Presland v Hunter Area Health Service - [2003] NSWSC 754

No judgment structure available for this case.

CITATION: PRESLAND v HUNTER AREA HEALTH SERVICE & ANOR [2003] NSWSC 754 revised - 28/10/2003

HEARING DATE(S): 14/10/02-17/10/02, 21/10/02-24/10/02, 28/10/02, 29/10/02, 4/11/02-8/11/02, 12/11/02-15/11/02, 18/11/02-22/11/02, 25/11/02-29/11/02, 2/12/02-4/12/02

JUDGMENT DATE:
19 August 2003

JURISDICTION:
Common Law

JUDGMENT OF: Adams J at 1

DECISION: Judgment for the plaintiff with costs

CATCHWORDS: Medical negligence - psychiatric registrar - Patient suffers psychosis with extreme violence - apprehended by police, taken to hospital - assessed as not mentally ill or mentally disordered person - meaning of "continuing condition" - meaning of "for the time being" - adequacy of assessment - relevance of history - nature of criteria under ss 9 & 10 Mental Health Act 1990 - whether liability in tort for negligent failure to detain - patient killed brother's fiancee whilst insane five hours after release

LEGISLATION CITED: Compensation to Relatives Act 1897 (NSW)
s39 Mental Health (Criminal Procedure) Act 1990
Mental Health Act 1990
Fatal Accidents Act 1976

CASES CITED: AMP v RTA & Anor [2001] NSWCA 186; [2001] Aust Torts Reports 81-619
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Chappel v Hart [1998] 156 ALR 517
Clunies & Camden 1998 QB 978
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Gala v Preston (1990-91) 172 CLR 243
Gollan v Nugent (1988) 166 CLR 18
Haber v Walker [1963] VR 339
Hardy v Motor Insurers Bureau (1964) 2 KB 745
Hill v Constable of West Yorkshire [1989] AC 53
King v Porter 1936 55 CLR 182
March v Starmare (1991) 171 CLR at 517-519
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634
McNaughten's Case (1843) 10 Clarke & Finnelly 200
Reeves v The Commissioner of Police of the Metropolis [2000] 1 AC 360
Regina v S (1979) 2 NSWLR 1
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Sullivan v Moody [2001] HCA 59; [2001] 183 ALR 404 at 417
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES :
Kevin William Presland (Plaintiff)
Hunter Area Health Service (First Defendant)
Dr Jacob Nazarian (Second Defendant)

FILE NUMBER(S): SC 20192/98

COUNSEL: M Lynch, G Craddock (Plaintiff)
G Gregg, L Boyd (Defendant)

SOLICITORS: Legal Aid Commission (Plaintiff)
C Hynes, Liverpool Legal Aid Office (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

TUESDAY 19 AUGUST 2003

20192/98

PRESLAND v HUNTER AREA HEALTH SERVICE & ANOR

JUDGMENT

INTRODUCTION

1 On 7 May 1996, the plaintiff was acquitted by Newman J, sitting without a jury, of the murder of Kelley Ann Laws at Jesmond on 4 July 1995 upon the ground that when he attacked and killed her he was in a psychotic state which so affected his capacity to reason that he did not know that what he was doing was wrong and, accordingly, he was not guilty on the grounds of mental illness. His Honour ordered, pursuant to s39 of the Mental Health (Criminal Procedure) Act 1990, that the plaintiff should be detained in strict custody in a psychiatric hospital until released by due process of law. Eventually, on 26 November 1997, the Governor ordered the release of the plaintiff. He was discharged from Long Bay Prison Hospital on 8 December 1997 and, in accordance with the recommendation of the Mental Health Review Tribunal, resided at Foster House, an institution managed by the Salvation Army. Although he required readmission to Rozelle Hospital in early January 1998, this was essentially done because of various pressures from the media and his family as a form of respite prior to his release into the community. No psychotic symptoms or ideas of harm to self or others had been demonstrated or elicited during this time. He was discharged from Rozelle Hospital on 6 February 1998 and since then has not required psychiatric care although he has been under the continuous supervision of the Mental Health Review Tribunal.

2 On 3 July 1995, that is to say, the day before Ms Laws was killed, the plaintiff had been brought to the John Hunter Hospital (JHH) by police following an episode of bizarre and extremely violent behaviour. After some treatment, he was transferred to the James Fletcher Hospital (JFH), a psychiatric institution, for assessment. He was released in the company of his brother at about 11am on 4 July and killed Ms Laws, his brother’s fiancée about six hours later.

3 In substance, the plaintiff’s case is that it was negligent of the Hunter Area Health Service, responsible for the operations of the two hospitals to which he had been admitted on 3 July, and the doctor who discharged him, not to have detained him as an involuntary patient under the Mental Health Act 1990 (the Act; all legislative references are to this Act unless otherwise stated) an action, which would have averted the tragic death at his hand of Ms Laws, his subsequent incarceration and the distress and economic loss which resulted from these events.

THE LEGISLATION

4 It is useful to set out at the beginning the relevant provisions of the Act as it stood on 4 July 1995. (I interpolate that subsequent amendments, including a major revision in 1997, do not seem to me to have brought about significant changes to the considerations which apply to this case.) The objects of the Act are set out in Chapter 2 as follows –

“4(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

(b) to facilitate the care, treatment and control of those persons through community care facilities and hospital facilities; and

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

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

(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.”

5 Much emphasis has been placed by the experts called by the defendants upon the duty for relevant those dealing with mentally ill or mentally disordered persons to respect their civil liberties and exercise their functions in a way that restricts those liberties as little as possible, consistent with appropriate treatment. It is worth observing, however, that there is nothing in the objects of the Act suggesting that the decision as to whether someone is a mentally ill or mentally disordered person should be affected by any notion of civil liberty. Furthermore, s4(2)(a) makes it clear that mentally ill and mentally disordered persons should receive “the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given” (emphases added). At least so far as the objects of the Act are concerned, the diagnosis of mental illness remains an essentially medical question with the adequacy of diagnostic assessment also to be determined as a medical question and not subject to the policy considerations either stated in the objects or thought to underlie the Act; although it must be determined by a doctor whether a person is a mentally disordered person, this is not a medical question, as reference to the criteria in s10 immediately demonstrates. Similarly, the assessment of the “best possible care and treatment” is a medical question distinct from any policy considerations which are, for all practical purposes, entirely confined to the mode in which that care and treatment, once determined, is to be administered. As will become obvious as I deal with the experts’ opinions adduced in this case, this distinction has not, I think, been sufficiently appreciated or, if understood, has not been appropriately applied to the circumstances.

6 It is important next to note that being mentally ill does not render a person a “mentally ill person” within the meaning of the Act. Nor is it necessary for a “mentally disordered person” to have any mental disorder. For the purposes of dealing with a patient in a way which subjects them to restrictions on their liberty, this can only occur where the relevant criteria set out in Chapter 3 of the Act are satisfied: s8. The crucial provisions are s9 (concerning mentally ill persons) and s10 (concerning mentally disordered persons), the terms of which are as follows –

Mentally ill persons

“9.(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 physical harm; or

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

and a person is also a mentally ill person if the person is suffering from mental illness which is characterised by the presence in the person of the symptom of a severe disturbance of mood or the symptom of sustained or repeated irrational behaviour indicating the presence of that symptom and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious financial harm or serious damage to the person’s reputation.

(2) In considering whether a person is a mentally ill person, the continuing condition of the person is to be taken into account.

damage to the person’s reputation

Mentally disordered persons

10. 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.”

7 Section 11 provides that certain words or conduct would not render someone a mentally ill or mentally disordered person merely because of the presence of a number of specified ideas or attitudes or because of alcohol or drug use or anti-social behaviour. The requirement that there must be present reasonable grounds for believing that care, treatment or control is necessary to protect the person or others from serious physical injury or from serious financial harm or serious damage to the person’s reputation is, of course, not a medical one. Nor, it is very important to note, is the presence of such grounds contradicted by the presence of reasonable grounds for believing that care treatment or control is not necessary for the protective purpose. (The potential for financial harm or harm to reputation is irrelevant to the present case and has since been removed from the Act.)

8 “Mental illness” is defined in Schedule 1 as follows –

“ mental illness means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a) delusions;

(b) hallucinations;

(c) serious disorder of thought form;

(d) a severe disturbance of mood;

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

9 A person may be taken to and detained in a hospital on the certificate of a doctor who has personally examined or observed a person and considers that he or she is a mentally ill person or a mentally disordered person and is “satisfied that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary”: s21(1). There are, therefore, three criteria to be satisfied before a person may be involuntarily detained in a hospital: firstly, the person is mentally ill or irrational; secondly, there are reasonable grounds for believing that care, treatment or control of that person is necessary to protect him or her or others from serious physical harm; and thirdly, no other appropriate means for achieving this end are reasonably available, so that involuntary admission and detention are necessary.

10 In this case, it appears that two police officers exercised their powers under s24 to take persons to a hospital in relation to the plaintiff, who was found in a public place appearing to be mentally disturbed and there were reasonable grounds for believing that he was committing or had recently committed an offence and that it would be beneficial to his welfare that he be dealt with under the Act. Section 29 requires that, where a person is taken to a hospital in these circumstances, he or she must be examined as soon as practicable and at all events within twelve hours after arrival by the medical superintendent and cannot be detained (subject to irrelevant exceptions) unless the superintendent certifies that in his or her opinion the person is a mentally ill person or a mentally disordered person. In this event, the medical superintendent must give the patient an oral explanation and a written statement in the prescribed form of the person’s legal rights and other entitlements under the Act. (From the point of view of the staff at the JFH, it might have appeared that the plaintiff was voluntarily admitted as an informal patient although I consider that there was a duty to ascertain whether the police were acting pursuant to s24. For reasons I mention later, I consider that it was at all relevant times quite clear that this was so.) Depending on the condition of such a patient, the medical superintendent may cause him or her to be detained, providing the conditions to which I have already referred are satisfied. The plaintiff’s case is that, whatever the status of his initial admission, he should have been detained as an involuntary patient in accordance with Part 2 of the Act. In the result, I do not think that the plaintiff’s status when he was brought into JFH matters very much.

11 Division 2 of Part 1 provides for an enquiry to be made by a Magistrate following the detention of someone as a mentally ill or mentally disordered person. Broadly speaking, the person must be brought before a Magistrate as soon as possible, the relatives, guardian and personal friends should be informed, a hearing is conducted in public (unless the patient objects), the person is entitled to be legally represented and an enquiry must be held. The result of the Magistrate’s findings are dealt with as follows –

“51(1) If, after holding an inquiry, a Magistrate is satisfied that on the balance of probabilities a person is a mentally ill person, the Magistrate must take the action set out in subsection (2) or subsection (3).

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

(3) If the Magistrate is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available or that for any other reason it is not appropriate to take the action set out in subsection (2), the Magistrate must direct that the person be detained in, or admitted to and detained in, a hospital specified in the direction for further observation or treatment, or both, as a temporary patient for such period (not exceeding 3 months) as the Magistrate, having regard to all the circumstances of the case, specifies.

(4) An order or direction made or given by a Magistrate under this section has effect according to its tenor.”

12 A person detained under s51(3) is termed a “temporary patient”. Such a patient has a right of appeal to the Mental Health Review Tribunal which must consider for itself whether, indeed, the patient is a mentally ill person and it is appropriate that he or she be detained: Division 3 of Part 2 of the Act.

13 It is important to note that the purpose of the inquiry is to determine whether the person is a mentally ill person. The Magistrate is not called on to consider whether the person is a mentally disturbed person. Section 52 provides that, if the Magistrate is not satisfied that the person is a mentally ill person, the person must be discharged but the order for discharge may be deferred for a period not exceeding 14 days “if the Magistrate thinks it in the interests of the person to do so”. This power is very wide. It does not depend on finding the person to be a mentally disordered person but the Magistrate can consider, as it seems to me, all the risks to health and welfare of the person that discharge might reasonably be regarded to expose the person. Thus, for example, where there is a reasonable risk that the person is, in fact, a mentally ill person but it cannot be said this is so at the moment on the preponderance of probabilities, a Magistrate could, if he or she thought it appropriate in the interests of the person, defer discharge to permit further assessment or further inquiry or to see whether symptoms settle or become more observable or florid or severe. The avoidance of substantial risk to the health or welfare of the person may well, therefore, justify deferral of discharge, even though it is not more probable than not that the person is a mentally ill person. In considering the interests of the person, the interest in being at liberty will be an important consideration: it is obviously not the only one.

14 It will be readily seen that the task of the medical superintendent or doctor who examines a person to determine whether or not he or she is a mentally ill person or a mentally disturbed person is entirely distinct from the role of the Magistrate and, should there be an appeal, of the Mental Health Review Tribunal. Having regard to the relationship between s51 and s52, this is especially so in respect of a mentally disordered person. It is not appropriate, in my opinion, that a doctor or medical superintendent should be concerned with the attitude that Magistrate might take to either the diagnosis or the detention. In no sense does the Act imply any supervisory role by the Magistrate over the conduct of the doctor. Indeed, this would not be possible as it is evident that the Magistrate is not a legally qualified medical practitioner. The Magistrate is an adjudicator whose job is to decide the questions entrusted to him or her by the legislation in accordance with the evidence which is presented at the inquiry. It is obvious that this procedure is designed to protect persons whose liberty is being restrained but the policy of the Act in this regard is sufficiently and exhaustively expressed in and fulfilled by the exercise by doctors and Magistrates of their assigned functions. In other words, the policy of the Act as to the proper balance between civil liberty on the one hand and treatment and protection of the patient and the public on the other is effected by following its provisions.

15 This discussion is necessary because it was suggested in the defendant’s case that the doctor should, as it were, defer to the potential decision of the Magistrate about the diagnosis of mental illness or the need to detain and consider whether the Magistrate might come to the same conclusion as he or she has. In my view, so far from the legislation suggesting the propriety of such an approach, it is contrary to the specific terms of the Act. Furthermore, a person suffering from a mental illness may be detained where there are reasonable grounds for believing that it is necessary to do so to protect that person or others from serious physical harm. The interim, temporary or emergency character of the first instance decision by the doctor is an important consideration in interpreting the nature of his or her responsibility. If there is a bias between protection on the one hand and personal freedom on the other, it seems to me that preference should be given to the former function: to my mind, the primary function of the doctor is the protection of the patient or the public from the risk of serious physical injury. This is especially so when considering the application of s10, which is not the subject of the Magistrate’s inquiry under s51. So far as the Magistrate is concerned, it is only if he or she is satisfied on the balance of probabilities that a person is a mentally ill person that the steps specified in s51(2) or (3) are to be taken. If not so satisfied the Magistrate is obliged to order that the person be discharged from hospital, subject to deferral in the patient’s interests. It is obvious that the information considered by the Magistrate is likely to be very different to that available to the detaining doctor, not least because of the elapse of time, during which the person is under observation.

16 It is necessary, I think, to add that no standard of proof is imposed on the doctor’s determination of whether a person is suffering from a mental illness. It seems to me that the test is that which is usually applied by doctors called upon to make a diagnosis of illness for the purpose of considering what, if any, treatment the patient needs. Section 10 involves no medical decision and the determination, in substance, depends on the presence of such a degree of irrationality as to provide reasonable grounds to conclude that protection is needed. This is far short of certainty and less than probability: there may well be reasonable grounds for the conclusion, even though the infliction of serious injury is improbable. This reflects the emergency and protective character of the doctor’s role and is in line, it is worth observing, with the power of the police to take the person to a hospital.

THE NATURE OF THE DUTY

17 The substance of the plaintiff’s case is, as I have said, that the second defendant, Dr Nazarian, should have concluded, when he saw him on the morning of 4 July 1995, that he was not only a mentally ill or a mentally disordered person, but needed to be detained for his own safety or the safety of others, or both. The plaintiff’s case is that, had this occurred, it is most improbable that he would have killed his sister-in-law or anyone else, for that matter. It is his case that there is a substantial causal nexus between his release, his later acute psychotic state and his killing of Kelley Laws. The difficult question raised at the outset is whether a failure by a doctor to competently perform his or her duties either at common law or under the Act gives rise to a cause of action where the gravamen of the claim is that the doctor negligently failed to treat someone as a mentally ill or mentally disturbed person. I am not altogether certain that this is a case in which the question of duty is correctly characterised as concerning the exercise of a statutory power. A more appropriate way of characterising the issue seems to me to consider the power of detention (assuming a diagnosis is made that the person is a mentally ill or mentally disordered person) as the statutory provision of a mode of treatment not otherwise permitted by law, thus raising no question of the negligent failure to exercise a statutory duty and whether, if that occurred, a private right of action is conferred. However, having regard to the view that I have formed about the nature of the statutory duty, this is a distinction without a difference in the circumstances of this case.

18 It is not controversial that the defendants owed a duty of care to appropriately treat the plaintiff. The question, therefore, is whether the particular treatment by way of detention (amongst other things) was appropriate and, if so, whether there was a duty to provide it and whether the negligent failure to do so gave rise to a right in the plaintiff to sue for negligence. In Crimmins v Stevedoring Industry FinanceCommittee (1999) 200 CLR 1 at 39, McHugh J set out the considerations as follows –

“In my opinion, therefore, in a novel case where a plaintiff alleged that a statutory authority owed him a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:

(1) Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interest? If no, then there is no duty.

(2) By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.

(3) Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.

(4) Did the defendant know, or ought the defendant to have known the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.

(5) Would such a duty impose liability with respect to the defendant’s exercise of ‘poor policy making functions’? If yes, then there is no duty.

(6) Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of the duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the exercise of a duty)? If yes, then there is no duty.”

19 It seems to me obvious that the first question should be answered “yes”. The conclusion giving rise to the power to detain is exercised (mental illness or irrationality being present) where there are reasonable grounds for believing that it is necessary to care, treat or control the person to protect him or her or others from serious physical harm. If that condition is not satisfied, the question of detention does not arise. Once the provisions of ss9 and 10 of the Act are satisfied, s20, as I pointed out, prohibits admission to or detention in a hospital “unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available”. If the only proper opinion is that no such care is either appropriate or reasonably available, then it follows that the patient must be protected by detention. Question 2 should be answered “yes” for obvious reasons. Question 3 must also be answered “yes” since the very purpose of the statutory power arises where the specified vulnerability occurs. Given the hypothesis that ss9, 10 and 20 require detention, it follows that question 4 should also be answered “yes”. Question 5 should be answered “no” since the diagnosis and decisions required of the medical superintendent are essentially factual and do not involve policy in the relevant sense. This is so, even though it is clear that the policy underlying the Act is that detention should be used in appropriate cases for the protection of mentally ill or mentally disturbed persons but only to the extent that other modes of care are not appropriate and subject to outside supervision. It is wrong, for the reasons I have already expressed, to say that the policy of the Act is to restrict detention: the policy of the Act is to provide for detention but to ensure that it only occurs when it is appropriate. So far as question 6 is concerned, the defendants propose four reasons to deny the existence of a common law duty of care: the creation of a detrimentally defensive frame of mind; the creation of potentially conflicting duties; the potential indeterminacy of liability; and the application of the maxim ex turpi causa non oritur actio. The defendants rely on Clunies v Camden & Islington Health Authority (1998) QB 978, where the Court of Appeal found that the statutory duty of the authorities to provide after-care services for the plaintiff who committed manslaughter (murder but for his diminished responsibility) following his discharge from hospital until they were “satisfied…[that he] no longer needed them did not give rise to a private cause of action. However, the character of the services was wide-ranging and undefined, co-operation with voluntary services was required and the legislation gave powers to the Secretary of State to investigate and deal with failures such as those alleged. The Court of Appeal thought it was most significant that the relationship of doctor and patient no longer applied after discharge and the after-care services were “different in nature from those owed by a doctor to a patient whom he is treating and for whose lack of care in the course of such treatment the local health authority may be liable”: ibid at 992. The circumstances of this case are very different. The defendants submit that the Act creates a statutory scheme, “which governs the conduct of medical practitioners [and], with regard to the involuntary detention of patients, it imposes responsibilities and statutory duties owed to individuals suffering mental illness and the public at large”. So far as the doctor is concerned, I do not see that this is so. The duty to the public is simply to apply the Act: in applying the Act according to its terms to the plaintiff, the defendants’ duties to both are satisfied by the same conduct. It is true that the doctor has a duty to take appropriate action in the event that either s9 or s10 of the Act are satisfied and that this will require consideration of the protection of others than the plaintiff from the infliction by him of serious injury but this is obviously very much in the patient’s own interest. In truth, there is no conflict: there are no “inconsistent obligations”: see Sullivan v Moody [2001] HCA 59; [2001] 183 ALR 404 at 417. As to the consideration that imposition of tortious liability on doctors in respect of their determinations under the Act would lead to a “detrimentally defensive frame of mind”, there is no feature of the proposed duty to use the powers given by the Act to appropriately treat a patient which would or should create any degree of defensiveness greater than the conventional common law obligations to exercise due care. The defendants submitted that it was relevant to note that a Magistrate conducting an inquiry is protected from suit and that this indicated that it was not intended by the Legislature to impose liability for negligence on doctors exercising the function of making decisions under s9, s10 or cognate provisions of the Act. To my mind, if it were intended by the Legislature to confer on those doctors the same immunity from suit as the Magistrate, the Act would have said so: cf s294 giving exculpation from liability of police for injuries or damage caused in good faith. The immunity from suit conferred on Magistrates is fundamental to their exercise of their judicial and quasi-judicial functions as a matter of public policy, without which it is impossible that they could effectively operate. The exercise by doctors of their professional responsibilities, though undoubtedly important, has never been regarded as a public function of the same order and there is no proper basis in the Act for constructing a special rule of immunity in respect of their treatment of patients under the Act, still less for their employers. Reliance was also placed on the decision of the House of Lords in Hill v Constable of West Yorkshire [1989] AC 53, in which it was held that the police did not owe a duty to members of the public who suffered injury from the acts of a dangerous criminal who their carelessness allowed to remain at large. As was pointed by Lord Keith of Kinkel (ibid at 63), an investigation involves policy decisions and discretions as to such matters as priorities in the deployment of resources, which could not be properly evaluated by reference to common law duties of care or by judicial scrutiny in the course of an action in tort. However, in the present case, no such policy decisions were involved: the relevant criteria for detention are defined in the Act. Indeed, the intrusion of policy considerations, say, as to the resources of the hospitals in question or any other matter not prescribed by the Act into the question whether the plaintiff satisfied the criteria contained in s9 or s10 would have been quite improper. The application of the maxim ex turpi non oritur actio is dealt with below in the context of the duty of care. In short, it has no application in the circumstance of this case. Nor is there any real issue concerning indeterminacy of liability. The duty asserted here is that owed to the plaintiff as a patient by the doctor to whom his care is entrusted (cf Sullivan v Moody, supra).

20 It follows, as it seems to me, that the defendants owed the plaintiff a common law duty of care and, if they failed in applying to his diagnosis and treatment an appropriate level of care, including detention, then they are liable, subject to the issues of foreseeability of injury, causation and the possible operation of the ex turpi principle, to which I will come after dealing with the facts. It may be, although I have not referred to it in this context, that the imposition of a duty to use the powers under the Act in an appropriate case can be implied by virtue of s4(2), to which I have already made reference.

21 The unusual consideration applying in this case is that, essentially, the plaintiff claims that he should have been detained even against his will. For reasons which will become apparent in due course, I do not think that detention, at least in the short term, would have been against his will but the notion that there might be a duty at common law towards a person to restrain that person from causing injury to himself or others is novel (ignoring duties that arise, for example in prisons or other custodial contexts), at least with respect to adults; certainly no other form of medical treatment can be given against a person’s will, however necessary it might be to preserve their life. This reflects, no doubt, the very high value indeed placed by the law on individual liberty. However, in cases that arise under the Act the question of the extent of the duty of care will only come to be considered if the person should be regarded as a mentally ill or mentally disordered person. Accordingly, where a person refuses treatment because they are a mentally ill or mentally disordered person and would otherwise suffer or cause serious injury, the administration of medicine or even surgery that is necessary to avoid this consequence is not only permitted but required, subject to the requirements specified in Chapter 7 of the Act. Accordingly, I consider that the peculiar nature of the relevant care, treatment or control provided for under the Act did not take it outside the general rule set out above in the above-quoted passage from Crimmins.

BACKGROUND

22 The plaintiff was born in October 1958 and, accordingly, at the time of the incidents with which I am concerned was approaching his 37th birthday. His parents are still alive and he has two sisters and a brother, Allan, who is younger than him by several years. The plaintiff attended high school to year 10 and left to take up an apprenticeship as an electrician. (His work history is dealt with below under the heading “Economic Loss”.) In about mid 1994 the plaintiff formed a partnership with a Mr Graham Long, sub-contracting house-cladding work, replacing weatherboards with vinyl, installing windows and undertaking small renovations. During the course of 1995, the partnership employed a Mr William Blake from time to time. The plaintiff had met him at the Hamilton Station Hotel, which he frequented.

23 On Friday 30 June, the plaintiff finished work about 4.30pm and, after dropping Mr Long off at the pub, went home, cleaned up and went down to the hotel for a drink. When he was having his second drink, he noticed the presence of a Mr Hammond, whose nickname was “Popeye”. The plaintiff said that he had seen Mr Hammond assault his nephew in the hotel some weeks before. He said that the attack was unprovoked, that his nephew had been held down by the throat and that Mr Hammond had threatened to kill him. The plaintiff had attempted to defend his nephew but claimed that he was restrained by two of Mr Hammond’s associates. The plaintiff said that Popeye was a very good friend until what he believed to be the assault on his nephew. The plaintiff says that when he saw Popeye the day after this altercation, he said to him, “Don’t you ever touch any of my family again or I will kill you”. When he saw Mr Hammond on 30 June, he insulted him a couple of times. A mutual acquaintance suggested that the two men should go outside to sort the matter out. The plaintiff walked outside with his drink and there was a confrontation between him and Mr Hammond. It became increasingly heated. The plaintiff took particular exception to Mr Hammond repeatedly pointing at his face with his finger and he bit it, although he said this was “not hard”. The plaintiff said that, when this happened, Mr Hammond grabbed him by the throat and smashed his head into a nearby traffic sign, causing a cut to his head. The plaintiff said that the two of them were on the ground with Mr Hammond starting to choke him when patrons of the hotel came out and separated them. Although the plaintiff was holding a glass at the time, he did not attempt to use it. A friend then took him to his home, which was about 200 metres from the hotel, to treat his cut. This friend was Beth, who had known the plaintiff since they were young. The plaintiff said that when he got home he was very angry and decided that he would return to the hotel to “smash Popeye’s head in”. Beth told him that he could not do this. The plaintiff said that he rang William Blake and said to him that he intended to go to the hotel and repeated the threat, asking for “some backup”. The plaintiff said that Beth left his home and that Mr Blake came about ten minutes later. He discussed taking revenge against Popeye with Mr Blake who said that he will “take care of it, him and his uncle”, who the plaintiff thought was a Vietnam veteran. The plaintiff said that he replied, “No, it is my business” but that Mr Blake responded, “You will get into trouble, just let us handle it”. Some time later, the plaintiff returned to the hotel, as I understand his evidence, with Mr Blake, who said “he was just going down to point Popeye out to his uncle…by placing his hand on his shoulder”. The plaintiff said that he thought that this indication had something or other to do with the fact that Mr Blake’s uncle was a Vietnam veteran but he did not understand what this was about. I think that, in fact, neither Mr Blake nor his uncle went to the hotel. The plaintiff said that he then returned to the hotel and drank two more glasses of beer (I think, schooners) and then returned home.

24 Ms Rouse, who as it happened worked behind the bar at the Hamilton Station Hotel, described the physical conflict involving the plaintiff’s nephew as “a bit of a scuffle between them” and that “Popeye had Kevin on the floor holding him down and someone else had Kevin’s nephew holding him from the back around the throat”. She said that the plaintiff started verbally abusing Mr Hammond, who did not respond “because we all knew that Kevin was having a problem”. Ms Rouse said that, although the plaintiff thought that it was Mr Hammond who had held his nephew around the neck, this was not so, but the plaintiff refused to accept any contradiction. Ms Rouse saw at least part of the fight in which Mr Hammond had pushed the plaintiff’s head into the traffic pole at the front of the hotel and confirmed that he had quite a large cut on his head as a result. Ms Rouse said that later that night the plaintiff returned to the hotel. He was wearing his slippers and pyjamas with a windcheater over the top. She said that she had never seen him behave like this before, that “he was just staring off into space”. She said that she had a brief conversation with him and that he said he had just come into see her for a chat and then he was going home. It appears that the plaintiff returned home without any further incident.

THE BLAKE INCIDENT

25 Although it appears that the plaintiff had been acting strangely in a number of respects for some months preceding 30 June 1995, the night of 30 June 1995 (as it seems to me) marks the commencement of a rapid decline into an acute psychotic state. The plaintiff’s narrative of events from this point becomes increasingly bizarre. Whilst it is, broadly speaking, accurate, I am quite sure that a number of things which he relates and which he still believes to have happened did not do so, except in his own thoughts. The most significant matter falling into this category is his conversations with Mr Blake or, to be more precise, what he believes Mr Blake told him. In most other respects, however, I have concluded that the plaintiff’s account is reasonably reliable. I should state that I have no doubt that the plaintiff was doing his best to tell the truth as he recalls it. Generally, I consider that the plaintiff is a reasonably reliable historian of his own thought processes and contemporaneous ideas, that is, of his own “internal” world. Mostly, he is reliable about his movements and about the identities of the persons he encountered from time to time. However, there are a number of events that he believes occurred – mostly concerning what people said to him – that I have no doubt did not occur. I do not doubt that he is relating his experiences of those events but I consider that those experiences were only tenuously connected with reality and cannot be taken as reflecting what actually happened. My impression of the plaintiff’s evidence of what happened to him is best described, I think, as the narrating of a dream: detailed, organised but distinctly surreal.

26 The plaintiff said that he could not sleep on the Friday night, since (as I understand it) he was worried about his conversation with Mr Blake. He telephoned him the following morning. I set out the conversation as related by the plaintiff although, if he had a conversation with Mr Blake that morning (and he may well have), I do not believe that it occurred in these terms –

“I told him, ‘I don’t want anyone hurt.’ He said, ‘It’s too late now. The wheels are in motion. This is family business now’. I said, ‘It is not family business’. I said, ‘This is my business. Leave Popeye alone’. He said, ‘You won’t know nothing about it. We’ll get him as he comes out of the pub one night’, and I says, ‘No you won’t’. I said, ‘If you do there will be trouble’. I said, ‘If you do I will put you into the police’ and he just called me a ‘filthy weak’ C— word. I never spoke to him again that day.”

27 The plaintiff said that he left the hotel with one Peter McDonald and the two of them returned to the plaintiff’s house. The plaintiff had perhaps one more schooner or its equivalent of beer. Mr McDonald left at about 11pm and the plaintiff went to bed. He said that he only had an hour or two of sleep at most. He said that his thoughts kept “going on”, concerning Popeye, his belief that Mr McDonald was “actually a homosexual trying to go to bed with me”, and the break-up of his longstanding relationship with a Ms Patricia Brown. He said that he got up on the following morning at about 8am or so “because Bill Blake came around to my house” –

“He was telling me how he had just done some home invasion. He – some person didn’t part pay up for his drugs whatever they were. He told me the best time to get them is in the morning when they are hung over, knocks on the door, races in with, he has got half a baseball bat. He told this person that he would die if he didn’t pay up by that afternoon. Then he wanted me to come around for a barbecue at his place. I declined his offer. I had to go around to my father’s place to install a new stove for him. He insisted I come around. He told me his wife was making salads and sufficient stuff, and to spend a day with his family. I said, ‘I can’t’. He repeatedly asked me and asked me. I finally said I would. I went around there at approximately 10 am, 10.30.”

28 Mr Blake, his wife, his uncle, and one of his sons, a three year old boy, were there. He said that there was no barbeque on at all, that this was “just crap to get me around there”. He said that Mr Blake gave him a beer although he did not feel like it. Mr Blake assured him that he would be all right, and continually brought out stubbies of beer to drink. The plaintiff said that he was drinking slowly and had about six bottles through the course of the day. The plaintiff said that he left Mr Blake’s house at about 7pm. During the day he said, Mr Blake repeatedly referred to the plaintiff as “part of this family now”. The plaintiff’s evidence continued –

“’What, what sort of family is it?’ He said, ‘You’ll find out’. He kept on going on about family all – I told him I had my own family. I didn’t understand what he was on about. He demonstrated with his rats – he has rats in his shed in a cage. He said, ‘To join my family you have got to let the rats bite you’. And I can’t stand rats. He brought one out, a baby one, to hold in my hand. It was a slimy thing. It didn’t have any hair on it. I give it back to him and told him to get rid of it.

After I give it back to him…he put his actual finger in the cage and let the rat actually bite him. He said rats ‘don’t hurt’ and he had this great gash in his hand, it was bleeding profusely, and I thought he was a bit sick.

29 In addition to beer, he said that Mr Blake supplied him with three cones of marijuana to smoke during the afternoon. Whether this occurred it is impossible to say, though I doubt that it did. Later in the day, the plaintiff said –

“There was one party wanted me to go and have a game of darts. I was feeling very weird at this stage, very lethargic, I had no energy whatsoever. When I walked into the shed I nearly collapsed, like my legs and nearly given way on me, and I said, ‘There is something wrong. I have got to go home. I am not very well’, and he said, ‘Oh, you’ll be all right’, and I said, ‘I have got to go’. He insisted I stay. He said, ‘Go for a walk down to the bottle-shop with my uncle and get another carton of beer.’”

30 The plaintiff said the following about playing darts –

“A. In his small shed he had a dart board set up. I walked into the shed. There was – we teamed up. I think it was him and his uncle against me and his wife. It was strange, because every time I would have a shot at the dart board – I used to play competition darts: you always go for the triple 20 – every time I would have a shot there was like a little moth would come out and hover around, and it was just the strangest thing I would have seen, and I said, ‘What the hell, have you got a trained moth or something that comes out of your wallet or something?’, and he just sort of smiled and didn’t say nothing.”

31 The plaintiff said that he does not now believe that every time he went to have a shot at the dart-board there was a moth in the way. He said that he believed it was some sort of hallucination caused by Mr Blake putting a drug in the marijuana cones which he was smoking. He said that he had never had a similar experience before when drinking alcohol or using marijuana, adding –

“I had an experience when I was 21, when I was down the Snowy Mountains, a person that had given me half a trip and said, half an LSD thing, and that sort of was actually terrible, and I said the next day, you know, like, ‘I’ll never touch that crap again. It is bloody terrible’. But that is similar to the experience I had. Yeah, after that, I think I went to the bottle-shop. I walked with his uncle. His uncle was telling us how he was in Vietnam. He reckoned he was some sort of commando, used to go out in the middle of the night slashing people’s throats. He told me he had the record of 30 in one night. I said, ’30 in one night?’ I said, ‘You would have to be killing someone every ten minutes or so’, something, and he said, ‘Don’t ever question me’, and he call me a filthy name. He was a person you could not look in the eye. If you looked him in the eye he would say, ‘Don’t eyeball me’, and he would call me a filthy name starting with a ‘C’. He was a very strange man. He was just out of gaol apparently for killing or something, he wouldn’t tell me, but he told me he shoved the knife into someone. He was a very evil sort of person, I believe, and he made me quite – I was quite wary of him. I was pretty scared of him really. We walked to the bottle-shop. I paid for the beer.”

32 The plaintiff said that he felt enervated in a way that he had never felt before in his life, although “I felt all right in my head”. He said that he was feeling physically drained and told Mr Blake’s uncle that he wanted to go home. But he insisted that he should return to the house. The plaintiff said he did so. When he made to leave several more times, Mr Blake and his uncle insisted that he stay. The plaintiff thought that the trip to the bottle shop occurred about 3.30pm or so. He said that, when he returned, he probably drank one more beer because he was not feeling well. He said that every time that Mr Blake gave him a beer, the bottle was opened and that he did not know if Mr Blake was putting something in the beer or in the cones: “There was something going on”. He said that, eventually, Mrs Blake made a stew with sausages, which Mr Blake called “devilled sausages”. I think that the plaintiff thought that the name of this dish was significant.

33 Eventually, the plaintiff went home. He said that he was feeling very weak. He remembered asking Mr Blake to borrow a jumper because it was cold but Mr Blake told him that he would be all right. Mr Blake gave him a six- pack of beer since the plaintiff had “paid for it”. The plaintiff said that, as soon as he got out of the gate, “the fresh air hit me and I just felt fine after that”. He did not live far away and he walked home. The plaintiff said that when he got home he felt physically a lot better. A friend of his, Ms Carlene Beehan, came around and they talked about the plaintiff’s relationship with Popeye. The plaintiff decided that he would attempt a reconciliation and thought of ways in which he could do this. During the conversation, the plaintiff told Ms Beehan that he had visited Mr Blake’s house and believed that he had done something to him although he did not know what it was. He said that Ms Beehan told him that he should stay away from Mr Blake as “there is something wrong with that guy, he is evil or something” or something to this effect. Ms Beehan stayed for perhaps an hour and a half, leaving sometime before 10pm. The plaintiff believes that he only slept one hour that night, although he thinks that he went to bed shortly after Ms Beehan left.

34 The following morning, Monday 3 July, the plaintiff went to work, starting at about 7.30am. He worked with Mr Long most of the day, finishing work at about 4pm. He said that he stayed home for a short time and then telephoned Mr Blake to tell him that there was no work for him the following day, although there might be on the Wednesday. In an attempt to convey an impression of the character of plaintiff’s evidence, I set out in extenso the plaintiff’s evidence about what happened that night –

“He told me to come round, it was time I joined his family. I said ‘What's this family business?’, and I also asked him ‘What are you doing in the esky? Are you playing some sort of mind game?’ I said ‘What did you put in the cones? [marijuana]’ He said ‘Nothing’. He said ‘Didn't you have a good time?’ I said, ‘I thought you liked me’. I said, ‘There was no barbeque’. He was just getting me round there. I said, ‘Don't bullshit me’. He told me to come around. I said, ‘No, I'm staying home tonight’. He insisted I come round to join his family. I said, ‘What's this family crap about?’ He wouldn't tell me. He said, ‘You'll find out when you get there’. He said bring the six-pack with me. I went round there, it was probably 7.30, 7 o'clock.

HIS HONOUR: Q. Why?
A. I wanted to find out what this business was with the family because I believed he was trying to intimidate me. I believed it was some sort of cult or something. He had spoken to me before about this family. He said, ‘You've got your own family, I don't mind’. He said, ‘My family is bigger than this’ and he made a gesture with his arms. I believed it was some
kind of cult.

Q. Why did you go round then?
A. I wanted some proof. I was going to put him in with the police. I remember there was some time before a thing in the paper about this woolshed hired out by police and when he went there, there was dead chickens all cut up, dead, sort of the wings and everything. That was three or four weeks ago and they reckoned there was some sort of cult thing going on and it was reported in the paper. I went around there. The house was in complete darkness, which it usually was. I knocked on the door. His wife answered and let me in. He said, ‘You're ready to join my family now?’ I said, ‘I'm not joining your family, I've got my own family’. I went into his bedroom. I was sort of going into his wardrobe, I thought he might have had some black cloaks or something in there to hide in there or something and there was nothing in there of course, so I come out and I was pretty agitated at that stage. He said, ‘Settle down, here have a cone’. I didn't know what to do. I ended up having this cone and, as soon as I did, I collapsed on the floor and he was hanging over me laughing his head off saying ‘It's good shit, isn't it?’, and I didn't know what was going on. It was like I was, I don't know, it never affected me, I don't know what was in it. He got his dog to jump all over me. His little boy come over and started laughing at me and I ended up picking him up. I said, ‘I got to get outa here’. I went to go out. He said to me, ‘You'll be back. When you come back you be ready to join my family’. I said, ‘No, I won't’ and when I went to leave he said, ‘You'll be back when you see the light on’ or something. It was weird. I walked out and as I got further away from the house – it was like he lived on a T-intersection and I walked straight up the street. The further I got away from the house it was like I could hear voices in me head telling me to go back, I had to go back and join this family.

Q. Sorry?
A. He said, ‘You've got to scare my wife’ or something ‘and my son’ and I was in a very, a bit psychotic then –

OBJECTION.

Q. What do you mean by that?

HIS HONOUR: Q. What do you mean by saying you were a bit psychotic then, what were you describing?
A. I don't know why I went back, I can't think what was telling me to go back. I was –

Q. What were you feeling when you were in the house?
A. When I went back?

Q. You told us that you said you were going to kill his rats?
A. Yes.

Q. And you said, ‘I was feeling a bit psychotic then’. What were your feelings? I mean were you feeling alert, were you feeling confused, were you feeling angry, were you feeling calm or happy, what were you feeling?
A. I was very confused. I really, I was really in a very confused state. I went back and all I did was look into his wife's eyes and she just freaked out, she started screaming and Blake said, ‘You're ready to join my family now’. I said, ‘I’m not joining your family, your family is weird’ and he said, ‘You're not getting out now’ and he called me that filthy C word again and I said ‘You watch me’ and I kicked his screen door out. He told me people had a habit of kicking his door out and it was only held on by a nail so I won't have no trouble. I got to his gate. It was a very high gate and I was trying to get the latch to unlock it and Bill Blake come from behind me, grabbed me around the waist and it was like all my energy sort of dropped, drained out of me body. He laid me down on the concrete and he got on the veranda and stood over me and he said to his wife, ‘Go and get the male Deb’, that was his wife's name. I believe that to be the male rat. I said to him, ‘Do you believe in God, Bill?’ He said, ‘Yeah, I believe in f-ing God, all right’ and straight away he said to me, ‘I’m going to have some fun with you’, that filthy word again, ‘I’ve got to make you kill your mother, your father, I’m going to make you kill your brothers and sisters, I’m going to make you wipe your whole family out and then I’m going to make you burn your house down’.

Q. Were you still lying on the ground at this time?
A. I was lying on the ground and Bill was standing over me with his arms folded. At that stage I had to get out of there. I got up. I pushed Bill off the veranda. His wife came out with the little boy, holding his hand. She had a cricket bat. She give that to Bill Blake. At that stage the next door neighbour came in, he had opened the gate. I seen the gate open. I pushed past him, went out the gate and we got out there and he said, ‘No-one walks away from my family’ and I said, ‘You watch me, I'm outa here’ and he said to me, he said, ‘Don't ever close your eyes again’ and he called me that word again because he said, ‘We'll get ya’ and then he said, ‘We'll make you do what we told you we were going to make you do’ and with that I thought I had to, because I had threatened to actually put him in to the police. At that stage when I got out the front and told him I would put him in for his bodgie insurance claims, for his house invasions, his robberies he done, I thought I had to have a go at him, so I went to charge for him but I sort of, I just didn't have any energy, I just couldn't even lift my arms and I was just an easy target and he hit me over the head with a cricket bat and I got up and I had another go at him and he hit me over the head with a cricket bat again. I remember I was crawling up the fence –

Q. Was this outside his house or inside?
A. This was outside his house.

CRADDOCK: Q. Outside his yard or in?
A. It was outside, on the footpath.

Q. On the footpath?
A. I remember crawling up the fence. His neighbour had armed himself with a wheel brace at this stage to take the nuts off the tyres with and he said, ‘Don't come near me’ and he called me that filthy name and as I sort of got up Blake come from behind and I remember he hit me in the side of the temple and I must’ve blacked out. I woke up on the footpath still. Blake had me pinned by the arms. Jeremy Hughes was taking me shoes and socks off, the next door neighbour. They were taking my belt out of – I remember Jeremy saying, ‘I can't get his shirt off’ and remember Blake saying, ‘Just rip it off him’. I remember he started screaming at that stage and the next thing I knew I was back in his house and Blake had me pinned by the shoulder and Jeremy had me by the feet. I remember this rat was about four or five feet away. I remember they were trying to get this rat to bite me.

HIS HONOUR: Q. Where was the rat, was it just in a cage?
A. No it was out on the floor in his lounge room and I was absolutely terrified. I believed if this rat bit me it would take my soul and I remember I started screaming or something and I heard Blake say, ‘Let him up’ and I got up and I remember running blindly and I must have hit a door or something and blacked out again and the next thing I knew I was out the front on the footpath again. Blake was standing with a cricket bat over his head. I just told him – it was like tunnel vision, I couldn't make out things on the side, I couldn't
see very well at all. I remember seeing some blue lights and Blake saying, ‘He's going to kill me’ and the next minute the police officer approached and he looked like someone who had broken into my house a couple of years beforehand and ripped off my video and stuff.

CRADDOCK: Q. When you say he looked like someone?
A. Yes.

Q. Are you saying he resembled that someone?
A. No, that was him, to me it looked like him.

HIS HONOUR: Q. So you believed him to be the person who burgled your house?
A. That is correct.

Q. Have you seen that person who burgled your house?
A. Yes, I knew him.

Q. So he did it while you were watching him?
A. No, no, no, he done it while I was at work one day.

Q. I see, but you knew who it was?
A. I found out who it was.

Q. And you thought this was the policeman, you recognised him?
A. I recognised him as this Tony Dan, because the officer come and informed me that he was in cahoots with Blake, so I attacked him and the next thing I knew I was on the ground. I remember they must have handcuffed me.

CRADDOCK: Q. Just before we go on, when you saw this policeman coming towards you, you thought he was this other person?
A. Yes.

Q. Not a policeman?
A. I think, yeah, I think I could see his uniform but it was like I believed him to be in with Blake or something.

Q. But you thought it was the person who had broken into your house?
A. Yes.

Q. But you could see he was wearing a uniform, could you?
A. I believe so, yes.

Q. Do you now still think that it was that person who had broken into your house?
A. No, not at all, no. I remember they put the handcuffs on me. It was like things were going in slow motion, the handcuffs would come off, I remember I would struggle, I thought they were going to throw me in the rat cage or something. I was absolutely traumatised.

Q. When you say you were absolute traumatised, what feelings were you experiencing at that time?
A. Absolute terror, absolute terror. I could describe it no other way. The next thing I knew I think I was, I had this pain in me chest. It was the worst pain I had ever had, it felt like someone was reaching inside trying to tear out my heart or something and I believed they would try and take me soul. I remember saying, ‘You can't have it, it belongs to God’. The next thing I remember was the ambulance turning up. I remember they looked like members of my family, one looked like my sister Bev and one looked like my brother-in-law. One looked like my brother-in-law Ken Moulton and one
looked like my other brother-in-law John Pater. There might have only been two of them, I'm not sure. I remember –

Q. Just before you go on, again when you say that they looked like –
A. Yes.

Q. Do you mean that they physically resembled those persons or did you think it was those persons there at that time?
A. Yeah, I believed it was them, yes. They were sort of, there seemed to be a battle between good and evil or something, I don't know. Like the ambulance people seemed to be God and the police seemed to be on his side, I believed at that time. I remember them injecting me with something. I remember them at that time, I believed the rats were biting my toes, eating my eyes or something. It may be that the ambulance people were putting actual clips on my toes to see my reaction to pain or whatever. I think that might have been part of the process, I don't know.

HIS HONOUR: Q. You felt something happen to your toes, you believed at the time, that's what you thought it was, the rats eating your toes?
A. Yes, that's right.

35 Mr Blake made a statement to police on 23 July 1995 for the purpose of the investigation into the death of Ms Laws. Mr Blake’s account of the events of the evening of 3 July, not surprisingly, differs markedly from that of the plaintiff. He said that, at about 5pm on the evening of 3 July, the plaintiff called him at home and said that there was some work available for him late in the following week. He said that he would come around to Mr Blake’s house with a six-pack of beer to tell him about the job. He arrived at about 8pm and the two men sat on the lounge and had a beer. Mr Blake said that the plaintiff was mumbling something but he could not work out what he was saying. Suddenly, he said to Mr Blake, “I have to kill you”. He smiled. Mr Blake thought he was joking so he smiled back. The plaintiff then grabbed him by the throat with his two hands and squeezed tightly. Mr Blake said that Kevin then said, “I don’t think I could kill you”, stood up and walked towards Mrs Blake who was nearby. The plaintiff said something to her but Mr Blake could not work out what it was. He said that the plaintiff jumped up and down around the lounge room and then went into Mr Blake’s bedroom. Young Timothy Blake (aged 3 years) followed him. Mr Blake thought there was something wrong and also followed. He saw the plaintiff opening and slamming the wardrobe doors while at the same time jumping into the air. Mr Blake took Timothy by the hand and led him out into the lounge room. The plaintiff followed, sat on the lounge and said, “I’d better go”, grabbing his hair at the same time. He stood up, walked to the door and out onto the veranda, with Mr Blake following him. When the plaintiff got to the stairs he said, “So much for the new fence” grabbed the top of the fence and kicked it with his foot about fifteen times, running out onto the footpath towards the street and then coming back. Mr Blake grabbed him around the body as he started kicking the fence again and both men fell to the ground. Mr Blake asked him, “What is the matter Kevin?” The plaintiff said, “Do you believe in God?” Mr Blake replied, “Doesn’t everybody?” Mr Blake said the plaintiff, who had been shaking, appeared to calm down and he helped him up onto the veranda. As the plaintiff got to his feet, he pushed Mr Blake away with his two hands, causing Mr Blake to fall backwards, and ran into the house through the front door. Timothy was then standing in front of the television. The plaintiff grabbed him by the throat with his left hand. Mr Blake tackled him whilst his wife grabbed Timothy and tried to pull him away. Mrs Blake started to punch Kevin in the head with her open hand and managed to pull Timothy out of his grasp. Mr Blake and the plaintiff struggled on the lounge room floor. The plaintiff elbowed Mr Blake in the ribs, forcing him to release him and then ran down the hallway and head butted the back door with such force that the door was holed across the centre. The plaintiff stepped back and kicked the bottom of the door causing another hole. Mr Blake then grabbed Kevin around the body and punches were exchanged. Mr Blake managed to drag the plaintiff to the front gate where his next-door neighbour, Jeremy Hughes, opened the gate for him. The plaintiff then grabbed Mr Hughes by the throat but the two men managed to pull him away and get him out of the front gate. The plaintiff and Mr Blake were still exchanging punches, the plaintiff yelling, “The rats must die”. Mr Blake said that the plaintiff tried to hit him with a piece of lattice (from the fence), which was grabbed by Mr Blake and thrown away. The plaintiff got hold of him and the two men pushed over the fence into the barbed wire whilst they struggled. The plaintiff released his grip after Mr Blake punched him in the face. Mr Blake went inside and got his cricket bat. He ran out onto the veranda and saw the plaintiff coming back through the gate, so he hit him in the middle of the head with the bat. The plaintiff staggered back and then came forward again. Mr Blake hit him a second time on the side of the head. The plaintiff staggered backwards and yelled, “The rats must die”, several times, starting to remove his clothing as he did so. Mr Blake said that he believed that the plaintiff was referring to pet rats that he kept in the garage as pets for his children. Mr Blake said that he and the plaintiff stood facing each other for about five or ten minutes until the police arrived. When they did so, Mr Blake told the officers what had happened but indicated that he did not want to lay any charges and said that he thought that the plaintiff needed help.

36 The police who attended at the scene were Senior Constables Jones and Duffey, arriving at about 8.30 pm in response to a police radio message. Jones said that when they arrived he saw Mr Blake standing with a cricket bat raised above his shoulder facing the plaintiff, who was standing about three metres away. Jones approached Mr Blake whilst Duffey approached the plaintiff. Duffey stood between the plaintiff and Mr Blake and the house. However, the plaintiff appeared to be attempting to get past Duffey towards Blake and the house. Jones said that he thought that it was at this time that he heard the plaintiff talking about rats at his toes and eyes. He also screamed, but wordlessly. The plaintiff attempted to push Duffey aside and appeared desperate to come towards Mr Blake and, of course, Jones who was standing next to Mr Blake. Mr Blake was calm and Jones thought he should give Duffey some assistance. The plaintiff was using both his arms to push the police officers aside. They attempted to restrain him. The level of the plaintiff’s aggression increased and the officers forced him to the ground and handcuffed him. Further police officers arrived, as did an ambulance. Jones was unable to recall whether the plaintiff was sober or not. Jones said that the screaming stopped, he thought, sometime after the plaintiff was handcuffed but before the ambulance officers treated him. He was quite sure that the plaintiff had been screaming for over a minute. In due course, the plaintiff was placed in the ambulance and taken to JHH, accompanied by Duffey. Jones recalled that there was a great deal of blood on the upper part of the plaintiff’s body, possibly his shirt, as he had been bleeding profusely from his head wound but he could not recall whether or not the plaintiff was wearing a shirt. He did not recall seeing any blood on his trousers.

37 Senior Constable Duffey said that, when he first approached the plaintiff, he was covered in blood from an apparent head wound. He seemed to be, the officer thought, “exhausted but agitated”. From the bleeding wound he inferred that the plaintiff was the victim of an assault, especially when he noticed that Mr Blake was holding a cricket bat above his head. Duffey asked the plaintiff to move back but he did not acknowledge this command, continuing to stare at Mr Blake. Duffey then asked Mr Blake to move back. He complied, moving towards Senior Constable Jones. Duffey then approached the plaintiff and asked him if he was okay and what had happened. He said that the plaintiff stared “right through me towards William Blake” and Duffey realised that there was something more to the situation then he had at first supposed. The plaintiff started to move towards Mr Blake. Duffey asked him to stay where he was and put out his hands to indicate this. He said that the plaintiff tried to push past him. The officer took hold of his arm and stepped towards him so that the plaintiff would have been in an unbalanced position with a low fence behind him. Duffey said that he had his hand up across the plaintiff’s lower chest to his lower throat with his forefinger and thumb on each side of his neck so that he would have complete contact with the plaintiff and, he thought, be able to keep him under control. Just before this, when the officer had taken hold of his arm, the plaintiff yelled that the rats were eating his eyes and his toes. These words were repeated one way or another, during the entire incident. He also talked a lot of incoherent and partially inaudible gibberish. In one long, incoherent sentence he spoke about killing and children and mentioned the devil at least once. These things were being said some time between the officers’ first contact with the plaintiff and his being placed in the ambulance. Duffey was a strong fit young man weighing about 100 kilograms and, as he put it, “had the leverage over the top of the man that wasn’t as tall as me and would have weighed 55 to 60 kilograms”. He said that he thought that he had the plaintiff off balance with his back at waist level against a fence and was surprised at the strength the plaintiff displayed using his abdominal muscles to sit up over the fence. Duffey said that this was not the first time he had pinned someone in a similar position where he could control them but it was the first time that someone was able to regain his balance and release his grip, which is what the plaintiff did. He said that the plaintiff again started moving towards Mr Blake. The two policemen then tried to subdue him. Duffey recalls picking him up off the ground and driving him into the ground in a spear tackle. He said that the plaintiff stopped reacting for a short time but then began to flail his arms and was hard to control. The two police officers found it very difficult to restrain the plaintiff to handcuff him. Duffey said that the plaintiff’s strength was surprising. Once he had been restrained with the handcuffs, Duffey said, “He just went into a trance”. He was muttering and it is possible that at this stage he mentioned the devil and killing the children but Duffey was unsure about this. Duffey thought that the ambulance arrived perhaps ten to twenty minutes after he had first tackled the plaintiff. At this point, Duffey was sitting on the plaintiff to restrain him but he appeared to be in some kind of trance, his eyes were open and fixed, staring straight ahead. Despite attempts by the ambulance officer to evince a pain response, even by pressing in and around his head wound, the plaintiff did not respond. The ambulance officer insisted that the handcuffs should be removed so that the plaintiff could be properly examined. Although he protested about the risk, Duffey did so. The plaintiff then started to throw his arms and legs around and attempted to get off the ground and, as Duffey thought, to escape. It took the two ambulance officers, the other two police who had arrived and Duffey to restrain the plaintiff once more. During this episode, the plaintiff again yelled gibberish, also referring to rats and eyes and rats eating his toes. After he had been subdued again, he was placed on a stretcher and put into the ambulance.

38 As I mentioned, the plaintiff was taken to JHH. He remained in what Senior Constable Duffey described as “a trance-like state and stared straight up at the ceiling of the ambulance” during this journey. Duffey said that, although the ambulance officer spoke to the plaintiff, he did not respond. The patient report made by the ambulance officer states (expanding abbreviations) –

“Head injury – patient in psychotic state – seeing rats eating his eyes, head butted a door and was also ? assaulted by cricket bat. On arrival patient conscious on footpath. Handcuffed by police. Patient incoherent. Initially thought patient had priapism and treatment commenced for spinal injury. On further investigation nil priapism. Patient’s head bandaged prior to our arrival. Hypertensive tachycardic. Pupils equal and reacting. Abdomen soft. Chest clear. Redness on chest visible. Limbs intact. Patient agitated/aggressive. Police escort [indecipherable].”

39 I mention at this point (because the reliability of Senior Constable Duffey’s evidence was attacked by the defendants) that Duffey stated in his affidavit that the ambulance officer had told him words to the effect that he “must have broken the plaintiff’s neck because his penis was very hard and that happens when a man’s neck is broken”. The affidavit was sworn on 26 September 2002. The condition of the plaintiff’s penis was not referred to in the constable’s original police statement, made shortly after the incident. To my mind, the first reference to the plaintiff’s possible priapism in the ambulance report gives some support for the reliability of Duffey’s recollection. However, even if that reference should not be taken to suggest that the plaintiff had an erection, the fact that after the elapse of years Senior Constable Duffey recalls this discussion with the ambulance officer, even if it turned out that the plaintiff had no erection, to my mind provides substantial support for the essential reliability of the constable’s account.

157 So far as breach of duty is concerned, the generally accepted statement of principle is that of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 –

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.”

158 As the defendants rightly submit, errors in clinical judgment may or may not be negligent, depending on whether or not reasonable professional skill and care was exercised in forming the judgment: Maynard vWest Midlands Regional Health Authority [1984] 1 WLR 634. In this respect, it is important to remember that the assessment of error is being made where the results of the clinical decision are known. Doctor Nazarian did not have the benefit of hindsight. Nor are doctors or, for that matter, any professional persons, required to perform their work according to what, in the argot of modern management is called “best practice”. Professional skill and experience will vary: the law requires the reasonable exercise of those skills to a reasonable standard. No doubt perfection is an honourable aspiration but the law does not require it. A number of the defendants’ expert witnesses suggested that too much emphasis was placed by the experts called on behalf of the plaintiff on the tragic circumstance that the plaintiff killed Ms Laws relatively soon after he was discharged from the hospital. I think this criticism is unjustified. It seems to me that the plaintiff’s experts were very careful to consider Dr Nazarian’s conduct prospectively as, indeed, have I. However, it is not right to say that what occurred after the plaintiff left the hospital is irrelevant. It gives useful knowledge about his likely state of mind at the time when he was seen by Dr Nazarian and informs the question whether probing by Dr Nazarian, required by matters already known or which ought to have been known, would have probably yielded useful information. My judgment of the matter has been confined, however, to both the material that was actually before Dr Nazarian, then the material that should have been before him, had the records of the hospital been complete, namely, had they contained the police escort form, and the information gathered at JHH and, thirdly, what Dr Nazarian would probably have gathered if he had conducted his assessment of the plaintiff in an appropriate way. In respect of each of these scenarios, I have formed the view that, had Dr Nazarian dealt with the plaintiff as an ordinary skilled psychiatrist according to the standard of reasonable care and skill required of such a specialist, he should have detained the plaintiff either as a mentally ill person or as a mentally disordered person. Moreover, had the plaintiff been detained, even as a mentally disordered person and was not found to be a mentally ill person, I am satisfied that it would have been most unlikely that he would have caused serious physical injury to any person after appropriate treatment. Obversely, no psychiatrist of ordinary skill, applying the standard of reasonable care and skill required of such a specialist, would have failed to detain the plaintiff. Even assuming that there was some slightly lesser standard applicable to Dr Nazarian as a third year psychiatric registrar, this conclusion would be the same.

159 It is submitted by the defendants, as indicated above, that “it would generally trespass unacceptably on the operation of the criminal law to allow a person such as Mr Presland, who committed a homicide, to recover damages for injuries”, quoting Brennan J in Gala v Preston (1990-91) 172 CLR 243 at 273: “There is no duty of care where the admission of the duty would condone a breach of the criminal law.” This submission overlooks the crucial fact that the plaintiff was acquitted of the unlawful killing of Ms Laws. Even if it were not for that acquittal (say, if there had been no trial) there could be no doubt that he was insane at the time of the killing and innocent of any crime. If it is relevant, it is also obvious that there was no moral turpitude involved in what he did, given his psychotic state of mind at the time. In Clunis v Camden & Islington Health Authority (supra) the Court of Appeal applied the ex turpi rule to a plaintiff convicted of manslaughter on the ground of diminished responsibility. The Court said ([1998] QB at 989 –

“In the present case the plaintiff has been convicted of a serious criminal offence. In such a case public policy would in our judgment preclude the court from entertaining the plaintiff’s case unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong.”

160 The defendants point out that the operation of the ex turpi principle is not avoided simply because the plaintiff acts legally. In Hardy v Motor Insurers Bureau (1964) 2 KB 745, Diplock LJ said –

ex turpi causa non oritur actio

Gollan v Nugent

Chettiar v Chettiar

161 It cannot be gainsaid that the killing of Ms Laws was an appalling tragedy that occurred at the hand of the plaintiff but only because of his deranged mind and only because he had been discharged from the hospital where, I have no doubt, he would have been content to remain had he been able to do so and where, at all events, he should have been required to remain. It is obvious from what I have already said about the defendants’ conduct who, if anyone, bears moral responsibility for what happened. Of course, the plaintiff cannot succeed unless his injuries were caused by the defendants’ negligence. In this case of course, the complicating feature is that the plaintiff’s acts were, in a sense, intentional and voluntary. This will usually prevent recovery –

March v E and M H Stramare Pty Ltd

162 The exclusion of liability is, however, not complete –

Chomentowski v Red Garter Restaurant Limited

Caterson v Commissioner of Railways

March v Stramare

supra

163 Caterson is, I think, instructive for present purposes. In that case the plaintiff entered a train standing at a platform to stow some luggage for a friend who was boarding the train, the train started to move without warning and, when he got to the doorway, the plaintiff jumped out, holding a hand bar on the outside of the carriage but he fell between the train and the platform and suffered serious injuries. The question was whether it was open to the jury in these circumstances to find that the defendant had been guilty of negligence which caused the plaintiff’s injuries. It was not doubted that the defendant should have foreseen that some people would board the train momentarily and might wish to alight before it moved off. It was also not contested that it was foreseeable that a person would be likely to suffer injury if he tried to return to the platform when the train had started to move off. The Court of Appeal concluded that it could not be foreseen that this would be likely to happen unless the person was attempting to protect himself from some danger of physical injury that he might otherwise suffer if he remained on the train; it was not foreseeable that a man would do anything so dangerous as to jump from a moving train except for such a reason. Accordingly, it was held that there was no duty of care on the part of the defendant related to the injury suffered by the plaintiff or, if there was such a duty, there was no breach of it. The plaintiff succeeded on appeal to the High Court. Gibbs J (as he then was) with whom the other judges in substance agreed, concluded that it was reasonable for the jury to find that the defendant should have foreseen that a person such as the plaintiff might seek to jump from the train which started to move off without warning, even though he was not endangered by remaining on it, pointing to the considerable inconvenience of being carried to the next town eighty miles away, whilst in some cases there might be additional strong reasons to avoid such a trip as, for example, if he had left a helpless child on the platform or a sick wife at home. His Honour observed that it would have been safer to pull the communication cord “but people do not always choose the safer course and it was foreseeable that people wishing to get off the train might try to jump off it while it was moving, because he thought that the speed of the train enabled him to do so without risk of injury, or because he wished to avoid the embarrassment of pulling the communication cord and for that reason was prepared to take a chance of injury, or simply because in the heat of the moment, it seemed to him the only thing to do” (Ibid at 108). Gibbs J pointed out that to find that the plaintiff’s act was foreseeable did not determine the question whether his voluntary act in jumping from the train broke the chain of causation between the defendant’s negligence and the plaintiff’s injuries, although “the intervention of the voluntary act of the appellant did not in itself necessarily have the result that his injuries were not caused by the respondent’s negligence”: (Ibid at 110), adding –

Summers v Salford Corporation

‘…if a plaintiff suffers damage by the defendant’s default, the damage may be directly due to that default and recoverable even though the accident and damage would not have happened but for some action of the plaintiff, so long as his action was in the ordinary course of things and, at least generally speaking, was not blameworthy.’

Dorset Yacht Co v Home Office

Haynes v

Harwood

novus actus interveniens

164 In this case, I have no doubt that the likelihood that the plaintiff might cause another person serious physical injury was, indeed, foreseeable. In the circumstances, his doing so was both “in the ordinary course of things” and “the very kind of thing” that might well happen as a result of the defendants’ negligent discharge of him from the hospital. Of course, I use ‘ordinary’ not to describe what the plaintiff did but the unsurprising (though shocking) course of events.

165 It is clear that the “but for” test of causation is satisfied in this case, although I accept that it is not sufficient for present purposes to determine whether the defendants are liable. The question of causation has been the subject of considerable judicial and academic debate to which I do not wish to make a contribution. For the present it is sufficient, I think, to adopt the test as stated by Deane J in March v Stramare (ibid at 522) –

Barnes v Hay

causa sine qua non’)

Chappel v Hart

supra)

166 Posing the test as proposed by McHugh J (ibid at [46]), as, I should think, the defendants would wish to have it phrased: “Did the defendants’ failure to detain the plaintiff cause or materially contribute to him killing Ms Laws?”, to my mind the answer must be yes. Indeed, it would be an offence to commonsense to answer this question otherwise.

167 In Reeves v The Commissioner of Police of the Metropolis [2000] 1 AC 360, a case in which the de facto wife of a man who committed suicide sued the Commissioner of Police under the Fatal Accidents Act 1976 for negligently causing her husband’s death, Lord Hoffman said (at 368) –

sound understanding

full understanding

AMP v RTA & Anor

Compensation to Relatives Act

Bennett v Minister of Community Welfare

Oropesa

168 The Chief Justice said –

March v Starmare

Reeves

March v Stramare

“[152] These tests raise several queries in relation to the present facts. The Defendant behaved negligently; this set the scene for the Deceased to sue the Defendant, to suffer depression and to commit suicide; the Defendant’s negligent behaviour was in that sense an essential condition for the Deceased’s depression and suicide. But was it a ‘cause’ of those consequences? As a matter of value judgment, is it just to hold the Defendant legally responsible for an injury to the Plaintiff which, though it can be traced back to the Defendant’s wrongful conduct, was the immediate result of unreasonable action on the part of the Deceased? Was the injury the consequence of an action by the Deceased which was not independent and unreasonable? Even if, contrary to earlier conclusions, one assumes the depression and the suicide to be foreseeable, was it the case that either of them in the ordinary course of things were the very kind of thing likely to happen as a result of the Defendant’s negligence? In particular, is there some reason in commonsense, logic or policy for regarding the Defendant’s conduct as the cause of the Plaintiff’s loss?

[153] These questions should be answered ‘No’. The assumption that the Deceased was of normal susceptibility must be made in relation to causation as it is to be made in relation to foreseeability. It would be bizarre if for part of the analysis he were treated as being of normal susceptibility, but for another part he were treated as being the opposite. Nothing in the law justifies that distinction. On the assumption that the Deceased was of normal susceptibility, to develop depression and then to commit suicide is not reasonable. Developing depression and committing suicide were events which were not only unreasonable, but were independent of the Defendant’s conduct. Developing depression and committing suicide were not, in the ordinary course of things, the very kind of thing likely to happen as a result of the defendant’s negligence to a person of normal susceptibility. There is no reason in commonsense, logic or policy for regarding the Defendant’s conduct as a ‘cause’ of the Plaintiff’s injury in view of the Deceased’s depression and suicide. But even if the Deceased is not assumed to be a person of normal susceptibility, the fact that he developed depression and the fact that he committed suicide were not events which were reasonable or in the ordinary course of things the very kind of thing likely to happen as a result of the Defendant’s negligence. No considerations of commonsense, logic or policy suggest the Defendant’s conduct as the cause of the Plaintiff’s injury in view of the Deceased’s depression and suicide…[T]hough the Deceased would not have suffered the psychiatric illness which led to his death but for the accident, that psychiatric illness was not relevantly related to it; it had only a tenuous connection with it, its manner of causation was different from the manner in which the Deceased’s psychiatric illness which was cured before…[he commenced proceedings] was caused. The chain linking it to the Defendant’s negligence was different from the chain linking other injuries to the Deceased to the Defendant’s negligence, the former type of harm was different in kind from the latter.”

169 In this case, the plaintiff was mentally ill or mentally disordered and it was the duty of the defendants to detain him and to care for him so that he was not a risk to himself or to others. The form of his illness or mental condition made him susceptible both to harming himself and seriously injuring others. I see no difference in substance between a bodily illness not treated by appropriate medicine or surgical procedure and an illness or irrational condition of the mind not treated by a remedy reposed in the defendants to be used for his benefit in precisely the circumstances that occurred here. The direct and foreseeable consequence of the violence he then committed was his ensuing incarceration. The infliction of violence by the plaintiff on Ms Laws was unwitting in the relevant sense. Although it was not reasonable, it was that very lack of rationality which permitted, indeed, required, the defendants to detain him and, in the ordinary course of things the infliction of very serious injury or death was the ‘very kind of thing likely to happen as a result’ of his discharge. I do not see that any considerations of commonsense, logic or policy should operate to break the chain of causation. Indeed, in my view, breaking the chain of causation because the plaintiff acted in a way which was foreseeable and in circumstances which his detention should have prevented, because of the very risk that what he did might occur – when associated either with mental illness or irrationality – would be both arbitrary and capricious. The plaintiff would not have attacked Ms Laws but for his negligent discharge from the hospital, which was required to treat him for the very condition which led to the attack and the connection between his discharge and the attack was substantial. Although it is true that nothing at the hospital caused his illness or mental disorder, the “effective” or “substantial” cause of the attack on Ms Laws was, in all the circumstances, his being discharged from the hospital.

170 In Haber v Walker [1963] VR 339, the Full Court of the Supreme Court of Victoria considered the liability of the defendant in negligence for the suicide of the plaintiff’s husband whilst mentally unbalanced as a result of serious injuries received in an accident caused by the defendant’s negligence. In AMP v RTA (ibid) the Chief Justice cited [at 22] with approval the following passage from the judgment of Smith J –

“In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless the harm would not have occurred without the act or omission having previously occurred with such of its incidence as rendered it wrongful. Exceptions to this first principle are narrowly confined. Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connection. And, finally, the intervening occurrence if it is to be sufficient to sever the connection, must ordinarily be either –

(a) human action that is properly to be regarded as voluntary, or

(b) a causally independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence…”

171 The Chief Justice noted that, in Haber v Walker, the question whether “the deceased’s conduct could be categorised as a ‘voluntary act’ could be asked ‘in terms of whether or not’ the actor should have exercised a free choice” (Haber v Walker at 359). In the present case I do not think that the plaintiff’s attack on Ms Laws could be described as a “voluntary” act in the sense that he was exercising a “free choice”. He was acting – to put it briefly – under the compulsion of his overwhelming delusions and was not, to my mind, acting voluntarily in the relevant sense although he was acting voluntarily for the purposes of the criminal law.

172 For these reasons I have concluded that the plaintiff’s fatal attack on Ms Laws and the personal and legal consequences which followed were both foreseeable and caused by the negligence of the defendants.

General Damages

173 The plaintiff is still a relatively young man, it is very likely that he will be subject to significant restraints on his freedom for the rest of his life. In one way or another he is alienated from his family and there is a heavy load of guilt. His time in prison on remand was terrifying nightmare. His incarceration as a forensic patient only slightly less so.

174 It is submitted on the defendants’ behalf that general damages would be a small sum upon the ground that the plaintiff, on his own case, would have been detained for a period in any event. This depends, of course, on whether the plaintiff should have been found to be a mentally ill person by Dr Nazarian, in which case he would have been detained at least until the inquiry by the Magistrate. As I have already said I think that probably the plaintiff was a mentally ill person and I am also persuaded that a Magistrate acting properly, would have so found. It is, of course, difficult to predict whether florid symptoms would have again emerged but I think that, with proper treatment, this was unlikely. On my view of the evidence, the plaintiff would probably have been detained for about four weeks or so. It may be that some period of post discharge supervision of about two weeks would also have been necessary. However, for present purposes I think that can be discounted. If, on the other hand, the plaintiff was found to be a mentally disordered person he could only have been detained in the hospital for a maximum of three days by which time it is not impossible that his condition could have settled, although I think it unlikely. If, of course, he had settled and the intervening assessments had not disclosed a mental illness then I think he would have been well enough to be discharged and I think it unlikely that he would have committed any act causing serious injury. However, I consider (as I have said) it is probable that he would have been detained as a mentally ill person. I have taken the likely period of detention – although it must necessarily be speculative to a substantial degree – into account.

175 I assess general damages at $225,000.

Economic loss

176 The plaintiff was born on 9 October 1958 and, accordingly, is almost 45 years of age. He studied at high school to year 10 and then took up an apprenticeship as an electrician, which he completed but did not obtain an electrician’s licence because he failed one subject. He worked variously as a labourer, as a driver and doing electrical work for about a year. In 1976 he got his first full time job as an electrician with a firm for which he worked for about three years (although it changed its composition during that time). At that time he was earning about $500 a week net. He then took up employment as an electrician with a firm called O’Donnell Griffin, where he worked for about two years before leaving in about 1979 to commence a business with a partner installing fans. That business failed and he returned to O’Donnell Griffin in about 1981. He believes that this second period of employment with O’Donnell Griffin lasted for about five years and his take home pay for a forty-hour week was $500-$550. He was also paid for overtime but does not know how much. The plaintiff then moved to another firm, where he stayed for nine months at about the same wages, returning to O’Donnell Griffin after that time, where he remained for another two or three years. He and a partner then set up another business which operated for something like two and a half to three years, but this business ended in mid 1994. At that time he estimated he was taking out of the partnership about $500 a week net. It was at this point that he and his partner, Graham Long, started contracting for a house cladding firm, also installing windows as sub contractors and doing small renovations. The plaintiff was renovating his own house at this time. The plaintiff said that the contracting work was not continuous and that he averaged about two jobs a month, with each job taking roughly a week although, as he and Mr Long got more experienced, they became more efficient. The amount of work that was offered to them increased over time. In 1994 they finished work about a week before Christmas and returned after about four to five weeks, just after mid-January 1995. The number of jobs increased a little, with the partnership attempting to complete one job a week. It was into 1995 that Mr Blake was employed for a few days, six days at the most, as the plaintiff recalled it. The plaintiff continued to work up to 3 July 1995, the day which finished up with him being taken to hospital in the circumstances which I have described.

177 A final partnership taxation return for the electrical partnership covered the period 1 July 1994 to 26 August 1994. That showed a net income (rounded up) of $6,800 of which, of course, one half was the plaintiff’s. The profit and loss statement shows a net operating profit for the year ended 30 June 1994 at (rounding down) $65,500, of which $32,750 was the plaintiff’s distribution).

178 It seems to me, therefore, fair to assess the plaintiff’s net weekly income in 1994 at near enough to $550 a week. The next year, 1995, is somewhat problematical as the partnership ceased in August 1994 and the only payments that have been documented cover the period 10 February 1995 to 29 June 1995, a period of twenty weeks with a total paid of about $5,000, something like $250 a week. Taking into account the plaintiff’s evidence that he was renovating his own home requires some upward adjustment to assess his true earning capacity. Overall, I think that the submission made on behalf of the plaintiff that, had the cladding contracting and renovating business not given him a roughly equivalent income to that which he had been earning previously, he would have sought other subcontracting work. I accept that, at the time of his detention, the plaintiff’s capacity for work should be assessed at $550 net a week. The plaintiff’s loss of income for the past should therefore be calculated at a net sum of $550 a week for the whole of the period, less a period of six weeks (four weeks in hospital and a further two weeks for follow up attendances) and accepting that his income between February and 30 June 1998 was $4,700 and from 1 July 1998 to 15 March 1999 at a rate of $360 a week. An amount of $4,000 should be allowed in respect of vicissitudes over this period.

179 On 31 July 1998, the plaintiff qualified for a full electrician’s licence after completing a TAFE course. Since 15 March 1999, he has been in full-time employment as an electrician and does not claim for economic loss from that date.

180 The parties are to calculate damages under this head in accordance with these reasons and file a judgment by consent, in default of which I grant liberty to apply.

181 Accordingly I give judgment for the plaintiff with costs.

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Last Modified: 10/30/2003

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Citations

Presland v Hunter Area Health Service [2003] NSWSC 754

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CITATION:	PRESLAND v HUNTER AREA HEALTH SERVICE & ANOR [2003] NSWSC 754 revised - 28/10/2003
HEARING DATE(S):	14/10/02-17/10/02, 21/10/02-24/10/02, 28/10/02, 29/10/02, 4/11/02-8/11/02, 12/11/02-15/11/02, 18/11/02-22/11/02, 25/11/02-29/11/02, 2/12/02-4/12/02
JUDGMENT DATE:	19 August 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Judgment for the plaintiff with costs
CATCHWORDS:	Medical negligence - psychiatric registrar - Patient suffers psychosis with extreme violence - apprehended by police, taken to hospital - assessed as not mentally ill or mentally disordered person - meaning of "continuing condition" - meaning of "for the time being" - adequacy of assessment - relevance of history - nature of criteria under ss 9 & 10 Mental Health Act 1990 - whether liability in tort for negligent failure to detain - patient killed brother's fiancee whilst insane five hours after release
LEGISLATION CITED:	Compensation to Relatives Act 1897 (NSW) s39 Mental Health (Criminal Procedure) Act 1990 Mental Health Act 1990 Fatal Accidents Act 1976
CASES CITED:	AMP v RTA & Anor [2001] NSWCA 186; [2001] Aust Torts Reports 81-619 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Chappel v Hart [1998] 156 ALR 517 Clunies & Camden 1998 QB 978 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Gala v Preston (1990-91) 172 CLR 243 Gollan v Nugent (1988) 166 CLR 18 Haber v Walker [1963] VR 339 Hardy v Motor Insurers Bureau (1964) 2 KB 745 Hill v Constable of West Yorkshire [1989] AC 53 King v Porter 1936 55 CLR 182 March v Starmare (1991) 171 CLR at 517-519 Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 McNaughten's Case (1843) 10 Clarke & Finnelly 200 Reeves v The Commissioner of Police of the Metropolis [2000] 1 AC 360 Regina v S (1979) 2 NSWLR 1 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Sullivan v Moody [2001] HCA 59; [2001] 183 ALR 404 at 417 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Kevin William Presland (Plaintiff) Hunter Area Health Service (First Defendant) Dr Jacob Nazarian (Second Defendant)
FILE NUMBER(S):	SC 20192/98
COUNSEL:	M Lynch, G Craddock (Plaintiff) G Gregg, L Boyd (Defendant)
SOLICITORS:	Legal Aid Commission (Plaintiff) C Hynes, Liverpool Legal Aid Office (Defendants)