Watson v Marshall

[1971] HCA 33

HIGH COURT OF AUSTRALIA

Walsh J.

WATSON v. MARSHALL AND CADE

(1971) 124 CLR 621

4 August 1971

Mental Health (Vict.)—False Imprisonment

Mental Health (Vict.)—Psychiatric hospital—Admission—Requirements—Conveyance to hospital—Statutory justification—Implied statutory authority—Admission—Examination "without delay"—Mental Health Act 1959 (Vict.) ss. 42 (1), (4), 64, 103*. False imprisonment—Trespass to person—Imprisonment—Taking into custody—Justification—Common Law—Implied statutory authority—Damages.

Decisions

August 4.
WALSH J. delivered the following written judgment: -
This case and the case of Watson v. Cade arose out of the same occurences. The plaintiff in both cases is a medical practitioner who on 25th July 1967 was admitted into a psychiatric hospital in Melbourne and remained there for about a week. He has sued the defendant Marshall, a member of the Victorian Police Force, claiming damages for trespass to the person. In the other action he has sued the superintendent of the hospital, claiming damages for trespass to the person and false imprisonment. The cases are unfortunate ones in which the facts are such as to excite a good deal of sympathy both for the plaintiff and for the two defendants. It is plain that the plaintiff believed that a great injustice was done to him. At the same time I have no doubt, as a result of the evidence that I have heard, that both defendants acted honestly and in the belief that what they did was authorized by law and was the right thing to do. It is my task to decide in each of the actions whether or not the defendant committed a wrong against the plaintiff for which that defendant is legally responsible and to give effect to that decision, without regard to any facts or considerations which are extraneous to the resolution, in accordance with law, of the issues between the parties. Many facts alleged and many arguments advanced by the plaintiff, who appeared in person, were in my opinion extraneous to those issues. It is not my intention to examine the considerable body of evidence which relates to the activities of the plaintiff and to an alleged conspiracy against him, extending over a period of several years prior to the events with which the actions are concerned. In these reasons for judgment in the action against Marshall, I propose to refer to those facts which constituted his alleged wrongful restraint upon the liberty of the plaintiff and to the circumstances in which they occurred. I am of opinion that, although in the evidence for the plaintiff and evidence for the defendant there are differences as to matters of detail, the essential facts are not really in dispute. The problems to be resolved in determining whether the plaintiff is entitled to a verdict against the defendant Marshall are problems concerning the legal consequences of the facts revealed by the evidence. (at p623)

2. Before outlining those facts and examining those problems, it is necessary to refer to the question of the jurisdiction of this Court to entertain the action. The plaintiff claims that at the relevant time he was a resident of the State of New South Wales. It is common ground that the defendant was then a resident of the State of Victoria. If the plaintiff was a resident of New South Wales this Court has jurisdiction, in accordance with s. 75 (iv.) of the Constitution. The plaintiff is required to establish the facts which give this Court jurisdiction: see Dahms v. Brandsch (1911) 13 CLR 336 . The writ was issued on 28th September 1967 and it is at that time that it must be considered whether the plaintiff was a resident of Victoria or of New South Wales. The evidence does not provide an entirely clear answer to that question. But I have come to the conclusion that the evidence shows that the plaintiff had retained up to that time the "status" of a resident of New South Wales and the "identification" with that State which belonged to him previously: Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe (1922) 31 CLR 290, at pp 307-308 , per Isaacs J. (at p624)

3. In and before the year 1963, the plaintiff's home and work were in Sydney and his wife and children lived there. From 1963 until late in 1966 he was overseas. When he returned, it was to Sydney that he came. During the first half of 1967 he was registered as a medical practitioner in Victoria and not in New South Wales. But I think it is probable that this was not the result of a decision to forsake New South Wales for Victoria but the result of difficulties in obtaining registration in New South Wales. The plaintiff carried on a medical practice in Melbourne, but there is evidence that he had consultations, also, with patients in Sydney. His time was divided amongst those two cities and Canberra. He became a tenant of a place of abode in Victoria but he had also a tenancy, at least for a considerable part of 1967, of a place of abode in Sydney. When he relinquished it, he continued to stay in Sydney, from time to time, with relatives or friends. At this time he was separated from his wife who had brought a suit of divorce against him, which was still pending until 1968. But his children were in Sydney and he visited them, as well as visiting his father and other people in that State. He continued to be an owner of a home in a Sydney suburb and although it had been let, he was trying to regain possession of it and subsequently succeeded in doing so. After his discharge from hospital, the evidence indicates that his registration as a medical practitioner, which had been revoked by reason of his admission to the hospital, was not obtained again until a time later than the date of the issue of the writ. The evidence does not disclose in detail what the plaintiff was doing in the months of August and September 1967, but I think it warrants the finding that he continued to spend part of his time in Melbourne and part of his time in Sydney. He maintained a car in each of those States. In the circumstances, it is not easy to apply the tests suggested in Howe's Case (1922) 31 CLR 290 in determining what was the plaintiff's place of residence. As that case shows, it is not permissible to treat him as being a resident, within the meaning of s. 75 (iv.), of both States. A choice has to be made and I think that the conclusions are warranted that he had not changed his residence from one State to the other and that he remained a resident of New South Wales. Therefore I hold that I have jurisdiction. (at p625)

4. I turn to consider the events which occured shortly before the day on which the plaintiff was admitted to hospital and on that day. I have heard evidence about these events from the plaintiff and from the defendant, from Dr. Birrell a police surgeon and from a lady who became later and now is the plaintiff's wife. I do not regard the differences in the accounts given of what happened as being critical in the decision of the case. But I should say that I accept the evidence of the defendant as being truthful and as being accurate, so far as his recollection allowed it to be. I take the same view of the evidence of Dr. Birrell. To the extent that the plaintiff's evidence or that of his wife is in conflict with the evidence of the defendant and that of Dr. Birrell, I prefer the latter evidence. I do not think that the plaintiff was deliberately untruthful. Indeed, in some respects, his account was given the ring of truth by his moderation and his refusal to exaggerate when describing the conduct of the defendant and of Birrell. But I think that in some matters his evidence was affected by a natural tendency towards selfjustification. For example, in what he said about his taking of drugs at this period and in his insistence that, when speaking to the defendant of persons engaged in conspiracy against him and of their actions, he was not putting forward assertions of definite facts, but merely making requests for the investigation of possibilities, I do not think that his evidence was reliable. (at p625)

5. A few days before 25th July 1967 the defendant, a detective in the Victorian Police, received two telephone calls. It may clearly be inferred that these calls referred to conduct or statements of the plaintiff which were regarded as abnormal. The defendant went to see the plaintiff and had a long conversation with him. The plaintiff spoke of his earlier activities and referred to a solicitor in Sydney as a Russian spy and to a conspiracy to harm the plaintiff by putting him into a mental institution and by exiling him from Australia. (at p625)

6. After that interview the defendant made certain inquires from the police in Sydney and from Mrs. Watson (as she now is). On 25th July, he went with Dr. Birrell to the plaintiff's rooms in East Melbourne. He did not disclose that Birrell was a doctor but introduced him as a colleague. The plaintiff was invited to recount once more what he had said to the defendant at the earlier interview. No doubt the defendant had already reported to Birrell the results of his earlier inquiries. It seems plain that both men had it in mind when they went to see the plaintiff that it might be a case in which he ought to be admitted to hospital in accordance with s. 42 of the Mental Health Act 1959-1969 (Vict.) (the Act). Section 42 (1) provides:

"Any person may be admitted into and detained in a psychiatric hospital upon the production of - (a) a request under the hand of some person in the prescribed form;

(b) a statement of the prescribed particulars; and (c) a recommendation in the prescribed form of a medical practitioner based upon a personal examination of such person made not more than seven clear days before the admission of such person."

During or at the end of the interview with the plaintiff, Dr. Birrell filled out and signed "a statement of the prescribed particulars" and also a "recommendation" and the defendant filled out and signed a "request", for the purposes of s. 42 (1). The plaintiff said in evidence that the defendant then arrested him, using the word "arrest". The defendant denies that he used that word or that he indicated to the plaintiff that he was under arrest. His version is that he told the plaintiff that Birrell had instructed him to take the plaintiff to the Royal Park Hospital for psychiatric examination and treatment. He told the plaintiff's solicitor, with whom he had a telephone conversation, that the plaintiff was to be taken to Royal Park in accordance with the Mental Health Act and on the doctor's instructions. It is plain and indeed it is not in dispute, that it was made clear to the plaintiff that he had to go to the hospital. The plaintiff protested but went to a police car which was nearby and went in it with the defendant to the hospital. There the defendant handed over the documents to which s. 42 (1) refers and the plaintiff, after examination by a doctor, was admitted. No physical force was used at any time by the defendant. But I find that in the circumstances the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go to the hospital. Therefore a restraint was imposed upon the plaintiff which amounted to an "imprisonment" of him by the defendant: see Fleming, The Law of Torts, 4th ed. (1971), pp. 28-29; Winfield on Tort, 7th ed. (1963), p. 155; and Symes v. Mahon (1922) SASR 447 . Therefore the defendant, to escape liability, must show that there was, for what he did, a legal justification either at common law or by statute. (at p626)

7. In his statement of defence the defendant sought to justify his actions by reference to the provisions of the Act but not under any common law principle. If the evidence proved that there was a justification at common law, I should be disposed to allow any necessary amendment. But I do not think that there is evidence sufficient to make out a case of justification at common law. In In re Hawke (1923) 40 WN (NSW) 58 , Harvey J. referred to the limits of the common law right to exercise restraint as having been laid down in Scott v. Wakem (1862) 3 F &F 328 (176 ER 147) and Anderdon v. Burrows (1830) 4 Car &P 210 (172 ER 674) . Harvey J. said that the lawfulness of an act of detention of a person must depend on "overriding necessity for the protection of himself and others". See also Clerk &Lindsell on Torts, 12th ed. (1961), par. 608 and Reg. v. Pinder; In re Greenwood (1855) 24 LJQB 148 , which is there cited. I think that the evidence falls short of establishing that there was a necessity to protect the plaintiff or to protect others such as would justify at common law the action taken by the defendant. His evidence does not suggest to me that he acted because of an awareness of such a necessity. I have no doubt that he thought it was right that the plaintiff should be admitted to a hospital, but it is not shown that either the defendant or Dr. Birrell apprehended an immediate danger of injury to the plaintiff himself or to others, if he were not taken forthwith into custody. It is true that Dr. Birrell gave evidence, in cross-examination, that in recommending the plaintiff's admission to hospital, one consideration that he had in mind was a possibility that the plaintiff might do harm to other people. But I did not obtain the impression from his evidence that there was, in his opinion, such a danger that it was imperative that the plaintiff should not be at large. He was primarily concerned with what he believed to be the plaintiff's state of health and with securing relief for him from his illness and from the effects of the excessive consumption of drugs, in which the doctor believed the plaintiff was indulging. So far as the defendant was concerned, he believed that he was acting under the authority of the Act, rather than under an impelling necessity to avert an immediate danger of injury to the plaintiff or to others. (at p627)

8. I do not think that I need to dwell upon the conflicting views which have been put forward as to the plaintiff's actual state of mind on 25th July 1967 or, in particular, to discuss in detail the plaintiff's contention that Dr. Birrell, as well as other doctors who saw him later at the hospital, fell into the error of treating as delusional, incidents and beliefs of which the plaintiff told them, which were of an unusual and extraordinary character but were in truth, the plaintiff asserts, factual and well-founded. I do not think that I need to go into those matters either in order to decide whether the defendant can justify his actions upon the common law ground to which I have referred or to decide whether he can justify them under the Act. In relation to the common law principle, I am of opinion that the defendant cannot succeed even on the view of the facts most favourable to him. As to the provisions of the Act, I do not think that their applicability depends upon whether the plaintiff was suffering from delusions or was free from them, or upon the accuracy of the diagnosis then made by Dr. Birrell. The only question is whether the Act authorized what the defendant did. It is that question which I must now consider. (at p628)

9. The statement of defence referred to s. 64 of the Act. I do not doubt that both that section and s. 42 would relieve the defendant from the liability, if any, which might otherwise rest upon him, in relation to the detention of the plaintiff at the hospital as from the time when he was admitted into it. But neither of those sections deals expressly with the events which occurred before the plaintiff was admitted to the hospital. It seems to me that if the defendant cannot rely upon s. 42 or upon any implication derived from it to absolve him from liability for the taking and conveying the plaintiff to the hospital, then he can get no further aid from s. 64. (at p628)

10. Without the guidance of judicial precedent I should have been disposed to hold that there was an implied statutory authority for the conveying to a hospital of a person in respect of whom the three documents specified in sub-s. (1) of s. 42 had been duly completed. Although no such authority is expressly conferred, there is much to be said for the view that such an authority should be implied, in order that the provisions of s. 42 should be rendered effective. That view was adopted in relation to the provisions of the Lunacy Act, 1898 (N.S.W.) in Ex parte Fosbery (1904) 4 SR (NSW) 74 , by A. H. Simpson C.J. in Eq. (1904) 4 SR (NSW), at p 78 , and in the Full Court of the Supreme Court (1904) 4 SR (NSW), at pp 81 and 83 . But on appeal it was rejected by all the members of this Court in McLaughlin v. Fosbery (1904) 1 CLR 546 . The reasons their Honours gave upon this question appear at pp. 559-563 of the report and some further relevant observations appear at p. 567. So far as I have been able to ascertain, there has been no express dissent from these pronouncements in any subsequent case. The reasons given by the Privy Council in its advice in McLaughlin v. Westgarth (1906) 6 SR (NSW) 664 , do not appear to be entirely in conformity with those of this Court in the earlier case, but their Lordships expressed no disapproval of it. It was a decision upon a different statute from that with which I am concerned now, but the relevant provisions were not, I think, different in material respects. In relation to the matter now under consideration, and to the reasons given by their Honours, the similarities between the two sets of provisions appear to me to be more striking than the differences. Their Honours observed that neither s. 9 nor s. 16 of the New South Wales Act included any express provision for the apprehension and removal of the patient, whereas express provisions of that kind were contained in ss. 4, 5 and 6. The same contrast may be made between s. 42 and ss. 45, 46 and 47 of the Act. After much consideration, I have come to the conclusion that I cannot hold that the defendant's actions in taking and conveying of the plaintiff to the hospital, in order that his admission under s. 42 might be considered, were authorized impliedly by that section. I do not think that I should disregard the warnings which their Honours gave in McLaughlin's Case (1904) 1 CLR 546, at p 559 , that in the interpretation of an Act which affects personal liberty, supposition as to the intention of the legislature has no place and that the function of the Court is limited to interpreting and giving effect to its will as expressed in the statute. Clearly there is no express authority for the removal of a person to a hospital merely because the documents specified in s. 42 (1) have been completed and I have decided that I ought not to hold that that authority is impliedly conferred. (at p629)

11. The defendant sought to rely upon s. 103 of the Act which provides:

"No civil or criminal proceedings shall lie against any person for anything done in reliance on any recommendation order or other document apparently given or made in accordance with the requirements of this Act."

In my opinion, this section is of no assistance to the defendant. In a loose and inaccurate sense it may be said that, in requiring the plaintiff to go to the hospital, the defendant acted in reliance on the recommendation signed by Dr. Birrell. But this was not a recommendation that the plaintiff should be taken to the hospital nor did the Act provide for the making of that recommendation by a doctor. The recommendation was, as the Act required it to be, a recommendation that the plaintiff should be admitted into a psychiatric hospital. Once the view is taken that the authority to admit a person, conferred by s. 42, does not carry with it an authority to convey that person to the hospital, it cannot be held that a recommendation for admission includes, by implication, a recommendation "given or made in accordance with the requirements of" the Act, for his conveyance (under compulsion) to the hospital. The purpose of s. 103 appears to be to protect persons who have acted in reliance on a recommendation, order or other document, "apparently given or made in accordance with" the Act, if it turns out that there has been some departure from the provisions of the Act which makes the recommendation, order or document defective. In the present case, whoever admitted the plaintiff to the hospital would be protected by s. 103 from the consequences of any defects in the documents, provided they were apparently given or made in accordance with the requirements of s. 42. But a person who takes a patient to the hospital against his will, if he is not otherwise justified in doing so, cannot rely upon s. 103, because there is no relevant recommendation, order or document, in reliance upon which he can claim to have done that act. (at p630)

12. For the reasons stated, I feel bound to come to the conclusion that the defendant has failed to show a legal justification for the restraint which he placed upon the plaintiff for the purpose of taking him to the hospital and that he must be held liable for it. I should have been glad to be able to hold that the law did justify his actions. I find he acted in good faith and that he believed that he was entitled to do what he did and that it was right to do it. But this belief is irrelevant, in my opinion, to his responsibility in law for acts which were prima facie an infringement of the plaintiff's rights, although it is highly relevant to the question of the amount of damages which should be awarded. It is to be regretted that the Act, upon the view that I have taken of it, leaves the defendant without protection. There must be many cases in which persons acting in good faith have rendered or will render themselves liable for acts having the purpose of making possible the admission into hospital, pursuant to s. 42 of the Act, of persons whose admission would have been or would be highly desirable. If no appeal is brought from my decision in this case or if upon such an appeal the Court should come to the same conclusion as to the lack of statutory authority for what the defendant did, it seems plain that the matter is one which should receive the early attention of the legislature. (at p630)

13. I hold that the plaintiff is entitled to recover damages from the defendant in respect of the restraint placed upon him from the time when he submitted to the defendant's statement that he would be taken to the hospital, until the time when he was received by the hospital authorities and admitted to the hospital. In my opinion, it is plain that the defendant should not be held liable for damages for the subsequent detention of the plaintiff. The admission of the plaintiff into hospital and his detention in it were lawful. They were expressly authorized by s. 42 (1). I hold that the documents mentioned in that subsection, which were produced in this case, complied with the statutory requirements. They were in the forms, or were to the like effect as the forms, set out in the Regulations made under the Act. See the Mental Health Regulations 1962, reg. 94 and sched. 19; and the Mental Health (Schedules) Regulations 1966, schedules 9 and 20. The plaintiff claimed that there were errors in the particulars contained in the forms. But no such errors as he alleged would prevent the documents from answering the description of the documents to which s. 42 (1) refers. (at p631)

14. In the other action brought by the plaintiff against the superintendent of the hospital, the question has arisen whether the detention of the plaintiff in the hospital continued to be lawful or became unlawful by reason of a failure to comply with the requirements of s. 42 and particularly those of sub-s. (4) thereof. If that question were relevant to the present action, it would be difficult to resolve it because the evidence in this action does not include the details of what took place after the plaintiff's admission to the hospital. But, in my opinion, this is of no importance. It is plain that the present defendant could not be affected by any decision that might be made as to the subsequent failure at the hospital by other persons to comply with the provisions of the Act. He is not liable, in my opinion, for the subsequent detention of the plaintiff, whether it was lawful or not. It cannot be said that any act of his was, in a relevant sense, a cause of the subsequent detention. This is, in my opinion, a stronger case for refusing to treat the subsequent detention as a consequence of the defendant's act for which he is liable than was the case of Harnett v. Bond (1925) AC 669 , to which I was referred. Notwithstanding later developments in the law concerning remoteness of damage and liability for the "direct consequences" of an act, I am of opinion that the reasons given in that case (1925) AC, at pp 682, 686 and 689 for the conclusion that the defendant Bond was not liable for what occurred after the plaintiff had been returned to the licensed house, where it became the responsibility of others to determine whether he should be detained or not, have not been invalidated by later decisions and are applicable, a fortiori, to the present case. (at p632)

15. In this case there was no contumelious disregard by the defendant of the plaintiff's rights. The conduct of the defendant was not insolent, vindictive or malicious. There was no lack of courtesy in his treatment of the plaintiff. (at p632)

16. The evidence did not show that the plaintiff suffered any pecuniary loss by reason of the defendant's acts. It is true that he had patients waiting for consultations with him and no doubt these people had to go away without seeing him on that day. But the inability of the plaintiff to continue with his practice was not something for which the defendant was responsible. At the most, the defendant's acts could have caused a postponement of the consultations which otherwise the defendant would have had on 25th July. But it was what occurred afterwards at the hospital that was the real cause of the disruption of the plaintiff's practice. (at p632)

17. The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. The damages are at large. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account. But in all the circumstances of this case I think that an award of a fairly small amount of damages is proper. The greater part of any distress of mind suffered by the plaintiff was the consequence of the subsequent events for which the defendant is not responsible. I assess the damages at $200. (at p632)

18. I order that judgment be entered for the plaintiff for $200 damages and for his costs of the action. I make the usual order as to the exhibits. (at p632)

19. Judgment for the plaintiff against the defendant Marshall for $200 damages and for his costs of the action. Usual order as to exhibits. (at p632)

20. Watson v. Cade (at p632)

21. The plaintiff appeared in person. (at p632)

22. H. Ball, for the defendant.

Cur. adv. vult. (at

p632)

August 4.
WALSH J. delivered the following written judgment: -
At the hearing of this action it was agreed by the parties that the evidence given at the trial of Watson v. Marshall should be treated, so far as it was relevant, as evidence in this action. The reasons for judgment in the former case, which I have published today, give an account of the circumstances in which the plaintiff was taken, on 25th July 1967, from his rooms in East Melbourne to the Royal Park Hospital, of which the defendant, Dr. Cade, was the superintendent. I wish to incorporate in these reasons all those parts of my reasons in the other case which are relevant to the present action. (at p633)

2. I find that when the writ was issued on 28th September 1967, the plaintiff was a resident of the State of New South Wales and the defendant was a resident of the State of Victoria and I hold, therefore, that this Court has jurisdiction to entertain the action. My reasons for this finding are stated in my judgment in the other action. (at p633)

3. This is an action for trespass to the person and false imprisonment. The plaintiff, having been admitted to the hospital on 25th July, remained there until 1st August. He claims that throughout that period he was detained there wrongfully by the defendant. The defendant, whilst not admitting that he detained or imprisoned the plaintiff, has pleaded justification. His statement of defence refers to sub-ss. (1), (2), (4) and (5) of s. 42 of the Mental Health Act 1959-1969 (Vict.) (the Act). It refers also to s. 64 (1) and to s. 103. (at p633)

4. In addition to the evidence given in the other action, I heard evidence in this action called on behalf of the defendant from the defendant himself, from Dr. Elizabeth Ross, who had admitted or authorized the admission to hospital of the plaintiff on 25th July 1967, from Dr. Chesler, a psychiatrist who worked at the hospital, and from Mr. Howell, who was then the secretary of the hospital. The plaintiff and his wife gave some additional evidence and he called Dr. Albiston, a psychiatrist. Some additional documentary evidence was admitted, including a report made in August 1967 to solicitors then acting for the plaintiff, by Mr. Conway, a psychologist. (at p633)

5. In the evidence there was some conflict upon the question whether the opinion formed by Dr. Cade, when he examined the plaintiff on 26th July 1967, that he was suffering from "highly systematized delusions of persecution" and from a condition called paranoia and similar opinions of Dr. Ross and Dr. Chesler were correct assessments of his condition. Since, upon the view that I take of the provisions of the Act as applied to the facts of this case, it is not necessary for me to resolve that conflict, I do not intend to examine closely the expert evidence of the witnesses who expressed opinions about the condition of the plaintiff at that time. But I make the following findings, which could have a bearing upon the legal consequences flowing from the formation by the defendant on 26th July of the opinion that the plaintiff ought to remain in the hospital for observation and required treatment and from the detention of the plaintiff in the hospital for some days thereafter. I find that the defendant (who was a highly qualified and very experienced psychiatrist) acted in good faith and honestly and that he believed genuinely that the plaintiff's condition was such that he ought to remain in the hospital. I find also, although it is doubtful whether this is relevant to the action as framed, which includes no claim based on negligence, that in forming his opinions upon the material then before him and without making further inquiries, the defendant did not fail to exercise reasonable care. (at p634)

6. I find that the admission of the plaintiff to the hospital was lawful. I find that the three documents to which s. 42 (1) refers were produced and that they were in accordance with the requirements of the Act and of the Regulations made under it. Any errors of fact contained in the particulars set out in the documents had no invalidating effect upon them or upon the admission of the plaintiff to the hospital. It is to be noticed that s. 42 (1) does not require any specified person to authorize an admission or to examine the person to whom the documents relate before admitting him. But, in fact, the plaintiff was examined by Dr. Ross (then Dr. Arnold), who was then a qualified medical practitioner with some experience in psychiatry, although she had not yet completed her specialist training in that field. I find, although once more the relevance of this finding is doubtful, that she formed the opinion honestly and in good faith that the plaintiff was suffering from a condition of paranoid psychosis. (at p634)

7. Although there was some uncertainty in the evidence as to what documents were included in "the case records" of the plaintiff, I find that the opinion of the defendant was endorsed on the request for admission and was entered in the plaintiff's case records, in accordance with s. 42 (5). I find that the secretary of the hospital performed the duties imposed on him by s. 60 (1) of the Act. Notwithstanding that on the report, exhibit 11, the date 14th August 1967 is typed (having been put there, I think, as a result of some error), I find that the superintendent fulfilled the requirements of the Act and of the Regulations concerning the making of a report to the Chief Medical Officer. Subject to one question which has yet to be considered, I am satisfied that the admission of the plaintiff into the hospital and his detention in it during the whole of the period for which he was detained were expressly authorized by the provisions of the Act (ss. 42 and 64). (at p635)

8. The question which remains for consideration is whether the defendant complied with the requirement of s. 42 (4) that every person admitted under s. 42 "shall without delay be examined by the superintendent". The plaintiff was admitted on 25th July, about the middle of the day. The defendant examined him on the morning of 26th July. It was not proved that it was not possible for the defendant to see the plaintiff on 25th July. The plaintiff said that he had asked that the superintendent should see him on that day but it was not proved that this request had been communicated to the defendant. The defendant knew on 25th July that the plaintiff had been brought to the hospital. The evidence shows that there was a regular practice that patients who were admitted on one day were seen by the superintendent on the following morning. According to Dr. Ross and Dr. Chesler this was the routine of the hospital. But in cases in which it was thought desirable to do so, the doctor attending to the admission of a patient would call upon the superintendent to consider the case. In the present case, Dr. Ross felt no such doubt as made her think it advisable to consult the superintendent and it appears that the defendant himself did not perceive, in anything which he knew of the matter on that day, any reason to depart from the usual practice of seeing new patients on the following morning. (at p635)

9. The hospital admitted about 3,500 patients per year, of whom about two-thirds were voluntary patients and the remaining onethird were "recommended" patients. On an average there were nine or ten admissions per day. On any day there might be an admission of several recommended patients and it appears from the register that on 25th July 1967 there were six of those patients. The superintendent had many duties. It would not be practicable for him to go immediately to examine every patient as soon as he or she was brought to the hospital. It would not be useful for him to go to see such a patient merely for the sake of putting in an appearance and without spending sufficient time with him or her to make a reliable assessment. (at p635)

10. In my opinion, the words "without delay" as used in s. 42 (4) have not a rigid meaning. They should not be read as requiring that no more time should elapse between admission and examination than is necessary, in a physical sense, for the superintendent to go to see the patient. What is required, in order to comply with the provision, must depent upon the circumstances. It is not possible to specify a period of time and to say that an examination within that period satisfies this provision and an examination outside it does not. In my opinion, it should not be held that an examination must necessarily be made on the day of admission. A person might be admitted so late in the day as to make impracticable an examination of him or her on that day. I do not think that this provision should be construed as imposing a more stringent obligation than that which is imposed by the proviso of s. 12 (1) of the Mental Health Act, 1958 (N.S.W.). I have come to the conclusion that it is proper to find, in the circumstances of this case, that the examination was made "without delay" within the meaning of s. 42 (4). Coupled with the conclusions which I have stated earlier that conclusion has the consequence that I find that the defendant has shown that the detention of which the plaintiff complains in this action was authorized by the Act and his action must fail. (at p636)

11. If I had found that the plaintiff was not examined "without delay", some interesting questions would have had to be answered. Although it is not necessary for me to decide these questions I propose to make some observations upon them. (at p636)

12. If I had held that the plaintiff had not been examined by the defendant "without delay", it would have been necessary to consider whether that failure to observe the requirements of s. 42 would have deprived the defendant of the benefit of the authority given by that section for the admission and detention of the plaintiff. There was evidence, which I accept, that if the defendant had examined the plaintiff on the day of his admission, the same opinion would have been formed and the same action taken as were formed and taken on the following day. It may be suggested therefore that there was in fact no causal relationship between the detention of the plaintiff and the fact that he was examined on the following day and not on the day of admission and that if a breach of the requirement of s. 42 (4) was committed, it had no practical consequence and could not affect the lawfulness of the detention of the plaintiff. I need not determine whether or not that is a correct view of the operation of s. 42. But I think it is proper to say that I am satisfied that in fact the plaintiff was not prejudiced as a result of not being examined by the superintendent on 25th July. (at p636)

13. It was submitted, also, that any right which the plaintiff could obtain in respect of a failure by the defendant to act in accordance with s. 42 (4) could only be a right to sue for breach of statutory duty, for which the plaintiff has not sued. Such a breach would not, according to the argument, affect the lawfulness of the admission of the plaintiff into the hospital. With that I agree. Then it was submitted that such a breach would not affect the lawfulness of any part of the detention of the plaintiff, the whole of which would still be authorized by s. 42 and by s. 64. I am disposed to disagree with that submission but need not express a concluded view upon it. (at p637)

14. Then it was argued that if a failure to examine "without delay" could make any part of the detention of the plaintiff unlawful, this could affect only the interval of time between the time at which, in the judgment of the Court, the examination should have been made and the time at which it was made in fact. Once it had been made, sub-s. (5) (b) would operate to authorize detention, for a period not exceeding twenty-one days. That subsection would operate in respect of the examination made by the defendant, even if this had taken place later than sub-s. (4) required. This argument is attractive. It would be an odd result that if an examination had been delayed the superintendent should then be without any justification for not discharging the patient at once, although of opinion that he ought to remain for further observation or that he required treatment. Again I need not express any concluded view on this question. (at p637)

15. It was submitted that, even if the admission or the detention of the plaintiff had not been shown to be authorized, the defendant was not responsible, under the maxim respondeat superior or otherwise, for anything done by Dr. Ross (then Dr. Arnold) or by other persons employed at the hospital, including the wardsmen who had physical control over the plaintiff; and it was submitted that it had not been proved that the defendant personally had confined the plaintiff or committed any wrong against him. With these submissions I do not agree. It is true that Dr. Ross and the other members of the staff of the hospital were not servants of the defendant. But if it had been held that what occurred was not authorized by the Act, I think that the defendant would have been responsible for the detention of the plaintiff, at least from the time when the defendant endorsed, on the request for the admission of the plaintiff, his opinion that the plaintiff should remain in the hospital. (at p637)

16. As I indicated at the hearing of the action, the evidence that it was the ordinary practice that patients were not examined until the day after their admission has caused me some concern. I do not question the honesty of the opinions given in evidence to the effect that this practice worked satisfactorily and that the risk was very small that it might cause a person to be detained overnight who ought not to be so detained. I am conscious that in the administration of a mental institution, an ordered programme for the carrying out of the duties of the superintendent and those of members of the staff is needed in the interests of practical efficiency. Nevertheless, I suggest that the Minister and the Mental Health Authority may think it proper to give consideration to the taking of steps to ensure, as far as it is possible to do so, that "recommended" patients are not detained overnight or for any considerable length of time, without having been examined by a qualified psychiatrist who has had some years of experience in that field. The responsible authorities may think fit to consider whether or not the requirement in s. 42 (4) that the superintendent (by definition this includes a deputy superintendent) must examine the patient "without delay" may create in some hospitals a practical difficulty which may be lessened without reducing the safeguards, provided by the Act, against unnecessary detention, by an amendment allowing the examination in accordance with s. 42 (4) to be made by some other psychiatrist of specified qualifications and experience. In any event, it may be thought desirable that s. 42 (4) should define more clearly the time within which the examining doctor is to conduct the examination rather than imposing in mandatory terms an obligation to do so "without delay". (at p638)

17. I wish to make it clear that in making the foregoing suggestions I am not to be taken as implying any reflection upon or criticism of the defendant or of Dr. Chesler or Dr. Ross. I do not suggest that the examination made by Dr. Ross was not carried out in a competent manner or that an assessment different from hers might have been made in this case by a senior psychiatrist. So far as the defendant is concerned, I am satisfied that he was fully conscious of the responsibilities resting upon those who have to decide whether or not a patient ought to remain in a mental institution and that he would not and did not make such decisions lightly or without thought of their consequences. I have been impelled to make some suggestions by the thought that, whilst it may be impossible for practical reasons for a superintendent or his deputy to attend promptly to all cases, it may be that an unnecessary detention of a person could occur in a case in which it would not occur if an experienced psychiatrist examined that person very shortly after his or her arrival at the hospital. Although this may be unlikely, any practical measure that could reduce the possibility of such an occurrence must be worthy of consideration. As already mentioned, s. 42 (1) does not require that anyone should make an examination after the arrival at the hospital and before the admission of a person who has been recommended for admission. The safeguards provided against a wrongful admission and detention consist of the requirement that the admission be recommended by a medical practitioner (who need not be a psychiatrist) and of the procedures set out in sub-ss. (4) and (5). It is possible that these safeguards could be improved without detracting from the effective operation of s. 42 for the important purposes it is designed to achieve. (at p639)

18. In the present case, the acts of which the plaintiff complains were authorized by the Act and his action must be dismissed. (at p639)

19. I direct that there be judgment in the action for the defendant and I order that the plaintiff pay the costs of the defendant. I make the usual order as to the exhibits. (at p639)

Orders

Judgment for the defendant Cade. Plaintiff to pay the defendant's costs. Usual order as to exhibits.