edwards v Attorney General (NSW) (2004) 208 ALR 605
Environment Agency v Empress Car Co (Abertillery) Ltd [1992] 2 AC 22
Everett v Griffiths [1920] 3 KB 163; [1921] 1 AC 631
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Fitzgerald v Penn (1954) 91 CLR 268
Fox v Percy (2003) 214 CLR 118
Gala v Preston (1991) 172 CLR 243
Glazier v Lee 171 Mich. App. 216, 429 NW 2d 857 (1988)
Godbolt v Fittock (1964) NSWR 22
Gollan v Nugent (1988) 166 CLR 18
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Gray v Barr [1971] 2 QB 554
Haber v Walker (1963) VR 339
Hall v Herbert [1993] 2 SCR 158
Hardy v Motor Insurers’ Bureau [1964] 2 QB 745
Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315
Harvey v PD (2004) 59 NSWLR 639
Haynes v Harwood [1935] 1 KB 146
Henville v Walker (2001) 206 CLR 459
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Hill v Chief Constable of West Yorkshire [1989] AC 53
Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629
Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120
Holt v Manufacturers Mutual Insurance Ltd [2001] QSC 230
Home Office v Dorset Yacht Company Ltd [1970] AC 1004
Huber v Walker (1963) VR 449
Hyde v Tameside Area Health Authority English Court of Appeal (Civil Division) Transcript No 130 of 1981
Jackson v Harrison (1978) 138 CLR 438
John Pfeiffer v Canny (1981) 148 CLR at 241
Kirkham v Chief Constable of Manchester [1990] 2 QB 283
Knight v Home Office [1990] 3 All ER 237
Lock v Ashton [1848] 12 QB 871, 116 ER 1097
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McLoughlin v O’Brian [1983] 1 AC 410
Meah v McCreamer(No 1) [1985] 1 All ER 367
Meah v McCreamer (No 2) [1986] 1 All ER 943
Miller v Jennings (1954) 92 CLR 190
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601
National Coal Board v England [1954] AC 403
New South Wales v Godfrey (2004) Aust Torts Rep 81-741
New South Wales v Moss (2000) 54 NSWLR 536
New South Wales v Paige (2003) 60 NSWLR 371
O’Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262
Oropesa [1943] P 32
Paff v Speed (1961) 105 CLR 549
Pallister v Waikato Hospital Board [1975] 2 NZLR 725
Perre v Apand Pty Ltd (1999) 198 CLR 180
Pitts v Hunt [1991] 2 QB 24
Progress & Properties Ltd v Craft (1976) 135 CLR 651
Pyrenees Shire Council v Day (1998) 192 CLR 330
Reeves v The Commissioner of Police of the Metropolis [2001] 1 AC 360
Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43
Rimert v Mortell 680 NE 2d 867 (1997)
Rogers v Nationwide News (2003) 201 ALR 184
Rogers v Whitaker (1992) 175 CLR 479
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Ruddock v Taylor (2003) 58 NSWLR269
Saunders v Edwards (1987) 1 WLR 1116
Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342
Smith v Jenkins (1970) 119 CLR 397
Smith v Leurs (1945) 70 CLR 256
Standard Chartered Bank v Pakistan National Shipping Corporation (No 2) (2001) Lloyd’s Reports 218
State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113
State of New South Wales v Paige [2002] NSWCA 235
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500
Sullivan v Moody (2001) 207 CLR 579
Summers v Salford Corporation [1943] AC 283
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tambree v Travel Compensation Fund (2004) Aust Contract R ¶90-195
Tame v New South Wales (2002) 211 CLR 317
Thackwell v Barclays Bank plc [1986] 1 All ER 676
The King v Porter (1933) 55 CLR 182
Tinsley v Milligan [1994] 1 AC 430
Triggell v Pheeney (1951) 82 CLR 497
Vellino v Chief Constable of Grater Manchester Police [2002] 1 WLR 218
W v Meah and D v Meah [1986] 1 All ER 935
Williamson v Liptzin 539 S.E 2d 313 (NC App 2000)
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) HCA 16; 78 ALJR 628
Worrall v British Railways Board (Court of Appeal, Civil Division, unreported 29 April 1999)
Wyong Shire Council v Shirt (1980) 146 CLR 40
X (Minors) v Bedfordshire County Council [1995] 2 AC 633

ORDERS

1. Appeal allowed;

2. Set aside the verdict and judgment for the plaintiff;

3. In lieu thereof verdict and judgment for the defendants;

Suitors’ Fund Act

**********

CA 40821/03
SC 20192/98

SPIGELMAN CJ
SHELLER JA
SANTOW JA

Thursday, 21 April 2005

HUNTER AREA HEALTH SERVICE & ANOR v PRESLAND

Judgment

1 SPIGELMAN CJ : I have had the advantage of reading the judgment of Sheller JA in draft. I adopt his Honour’s outline of the facts and summary of the issues and submissions. For the reasons his Honour gives the various grounds of appeal relating to breach and Adams J’s findings of fact should be rejected. I also agree, if the appeal were otherwise to be dismissed, that the appeal on the quantum of damages should be allowed.

2 On the basis of the findings of fact by the trial judge, as set out and affirmed by Sheller JA, the Appellants were negligent in failing to detain the Respondent on the basis of his manifest psychotic state. His condition was a danger to others with the tragic consequence that an innocent life was taken. That would not have happened if the Hunter Area Health Service, and those for whose conduct it is responsible, had acted with care and diligence. The Respondent’s psychotic conduct before he was brought to the hospital indicated clearly just how dangerous he was. Adams J correctly concluded that the Appellants had enough information about that conduct to require his detention.

3 The doctor who made the decision not to detain him failed to conduct a proper inquiry into the Respondent’s mental state, even on the basis of the information which Adams J found that he had before him. Furthermore, the records available to that doctor did not, by reason of defective record keeping, contain the full range of information available to the hospital, particularly the information conveyed by the police and ambulance officers who brought the Respondent to the hospital.

4 Accordingly, if there was a relevant duty of care, the Appellants were in breach of it. The critical issue in this case is the scope of the duty of care, particularly whether it extends to encompass the effects of unlawful conduct. I wish to state my own reasons in this respect.

5 As with other issues that arise in the context of negligence, the effect of unlawful conduct is capable of being analysed in terms of a number of different elements into which the tort is conveniently divided for purposes of analysis: existence and scope of duty, breach, causation, remoteness or a defence of unlawful conduct, sometimes expressed by the maxim ex turpi causa non oritur actio. However, each element is often capable of being considered only in terms of other elements. (See John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241-242; Tame v New South Wales (2002) 211 CLR 317 at 349 [90]; Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1052.)

6 The Appellants accepted that they had a duty to the Respondent to provide proper care with respect to diagnosis and, subject to consent, treatment. They contended however that the duty did not extend to encompass the exercise of the statutory power to detain him.

Scope of Duty

7 There is no authoritative guidance from the High Court for the determination of when a common law duty of care exists with respect to the exercise of statutory power. A number of different approaches are discernible in the authorities. (See Pyrenees Shire Council v Day (1998) 192 CLR 330; Romeo v Conservation Commission (NT) (1998) 192 CLR 431; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council (2001) 206 CLR 512; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. See Stephen Todd “Liability in Tort of Public Bodies” in Nicholas J Mullany and Allen M Linden (eds) Torts Tomorrow: A Tribute to John Fleming (1998) at 36; Martin Davies “Common Law Liability of Statutory Authorities: Crimmins v Stevedoring Industry Finance Committee” (2000) 8 Torts LJ 133.)

8 Mr B Walker SC, who appeared for the Respondent, submitted that this Court should apply the reasoning of McHugh J in Crimmins at 39 [93]. Although his Honour’s reasons are instructive, I do not believe that they represent the ratio of Crimmins. In any event, the subsequent judgments in Graham Barclay Oysters must also be taken into account.

9 Where, as in the present proceedings, a novel issue arises with respect to the existence or scope of a duty of care, the contemporary Australian approach to determining both matters is to engage in a multifactorial or “salient features” analysis. (See the summary in the joint judgment in Sullivan v Moody (2001) 207 CLR 562 at 579 [50]-[51]. See also Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198 [27]-[198] and 254 [201], 302 [333], 326 [406]; Graham Barclay Oysters supra at 597 [149], 624 [236]-[237].)

10 This approach, in the context of determining whether a duty of care arises with respect to the exercise of a statutory power, is exemplified in the joint judgment of Gummow and Hayne JJ in Graham Barclay Oysters supra at 596-597:

“[146] The existence or otherwise of a common law duty of care allegedly owed by statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

[147] Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.

…

[149] An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. …” [Footnotes omitted]

11 For the purpose of determining whether the relationship between a statutory decision-maker and an individual is such as to create a duty of care with respect to the exercise of the power, a court must consider a range of circumstances. As the above passage from the joint judgment of Gummow and Hayne JJ indicates, four matters are of significance:

· The purpose to be served by the exercise of the power;

· The control over the relevant risk by the depository of the power;

· The vulnerability of the persons put at risk; and

· Coherence.

12 The purpose or purposes of the exercise of the power identifies the beneficiary of its exercise. Insofar as the beneficiary is the public at large, or a section of the public, it is unlikely that a duty of care will attach to the exercise of the power. Where the person asserting the existence of a duty is a person whose welfare or safety is to be protected by the exercise of the power, then the Court will more readily reach the conclusion that a duty of care at common law arises. The fact that a power has been conferred for the protection of a particular class of person is not determinative, but it is indicative. (See, e.g. Graham Barclay Oysters at 574 [79] and at 580 [91] per McHugh J.) In Graham Barclay Oysters the Court concluded that the powers there under consideration were conferred for the benefit of the public generally.

13 Analysis of the statute is required in order to determine whether the person, who asserts a duty is owed to him or her, is a beneficiary of the power. What is not authoritatively established, on the authorities, is the degree to which the scope and purpose of the power defines the scope or extent of the duty. Nevertheless, where the power is conferred for the purpose of protecting, inter alia, the plaintiff, from a risk that has materialised, that is a factor entitled to considerable weight and will, in the ordinary case, be determinative on the issue of scope of duty. Where there is no coincidence between the scope and purpose of the power and the scope of duty required to determine the proceedings, the weight to be given to this consideration will be less.

14 On the issue of control, Gummow and Hayne JJ said in Graham Barclay Oysters supra at 598:

“[150] The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority.”

15 This sentence reiterated the approach adopted in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie supra at 559:

“[102] … [O]n occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance.” [Footnotes omitted]

16 The significance of control has also been emphasised in a number of other authorities including Crimmins supra at 24 [43]-[46], 42 [104], 61 [166], 82 [227], 104 [304], 116 [357]; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 260 [19]-[21], 270 [42]-[43], 292 [110]-[117]; Graham Barclay Oysters supra at 558 [20], 579 [90]-[95]; see also Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Torts Reports ¶81-636 at [64]-[69].

17 In the legislative scheme considered in Crimmins, the relevant depository of the statutory power had a power to direct where waterside workers had to work. McHugh J regarded that as a decisive consideration and said at 42:

“[104] … It can seldom be the case that a person who controls or directs another person, does not owe that person a duty to take reasonable care to avoid risks of harm from that direction or the effect of that control.”

18 The case law applying a multifactorial analysis has also emphasised the vulnerability of the person to whom it is alleged the duty is owed. (See Perre v Apand supra at 194 [10]-[11], 220 [104]-[105], 225 [118]-[120], 228 [125]-[126], 229 [129], 259 [216]; Crimmins supra esp at 26 [51], 39 [93], 40 [100]-[104], 24 [44], 25 [46], 65 [233]; Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43 at 49 [29]-[43].)

19 The concept of vulnerability in this context is a reference to the inability of a particular person to protect himself or herself from the consequences of the conduct alleged to be negligent. (See Crimmins supra at 40 [100] and Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 78 ALJR 628 at [23] and [80].)

20 The next issue which arises is the question of coherence between the law of tort and the statutory scheme. (See Perre v Apand supra at 253 [197]; Sullivan v Moody supra at 576 [42], 579 [50], 580 [53]-[55]; Tame v New South Wales supra at 335 [28], 342 [58], 361 [123], 425 [323]; Graham Barclay Oysters supra at 574 [78]; New South Wales v Paige (2003) 60 NSWLR 371 at 390 [93]-[95]; New South Wales v Godfrey (2004) Aust Torts Reports ¶81-741 at [71]-[80]; Edwards v Attorney General (NSW) (2004) 60 NSWLR 667 at 671 [6]-[9].)

21 The imposition of a duty of care may be inconsistent with some aspect of the scheme or, if not directly inconsistent, may be otherwise inappropriate by reason of the scope and purpose of the legislation:

· liability in tort may “distort [the] focus” of the statutory decision-making process; (Crimmins supra at [292])

· the decision may be made in a “detrimentally defensive frame of mind”; (Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63D)

· a common law duty should not be imposed if it “would … have a tendency to discourage the due performance of … statutory duties”; (X v Bedfordshire County Council [1995] 2 AC 633 at 739E)

· the imposition of a duty of care may “undermine the effectiveness of the duties imposed by the statute”; (Graham Barclay Oysters supra at 574 [78])

· “a common law duty could distort the performance of the functions of the statutory body”. (Crimmins supra at 77 [216])

The Statutory Scheme

22 The relevant provisions of the Mental Health Act 1990 (“the Act”) are set out in the judgment of Sheller JA. Other than where it may be necessary for purposes of exposition of my reasoning, I will not repeat the sections.

23 The provisions most directly relevant for present purposes are s18 and s21 of the Act set out by Sheller JA. Section 18 provides that, in the case of a voluntary patient, as the Respondent relevantly was, a medical superintendent may take steps to detain a patient under Pt 2, which includes s21. That section provides that a person may be taken to and detained in a hospital upon the issue of a certificate to that effect by a medical practitioner. The failure by the Second Appellant to issue such a certificate is the step which was found to constitute a breach of duty.

24 The purpose to be served by the exercise of the s21 power is identified in two matters about which the practitioner must form a professional opinion, namely:

· “That the person is a mentally ill person or a mentally disordered person” (s21(1)(b)); and

· “That no other appropriate means for dealing with the person are reasonably available and that involuntary admission and detention are necessary” (s21(1)(c)).

25 Of particular significance is the definition of mentally ill person and mentally disordered person in s9 and s10, respectively, as set out by Sheller JA. In each case, by reason of an extant mental illness or sufficiently irrational behaviour, respectively, it must be shown to be the case that care, treatment or control of the person is necessary, relevantly, for one or other of the two purposes stated in both s9(1)(a) and (b) and s10(a) and (b):

“(a) For the person’s own protection from serious physical harm; or

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

26 There are additional references in s9 with respect to serious financial harm or serious damage to a person’s reputation, which do not alter the fundamental analysis.

27 The words “serious physical harm” are not defined. In some contexts the terminology of “physical harm” could extend to mental trauma of some character, but in the context of this legislation that does not appear to me to be the true construction, although it is unnecessary to express a final view in that regard. It is not a phrase which would extend to deprivation of liberty, which is the principal source of injury allegedly suffered by the Respondent. For this reason consideration of the scope and purpose of the statute does not strongly support a common law duty.

28 Furthermore, the Act distinguishes between the protection of the person under consideration from serious physical harm and the protection of others from serious physical harm. In the first case the focus is on self-inflicted or accidental harm to the particular person whose mental state is under consideration and, in the second case, to physical harm to third parties caused by the person whose mental state is under consideration. The facts of this case do not fall within either category. The loss or injury occasioned to the Respondent in the present proceedings came about as a consequence of the harm he committed on another. Such loss or injury does not fall within either category of harm in the relevant sections.

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. The loss or injury suffered in the present case is not of that character. 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.

30 The element of control is, however, entitled to substantial weight. A person may only be taken and detained in the hospital pursuant to s21 if a medical practitioner has issued a certificate. However, the degree of control exercised by the medical practitioner over the relevant risk is attenuated by the fact that the Act makes provision for voluntary admission. By s12 a person may be admitted upon application, by the person, to a medical superintendent of a hospital. By s17 the superintendent may refuse to admit, if not satisfied that the person is likely to benefit from care or treatment.

31 It will, of course, often be the case that the very nature of the matter to be determined will prevent a person understanding the desirability of his or her admission and, accordingly, the person would not seek voluntary admission or, if previously admitted voluntarily, seek to be discharged. Where there is evidence that that may be the case, the level of control by the medical practitioner and, thereafter, by the medical superintendent at the hospital acting pursuant to s28 and s29, and other practitioners acting pursuant to s32 and s33, of the Act, must be regarded as increased, perhaps, depending on the information available, substantially so.

32 In this regard, it is relevant to point out that, on the findings of fact of Adams J, accepted by Sheller JA with which I concur, this was not a case of a voluntary patient actively seeking to leave, supported by his brother. It was, however, common ground that the Respondent was a voluntary patient at the time of Dr Nazarian’s assessment.

33 The option of voluntary admission is also relevant to the issue of vulnerability, understood in the sense of the inability of a person to protect himself or herself from the consequences of negligent conduct by, relevantly, a medical practitioner acting under s18 and s21. Again the nature of the circumstances in which the issue arises may attenuate the import of the voluntary admission option.

34 In the present circumstances, each of the factors of control and vulnerability are entitled to significant weight in the determination of whether or not a duty of care of sufficient scope arises with respect to the exercise of the statutory power under s18 and s21 of the Act.

35 On the issue of coherence, there is no direct inconsistency or incompatibility between the statutory duty and a common law duty. Nevertheless, as noted above, there may still be inappropriate tension if a common law duty were superimposed on the statutory powers.

36 The Appellants contend that it is undesirable to create a situation in which medical practitioners or medical superintendents are given any incentive to practice a form of defensive medicine. The fear of civil liability may create an increased likelihood that a person will be the subject of an involuntary admission. Relevantly, the focus of the statutory inquiry on “serious physical harm”, could be distorted if the decision making process takes into account the full range of categories of foreseeable damage that may be recoverable in tort.

37 There is evidence to suggest that in many spheres of medical practice the fear of liability has led to defensive practices. Nevertheless, the Court ought to be slow to conclude that a medical practitioner, acting true to his or her profession, would permit the process of formulating a professional opinion to be distorted by the prospect of civil liability. In this regard, any such tendency would already exist if a common law duty of care existed in favour of the mentally ill person, with respect to self-inflicted harm, or in favour of third parties upon whom the mentally ill person may inflict serious physical harm. In each of these cases, as I have indicated above, the case for imposing civil liability is stronger. The additional factors in the present case, involving the particular mechanism by which injury or loss was suffered and the nature of the injury or loss occasioned, do not appear to add much to such incentive as may already arise to practise defensive medicine.

38 It is, however, material to note that the legislative scheme is directed to protecting the right of liberty of an individual. Accordingly, there is an important aspect of the public policy to be served by the operation of the statutory scheme, which policy requires that the formation of a professional opinion is not subject to any kind of distortion. This aspect of the scheme is manifest in a number of its features:

· Section 4(2) expressly states that every function performed under the Act is to be performed so that persons “receive the best possible care and treatment in the least restrictive environment” and “any restriction of the liberty of patients … are kept to the minimum necessary”;

· As Sheller JA notes, the Act commands a refusal to detain unless certain opinions are formed (ss20, 28, 29(2)); and

· The decision making process must be seen to be impartial. The certified medical practitioner may not be a near relative of the person (s21(1)(d)) and must disclose any pecuniary interest in any authorised hospital of the medical practitioner or a related person has (s21(3)).

39 Furthermore, the successive stages through which a person who is detained must pass, indicates that the Act is concerned to ensure that a person is only detained after a number of different persons make the judgment that the individual concerned should be detained. A person taken to and detained in a hospital must be examined within 12 hours of his or her arrival by the medical superintendent and must not be detained unless the medical superintendent provides another certificate (s29). If such a certificate is issued, the medical superintendent must cause the person to be examined by another medical practitioner. If the medical superintendent is not a psychiatrist, that other practitioner must be a psychiatrist who must affirm the appropriateness of detention (s32 and s33) or the person must be released (s35). Thereafter the medical superintendent is required to bring the person before a magistrate, who must conduct an inquiry (s38 and s41).

40 The judgment that must be made by each such person, before causing or continuing the detention of an individual, is to form an opinion that “no other care of a less restrictive kind is appropriate and reasonably available to the person” (see ss20, 21(1)(c), 35(3), 51(3); see also s4(2)).

41 There may be circumstances in which the possibility of defensive medicine can unduly impinge on the performance of the statutory duty by, to use one of the formulations set out in [21] above, distorting the focus of the process. However, in the statutory scheme here under consideration, the number of times a decision to detain must be reviewed, culminating in a decision by a magistrate, indicates that this is not likely to be a problem in the present context. One of the reviewing practitioners or the magistrate should be able to resist the institutional imperative of minimising the risk of civil action. Coherence is not, in my opinion, entitled to significant weight in the present context.

Unlawful Conduct

42 Whether unlawful conduct by a plaintiff has the consequence that the plaintiff has no remedy for injury or loss s/he has suffered has frequently arisen in the context of the tort of negligence and other cognate contexts, e.g. in proceedings for an intentional tort or for breach of contract. When I come below to set out such considerations I do not, for present purposes, find it necessary to distinguish one context from another.

43 Save for one United States case, I have found no authority which has considered conduct which would otherwise constitute a crime of the utmost gravity but which, by reason of the insanity of the plaintiff, was not criminal.

44 The present case does not raise any issue about the existence of a duty of care, unlike proceedings in which a plaintiff and defendant are jointly engaged in a criminal enterprise. It was common ground that the Appellants owed the Respondent duties of care of the well-established character owed by a medical practitioner and hospital to a patient. The issue before the Court concerns the scope of that duty.

45 The mere fact of unlawful conduct is not determinative. It does not necessarily lead to the denial of a remedy at law. On the authorities, the weight to be given to unlawful conduct by a plaintiff depends on a range of considerations.

46 The closeness of the connection between the unlawful conduct and the alleged wrong is material:

· “No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” (Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120 at Cowp 343, ER 1121.)

· “The act must … at least be a step in the execution of the common illegal purpose.” ( National Coal Board v England [1954] AC 403 at 429.)

· Was the injury suffered “on a journey directly connected with the criminal purpose” so that there was a “sufficient of the connection to require a conclusion that it would be contrary to public policy that damages should be awarded for the injury”. (Godbolt v Fittock [1964] NSWR 22 at 28.)

· “Where the plaintiff’s action in truth arises directly ex turpi causa, he is likely to fail … Where the plaintiff has suffered a genuine wrong, to which allegedly unlawful conduct is incidental, he is likely to succeed …” (Saunders v Edwards [1987] 1 WLR 1116 at 1134.)

· “The facts which give rise to the claim must be inextricably linked with criminal activity.” (Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218 at 236 [70].)

47 Furthermore, case law recognises that there is a scale of seriousness, so that if the unlawfulness involves a regulatory offence the weight to be given to illegality will often be slight. (See, e.g. Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 461-463; Gala v Preston (1991) 172 CLR 243 at 253; Godbolt v Fittock supra at 28.) As one recent authority put it, the criminal conduct “has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify”. (Vellino supra at 236 [70].)

48 In Beresford v Royal Insurance Co Ltd [1937] 2 KB 197, Lord Wright MR, Romer and Scott LLJ referred to the maxim ex turpi causa and said at 220:

“In these days there are many statutory offences which are the subject of the criminal law, and in that sense are crimes, but which would, it seems, afford no moral justification for the court to apply the maxim. There are likewise some crimes of inadvertence which, it is true, involve mens rea in the legal sense but are not deliberate or, as people would say, intentional.”

49 That questions of fact and degree arise is also reflected in the observations of Diplock LJ in Hardy v Motor Insurers’ Bureau [1964] 2 QB 745 at 767. His Lordship referred to the ex turpi causa maxim as constituting a rule:

50 Neither degree of connection nor seriousness of the offence invokes a bright line test. Unlawful conduct should be regarded as a factor, the weight of which can vary from one situation to another. This approach would apply, to the multifactorial analysis in this context, to the determination of the existence and scope of duty in novel situations, to which I have referred above.

51 Indeed, this was the approach adopted with respect to unlawful conduct by Jacobs J in Progress & Properties Ltd v Craft (1976) 135 CLR 651, where his Honour, with whom Stephen, Mason and Murphy JJ agreed, said at 668:

adds a factor to the relationship

52 His Honour reiterated his approach, with the agreement or concurrence of other members of the Court, in Jackson v Harrison (1977) 138 CLR 438 at 457 and see 456 (Mason J), 462 (Murphy J), 466 (Aickin J).

53 In Gala v Preston (1990) 172 CLR 243, the joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ adopted Jacobs J’s approach at 250-253 but rephrased it in the then authoritative language of proximity. It is now appropriate to revert to Jacob J’s original formulation: illegality “adds a factor to the relationship”, which needs to be considered when determining the existence or scope of a duty of care.

54 In Progress & Properties Ltd v Craft, Jacobs J went on to refer to circumstances involving joint illegal activity, such as Smith v Jenkins (1970) 119 CLR 397. Where both the plaintiff and the defendant are engaged in a crime, in the course of which one injures the other, it is not possible to determine a standard of care. (See Progress & Properties Ltd v Craft at 668, Jackson v Harrison at 456, Gala v Preston at 252, 253, 254-255.) In such a case, the element of illegality, considered as one of many factors in a relationship, is entitled to considerable weight as, but for the criminal venture, there would be no relevant relationship. That has the consequence, to use Jacobs JA’s terminology, of “extinguishing” any duty of care. In the present case, where the relationship is such that a duty does exist, as both parties in this Court accepted, the issue is one of the extent of the duty or, to again use Jacobs JA’s terminology, whether the duty of care was “modified”.

55 Of particular significance in determining the weight to be given to unlawful conduct is the degree of moral culpability that attaches to the plaintiff’s conduct. That consideration is of great significance where, as here, the plaintiff has been held not to be criminally responsible for his actions.

56 The fact that the unlawful conduct constitutes a crime is itself material for reasons which have been variously expressed:

· “ … the concern … is with the integrity of the legal system”. Hall v Herbert [1993] 2 SCR 159 at 176 [17] per McLachlin J, as her Ladyship then was. (See also at 179.)

· “the civil law cannot condone breaches of the criminal law” Gala v Preston supra at 270.8, or “impair … the normative influence of a law creating an offence” 271-272 per Brennan J, and see at 277 per Dawson J.

· It is desirable to avoid “the sort of clash between civil and criminal law that is apt to bring the law into disrepute”. State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 at 514E per Samuels JA.)

57 Furthermore, the fact that the plaintiff knew that his or her conduct was wrongful is a matter that has been emphasised in a number of cases. This is perhaps understandable because none of these cases involved the situation in which a defence of insanity had been available to a plaintiff. Nevertheless, the significance of knowledge and intention has been frequently emphasised in a manner which indicates that the moral culpability of the plaintiff was a material factor.

58 In Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693, Best CJ said, in a contractual context, at Bing 73; ER 696:

“… the rule that wrong-doers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.”

59 In Burrows v Rhodes [1899] 1 QB 816 Kennedy J stated the relevant principle in terms of a person being disentitled to relief: “If an act is manifestly unlawful, or the doer of it knows it to be unlawful” (at 828). His Lordship went on to note that mere ignorance that the act to be done constituted an offence would not be material so long as the person did the act “with knowledge of all the circumstances necessary to constitute the act an offence” (at 829) and distinguished conduct “which was not at the time apparently unlawful, and was done in honest ignorance of the particular circumstances which constituted its unlawfulness” (at 828-829).

60 In Hardy v Motor Insurers’ Bureau supra Lord Denning MR referred at 760 to Beresford as authority for the following proposition:

“… no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it … This rule … is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime.”

61 To similar effect was the observation of Diplock LJ who referred to the ex turpi causa maxim as applying where there was “an intentional crime committed by the assured” (at 769).

62 In Grey v Barr [1971] 2 QB 554, Lord Denning MR concluded that, on the civil onus, what was involved was an act of manslaughter. He applied the following test at 568:

“If his conduct is wilful and culpable, he is not entitled to recover.”

63 The above line of case law was explained in Pitts v Hunt [1991] 2 QB 24 at 39G as drawing a clear distinction between “deliberate intentional acts and those which are unintentional though grossly negligent”.

64 The element of moral culpability turning on a “rational and voluntary act” was also emphasised in this Court in State Rail Authority v Wiegold supra, where Samuels JA said at 517E:

“… a defendant should not be held responsible for the losses a plaintiff sustains the result from a rational and voluntary decision to engage in criminal activity. Such losses … fall outside the limits for which the wrongdoer should be held responsible. There was no suggestion that the Respondent’s criminal conduct in the present case was not based upon voluntary and rational decisions. Indeed, his conviction and sentence for the crimes in question necessarily proceed upon the hypothesis that his conduct was so based …. Accordingly he was fully cognisant of the consequences of his conduct. The criminal conduct and its consequences were therefore not reasonably foreseeable.”

65 The case that bears the closest resemblance to the present case is Clunis v Camden & Islington Health Authority [1998] QB 978. The plaintiff had a history of mental disorder and was found guilty of manslaughter on the grounds of diminished responsibility. He had been discharged from the defendant hospital shortly before killing a person. He sued the hospital for failing to detain him. He failed, but the reasons of the Court turned on the fact that he was guilty of a crime. In a joint judgment the Court of Appeal said, at 987:

“… public policy only requires the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts.”

66 After quoting the extract from Best CJ in Adamson v Jarvis that I have quoted above, the Court went on to say:

Burrows v Rhodes

67 The Court rejected a submission the it should recognise that the offence of manslaughter is an offence which varies greatly in its moral blameworthiness and that it should take into account the fact that the verdict of manslaughter was occasioned by reason of diminished responsibility. The Court concluded at 989:

“In the present case the plaintiff has been convicted of a serious criminal offence. In such a case public policy would in our judgment preclude the Court from entertaining the plaintiff’s claim unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong. The offence of murder was reduced to one of manslaughter by reason of the plaintiff’s mental disorder but his mental state did not justify a verdict of not guilty by reason of insanity. Consequently, though his responsibility for killing Mr Zito is diminished, he must be taken have know what he was doing and that it was wrong. A plea of diminished responsibility accepts that the accused’s mental responsibility is substantially impaired but it does not remove liability for his criminal act. We do not consider that in such a case a court can or should go behind the conviction and, even if it could, we do not see in the medical report attached to the statement of claim any statement which would justify the court taking the view that this plaintiff had no responsibility for the serious crime to which he pleaded guilty.”

“The plaintiff in this case, though his responsibility is in law reduced, must in Best CJ’s words be presumed to have known that he was doing an unlawful act.”

68 A number of United States cases reach the same result as Clunis for essentially the same reasons. (See Cole v Taylor, 301 NW 2d 766 (Iowa, 1981); Glazier v Lee, 429 NW 2d 857 (Mich, 1988); Rimert v Mortell, 680 NE 2d 867 (Ind, 1997).)

69 In Worrall v British Railways Board (Unreported, Court of Appeal, Civil Division, Beldam, Roch and Mummery, LJJ, 29 April 1999) the plaintiff suffered an electric shock as a result of the negligence of the defendant. He claimed that as a result of the electric shock he suffered psychological effects and his personality changed causing him to commit sexual offences against two prostitutes, for which he was convicted and sentenced to six years imprisonment. The Court held that the defendant was not liable for the plaintiff’s subsequent loss caused by his imprisonment.

70 In Worrall the plaintiff submitted that the damage he had suffered was complete before he had committed the criminal offences and accordingly his cause of action did not depend on proof that he had committed the offences in question. Beldam LJ rejected the claim on the basis that the loss was founded on the commission of serious criminal offence for which the plaintiff was “fully responsible in law” and concluded that it would be contrary to public policy to allow him damages consequent upon the commission of the offences. Mummery LJ said:

“Having been convicted of those offences the plaintiff must be treated in this action as fully and personally responsible in law for his deliberate criminal acts and for the consequences of them, including financial loss resulting from the criminal conviction. It would be inconsistent with his criminal conviction to attribute to the negligent defendant in this action any legal responsibility for the financial consequences of crimes for which he has been found guilty of having deliberately committed.”

71 There is only one case in which a criminal conviction for a serious offence has not led to a denial of civil remedy. That case, Meah v McCreamer(No 1) [1985] 1 All ER 367, has not been subsequently followed and must be taken to have been overruled (see Clunis supra at 989-990; State Rail Authority v Wiegold supra at 514; and Worrall supra).

72 Furthermore, this Court’s decision in Grey v Simpson (Unreported, Supreme Court of New South Wales, Court of Appeal, Hope, Reynolds and Samuels JJA, 3 April 1978), on whether a plaintiff can recover for heroin addiction, may need to be reviewed. It was distinguished in Wiegold supra at 515B on the basis that the plaintiff in Grey v Simpson had never been found guilty of a crime. However, Grey is an application of a “but for test” simpliciter and does not appear to be consistent with the subsequent authority of March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. The result has been different in other similar more recent cases. (See Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195 at [51] affirmed [2003] NSWCA 78 appeal dismissed; Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 78; Holt v Manufacturers’ Mutual Insurance Ltd [2001] QSC 230 at [3].)

73 There are a number of obiter dicta which strongly indicate that conduct which has been successfully defended on the basis of a plea of insanity is not unlawful conduct which should lead to a denial of civil liability.

74 In Beresford supra, the deceased was found not to have been insane at the time of suicide. Relevantly for present purposes, albeit in the context of a claim by the deceased estate under a policy of life insurance, their Lordships said at 210-211:

Felstead v The King

75 An appeal to the House of Lords was dismissed. (See Beresford v Royal Insurance Company Ltd [1938] AC 586.) Lord Atkin confined his reasoning to the situation of “intentional suicide by a man of sound mind” (at 594).

76 Similarly, in Clunis as quoted above, the Court indicated that the conclusion would be different if “it could be said that he did not know the nature and quality of his act or that what he was doing was wrong” (at 989). Dicta to similar effect appear in Rimert v Mortell supra at 874-875).

77 One United States case is in point. In Boruschewitz v Kirts, 554 NE 2d 1112 (Ill, 1990), an outpatient at a mental health centre killed two people. She was charged with murder and entered a plea of guilty but mentally ill. The court entered a finding of guilty but mentally ill, (a finding that she had the capacity to distinguish right from wrong) and sentenced her to incarceration. In some States such a finding is an alternative to insanity, with the consequence that incarceration is in a treatment facility. She brought an action against her psychiatrist and mental hospital alleging that their negligence caused her mental condition to deteriorate until she ultimately became insane, and committed the killings. The trail judge dismissed the complaint. On appeal, the judgment of the trial judge was reversed and the case was remanded for further proceedings. The court said at 1114:

“[P]laintiff has alleged in her complaint that she was insane, and we must accept this allegation as true. An insane person is not held to be responsible for his acts. Plaintiff is allowed an opportunity to rebut the prima facie case and prove that she was criminally insane. In other words, she should be allowed to demonstrate that she did not commit an intentional act and thus was not guilty of a crime. This is a question of fact. Whether she can maintain her burden of proof the issue is not our concern at this juncture.

Defendants claim that even if LuWanda is not criminally responsible for her actions, she still has committed an immoral or wrongful act. We reject this argument. Society cannot hold people who are insane to the same moral standards as people who are sane. Additionally, the term ‘wrongful’ must also take on a different meaning in the context of an allegation of insanity.” [References omitted]

78 The significance of moral culpability in determining the weight to be given to unlawful conduct is clearly established on the authorities. Where, as here, a person has been held not to be criminally responsible for his or her actions on the grounds of insanity, the common law should not deny that person the right to a remedy as a plaintiff. In such a context the unlawfulness of the conduct is not entitled to weight in a multifactorial analysis.

Conclusion on Duty

79 For the reasons outlined above, the factors which are entitled to weight in determining the scope of the duty owed by the Appellants to the Respondent are control and vulnerability. Because of the option of voluntary admission, these factors, for the reasons outlined above, require consideration of the particular circumstances of the case.

80 In this, as in many other contexts, facts and matters relevant to the existence and scope of duty overlap with the facts and matters which are relevant to breach. It was in the latter context that many considerations relevant to the former were considered by Adams J, raised in the submissions to this Court and dealt with in the judgment of Sheller JA. These are matters considered by Sheller JA in rejecting the Appellants challenges to the factual findings of Adams J. For those reasons, in my opinion, the option of voluntary admission did not detract, in the present case, from the high level of control exercised by the Appellants and the high level of vulnerability exhibited by the Respondent.

81 The detail of the information which was in fact available to the Appellants was such that there was no proper basis on which either could have proceeded on the basis that the Respondent could look after his own interests to the extent of seeking voluntary admission or, on the Appellants’ case, requesting a discharge.

82 Accordingly, balancing the various pertinent factors, and setting aside, for the reasons I have given, the unlawful but not criminal conduct of the Respondent, there was, in my opinion, a duty of care which extended to the exercise of the statutory powers in s18 and s21 of the Act. That duty was clearly breached.

83 The Appellants put the case in terms of causation as well as scope of duty. As I have mentioned above, similar considerations arise on either approach. The Appellants submitted that there was no causal nexus between their conduct and the killing of Ms Laws or, alternatively, that the killing broke the causal chain.

84 The death of Ms Laws was precisely the kind of “serious physical harm” which the exercise of the statutory power was designed to avert. As Lord Hoffman said in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 367H:

“It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss.”

85 The death of Ms Laws did not break the causal chain.

86 The issue of unlawful conduct could also arise in terms of causation. As was emphasised in March v Stramare supra at 515-516 and 524, value judgments must enter into the analysis of causation when determining whether a defendant is in law responsible for the loss or injury to a plaintiff. There has always been a normative dimension to causation. The Court asks “Should a person be held legally responsible for the loss or damage?” (See Chappel v Hart (1998) 195 CLR 232 at 248 [36]; Barnes v Hay (1988) 12 NSWLR 337 at 339G, 353E-F; State Rail Authority v Wiegold supra at 511; O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 271-272; AMP General Insurance Ltd v Roads & Traffic Authority (NSW) (2001) Aust Torts Reports ¶81-619 at [26], [151]-[153]; Henville v Walker (2001) 206 CLR 459 at 491 [98]-[100].) Professor Jane Stapleton has divided the elements into a factual and a normative dimension. (Stapleton “Cause-in-fact and the Scope of Liability for Consequences” (2003) 119 LQR 388.) This has been characterised as a “two-limbed test”. (See Ruddock v Taylor (2003) 58 NSWLR 269 at 285 [85]-[88]; Tambree v Travel Compensation Fund (2004) Aust Contract R ¶90-195 at [146]-[150]; Harvey v PD (2004) 59 NSWLR 639 at 670 [181]-[191].) In Harvey, I indicated at 643 [11] a reservation about the general application of a “two limbed test”. However, I did not doubt that normative considerations are relevant when determining causation.

87 In the present case, the normative considerations that have been urged on the Court are those which I have considered above under the heading of “Unlawful Conduct”. For the reasons there set out, where a person has been found not guilty of a criminal offence by reason of insanity, the acts which would otherwise constitute a crime do not break the causal chain.

88 The position is the same as that identified by Smith J in Haber v Walker [1963] VR 339: the “intervening occurrence” was not “human action that is properly to be regarded as voluntary” (358) in the sense that it could not be said “the actor should have exercised a free choice” (358 and see 361). (See also AMP v RTA supra at [21]-[24].)

89 In the present case the intervening event of the killing of Ms Laws cannot be regarded as “voluntary” or as the “exercise of free choice”. Nor, to use another formulation, can it be regarded as “unreasonable or extraneous or extrinsic” (Bennett v Minister for Community Welfare (1992) 176 CLR 408 at 428).

90 This Court is concerned with the application to a novel situation of principles that have been established by the progressive development of the law of negligence. The determination of a particular case in accordance with those principles may lead to results which some sections of the community regard as inappropriate. In recent times the Parliaments of Australia have shown no reluctance to intervene where such a reaction receives a high level of political salience. Judicial decision-making must focus on the application and development of legal principle, rather than be constrained by policy considerations which are more appropriately left to parliamentary intervention.

91 Lord Scarman identified the proper role of the courts in this respect in McLoughlin v O’Brian [1983] 1 AC 410 at 430:

“The function of the court is to decide the case before it, even though the decision may require the extension or adaptation of a principle or in some cases the creation of new law to meet the justice of the case. But, whatever the court decides to do, it starts from a baseline of existing principle and seeks a solution consistent with or analogous to a principle or principles already recognised.

The distinguishing feature of the common law is this judicial development and formation of principle. Policy considerations will have to be weighed: but the objective of the judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court’s function is to adjudicate according to principle, leaving policy curtailment to the judgment of Parliament. Here lies the true role of the two law-making institutions in our constitution. By concentrating on principle the judges can keep the common law alive, flexible and consistent, and can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.”

92 The decision of Adams J in the present case was the subject of some criticism in the media. That criticism was unfounded. It is the task of the courts to apply the law, irrespective of the popularity or otherwise of the outcome.

93 There was a suggestion, in some of the commentary, that somehow the Respondent has profited from the death of Ms Laws. That suggestion is completely misconceived.

94 First, the criminal process has determined that Mr Presland was not morally responsible for her death. Secondly, there is no profit. Mr Presland is entitled to compensation, and only compensation, for the loss he has suffered. He obtains no advantage or profit. He is to be placed in the same position as he would have been if the Appellants had not been negligent. He does not come out ahead in any way. Insofar as money can do so, he comes out square.

95 Finally, I observe, how a society treats it citizens who suffer from mental illness, particularly the criminally insane, is often a test of its fairness. It is never easy to be fair where an innocent person has suffered as Ms Laws, and those who grieve her loss, clearly have. The law must, however, insist on protecting the rights of people, even if they are unpopular. Mr Presland was the instrument by which Ms Laws died. However, by reason of his insanity, his acts were not such that his right to receive proper medical treatment should effectively be taken away without compensation.

Damages

96 The Appellant asserts that the award of general damages by Adams J was manifestly excessive. The test for intervention on this basis involves a high hurdle. Sheller JA refers to Miller v Jennings (1954) 92 CLR 190, at 195-196 where Dixon CJ and Kitto J cite Nance v British Columbia Electric Railway Co Ltd [1951] AC 601, at 603. I would add a reference to Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 348 [62]-[64].

97 I agree with Sheller JA that the test is satisfied for the reasons given by his Honour. The two cases to which the Court was referred, New South Wales v Moss (2000) 54 NSWLR 536 and Diamond v Simpson (No 1) (2003) Aust Torts Reports ¶81-695, are of some assistance, although it was not suggested that they manifested anything in the nature of a tariff. The loss or injury for which general damages were granted in those cases was of a qualitatively different magnitude to that of the Respondent.

98 In my opinion, the exercise of judgment in determining the amount of general damages miscarried, leading to a result that is erroneous.

99 The source of the error was, it appears to me, likely to be found in the observations of Adams J when dealing with general damages that:

“[173] … His time in prison on remand was a terrifying nightmare. His incarceration as a forensic patient only slightly less so.”

100 His Honour had earlier set out Mr Presland’s experiences in this regard, including his fear of violence in the remand centre, restrictions on movement and activities involved in being kept in the prison hospital and restrictions on his liberty after his conditional release. All of these were matters which arose from the lawful conduct of the authorities. In my opinion the loss or damage he suffered in this regard is too remote from the tortious conduct of the Appellants.

101 There is a line of authority in wrongful imprisonment cases which awards damages only up to the time of a lawful order which authorises imprisonment. (See Lock v Ashton [1848] 12 QB 871; 116 ER 1097; Diamond v Minter [1941] 1 KB 656; McGregor on Damages (17th ed, 2003) at [37-011]; Ruddock v Taylor supra at 276 [29]-[33].) A similar principle should be applied in the determination of damages for negligence. (I note that this proposition could have had implications for the award of damages to the Respondent for loss of income, but there is no appeal from that award.)

102 Mr Presland did suffer general damage by reason of the negligent conduct of the Appellant, particularly in the form of mental anguish arising from his sense of guilt and from his alienation from his family, including, as his Honour found, the distress he feels that his family is frightened of him. I agree with the computation of general damages proposed by Sheller JA.

103 SHELLER JA:

Introduction

Mental Health (Criminal Procedure) Act

Mental Health Act

104 On 26 November 1997, the Governor ordered the release of the plaintiff. On 8 December 1997, on the recommendation of the Mental Health Review Tribunal, he was discharged from Long Bay Prison Hospital subject to conditions.

Mental Health Act 1990 (in the form reprinted as at 17 October 1994)

105 In Schedule 1 of the MHA “Dictionary of terms used in the Act” are found the following definitions:

forensic patient

Mental Health (Criminal Procedure) Act

informal patient

(a) a person who has been admitted to a hospital under section 12; or

(b) a person who has been classified as an informal patient under section 54 or 64;

medical superintendent

(a) a hospital, other than an authorised hospital, means the medical practitioner appointed, under section 209, as medical superintendent of the hospital; and

(b) an authorised hospital, means the medical practitioner appointed, under section 220, as medical superintendent of the authorised hospital,

and, in Chapter 4, sections 142 and 143 and Division 2 of Part 1 of Chapter 7, includes a reference to a medical officer, nominated by the medical superintendent, attached to the hospital or authorised hospital, as the case may be;

mental illness

(a) delusions;

(b) hallucinations;

(c) serious disorder of thought form;

(d) a severe disturbance of mood;

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d);

mentally disordered person

mentally ill person

106 Chapter 2 of the MHA headed “Objects etc” deals first in s4 with what in its heading is called “Care, treatment and control of mentally ill and mentally disordered persons”. The phrase “care, treatment and control” expresses a theme which is central to those parts of the MHA with which this appeal is concerned. According to s4(1)(a) and (b) the objects of the Act in relation to the care, treatment and control of persons who are mentally ill or mentally disordered are to provide for and facilitate the care, treatment and control of those persons through community care facilities and hospital facilities and then:

“(c) to facilitate the provision of hospital care for those persons on an informal and voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis; and

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

107 Section 4(2) is important:

“(2) It is the intention of Parliament that 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) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, 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.”

108 Section 8, headed “Criteria for involuntary admission etc. as mentally ill person or mentally disordered person” emphasises that a person is a mentally ill person or a mentally disordered person for the purpose of involuntary admission to a hospital or the detention of a person in a hospital under the Act or determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a hospital or other place “if, and only if, the person satisfies the relevant criteria set out in this Chapter.”

362 It is also significant that s19 of the Act places no fetter on the discretion of the medical superintendent required to review a decision by a medical officer not to admit or detain a person seeking voluntary admission. Section 19 is in the following terms:

“19 Review of decisions made by medical officer

(2) On receiving an application for a review of a decision, the medical superintendent must review the decision as soon as practicable and:

(b) in the case of a person who is discharged—confirm the person’s discharge as an informal patient or admit the person as an informal patient or take such other action under this Act as the medical superintendent thinks fit.”

363 The significance is this. In the case of the person who applies for review of a decision declining to admit that person as an informal patient, the Act leaves it to the medical superintendent’s unfettered discretion. In particular, while the medical superintendent “must review the decision as soon as practicable”, sub-paragraphs (a) and (b) of s19(2) simply leave it to the medical superintendent to determine whether to confirm the refusal or admit the person or take such other action under the Act as the medical superintendent thinks fit. Likewise in the case of a person who is discharged.

364 There is no suggestion that if the conditions for compulsory detention were made out under s21, with nothing to the contrary under ss20, 28 and 29, the medical superintendent must admit the person concerned or compulsorily detain that person or must continue compulsorily to detain that person. All this is left to the discretion of the medical superintendent. The provisions are mandatory only in a negative sense, that is to say in precluding admission, detention or continued detention in the circumstances where either the conditions in s21 are not made out or admission, detention or continued detention is precluded under ss20, 21(4), 28 and 29, as applicable.

365 That is a powerful reason for concluding that there is at least no statutory duty in the case of a decision not to admit, detain or continue to detain, whether that decision is made in the context of someone seeking to be admitted or detained, or of someone resisting admission. This is not therefore a case where the common law duty is derived from statute; see for example Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 and earlier Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [184] per McHugh J. It is also reason for questioning whether an extended duty of care may be inconsistent with the legislative scheme.

366 On the first matter, the foregoing analysis leads me to conclude that the statute does not of itself generate a common law duty to compulsorily detain. But that, as I have said, is not the end of the matter. Here there is a pre-existing general law duty. It is imposed on the medical practitioner to exercise reasonable care and skill in the provision of advice and treatment, at the standard of care and skill of the ordinary skilled psychiatrist, exercising and professing that special skill; Rogers v Whitaker (1992) 175 CLR 479 at 483. Does that duty extend to governing the way the psychiatrist must exercise the power to detain compulsorily, whenever the discretion is enlivened and there is no statutory prohibition on doing so? This is where failure to do so does not subject the person concerned to serious physical harm, but puts the person concerned at risk of losing his liberty by reason of detention as a result of homicidal acts committed whilst insane. (By detention I mean detention in strict custody in a psychiatric hospital as a forensic patient until released by due process of law; s39 of the Mental Health (Criminal Procedure) Act 1990 and the definition in Schedule 1 of the Act.)

367 I would answer that question in the negative for these reasons. First, there is no statutory indication that the psychiatrist’s duty of care extends beyond the person’s own protection from serious physical harm or, were action brought by an injured third party, serious physical harm to that party at the hands of the person not detained; compare ss9(1) and 10(1).

368 Moreover, to impose a duty of care in favour of that person with respect to his or her compulsory detention entails that the duty would apply both for carelessly failing to detain or carelessly choosing to detain. That introduces a distortive influence upon the hospital superintendent’s or psychiatrist’s exercise of his or her statutory discretion in either direction. The review safeguards offer no ultimate solution. At each point in the review process, depending on the circumstances, there will be a fear of legal action for failing to detain or failing to release; the discretion would be prone to being exercised in “a detrimentally defensive frame of mind”; compare Hill v Chief Constable of West Yorkshire (1989) AC 53 at 63D; Cummins (supra) at [216]. That distortive effect is also an example of where the imposition of duty of care, so extended, introduces an incoherence to the law by being inconsistent with the impartial exercise of discretion under the Act.

369 That distortive effect, and the bias it imports into what must be an impartial exercise of discretion under the Act may not arise to the same degree, if liability were limited to serious physical injury suffered by third parties at the hands of a psychotic person about whose compulsory detention the hospital were negligent. But it is not necessary to decide that question here, and I refrain from doing so.

370 There is indeed an incongruity in bringing an action based in part on loss of liberty when the loss is attributed to an earlier failure to deprive the person compulsorily of that same liberty, albeit for a much shorter time. The compulsory detention, if imposed, would likely have been for four weeks, not the eighteen months suffered by the respondent as a forensic patient. But would earlier treatment over four weeks have removed the risk of this respondent committing some other homicide or serious injury, if not against Ms Laws? Remember this would have been during a very short compulsory detention period. He was, on the evidence, suffering not only from excessive intake of alcohol and cannabis along with personal problems but paranoid schizophrenia (report of Dr Shrum, Blue, 4(6)). At most the risk would be reduced though that conclusion is not free from doubt. It is certainly impossible to say with any confidence based on the psychiatric evidence that it would, on the balance of probabilities, have been substantially removed. Thus Jonathan Phillips, a psychiatrist, in his report of 7 October 1999 concludes (Blue, 446):

“ It is speculation to try and predict the life which Mr Presland would have led if it were not for the alleged negligence of the James Fletcher Hospital .

However, if Mr Presland had received proper treatment he would have made a slow but satisfactory recovery from his then paranoid psychotic illness. He may well have overcome his abuse of alcohol and cannabis, provided that appropriate counselling was offered to him both during his period of hospitalisation and following discharge the community.

371 The problem is that the psychiatrist’s report does not come to grips with what would have been the extent of his likely treatment had he been compulsorily detained for the four week period the trial judge thought would probably have occurred, on the psychiatrist’s view of the evidence (Red, 188D). Nor does it focus on the likelihood of an attack on some other person than Ms Laws. It concedes that “it is speculation to try and predict the life which Mr Presland would have led if it were not for the alleged negligence of the James Fletcher Hospital”.

372 That consideration strongly militates against imposing a duty of care of such scope, at least one going beyond self-inflicted or third party serious physical injury.

373 Second, while the factors of control and vulnerability are to a degree present, neither are in my view determinative.

374 Taking control first, it cannot be said that the depository of what is clearly a limited, conditional power to detain is in full control of the relevant risk, namely the risk that the person concerned will later kill or injure someone while insane. Compulsory detention is unlikely under the Act to last very long if resisted, given the statutory constraints. While it lasts, compulsory detention will afford some opportunity for treatment of a mentally ill or mentally disturbed person exhibiting psychotic symptoms, though the power of treatment is subject to constraint; see s4(2) of the Act. It by no means follows that the limited period that compulsory detention can be anticipated will remove the risk. If a third party were seriously injured by such a person who, through carelessness, was not compulsorily detained at the time but certainly in retrospect should have been, control would have a very different aspect. For that specific third party, but only during that limited period when compulsory detention would be maintainable, the psychiatrist is in control of the risk. But the psychiatrist and hospital cease to be in control of the risk for that third party or importantly for others, once the review mechanisms bring about release. In saying that, I again emphasise that I express no view as to whether a third party injured or killed by the person not compulsorily detained can recover. What I do say is that the factor of control is capable of operating differently in the case of a specific third party plaintiff than for a plaintiff in the position of the respondent. What I also say is that the Act confers a discretion to detain which is itself constrained only against exercise. The Act never compels an exercise of that discretion in favour of detention.

375 Moreover, the situations where due care in the exercise of discretion point to no other statutory outcome than compulsory detention will be rare. I should emphasise that here the carelessness consisted in the psychiatrist failing to carry out any proper enquiry at all so he was never in a position to make a proper diagnosis.

376 Vulnerability, similarly, bears a different aspect where the basis of claim is for loss of liberty by the person who was not compulsorily detained. Certainly such a person is vulnerable to committing homicidal acts whilst insane, unless compulsorily detained. But given the civil liberty and other hurdles in the way of compulsory detention, more especially if prolonged, that vulnerability may be reduced but is unlikely to be obviated by imposing a duty to exercise care in the decision whether to compulsorily detain. Nor is there any assurance that treatment made available to a person against his or her will, especially for such a temporary period of around the four weeks as found likely by the trial judge, will be efficacious. This is more especially when constrained by the statutory safeguards.

Summing Up

377 Accordingly, I would conclude that the duty of care that Dr Nazarian as a psychiatrist owed to the respondent (and hence, vicariously, Hunter), did not extend to Dr Nazarian’s decision whether or not to detain the respondent so as to permit any recovery for non-physical injury, essentially based on loss of the respondent’s liberty; that is to say, lost by reason of his detention in strict custody in a psychiatric hospital as a forensic patient following his killing of Ms Laws while insane. Nor do I consider that any such extended duty can be derived from, or properly accommodated to, the relevant statutory scheme. Rather I consider that to impose such an extended duty for loss not derived from serious physical injury would be inappropriate by reason of the purpose and scope of the statutory scheme, distorting the impartiality of the exercise of discretion under the Act. It would risk distorting its focus by promoting a bias towards detention, when that should be an impartial decision, taken only when fully justified, if not a last resort.

378 Moreover, if exercise of the discretion not to detain gave rise to legal liability in negligence at the suit of the person not detained, it must logically follow that in other circumstances legal liability in negligence would attach to the decision to detain compulsorily. That would further distort the exercise of the discretion in a way which would be contrary to the purpose of the statutory scheme.

379 What is said by the High Court in Sullivan v Moody at 582 [60] is directly apposite:

“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”

The above passage applies here, with the addition of “undue” before “regard”.

Relevance of Unlawful Conduct or

Ex Turpi Causa

380 I agree with the observations of both Spigelman CJ and Sheller JA, insofar as they deny application of the ex turpi maxim as a defence to civil action, or as automatically breaking the chain of causation, where there is no crime, nor any rational and voluntary act, nor moral culpability, by reason of the respondent’s insanity at the time he killed Ms Laws. That said, I consider that the residual unlawfulness of the respondent’s act of homicide is a factor that may properly be taken into account, when considering the normative aspects of causation. It is to that aspect I now turn.

Causation

381 The considerations which have led me to conclude against a duty of care re-emerge with others in considering causation. This is particularly at the point where normative considerations are brought to bear. In answering the question should a person who commits an unlawful act while insane be held responsible for loss or damage, here primarily from denial of liberty of some 18 months, but also general damage in the form of mental anguish, we are not dealing with physical harm to the respondent nor to the person he killed while insane. Rather we are dealing with those other non-physical consequences suffered by the respondent following his act of homicide while insane.

382 The effect of a successful plea of insanity is that the act of homicide, while remaining unlawful, is shorn of both criminality and, in an enlightened society, moral opprobrium as well. Spigelman CJ concluded (at [78]) that where, as here, a person has been held not to be criminally responsible for his actions on the ground of insanity, the common law should not deny that person the right to a remedy as a plaintiff and that, in “such a context, the unlawfulness of the conduct is not entitled to weight in a multifactorial analysis”.

383 While I agree that the unlawfulness of an act of homicide committed while insane should not be an automatic bar to recovery, I respectfully disagree that it has no weight when it comes to determining what consequences of such actions should give rise to civil liability in negligence. Legal policy treats insanity as an “excuse”, though not justification, for what remains an unlawful act. According to Hart, the essence of an excuse is that the act may be “deplored, but the psychological state of the agent when he did it exemplified one or more variety of conditions which are held to rule out public condemnation and punishment of individuals”; H L A Hart “Punishment and Responsibility” (1968) at 13, cited in Jones “Insanity, Automatism and the Burden of Proof on the Accused” in (1995) 111 LQR 475 at 495. But considerations of coherence as well as difficulties of causation lead it in my view to draw the line at permitting recovery by the person who committed that act for the non-physical consequences of his later detention in a mental hospital even though but for the hospital’s failure to detain, Ms Laws would not have been killed. Moreover, one may readily agree with Spigelman CJ and Sheller JA there is to be no recovery for the respondent’s fear of violence at the remand centre and for the additional restrictions on his liberty whilst in prison hospital and on conditional release, based on these being too remote, and because they represent the lawful conduct of the authorities. But if that be so, why should there be recovery for other constraints on the respondent’s liberty, no less the result of lawful conduct by the authorities?

384 On causation, the argument is also that a supervening event, namely the killing of Ms Laws, broke the chain of causation, or that there was no causal nexus between the appellants’ failure to act and the killing of Ms Laws. It is said by Spigelman CJ (at [84]) that the death of Ms Laws was precisely the kind of “serious physical harm” which the exercise of the statutory power was designed to avert. That is so. But Ms Laws’ relatives are not the plaintiff. This is not a situation of a prisoner’s suicide where his relatives sued as occurred in Reeves v Commissioner of Police of the Metropolis (2000) 1 AC at 367H where Lord Hoffman’s observations would be relevant:

“It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatives causal connection between the breach of duty and the loss.”

385 But this is a case where one needs to consider whether the injury the subject of claim, or like injury, would have resulted even had the presumed duty of care been performed. On that, what is said by Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 481 is apposite:

“However, the question whether some supervening event broke a chain of causation which began with or which relates back to an omission or a failure to perform a positive duty, is one that can only be answered by having regard to what would or would not have happened if the duty had been performed. It is only by undertaking that exercise that it is possible to say whether the breach was “still operating”, or, continued to be causally significant when the harm was suffered.”

386 Here, when one asks what would or would not have happened if the positive duty had been performed (assuming there was such a duty contrary to the view I have earlier reached), one is reduced to speculation. It is true Ms Laws may have been spared her death, if the respondent had been compulsorily detained for the four weeks estimated by the trial judge. But even allowing for the margin of safety necessarily reflected in the 18 months spent as a forensic patient, who had killed a person while insane, it has not been shown that the respondent would have been cured in four weeks, not just of excessive alcohol and cannabis intake, but of the psychotic psychiatric condition attributed to him of paranoid schizophrenia so as to cease to be a homicidal risk to others. It should be borne in mind that during the estimated four weeks of access to treatment, that treatment would be subject to the civil rights constraints expressed in the objects of the Act, accepting that it could be imposed against the will of the person so detained. One may contrast that with what was deemed necessary, and capable of being achieved, when the respondent was detained over 18 months as a forensic patient, even allowing for a margin of safety attending the time of his release. At most, had the four weeks of treatment occurred the risk of the respondent then injuring another on release, whether Ms Laws or someone else, may have been reduced. While that may nonetheless still satisfy the test for causation in terms of the negligence materially contributing, in risk terms, to the injury suffered, it remains a powerful reinforcement of the policy considerations against allowing recovery.

387 Other considerations governing causation of a normative character consist of control and vulnerability. But for the same reasons as those factors do not suffice in my view to give rise to an extended duty of care covering the consequences suffered by the respondent, so to my mind they do not countervail against the powerful considerations against finding causation.

OVERALL CONCLUSION

388 I am of the view that it would be unjust to render the appellants as defendants legally responsible for a non-physical injury suffered by the respondent from deprivation of his liberty, when traced back to his unlawful but not criminal conduct. This is because that homicidal conduct is excused but not justified by the law on the ground of the respondent plaintiff’s insanity. That conduct nonetheless constituted wholly unreasonable action on the respondent’s part, lacking moral culpability only by reason of his insanity. Such a normative conclusion is reinforced by the Act’s emphasis on serious physical harm when none eventuated to the respondent. The law in consequence should be reluctant to visit civil liability, more especially in such a novel area and for non-physical consequences. Civil liability attaching to a failure to restrain risks promoting a bias towards detention, when the statutory scheme calls for an impartial exercise of discretion compulsorily to detain, taken only when fully justified, if not as a last resort. Therefore to introduce civil liability, which logically must also apply to decisions to restrain, is likely to induce a detrimentally defensive frame of mind on the part of the decision-maker in either context, so undermining coherence of the statutory scheme.

Damages

389 If, contrary to the conclusion I have reached, the respondent as plaintiff was entitled to recover damages from the appellants as defendants, I agree with Sheller JA that such damages should be assessed in the way he proposes and for the reasons he gives. I note that Spigelman CJ is of the same view.

ORDERS

390 I would agree with the orders proposed by Sheller JA.

**********

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Citations

Hunter Area Health Service v Presland [2005] NSWCA 33

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CITATION:	HUNTER AREA HEALTH SERVICE & ANOR v PRESLAND [2005] NSWCA 33
HEARING DATE(S):	15 November 2004, 16 November 2004, 17 November 2004
JUDGMENT DATE:	21 April 2005
JUDGMENT OF:	Spigelman CJ at 1; Sheller JA at 103; Santow JA at 309
DECISION:	1 Appeal allowed; 2 Set aside the verdict and judgment for the plaintiff; 3 In lieu thereof verdict and judgment for the defendants; 4 The plaintiff to pay the defendants' costs of the trial and of the appeal but to have a certificate under the Suitors' Fund Act 1951, if so entitled.

CATCHWORDS:	NEGLIGENCE - duty of care - nature and content of duty of care owed to psychiatric patient - Mental Health Act 1900 - ex turpi causa non actio - public policy - causation
LEGISLATION CITED:	Crimes Act 1958 (Vic) Fatal Accidents Act 1975 Mental Health (Criminal Procedure) Act 1990 Mental Health Act 1990
CASES CITED:	Adamson v Jarvis (1827) 4 Bing 66 AMP v RTA (2001) Aust Torts Rep 81-619 Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195 Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Torts Rep 81-636 Barnes v Hay (1998) 12 NSWLR 337 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Beresford v Royal Insurance Company Ltd [1937] 2 KB 197; [1938] AC 586 Boruschewitz v Kirts 554 NE 2d 1112 Burrows v Rhodes [1899] 1 QB 816 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Cattanach v Melchior (2003) 215 CLR 1 Champagne v United States, Supreme Court of North Dakota (513 NW 2d 75) (N.D. 1994) Chappel v Hart (1998) 195 CLR 232 Chief Constable of West Yorkshire [1989] AC 53 Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 Clunis v Camden & Islington Health Authority [1998] QB 978 Cole v South Tweed Heads Rugby (2004) 78 ALJR 933 Cole v Taylor 301 NW 2d 766 (1981) Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Cross v Kirkby The Times, 5 April 2000 Czarnikow Limited v Koufos [1969] 1 AC 350 Devries v Australian National Railways Commission (1993) 177 CLR 472 Diamond v Minter [1941] KB 656 Diamond v Simpson (No 1) (2003) Aust Torts Reports 81-695 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 Edwards v Attorney General (NSW) (2004) 208 ALR 605 Environment Agency v Empress Car Co (Abertillery) Ltd [1992] 2 AC 22 Everett v Griffiths [1920] 3 KB 163; [1921] 1 AC 631 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Fitzgerald v Penn (1954) 91 CLR 268 Fox v Percy (2003) 214 CLR 118 Gala v Preston (1991) 172 CLR 243 Glazier v Lee 171 Mich. App. 216, 429 NW 2d 857 (1988) Godbolt v Fittock (1964) NSWR 22 Gollan v Nugent (1988) 166 CLR 18 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Gray v Barr [1971] 2 QB 554 Haber v Walker (1963) VR 339 Hall v Herbert [1993] 2 SCR 158 Hardy v Motor Insurers' Bureau [1964] 2 QB 745 Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 Harvey v PD (2004) 59 NSWLR 639 Haynes v Harwood [1935] 1 KB 146 Henville v Walker (2001) 206 CLR 459 Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 Hill v Chief Constable of West Yorkshire [1989] AC 53 Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120 Holt v Manufacturers Mutual Insurance Ltd [2001] QSC 230 Home Office v Dorset Yacht Company Ltd [1970] AC 1004 Huber v Walker (1963) VR 449 Hyde v Tameside Area Health Authority English Court of Appeal (Civil Division) Transcript No 130 of 1981 Jackson v Harrison (1978) 138 CLR 438 John Pfeiffer v Canny (1981) 148 CLR at 241 Kirkham v Chief Constable of Manchester [1990] 2 QB 283 Knight v Home Office [1990] 3 All ER 237 Lock v Ashton [1848] 12 QB 871, 116 ER 1097 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McLoughlin v O'Brian [1983] 1 AC 410 Meah v McCreamer (No 1) [1985] 1 All ER 367 Meah v McCreamer (No 2) [1986] 1 All ER 943 Miller v Jennings (1954) 92 CLR 190 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 National Coal Board v England [1954] AC 403 New South Wales v Godfrey (2004) Aust Torts Rep 81-741 New South Wales v Moss (2000) 54 NSWLR 536 New South Wales v Paige (2003) 60 NSWLR 371 O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 Oropesa [1943] P 32 Paff v Speed (1961) 105 CLR 549 Pallister v Waikato Hospital Board [1975] 2 NZLR 725 Perre v Apand Pty Ltd (1999) 198 CLR 180 Pitts v Hunt [1991] 2 QB 24 Progress & Properties Ltd v Craft (1976) 135 CLR 651 Pyrenees Shire Council v Day (1998) 192 CLR 330 Reeves v The Commissioner of Police of the Metropolis [2001] 1 AC 360 Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43 Rimert v Mortell 680 NE 2d 867 (1997) Rogers v Nationwide News (2003) 201 ALR 184 Rogers v Whitaker (1992) 175 CLR 479 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Ruddock v Taylor (2003) 58 NSWLR269 Saunders v Edwards (1987) 1 WLR 1116 Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342 Smith v Jenkins (1970) 119 CLR 397 Smith v Leurs (1945) 70 CLR 256 Standard Chartered Bank v Pakistan National Shipping Corporation (No 2) (2001) Lloyd's Reports 218 State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113 State of New South Wales v Paige [2002] NSWCA 235 State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 Sullivan v Moody (2001) 207 CLR 579 Summers v Salford Corporation [1943] AC 283 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Tambree v Travel Compensation Fund (2004) Aust Contract R 90-195 Tame v New South Wales (2002) 211 CLR 317 Thackwell v Barclays Bank plc [1986] 1 All ER 676 The King v Porter (1933) 55 CLR 182 Tinsley v Milligan [1994] 1 AC 430 Triggell v Pheeney (1951) 82 CLR 497 Vellino v Chief Constable of Grater Manchester Police [2002] 1 WLR 218 W v Meah and D v Meah [1986] 1 All ER 935 Williamson v Liptzin 539 S.E 2d 313 (NC App 2000) Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) HCA 16; 78 ALJR 628 Worrall v British Railways Board (Court of Appeal, Civil Division, unreported 29 April 1999) Wyong Shire Council v Shirt (1980) 146 CLR 40 X (Minors) v Bedfordshire County Council [1995] 2 AC 633
PARTIES:	Hunter Area Health Service - First Appellant Jacob Nazarian - Second Appellant Kevin William Presland - Respondent
FILE NUMBER(S):	CA 40821/03
COUNSEL:	P R Garling SC/G Gregg - Appellants B W Walker SC/G P Craddock - Respondent
SOLICITORS:	Francess Allpress - Appellants Steve O'Connor - Legal Aid - Respondent

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20192/98
LOWER COURT JUDICIAL OFFICER:	Adams J