Smith v Pennington

[2015] NSWSC 1168

Supreme Court

New South Wales

Medium Neutral Citation:	Smith v Pennington [2015] NSWSC 1168
Hearing dates:	4 August 2014 - 8 August 2014,11 August - 13 August 2014,15 August 2014,18 August 2014 - 20 August 2014
Date of orders:	28 August 2015
Decision date:	28 August 2015
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Pursuant to s 64 of the Civil Procedure Act 2005, order that the name of the second defendant be amended to South Western Sydney Local Health District. (2)   Judgment for the second defendant. (3)   Plaintiff to pay the second defendant’s costs.
Catchwords:	TORTS – negligence – beach of duty of care – causation – where plaintiff involuntarily detained as a mentally disordered person under the Mental Health Act 2007 – s 47 Mental Health Act 2007 – where period of leave granted to plaintiff to reside with parents – where plaintiff attempted suicide while on leave – where plaintiff sustained significant and permanent injuries – regard to statutory time limit of involuntary detention under Mental Health Act – whether breach of duty of care to grant leave – decision to grant plaintiff leave not unreasonable – whether imposition of formal conditions of leave ought to have been put in place – no requirement for imposition of formal conditions – whether instructions or advice given to plaintiff’s parents prior to grant of leave – whether breach of duty of care to not provide clear instructions – s 43A Civil Liability Act 2002 – ‘special statutory power’ – whether defendant failed to exercise a special statutory power – advice not provided in exercise of power – breach of duty established – causation – application of s 5D Civil Liability Act 2002 – failure to properly advise parents did not cause plaintiff’s injuries – causation not established
Legislation Cited:	Civil Liability Act 2002 Health Services Amendment (Local Health Districts and Boards) Act 2011 Interpretation Act 1987 Mental Health Act 2007
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 Paul v Cooke [2013] NSWCA 311 Roads and Maritime Services v Grant [2015] NSWCA 138 RTA v Dederer [2007] HCA 42; (2007) 234 CLR 330 RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Wallace v Kam [2012] NSWCA 82
Texts Cited:	Human Error 1990, Cambridge University Press
Category:	Principal judgment
Parties:	Daniel Smith (P) Shaun Raymond Pennington (D1) South Western Sydney Local Health District (D2)
Representation:	Counsel: D Higgs SC / V Thomas / T Hollo (P) R H Weinstein SC / K Richardson (D2)   Solicitors: Marsdens Law Group (P) Tress Cox (D2)
File Number(s):	2008/316578
Publication restriction:	Not Applicable

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Judgment

1. On 30 April 2008, the plaintiff, Daniel Smith, commenced proceedings against Mr Shaun Pennington in the District Court of NSW. He claimed that he had suffered injuries as a result of the negligence of Mr Pennington in the way in which he drove his vehicle along Old Kent Road in the suburb of Ruse, on 30 June 2006.

2. On 25 March 2011, that is, nearly three years later, pursuant to leave granted by the Judicial Registrar in the District Court, Mr Smith amended the Statement of Claim so as to add as the second defendant, the South Western Sydney Local Health District (the “Health District”).

3. The plaintiff claimed against the Health District that it was liable for the conduct of staff at Campbelltown Hospital, who were guilty of negligence in November 2008, which negligence was responsible for his personal injury by way of a severe brain injury, and Lance Adams Syndrome which he sustained as a consequence of attempting to commit suicide by hanging.

4. The proceedings were transferred to this Court.

5. On 17 July 2014, the plaintiff filed a Second Further Amended Statement of Claim, which expanded the allegations of negligence against the Health District, so as to provide 20 separate allegations of negligence.

6. The hearing of these proceedings commenced in this Court on 4 August 2014. On the third day of the trial the plaintiff, Mr Smith, and the first defendant, Mr Pennington, settled their proceedings. That settlement was approved by another Judge of the Court.

7. Thereafter, the claim proceeded only against the remaining defendant, the Health District. Accordingly, this judgment deals only with the claim against the Health District. Where in this judgment, I refer to the defendant, that is a reference to the Health District.

8. In my view for the reasons which follow, the plaintiff has failed to prove his case, and there ought be judgment for the Health District.

The Plaintiff’s Case

9. At its foundation, the plaintiff alleges that he should not have been granted leave in November 2008, to go home for four nights from the Sub-Acute Mental Health Unit at Campbelltown Hospital (“Campbelltown SAMHU”). He claims that either the grant of leave, or the manner of grant of leave was negligent. He alleges that had he remained in the Hospital he would not have attempted to harm himself.

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

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

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

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

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

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

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

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

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

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

1. the absence of any graduated leave prior to the grant of four days’ leave;

2. the failure by Dr Purayil to reasonably investigate and assess the plaintiff before a decision to grant leave was made;

3. the failure to adequately assess the risk that the plaintiff may attempt to self-harm during the period of leave;

4. a failure to impose conditions pursuant to s 47 of the Mental Health Act on the grant of leave;

5. the failure to give adequate warnings to the plaintiff’s parents about the key stressors which would affect the plaintiff during leave;

6. the failure to schedule an appointment with a mental health professional during the period of leave; and

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

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

The Health District’s Defence

15. The Health District’s case is set out in its Defence to the Second Further Amended Statement of Claim which was filed on 23 July 2014.

16. The Health District accepts that it is legally liable for the conduct of Liverpool and Campbelltown Hospital, and the conduct of the staff employed at those hospitals.

17. The Health District largely did not admit the pleadings of fact surrounding the plaintiff’s history of admission to Liverpool and Campbelltown Hospital. It did not admit as a fact that the plaintiff had been granted leave to go home. It did not admit the fact that he had been found hanging on the second occasion, and had suffered permanent injuries.

18. The Health District however did admit that its records contained statements of many of the facts which were relied upon by the plaintiff. Ultimately, these facts were not seriously in dispute.

19. The Health District denied that it was negligent and denied any entitlement of the plaintiff to damages.

20. In answer to the whole of the claim, the Health District relied upon provisions of s 5O of the Civil Liability Act 2002, pleading that it had acted in a manner that at the time services were provided, was widely accepted in Australia by peer professional practices.

21. The Health District further relied upon the provisions of s 5I of the Civil Liability Act, saying that it was not liable to the plaintiff in negligence for harm suffered by him because an inherent risk of harm had materialised.

22. The Health District also relied upon the provisions of s 43A of the Civil Liability Act, saying that the decision to grant the plaintiff leave was an exercise, or a failure to exercise, a special statutory power pursuant to the Mental Health Act, and that accordingly it was not liable because its conduct was not so unreasonable that no reasonable authority with similar powers could have made the decision to grant the plaintiff leave.

23. Finally, the Health District pleaded that the plaintiff was, pursuant to s 5R of the Civil Liability Act, contributorily negligent because he deliberately set out to harm himself by hanging.

24. The final submissions made it clear that the Health District denied that there was any relevant breach of duty that caused the plaintiff harm. It did not dispute that it owed the plaintiff a duty to take reasonable care. It continued to rely upon each of the provisions of the Civil Liability Act, to which I have referred above, and it continued to rely upon the proposition that the plaintiff was contributorily negligent.

The Plaintiff

25. The plaintiff was born in January 1983. He had an unremarkable upbringing. He was educated to Year 10. Upon leaving school he became an apprentice spray painter.

26. By May 2005, he was working in that trade at Sloanebuilt Trailers. He was at that stage living at his parents’ home.

27. As I have earlier noted, on 30 June 2006, the plaintiff was struck by the motor vehicle which Mr Pennington was driving. At the time, the plaintiff was a pedestrian walking, he says, on the side of Old Kent Road at or near the intersection of Darling Avenue. The precise circumstances in which the accident occurred were in dispute between the plaintiff and Mr Pennington. There is no need to resolve that dispute. However, it is clear that the plaintiff sustained injuries to his left knee and a closed head injury with a loss of consciousness when he was struck by the motor vehicle.

28. The plaintiff was in hospital for about two weeks after the accident and, after discharge, remained off work for two to three months. His knee was painful and required a good deal of rehabilitation. The plaintiff returned to work, initially on restricted duties, but ultimately on full duties. The pain continued with varying intensity whilst he was at work. He was able to continue with his spray painting work with Sloanebuilt Trailers. He was not able to do very much welding or other heavy, manual engineering work.

29. I have noted above that the plaintiff had an unremarkable upbringing. This reflected the fact that he mostly lived at home with his parents, attended school, undertook an apprenticeship and obtained employment.

30. The plaintiff has a minor criminal record. He first encountered the police at the age of about 18, when he was charged and convicted of breaking, entering and stealing. He was put on a 2 year good behaviour bond. Also in that year he was arrested for drink-driving, charged with a low range PCA and was dealt with by a conviction, monetary fine and a period of disqualification from driving. Some years later, in March 2004, he was again arrested for drink-driving. He was again dealt with by a conviction, a monetary fine and disqualification from driving for 12 months.

31. When he was about 19 years old, the plaintiff was the victim of a rather bizarre kidnapping attempt, which happened at about 6 o’clock one morning whilst he was on his way to work. He had stopped to withdraw money at an ATM when he was approached by a number of men wearing balaclavas who kidnapped him and held him against his will in a motor car for a number of hours as they drove around. After a few hours he was dumped. According to the plaintiff’s evidence, which I accept on this question, he was shaken up by the incident. He felt “pretty stressed out about it” and he found that he became quite fearful when he was in the house by himself. He tended to lock up the house if he was there alone. He did not seek any medical attention at the time as a result of this incident, and he found that after a few months, his stress and fear associated with that incident subsided. It does not appear to have affected him much after the year in which it occurred.

32. The plaintiff’s evidence, again which I generally accept on this question, was that one of the ways in which he used to cope with the pain from his injuries suffered in the car accident, was by drinking alcohol. He found that his consumption of alcohol increased over time, and it continued although not always in association with the pain in his knee.

33. In September 2006, he started a friendship with Ms Stacey Scott. They became more closely associated as the year wore on. The relationship cannot be categorised as a stable one.

34. It seems that the plaintiff was conscious that he was drinking to excess in the course of 2006, and for the period following, because he concealed it from his parents with whom he was living. He tended to drink either before arriving home, or else at Ms Scott’s house. If he did drink at home he would do so in a way which was not obvious to his parents.

35. In the course of 2007, the plaintiff started to feel depressed. He associated that with his physical pain, his excessive drinking of alcohol and a frequent irritability leading to a loss of temper. He noticed that he was prone to arguing with his parents and Ms Scott, often over minor issues, regularly at least once per week. Towards the end of 2007, his relationship with Ms Scott deteriorated. It was apparent to him that Ms Scott was becoming addicted to gambling, in particular playing poker machines.

36. Ms Scott turned to the plaintiff to assist her with paying her regular bills because she was unable to do so, having gambled her money away. The plaintiff’s best recollection is that by about the end of 2007, and into 2008, he was regularly lending Ms Scott up to $1,000 a month.

37. The plaintiff himself, at that time, had some other financial obligations. He was working full-time and was able to manage his financial obligations quite well. However, the added burden of assisting Ms Scott with her financial obligations caused him a great deal of stress.

The Plaintiff attends Dr Vo

38. On 15 April 2008, the plaintiff attended upon his general practitioner, Dr Vo. Dr Vo’s notes record that the plaintiff complained to him of depression, crying and insomnia. He had apparently at that time recently broken up with Ms Scott. Dr Vo noted that other stressors were pain related to his motor vehicle accident, in particular his leg, court proceedings, and the consumption of alcohol due to pain. He told Dr Vo that he was drinking about six standard alcoholic drinks every day, and that his drinking had generally been heavier since the motor vehicle accident. As a matter of family history, he reported to Dr Vo that both his brother and his father were heavy drinkers, and that his father had a history of depression.

39. Dr Vo referred the plaintiff to a psychologist, Mr Rowland. The plaintiff attended at a consultation on one occasion with Mr Rowland, about two weeks after his appointment with Dr Vo. He presented as anxious and reactive. He presented as suffering chronic pain as a result of the motor vehicle accident, and drinking heavily to cope with the pain. The plaintiff did not return to see Mr Rowland.

40. During Dr Vo’s consultation, Dr Vo did not administer a K10 test, which is one readily available method of assessing the degree of a patient’s psychological distress. It is an assessment commonly used by general practitioners. The maximum possible score is 50. The minimum score is 10.

41. On 29 April 2008, at a further consultation with the plaintiff, Dr Vo completed a mental health care plan for the plaintiff which diagnosed depression and excessive alcohol abuse. The relevant lifestyle and personal history issues noted by Dr Vo were the plaintiff’s girlfriend, stress at work, living at home with his parents and consumption of alcohol. Dr Vo noted that the plaintiff’s mental health assessment included depression, flat or low motivation and energy, and anxiety. Dr Vo determined the goals which were necessary were to treat the plaintiff’s depression, eliminate his suicide risk and encourage him to abstain from alcohol.

42. During this consultation, Dr Vo administered the K10 test. The plaintiff’s assessed score was 32.

43. The plaintiff returned to see Dr Vo on 30 October 2008. He presented to Dr Vo as upset, anxious and teary. His condition was related by him to breaking up with his girlfriend, Ms Scott, on the previous evening. He reported to Dr Vo that he was not sleeping and was angry and teary. He reported that he was not suicidal. Unsurprisingly, Dr Vo reached a provisional diagnosis of depression and advised the plaintiff to again see Mr Rowland. On this occasion, Dr Vo prescribed the plaintiff Diazepam (or Valium). During this consultation, Dr Vo administered the K10 test. The plaintiff’s score was 37, which suggested a deterioration in his psychological state since April 2008. One answer on this test recorded that the plaintiff felt “hopeless” all of the time. Another was that he felt depressed most of the time.

38. What follows in this account of the plaintiff from this point is a series of attempts by the plaintiff to take his own life. Distressing though it may be, it is necessary to recount some of these details in this judgment to understand the claim which the plaintiff makes against the Health District.

39. The plaintiff himself gives some account of his feelings with respect to these events. It is not a complete account. Many things he does not remember. Unsurprisingly, with respect to some of these attempts to take his own life, he is unable to explain them rationally, and makes no attempt so to do. He is not to be criticised for this, and the Health District did not do so.

40. The evidence about his various suicide attempts comes largely from contemporaneous documents recorded in hospital notes at the time, and from the evidence of his parents.

Overdose

47. On the evening of Friday 31 October 2008, after drinking with his friends, the plaintiff took a large number of the Diazepam tablets prescribed by Dr Vo. An ambulance was summoned and the plaintiff was taken to the Emergency Department at Campbelltown Hospital. He arrived shortly before midnight. He was discharged home on the following day, Saturday 1 November 2008.

48. Although neither the plaintiff nor his parents regarded this as a suicide attempt, I am satisfied that it was, although it is unlikely that it would ever have succeeded. The psychiatrists who later treated the plaintiff reported this as an attempt by him to take his own life. They were correct to do so.

49. It is necessary to recount some of the features, largely recorded in the notes of Campbelltown Hospital with respect to this first overnight admission.

50. At the Campbelltown Hospital, when the plaintiff arrived, he informed the triage nurse that he had recently broken up with his girlfriend. He said he did not want to kill himself but wanted to “go to sleep and wake up happy”.

51. He was assessed by Dr Divakaran, a psychiatric registrar. The doctor took this history:

“Patient is reportedly having issues with his ex-girlfriend. They have been having a volatile relationship; and recently her parents separated, which led to further deterioration of his relationship. They separated when she left their home 4 days ago, and he was feeling low since then. The patient had been through a difficult time 2 years ago when he met with a serious accident, where he was dragged by a car for about 100m. This led to a serious leg injury, and he did not go to work for 4 months. Patient then gradually started working, but the insurance companies started accusing him of deliberately involving himself in the accident, and interfering with the legal issues.

Patient reports having normal sleep, reduced appetite (4 days), low mood, and when he got sep (sic) he felt that he was stressed out, and he took 30 tablets of 5mg of Diazepam to just ‘knock himself out’. He denies any thought of self-harm/intention to kill himself. He feels well supported by his family.”

52. Dr Divakaran diagnosed provisionally an adjustment disorder with brief depressive reaction. He identified dysthymia, and psycho-social stressors.

53. He listed on the “problem list” the following:

“1. relationship issues;

2. low mood.”

54. Dr Divakaran commenced the plaintiff on antidepressant medication and discharged him with follow up to be provided by the Community Mental Health Emergency Team (“CMH”).

55. Dr Divakaran also recorded a discussion with the plaintiff’s mother, Mrs Smith. His note is to the following effect:

“Patient has been feeling low since accident 2 years ago. Patient has been in a volatile relationship and this is the reason for the stressors piling up. She denies patient would try to kill himself, and he took the medications to help him sleep. She reports she is happy to take him home, and supervise him, and following up with CMH.”

56. I also note that Dr Divakaran carried out a risk assessment, about the result of which he had a level of certainty. He found that the plaintiff was at a medium risk level for overall changeability risk, a medium risk level for suicide risk and otherwise a low risk level for other harm to himself or harm to others.

57. A medium level of risk for suicide meant that the patient was assessed as having moderate depression with some sadness, some feelings of hopelessness, moderate anger and hostility. Dr Divakaran assessed that the plaintiff was well supported with good relationships with people who were willing to assist.

58. On the day after his discharge from Campbelltown Hospital for the overdose, the plaintiff was followed up in his home by staff from the CMH team. After the visit, the staff spoke with Mrs Smith. The discussion centred upon whether the plaintiff had intended to commit suicide when taking the overdose. Mrs Smith explained that it was her view, based upon what Mr Smith had told her, and what she had been told by the staff at Campbelltown Hospital, that Mr Smith did not intend to commit suicide.

59. No specific advice was given to Mrs Smith as to what she should do to take care of her son. The staff from the CMH team did not visit the plaintiff at home again.

The First Hanging Incident

60. On Tuesday 4 November 2008, Mr and Mrs Smith went to work, as did the plaintiff. By that time, the plaintiff had made some arrangements to sort out his financial affairs with the assistance of his father and the Salvation Army.

61. When Mrs Smith arrived home after work, the plaintiff was at home with Ms Scott. It appeared to Mrs Smith that they were happy. They were making plans for the future. When Mrs Smith retired that evening she thought the plaintiff seemed happy.

62. Between 10pm and 11pm that evening Mrs Smith was telephoned by Ms Scott. Ms Scott made an enquiry about the plaintiff and informed his mother that she had been talking to him on the phone and she thought that she had heard the plaintiff’s phone drop.

63. Mrs Smith went in search of the plaintiff. She looked in the house. She went to the garage. Initially she did not see the plaintiff there, but within a short time, she found him hanging in the garage by his neck. She sought help. The plaintiff was unresponsive so CPR was commenced. He was taken by ambulance to Liverpool Hospital where he was examined in the Emergency Department, and transferred promptly to the Intensive Care Unit. He was sedated there for a number of days. He was extubated on the morning of Thursday 6 November 2008, and then referred for psychiatric review.

64. As part of the psychiatric review being undertaken, the plaintiff was spoken to by a social worker as were his parents. The social worker relevantly recorded in the notes, the following:

“Daniel lives at home with his parents who say they have a good relationship with him. He has been working and is popular with workmates. Father feels Daniel has had a number of stressful events over the last few years, the latest being relationship issues with his girlfriend which father feels could have precipitated these attempts. … “

65. The plaintiff was seen in a mental health consultation on Friday 7 November 2008. The psychiatric registrar took a social history, including that he was under some financial pressure. The psychiatrist telephoned the Campbelltown Hospital to obtain the medical records of the admission a few days earlier, and also spoke with the CMH Team at that Hospital. The psychiatrist noted a history of the overdose event a few days earlier. Having obtained that background, the psychiatrist undertook a mental state examination. He found that there was no current suicidal ideation. He recorded an impression that the plaintiff was suffering from an adjustment disorder with depressed mood. He noted that he should continue to be nursed individually.

66. On the afternoon of 7 November 2008, the plaintiff was transferred from the Intensive Care Unit to the Mental Health Unit at Liverpool Hospital which cared for patients who were acutely mentally unwell. Upon arrival at the Mental Health Unit, the plaintiff’s suicide risk was assessed as high, although he continued to deny any suicidal ideation.

67. He was closely observed in the Mental Health Unit. The nursing staff thought that he showed evidence of cognitive impairment. He was visited by his parents, with whom he appeared to be interacting well.

68. On 10 November 2008, he was moved from the Liverpool Hospital Mental Health Unit to the Campbelltown Hospital, where he was admitted to the Sub‑Acute Mental Health Unit.

69. Whilst in Liverpool Hospital, on 7 November 2008, the plaintiff was certified by a psychiatrist, Dr Hartshorn, as a mentally disordered person within the meaning of the Mental Health Act 2007. Dr Hartshorn concluded that he required a further period of hospitalisation. He was involuntarily detained in the Mental Health Unit at the Liverpool Hospital.

70. The transfer on Monday 10 November 2008, from Liverpool to the Campbelltown SAMHU occurred whilst he was still an involuntary patient under the Mental Health Act. In circumstances which will be discussed at greater length, he was an involuntary patient for the whole of the period whilst he was at the Campbelltown SAMHU.

71. On each occasion that he was detained as an involuntary patient, it was on the basis that he was a mentally disordered person, not that he was a mentally ill person.

Campbelltown Hospital

72. The plaintiff arrived at Campbelltown Hospital where he was admitted to the SAMHU late in the afternoon of 10 November 2008. Upon arrival, it was noted that he was regarded as being mentally disordered, but no psychotic symptoms were observed. The history of “two significant suicidal attempts” including hanging and overdose due to “1. Social stressor/relationship breakup; 2. Chronic pain from MVA 24/12” was noted. It was noted that the plaintiff expressed his desire to return to work to the admitting nurse.

73. The following morning, Tuesday 11 November 2008, when a risk assessment was undertaken by the nursing staff at SAMHU, the plaintiff’s suicide risk was assessed as low. He was seen by Dr Yenson, a psychiatrist, and Dr Purayil, the Psychiatric Registrar.

74. On psychiatric examination, there was no report of pervasive low mood, no fluctuations in energy level, no sleep disturbances, no decrease in appetite and no suicidal ideation. The plaintiff informed Dr Yenson and Dr Purayil that he wanted to go back to work as soon as possible, and that he was having financial difficulties. It was determined that he would be reviewed the following day, additional information would be sought, and that he could “… go out with parents for up to 1 hour/day”.

75. He was seen shortly after this psychiatric consultation by a social worker. The social worker’s note was in the following terms:

“Daniel has many debts (over $70,000 different car loans etc). States he can make the repayments when he is working, works as head spray painter. Stated has no leave left as his employer continued to pay him when he was off after the accident 2 years ago. Daniel very keen to be discharged to get back to work. But willing to start trying to delay repayments in hope he will be OK. Agreed to look at his finances on Thursday if he is still here. Daniel has court this week, unsure exactly what day. Has a solicitor and has not been told he needs to attend Court.”

76. On that Tuesday, 11 November 2008, a nurse’s note records that the risk assessment performed with respect to the plaintiff, demonstrated a low risk of suicide and a low risk of “non-negotiated leave”. That is to say, leaving the SAMHU contrary to his involuntary detention, or medical advice.

77. The nurse went on to record this:

“No immediate risks identified. Frustrated with not being discharged. Still has unclear recall of events over the last 2 weeks. Discussed leave with Dr Purayil – allowed 1 hour escorted with parents. Went on leave with family. On return – limited socialisation but reactive when engaged. Parents will attend the unit at approximately 2pm for review with Purayil (Wednesday).”

78. On the next day, Wednesday 12 November 2008, there is a curious entry which is not really explained by the evidence. Dr Purayil made a note on 12 November 2008 at 1030 hours, that the plaintiff could go out with his brother’s fiancée and get his old medical records. The curiosity of this note is that his brother did not then have a fiancée, and the need to get “old medical records” which could only have been referring to the injuries sustained by the plaintiff in the motor vehicle accident, is unexplained by reference to the condition for which he was admitted to the SAMHU. However, nothing of consequence turns on this event.

79. Also on 12 November 2008, Dr Purayil made a note recording that the plaintiff was to remain “MD”. This abbreviation refers to mentally disordered. The note also refers to the fact that the plaintiff’s involuntary detention was to continue.

80. On Wednesday 12 November 2008, after the lengthy meeting between Dr Purayil and Mr and Mrs Smith, the plaintiff went on leave during the early afternoon, and returned shortly before 8pm. He reported to the nursing staff that he had enjoyed his leave. The plaintiff denied any suicidal ideation, and told them that he regretted his suicide attempt, even though he had no memory of the event. The note goes on to record:

“States that he won’t do it again. Otherwise pleasant upon approach and compliant with the ward routine.”

81. On the morning of Thursday 13 November 2008, Dr Yenson, the consultant psychiatrist, and Dr Purayil, the psychiatric registrar, had a consultation with the plaintiff. It will be necessary to discuss the two meetings of 12 November and 13 November 2008, in some further detail by reference to the recollections of the participants of these meetings, and by reference to their explanation for what occurred.

82. However, for the moment, it is convenient to simply record the sequence of events of what was written in the hospital notes which, I am satisfied, are reasonably contemporary notes of what occurred. There are three separate entries.

83. The first relates to the consultation of the specialist psychiatrist, Dr Yenson, and the psychiatric registrar, Dr Purayil with the plaintiff on 13 November 2008. The note records this:

“Daniel reported that he is doing fine. Wants to get out as early as possible. Reported that he has undergone counselling before but did not like it. Client did not want any help with drug and alcohol because he does not feel that he needs it. No pervasive depression symptoms identified. No suicidal ideas.

Plan: Client can go out on leave and come back on Monday to be reviewed and possible discharge.”

84. It is clear that there was a meeting on the day before, namely, Wednesday 12 November 2008, between the plaintiff’s parents and Dr Purayil.

85. However, Dr Purayil did not write up his note of that meeting until sometime the following day after the consultation between the plaintiff and Dr Yenson. It is not to be regarded as in any real sense a contemporaneous note, but is rather written at a later time. That note is in the following terms:

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

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

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

87. These notes chart the bare outline of what occurred. It is necessary to turn to the evidence of the participants as to their fuller recollection of what was going on.

88. However, it is not in dispute, and the evidence clearly establishes, that as a result of this final attempt at suicide on Sunday 16 November 2008, the plaintiff sustained a hypoxic brain injury, now suffers from Lance-Adams Syndrome, and is wheelchair bound. He has extensive care needs, and has not returned to work.

Mental Health Act

89. I have previously noted that the plaintiff was mentally disordered, and thus detained as an involuntary patient under the provisions of the Mental Health Act when he was transferred from the Liverpool Hospital Mental Health Unit to the Campbelltown SAMHU on 10 November 2008.

90. It is convenient to note here some of the provisions of the Mental Health Act which are relevant.

91. Chapter 3 of the Mental Health Act deals with the involuntary admission to and treatment in, mental health facilities. It is clear in this case, that at no time was the plaintiff regarded as being mentally ill as that term is defined in the Mental Health Act. He was however, regarded as being mentally disordered.

92. Section 15 of the Mental Health Act defines a mentally disordered person in this way:

“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 of 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.”

93. In the circumstances of these proceedings, the plaintiff’s categorisation as a mentally disordered person was always on the basis that his detention was necessary to protect him from serious physical harm to himself. It was not ever thought that he was at risk of causing serious physical harm to others.

94. An understanding of involuntary detention under the Mental Health Act commences with s 12, which provides that a person is not to be involuntarily admitted to or detained in, or continue to be detained in a mental health facility unless they are mentally disordered, and:

“No other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.”

95. In the circumstances of this case, the detention of the plaintiff in a mental health facility could only be lawful if a certificate of a medical practitioner (or accredited person) was issued which expressed the opinion that, having personally examined the individual concerned, the medical practitioner (or accredited person) is of the opinion that the person is a mentally disordered person and that there is no other appropriate means reasonably available for dealing with the person. It is necessary that the medical practitioner also forms the opinion that involuntary admission to, and detention in, a mental health facility is necessary. Such a certificate is issued under s 19 of the Mental Health Act. That certificate, in the case of a mentally disordered person, is only valid to detain a person in a mental health facility for 24 hours after it is given.

95. After that initial detention, then the procedure set out by s 27 of the Mental Health Act must be followed with respect to ongoing detention in a mental health facility. Putting it concisely, the patient must be examined by two authorised medical officers, one of whom must be a psychiatrist. In the event of disagreement between the authorised medical officers, a third examiner is appointed to deal with that disagreement.

96. Once the appropriate certification has been made, and the patient is found to be a mentally disordered person, then they may be detained in a mental health facility on that basis: s 27(e) Mental Health Act.

97. Where a person is involuntarily detained on the basis of being mentally disordered, then the central provision which operates is that contained in s 31 of the Mental Health Act. It is in the following form:

“31 Limited detention of mentally disordered persons

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

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

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

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

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

99. Although a mentally ill person who is detained must be put before the Mental Health Review Tribunal, that Tribunal has no role to play in the detention of a mentally disordered person.

100. As can be seen from s 31, of the Mental Health Act, a mentally disordered person cannot be detained involuntarily for a period in excess of a continuous period of three days, and in total for a period longer than nine days in any one calendar month. That three day period does not include weekends and public holidays.

101. By the time the plaintiff was admitted to Campbelltown SAMHU, he had nominated his mother as his primary carer in accordance with s 72 of the Mental Health Act.

102. On 11 November 2008, Dr Purayil completed a medical report required by the Mental Health Act. He certified that he had personally examined the plaintiff, and that it was his opinion that the plaintiff was a mentally disordered person. He recorded the basis of that opinion as being “2 recent suicide attempts”, and he concluded that the “… client need to stay in the hospital for further observation”.

103. There does not seem to have been any other formal medical report compiled with respect to an examination undertaken for the purposes of the Mental Health Act. However, it seems clear that everybody at Campbelltown Hospital, and certainly the plaintiff and his parents, all operated on the assumption at the relevant time, and whilst on leave at home, that the plaintiff was an involuntary patient upon the basis that his detention was lawful because he was mentally disordered.

104. I note that, for reasons which are entirely unexplained, it was Dr Purayil’s habit to refer to his patients at the SAMHU as “clients”. I record that this mode of labelling of a patient, which in my view is thoroughly undesirable, is not suggested by counsel for the Health District as in any way lessening the common law obligations which arise from a hospital and its staff to a patient, or between a treating doctor and their patient.

105. The plaintiff arrived at Campbelltown Hospital on 10 November 2008. At that time he had been certified on 7 November 2008, to be mentally disordered by Dr Hartshorn at Liverpool Hospital. His last day of that 3 day certification was 10 November 2008. However, the fact was that his detention upon arrival at the SAMHU at Campbelltown Hospital was involuntary on the basis that he was certified as being mentally disordered in accordance with the Mental Health Act.

106. On 11 November 2008, Dr Purayil again determined that the plaintiff was mentally disordered. In so doing, Dr Purayil was fulfilling the requirements of the Mental Health Act that a mentally disordered person needed to be examined once in each 24 hour period. I also note that Dr Purayil continued the plaintiff’s involuntary detention at that point in time.

107. Again, on the morning of 12 November 2008, Dr Yenson and Dr Purayil both considered that the plaintiff was still mentally disordered. They continued his involuntary detention.

108. Upon the beneficial interpretation of the Mental Health Act described below, they were entitled so to do. However, the constraint in s 31 of the Mental Health Act, of detention in a mental health facility for no more than three days, meant that they were not entitled to continue to involuntarily detain the plaintiff for any period longer than midnight on Thursday 13 November 2008. That is because, at that time, the 3 day maximum period for continuous detention in a mental health facility would, at the latest, have expired.

109. Such a period would be the last period for involuntary detention on the basis that a proper interpretation of s 31 of the Mental Health Act meant that one could not aggregate periods of involuntary detention between different mental health facilities for the 3 day period. If aggregation of time spent in involuntary detention is the proper interpretation of s 31 of the Mental Health Act, then the plaintiff’s continued detention was not lawful. However, the plaintiff did not submit that the Court would approach the circumstances here on that basis.

110. So adopting the approach seemingly accepted by the parties, and applying the more beneficial interpretation in favour of the Health District, the continuous 3 day period of involuntary detention of the plaintiff as a mentally disordered person commenced on 10 November 2008, and finished at midnight on the third day after that commencement, i.e. 13 November 2008, which was the day upon which the plaintiff was allowed to go on leave.

111. However, it was accepted that Dr Yenson, when he granted leave in the circumstances to which I will come, on the morning of Thursday 13 November 2008, was operating on the basis that the plaintiff’s involuntary detention continued until at least Monday 16 November 2008.

112. It is convenient to note here that in granting leave to the plaintiff whom he regarded as an involuntary patient, Dr Yenson’s authority so to do was obtained from s 47 of the Mental Health Act.

113. Section 47 of the Mental Health Act is in this form:

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

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

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

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

114. The significance of the exercise of this power to allow the plaintiff to go on leave will be considered later when considering the issue of breach of duty.

The Second Hanging Incident

115. On 13 November 2008, shortly before lunchtime, the plaintiff was granted leave from the Campbelltown SAMHU. This surprised his parents. They found out that he had in fact been granted leave when the plaintiff contacted his father, and asked him to collect him.

116. His father, Mr Smith, collected the plaintiff from hospital, and took him to a pre-arranged appointment with Dr Vo. Dr Vo saw him at about 12.30pm on that day.

117. The notes kept by Dr Vo are accepted by the parties as accurate. His notes recorded that he obtained a history that the plaintiff had attempted to commit suicide about a week before. He recorded that the plaintiff had attempted to hang himself in the garage, was unconscious when found by his father, and needed to be resuscitated. Dr Vo noted that the plaintiff had been admitted to Liverpool Hospital. He noted that he had an appointment to see a psychiatrist for a follow-up. It is not clear what particular appointment that referred to. Perhaps it was an appointment with Dr Divakaran, as the Health District contends, but the evidence does not enable me to make such a finding. Dr Vo noted as a matter of history that the plaintiff was not an anti-depressant. He noted that the plaintiff said that he felt OK “… over the whole thing now …”. Dr Vo recorded a past history of depression and a visit to the psychologist, Mr Rowland, previously.

118. Dr Vo conducted a physical examination and detected nothing abnormal. He administered a K10 test. The score which was recorded on that K10 test was 15. In contradistinction to the answers which he had given on 30 October 2008, the plaintiff recorded that he did not feel hopeless any of the time and that he did not feel depressed at any time. Dr Vo noted the score and described it as “OK”. He gave the plaintiff some advice and supportive counselling. He advised the plaintiff to keep his appointment with his psychiatrist and noted that he wished to see the plaintiff again in one week’s time.

119. An observation of the plaintiff’s psychological state in April, when his K10 score was noted as 32, his score in October 2008 of 37, shortly prior to his first suicide attempt, when compared with the score of 15 obtained on 13 November 2008, suggests, albeit recognising the limitations of the K10 test, that the plaintiff felt far less psychological distress at the time of the last assessment than he did at either of the previous two assessments, and significantly less psychological distress than two weeks earlier prior to his first suicide attempt.

120. It is also interesting to note that Dr Vo did not suggest that the plaintiff’s psychological state was such that he ought to return immediately to hospital as an in-patient. He did not see the need to refer him immediately that day to be assessed by a psychiatrist or psychologist. Rather, Dr Vo’s advice was by way of support and counselling, and in particular, advice to keep his appointment with the psychiatrist and to return to see Dr Vo in one week.

121. Whilst I accept that an assessment by a general practitioner may not be as detailed or perceptive as that by a specialist psychiatrist, such as Dr Yenson, the picture presented by the plaintiff to Dr Vo provides external validation of the assessment by Dr Yenson that the plaintiff was, from a psychiatric and psychological perspective, well enough to be allowed to proceed home on leave with his parents.

122. On the evening of 13 November 2008, the plaintiff was not on any medication, and seemed to his parents to settle at in at home, although he was quieter than usual.

123. The plaintiff was visited at his home by his brother, Robert and Robert’s daughter, who was eight years old at the time. They seemed to interact reasonably well to Mrs Smith.

124. The following day, Mr and Mrs Smith, and the plaintiff and his niece (Robert’s daughter) went out to a local shopping centre and spent some time there. Mrs Smith’s observation of the plaintiff at that time was that he seemed to be looking better and appeared to be happier and more relaxed. The plaintiff told her that he was looking forward to getting back to work.

125. During the course of 14 November 2008, Mr Smith took the plaintiff to see his employer, Mr Marano, to discuss his return to work.

126. In circumstances which will be more fully discussed in due course, Mrs Smith decided that during the plaintiff’s period of leave she would sleep in the lounge room of their house.

127. Up until Sunday 16 November 2008, the plaintiff’s period of leave from the Campbelltown SAMHU was, to all appearances, entirely uneventful. On that day, Mrs Smith was asked by friends of the plaintiff if he could be allowed to accompany them on a 4‑wheel driving expedition, followed by a drink at a local tavern. She readily agreed. She assumed that they would stop at the local tavern on the way back from their expedition, and so she asked her son’s friends to guarantee that if they did stop there, the plaintiff would only have a couple of beers. She was informed by her son’s friends that they would not be staying there very long. She inferred from that, unsurprisingly, that there would not be a great deal to drink.

128. The plaintiff arrived home quite early on that Sunday evening, before the evening meal, and whilst it was still daylight. He ate his evening meal at home with his parents, and he generally seemed to be in a reasonable mood. He seemed to have enjoyed his outing with his friends.

129. Mrs Smith learnt that there had been an exchange of text messages between the plaintiff and a friend of his, Mr Campion, over some car tyres that had belonged to Ms Scott. She apparently first learned of this when her son’s companions dropped him home. They told her what had happened and told her that everything had been sorted out.

130. She was of the frame of mind at that time that there was no particular reason to be concerned about that exchange of text messages. In part, this was because her son was not behaving as he ordinarily did when he had a dispute with Ms Scott. No doubt, as well, Mrs Smith knew that there had been no direct text messaging with Ms Scott, nor any actual discussion with her.

131. After the evening meal, the plaintiff retired to his bedroom. So far as Mrs Smith was aware, he had only had a few beers at the tavern. To her observation the plaintiff was not drunk, and there did not appear to be any ongoing text messaging or arguing with Ms Scott.

132. The evidence does not reveal with any precision the time at which the plaintiff went up to his room, nor does it reveal with any precision the time at which Mrs Smith retired for the evening to sleep in the lounge room.

133. Mrs Smith made up a bed on a lounge in the downstairs part of her house. It was near a set of sliding doors through which the plaintiff had previously gained access to the garage when he made his first attempt to hang himself. Mrs Smith chose the lounge because it was the most central part of the house and, if the plaintiff wished to leave the house, he had to walk past where she would be sleeping. She said:

“I just felt that it was a place that was central, that if … he went out, I would hear him, because I would hear the sliding door open, because normally I’m a light sleeper and the slightest noise wakes me.”

134. In effect, Mrs Smith placed herself “on guard” in an attempt to prevent or deter the plaintiff from taking any action to harm himself, or else leaving the house.

135. Mrs Smith recounts that at about 10.45pm on the evening of 16 November 2008, her husband, having noticed a light on in the garage, went out to the garage and saw the plaintiff hanging by a yellow strap tied around his neck which was connected to a metal truss supporting the roof of the garage. Mr Smith called out for help. Mrs Smith and a next door neighbour heard him calling. Mr Smith and his neighbour together held up the plaintiff’s body and removed the yellow strap from around his neck, and then performed CPR until the ambulance arrived. The plaintiff was taken to the Intensive Care Unit at Liverpool Hospital.

136. Neither Mr Smith, nor Mrs Smith, were aware that the plaintiff had left his bedroom, and walked outside the house to the garage at any time before Mr Smith’s observation at 10.15pm.

137. The plaintiff’s mobile phone was later examined by Police. It was then discovered for the first time that about 30 minutes or so before his father found him, the plaintiff had sent a text message to Ms Scott. It said:

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

138. There is no evidence that there had been any previous text messaging directly between Ms Scott and the plaintiff on that day. There had only been a report of an exchange of text messages with Mr Campion relating to tyres purchased by Ms Scott. But as I have indicated earlier, that dispute seemed to have been resolved by the time the plaintiff arrived home.

139. The plaintiff’s mother found a suicide note written by the plaintiff on the workshop bench in the garage. The note, which was written on an envelope, was later reported to police as saying:

“I’m not strong enough. I’m not as strong as you. I love you all. I’m sorry. I love you mum and dad and …”

140. The actual note was not recovered by Police. It had apparently been removed from the scene by ambulance officers and given to staff at Liverpool Hospital. The contents above were relayed to Police by an unidentified staff member at that Hospital.

141. It soon became apparent that as a result of this second attempt to hang himself, the plaintiff sustained significant and permanent injuries.

Account of Events of Mrs Debra Smith

142. Of the plaintiff’s parents, it was Mrs Smith, his mother, who had a better recall and gave more extensive evidence about her knowledge of the plaintiff in the period leading up to the events which have been described, and of the interactions with staff at the Campbelltown Hospital.

143. I generally accept Mrs Smith’s evidence. I thought as a witness she was trying to be as accurate as she could. Undoubtedly, the passage of time between when the events occurred and when she provided a written statement and gave evidence, have contributed to some inaccuracies in her recall. No doubt, as well, the traumatic nature of the events, and the stress which she suffers from related to these events, has also had some effect upon the accuracy of her recall. Neither of these things suggest she is not a witness who is not worthy of belief. On the contrary, I have generally accepted her evidence. However, where there is better evidence, such as contemporaneous notes, I have generally taken those notes to be more reliable. Notes, of course, are not necessarily a complete record of everything which was said.

144. In late October 2008, Mrs Smith relates that the plaintiff and Ms Scott arrived home one evening and announced to her and her husband that they were engaged. She expressed concern about that, given the extent of the financial debts of Ms Scott.

145. The following Tuesday, that is a few days later, she overheard a telephone conversation between the plaintiff and Ms Scott. At the end of the telephone call the plaintiff reported to his mother that the engagement between him and Ms Scott had been broken off. The plaintiff appeared devastated and asked his parents why those sorts of things always happened to him.

146. On the evening of Wednesday 29 October 2008, Mrs Smith found the plaintiff in his bedroom crying, and upset about the fact that he had broken up with Ms Scott. She suggested to him that he consult with Dr Vo. As I have outlined above, it was as a result of that consultation that the plaintiff was prescribed Diazepam, and had that prescription filled. Mrs Smith did not know of the prescription or the existence of the medication. Shortly put, both Mrs Smith and her husband were unaware of the plaintiff’s diagnosis of depression prior to his overdose of medication.

142. Whilst the plaintiff was in Campbelltown Hospital after his overdose, Mrs Smith attended at a consultation between the medical staff and the plaintiff. She recalls that the plaintiff told the doctor that he had recently broken up with his ex-girlfriend and was distressed about the breakup, and in that context, had taken the tablets. He denied to that the doctor that he was attempting to commit suicide.

143. During the course of that consultation Mrs Smith asked the doctor whether her son’s mobile telephone should be kept from him, because she was, understandably, fearful that the plaintiff might attempt to speak with his former girlfriend, and be upset as a consequence. The doctor informed Mrs Smith that he could not restrict the plaintiff from having a mobile telephone. Mrs Smith accepted this statement, and did not question it. This exchange makes it clear that Mrs Smith perceived a connection between the plaintiff’s relationship with Ms Scott, and the plaintiff’s risk of harming himself.

144. Just prior to the first attempt by the plaintiff to commit suicide by hanging, his mother noted that he seemed happier. The fact that he had attended to organising his finances and was preparing to go back to work seemed to reinforce this. It was against that background that she went to bed and was then summoned, as I have related above, to find that the plaintiff had attempted to hang himself.

145. Whilst the plaintiff was in Liverpool Hospital after this first hanging attempt, Mrs Smith visited him every day. Whilst in the Intensive Care Unit at Liverpool Hospital, the plaintiff made repeated requests to his family, and to the hospital staff, for assistance in telephoning Ms Scott. This assistance was generally refused. Throughout the plaintiff’s stay at Liverpool Hospital, his mother notes that he was not allowed to access his telephone, although he continued to want to do so.

146. From time to time, whilst the plaintiff was an in-patient at the Mental Health Unit at Liverpool Hospital, he was allowed very short periods of leave, providing he stayed with his parents. The furthest they went from the hospital was to walk to the park across the road from the hospital and spend some time there with the plaintiff.

147. After the plaintiff was transferred to the SAMHU at Campbelltown Hospital, his mother visited him every day until he was released on leave. It was clear by the time the plaintiff was admitted to the SAMHU there, that he was keen to be discharged. He told his mother so. He told the nursing staff that he wanted to return to work, and that his return would assist with his financial difficulties.

148. Prior to Mrs Smith’s meeting with Dr Purayil on Wednesday 12 November 2008, the plaintiff had leave for about one to two hours, during which time he went home with his parents. He was given a time by which he had to return. Although Mrs Smith recalls that as being 6pm, I am satisfied because of the contemporaneous note that it was 8pm. Mrs Smith was instructed that if the plaintiff was intoxicated upon his return he would not be readmitted to the SAMHU. She implemented this requirement by not allowing the plaintiff to have any alcohol at home.

149. On 12 November 2008, Mrs Smith accepts that she attended at a meeting with Dr Purayil. Her husband was also present. It was also Mrs Smith’s evidence that a female social worker was present at that meeting. After discussion about the plaintiff generally, Mrs Smith records that she informed Dr Purayil that before each of the two previous events, namely the overdose of medication and his first hanging attempt, the plaintiff had been talking to Ms Scott. Mrs Smith also told Dr Purayil that she understood that the plaintiff had been on those occasions under the influence of alcohol. This suggests that she perceived a relationship between these circumstances and the plaintiff’s behaviour.

150. Towards the end of the meeting, Mrs Smith said that she asked Dr Purayil whether he could guarantee that the plaintiff would not attempt to commit suicide again. This question arose in the context where it was being suggested by Dr Purayil to Mrs Smith that it would be appropriate to allow the plaintiff some leave to come home, in advance of, and leading up to his ultimate discharge home. Mrs Smith says that Dr Purayil informed her that there could be no guarantees with respect to attempts by the plaintiff to commit suicide, but that he thought it would be appropriate for the plaintiff to have leave.

151. With respect to the plaintiff going on leave, Mrs Smith said in her statement that she and her husband were given no instructions or information at all about what they should look out for, or what precautions they should take when the plaintiff came home on leave. Nothing was said to them about whether the plaintiff should drink alcohol. She said that they received no advice about whether the plaintiff should have contact with Ms Scott.

152. The plaintiff was collected by his father from Campbelltown SAMHU on Thursday 13 November 2008, and returned to his home on leave.

153. Mr Smith, the plaintiff’s father, did not have a full recollection of the meeting on 12 November 2008. However, he was firm in his view, and his evidence, that the staff who were present at the meeting did not tell him or his wife what to expect when the plaintiff returned home on leave, nor what signs to look for, or what concerns they should have about caring for the plaintiff whilst he was on leave. He confirmed that neither he nor Mrs Smith were advised that the plaintiff should not have alcohol whilst on leave, and should not contact Ms Scott.

154. In a number of supplementary statements, and in her oral evidence, Mrs Smith expanded on her initial account of the meeting of 12 November 2008. She indicated in her statement of 4 June 2014, that at the start of the conversation with Dr Purayil on 12 November 2008, he indicated to her that the proposal was that the plaintiff could have leave for an hour on Thursday 13 November 2008.

155. Mrs Smith also gave an account that there was present during the consultation with Dr Purayil on 12 November 2008, a social worker. A female whose name she did not recall. The social worker did not take part in the conversation.

156. In the course of cross-examination of her recollection of this particular meeting, Mrs Smith denied that she had been given any advice or warning by Dr Purayil about the plaintiff’s condition, and what Dr Purayil thought were the causes of his depression, or the plaintiff’s previous attempt at hanging himself. She also denied a suggestion put to her that she had told Dr Purayil that she did not think there was any risk of the plaintiff trying to harm himself at home, and that she was anxious for weekend leave to take place. She denied both of these things. I accept her denial.

157. It was also put to Mrs Smith that Dr Purayil had said that the plaintiff needed to be closely monitored and supervised by her and her husband. She denied that Dr Purayil had said “closely monitor and supervise”, but she agreed that she intended to, and did, keep an eye on the plaintiff.

158. She agreed that, whilst it was her knowledge that the combination of alcohol and the plaintiff having an agitated discussion with Ms Scott had led to his conduct in the past, she said that:

“I was also under the assumption if he would have been let home that obviously they [the hospital staff] were quite convinced he wouldn’t do any harm because you wouldn’t let somebody home to harm themselves.”

Dr Purayil’s Evidence

164. Before coming to set out Dr Purayil’s evidence with respect to the meeting of 12 November 2008, it is necessary that I record I did not find Dr Purayil to be a particularly convincing witness. It was clear to me that he had little or no actual recollection of the plaintiff, Mr Smith, or of the meeting with his parents. His evidence, both in written and oral form, was largely constructed upon the basis of his belief as to what he would have done, or what would have happened based upon his usual, or expected, practice.

165. Whilst, after the events in question and before giving evidence, Dr Purayil has had a good deal of experience in the NSW public hospital system, the fact is that at the time of these events, he was not so experienced. I do not think that his evidence was assisted by what, I thought, was his unconscious reasoning process by which he adapted later acquired knowledge as to his usual practice, to a conclusion as to what it was that he did from time to time at an earlier time whilst treating the plaintiff in Campbelltown Hospital.

166. He was also a witness who, if something was not written down, or did not accord with what he now understands to be reasonable practice, would confidently express the view that something did not happen. A good example of this is that he denied that a social worker was present in the consultation of 12 November 2008 with Mr and Mrs Smith. He apparently instructed counsel appearing for the Health District that this was the fact. Counsel, in accordance with his duty, put that fact to Mrs Smith, who denied it. Later evidence made it clear that there was a social worker present at the meeting. Dr Purayil’s evidence on this issue was entirely incorrect. More importantly, it is a good example of how he generally approached his task of giving evidence. The true position was that he did not actually recall who was present at the meeting. However, since there was no note that the social worker was present, he denied her presence, rather than simply stating accurately that he had no recollection of her being present.

167. Although there are some parts of his account which I accept, I do not accept everything which Dr Purayil says in fact occurred during this meeting.

168. Dr Purayil, both in his written statements, and in his oral evidence, said that it was his recollection of the meeting of 12 November 2008, that the plaintiff’s parents wanted the plaintiff to be discharged as early as possible because of concerns about his financial situation. In cross-examination he added that this was “… the theme that came out from the beginning of that admission actually”.

169. I found this evidence unpersuasive. The note which Dr Purayil wrote in the hospital notes did not record that the plaintiff’s parents were urging the release of the plaintiff on leave. The meeting of 12 November 2008, was the first meeting which Dr Purayil had with the plaintiff’s parents. To the extent that they were urging that the plaintiff be released on leave, or discharged, there was no communication or exchange between them and Dr Purayil before this meeting. His evidence about the “theme” coming out from the beginning of the admission, suggests wrongly that it was the parents of the plaintiff who were seeking Daniel’s early discharge. They had not spoken to Dr Purayil at any earlier time, nor do the notes record any such request on their part. And so far as Mr and Mrs Smith were concerned, adequate arrangements were in place to deal with the plaintiff’s financial state.

170. The notes do record that the plaintiff himself was keen to be discharged. But that is very different from the parents themselves seeking the plaintiff’s discharge. Mrs Smith was adamant in her evidence that neither she, nor her husband, sought the early discharge of the plaintiff. Indeed, she said they were surprised when he was granted leave prior to discharge. I do not accept Dr Purayil’s evidence that in the course of this family meeting, the parents of the plaintiff made any such request.

171. Dr Purayil also gave evidence in cross-examination which further demonstrated the unreliability of his recollection. Counsel for the plaintiff sought to identify whether Dr Purayil obtained any history of impulsivity of the plaintiff. Dr Purayil agreed that the topic of impulsivity was a factor that needed to be carefully explored by him when considering whether the plaintiff ought be granted leave. He agreed that there were good reasons for that. He said:

“Q.   Because you can have someone who does not have overt signs of depression who, nonetheless, with a history of impulsivity, makes it very dangerous for that patient to deal with stressors if suddenly given extended leave? You would agree with that wouldn’t you?

A.   Yes.

Q.   Because if someone’s mood is low or they are overtly depressed, that is something that lay people are more inclined to be able to recognise, perhaps, than signs of impulsivity, correct?

A.   Yes.

Q.   There was a need for extra psycho education of family members, if the problem was impulsivity, correct?

A.   Yes.”

172. Dr Purayil went on to assert that he had discussed the plaintiff’s impulsivity, including during the meeting with the plaintiff’s parents on 12 November 2008. He added that he discussed the impulsivity in the context of:

“No, it’s – I have discussed the impulsivity. I’ve discussed both the attempts that has happened in the past and we identified that on both occasions Daniel was – Daniel has taken alcohol and he had contact with his girlfriend, so those two were the common factors, and I mentioned it to the parents that ‘You have to be careful about those things’. “

173. He was taken to the contents of the note of that meeting, and he agreed that there was no specific note, or indirect reference in the note to the issue of impulsivity. He further agreed that impulsivity was not discussed by reference to his usual practice. He gave this evidence:

“Q.   And your usual practice is that if something is important, you would make a note of it? You’ve told us that already, correct?

A.   Yes.

Q.   And there is no note of impulsivity here at all is there? Correct?

A.   No.

Q.   Therefore by reference to your usual practice, impulsivity was not discussed, correct?

A.   Yes.

…

Q.   And impulsivity was not considered by you by reference to your usual practice, correct. Is that right?

A.   Yes.

Q.   And that your memory in that regard, might I suggest you would concede, is wrong. Correct?

A.   I don’t understand the question.

Q.   There is no note, as a little while ago you said there was, referable to impulsivity. Given that change in evidence, would you agree that you have no memory of impulsivity being considered, correct?

A.   Yes, not in those terms, but I’ve discussed the possibility of him using alcohol, talking to his girlfriend and that leading to another attempt.”

174. It is difficult to accept, and I do not accept, the effect of Dr Purayil’s earlier evidence that the issue of impulsivity was considered and discussed with Mr and Mrs Smith.

175. That this is so is confirmed by the note of the following day’s consultation, on 13 November 2008, between Dr Yenson, Dr Purayil and the plaintiff. Dr Purayil agreed that there was no note in that consultation of any discussion about impulsivity. Dr Purayil agreed that there was no consideration at that time of the issue of impulsivity.

176. In the course of cross-examination, Dr Purayil was asked to turn his attention to the question of whether symptoms of anger on the part of the plaintiff had been considered and explored. It is clear from the note of the meeting of 12 November 2008, that Dr Purayil was given an account by the plaintiff’s parents that the plaintiff was “… quite angry after girlfriend broke up with him”.

177. He accepted in cross-examination that there was no other note made with respect to the issue of anger, or any other report of anger. Dr Purayil agreed that in the consultation which he undertook with Dr Yenson and with the plaintiff on 13 November 2008, the question of anger and like issues were probably not explored by Dr Yenson with the plaintiff. He agreed that anger was a matter which called for consideration, thought and discussion.

178. A further issue arose as to whether any condition pursuant to s 47 of the Mental Health Act was placed upon the plaintiff’s leave. Initially in cross‑examination, Dr Purayil asserted that there was such a condition. After he was taken to the absence of any written condition accompanying the grant of leave; the absence of any reference to such a condition coming into existence in any note of any consultation; and having agreed that the existence of the condition was a particularly important part of the appropriate procedure taken to ensure the plaintiff could go home on leave, when pressed as to his recollection, he agreed that he did not write it down (which was contrary to his usual practice). He was unable to explain the absence of such conditions. He said:

“Q.   This is a pretty important part, as I understand your evidence just before the luncheon adjournment, this was a very important part of the basis of Daniel having leave on your evidence, correct?

A.   Yes.

Q.   Why is there no note anywhere by you either with respect to consultations that you’re involved in with Daniel and/or his parents of that direction being given?

A.   I don’t know. I don’t have anything to say to that.”

179. As further evidence will show, there was no such condition. Dr Purayil’s recollection to the contrary was in error.

180. Ultimately, in further cross-examination, Dr Purayil agreed that no condition had been imposed on the leave given to the plaintiff. A further question and answer was put to him with respect to this condition, and the absence of it. It was in this form:

'”Q.   Tell me this, clearly you sitting here today and casting your mind to 2008, might I suggest clearly, given your understanding of the problems Daniel had with alcohol, and this being leave, it would have been grossly irresponsible in your view for someone in your position back in 2008, to go along with the decision that this man have leave for not one but four nights, without a specific condition being imposed, that he avoid alcohol altogether as a condition of his leave. That’s right isn’t it?

A.   Yes.

Q.   Yes, did you just say ….?

A.   Yes.

Q.   And when you say that, a condition that if breached could have automatically lead to him immediately being brought back by the police if the need arose, if he breached that condition. Agreed?

A.   Yes.”

181. Dr Purayil went on to give further evidence on this topic. He accepted that in caring for the plaintiff after he went on leave for a period of four nights, the role of the parents was of central importance. He accepted that placing a condition on the grant of leave would assist the parents or carers with their relationship with the plaintiff.

182. He gave this evidence:

“Q.   It assists the parents in terms of the authority that they have over their son in the event of anything going awry in the faces of the stressors? Correct?

A.   Yes.

Q.   By not imposing a condition of alcohol in a formal way, you do not help them at all, do you?

A.   No.

Q.   Quite frankly, you would agree that it would be so unreasonable that no authority exercising this power over a patient that is scheduled in the way that Daniel was, would be so irresponsible as to fail to assist parents by, at the very least, imposing a condition, a formal condition, that if there was any alcohol, leave was over and he would go back immediately. You’d agreed with that wouldn’t you ….

A.   Yes.”

183. Counsel cross-examining Dr Purayil then turned to the question of whether a condition ought to have been imposed on the plaintiff’s leave that he not make contact with his former girlfriend, Ms Scott. Clearly, there would be difficulties for staff in in the Health District, or Dr Purayil, actually monitoring that condition in a real time sense. However, Dr Purayil agreed that such a condition would be a positive help to the parents in terms of dealing with their son’s stressors. He agreed that such help for the parents was absolutely necessary with respect to the leave which was granted, because it provided clear direction as to what they were to look out for, and clear direction as to what would happen if they observed their son having contact with his former girlfriend.

184. He then gave this evidence:

“Q.   It may well be that they don’t know, but it’s better than nothing being imposed, isn’t it?

352. There is nothing in the evidence which would enable a conclusion to be drawn that any breach of duty relating to banning contact or communication with Ms Scott, in any way gave rise to the decision made by the plaintiff to take his own life. There is no temporal connection between any such contact and the plaintiff’s own actions. On the contrary, the evidence suggests that there had been no contact with Ms Scott directly or at all whilst the plaintiff was in hospital or whilst he was on leave. At best, there was contact with Mr Campion about the tyre issue, but this did not seem to have caused the plaintiff any difficulty at all. It cannot be concluded on the evidence that this contact was causally related to the events later that evening.

353. The plaintiff’s contention is that but for the defendant’s negligence in prohibiting contact with Ms Scott or else advising his parents to ensure that there was no contact with Ms Scott, he would not have attempted to hang himself. I am unable to accept this proposition. On the facts provided in evidence, I cannot reach that conclusion.

354. Other than the text of 10.11pm, and the written suicide note, there is no available material to indicate why it was that the plaintiff attempted to hang himself. The extent to which the text message rises, suggests that the plaintiff’s decision was made by reference to long-existing relationship issues rather than anything which had arisen in the days before the decision. The plaintiff has not persuaded me that but for any breach of duty on the part of the Health District, he would not have attempted to commit suicide.

355. The issue of causation can be approached differently, but the end result is the same. In order to establish what the cause or causes of the plaintiff’s attempt at suicide, it is necessary to have it demonstrated by direct evidence, or by rational inference from the surrounding circumstances, why the plaintiff made his attempt to take his own life. The evidence in the proceedings from the plaintiff himself is silent on this issue. There is no other direct evidence as to why the plaintiff attempted to commit suicide.

356. The question then is what inferences can be drawn as to the reason or reasons why the plaintiff attempted to hang himself. In my view, given the absence of rationality which is an inherent feature of a decision, in the circumstances here, by the plaintiff, it is an exercise of speculation to attempt to infer what caused the plaintiff to act as he did. In short, the evidence left behind, namely the text message and the note, does not enable any inference to be drawn about the reason, or reasons which the plaintiff had for attempting suicide. In those circumstances, it is not open to, nor is it possible for, the Court to reach the requisite conclusion of causation.

357. Insofar as the plaintiff’s case depended upon advice being given to his parents and their actions, it must be said that I am positively satisfied that the plaintiff’s parents did all that was reasonably within their power to assist the plaintiff to minimise the risk of attempted suicide.

358. After his release on leave, the plaintiff was in the company of one or other of his parents at all times, except when he spent the afternoon with his friends. His mother and father both kept a good eye on him, and were watchful for his activities, his mood and his reactions to events around him. They went out of their way to ensure that he was having a stable period of leave during which he would not be exposed to any of the stressors of which they knew and which, in combination, had led to his past self-harming conduct.

359. Although there was no particular reason for them to be concerned about the plaintiff, Mrs Smith decided she would sleep on the lounge in the family home, in a location which meant that the plaintiff had to walk past her to leave the house and go to the garage or anywhere outside the house. She reasoned, wholly reasonably, that since she was a light sleeper, she would hear any attempt by the plaintiff to leave the house, and then she could take such steps as she might to prevent him from harming himself.

360. There was simply nothing more either Mr Smith or Mrs Smith could have done to prevent or deter the plaintiff from attempting to harm himself.

361. The evidence of Mrs Smith in her third statement of 1 August 2014, as to what she would have done had there been a condition on the plaintiff’s leave that he not have any contact with “… Stacey or her friends …”, I am satisfied reflects a genuine belief which Mrs Smith presently holds, but it does not carry any real weight. It is inevitable that such evidence is affected by hindsight.

362. The influence of hindsight on later perceptions of what could be done to prevent the occurrence of a wide range of events, is the subject of much study and is well recognised. Speaking of complex organisational disasters, Professor James Reason in his seminal work “Human Error” 1990, Cambridge University Press, says at p215:

“Outcome knowledge dominates our perceptions of the past, yet we remain largely unaware of its influence. For those striving to make sense of complex historical events, familiarity with how things turned out imposes a definite but unconscious structure upon the antecedent actions and conditions. Prior facts are assimilated into this schema to make a coherent causal story, … But to those involved at the time these same events would have no such deterministic logic. Each participant’s view of the future would have been bounded by local concerns. Instead of one grand convergent narrative, there would have been a multitude of individual stories running on in parallel towards the expected attainment of various distinct and personal goals.

Before judging too harshly the human failings that concatenate to cause a disaster, we need to make a clear distinction between the way the precursors appear now, given knowledge of the unhappy outcome and the way they seemed at the time.”

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

370. As I have said, I am well satisfied that they did everything in their power that they reasonably could, to monitor and supervise their son, and to prevent him being affected by the stressors which they knew related to his previous attempts at suicide. I am satisfied that there was nothing which they could have done that would have prevented the plaintiff from attempting to take his own life on the evening of 16 November 2008.

371. They bear no responsibility for what the plaintiff decided to do that evening. They did not know that he had decided to harm himself, they did not hear or see him leave the house to go to the garage, and when they became aware of it, they did everything in their power to assist him. Even if they had received different information and warnings from the staff at Campbelltown Hospital, there was nothing more they could have done than that which they did.

372. In conclusion, the plaintiff has not satisfied me that but for any of the breaches of duty, his injuries would not have occurred.

Other Defences

373. Although I have determined that the established breach did not cause the plaintiff’s injuries, it is appropriate to deal with the discrete defences raised by the Health District.

374. The first of these is a defence relying upon the provisions of s 5O of the Civil Liability Act. It is in the following terms:

“5O Standard of care for professionals

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

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

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

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

375. There is a limitation upon the application of s 5O of the Act, which is to be found in s 5P of the Civil Liability Act. It is in the following terms:

“5P Division does not apply to duty to warn of risk

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.”

376. I have already held that it was not a breach of duty for the Health District to have granted leave to the plaintiff for the period envisaged. In part, my reasoning included that it was a common practice, when clinically appropriate, and an ordinary therapeutic measure, to give involuntary patients leave from a psychiatric facility.

377. To the extent necessary, the provisions of s 5O would have provided statutory support for that conclusion, which I reached by another path. However, it cannot be doubted that the provisions of s 5O would apply to the decision to grant leave, and, had it been necessary to determine, I would have been satisfied that the grant of leave accorded with a wide acceptance by peer professional opinion.

378. Equally, the terms of s 5P make it plain that the provisions of s 5O do not apply to the breach which I have found, namely, a failure, after the decision to grant leave was made, to communicate adequately with the plaintiff’s parents and to provide advice to them.

379. This defence does not require further consideration.

380. The defendant also relied upon the provisions of s 5I of the Civil Liability Act. Section 5I, is to be found in Division 4 of Part 1A of the Civil Liability Act. That division is entitled “Assumption of risk”. Section 5I is in the following terms:

“5I No liability for materialisation of inherent risk

(1)    A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2)    An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3)    This section does not operate to exclude liability in connection with a duty to warn of a risk.”

381. The division commences with a series of sections, s 5F-5H (inclusive) which deal with the concept of obvious risk, namely, a risk that “… in the circumstances, would have been obvious to a reasonable person in the position of that [plaintiff]”. Obvious risks include risks that are patent, or a matter of common knowledge: s 5F.

382. The division concludes with s 5I dealing with the concept of inherent risk. No other provision refers to, or is concerned with, inherent risk.

383. The section was the subject of careful consideration by the Court of Appeal in Paul v Cooke [2013] NSWCA 311.

384. As Leeming JA said at [64] in Paul v Cooke, the concept set out in s 5I(2) of inherent risk is “necessarily forward looking to something which may or may not occur in the future”. The nature of the future occurrence is one that “… cannot be avoided by the exercise of reasonable care and skill”. If there is such an occurrence in the future, then s 5I requires a consideration of a risk of that occurrence happening and a determination of whether that risk is an inherent one. Ultimately it then requires a determination of whether the harm suffered is the result of the materialisation of that inherent risk.

385. If s 5I is satisfied, then s 5I provides an answer to the entirety of the plaintiff’s claim here.

386. The Health District submits that the inherent risk is that of the plaintiff attempting to commit suicide. The first question then is whether that risk “… cannot be avoided by the exercise of reasonable care and skill’. The premise of the defendant’s defence in substance, which I have earlier considered, is that such a risk can be avoided by the provision of appropriate treatment and counselling, in a manner consistent with good professional practice.

387. It is the plaintiff’s case that a failure to provide appropriate care and treatment, including counselling of Mr and Mrs Smith, caused, or materially contributed, to the physical injuries which the plaintiff sustained as a result of attempting to commit suicide.

388. The defendant resists such findings. It does so successfully because, as my earlier reasons demonstrate, in all but one respect the defendant’s conduct did not constitute a breach of duty. In the respect in which it does constitute a breach of duty, I have held that the plaintiff has not satisfied me that a causal link has been established as required by s 5D of the Civil Liability Act.

389. The entire premise therefore, seems to me to be that the defendant, by acting appropriately and giving proper treatment, could avoid the risk of the plaintiff attempting to commit suicide.

390. In those circumstances, I am not satisfied that the provisions of s 5I of the Civil Liability Act are here applicable, and I would not, had it been necessary to have proceeded to consider the application of s 5I, have been minded to uphold any defence based on this section.

391. The defendant also relies upon the provision of s 5R of the Civil Liability Act, asserting that, if it is found to be negligent, the plaintiff’s own conduct in attempting to hang himself amounts to contributory negligence.

392. As I have not been persuaded that the plaintiff has established liability on the part of the Health District, making findings about this allegation would be entirely hypothetical. It is inappropriate to proceed to such findings.

393. However, I feel it appropriate record that I was unpersuaded that the deliberate conduct of the plaintiff in attempting self-harm, readily fit within the concept of negligence viewed, as s 5R requires, from the standpoint “… of a reasonable person in the position of [the plaintiff]”.

Damages

394. It is not strictly necessary to assess the plaintiff’s damages. That is because I am not satisfied that the plaintiff has succeeded in obtaining a verdict. But against the possibility that my conclusions are in error, it is appropriate that I shortly indicate my views on the question of damages.

395. As the parties’ submissions show, there is considerable agreement between them as to damages. It is necessary only for me to express my views, with brief reasons, in those areas where there is no agreement.

396. Non-Economic Loss: The plaintiff is largely confined to a wheelchair, although for limited periods he may be able to use a four arm support frame. He has cognitive impairment, memory and executive function deficits. The defendant submits that 70% of the non-economic loss sum should be awarded. I think this is an under-estimate. In my view, the appropriate allowance for non-economic loss is 80% of the maximum, as counsel for the plaintiff submitted.

397. Life Expectancy: The argument here centres upon whether the plaintiff’s ordinary life expectancy has been reduced by 15% of his remaining years, as the neurologists agree, or by a period of 15 years as the rehabilitation physicians have agreed. My view is that the appropriate period to choose is a diminution of the plaintiff’s life expectancy by 15%. This will adequately allow for the neurological complications of his injury, and will not run the risk over-estimating the plaintiff’s diminution in life expectancy.

398. Future Out of Pocket Expenses: The first area of disagreement is the number of physiotherapy or exercise physiology sessions required per year. The plaintiff claims 12, one per month. The defendant would allow 6. In my view an appropriate allowance for the physiotherapy consultations is 6 per year as the defendant contends.

399. The second area of contest is about gym membership. I am not satisfied from the evidence that the plaintiff would ever make use of a gym membership. I would not allow this item.

400. Economic Loss: The plaintiff was earning $1,072 net per week in the financial year immediately before he sustained his injuries. That weekly rate had increased in the weeks leading up to his suicide attempts. However, these earnings were at risk because of difficulties which he was having at work because of his knee injury, which was sustained in the motor vehicle accident. I think the knee injury would have affected his working capacity to some extent, but not the extent contended for by the defendant in its submissions. In my view, approaching the matter in a broad-brush way, for the purpose of assessing the plaintiff’s past economic loss, and the value of his future lost earning capacity, a net weekly figure of $1,000 is appropriate. This is a sufficient reduction to allow for his pre-existing injury which may have deteriorated over time. Interest on past economic loss should be paid pursuant to s 18 of the Civil Liability Act. The total sum for future economic loss (but not past economic loss) should be discounted by 15% to reflect the vicissitudes of life. This is the conventional allowance.

401. Future Care: The disagreement between the parties centres upon the regime suggested by Dr Buckley of 24 hour care each day, consisting of 16 hours of active care, and 8 hours of sleepover care. Dr Zeman opined that 42 hours of care per week was sufficient. He thought some of the care could be provided by the plaintiff’s parents.

402. The plaintiff contends for the former formulation and, unsurprisingly, the defendant contends for the latter.

403. A significant issue between the parties is whether the plaintiff now requires, or will at some time in the future require, overnight care. The defendant accepts that overnight care will be required from age 70 onwards. The plaintiff contends that overnight care is required now. Overnight care (8 hours x 7 days per week = 56 hours) is not included in the current formulation of care put forward by Dr Zeman. The reality presently is that the plaintiff is cared for overnight by the presence of his parents in the house. If some emergency was to occur, they could attend to the plaintiff and provide him with such assistance as may be required.

404. Any assessment of the future care needs of the plaintiff, must be careful not to assume that the plaintiff’s parents will continue at all times in the future to be able to provide gratuitous care to the plaintiff, including overnight care.

405. Assessing future care also requires a degree of prediction and evaluation. In part, this must depend upon the impression the Court gains of the plaintiff, and his general attitude to looking after himself, as well as the expert evidence provided by both the rehabilitation physicians and the occupational therapists.

406. I do not accept that care at the level prescribed by Dr Buckley is presently warranted. However, I do think that a greater level of care than that presently provided by Dr Zeman is warranted. Dr Zeman’s prescription provides, across the week, an average of 6 hours per day. The plaintiff presently needs more than that, and is receiving the benefit of his parents’ assistance for more than that. In my view the plaintiff currently requires on average 10 hours per day of care on each day of the week, amounting to 70 hours of care per week.

407. By the time he turns 50, the plaintiff will require an additional 2 hours of care per day, amounting to an additional 14 hours of care per week. By the time he turns 60, the plaintiff will require someone to sleep overnight in order to care for him. From that age, provision needs to be made for one overnight shift of sleepover care for each day of the week, in addition to the care he has been receiving.

394. To the extent that the plaintiff will need care in the future if he goes on holidays, having regard to the plaintiff’s upbringing, his occupation, the nature of his interest in travel, and the likelihood of him travelling in the future, I would allow one week of 24 hour care per day for the purpose of an annual vacation. An adjustment would need to be made for care which would be otherwise provided during this period.

395. Handyman/Gardener: In my view 1 hour per week at $50 per hour is a reasonable amount.

396. Wheelchair Accessible Vehicle: In my view, all that is required for the plaintiff is a passenger-style vehicle, which can be driven by a carer with capacity to carry a folding wheelchair as the opinion of Dr Zeman and Dr Buckley prescribes. I do not think there ought be an award of damages for a wheelchair accessible vehicle.

397. Case Management: In my view Dr Buckley’s prescription of 8 hours per month of case management services is a manifest over-prescription. The defendant submits that 8 hours per year is appropriate.

398. In my view, it is appropriate to allow 2 hours of case management per month, being a total of 24 hours per year.

399. Given that there is to be a judgment for the defendant, it is inappropriate to deal with the quantum of funds management. However, it is appropriate for me to record that in my view the plaintiff would be entitled to an award of funds management in an appropriate sum for the management of such sums as he would receive had he been entitled to a monetary verdict.

Conclusion

414. In summary, I have concluded that in only one respect has the plaintiff demonstrated that there has been a breach of duty on the part of the Health District.

415. But, that breach of duty has not been shown to have been the cause of the plaintiff’s injuries which he sustained when he attempted to take his own life.

416. I have also concluded that, notwithstanding the breach of duty which I have found, the plaintiff’s parents, Mr and Mrs Smith, when the plaintiff was released on leave to return home to their house, did all that could possibly be required of them to take care for him. They were attentive to his mental health issues, they monitored him as best as could possibly be done, and took steps which they thought would be effective to prevent him attempting to harm himself.

417. That those steps were not ultimately effective, is not in any sense due to any lack of care and attention for their son. It is entirely due to the fact that their son determined, in the privacy of his own room, to embark upon a course of action which led to the serious injuries from which he now suffers.

418. There must be a judgment for the second defendant.

Name of Second Defendant

419. The name of the second defendant has changed over the course of these proceedings. It is appropriate to regularize the name change by an order. The second defendant is presently called the South Western Sydney Local Health District, and has been operating under that name since 1 July 2011, upon the commencement of the Health Services Amendment (Local Health Districts and Boards) Act 2011.

Costs

420. Ordinarily costs follow the event. There seems to me to be no reason why an order that the plaintiff pay the defendant’s costs ought not be made.

421. If either party seeks a different order, then they have leave to make such application orally as they wish, supported by such evidence as they wish at 9.30am on 4 September 2015.

Orders

422. I make the following orders:

1. Pursuant to s 64 of the Civil Procedure Act 2005, order that the name of the second defendant be amended to South Western Sydney Local Health District.

2. Judgment for the second defendant.

3. Plaintiff to pay the second defendant’s costs.

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Decision last updated: 28 August 2015