McKenna v Hunter & New England Local Health District

[2013] NSWCA 476

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476

Hearing dates:

24, 25 and 31 July 2013

Decision date:

23 December 2013

Before:

Beazley P at [1];
Macfarlan JA at [4];
Garling J at [191]

Decision:

(1) Grant leave to appeal to Ms Simon and Ms Rose.

(2) Allow the appeal of Ms McKenna, Ms Simon and Ms Rose.

(3) Set aside the judgments entered at first instance in favour of the respondent and the costs order made in its favour.

(4) Judgments to be entered in due course as follows:

(a) In favour of Ms McKenna in the sum of $108,041.20 together with interest.

(b) In favour of Ms Simon in the sum of $63,957.30 together with interest.

(c) In favour of Ms Rose in the sum of $79,725.93 together with interest.

(5) Order the respondent to pay the costs of Mss McKenna, Simon and Rose incurred at first instance and on appeal.

(6) If the parties are able to agree as to the amounts of the judgments to be entered, direct that within seven days they file a form of consent order.

(7) If the parties are unable to so agree, direct that:

(a) The plaintiffs file written submissions concerning that issue within seven days of the date of this judgment.

(b) The respondent reply within a further seven days and

(c) The plaintiffs respond within a further seven days.

(8) Direct that the amounts of the judgments to be entered be determined by the Court upon the basis of the written submissions to be filed, without the necessity for a further oral hearing.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - person detained as mentally ill person under Mental Health Act 1990 - discharged next day into care of friend to be driven home from Taree to Victoria - s 35(3) Mental Health Act 1990 required that a mentally ill person not be detained if no longer mentally ill or care of a less restrictive kind is available and appropriate - during the trip to Victoria the person had a psychotic episode during which he killed his friend - family of deceased claimed damages for mental harm due to shock of learning of death of the deceased - whether duty of care owed by Hospital to deceased, and thence to family - whether such a duty of care inconsistent with requirements of the Mental Health Act 1990 - whether such a duty of care would create indeterminate liability - Hunter Area Health Service v Presland 63 NSWLR 22 discussed - whether Hospital negligent in making discharge decision - whether relevant risk of harm was the person killing deceased or causing some lesser harm to him - s 5B Civil Liability Act 2002 - whether conduct of Hospital psychiatrist conformed with a widely accepted 'practice' for the purposes of s 5O Civil Liability Act - special statutory power under s 43A Civil Liability Act - whether there was an exercise or failure to exercise a power conferred by s 35(3) Mental Health Act - whether Hospital's negligence caused deceased's death - s 5D Civil Liability Act - whether "appropriate for the scope of the negligent person's liability to extend to the harm so caused"

PROFESSIONS AND TRADES - negligence - whether conduct of Hospital psychiatrist conformed with a widely accepted 'practice' for the purposes of s 5O Civil Liability Act

Legislation Cited:

Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Mental Health Act 1986 (Vic)
Mental Health Act 1990 (repealed)
Supreme Court Act 1970

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; 136 CLR 529
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Chapman v Hearse [1961] HCA 46; 106 CLR 112Chappel v Hart [1998] HCA 55; 195 CLR 232
Cooper v Mulcahy [2013] NSWCA 160
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48
Donoghue v Stevenson [1932] AC 562
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540
Hughes v Lord Advocate [1963] AC 837
Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Minister Administering Environmental Planning & Assessment Act 1979 (NSW) v San Sebastian Pty Ltd [1983] 2 NSWLR 268
Mizzi v The Queen [1960] HCA 77; 105 CLR 659
Modbury Triangle v Anzil [2000] HCA 61; 205 CLR 254
Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742
Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102
R v M'Naghten (1843) 8 ER 718
R v Porter [1933] HCA 1; 55 CLR 182
Roads & Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Rogers v Whitaker [1992] HCA 58; 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Seltsam Pty Ltd v McNeil [2006] NSWCA 158
Shoalhaven City Council v Pender [2013] NSWCA 210
Sidaway v Board of Governors of the Bethlehem Royal Hospital [1984] 1 QB 493
Smith v Leurs [1945] HCA 27; 70 CLR 256
Smith v Littlewoods Ltd [1982] 1 AC 241
Stapleton v R [1952] HCA 56; 86 CLR 358State of New South Wales v Godfrey [2004] NSWCA 113; Aust Torts Reports 81-741
Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Tame v New South Wales [2002] HCA 35; 211 CLR 317
Ultramares Corporation v Touche (1931) 255 NY 170
Wallace v Kam [2012] NSWCA 82
Wallace v Kam [2013] HCA 19; 87 ALJR 648
Wicks v State Rail Authority of NSW [2010] HCA 22; 241 CLR 60
Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515

Category:

Principal judgment

Parties:

Merryn Elizabeth McKenna (Appellant in 2012/93586)
Sheila Mary Simon (First Appellant in 2012/93590)
Wendy Rose (Second Appellant in 2012/93590)
Hunter & New England Local Health District (Respondent in 2012/93586 and 2012/93590)

Representation:

Counsel:
B Toomey QC/G R Graham (Appellants)
R Cheney SC/J Lee (Respondent)
Solicitors:
T D Kelly & Co (Appellants)
Tress Cox (Respondent)

File Number(s):

CA 2012/93586; 2012/93590

 Decision under appeal 

Jurisdiction:

9101

Citation:

Simon & Anor v Hunter & New England Local Health District
McKenna v Hunter & New England Local Health District [2012] NSWDC 19

Date of Decision:

2012-03-02 00:00:00

Before:

Elkaim DCJ

File Number(s):

2006/267185; 2006/267187

HEADNOTE

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

In the early hours of 20 July 2004 Mr Stephen Rose was concerned about the mental state of his friend Mr William Pettigrove, and arranged for him to be taken by ambulance to the Manning Base Hospital in Taree ("the Hospital"). Following a medical assessment, Mr Pettigrove was compulsorily detained at the Hospital under the Mental Health Act 1990. After a subsequent assessment by a psychiatrist working at the Hospital, Mr Pettigrove was discharged on 21 July 2004 into the custody of Mr Rose to enable them to travel by car to Victoria where Mr Pettigrove's mother lived.

When the two men stopped on the Newell Highway near Dubbo after nightfall, Mr Pettigrove strangled and killed Mr Rose. Before his subsequent suicide, Mr Pettigrove said in an interview with police that he had acted on impulse, apparently believing that Mr Rose had killed him in a past life and seeking revenge.

In these proceedings the late Mr Rose's mother and sisters claimed damages for psychiatric injury resulting from nervous shock caused by the negligence of the respondent Health Service, which is responsible in law for the conduct of the Hospital and those working in it. They claimed that the Hospital owed them and Mr Rose a common law duty of care which it breached by discharging Mr Pettigrove from the Hospital into Mr Rose's custody.

By judgment of 2 March 2012, the primary judge concluded that the plaintiffs had not established negligence and had not in any event satisfied him that Mr Rose's death and, therefore, the injuries that they suffered, were causally related to the negligence they alleged.

Held: (allowing the appeal, per Macfarlan JA; Beazley P agreeing and Garling J dissenting)

(1) The Hospital owed Mr Rose a common law duty to take reasonable care to prevent Mr Pettigrove causing physical harm to Mr Rose, given that the Hospital had direct dealings with Mr Rose, including releasing Mr Pettigrove into his care, and had control over the source of risk to Mr Rose. ([1], [97], [103], [107]-[108]; Garling J contra at [248]-[250])

(2) The plaintiffs established negligence on the part of Dr Coombes, and therefore on the part of the Hospital, in discharging Mr Pettigrove from the Hospital into Mr Rose's custody on the morning of 21 July 2004. There was a foreseeable and not insignificant risk of serious harm being occasioned to Mr Rose. The Hospital did not respond to this risk by taking the precaution of continuing to detain Mr Pettigrove that would have been taken by a reasonable person in the Hospital's position. ([1], [111], [113]-[114], [145]-[154]; Garling J contra at [268]-[270])

(3) The Health Service is not entitled to the protection of s 5O of the Civil Liability Act as there was no relevant practice with which Dr Coombes conformed in discharging Mr Pettigrove. ([1], [165]-[166])

(4) The Health Service is not entitled to the protection of s 43 or s 43A of the Civil Liability Act as the claims were not for breach of statutory duty or based on the Hospital's exercise of, or failure to exercise, a special statutory power conferred by s 35(3) of the Mental Health Act 1990. ([1], [167], [174]-[176], [178]; Garling J contra at [286])

(5) The plaintiffs established that the injuries that Mr Rose, and therefore they, suffered were causally related to Dr Coombes' negligence. For the purposes of s 5D of the Civil Liability Act, the Hospital's breach was a necessary condition of the harm and it is appropriate that liability extend to this harm. ([1], [187])

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Macfarlan JA and of Garling J. Subject to the following matters, I agree with the reasons of Macfarlan JA and with his Honour's orders.

1. In my opinion, the respondent owed a duty of care to take reasonable care to avoid foreseeable harm to the deceased, Mr Rose. The factual circumstances giving rise to that duty are canvassed in the judgment of Macfarlan JA. For my part, I would describe the content of that duty of care more narrowly than Macfarlan JA. In my opinion, in the particular circumstances of this case, the respondent owed Mr Rose a duty of care not to release Mr Pettigrew, who was a mentally ill person, into Mr Rose's care, or at least his sole care, for the purposes of conveying him to Victoria where it was intended or, at least, expected that he would undergo further psychiatric treatment.

1. The relevant duty of care in this case is, of course, that owed to the appellants, the mother and sister of Mr Rose, who came within the provisions of the Civil Liability Act 2002, s 30(2)(b). In my opinion, in the normal course, the duty of care owed to a person whose entitlement to recover damages derives from s 30(2)(b), is of the same scope and content as that owed to the victim. In this case, I consider that the duty is as I have described it above.

1. MACFARLAN JA:

TABLE OF CONTENTS
Summary of case and conclusions	[5]
Relevant statutory provisions	[11]
The Civil Liability Act 2002	[11]
Mental Health Act 1990 (now repealed)	[11]
The factual circumstances	[12]
Mr Pettigrove's detention at the Taree hospital	[13]
The Echuca Medical Records	[28]
The night of 20/21 July 2004	[35]
Mr Pettigrove's discharge	[36]
Dr Coombes' oral evidence	[41]
The plaintiffs' particulars of negligence	[42]
The expert psychiatric evidence	[44]
Dr Giuffrida's evidence	[45]
Dr Kingswell's evidence	[46]
Dr Phillips' evidence	[47]
Dr Campbell's evidence	[48]
Dr Telfer's evidence	[50]
Dr Parmegiani's evidence	[52]
The experts' joint report	[54]
The experts' concurrent evidence	[69]
The judgment at first instance	[72]
Resolution of the appeal	[85]
Duty of care	[85]
Breach of duty	[109]
Section 5O of the Civil Liability Act	[155]
Section 43 and 43 A of the Civil Liability Act	[167]
Causation	[181]
Orders	[190]

SUMMARY OF CASE AND CONCLUSIONS

1. In the early hours of 20 July 2004 Mr Stephen Rose, being concerned about the mental state of his friend Mr William Pettigrove, arranged for Mr Pettigrove to be taken by ambulance to the Manning Base Hospital in Taree ("the Hospital"). After a medical assessment, Mr Pettigrove was compulsorily detained and later in the day transferred from the Emergency Department of the Hospital to its Mental Health Unit. Following a subsequent assessment by Dr Warwick Coombes, a psychiatrist working at the Hospital, Mr Pettigrove was discharged on 21 July 2004 into the custody of Mr Rose to enable them to travel by car to Echuca in Victoria where Mr Pettigrove's mother lived.

1. Tragically, when the two men stopped on the Newell Highway near Dubbo after nightfall, Mr Pettigrove strangled and killed Mr Rose. Before his subsequent suicide, Mr Pettigrove said in an interview with police that he had acted on impulse, apparently believing that Mr Rose had killed him in a past life and seeking revenge. He did not suggest that there had been any altercation between the two men.

1. In these proceedings the late Mr Rose's mother, Ms Sheila Simon, and his sisters, Ms Merryn McKenna and Ms Wendy Rose, claim damages from the respondent Health Service, which is responsible in law for the conduct of the Hospital and those, including Dr Coombes, working in it. There is no challenge on appeal to the findings of the primary judge, Elkaim DCJ, that these family members ("the plaintiffs") suffered nervous shock, with consequent psychiatric injury, as a result of Mr Rose's death. The respondent did not submit, at least to this Court, that the plaintiffs' claims conflicted with the limitations on recovery for pure mental harm arising from shock contained in s 30 of the Civil Liability Act 2002. Because of the amount of damages involved, two of them require leave to appeal (see s 101(2)(r) of the Supreme Court Act 1970). However the Health Service agrees that leave to appeal should be granted, as it should.

1. The plaintiffs contended at first instance that the Hospital owed them and Mr Rose a common law duty of care which it breached by reason of the conduct of Dr Coombes and the nursing staff in relation to Mr Pettigrove's discharge from the Hospital. By judgment of 2 March 2012, the primary judge concluded that the plaintiffs had not established negligence and had not in any event satisfied him that Mr Rose's death and, therefore, the injuries that they suffered, were causally related to the negligence they alleged.

1. The issues on the plaintiffs' appeals to this Court are in essence as follows:

(a) Did the Hospital owe Mr Rose a relevant duty of care? (It was accepted that if one was owed to Mr Rose it was equally owed to the plaintiffs.)

(b) Did the plaintiffs establish negligence on the part of Dr Coombes in connection with Mr Pettigrove's discharge from the Hospital?

(c) Is the Health Service entitled to the protection of s 5O of the Civil Liability Act concerning conduct of professionals in accordance with peer professional opinion?

(d) Is the Health Service entitled to the protection of s 43 or 43A of the Civil Liability Act concerning the exercise by public and other authorities of statutory duties and powers?

(e) Did the plaintiffs prove that the injuries that Mr Rose, and therefore they, suffered were causally related to any negligence on the part of Dr Coombes?

1. For the reasons below, my conclusions in relation to these issues are as follows:

(a) The Hospital owed Mr Rose a common law duty to take reasonable care to prevent Mr Pettigrove causing physical harm to Mr Rose.

(b) The plaintiffs established negligence on the part of Dr Coombes, and therefore on the part of the Hospital, in discharging Mr Pettigrove from the Hospital on the morning of 21 July 2004.

(c), (d) The Health Service is not entitled to the protection of s 5O, s 43 or s 43A of the Civil Liability Act.

(e) The plaintiffs established that the injuries that Mr Rose, and therefore they, suffered were causally related to Dr Coombes' negligence.

RELEVANT STATUTORY PROVISIONS

1. The relevant statutory provisions are as follows:

The Civil Liability Act 2002

"Part 1A Negligence

Division 1 Preliminary

5 Definitions

In this Part:

harm means harm of any kind, including the following:

(a) personal injury or death,

(b) damage to property,

(c) economic loss.

...

Division 2 Duty of care

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

...

Division 3 Causation

5D General principles

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

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

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

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

...

Division 6 Professional negligence

5O Standard of care for professionals

(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

...

Part 5 Liability of public and other authorities

41 Definitions

In this Part:

exercise a function includes perform a duty.

function includes a power, authority or duty.

...

43 Proceedings against public or other authorities based on breach of statutory duty

(1) This section applies to proceedings for civil liability to which this Part applies [namely, civil liability in tort] to the extent that the liability is based on a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority.

(2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

...

43A Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A special statutory power is a power:

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power."

Mental Health Act 1990 (now repealed)

"4 Care, treatment and control of mentally ill and mentally disordered persons

(1) The objects of this Act in relation to the care, treatment and control of persons who are mentally ill or mentally disordered are:

(a) to provide for the care, treatment and control of those persons, and

...

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

(a) persons who are mentally ill 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.

...

9 Mentally ill persons

(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

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

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

(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.

10 Mentally disordered persons

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

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

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

...

21 Detention on certificate of medical practitioner or accredited person

(1) A person may be taken to and detained in a hospital (other than an authorised hospital) on the certificate of a medical practitioner or an accredited person:

(a) who has personally examined or personally observed the person immediately before or shortly before completing the certificate, and

(b) who is of the opinion that the person is a mentally ill person or a mentally disordered person, and

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

(d) who is not a near relative of the person.

(2) The certificate is to be in the form set out in Part 1 of Schedule 2.

...

29 Examination on detention at hospital

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

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

...

32 Further examination at hospital

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

...

33 Consequence of further examination

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

...

35 Limited detention of mentally disordered persons

...

(2) The medical superintendent of a hospital must examine a mentally disordered person detained in the hospital at least once every 24 hours.

(3) If, on examination of a person detained as a mentally disordered person or a mentally ill person, a medical superintendent is of the opinion that the person is not a mentally disordered person or a mentally ill person or that other care of a less restrictive kind is appropriate and reasonably available to the person, the person must not ... be further detained in the hospital.

Schedule 1 Dictionary of terms used in the Act

medical superintendent, in relation to:

...

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

and, in Chapter 4, [which includes sections 29 - 35] ... includes a reference to a medical officer, nominated by the medical superintendent, attached to the hospital or authorised hospital, as the case may be."

THE FACTUAL CIRCUMSTANCES

1. Mr Pettigrove was born in 1962 and grew up in Victoria. By 2004 he had a 20 year history of mental illness, apparently chronic paranoid schizophrenia. In 2003 he travelled from Victoria to the Byron Bay area of New South Wales. There he met his old friend, Mr Rose, and by 19 July 2004 they were living together at a camping ground.

Mr Pettigrove's detention at the Taree hospital

1. At about 4.30 am on 20 July 2004 Dr Coombes was telephoned by a doctor in the Emergency Department of the Hospital in relation to Mr Pettigrove's arrival by ambulance at the Hospital. After he was given a description of Mr Pettigrove's condition, Dr Coombes advised the doctor to complete the documentation to enable Mr Pettigrove to be compulsorily detained and to give Mr Pettigrove an intramuscular injection of an anti-psychotic drug, Haloperidol, and a sedative. This injection was not a depot injection of the type that Mr Pettigrove had been receiving on a long-term basis until February 2004. The principal reason that Mr Rose appears to have arranged for Mr Pettigrove to be brought to the Hospital was that Mr Pettigrove was experiencing "physical jerks".

1. The duty doctor, Dr Patrick Saw, subsequently completed a form of certificate for the purposes of s 21 of the Mental Health Act that permitted Mr Pettigrove's compulsory detention. The certificate includes the following statements in handwriting:

"Suicidal ideation. States 'wishes to kill himself'".

"Concern harm to self/others".

"? Psychotic Depression".

1. As well, Dr Saw indicated that the printed statements on the certificate that the patient's detention was necessary for his own and other persons' protection from serious harm were applicable.

1. The Emergency Department notes made at the time of Mr Pettigrove's admission refer to him as having stated "I want to die", and as having "psychotic features" and a lack of response to questions.

1. A form on Mr Pettigrove's file, signed by Dr Coombes, refers to Mr Pettigrove's "presenting problem" as "DEPRESSION, PSYCHOTIC" and Dr Coombes' "PRINCIPAL DIAGNOSIS" of the condition responsible for Mr Pettigrove's admission as "Exacerbation of Chronic Paranoid Schizophrenia".

1. During the morning of 20 July 2004 a detailed "Assessment of Current Presentation" ("A1 Form") was completed by Mr Stuart Perks, the Clinical Nurse Consultant ("CNC") who was responsible for Mr Pettigrove that morning prior to Mr Pettigrove's transfer to the Hospital's Mental Health Unit at about 1235 hours. The Assessment refers to Mr Pettigrove "clearly experiencing psychotic phenomenon" and having experienced physical "jerks" the previous night. It states that he was pre-occupied and agitated, admitted to "voices that bother him" (although he denied suicidal or homicidal ideation), had a history of non-compliance with medication and that Mr Perks was unable to assess his cognition including his "orientation to time/place/person". Mr Perks also stated that he was unable to make an adequate suicide risk assessment but "no suicidal ideation was noted".

1. On a Standard Measure assessment form dated 20 July 2004, seemingly completed by a nurse, Mr Pettigrove was rated 2 out of 7 on an "Overactive, aggressive, disruptive or agitated" item and 3 out of 7 for "Problems with hallucinations and delusions". A similar form dated the following day and completed by a different person (Mr Cox, again a nurse) had ratings of zero and one respectively for these items.

1. Nursing notes for 2.00 pm on 20 July 2004, prepared by Ms Foley, refer to Mr Pettigrove being "conversant on approach" and, whilst admitting to auditory hallucinations the previous day, stating that he had none that day following receipt of medication. They also state that "when Phillip is well enough to return to Victoria his friend will drive him".

1. Later on 20 July 2004 Dr Kay Wu, examined Mr Pettigrove and then prepared, in her stated capacity of Medical Superintendent of the Hospital, a certificate for the purposes of s 29 of the Mental Health Act (see [11] above). After expressing the opinion that Mr Pettigrove was a mentally ill person, Dr Wu noted the following observations in handwriting in the certificate:

"Bizarre Behaviour

Inappropriate eye movement plus verbal activity

Suicidal ideation

At times not responsive

flat affect".

"Concern harm to self/others".

[Under the heading "Conclusion"] "Schizophrenia".

1. The further examination required by s 32 of the Act was conducted by Dr Coombes who provided written advice of the examination under s 33. His advice expressed the view that Mr Pettigrove was a mentally ill person and included the following comments:

"Well documented history of schizophrenia: documents from Echuca Mental Health Service"

"Looks perplexed, bewildered & sitting quietly by himself. No[t] obviously hallucinating but this cannot be excluded. Insufficient speech to reveal delusional material"

"No medication for at least seven months.

For admission overnight and transfer to his mother's home in Victoria tomorrow in company of his friend".

1. In a statement subsequently given to the police, Dr Coombes said that he completed this written advice after a meeting with Mr Pettigrove, Mr Rose and the duty nurse, Mr Paul Gallagher, that commenced at 4.00 pm on 20 July 2004. He said that by this time he had read the medical records faxed to the Taree Hospital from Echuca and had ascertained that Mr Pettigrove had been on medication for at least 20 years, including injections of a strong, long-acting, anti-psychotic "depot medication" given regularly, probably every two to three weeks. He noted that Mr Pettigrove had been in contact with his mother up until April 2004 and had indicated to her that he had been receiving his injections until then. He then said:

"During the meeting Phillip made a request to return to Victoria. This was to return to his family and receive ongoing treatment. Stephen ROSE who was also present, Stephen had been around in the hospital looking after his friend [sic]. Stephen indicated to me his wish to drive Phillip PETTIGROVES car and get him back to his family. During the meeting I had discussions with Stephen about the options available and alternatives. These alternatives included staying in the unit and remaining in Taree. Phillip PETTIGROVE'S mother was contacted by phone at 4.20 pm, during the course of this sixteen minute phone call we discussed a number of options, she indicated that she would like to see him home as soon as possible. During the sixteen minute call my mobile phone was passed around the room. I would have encourage[d] both Phillip and Stephen to have spoken to Mrs PETTIGROVE, I am unsure who actually spoke to her ...

I note that Paul Gallagher has noted in the progress notes for Phillip PETTIGROVE that he had spoken to his mother [this seems in fact to be a reference to a telephone call made during the meeting with Dr Coombes] and she was most anxious for Phillip to return home. Also during this meeting discussed with Stephen and Phillip about the safest way to get to Victoria. My strong recommendation was to travel a route that had a number of psychiatric services along it. This route included travelling from Taree to Newcastle/Wyong/Sydney/Bowral Goulburn/Wagga Wagga/Albury. It was my opinion that these centres would provide help if difficulties occurred during the journey. My assessment from speaking to Stephen during the meeting [was] that he was a concerned and reliable friend. Once the evacuation plan was settled they would set out at approximately 7.00 am the following morning".

1. Mr Gallagher's nursing notes for this meeting state that:

"Phillip was generally uncommunicative but consensus was decided in favour of Phillip going back to his mum's place in Victoria as soon as possible. Steve will drive him back to [Victoria] leaving Taree early tomorrow morning. Mrs Pettigrove was contacted on the phone and she is most anxious for Phil to return home".

1. After the meeting Dr Coombes also completed a "R2 - DRAFT CLINICAL REVIEW". Dr Coombes ticked the boxes indicating that there was no foreseeable risk of Mr Pettigrove inflicting harm on himself or others. He added in handwriting:

"Well-documented history of schizophrenia for 20 years. Now withdrawn, perplexed, almost mute, sitting quietly by himself. No[t] obviously hallucinating. Insufficient speech to detect delusions.

Given medication today - probably marginally better this afternoon. No apparent risk to self or others."

1. He then stated that the actions to follow his review were as follows:

"(i) Admit overnight.

(ii) Friend Stephen Rose to bring car tomorrow morning and both will drive to Echuca tomorrow.

(iii) Discharge tomorrow am.

(iv) No medication on discharge".

1. In the place on the form provided for identification of the author (that is, "DESIGNATION"), Dr Coombes stated "Psychiatrist".

The Echuca medical records

1. During the course of 20 July 2004 the Echuca Community Mental Health Service sent copies of its records relating to Mr Pettigrove to the Hospital. As already noted, they were read by Dr Coombes before he gave his s 33 advice.

1. The records included a Discharge Summary indicating that Mr Pettigrove had been admitted to the Echuca Acute Psychiatric Unit on 11 January 2001 after transfer there by ambulance. It said that he had catatonic schizophrenia and, after absconding from the Cohuna Hospital, was almost hit by a car in front of the hospital. It also said that he had had a relapse of catatonic schizophrenia due to non-compliance with medication prescriptions and had left a note for his mother at his flat saying:

"Help, they're using me to get to god. They're turning me into the Devil so they can get to heaven".

1. He was discharged on 19 January 2001, with a prescription for oral medication of Risperidone. He was readmitted on 21 February 2001, and discharged again on 13 March 2001.

1. The history of his illness was described as follows:

"Police in Cohuna received information that a male person was walking down the side of the road and trying to jump in front of passing trucks. Police found him lying face down on the road (10 km from Cohuna). At interview with CATT Phillip presented confused, disoriented and delusional. 'People trying to get him'. Phillip was talking to himself all the time. According to his mother, Phillip has been non-compliant with oral medication. After discharge from ABC in January 2000 [2001?] he was put on Risperidone 4 mg daily (2mg mane, 2 mg nocte)".

1. Observations made on his examination included:

"Thought: loosening of association, poverty of thought. Content: expressing bizarre ideation. 'Robot' contacting him. Paranoid delusions: people are trying to get him. Probable suicide ideation. No homicidal ideation. Perception: denies any disturbances, however likely auditory hallucinations (possibly command nature)".

1. His final diagnosis was stated as Chronic Paranoid Schizophrenia. On discharge he was prescribed fortnightly depot injections.

1. The Echuca records also included a social worker's notes of her monitoring of Mr Pettigrove in the period 27 October 2003 to 19 April 2004, including whilst Mr Pettigrove was in New South Wales. They showed that the social worker was concerned to ensure that Mr Pettigrove had the prescribed regular depot injections and that she often had difficulty in ensuring that he obtained them. The notes conclude with a reference to a transfer of case management responsibility to the hospital at Taree. This led to the Taree Hospital being notified of Mr Pettigrove's presence in the area.

The night of 20/21 July 2004

1. The nursing notes for 6.30 am on 21 July 2004 included the following:

"Nursing 0630 hrs observed to be awake on all rounds, pacing in his room once the courtyard was locked, talking loudly to himself. Refused oral prn medication and refused the offer of hot milk and honey. Said he felt restless and would walk until he fell to sleep. No management problem, remaining in his room, and keeping his voice down on request. Says he is looking forward to going back to Victoria today. S C Reece RN.

Nursing 0630hrs addit: Phillip was heard to say by staff in courtyard 'I love my ? wife or life' several times prior to retiring to his room. Staff could not hear what Phillip was saying when he was talking to himself in his room and he would stop when staff knocked and entered on rounds. S C Reece RN".

Mr Pettigrove's discharge

1. On arrival at the hospital at 8.15 am on 21 July 2004, Dr Coombes found that Mr Rose had not arrived earlier as had been arranged with him the previous day. In his police statement Dr Coombes described what happened thereafter:

"... I spoke to Phillip. He told me that he had not had any hallucinations or distressing thoughts. During this conversation Phillip pointed out the area that he and Stephen had been camping for the past month. It was my opinion that he was fit for discharge in the company of his friend and that the return to Echuca was a reasonable proposition. Phillip could not tell me why Stephen had not arrived as arranged.

About 10.30 am I saw Stephen ROSE in the foyer of the hospital. I stopped and had a conversation with Stephen. He appeared as the previous day. He did not smell of alcohol. He explained that he had been delayed by breaking up their camp but offered no other explanation as to why he had been delayed for over three hours. I went into the ward and spoke to Phillip and the nurses on ward. When Phillip and Stephen met they gave each other a warm hug and appeared to be on very good terms and both in good spirits.

Nursing formalities were completed including one night's supply of medication, meaning medication to take with him for the trip. This was one tablet of Risperidone 2 mg. I was aware that Phillip was going to share the driving during the trip so given this information I felt it was best not to give him any medication prior to departure so that he would not be drowsy when driving. Phillip and Stephen left the hospital at 11.35 am on 21 July 2004. I [walked] up the corridor with them and waved [them] good by[e]".

1. The nursing notes similarly say that on Mr Rose's arrival at the hospital, he and Mr Pettigrove "hugged and greeted each other warmly". They say that "[t]hey did seem at ease in each other's company and were on most amicable terms".

1. The Discharge Report of that day, signed by Dr Coombes, refers to Mr Pettigrove's medications on discharge as being Risperidone of 2 mg, to be taken at night with one week's supply being provided to him.

1. A Discharge Summary letter prepared by Dr Coombes after he became aware of the death of Mr Rose refers to Mr Pettigrove and Mr Rose having been friends for 10 years and travelling around Australia for seven months and a "history of hospital admissions at least since 1995". He notes that the Echuca records reported Mr Pettigrove "receiving his depot injections until April 2004".

1. In his police statement, Dr Coombes included the following in relation to his decision to discharge Mr Pettigrove:

"Stephen ROSE and Phillip PETTIGROVE appeared to be very good mates. I am unaware of any conflict between [the] two. Stephen showed constant concern for Phillip throughout his time at Manning base hospital.

...

The decisions made by treating staff were very difficult and depended upon the careful consideration of probabilities. I thought this man would be best treated by his long-term treatment rather than being detained in a mental Health facility some 1200 km from his family and friends. He was not a man with any forensic history and no history of violence noted in his clinical file. These considerations were weighed up in assessing the risks of a transfer inter state. He was detained in NSW under the Mental Health Act and his transfer to Vic Mental Health facilities would have involved considerable negotiation between authorities against which a speedy but private transfer was thought to have advantages".

DR COOMBES' ORAL EVIDENCE

1. Dr Coombes' evidence included the following:

"Q. Doctor, will you look at paragraph 10 of the statement you gave to the police and read from that:

'Phillip had been on injections of Clopixol 200 mls. I'm not sure how regularly this was given. It would be usual this amount would be given each two or three weeks. Apart from the notes, it appears that up until April 2004 Phillip had been in contact with his mother and indicated that he'd been receiving his injections'.

A. That's correct

...

A. That was right.

Q. Yes, So you knew, at the time you were assessing this man, if indeed you ever assessed him - but we'll come to that - at the time you assessed him, you knew he'd been on depo injections and yet there is not a mention of you considering that the depo injections should be resumed. Why was that?

A. I can't explain that.

Q. No. Because it's really quite an extraordinary omission isn't it, doctor?

A. It's an omission, yes. (Transcript pp 113 - 114).

...

Q. [Mr Pettigrove] could just become irrational [on the journey to Victoria] and, in some way, harm Mr Rose. That was a complete and obvious possibility, wasn't it?

A. As you put it.

Q. Yes. And that's precisely why you mentioned Newcastle, Sydney, Goulburn, Wagga, Albury. But let's face it, doctor, driving along some of those stretches you're going to be driving through very lonely and wooded areas anyway, aren't you?

A. Right.

Q. So what you did is, you put Mr Pettigrove with Mr Rose knowing all those things you've just stated to his Honour and myself? All those risks?

A. I thought the chance of any of those things happening was very low, if not negligible.

...

Q. ... Well, in any event, you'd certified this man as mentally ill?

A. Yes.

Q. And, in addition, you knew at that time, as we've discussed, his history from Victoria about hallucinations, possibly command and as well as paranoid delusions. Those factors magnified the risk of something untoward happening on that very long journey, didn't it?

A. Had they been present, yes.

Q. And, of course, you never know when they're going to be present do you?

A. No.

Q. And if he had had a depo injection and it had been given the time to work, the chances of that happening would've been vastly reduced?

A. Yes. (Transcript pp121 - 122)

...

Q. ...So you've got a man who when you heard about him on the morning [of 20 July 2004] and saw him at 8am in the morning you thought he was a man who was distressed, who needed help?

A. That's correct.

Q. When you saw him at 4 o'clock he was still a man who was distressed and needed help, wasn't he?

A. He still needed help and I thought he should continue the help in a less restrictive environment than Manning Base Hospital and return to Echuca. (Transcript p 125).

...

Q. And all Mr Rose did is make the very decent offer that 'When he's well, I'll drive him back'. Now, doctor, when Mr Pettigrove left the hospital on the 21st, he had not recovered from his acute psychotic episode, had he?

A. He had not recovered but he was sufficiently settled, I considered, to be able to transfer to another place.

Q. Settled but as you'd said in answer to questions from his Honour you thought it would be necessary for him to be escorted by two solid males from emergency to the mental health unit?

A. This was about 24 hours beforehand" (Transcript p 130).

THE PLAINTIFFS' PARTICULARS OF NEGLIGENCE

1. There were numerous pleaded particulars of negligence. In light of the manner in which the case was subsequently conducted the following were the principal ones:

"(a) Failing to detain Pettigrove until he was properly medicated.

...

(e) Failing to medicate Pettigrove prior to his discharge, especially given his prior history of non-compliance with oral anti-psychotic medication.

...

(g) Failing adequately to monitor Pettigrove's condition and behaviour on the morning of 21 July 2004.

(h) Failing to bring or adequately bring that condition and behaviour to the attention of the medical personnel treating Pettigrove at the hospital.

(i) Discharging Pettigrove on 21 July 2004 notwithstanding that condition or behaviour.

(j) Discharging Pettigrove when he was in a condition that represented a significant risk to himself and others.

...

(l) Discharging Pettigrove into the sole care of Mr Rose when they then faced an overnight journey alone together to Victoria".

1. Supplementary particulars, included in the plaintiffs' final written submissions at the trial, included:

"(b) Placing [Mr Pettigrove] with [Mr Rose] when the condition of [Mr Rose's] offer ... [Mr Pettigrove] being 'well' had not been satisfied;

(c) Failing to give a depot injection and allow time for it to work".

THE EXPERT PSYCHIATRIC EVIDENCE

1. The plaintiffs tendered the expert psychiatric reports of Dr Michael Giuffrida, Dr William Kingswell and Dr Jonathan Phillips, whilst the Health Service tendered those of Dr Andrew Campbell, Dr James Telfer and Dr Julian Parmegiani. These psychiatrists subsequently conferred with each other and produced a Joint Report dated 8 August 2011. They also participated in a concurrent evidence session which took place before the primary judge on 16 February 2012, in the course of the final hearing of the proceedings.

Dr Giuffrida's evidence

1. Dr Giuffrida conclusions in his report dated 19 June 2006 included the following:

"The fact that Mr Pettigrove was awake all night talking loudly to himself would have to be taken as prima facie evidence that he was in fact experiencing auditory hallucinations and talking back to the voices. He also had a history of delusional beliefs that people were trying to harm him. There was therefore strong evidence that Mr Pettigrove was indeed acutely psychotic and almost certainly was responding to auditory hallucinations and in that context, given his past history of delusional beliefs, it is highly probable that he was experiencing similar delusional beliefs at the time. Even in the absence of clear and unequivocal evidence of auditory hallucinations and delusional ideas, given that background history and his current presentation, any treating psychiatrist in those circumstances would have had to assume that the person was likely to have been experiencing auditory hallucinations and delusional ideas and as such would be of some potential significant risk of harm both to himself and others.

It is in any case clear in the doctors writing first of all, a Schedule 2 [a s 21 certificate] and then writing Form 2's [s 29 certificate and s 33 advice] under the Mental Health Act as a Mentally Ill Person within the meaning of the Act that Mr Pettigrove was not only simply psychotic with signs at least of serious disorder of thought form, auditory hallucinations, delusional ideas or irrational behaviour indicating the former, that he also represented a significant risk of harm to himself or others. Certainly it was considered appropriate by Dr Coombes that Mr Pettigrove be admitted and detained.

I am of the opinion that the fundamental error of judgement was the decision by Dr Coombes to discharge Mr Pettigrove only the following day after his admission in the care of a friend, whose bona fides were not established and in whose company Mr Pettigrove had obviously deteriorated into a psychotic state probably over at least some days if not some weeks before his friend was sufficiently concerned to call an ambulance to take him to hospital.

I am of the opinion that it was extremely unwise if not negligent to hand over the care of an acutely psychotic patient to a friend who had known him in these circumstances over the previous weeks or months to drive him all the way to Victoria.

There is also the issue that Mr Pettigrove was not only acutely psychotic and therefore almost certainly lacking in judgement and insight into the nature and seriousness of his own mental illness but that he was simply given oral Risperidone medication to take with him on his journey to Victoria. In those circumstances I think it was extremely unlikely that Mr Pettigrove would have taken any of the medication dispensed to him. That would mean that not only was he discharged in an acutely psychotic state but also with little or no prospect that he would have any continuing treatment even when and if he returned to Victoria. I don't think one could rely on Mr Pettigrove in all of those circumstances arriving in Victoria, returning to his mother's care and going back to the mental health service and having acute and ongoing care".

Dr Kingswell's evidence

1. Dr Kingswell's conclusions in his report dated 13 July 2006 included the following:

"Mr Pettigrove had a history of poor compliance leading to a deterioration of his illness. His illness was associated with self neglect including refusal to eat or drink and dangerous behaviour such as running in front of cars and lying in the road. The cross sectional assessment at Taree 20 July 2004 was all in the same direction, Mr Pettigrove was acutely psychotic with a number of oddities of thought and behaviour including auditory hallucinations, talking to himself, a wish to be dead and fluctuating cooperation with ordinary activities such as eating and drinking.

'No apparent risk to safety of self or others' was:

i) Not in my view a conclusion available on the evidence to hand.

ii) At odds with the evidence provided on the Mental Health Act detention forms.

iii) At odds with the assessment of the CNC 20/7/04 [see [15] above] who concluded 'unable to make an adequate assessment'.

There was an obvious risk of self neglect and self harm by misadventure or suicide attempt. There was no available evidence to suggest that homicide was a likely outcome.

There was an obvious risk that Mr Pettigrove would not comply with prescribed treatment as he had two previous admissions in Bendigo arising from non-compliance.

...

Mr Pettigrove had been detained against his will on the 20th July 2004, 'for the person's own protection from serious harm; or for [the] protection of others from serious harm'. There is no evidence in the documentation that anything that occurred between Mr Pettigrove's admission and discharge less than 33 hours later diminished that likelihood of serious harm".

Dr Phillips' evidence

1. Dr Phillips' conclusions in his report dated 19 September 2006 included the following:

"These two file entries [of the nursing staff timed at 0630 hours - see [33] above] are of very considerable importance. They suggest strongly that Mr Pettigrove's clinical condition had deteriorated overnight in a broad sense, and the two entries suggest that he was psychotic (out of touch with reality). It had become inappropriate by them to discharge the patient in the manner and at the time suggested by Dr Coombes.

...

Paranoid schizophrenia is a relatively uncommon but often severe psychotic disturbance of the mind. It is thought to be a genetically-based disorder. It is often severe and unpredictable in its clinical course. It is an illness in which the patient can show unpredictable dangerous behaviour directed at self or others. Most patients who suffer paranoid schizophrenia will show some improvement when medicated with an anti-psychotic agent. Compliance with treatment is not uncommonly poor and a patient with paranoid schizophrenia is often best medicated using a long-acting depot anti-psychotic agent.

...

On the balance of probabilities, if nursing staff had alerted Dr Coombes on 21 July 2004 that Mr Pettigrove's clinical condition had deteriorated during the night and assuming that Dr Coombes would have then reversed his decision regarding the patient's early discharge and held the patient in hospital for further observation and treatment, then Mr Pettigrove would not have made the impulsive severe attack on Mr Rose at approximately 3.30 pm [sic], 21 July 2004 which led to the death of Mr Rose".

Dr Campbell's evidence

1. In his report of 30 March 2007, Dr Campbell referred to various risks that increase the possibility of sufferers of schizophrenia engaging in violent and aggressive behaviour: drug or alcohol abuse, an anti-social personality disorder and non-adherence to prescribed medication. He said that there was no indication that either of the first two factors were applicable to Mr Pettigrove and said, in relation to the third, that Mr Pettigrove had been medicated, "even if only for 24 hours". Dr Campbell continued:

"With these known risk factors eliminated there is still an increased chance that a person with psychosis is likely to commit homicide but this risk is not much greater than for the so called normal population. Certainly a diagnosis of psychosis in itself is not a reason to keep someone in hospital unless the psychosis itself is not responding to treatment. People suffering the uncomplicated kind of psychosis that Mr Pettigrove experienced are actually very unlikely to commit antisocial or criminal acts.

...

Risk assessment revolves around the level of resolution of acute symptoms with the return of self control, the presence of any ongoing delusions or command hallucinations that could predictably lead to harm to self or others. However the most reliable predictor is a previous history of aggression or self harm. Here the only past history was of self harm.

...

It was subsequently observed that he did not appear to sleep that night, refused prn medication and still appeared to be hallucinating early next morning.

When he was reviewed by Dr Coombes on the next day, the morning of discharge, he was again settled, cooperative and later observed to greet his friend warmly. The assessment by Mr Cox indicated a rating of only 1/7 for hallucinations and the other acute symptoms were rated at 0/7 (see [17] above) which supports the clinical observation of clinical improvement. The ratings for negative symptoms had remained unchanged which is expected and not related to risk issues.

...

The decision that Mr Pettigrove should be driven back to Victoria by the deceased was supported by his mother, Mr Rose and other clinical staff involved in the decision at the time and was not unreasonable given that his psychosis was seen as settling.

At the time of discharge most experienced clinicians would have regarded the predictable risk of violence or harm to others was virtually zero in this case.

However the same cannot be said of the risk to harm to self as there was a past history of such behaviour in the acute phase of illness and Mr Pettigrove had not been observed for sufficient time after his acute phase settled for a clinician to be assured he was indeed safe. There were frequent observation that assessment was difficult due to his withdrawal and poor verbal communication. Although he denied homicidal or suicidal thoughts clearly he was battling with inner turmoil within a few hours of discharge.

Consequently I believe a more prudent course would have been to delay discharge until the patient had been settled for several days mainly because of the more predictable risk to self.

...

There is a question as to whether he should have been more medicated or sedated prior to transfer is difficult to answer. The medication prescribed on 20/7 would have had an effect for about 24 hours and so was due to be repeated at eight am on the 21st . However Dr Coombes recommended no further medication until later that evening. Mr Pettigrove was clearly sensitive to side effects and excess medication could have caused more serious side effects and would have been dangerous unless in an Ambulance with trained escort. The issue was whether the medication had had time to be effective. Clearly 24 hours after the attack Mr Pettigrove was calm and lucid and not presenting danger to anyone.

In summary I believe Dr Coombes could have made a more cautious decision and not discharged Mr Pettigrove on the day in question, given the evidence that his patient was still in a psychotic state hours before discharge, the effectiveness of the medication had not been tested and the possibility of ongoing risk of self harm had not been adequately resolved. However there was no evidence in the file notes, clinical or otherwise, available to Dr Coombes that a decision to discharge the patient on the day in question could have predictably [led] to the events that followed, i.e. harm to others".

1. In a subsequent report of 14 January 2008, Dr Campbell was asked to consider evidence given by Nurse Foley and Dr Coombes at an inquest into Mr Rose's death. Nurse Foley (née Reece) gave evidence consistent with what was contained in her notes timed at 6.30 am on 21 July 2004 (see [35] above). Dr Campbell concluded:

"Consequently I see no reason to change my opinion that Dr Coombes made a considered risk assessment in agreeing to proceed with the discharge [of] Mr Pettigrove that day. The evidence of Nurse Foley indicated [her] patient was not fully recovered from his psychotic condition, was hallucinating and had not slept but was not presenting any overt risk to self or others. However these symptoms were not clinically apparent to Dr Coombes when he examined him immediately before discharge. Under the requirements of the Mental Health Act Mr Pettigrove was deemed to continue to be a voluntary patient on the day of discharge and was free to leave.

...

I think Dr Coombes made reasonable decisions about medication prescribed on the day in question. Mr Pettigrove was known to be sensitive to the effects of neuroleptic medication, which take several days to weeks to cause clinical improvement. Excess sedation would have only complicated the drive and not have been likely to avert the command delusion that led to the death of Mr Rose".

Dr Telfer's evidence

1. In his report dated 19 June 2008, Dr Telfer said the following concerning the adequacy of Mr Pettigrove's medication:

"The treatment plan was for Pettigrove to return as soon as practicable to Victoria. This entailed a long drive. The medications given would have to be chosen to minimise incapacitating side effects such as excess sedation, movement disorders, restlessness or confusion which could be problematic during a long journey. The types of medication (Haloperidol, Risperidone) and their doses administered and given were effective in the treatment of psychosis and would carry little risk of compromising the journey to Victoria or account for adverse reactions. The use of depot intramuscular injection would carry this risk.

The Hospital knew that Mr Pettigrove had a history of non adherence to medications, but they had assessed that he had received 6.5mgm of Haloperidol on 20.7.08. This could be reasonably anticipated to have some beneficial effects for several days".

1. Dr Telfer's conclusions concerning Mr Pettigrove's discharge included the following:

"I consider that the worst possible outcome that could reasonably be anticipated in the event of another relapse would be a return of the behaviour seen on the earlier relapses. This would probably interrupt the journey to Victoria.

There was a risk of a return of suicidal ideas. There was no reasonably foreseeable risk of an assault on others.

These risks could have been reduced by a longer period of medication treatment at Taree Hospital before undertaking the journey. How feasible this would have been is not clear to me from the documents given to me.

...

It is not clear whether the nursing observations rendered by S. Reece or C. Cox on 21 July 2004 were communicated to medical staff. These observations were not clear evidence of relapse and no evidence of a risk of harm to others. No behavioural abnormality was noted at the time of the discharge. The observations of walking in his room and talking to himself and being awake when checked hourly were not indicative of a severe condition entailing risk to others or precluding the patients cooperation. There was no standard requirement to report such non specific behaviour to medical staff".

Dr Parmegiani's evidence

1. In his report dated 19 December 2007 Dr Parmegiani expressed the following conclusions based on the information with which he had been provided:

"In chronic schizophrenia, symptoms improve with antipsychotic medication, but do not resolve altogether. Symptoms fluctuate over time, requiring monitoring and changes in medication. Non-compliance with prescribed medication can lead to an exacerbation of symptoms. Similarly, resuming pharmacological treatment often leads to a significant improvement within a short time.

...

The information provided did not indicate that Mr Pettigrove's psychiatric treatment was inappropriate. Firstly, Dr Coombes had assessed Mr Pettigrove on repeated occasions, over a short period. On these occasions, Dr Coombes had no reason to believe that Mr Pettigrove was a danger to himself or others. The information suggested that Mr Pettigrove's psychiatric symptoms had improved significantly after he received antipsychotic treatment. Dr Coombes expected Mr Pettigrove to return to Victoria within 24 hours. Medication administered in hospital should have controlled Mr Pettigrove's symptoms until his return to Victoria.

The issue of suicide ideation was initially explored on admission, but the doctor could not reach a firm conclusion because Mr Pettigrove was uncommunicative. Symptoms settled within 24 hours. Dr Coombes assessed Mr Pettigrove as a low risk of harm to himself or others. Dr Coombes was aware that Mr Pettigrove had a supportive network in Victoria, including his extended family and parents. The documentation reviewed did not indicate that Mr Pettigrove was a risk to himself or others.

Research into the relationship between schizophrenia and violence suggests that violence is common in the first episode of psychosis. As the illness progresses, patients become less likely to act on irrational beliefs. Mr Pettigrove had a 20-year history of schizophrenia, making him less likely to act on delusional beliefs. This would have been taken into account by a psychiatrist deciding whether Mr Pettigrove should be discharged from hospital".

1. Dr Parmegiani's report of 6 March 2008 included the following:

"The Australian Institute of Health and Welfare (AIHW) is Australia's national health and welfare statistics and information agency. The Institute published a report called 'Mental Health Services in Australia 2004-2005.'

The report stated that for the period of 2004-2005 there were 36,517 admissions to psychiatric hospitals in New South Wales. Schizophrenia was responsible for 18.8% of admissions. The number of patients admitted for schizophrenia can thus be calculated.

36,517 x 18.8 = 6,865 people admitted for schizophrenia.

The AIHW report indicated an average length of stay of 15.9 days in public acute psychiatric hospitals. The report only provides an average length of stay, and it does not indicate how many patients had shorter or longer admissions. An indication can be obtained from AIHW National Hospital Morbidity Database, which is available online ...

...

In summary, in the year 2004-2005, 943 males aged 40-44 yr with a diagnosis of Paranoid Schizophrenia were admitted to psychiatric hospitals, as involuntary patients. 491 patients, or 52% were discharged the same day. This is in contrast with the average length of stay, already noted to be 15.9 days".

The experts' joint report

1. The questions to the expert psychiatrists, and their responses, that are of present relevance were as follows.

1. In answer to question 1 concerning the adequacy of Mr Pettigrove's medication on discharge, Drs Kingswell, Giuffrida and Phillips opined that, because of Mr Pettigrove's history of non-compliance in taking medication, he should not have been discharged, but if he were to be discharged, he was under-medicated. The Health Service's experts disagreed.

1. In answering question 2, all the experts agreed that there was an appreciable risk that in the future Mr Pettigrove would suffer an exacerbation or continuation of the acute psychotic episode that led to him being admitted on 20 July 2004.

1. In answering question 4(a) (as to factors favouring Mr Pettigrove's discharge), Dr Kingswell (with whom Drs Giuffrida and Phillips agreed) said:

"There are only 3 possible features: Mr Pettigrove's wish, his mother's wish and Mr Rose's wish. Mr Pettigrove's wish was meaningless because he had also wished to be 'put out of his misery'; his mother's wish would have changed if she had known it was unsafe (to her son) to discharge him; Mr Rose only said 'he would drive him when he was well' and he wasn't well".

1. On the other hand, Dr Telfer (with whom Drs Parmegiani and Campbell agreed) attached significance to those wishes, to an improvement in Mr Pettigrove's mental state overnight and to Dr Coombes' observation of him on 21 July 2004 that he was settled, cooperative and not distressed.

1. In answer to question 4(b), Dr Giuffrida (with whom Drs Kingswell and Phillips agreed) identified the following factors against discharge:

"1. He had a long history of illness with 2 in more recent times admissions to hospital of 2-3 weeks which gave an indication of the likely time to treat to stability and discharge;

2. The acuity of the illness itself;

3. The circumstances of the admission where his friend brought him to hospital because he could no longer manage him;

4. The lack of an acute treatment plan;

5. The lack of an ongoing treatment plan;

6. The actual treatment plan of 7 days of oral risperidone which he was highly unlikely to take given his history of non-compliance;

7. The effects of the small doses of haloperidol would wear off after 24 hours;

8. The nature of his mental state on the night before his discharge where he was hallucinating;

9. It was expected that he was going to share the driving with Mr Rose back to Victoria but with his dose of risperidone you would not have expected someone to drive on this medication. This could put him at risk of crashing on his way".

1. In answer to that question, Dr Telfer (with Dr Campbell agreeing) identified a risk of a return of "a form of his psychosis". With obvious sarcasm, Dr Parmegiani said that the only factor was "the treating doctor's lack of hindsight".

1. In answer to question 6, as to whether it was reasonable to discharge Mr Pettigrove had the overnight observations of the nursing staff of Mr Pettigrove being awake, walking around, talking to himself and refusing medication been provided to the medical staff, Dr Telfer, (with whom Drs Parmegiani and Campbell agreed) gave the following reasons for an affirmative answer:

"1. He was no longer necessarily detainable under The Mental Health Act and therefore his wishes, his mother's wishes and his friend's wishes were highly significant.

2. It permitted reconnection with the health service with which he was familiar.

3. There had been improvement with his mental state overnight and he had the capacity to make decisions about his treatment and discharge issues.

4. Dr Coombes had examined him in the morning where he appeared settled, cooperative and not distressed. This gave no grounds for refusing his discharge".

1. The plaintiffs' experts considered that it was unreasonable to discharge Mr Pettigrove.

1. In answer to question 7, concerning the risk of Mr Pettigrove harming others, Dr Kingswell (with whom the Health Service's three experts agreed) said:

"There was a risk of homicide because he was psychotic and had paranoid delusional beliefs. That risk was fanciful. It was so small that a clinician could not have predicted it. Relatively high risk of minor harm to others, not a significant risk of serious harm to others and a fanciful risk of homicide".

1. With the agreement of the Health Service's other two experts, Dr Parmegiani added:

"The likelihood of homicide was in the order of 1 in 3,000. The notion of prospective risk assessment of homicide in this case is fanciful. In addition:

1. Homicide is extremely rare;

2. Predictors are notoriously fallible;

3. Mr Pettigrove had no history of violence;

4. He had not voiced any threats to harm others;

5. Efforts at developing risk assessment tools for homicide have proved fruitless".

1. Dr Giuffrida (with Dr Phillips agreeing) expressed disagreement with these views:

"I don't consider the risk of homicide or harming others was fanciful or insignificant. For these reasons:

1. He was scheduled and form 2 was completed twice indicating he was a risk to himself and to others;

2. He was psychotic and had thoughts of suicide;

3. There is a significant correlation between being at risk of harming yourself and harming others. Whilst the risk of homicide and serious harm to others is substantially increased with a drug and alcohol problem in the study by Nielssen et al of homicide only 40% were intoxicated with substances at the time of offence. The largest study on this issue (Nielssen) shows that 60% of the patients who harmed others were not intoxicated at the time;

4. He had a history of command hallucinations and of paranoid delusional beliefs about other people. People with command hallucinations are more likely to act on them when they are consistent with their delusional beliefs".

1. In answer to question 9, all of the experts agreed that a longer period of medication treatment at the hospital would have reduced the risk of Mr Pettigrove suffering an acute psychotic episode during the drive to Victoria.

1. In answer to question 10, all of the experts agreed that Mr Pettigrove could not have been certified fit to fly to Victoria on 21 July 2004, even if escorted.

1. In their answers to questions 11 and 12, the Health Service's experts opined that Dr Coombes' conduct did not fall below a standard widely accepted in Australia by peer professional opinion as competent professional practice. Dr Phillips agreed, adding that "[a]lthough it is my view that it was unreasonable to discharge him, I accept that a body of my peers consider it reasonable to have discharged him". Drs Giuffrida and Kingswell disagreed.

The experts' concurrent evidence

1. In relation to question 2 answered in the Joint Report, Drs Phillips and Campbell commented as follows:

"WITNESS PHILLIPS: Your Honour, I think it would be fair to say that his experience overnight in the hospital was one of agitation and quite a high state of distress, which is not uncommon in people with a psychotic illness; as darkness comes there are less cues to keep a person focussed, and the trip did start later than was anticipated with an almost inevitable overnight stop somewhere, or worse still driving through the night, and that would have added to the risk of an exacerbation of psychotic symptoms whether or not he had the additional medication.

...

WITNESS CAMPBELL: ... I don't disagree with that, that it could be stressful, but my reading of the case was that, and I was aware that they had left later, was that they had been sleeping in tents for the last two months and coped fairly well generally with that. There was medication available and I'm assuming that Pettigrove - that both people knew that the tablet was available that night to take, so ...

...

Psychiatric wards are very noisy places, it's very hard to sleep, particularly on the first night".

1. In commenting on the possibility of Mr Pettigrove suffering a recurrence of his jerking symptoms during the drive to Victoria, Dr Telfer said:

"WITNESS TELFER: I think that's a very important issue and in discussing it, I think we felt that the discharge although there's an argument for it, was at the very least about the earliest it could possibly have been made. However, for the hours before the discharge, there had been none of this catatonic behaviour and it would be reasonable to expect it to have been effectively treated at least for the duration of the journey and a long drive though with someone who could relapse is nevertheless of concern".

1. The following further discussion occurred after Dr Giuffrida commented that it is common for schizophrenia sufferers to deny they are hearing voices, "because the voices that they are experiencing are telling them don't tell the doctors":

"WITNESS GIUFFRIDA: ...The other phenomenon that I think we all see in psychotic illness is the periods - people even with the most severe psychotic illness will have brief periods of lucidity that can easily put us off but we shouldn't be put off by that because we should look at the overall illness over a lengthy period of time. And in Mr Pettigrove's case, the critical thing was in getting that broad perspective over time was to getting those background records that they obtained properly from Victoria, which would have said - which should have told them that this is going to be an ongoing illness. It's going to take time to settle down and recover sufficiently for this man to be safe.

...

WITNESS KINGSWELL: ... I'd just like to support and add to that. I think it's not really appropriate to compare Mr Pettigrove to 27,000 people that suffer from schizophrenia in New South Wales. It's appropriate to compare him to those people with schizophrenia that are currently detained as involuntary patients in acute mental health units where there is a very well known history of a particular illness that was running a particular course. So I think somebody's offered evidence today that we don't know what caused this exacerbation of his illness but you can bet that it was non-compliance that occurred for some months prior to this episode. And when you compare what happened to him on this occasion in New South Wales and what had happened to him in the past in Victoria, the two are chalk and cheese and the outcome is predictable. Perhaps not homicide but a bad outcome was predictable. Mr Pettigrove had a known history of doing odd things when he was unwell - neglecting himself, trying to jump in front of trains and other dangerous behaviours - so misadventure was a clear outcome and it should have been a known one".

THE JUDGMENT AT FIRST INSTANCE

1. The primary judge took the view that the discharge of Mr Pettigrove was "prima facie inappropriate" and that Dr Coombes' actions and evidence gave rise to a number of concerns ([14]). In particular, he found that there were a number of inconsistencies between Dr Coombes' evidence in court, before the Coroner and in his police statement. His Honour found that there was "a persistent theme in Dr Coombes' evidence of trying to convey a presentation of normality of contact with Mr Pettigrove [when] this is not borne out by the evidence" ([21]).

1. His Honour noted that:

(a) Dr Coombes did not read the overnight nursing notes, but said in evidence that they would not have affected his decision to discharge Mr Pettigrove if he had seen them (Judgment [30]).

(b) The notes seemed to show disturbed behaviour on Mr Pettigrove's part, but that Dr Coombes disagreed with that characterisation (Judgment [33] - [34]).

(c) On 21 July 2004 Dr Coombes decided to prescribe medication when he had not taken the view the previous day that it was necessary to do so. His Honour thought that that must have been prompted by some observation made by Dr Coombes (Judgment [38] - [39]).

(d) When asked in cross-examination, Dr Coombes could not explain why he omitted to mention in his police statement any consideration by him of a resumption of the depot injections that he knew that Mr Pettigrove had received in the past (Judgment [40]).

1. His Honour identified the following as the acts of negligence that the plaintiffs ultimately submitted constituted a breach of a duty of care:

"(a) By Dr Coombes using Mr Rose as a means of transport to deliver Mr Pettigrove from the hospital to Victoria.

(b) By Dr Coombes in failing to properly medicate Mr Pettigrove.

(c) By the nursing staff in failing to bring the overnight notes to the attention of Dr Coombes.

(d) By Dr Coombes in failing to seek out and read the notes" (Judgment [45]).

1. His Honour treated (a) as in substance a complaint that the Health Service's conduct in discharging Mr Pettigrove from the Hospital constituted a breach of duty (Judgment [59]).

1. His Honour said that (c) "must immediately fall away" because Dr Coombes said that if he had read the notes that would not have made any difference to his decision to discharge Mr Pettigrove.

Section 43 and 43A of the Civil Liability Act

1. The primary judge said that if either of these sections were applicable (see [11] above), it was more likely to be s 43A. His Honour then dealt with the submission that in relation to this section the Hospital's action in discharging Mr Pettigrove amounted to the exercise of "a special statutory power" contained in s 35(3) of the Mental Health Act (as to which again see [11] above).

1. His Honour rejected the appellants' argument that the exercise of the power related only to the discharge of Mr Pettigrove, which did not include the arrangements for the trip to Victoria, saying that the travel arrangements were an integral part of the discharge (Judgment [59]).

1. His Honour however upheld the appellants' submission that s 35(3) was inapplicable because Mr Pettigrove continued to be mentally ill and the purpose of the discharge was not to transfer Mr Pettigrove to "other care of a less restrictive kind [which] is appropriate and reasonably available" (Judgment [65] - [67]). His Honour added that in any event, there was no evidence that Mr Pettigrove would not have remained in the hospital voluntarily, with the consequence that there was no exercise of a power to detain or not to detain.

Section 5B of the Civil Liability Act

1. On the issues raised by s 5B, his Honour observed:

"79 I think the view of the experts is significant. The issue is dealt with in Question 7 of the joint report (Exhibit B). Drs Kingswell, Parmegiani, Campbell and Telfer all classified the risk as minor or fanciful. It is noteworthy that Dr Kingswell fell into this category because he was one of the doctors more critical of the discharge. Drs Giuffrida and Phillips did not think the risk was fanciful. Despite Dr Phillips' view on this point he was nevertheless of the opinion that many of his peers would have seen the discharge as being reasonable (T 201.43). This point is perhaps more relevant to the applicability of Section 5O, which I will return to below."

1. As well, the submissions of the plaintiff do not propose, as a matter of principle, how the Hospital's duty arises only with respect to, and hence was limited to Mr Rose. What if a hitchhiker was picked up, travelled in the motor vehicle and was attacked? Why would the Hospital's duty not extend to the unfortunate hitchhiker as well as to Mr Rose when both are in the motor vehicle at the same time? The same question might apply to those individuals necessarily to be encountered on the trip, such as service station employees or perhaps fellow travellers who were stopped in the same roadside rest area.

1. These matters are not grappled with by the appellants' submissions nor by the terms in which the duty is postulated.

1. A second matter which requires to be considered, with respect to the duty postulated by the appellants, is that they claim a duty to prevent harm befalling the late Mr Rose.

1. The common law has typically described the nature and content of a duty of care as being one which obliges a defendant to take reasonable care to avoid causing foreseeable harm to a plaintiff by its acts or omission. Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580, in his seminal phrase said:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

1. Historically, the common law has held there to be a real difference between a duty to take reasonable care not to cause harm and a duty to take reasonable care to prevent harm being caused. In a case concerned with unlawful (and potentially criminal) conduct, Dixon J said in Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 that:

"It is, however, exceptional to find in the law, a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third."

1. In discussing the difference between these two concepts, Gummow J said in Roads & Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [51]:

"51. Such an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law. In Modbury Triangle Shopping Centre Pty Ltd v Anzil Gleeson CJ pointed to the remarks of Brennan J in Sutherland Shire Council v Heyman and observed that 'the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable.' In Heyman, Brennan J had emphasised that the common law recognises 'a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible'. " (Footnotes omitted)

1. What Gleeson CJ said in Modbury Triangle v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [61] was:

"61. As Brennan J pointed out in Sutherland Shire Council v Heyman, the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable. Referring to Lord Atkin's speech in Donoghue v Stevenson, his Honour said:

'The judgment of Lord Esher MR in Le Lievre v Gould which Lord Atkin cites makes it clear that the general principle expresses a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible.' " (Emphasis added)

1. Gleeson CJ in Modbury Triangle at [30] acknowledges that there may be circumstances in which it is possible to argue "... that the case would be taken out of the operation of the general principle, and the law may impose, a duty to be take reasonable steps to prevent ..." a foreseeable risk of harm. He describes such a duty as an exceptional one.

1. Although in many areas, the common law of negligence is now different from that in the United Kingdom, on this issue, there is little difference. In another case involving intentionally unlawful conduct, Lord Goff of Chievely opened his speech in Smith v Littlewoods Ltd [1987] 1 AC 241 at 270, by saying:

"... if this proposition is understood as relating to a general duty take reasonable care not to cause damage to premises in the neighbourhood ... then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party's own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognized that there is no general duty of care to prevent third parties from causing such damage."

1. His Lordship went on to point out at 271, that the fundamental reason why the common law does not recognise a general duty of care to prevent others from suffering loss or damage caused by the deliberate wrongdoing of third parties, is that the common law does not impose liability for pure omissions.

1. The duty which a Hospital owes to a patient is the ordinary duty to take reasonable care to avoid causing foreseeable harm by its acts or omissions. The only feature, in this case, which could constitute a sufficient basis for the common law to impose an extended duty, namely a duty to take reasonable care to prevent harm occurring to Mr Rose, is the existence and terms of the Act which have been examined earlier.

1. The Act is concerned to achieve the objects set out in s 4 having regard to the constraints elsewhere stated so as to fulfil the parliamentary intention set out in s 4(2).

1. The statutory obligations in ss 20 and 28 of the Act resting on the Hospital (through the medical superintendent) include the obligation to discharge a patient if the patient is not mentally ill, or, to cease detention if less restrictive care is appropriate and available. Such mandatory obligations owed to the patient, here Mr Pettigrove, are in clear conflict with the postulated duty in this case, namely to detain Mr Pettigrove as an involuntary patient for the prevention of harm to the late Mr Rose. This conflict is reinforced, in the circumstances which existed here, where the treating doctor formed the opinion that Mr Pettigrove's treatment was best undertaken in Victoria by mental health service which had been caring for him for a long time, and whilst he lived at home with his family.

1. However, the conventional duty between a hospital and patient can comfortably co-exist with the provisions of the Act.

1. I therefore conclude that an extended duty of the kind claimed by the plaintiff involves inconsistent obligations between the duty owed to Mr Pettigrove, which is affected by the terms of the Act, and that owed to Mr Rose. It seems to me that what was said by the High Court of Australia in Sullivan v Moody [2001] HCA 59; (2001) 2007 CLR 562 at [60], is directly in point and contrary to the postulated duty:

"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."

1. As well, the duty postulated does not have any real limits of principle, and having regard to the ill-defined boundaries to which earlier reference is made, the burden on the Hospital in the event of such a duty being imposed would be "intolerable".

1. Accordingly, I conclude that the duty of care postulated by the plaintiffs is not made out.

Breach of Duty

1. The question of whether there has been a breach of a common law duty is to be determined by reference to the provisions of s 5B of the CL Act. The central notion in s 5B of the CL Act, is encompassed within the phrase "a risk of harm".

1. Gummow J in Dederer at [18] said that it was a basic and settled matter of legal principle that:

"... the assessment of breach depends on the correct identification of the relevant risk of injury"

1. He went on to say at [59] that:

"It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be"

1. It is of significance to note here that in considering the content of the phrase "a risk of harm" in any one case, it is necessary to recognise a clear distinction between the nature of a risk of harm or injury, which is encountered for the purposes of foreseeability in considering whether a duty of care exists, and the enquiry made to determine whether a defendant has been in breach of the duty of care as encompassed by the provisions of s 5B of the CL Act. At the level of enquiry which poses the question whether a duty of care exists, it is well established that all that is necessary in this respect is for a plaintiff to identify a foreseeable risk of injury. It does not necessitate specification of the precise injury.

1. In Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, the High Court of Australia said at [121]:

"... in order to establish the prior existence of a duty of care with respect to a plaintiff, ..., it is not necessary to show that the precise manner in which his injuries were sustained, was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one, might reasonably have been foreseen ..."

1. As McColl JA (with whom Barrett and Ward JJA agreed on this issue) said in Shoalhaven City Council v Pender [2013] NSWCA 210 at [59]:

"... the foreseeability enquiry at the duty and breach stages raises different issues which progressively decline from the general to the particular."

1. Accordingly, in Dederer when Gummow J came to identify the risk of harm against which it was claimed that the RTA should have taken precautions, he found that the risk characterised by the Court of Appeal as "serious spinal injury flowing from the act of diving off the bridge" as erroneous, because it obscured the true source of potential injury which arose:

"... not from the state of the bridge itself, but rather from the risk of impact upon jumping into the potentially shallow water and shifting sands of the estuary".

It can be seen that Gummow J was careful to include the general causal mechanism of the injury sustained by the plaintiff i.e. injury upon impact with the sandy floor of the estuary, rather than the more general description of risk of harm occurring in any way as a consequence of jumping from the bridge as the Court of Appeal described in its judgment.

1. Basten JA in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, held that regard ought be had to the mechanism of injury when considering what the risk of harm was in that case for the purpose of s 5B of the CL Act. He said, at [7]:

"7 Section 5B of the Civil Liability Act 2002 (NSW) requires identification of a risk of harm, against which a person has failed to take precautions. Given its context, the risk must be that which materialised in the case of the injured person seeking to claim in negligence. That is because s 5B is dealing with a breach of a duty of care, being the duty of care owed by the defendant to the injured plaintiff. The relevant risk in the present case was the risk which materialised when the appellant slipped and fell. The harm suffered by the appellant, if it arose from the condition of the crossing at all, arose from the condition of the crossing as at the date of her fall. To establish a breach of duty, she needed to establish that the crossing was unduly slippery on that date." (Emphasis added)

1. Meagher JA, in Garzo, although fixing upon a risk of harm which was different from that described by Basten JA, said this at [22]:

"22. To address the question and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken, and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions ought to have been directed." (Emphasis added)

1. It is convenient to return to the facts of this case.

1. In the course of the opening of the proceedings before the trial judge, counsel for the appellants did not refer specifically to s 5B of the CL Act, nor did he articulate or attempt to articulate, what the risk of harm was against which it was said precautions ought to have been taken.

1. In written submissions at the end of the trial, counsel for the appellants submitted that:

" ● Section 5B CLA refers to a 'risk of harm';

● 'Harm' is defined in s 5 CLA - it means 'harm of any kind';

● Accordingly, there is no need for the specific risk of homicide to be foreseeable. Any 'harm' is sufficient."

1. In its final submissions at trial, the Hospital submitted, in effect, that the relevant risk of harm was "... the risk of Mr Pettigrove killing Mr Rose ...". It went on to submit that the risk of harm should be so defined because "it was the death of the late Mr Rose which caused each of [the appellants] to suffer the psychiatric illnesses which they did".

1. There is no clear finding by the trial judge which identified the risk of harm. This is regrettable, because it makes more difficult, if not impossible, the consideration of the balance of the requirements of s 5B of the CL Act, and in particular what precautions were reasonably required.

1. However, it does appear that his Honour regarded the risk of harm as being that associated with the risk of homicide as the Hospital had submitted, because at [88] he said this:

"Hindsight perhaps allows for a conclusion that if Mr Pettigrove had not been discharged for another day or two, or if he had been given certain or more medication, the killing would not have occurred. Looked at prospectively, however, and utilising the opinion of the experts, I could not conclude that a reasonable person in Dr Coombes' position would have concluded that there was a not insignificant risk of Mr Pettigrove behaving as he did with or without extra medication. He certainly would not have concluded that there was any significant probability that the harm would occur." (Emphasis added)

1. It seems that his Honour accepted the submission of the Hospital that the relevant risk of harm was of Mr Pettigrove killing the late Mr Rose.

1. On appeal, the appellants submitted that the relevant risk of harm, for the purposes of s 5B of the CL Act was the risk of any physical harm befalling Mr Rose, not simply his death. Macfarlan JA has concluded that this is the correct statement of the relevant risk of harm.

1. I cannot agree that, when considering the application of s 5B of the CL Act to the facts of these claims, a statement of a risk of harm as broad as this is appropriate.

1. It is possible that such a statement may be sufficient at the level of determining whether or not a duty to take reasonable care exists. However, there is no need to reach a final view on that. However, it is necessary for the purpose of determining what, if any, precautions ought be taken, and whether a risk of harm is not insignificant, and whether such a risk of harm was known or ought to have been known to a defendant, to have much greater particularity about the risk of harm at least so as to include what in fact occurred. The authorities to which I have earlier made reference, suggest that is so.

1. In my opinion, the trial judge correctly identified the risk of harm as being the risk of homicide to the late Mr Rose, and accordingly, correctly held on the basis of the expert opinion, that that was a risk which was not one, for the reasons which the trial judge expressed, against which precautions ought be taken.

Section 43A - Civil Liability Act 2002

1. The principal allegation of breach of duty is that Mr Pettigrove was discharged from hospital when it was inappropriate so to do, because he was still mentally ill, his chronic condition had not been stabilised on slow-acting drugs and he was inadequately medicated. Senior counsel for the appellant accepted in the course of oral submissions that the case for the appellant was that the respondent ought to have required Mr Pettigrove to have remained in hospital, either as a voluntary or involuntary patient for such a period as would have enabled him to be established on an effective regime of depot injunctions of Clopixol.

1. Macfarlan JA concludes in his judgment that the decision to discharge Mr Pettigrove was not an exercise, or a purported exercise of a power, of the kind described in s 43A of the CL Act as a special statutory power. He finds that the basis upon which liability has been established is that there was a failure by the hospital to continue to detain Mr Pettigrove as an in-patient.

1. Unless Mr Pettigrove agreed to remain in hospital, and accept treatment, voluntarily, there was no basis upon which the hospital could detain Mr Pettigrove unless it used such powers as existed under the Act. Conversely, if Mr Pettigrove remained in the hospital voluntarily, no occasion arose for the use of the relevant powers of involuntary detention under the Act.

1. In order to exercise the powers of involuntary detention, there needs to be a factual threshold established that a patient is mentally ill or mentally disordered. Relevantly here, on 20 July 2004, Mr Pettigrove was determined by a number of doctors who examined him, including the Medical Superintendent, to be mentally ill. The appellants' case was that Mr Pettigrove continued to be mentally ill at the time of his discharge. In those circumstances, it was open to the hospital to exercise the powers which existed under the Act.

1. As Macfarlan JA points out, it was not contended by the appellants, either on appeal or at trial, that the conduct of the respondent which amounted to a failure to detain Mr Pettigrove as an involuntary patient was of a kind which would have justified a finding of unreasonable conduct to the level required by s 43A of the CL Act.

1. Accordingly, unless there was a finding of fact, reasonably based, by the trial judge that Mr Pettigrove would have remained as a voluntary patient, the essence of liability in this case must arise as a consequence of a failure by the Hospital through the medical superintendent to exercise the special statutory powers. Such a failure, or omission, is caught by s 43A of the CL Act.

1. The trial judge made no finding that Mr Pettigrove would have remained in hospital voluntarily had he been so advised by the doctors. No ground of appeal raised the failure of the trail judge to make such a finding. This Court was not asked to make such a finding.

1. On this issue, at [66] the trial judge said:

"If Mr Pettigrove was mentally ill [at the time of discharge] there is no evidence that he would not have remained in the hospital voluntarily."

This was undoubtedly a correct observation. Equally, there was no evidence that Mr Pettigrove would have remained in hospital as a voluntary patient. Mr Pettigrove had taken his own life before the hearing of these proceedings. The only account given by him of the facts, matters and circumstances surrounding his stay in the Hospital and his killing of the late Mr Rose, is found in the electronically recorded interview with police officers shortly after the events in question.

1. Dr Coombes was the only witness called to give oral evidence on behalf of the Hospital. He was not asked, nor did he venture any opinion, about whether, having regard to his clinical condition on 21 July 2004, Mr Pettigrove would, or else would not, have been likely to have remained as a voluntary patient for the purpose of accepting further treatment for a period of time sufficient to enable the depot injections of Clopixol to be effective.

1. No suggestion was put to Dr Coombes in cross-examination that he ought to have discussed with Mr Pettigrove, that he should remain voluntarily as a patient at the Hospital until depot injections of Clopixol had taken effect, or for any lesser period of time.

1. The previous in-patient admission to a psychiatric unit, which occurred on 21 February 2001 and continued until 13 March 2001, was an involuntary admission to the Alexander Bayne Centre in Victoria. The notes disclosed that during that admission of about three weeks, Mr Pettigrove was given three depot injections of Clopixol and other anti-psychotic medication. It is also clear from the note that those medications had a positive effect upon the psychotic episode from which Mr Pettigrove was suffering when he was brought into hospital. The notes record that at some point during that admission, Mr Pettigrove was moved to an open ward. I infer this means that he was no longer involuntarily detained. Equally, I would infer that that change occurred only after Mr Pettigrove was stabilised on medication. When he was discharged, he was subject to a community treatment order which is one form of compulsory treatment available for people suffering with mental illness.

1. The only other evidence which may be relevant to this question was the fact that whilst a patient at the Hospital, the notes record, and Dr Coombes said in his evidence, that Mr Pettigrove was looking forward to the trip back to Victoria.

1. None of this evidence was sufficient to permit a finding that Mr Pettigrew would, if offered the opportunity to remain in the Hospital as a voluntary patient for a period sufficient to enable depot injections of Clopixol to take effect, have done so.

1. On the contrary, given that Mr Pettigrove was detained involuntarily upon his admission to the Hospital, and in the absence of an assessment that he would remain as a voluntary patient, or any questioning of him about that, and he was looking forward to returning to Victoria; I would not be prepared to infer that he would remained as a voluntary patient at the Hospital.

1. This conclusion necessarily engages the exercise of the power under which the Act, which was a continuing one, to detain Mr Pettigrove as an involuntary patient. It is the failure to exercise that power which is the nub of the claim in negligence. Put another way, when posed in accordance with the terms of s 5B of the CL Act, as to what precautions were reasonably required, the appellants' case is that Mr Pettigrove should have been detained in hospital for a period sufficient to enable him to be stabilised on depot injections of Clopixol. But that precaution could only have been achieved by the exercise of a special statutory power, of the kind to which s 43A of the Act refers.

1. Accordingly, I am of the view that the conduct of the hospital involved an omission to exercise a statutory power and that accordingly, before a breach of duty can be found, the level of negligence required by s 43A of the Act must be established. It was conceded that the level of negligence did not reach such a level.

1. In those circumstances, the finding of the trial judge that the Health District was not negligent was correct and the appeal ought be dismissed.

Conclusion

1. In light of my conclusions, it is unnecessary to analyse the complex question of causation, which analysis involves significant policy considerations upon which it is better not to express any view, unless it is necessary so to do.

Orders

1. I would propose the following orders:

(1)   Grant leave to appeal to Ms Simon and Ms Rose.

(2)   Dismiss the appeals of Ms McKenna, Ms Simon and Ms Rose.

(3)   Order that the appellants pay the respondent's costs.

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Decision last updated: 28 January 2014