Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476
• Hearing dates: 24, 25 and 31 July 2013
• Decision date: 23 December 2013
• Before: Beazley P at [1]; Macfarlan JA at [4]; Garling J at [191]

Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Catchwords: TORTS - negligence - person detained as mentally ill person under Mental Health Act 1990 - discharged next day into care of friend to be driven home from Taree to Victoria - s 35(3) Mental Health Act 1990 required that a mentally ill person not be detained if no longer mentally ill or care of a less restrictive kind is available and appropriate - during the trip to Victoria the person had a psychotic episode during which he killed his friend - family of deceased claimed damages for mental harm due to shock of learning of death of the deceased - whether duty of care owed by Hospital to deceased, and thence to family - whether such a duty of care inconsistent with requirements of the Mental Health Act 1990 - whether such a duty of care would create indeterminate liability - Hunter Area Health Service v Presland 63 NSWLR 22 discussed - whether Hospital negligent in making discharge decision - whether relevant risk of harm was the person killing deceased or causing some lesser harm to him - s 5B Civil Liability Act 2002 - whether conduct of Hospital psychiatrist conformed with a widely accepted 'practice' for the purposes of s 5O Civil Liability Act - special statutory power under s 43A Civil Liability Act - whether there was an exercise or failure to exercise a power conferred by s 35(3) Mental Health Act - whether Hospital's negligence caused deceased's death - s 5D Civil Liability Act - whether "appropriate for the scope of the negligent person's liability to extend to the harm so caused"; PROFESSIONS AND TRADES - negligence - whether conduct of Hospital psychiatrist conformed with a widely accepted 'practice' for the purposes of s 5O Civil Liability Act
• Legislation Cited: Civil Liability Act 2002; Civil Liability Amendment (Personal Responsibility) Act 2002; Mental Health Act 1986 (Vic); Mental Health Act 1990 (repealed); Supreme Court Act 1970
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420; Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118; CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390; Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; 136 CLR 529; Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649; Chapman v Hearse [1961] HCA 46; 106 CLR 112Chappel v Hart [1998] HCA 55; 195 CLR 232; Cooper v Mulcahy [2013] NSWCA 160; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; Donoghue v Stevenson [1932] AC 562; Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540; Hughes v Lord Advocate [1963] AC 837; Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; Minister Administering Environmental Planning & Assessment Act 1979 (NSW) v San Sebastian Pty Ltd [1983] 2 NSWLR 268; Mizzi v The Queen [1960] HCA 77; 105 CLR 659; Modbury Triangle v Anzil [2000] HCA 61; 205 CLR 254; Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742; Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102; R v M'Naghten (1843) 8 ER 718; R v Porter [1933] HCA 1; 55 CLR 182; Roads & Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330; Rogers v Whitaker [1992] HCA 58; 175 CLR 479; Rosenberg v Percival [2001] HCA 18; 205 CLR 434; Seltsam Pty Ltd v McNeil [2006] NSWCA 158; Shoalhaven City Council v Pender [2013] NSWCA 210; Sidaway v Board of Governors of the Bethlehem Royal Hospital [1984] 1 QB 493; Smith v Leurs [1945] HCA 27; 70 CLR 256; Smith v Littlewoods Ltd [1982] 1 AC 241; Stapleton v R [1952] HCA 56; 86 CLR 358State of New South Wales v Godfrey [2004] NSWCA 113; Aust Torts Reports 81-741; Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215; Sullivan v Moody [2001] HCA 59; 207 CLR 562; Tame v New South Wales [2002] HCA 35; 211 CLR 317; Ultramares Corporation v Touche (1931) 255 NY 170; Wallace v Kam [2012] NSWCA 82; Wallace v Kam [2013] HCA 19; 87 ALJR 648; Wicks v State Rail Authority of NSW [2010] HCA 22; 241 CLR 60; Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515
• Category: Principal judgment
• Parties: Merryn Elizabeth McKenna (Appellant in 2012/93586); Sheila Mary Simon (First Appellant in 2012/93590); Wendy Rose (Second Appellant in 2012/93590); Hunter & New England Local Health District (Respondent in 2012/93586 and 2012/93590)
• Representation: Counsel: B Toomey QC/G R Graham (Appellants); R Cheney SC/J Lee (Respondent); Solicitors: T D Kelly & Co (Appellants); Tress Cox (Respondent)
• File Number(s): CA 2012/93586; 2012/93590

Decision under appeal

• Jurisdiction: 9101
• Citation: Simon & Anor v Hunter & New England Local Health District; McKenna v Hunter & New England Local Health District [2012] NSWDC 19
• Date of Decision: 2012-03-02 00:00:00
• Before: Elkaim DCJ
• File Number(s): 2006/267185; 2006/267187

HEADNOTE

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

4 MACFARLAN JA:

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

SUMMARY OF CASE AND CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RELEVANT STATUTORY PROVISIONS

11 The relevant statutory provisions are as follows:

The Civil Liability Act 2002

"Part 1A Negligence

Division 1 Preliminary

5 Definitions

In this Part:

harm means harm of any kind, including the following:

(a) personal injury or death,

(b) damage to property,

(c) economic loss.

...

Division 2 Duty of care

5B General principles

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

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

(b) the risk was not insignificant, and

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

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

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

(b) the likely seriousness of the harm,

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

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

...

Division 3 Causation

5D General principles

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

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

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

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

...

Division 6 Professional negligence

5O Standard of care for professionals

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

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

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

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

...

Part 5 Liability of public and other authorities

41 Definitions

In this Part:

exercise a function includes perform a duty.

function includes a power, authority or duty.

...

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

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

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

...

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

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

(2) A special statutory power is a power:

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

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

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

Mental Health Act 1990 (now repealed)

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

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

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

...

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

(a) persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, and

(b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.

...

9 Mentally ill persons

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

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

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

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

10 Mentally disordered persons

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

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

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

...

21 Detention on certificate of medical practitioner or accredited person

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

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

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

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

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

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

...

29 Examination on detention at hospital

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

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

...

32 Further examination at hospital

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

...

33 Consequence of further examination

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

...

35 Limited detention of mentally disordered persons

...

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

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

Schedule 1 Dictionary of terms used in the Act

medical superintendent, in relation to:

...

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

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

THE FACTUAL CIRCUMSTANCES

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

Mr Pettigrove's detention at the Taree hospital

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

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

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

"Concern harm to self/others".

"? Psychotic Depression".

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

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

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

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

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

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

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

"Bizarre Behaviour

Inappropriate eye movement plus verbal activity

Suicidal ideation

At times not responsive

flat affect".

"Concern harm to self/others".

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

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

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

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

"No medication for at least seven months.

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

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

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

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

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

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

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

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

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

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

"(i) Admit overnight.

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

(iii) Discharge tomorrow am.

(iv) No medication on discharge".

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

The Echuca medical records

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

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

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

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

31 The history of his illness was described as follows:

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

32 Observations made on his examination included:

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

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

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

The night of 20/21 July 2004

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

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

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

Mr Pettigrove's discharge

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

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

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

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

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

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

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

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

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

...

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

DR COOMBES' ORAL EVIDENCE

41 Dr Coombes' evidence included the following:

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

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

A. That's correct

...

A. That was right.

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

A. I can't explain that.

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

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

...

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

A. As you put it.

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

A. Right.

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

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

...

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

A. Yes.

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

A. Had they been present, yes.

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

A. No.

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

A. Yes. (Transcript pp121 - 122)

...

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

A. That's correct.

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

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

...

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

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

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

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

THE PLAINTIFFS' PARTICULARS OF NEGLIGENCE

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

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

...

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

...

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

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

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

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

...

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

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

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

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

THE EXPERT PSYCHIATRIC EVIDENCE

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

Dr Giuffrida's evidence

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

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

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

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

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

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

Dr Kingswell's evidence

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

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

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

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

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

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

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

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

...

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

Dr Phillips' evidence

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

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

...

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

...

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

Dr Campbell's evidence

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

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

...

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

...

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

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

...

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

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

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

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

...

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

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

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

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

...

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

Dr Telfer's evidence

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

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

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

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

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

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

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

...

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

Dr Parmegiani's evidence

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

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

...

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

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

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

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

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

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

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

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

...

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

The experts' joint report

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

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

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

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

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

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

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

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

2. The acuity of the illness itself;

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

4. The lack of an acute treatment plan;

5. The lack of an ongoing treatment plan;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Homicide is extremely rare;

2. Predictors are notoriously fallible;

3. Mr Pettigrove had no history of violence;

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

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

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

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

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

2. He was psychotic and had thoughts of suicide;

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

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

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

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

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

The experts' concurrent evidence

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

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

...

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

...

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

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

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

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

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

...

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

THE JUDGMENT AT FIRST INSTANCE

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

73 His Honour noted that:

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

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

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

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

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

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

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

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

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

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

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

Section 43 and 43A of the Civil Liability Act

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

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

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

Section 5B of the Civil Liability Act

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

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

81 His Honour then noted that "there was no history of violence towards others in the whole of Mr Pettigrove's 20 year history of schizophrenia" (Judgment [80]) and that evidence was given by Dr Parmegiani that "there is no evidence that the car trip played a role either in unsettling [Mr Pettigrove] or causing an accident in somehow killing Mr Rose" (Judgment [83]). His Honour continued:

"84 Thus if Mr Pettigrove had not been released the possibility must exist that the decision to attack or the hallucination may nevertheless have occurred if Mr Rose had visited him later in the day at the hospital. I think the importance of Dr Parmegiani's observation, in relation to foreseeability and the significance of the risk, is that the plaintiffs' case revolves around the act of negligence of Dr Coombes in placing Mr Pettigrove into Mr Rose's care for the car trip. True it is that had the trigger for Mr Pettigrove's attack occurred during visiting hours in the hospital there would have been assistance more readily available but that is a possibility which ignores any evidence about the particular circumstances of what might have occurred. For example, an attack in the ward would probably have been quickly dealt with whereas an assault walking in the gardens may not have enabled a rescue.

85 Despite the series of failings that I have outlined above on the part of Dr Coombes and the nursing staff (not showing the notes to Dr Coombes) I have, with regret, reached the conclusion that, in terms of Section 5B, the risk was not foreseeable and was not so significant that a reasonable person would have taken precautions against it. In my view it was not probable that harm would occur if care was not taken."

82 As to the alleged failure to properly medicate Mr Pettigrove, his Honour referred to the evidence of Dr Phillips that driving through the night, with the inevitable overnight stop, "would have added to the risk of an exacerbation of psychotic symptoms whether or not he had the additional medication" and continued:

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

89 As observed by Garling J, the [Civil Liability Act] is intended to limit and not expand liability. Thus the burden is greater than existed under the common law.

90 I hope it is obvious from this judgment that I have a great deal of sympathy for the plaintiffs and that I have not exempted Dr Coombes from criticism. What I cannot do is to reach a conclusion that when Dr Coombes decided to release Mr Pettigrove into Mr Rose's care that there was a foreseeable risk of the fate that later befell Mr Rose. I think my conclusion, in medical terms, is consistent with the view of the experts, although with the exception of Drs Giuffrida and Kingswell.

91 I do not think Mr Pettigrove should have been discharged after only one restless night in hospital and without a proper medication plan having been implemented. That, however, is a very different question to whether the consequences of his discharge made the discharge negligent in terms of Section 5B."

Section 5O of the Civil Liability Act

83 In light of the views of the experts, particularly Dr Phillips who, whilst generally favouring the plaintiffs' cases, expressed opinions which favoured the application of s 5O (see [11] above), his Honour concluded that s 5O was applicable and constituted a further reason why the plaintiffs must fail (Judgment [95] - [97]).

Causation

84 For the following reasons, his Honour found that the plaintiffs must, in any event, fail because they had not proved that Mr Rose's death was causally related to the alleged acts of negligence:

"100 The plaintiffs' case on causation then is that but for Mr Pettigrove and Mr Rose being on the road trip the killing of Mr Rose would not have taken place. This is perhaps correct in a very broad sense but I think it is outside the scope of the requirement that the negligence was 'a necessary condition of the occurrence of the harm ...' . I noted above the observations of Dr Parmegiani doubting the connection between the road trip and the killing. I think Dr Parmegiani is correct. He was not attempting to make a statement of the law but taken at a common sense level there is no conditional connection between Mr Pettigrove having his hallucination or compulsion to kill Mr Rose and the road journey. There is no evidence to suggest that whatever motivated [Mr] Pettigrove was triggered by anything associated with being in the car or on a long trip or any other element of the journey. The killing happened to occur on the journey but it was not dependent upon it.

...

102 I think the plaintiffs' case on causation arising from Dr Coombes not medicating Mr Pettigrove properly is stronger but still not sufficient to establish the link required by Section 5D. The hallucinations may have been less likely to occur but that is different to a conclusion that the lack of medication caused Mr Pettigrove to have the hallucinations at all, and secondly, on the journey. I do not think the evidence allows for such a conclusion.

103 Drs Phillips, Kingswell and Giuffrida thought Mr Pettigrove should not have been discharged (Joint Report, Question 6) for various reasons but they do not say the failure to medicate was the cause, in medical terms, of Mr Pettigrove having hallucinations near Dubbo. The onus is on the plaintiffs to show that the lack of medication was 'a necessary condition of the occurrence of the harm. '"

RESOLUTION OF THE APPEAL

DUTY OF CARE

85 The plaintiffs asserted on appeal that the existence of a relevant duty of care was not in issue at first instance. This reflects the approach of the primary judge who assumed, without discussing, the existence of such a duty, stating that the "real dispute between the parties" concerned the alleged breach of duty (Judgment [7]). However the Health Service put the existence of a duty of care in issue on its pleadings, included the issue in its Statement of Issues provided to the primary judge and addressed it in its final submissions. By a Notice of Contention filed on appeal, it continues to deny the existence of a duty of care, relying particularly on the decision of this Court in Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22. It did not however argue on appeal that even if the Hospital owed a relevant duty of care to Mr Rose, it nevertheless did not owe such a duty to the plaintiffs, who were members of his family. It is thus sufficient to consider whether a duty was owed to Mr Rose.

86 In their Statements of Claim, the plaintiffs simply alleged that the Hospital "owed a duty of care to the late Mr Rose", without specifying the nature of that duty. Although never clearly defined, it appears from the plaintiffs' submissions at first instance and on appeal concerning breach that the duty for which they contend was one imposed on the Hospital to take reasonable care to prevent Mr Pettigrove causing physical harm to Mr Rose. Primarily, they allege that the Hospital breached this duty by failing on 21 July 2004 to continue to detain Mr Pettigrove at the Hospital.

87 In Presland, a psychiatric patient killed his brother's fiancée six hours after being discharged from a psychiatric hospital. The patient was acquitted of murder on the ground of mental illness and detained for a period in strict custody as a forensic patient. He sued the psychiatrist who authorised his discharge, and the hospital, claiming that they had acted negligently in failing to detain him and claiming damages to compensate him for the mental anguish he suffered as a result of spending time in prison on remand and his later incarceration as a forensic patient. By majority (Sheller and Santow JJA; Spigelman CJ dissenting), the Court found that the defendants did not owe a relevant duty of care to the patient, whose claim therefore failed.

88 Sheller JA, in the majority, said that once the hospital's control was lost by the refusal to detain, it was "difficult to see how a duty to control extended for some indeterminate time while the plaintiff was at large" (at [299]). His Honour could not see how, if a duty were found to exist, responsibility could be limited, in terms of time or otherwise, in some acceptable fashion. He concluded by saying:

"In this case, identification of the nature of the harm suffered by the plaintiff points as a matter of commonsense against the existence of a legal responsibility in the defendants for that harm" (at [300]).

89 Santow JA, also in the majority, agreed with Sheller JA "that the [defendants'] duty of care did not extend in scope to encompass the claims of the [plaintiff]" (at [324]). His Honour however stated that he agreed "in the main with Spigelman CJ's powerfully reasoned exposition of the principles for determining the scope of liability of statutory authorities for negligence" ([325]). His Honour added that "there is no statutory indication that the psychiatrist's duty of care extends beyond the person's own protection from serious harm or, were action brought by an injured third party, serious physical harm to that party at the hands of the person not detained: compare s 9(1) and s 10(1)" (at [367]) and:

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

...

374 ... I again emphasise that I express no view as to whether a third party injured or killed by the person not compulsorily detained can recover. What I do say is that the factor of control is capable of operating differently in the case of a specific third party plaintiff than for a plaintiff in the position of the respondent ... ".

90 In conclusion his Honour emphasised that the defendants did not owe any duty of care in making the decision "whether or not to detain the respondent so as to permit any recovery for non-physical injury, essentially based on loss of the respondent's liberty" and that:

"... to impose such an extended duty for loss not derived from serious physical injury would be inappropriate by reason of the purpose and scope of the statutory scheme, distorting the impartiality of the exercise of discretion under the Act. It would risk distorting its focus by promoting a bias towards detention, when that should be an impartial decision, taken only when fully justified, if not a last resort" (at [377]).

91 Central to Spigelman CJ's exposition of principle was his application of the following observations of Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540:

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

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

...

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

(See also the non-exhaustive list of salient features relevant to the identification of duties of care given by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103]).

92 In considering the purpose to be served by the exercise of the power under the Mental Health Act to detain mentally ill and mentally disordered persons, Spigelman CJ attached particular significance to the definitions of such persons in ss 9 and 10 (see [11] above) which refer to the protection of the person and others from "serious physical harm". His Honour was of the view that this was probably not an apt description of the harm allegedly suffered by the plaintiff in that case. Pertinent to the present case, his Honour went on to say:

"29 If this were a case involving self-inflicted or accidental harm to the Respondent that arose from his mental illness or disorder, or if this were proceedings by a third party who had suffered harm at the hands of a mentally ill or disordered person, then it would fall within the intended sphere of protection to which the statutory provisions expressly relate. The loss or injury suffered in the present case is not of that character. For this reason, one matter which may otherwise be entitled to considerable weight in the determination of whether a duty of care should be imposed with respect to the statutory relationship does not have such weight."

93 His Honour then found that the defendants' ability to control the patient and the patient's vulnerability, in the sense of an inability to protect himself from the consequences of negligent conduct by the defendants, favoured the imposition of a relevant duty of care. His Honour did not consider that there was any lack of coherence between a common law duty and statutory powers and duties which weighed in any significant fashion against the imposition of the alleged duty.

94 Contrary to the Health Service's submissions, the decision in Presland in my view provides support for the existence of the duty alleged by the plaintiffs in the present case.

95 It is apparent from the passages quoted above, that the majority judgments treated as critical the nature of the harm suffered by the plaintiff which, unlike that in the present case, could not be regarded as serious physical harm in the sense referred to in ss 9 and 10 of the now repealed Mental Health Act. Santow JA specifically contemplated, without deciding, that his decision might well have been different in a case such as the present. Spigelman CJ went further by stating that a case such as the present, where serious harm has been inflicted on a third party, would fall within the "intended sphere of protection to which the statutory provisions expressly relate" ([29] quoted in [92] above). On his Honour's analysis, the factors of control and vulnerability would in the present case, as they did in Presland, weigh in favour of the imposition of the asserted duty and the factor of coherence would not point against it to any significant degree.

96 An important aspect of Sheller JA's reasoning was his concern that limits that could not sensibly be imposed on a defendant's responsibility if a duty of the type alleged in that case were found to exist (see [299] referred to in [88] above). This is the concern of indeterminancy to which Cardozo J referred to in Ultramares Corporation v Touche (1931) 255 NY 170 at 179, that is, a fear of exposure of defendants to potential liability "in an indeterminate amount for an indeterminate time to an indeterminate class" (see for example Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at [46], [64] and [225]).

97 This concern is not in my view applicable in the present case as the plaintiffs' claim arises out of harm being suffered by a specific individual, Mr Rose, with whom the Hospital had direct dealings and into whose custody the Hospital released Mr Pettigrove. As the primary judge found:

"76...The third party here is one known to the defendant and being specifically used to perform a service on behalf of the defendant, namely to deliver Mr Pettigrove to Victoria to receive ongoing care. The situation is more akin, on the plaintiffs' reasoning, to a person being asked to transport a dangerous prisoner without precautions being taken to ensure that the prisoner could not harm the person undertaking the carriage."

98 The question in the present case is whether the Hospital owed a relevant duty of care to Mr Rose, not whether it owed one to a stranger who might have had violence inflicted upon him or her by Mr Pettigrove (see Seltsam Pty Ltd v McNeil [2006] NSWCA 158 at [4] - [5]. Even in the field of pure economic loss, where concerns of indeterminancy loom large, foresight of loss to a specific individual will often lead to the imposition of a duty of care (see Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; 136 CLR 529).

99 Undoubtedly, Dr Coombes' meetings with Mr Rose were of critical significance to Dr Coombes' decision to discharge Mr Pettigrove. He thought that Mr Rose and Mr Pettigrove "appeared to be very good mates" and that Mr Rose "showed constant concern for [Mr Pettigrove] throughout his time at Manning Base Hospital" (Statement [20]). His view was that Mr Pettigrove "was fit for discharge in the company of his friend" (ibid [15]), knowing that the two were to be alone together for a long period whilst driving to Victoria. Dr Coombes knew that it was intended that Mr Pettigrove share the driving. He said that he would not have released Mr Pettigrove otherwise than into the company of Mr Rose.

100 On the other hand, Mr Rose's offer, as recorded in the nursing notes, was to drive Mr Pettigrove to Victoria when he was well enough to return there. The inference is readily drawn that the late Mr Rose relied on the Hospital, before it released Mr Pettigrove, forming the view that he was fit to travel with him to Victoria by car.

101 These facts raise a strong case for the existence of a duty on the Hospital to take reasonable care to prevent Mr Pettigrove inflicting harm on Mr Rose and serve to distinguish the present case from State of New South Wales v Godfrey [2004] NSWCA 113; Aust Torts Reports 81-741 where a prisoner, some months after escaping from Bathurst Gaol, pointed a shotgun at a woman who suffered premature labour as a consequence. In that case, the Department of Corrective Services was held not to have owed to the injured plaintiff any duty of care to prevent the prisoner's escape. Of critical significance was the indeterminate nature of the liabilities that might arise if such a duty were found to exist in such a case where there was, unlike the present case, no relationship between the defendant and the person who suffered harm.

102 The decision in Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 is also distinguishable. In that case police officers who observed and spoke to a man who was contemplating suicide were held not to have owed a duty to exercise a power under the Mental Health Act 1986 (Vic) to apprehend him. The plurality described the factor of control as of critical significance in many cases concerning the exercise of statutory power and held that:

"[T]he police officers did not control the source of the risk to Mr Veenstra as would have been the case if he had been a prisoner in custody" (at [116]; see also [114]).

103 In the present case, Mr Pettigrove was in detention at the Hospital which thus had control over him and controlled the source of the risk to Mr Rose.

104 My conclusion accords with the approach of the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 in which it was held that the owner of a licensed restaurant and function centre had "a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons" (at [26]). As in that case, the duty contended for here is consistent with the statute governing the operations of the defendant. The objects of the Mental Health Act, the relevant statute in the present case, included to provide "for the care treatment and control" of mentally ill or mentally disordered persons (s 4(1); emphasis added). The reference to "control" plainly included control designed to prevent such persons harming others. This was emphasised by ss 9 and 10 (see [11] above) which included as elements of the definitions of mentally ill and mentally disordered persons the existence of grounds for belief that care, treatment or control of the persons was necessary for the protection of themselves or others from serious harm.

105 Furthermore I do not accept the Health Service's argument that imposition of a relevant duty of care "would distort the impartiality of the exercise of discretion under the mental health legislation, by introducing a detrimentally defensive frame of mind and by promoting a bias towards detention". In my view, as stated by Spigelman CJ in Presland at [37], "the Court ought to be slow to conclude that a medical practitioner, acting true to his or her profession, would permit the process of formulating a professional opinion to be distorted by the prospect of civil liability". Contrary to the Health Service's submission, the decision of the majority in Presland does not indicate otherwise.

106 Santow JA, in the majority, made it clear that he was not expressing a view that any "distortive effect" on decision making of a common law duty of care would be of significance in determining a case concerned with serious physical injuries suffered by a third party at the hands of a mentally ill person who had been negligently discharged from hospital ([369]). The other member of the majority, Sheller JA, did not suggest the contrary.

107 In summary, the following factors in my view indicate the existence of a duty of care as alleged by the plaintiffs:

• the Hospital controlled the source of the foreseeable risk of harm to Mr Rose;
• there were face to face dealings between Mr Rose and Hospital staff;
• there was an implicit assumption by the Hospital of responsibility to Mr Rose and implicit reliance by Mr Rose on the Hospital's judgment concerning Mr Pettigrove's fitness to make the road trip;
• Mr Rose was vulnerable in the sense that his safety was dependent upon a careful exercise of judgment by the Hospital;
• there is in the present case no reason for concern about indeterminancy of liability;
• imposition of a duty of care is consistent with the terms and objects of the statute that governed the mental health operations of the Hospital.

108 These findings require a conclusion that the Hospital owed Mr Rose a duty to take reasonable care to prevent Mr Pettigrove causing physical harm to Mr Rose.

BREACH OF DUTY

The primary judge's approach

109 Although under the heading "Duty of Care", s 5B of the Civil Liability Act is concerned not with the existence of a duty of care, but with whether there has been a breach of a duty of care. There were a number of difficulties with the primary judge's application of s 5B and consequent finding that the Hospital did not breach any duty of care it owed to Mr Rose.

110 First, his Honour appeared to regard the relevant risk as the risk of Mr Pettigrove intentionally killing Mr Rose. This is evident from his Honour's references in this context to the "risk of Mr Pettigrove behaving as he did" and to the "risk of the fate that later befell Mr Rose" (Judgment [88] and [90] quoted in [82] above). However, the risk to be assessed was in fact the risk of any harm to Mr Rose (not simply his death) and the harm in my view included harm that Mr Rose might suffer as a result of Mr Pettigrove attempting to harm himself.

111 As to the former point, s 5B is concerned with "a risk of harm" to the plaintiff and harm is defined in s 5 to mean "harm of any kind". This reflects the position at common law (see Minister Administering Environmental Planning & Assessment Act 1979 (NSW) v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 296; decision affirmed on appeal at [1986] HCA 68; 162 CLR 340). Whilst the response, if any, of a reasonable person to such a risk is an entirely different matter, the correct deduction from the expert evidence was that the experts considered that there was a foreseeable risk of at least some harm to Mr Rose. The primary judge's conclusion that there was no foreseeable risk (Judgment [85] quoted in [81] above) appears to have been based upon his view that the risk to be assessed was one of homicide.

112 The second point referred to in [110] above is whether the risk to be assessed is confined to one of an intentional killing by Mr Pettigrove of Mr Rose or whether it extends to "collateral" harm suffered by Mr Rose in the course of Mr Pettigrove attempting to inflict harm on himself.

113 The issue to which s 5B gave rise in the present case was whether there was a not insignificant risk of Mr Rose being harmed as a result of Mr Pettigrove's conduct on the drive to Victoria. A direct assault on Mr Rose was one way of this occurring. However it was quite possible that attempts by Mr Pettigrove to harm himself might result in harm to Mr Rose. The two men were to make a long road trip to Victoria. This would inevitably involve night driving, or an overnight stop, and Dr Coombes knew that Mr Pettigrove was to share the driving. Action taken by Mr Pettigrove to harm himself, for example by use of his car, might well cause collateral harm to Mr Rose. Travelling as a passenger in a car driven by a suicidal driver was hardly likely to be risk free.

114 This point is emphasised by the reference in the Echuca medical records, which were read by Dr Coombes, to Mr Pettigrove on a previous occasion "trying to jump in front of passing trucks" and "lying face down on the road". The records also referred to him alleging that "people [were trying] to get to him" and that a "Robot was contacting him". Further, they said that he was likely to have had auditory hallucinations, possibly of a "command nature" (see [31] and [32] above). An observation by Dr Giuffrida that there is a significant correlation between being at risk of harming oneself and harming others is not surprising.

115 As observed by Gummow J in Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [64] in relation to the common law position, it is unnecessary for a plaintiff to establish that the "precise and particular character of the injury or the precise sequence of events leading to the injury" was foreseeable. The example given by Gummow J, by reference to Hughes v Lord Advocate [1963] AC 837, of the foreseeability of injury by fire being sufficient, even though an explosion that caused the fire was not, provides an analogy to the present case where injury to Mr Rose resulting from an attempted suicide by Mr Pettigrove was in my view foreseeable, even if serious injury from a direct attack by Mr Pettigrove on Mr Rose may, on one view, not have been. The position under the Civil Liability Act is no different to that under the common law (Shoalhaven City Council v Pender [2013] NSWCA 210 at [62]).

116 The primary judge's conclusions on breach of duty appear to have been largely based on the answer given to Question 7 in the experts' Joint Report, about which his Honour stated "Drs Kingswell, Parmegiani, Campbell and Telfer all classified the risk as minor or fanciful" (Judgment [79] quoted in [80] above). In that answer those doctors classified the risk of Mr Pettigrove committing homicide as "fanciful" and referred to the risk of him inflicting serious harm on others as "not a significant risk". They described the risk of him inflicting minor harm on others as "relatively high" (see [63] above).

117 A number of points need to be made about that answer.

118 First, those doctors' classification of the risk of minor harm to others as "relatively high", was enough on its own to require consideration of whether a reasonable person in the Hospital's position would have taken any precautions to avert the risk.

119 Secondly, the doctors' reports and evidence indicated that these conclusions on the foreseeability of risk were based upon the assumption that the only risk that was relevant was of Mr Rose being seriously harmed (or killed) by intentional action of Mr Pettigrove directed at Mr Rose. What these, and the other, expert doctors said elsewhere in their evidence about the foreseeable risk of Mr Pettigrove attempting to harm himself whilst in the company of Mr Rose, and the means by which he might do this, therefore needed to be considered by the primary judge.

120 This was particularly the case in relation to the evidence of Dr Kingswell whose joinder in the answer to Question 7 quoted above in [116] was regarded by the primary judge as of particular significance because he was one of the experts called by the plaintiffs and was critical of the decision to discharge Mr Pettigrove from the Hospital (Judgment [79] quoted in [80] above).

121 In his report of 13 July 2006 Dr Kingswell, for reasons he stated, rejected the proposition that there was "no apparent risk to safety of self or others" and said that there was "an obvious risk of self neglect and self harm by misadventure or suicide attempt" (see [46] above). Furthermore, during the concurrent evidence session that took place after the date of the Joint Report, Dr Kingswell said:

"Perhaps not homicide but a bad outcome was predictable. Mr Pettigrove had a known history of doing odd things when he was unwell - neglecting himself, trying to jump in front of trains and other dangerous behaviours - so misadventure was a clear outcome and it should have been a known one" (see [71] above).

122 This illustrates a more general difficulty with the primary judge's approach to the expert evidence.

123 This was not a case in which the experts' conclusions were substantially the same, such that an analysis of the reasoning leading to their conclusions was unnecessary. Rather, there was a sharp divide on the issue of the foreseeable risk and the reasonableness of Dr Coombes' decision to discharge Mr Pettigrove. This required the primary judge to focus on the detail of the experts' evidence and to explain why he preferred particular views over others (Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 at [62]; Cooper v Mulcahy [2013] NSWCA 160 at [110]). It was not sufficient for the primary judge, as he did, simply to accept, without analysis of the competing views, the ultimate conclusions on the issue of risk expressed in the Joint Report by one group of experts.

124 There appears to have been a further error in his Honour's application of s 5B. Section 5B(1) requires determination of whether the relevant risk was foreseeable, whether it was "not insignificant" and what, if any, precautions a reasonable person would have taken in response to the risk. A finding of negligence in conformity with that subsection does not, as his Honour appeared to consider, require a conclusion that it was foreseeable that harm to the plaintiff would probably occur if the defendant did not take care (Judgment [85] and [88] quoted in [81] and [82] above). It may be that his Honour misunderstood the effect of s 5B(2) which states that in determining what, if any, precautions a reasonable person would have taken, consideration must be given to "the probability that the harm would occur if care were not taken". This subsection simply directs attention to the degree of likelihood that the harm would occur. A finding of negligence does not require a conclusion that it was foreseeable that harm would more likely than not occur. The probability of harm occurring might be quite low but the seriousness of the harm that would be suffered if it did eventuate might be such that a reasonable person would have taken precautions to reduce or eliminate the risk.

125 By reason of these errors in his Honour's application of s 5B, it is necessary to examine afresh the evidence concerning breach of duty in order to reach appropriate conclusions. This Court is able to undertake that task as there is no issue of credit involved that needs to be resolved.

126 I note before doing so that the standard of care relevant to consideration of Dr Coombes' conduct is "the ordinary skill of a doctor practising in the relevant field" (Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 484; see also 487), that is in psychiatry. Whilst the expert evidence of the various psychiatric experts who gave evidence in this case is of assistance in determining whether there was a breach of duty, ultimately the issue is a matter for the Court to resolve (ibid at 487).

127 It is convenient to consider first the evidence of Dr Parmegiani whose views were perhaps the strongest in favour of the Health Service's case.

Dr Parmegiani's evidence

128 Central to the views of Dr Parmegiani expressed in his reports of 19 December 2007 and 6 March 2008 was the proposition that Mr Pettigrove's psychiatric symptoms "had improved significantly" or had "settled". It is not clear however whether Dr Parmegiani was referring to the time at which Dr Coombes made the decision to discharge Mr Pettigrove or to the time of his discharge the following morning.

129 The former point of time appears to have been immediately after the meeting with Mr Pettigrove, Mr Rose and Mr Gallagher that commenced about 4.00 pm on 20 July 2004. The decision was recorded in the s 33 advice given by Dr Coombes (see [22] above). That same advice however referred to Mr Pettigrove looking "perplexed" and to there being "insufficient speech to reveal delusional material". As well, referring to the slow-release depot injections that Mr Pettigrove had been prescribed in Victoria, he stated that Mr Pettigrove had had no medication "for at least seven months".

130 Furthermore, the effect of Dr Coombes' examination under s 32 and advice under s 33 was to support the certificate of the same day of the Medical Superintendent, Dr Wu, that Mr Pettigrove was "a mentally ill person" whose compulsory detention was justified. Mr Pettigrove could only have been so classified if these doctors held the view that Mr Pettigrove's detention was necessary for his own or other persons' protection from serious harm (see s 9 of the Mental Health Act quoted in [11] above). This was explicitly stated in Dr Wu's certificate and was necessarily implicit in Dr Coombes' s 33 advice.

131 Given these circumstances, Dr Coombes could not in my view have reasonably considered that Mr Pettigrove was fit for discharge on the afternoon of 20 July 2004. At most, the view may have been open that he would be likely to be fit for discharge the following morning but I do not see how Dr Coombes could reasonably have decided that Mr Pettigrove should be released the following morning without scheduling another examination at that time.

132 Dr Parmegiani considered it important that Dr Coombes had assessed Mr Pettigrove "on repeated occasions, over a short period" and on these occasions had had "no reason to believe that Mr Pettigrove was a danger to himself or others" (see [52] above). This clearly involved a misconception because immediately after Dr Coombes' principal meeting with Mr Pettigrove, from 4pm on 20 July 2004, Dr Coombes had certified that Mr Pettigrove was mentally ill, involving the proposition that his detention was necessary for his own or other persons' protection from serious harm.

133 Dr Coombes' contacts with Mr Pettigrove the next morning occurred by chance as the previous afternoon it had been arranged that Mr Pettigrove would depart with Mr Rose early in the morning, before Dr Coombes' arrival at the Hospital. However Mr Rose was late in arriving, giving Dr Coombes the opportunity to observe Mr Pettigrove again. Dr Coombes thought that he appeared settled. Mr Pettigrove told Dr Coombes that he had not had any hallucinations or distressing thoughts during the night but this appears to have been inconsistent with the nursing notes relating to Mr Pettigrove's condition overnight (see [35] above). These refer to Mr Pettigrove being awake on all rounds, pacing in his room and talking loudly to himself. Dr Coombes did not see these notes but said in evidence that, if he had, they would not have made any difference to his views. Little, if any, weight can be attached to this assertion in light of the primary judge's adverse comments about Dr Coombes' evidence (see [72] and [73] above).

134 Overall, it is difficult to accept the proposition that by the morning of 21 July 2004 Mr Pettigrove's condition had changed significantly compared to that observed the previous day. Further, it is difficult to accept that the observations of Mr Pettigrove on the morning of 21 July 2004 formed a basis for confidence that the symptoms for which he had been admitted to hospital had disappeared, at least for the short term. Commonsense indicates that symptoms such as those with which Mr Pettigrove presented are liable to fluctuate and that the occurrence of a settled period of hours is no guarantee of recovery from a psychotic episode. Dr Parmegiani himself acknowledged that symptoms fluctuate over time (see [52] above).

135 A further aspect of Dr Parmegiani's views was that "[m]edication administered in hospital should have controlled Mr Pettigrove's symptoms until his return to Victoria", yet this was not a view shared by Dr Campbell, another of the Health Service's experts (see [140] below).

Dr Telfer's views

136 Dr Telfer took the view that there was "no reasonably foreseeable risk of an assault on others" but his view that there was "a risk of the return of suicidal ideas" provided some assistance to the plaintiffs' cases.

Dr Campbell's views

137 Dr Campbell, the third of the Health Service's experts, also drew a distinction between the risk of Mr Pettigrove harming himself and the risk of him committing violent acts on others. The reasoning in his report of 30 March 2007 shows that Dr Campbell clearly contemplated that there was a significant risk of Mr Pettigrove harming himself (see particularly the sixth to eighth paragraphs quoted in [48] above). As I have indicated, it seems to me that, bearing in mind the circumstances in which and purpose for which Mr Pettigrove was released into the custody of Mr Rose, a risk of Mr Pettigrove harming himself carried with it a risk of collateral harm to Mr Rose.

138 Dr Campbell referred to Mr Pettigrove being "calm and lucid and not presenting a danger to anyone" but stated that he had "not been observed for sufficient time after his acute phase settled for a clinician to be assured he was indeed safe". This view accords with commonsense and contradicts Dr Parmegiani's view that considerable significance should be attached to Mr Pettigrove's settled presentation on the morning of 21 July 2004. Support for the plaintiffs' cases is also to be found in Dr Campbell's statement that Mr Pettigrove was "battling with inner turmoil within a few hours of discharge" and was "still in a psychotic state hours before discharge" and "the possibility of ongoing risk of self-harm had not been adequately resolved" (see [48] above).

139 Dr Campbell emphasised the low ratings given by nurses for hallucinations and other acute symptoms on the part of Mr Pettigrove (see [48] above) but it is difficult to see why these should be given much weight when the overnight nursing observations suggested continued delusional behaviour. In this context denial by a patient that he or she had experienced delusions could hardly be regarded as conclusive.

140 Contrary to Dr Parmegiani's view that "medication administered in hospital should have controlled Mr Pettigrove's symptoms until his return to Victoria", Dr Campbell stated that the medication prescribed early on 20 July would have had an effect for about 24 hours and was therefore due to be repeated at 8.00 am on 21 July. It was not repeated because of the prospect of side-effects during the drive to Victoria. This provides another reason why Dr Coombes should not have assumed that Mr Pettigrove's settled appearance on the morning of 21 July would be reflective of his condition on the drive to Victoria.

Dr Giuffrida's views

141 In his report of 19 June 2006, Dr Giuffrida concluded that Mr Pettigrove's auditory hallucinations and delusional ideas indicated that he was at risk of harming himself and others. As Dr Giuffrida points out, such a conclusion was embodied in the s 29 certificate and s 33 advice prepared by Drs Wu and Coombes respectively.

142 In the Joint Report, Dr Giuffrida identified nine factors pointing against discharge (see [59] above). Drs Kingswell and Phillips agreed with these and to my mind they are all forceful considerations.

Dr Kingswell's views

143 I have referred above (at [46]) to Dr Kingswell's evidence. It is sufficient to add that Dr Kingswell said that he found no evidence in the documentation with which he was supplied that anything occurred between Mr Pettigrove's admission and discharge that diminished the likelihood of serious harm being inflicted by Mr Pettigrove on himself or others, this having been the basis of his detention on 20 July 2004 (see [46] above).

Dr Phillips' views

144 In concluding that the discharge of Mr Pettigrove was unreasonable Dr Phillips placed considerable emphasis on the overnight nursing notes which he considered indicated that overnight Mr Pettigrove's clinical condition had deteriorated and that overnight he was "psychotic (out of touch with reality)". I accept that those notes at least indicate that Mr Pettigrove's psychotic episode observed on 20 July 2004 was continuing through the following night.

Conclusions on breach of duty

145 For reasons that will be apparent from my comments in relation to the expert evidence, I prefer the evidence of the experts qualified by the plaintiffs and consider that, for the purposes of s 5B of the Civil Liability Act, at the time of Mr Pettigrove's discharge there was, or should have been, apparent to Dr Coombes a foreseeable and not insignificant risk of Mr Pettigrove causing harm to Mr Rose.

146 Consistently with the Health Service's three experts' answers to Question 7 in the Joint Report, there was at least a relatively high risk of "minor" harm to Mr Rose (see [63] above). As I pointed out earlier (see [115]), it is unnecessary that the extent or type of harm be foreseeable and, as Gummow J observed in Rosenberg v Percival at [64], that is so even if the extent of the injury is far greater than expected.

147 Furthermore, there was a not insignificant risk of serious harm to Mr Rose, at least because Mr Pettigrove had suicidal ideation and was being admitted by the hospital into the custody of Mr Rose in circumstances where Mr Rose might well suffer harm if Mr Pettigrove attempted to harm himself. The following considerations support that conclusion:

• Mr Pettigrove's apparently settled appearance on the morning of 21 July was not a proper basis for concluding that his psychotic episode had finished or, if it had, that it would not recommence soon thereafter. As Dr Campbell, one of the Health Services' experts, recognised, "Mr Pettigrove had not been observed for sufficient time after his acute phase settled for a clinician to be assured that he was indeed safe". This accorded with Dr Giuffrida's view that brief periods of lucidity were of limited significance and that a "broad perspective over time" was necessary.
• Observations of Mr Pettigrove overnight had shown that his psychotic episode was continuing at that time. As the primary judge found, the overnight nursing notes showed a lack of sleep, which had thus continued for at least 2 nights (Judgment [33]). Dr Coombes described this lack of sleep as "concerning" (Transcript p 134). Furthermore, Dr Campbell accepted that Mr Pettigrove's overnight condition indicated that he was "not fully recovered from his psychotic condition" and was hallucinating.
• Dr Coombes appreciated that there was a risk of Mr Pettigrove relapsing during the road trip. This was demonstrated by his suggestion to Mr Rose and Mr Pettigrove that they take a route through six places where there were psychiatric services, in case Mr Pettigrove experienced jerking or "other psychotic phenomenon" (Transcript p 121).
• The length of the road trip made it inevitable that there would be an overnight stop or night driving. According to Dr Phillips, it is not uncommon for people with a psychotic illness to become more agitated at night. The homicide occurred when the 2 men stopped, alone on the roadside after dark. (The primary judge said it occurred at 8.30 pm but Mr Pettigrove's police statement suggested that, whilst night had fallen, it occurred around 6.00 pm).
• The Echuca medical notes showed that during a psychotic episode in the past Mr Pettigrove had acted irrationally, endangering not only himself but also other road users (by trying to jump in front of passing trucks and lying face down on the road), and had had paranoid delusions of people trying to get to him and auditory hallucinations, possibly of a command nature.
• In their Joint Report, all six psychiatric experts agreed that the Hospital should have reasonably foreseen that there was an appreciable risk that on the road trip to Victoria Mr Pettigrove would suffer an acute psychotic episode of the type that had led to his admission to the Hospital (or an exacerbation or continuation of that episode). This episode was of a type that led Drs Saw and Wu to certify in handwriting on 20 July 2004 that they had concerns that Mr Pettigrove was a risk of harming himself or others. In light of the definition in s 9 of the Mental Health Act, that conclusion was in any event implicit in the certification by Drs Saw, Wu and Coombes on that day of Mr Pettigrove as a mentally ill person. The view expressed by Dr Coombes in the "R2 - DRAFT CLINICAL REVIEW" as to risk was different but the terms of the document themselves demonstrate Dr Coombes inability, due to Mr Pettigrove's uncommunicative state, to make a proper assessment (see [25] above).
• After a psychotic episode in January 2001, Mr Pettigrove had had a further episode in February 2001 after non-compliance with oral medication. Regular depot injections thereafter had apparently avoided further episodes until July 2004, but by that time he had not had such injections for at least seven months.
• The depot injections, which had apparently proved effective in the past, were slow acting and, due to their possible side-effects, could not be given at the Taree Hospital in light of the intent that Mr Pettigrove and Mr Rose drive to Victoria, with Mr Pettigrove sharing the driving. Dr Coombes agreed in cross examination that if Mr Pettigrove had been given a depot injection and it had been given time to work, the chances of something untoward happening on a road trip to Victoria would have been "vastly reduced" (Transcript p 122).
• The oral medication given to Mr Pettigrove on the morning of 20 July 2004 was likely to be wearing off on the morning of 21 July 2004, with the intended driving precluding the administration of further medication, oral or otherwise (see Dr Campbell's view referred to at [48] above).
• The nursing notes state that Mr Rose's offer was to drive Mr Pettigrove to Victoria when the latter was well enough to return there. There was no evidence that Mr Rose was in a hurry to get there.
• Dr Coombes said that but for Mr Rose's offer, Mr Pettigrove would not have been discharged because Mr Pettigrove was not fit to be put on a train. Likewise, all six experts said in their Joint Report, in answer to question 10, that Mr Pettigrove was not fit to fly, even with an escort.

148 The next question posed by s 5B of the Civil Liability Act is whether a reasonable person in the Hospital's position would have taken precautions against the risk of harm to Mr Rose, bearing in mind the four matters referred to in s 5B(2) (see [11] above).

149 The first of those matters is the probability that the harm would occur if care were not taken. The risk of "minor" harm to Mr Rose was "relatively high" (see [146] above), whilst that of that serious harm to him was considerably lower, but in my view not insignificant.

150 The second factor mentioned in s 5B(2) is the seriousness of the harm that might eventuate. The range of relevant harm extended from minor harm to serious bodily harm, or even death. In my view this would here have indicated to a reasonable person in the position of the Hospital that Mr Pettigrove should continue to be detained and not consigned into the custody of Mr Rose for a long road trip on their own to Victoria.

151 As to the third factor, it was not suggested that the Hospital did not have the capacity to retain Mr Pettigrove in detention or that that course would have imposed an unreasonable burden upon it.

152 So far as the fourth factor is concerned, that is the social utility of the activity that created the risk, the Health Service argued that Parliament's intention, expressed in s 4 of the Mental Health Act, that mentally ill persons "receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given" favoured Mr Pettigrove's discharge. However, against this is the fact that the objects of the Act were equally concerned with the "control" of mentally ill persons as with their care and treatment (see s 4(1)). It was evident from s 9 of the Act that this "control" was for the purpose of protecting such persons, and others, from serious harm. The "least restrictive environment" enabling care and treatment needed to be assessed against the necessity for "control". In my view there was here a need for control of Mr Pettigrove by continued detention. Detention in the Hospital was thus the "least restrictive environment reasonably available".

153 Nor did the matters referred to by the Health Service's experts in the Joint Report constitute significant factors favouring Mr Pettigrove's discharge from the Hospital. They regarded the wishes of Mr Pettigrove, his mother and Mr Rose as "highly significant" but I agree with the views of the plaintiffs' experts that, in the context of a risk of serious harm coming to Mr Rose, these were of little, if any, weight. The other matters referred to by the Health Service's experts amount to little more than a conclusion that there was no reason not to discharge Mr Pettigrove. However, as I have indicated, there were in fact strong reasons for that course not to be taken.

154 In light of these matters and the various factors listed in [147] above, in my view a reasonable person in the position of the Hospital would have taken precautions against the risk of harm to Mr Rose that I have identified by continuing to detain Mr Pettigrove at the Hospital on 21 July 2004. It follows that by discharging him on that day the Hospital breached the duty of care it owed to Mr Rose.

SECTION 5O OF THE CIVIL LIABILITY ACT

155 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 established that in England a medical practitioner was not guilty of negligence if he or she acted in accordance with a practice accepted as proper by a responsible body of medical opinion. The issue in that case related to the use of electro-convulsive therapy for treatment of depression. The principle was applied in Sidaway v Board of Governors of the Bethlehem Royal Hospital [1984] 1 QB 493 in relation to the performance of a spinal operation to eliminate neck, shoulder and arm pain. The operation carried an inherent one to two per cent risk of damage to the spinal column and nerve roots. The Court found that, due to the remoteness of the risk, it was in accordance with an accepted medical practice not to warn patients specifically of spinal cord damage.

156 Application of this principle in Australia was rejected in Rogers v Whittaker [1992] HCA 58; 175 CLR 479 in which it was held that, whilst evidence of acceptable medical practice is a useful guide, it is for the courts to adjudicate on the appropriate standard of care (at 487).

157 The Ipp Report (Review of the Law of Negligence Final Report, September 2002) recommended enactment of a statutory provision in the following terms:

"A medical practitioner is not negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field, unless the court considers that the opinion was irrational".

158 The provision in fact introduced into the Civil Liability Act by the Civil Liability Amendment (Personal Responsibility) Act 2002 was s 5O which is set out in [11] above. This provision is directed to professional practices widely accepted in Australia at the time the medical service was provided. It thus differs in its language from the Ipp Report recommendation which was concerned with medical opinions that were widely held.

159 The principal authority in relation to s 5O is the decision of this Court in Dobler v Halverson [2007] NSWCA 335; 70 NSWLR 151 in it was held that s 5O constitutes a defence, with the onus thus being upon the defendant professional to prove that he or she acted in the manner described in the section. In that case, the plaintiff consulted the defendant doctor concerning migraine headaches. The defendant detected a heart murmur but did not identify it as an indication of a possible cardiac problem, cause an ECG to be carried out or refer the plaintiff to a cardiologist. The doctor was found to be negligent and the evidence not to establish a s 5O defence.

160 To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with a practice that was in existence at the time the medical service was provided and, secondly, to establish that that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice.

161 One can see in the facts of the cases that I have mentioned the possibility that what was done accorded with a practice. For example, there may well have been a practice in some part of the profession, in Bolam to use electro-convulsive therapy to treat depression; in Sidaway to give or not to give a warning of risks in respect of the type of spinal operation in question; in Rogers v Whittaker to give or not to give a warning of risks in respect of the type of eye operation conducted on the plaintiff and in Dobler to refer or not refer a patient for an ECG and/or to a cardiologist on detection of a heart murmur.

162 The present is in my view a different type of case. The decision to discharge Mr Pettigrove had, necessarily, to be based upon a wide variety of considerations. These considerations should have included, but not have been limited to:

• Mr Pettigrove's condition on admission.
• Mr Pettigrove's condition overnight.
• Mr Pettigrove's condition on the morning of 21 July 2004.
• Mr Pettigrove's history as revealed by the Echuca medical notes.
• The time that had passed since Mr Pettigrove's last depot injection.
• Whether Mr Pettigrove should be prescribed medication in light of the intent that he share the driving of his car.
• Dr Coombes' observations of Mr Rose's character and his relationship with Mr Pettigrove.

163 In these circumstances, it was not surprising that none of the psychiatric experts suggested that there was a then subsisting practice in accordance with which Dr Coombes acted in deciding that Mr Pettigrove should be discharged. Rather, and again understandably, the evidence was directed to the question of whether the witness and other medical practitioners would have regarded Dr Coombes' decision as reasonable in all of the circumstances. In the Joint Report, the Health Service's experts answered in the affirmative question 11 which was framed in terms of s 5O (see [11] above). However in doing so, they referred back to their answers to question 4 in which they had given reasons for the discharge being reasonable, without identifying any relevant practice that was in existence in 2004.

164 That this was the nature of their evidence was recognised in the primary judge's observation that:

"Drs Telfer, Parmegiani, Campbell and Phillips (the latter for perhaps slightly different reasons) accepted that a body of their peers would have found it reasonable to discharge Mr Pettigrove" (Judgment [94]).

165 In summary, the section is directed to something, namely a practice, that was in existence at the relevant time, here July 2004. Whilst at that time there were no doubt many practices in the medical profession concerning the manner in which operations were performed, the types of treatments that were administered, the circumstances in which tests were ordered, the circumstances in which warnings were given and other matters, the evidence here did not identify any such practice that was relevant in the present case. In light of the wide variety of circumstances bearing upon the decision to discharge Mr Pettigrove, it would have been surprising if it had done so. It is unlikely, to say the least, that there would have occurred in or before 2004 a number of situations in which there were sufficient features in common with the present case to enable it to be said that there was a practice concerning how such a situation was to be dealt with by a competent medical practitioner.

166 For these reasons, no defence under s 5O is available to the Health Service in the present case.

S 43 AND 43A OF THE CIVIL LIABILITY ACT

167 Section 43 of the Civil Liability Act (see [11] above) applies "to the extent that" the civil liability of the defendant "is based on a breach of statutory duty". Whilst the plaintiffs alleged such a liability in their Statement of Claim, they did not pursue it before the primary judge, nor do they seek to maintain such a claim on appeal (note the similar course taken by the plaintiff in Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 - see [110]). Rather, both at first instance and on appeal, the plaintiffs' case was that the Hospital owed them and Mr Rose a common law duty of care. On appeal, the Health Service maintained its s 43 defence but provided no good reason why s 43 was not, as its terms suggested, inapplicable to a common law liability (see Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742 at [87]). Accordingly, I reject the Health Service's s 43 defence.

168 I turn then to the Health Service's defence under s 43A of the Civil Liability Act (see [11] above) which was rejected by the primary judge. On appeal, the Health Service contended that "in determining that ... Mr Pettigrove must not be further detained, the respondent, through Dr Coombes, was ... exercising, or failing to exercise, a special statutory power within the meaning of s 43A" of the Mental Health Act. The power asserted to have been exercised, or not exercised, was that conferred by s 35(3) of the Mental Health Act (see [11] above).

169 The preparation by the duty doctor of a certificate under s 21 of the Mental Health Act enabled Mr Pettigrove's detention at the Hospital early on the morning of 20 July 2004. Pursuant to s 29, he was examined later on 20 July 2004 by the Medical Superintendent, Dr Wu, who certified that Mr Pettigrove was a mentally ill person. The issue of this certificate justified Mr Pettigrove's continued detention. Absent the certificate, s 29(2) would have precluded that.

170 The further examination required by s 32 was conducted by Dr Coombes, apparently during his meeting with Mr Pettigrove, Mr Rose and Mr Gallagher commencing at 4.00 pm on 20 July 2004. After that meeting Dr Coombes completed the form of written advice required by s 33 (see [22] above). That advice certified that Mr Pettigrove was a mentally ill person and recorded Dr Coombes' decision that he should be discharged the next day for "transfer to his mother's home in Victoria ... in company of his friend".

171 Contrary to the Health Service's submissions, this decision was not an exercise, or even a purported exercise, of a power conferred by s 35(3). Nor was there, within the meaning of s 43A of the Civil Liability Act, a failure to exercise that power.

172 I accept that s 35(3) did confer a power and that that power constituted a "special statutory power" as defined in s 43A of the Civil Liability Act. Although the provision was framed as a prohibition against further detention, the corollary of that prohibition must have been the conferral of a power to discharge. Subject to the exercise of that power, a mentally ill person was required to be detained. This was implicit in the sections to which I have earlier referred when considered in light of the definition of a mentally ill person in s 9 (see [11] above). Such a person was one who was suffering from mental illness and, due to that illness, there were reasonable grounds for believing that the person's care, treatment or control was necessary for his or her own protection from serious harm or the protection of others from serious harm. Whilst s 29(1) was also expressed as a prohibition against detention, the implicit corollary of the formation by the Medical Superintendent under that section of an opinion that the relevant person was a mentally ill person was that the person had to be detained. That obligation to detain continued until discharge was authorised as a result of the person ceasing to be a mentally ill person or, as described in s 35(3), less restrictive care being appropriate and reasonably available.

173 Section 35(3) referred to the formation of an opinion by "a medical superintendent". A "medical superintendent" was defined in the Dictionary to the Act to include "a medical officer, nominated by the medical superintendent, attached to the hospital" (see [11] above). Dr Coombes was undoubtedly a medical officer attached to the Hospital and while it is possible that for some, or even all, purposes he was "nominated by the medical superintendent", the evidence did not reveal whether this was in fact so. However, the Health Service said, first, that the plaintiffs did not take this point at first instance and should not be allowed to take it on appeal and, secondly, that the presumption of regularity as discussed in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 at [111] - [120], should be applied.

174 There is force in both points but neither appears to me to overcome the fact that, in making the decision on 20 July 2004 that Mr Pettigrove should be discharged the following day, Dr Coombes did not purport to act as a medical superintendent. His role in providing advice under s 33 was not to act as the, or a, medical superintendent but to act as the "medical practitioner" referred to in ss 32 and 33. Rather than acting, or purporting to act, as a medical superintendent, Dr Coombes acted as the medical practitioner who reported to the medical superintendent. This was implicit in his undertaking of the s 32 examination and provision of the s 33 advice, and was made explicit in the form of his advice by his selection of the box identifying the advice as one "by a medical practitioner to a medical superintendent" and his insertion of his name at the end of the form next to the words "name of medical practitioner".

175 As there was no suggestion in the evidence that Dr Wu, or any other doctor who may have been the, or a, medical superintendent of the Hospital, had any role in the making of the discharge decision, the conclusion must follow that there was neither an actual or purported exercise of the power conferred by s 35(3), a medical superintendent being the only person able to exercise that power. The disjunct between Dr Coombes' discharge decision and s 35(3) is confirmed by the absence of any record in his s 33 advice, where his discharge decision is recorded, that he turned his mind to the issue raised by s 35(3) in relation to a mentally ill person of whether "other care of a less restrictive kind is appropriate and reasonably available to the person".

176 On the morning of 21 July 2004 Dr Coombes, at least implicitly, affirmed his decision that Mr Pettigrove should be released. Dr Coombes had not anticipated that he would see Mr Pettigrove on 21 July 2004 but, due to Mr Rose's late arrival at the Hospital, he did so. There is no indication in the evidence that, in acting on the basis that his decision of the previous day was still operative, Dr Coombes in any way purported to act in any different capacity to that in which he had acted on the previous day.

177 In relation to the Health Service's two arguments referred to in [173] above, I add the following. It would not assist the Health Service for this Court to find that the plaintiffs were not entitled to complain on appeal of the absence of evidence of the appointment of Dr Coombes as a medical superintendent of the Hospital because any such evidence would not have provided an answer to the finding that I consider should be made that Dr Coombes did not purport to act as such a medical superintendent. Secondly, whilst it may be used to fill gaps in the evidence, the presumption of regularity cannot be used to contradict it. If Dr Coombes had purported to act as a medical superintendent, the presumption of regularity could have been used to overcome the absence of evidence of his appointment. However this is not what he purported to do.

178 For these reasons, I do not consider that the Hospital, or anyone on its behalf, exercised, or purported to exercise, the power conferred by s 35(3) of the Mental Health Act. Nor is this a case in which, using the language of s 43A of the Civil Liability Act, the Health Service's liability is based on the Hospital's "failure to exercise" the power to discharge that was implicitly conferred by s 35(3). The basis upon which I consider the plaintiffs to have established a liability of the Health Service is that there was a failure of the Hospital to continue to detain Mr Pettigrove. The Hospital's power and obligation to detain him did not arise from s 35(3). It arose from s 21, Mr Pettigrove's certification as a mentally ill person and the taking of the steps referred to in ss 29, 32 and 33 (see [11] above). A finding that the Hospital should have exercised, but failed to exercise, the power to discharge conferred by s 35(3) would not have been a finding as to an element of the Health Service's liability for discharging Mr Pettigrove. The plaintiffs' case was in fact to the contrary, namely, that the s 35(3) power to discharge was not and should not have been exercised.

179 For these reasons, the Health Service is not entitled to the protection of s 43A of the Civil Liability Act. Mr Pettigrove's discharge did occur but it did not occur as a result of an exercise or purported exercise of a special statutory power, namely that conferred by s 35(3) of the Mental Health Act. It was, simply, unauthorised, because the power to discharge that might conceivably have authorised it (s 35(3)) was not utilised. A presumption of regularity cannot be applied to conclude that such power as might have been available must have been used because the evidence reveals that it was not.

180 For completeness, I add that the plaintiffs, in my view for good reason, did not contend that if the Health Service's liability was in fact based on the exercise of, or a failure to exercise, a "special statutory power" that the negligence of the Health Service was of a sufficiently high level to reach the threshold referred to in s 43A (see Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102 at [175]-[177] and Patsalis v State of New South Wales [2012] NSWCA 307 at [88]).

CAUSATION

181 The primary judge found that the plaintiffs did not establish that any negligence of the Hospital was causally related to Mr Rose's death (see [84] above). His Honour considered that there was no causal connection between Mr Pettigrove's hallucination or compulsion to kill Mr Rose and the road journey. To illustrate this he stated that Mr Pettigrove's attack on Mr Rose might just as well have occurred whilst Mr Rose was visiting Mr Pettigrove in the Hospital, perhaps when they were walking through the gardens (Judgment [83], [84] and [100] quoted in [81] and [84] above).

182 His Honour referred in this context to Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 in which Campbell JA said at [243] the following with reference to s 5D of the Civil Liability Act (see [11] above):

" ... Evaluation of any action for the purpose of attribution of responsibility recognises that the action occurs in the context or against a background of circumstances and actions that are in themselves neutral or normal for evaluative purposes. In attributing responsibility for a motor car collision, it may well be that the accident would not have happened if one of the drivers had not been invited to meet a friend, supposing that the accident happened en route to that meeting. While the friend's invitation is a factual cause of the accident, it is inappropriate to attribute responsibility to the friend for issuing the invitation. This is because inviting a friend to visit is the sort of thing that is itself part of the ordinary background of social action that is not in itself blameworthy ... It is the blameworthiness of the particular necessary condition for the accident that makes it appropriate to attribute responsibility to the person who performed that necessary condition. Conversely, if a person's action is a necessary condition of particular harm happening but is not itself blameworthy, that person's action is not seen, for the purposes of attribution of responsibility, as justifying the imposition of liability. That does not involve denying the causal role of the necessary condition, just saying that not all causes deserve the attribution of legal liability."

183 For the following reasons, I do not agree with the primary judge's conclusion on causation.

184 Whether or not his involvement in the car trip rendered Mr Pettigrove more likely to attack Mr Rose, the fact is that the opportunity for him to do so in isolated circumstances arose because of the Hospital's decision to discharge Mr Pettigrove from detention. Subject to comments I will make concerning the possibility of the attack occurring in the Hospital, it can be said that the attack would not have occurred "but for" that decision to discharge and that the decision to discharge him was therefore a "necessary condition of the occurrence of the harm" (see s 5D(1)(a) of Civil Liability Act and Adeels Palace v Moubarak).

185 Section 5D(1)(b) requires, as well, that it be "appropriate for the scope of the negligent person's liability to extend to the harm so caused". This precludes a merely mechanical application of the "but for" test, in disregard of "the purposes and policy of the relevant part of the law" (Wallace v Kam [2013] HCA 19; 87 ALJR 648 at [23]).

186 Mr Pettigrove's discharge was not one of the background "circumstances and actions that are in themselves neutral or normal for evaluative purposes" to which Campbell JA referred in Lym International. Nor was it one of the type of circumstances to which Allsop P referred in Wallace v Kam [2012] NSWCA 82 at [12] when he spoke of events placing the plaintiff "in the place at the time[,] permitting a risk unrelated to that involved in the duty that was breached to come home". The present is quite unlike the example postulated by Gummow J in Chappel v Hart [1998] HCA 55; 195 CLR 232 at [66] of injury to a patient by misapplication of an anaesthetic during an operation that would not have occurred but for the surgeon's failure to warn the patient of an unrelated risk of the operation. It is similarly unlike the further examples given by Allsop P in Wallace v Kam [2012] NSWCA 82 at [12]. Furthermore, there is no policy consideration militating in the present case against a finding of causation, unlike in Wallace v Kam where the High Court found that the policy underlying the duty breached there indicated that the defendant should not bear responsibility for the injury suffered by the plaintiff, with the consequence that the injury was not caused by the breach.

187 Here, Mr Rose's presence on the road trip with Mr Pettigrove, and Mr Pettigrove's attack on Mr Rose, were closely related to the risk with which the breached duty was concerned. Put, as is necessary, in the terms of s 5D(1) of the Civil Liability Act, the Hospital's decision to discharge Mr Pettigrove was a necessary condition of the occurrence of the harm to Mr Rose, and due to the risk that eventuated being that which the Hospital should have taken care to guard against, it is appropriate for the Health Service's liability to extend to the harm caused to Mr Rose.

188 I do not accept that the possibility that if Mr Pettigrove had not been discharged he might have assaulted Mr Rose in the Hospital is sufficient to warrant a contrary conclusion. The road trip enabled Mr Pettigrove to attack and strangle Mr Rose in isolated circumstances where no-one was able to come to Mr Rose's assistance. The possibility of that occurring in quite different circumstances in the Hospital seems to me to be speculation which is of little significance when measured against the actuality of what occurred on the road trip. On the balance of probabilities, I consider that the continued detention of Mr Pettigrove "would have prevented the damage" (CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [14] and [20] and see Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [53]).

189 This conclusion is fortified by consideration of the likely difference in Mr Pettigrove's condition if he had been detained in hospital. If that had occurred, on the morning of 21 July 2004 he would have received medication designed to deal with his symptoms (see [66] above). As it was, on the view that I regard as the more probable, the effect of the medication he received on the morning of 20 July 2004 was likely to have been dissipating by the following morning. Because of the intended road trip he was not given further medication and was thus effectively unmedicated at the time that he killed Mr Rose.

Orders

190 For the reasons I have given, the following orders should be made:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

191 GARLING J: The judgment of Macfarlan JA summarises the essential facts and evidence traversed by this appeal, and the relevant statutory provisions. There is no need for me to repeat that material in this judgment.

192 I agree with Macfarlan JA that the two applicants for leave to appeal, Ms Sheila Simon, who is the mother of the late Mr Rose, and Ms Wendy Rose, his sister, ought be granted leave to appeal. I will accordingly refer to Ms McKenna, Ms Simon and Ms Rose as the appellants. There is no material difference in the claims of these three appellants with respect to the issues which arise in their appeals.

193 The respondent to the three appeals is the Hunter New England Local Health District. The Health District is the legal entity which is liable for the conduct of the Manning Base Hospital at Taree, and the staff who worked there, including Dr Coombes, and also, the Medical Superintendent of that Hospital as that term is used in the Mental Health Act 1990 ("the Act"). It will be convenient to refer to the respondent as the Hospital.

194 I have the misfortune to differ from a number of the conclusions of, and the orders proposed by Macfarlan JA. For the reasons set out below, I would grant leave to appeal to Ms Simon and Ms Rose, but I would dismiss each of the three appeals with costs.

Nature of the Claims

195 At the outset, it is appropriate to note and recognise the nature of the claims brought in these proceedings. The claims of the appellants were for nervous shock with consequential psychiatric injury, namely a post-traumatic stress disorder and sequelae, brought about by their learning of the death of the late Mr Rose

196 The Statement of Claim filed by each appellant, describes their claim in the following way:

"18. At approximately 8.30pm, on the evening of 21 July 2004, on the Newell Highway, some 25 kilometres south of Dubbo, Pettigrove attacked the late Mr Rose and strangled and suffocated him to death.

19. As a result of the event detailed in paragraph 18 hereof, the plaintiff has suffered nervous shock with a post traumatic stress disorder and sequelae ... "

197 None of the appellants was present at the scene of the fatal attack on the late Mr Rose. Each learnt of his death, by telephone, after it occurred. The death of the late Mr Rose occurred either during or at the end of, the attack upon him by Mr Pettigrove. The late Mr Rose had died before the arrival of the police and the ambulance.

198 The nature of each claim of each of the appellants is for pure mental harm arising from shock. They were not, and did not claim to be, physically injured in any way. Thus the claims call up for careful consideration the provisions of Part 3 of the Civil Liability Act 2002 ("the CL Act"), which apply to claims for mental harm.

199 A claim of the nature pleaded relies both on the common law with respect to the issue of whether a duty of care arises, and its nature and content, and the CL Act for the issues of breach of duty, causation and damages.

200 Unfortunately, nowhere in the Statement of Claim is any attention given to pleading the cause of action, and its elements, as they arise both at common law, and, in accordance with the CL Act. On the contrary, the Statement of Claim wholly ignores the existence of the CL Act, thereby reflecting an outdated and inadequate style of pleading.

201 In a claim for damages for mental harm constituted by nervous shock, it is of particular importance for a plaintiff to identify with clarity both the nature and content of the duty of care alleged, and how in accordance with the common law it arises, and the risk of harm against which it is alleged that precautions ought to have been taken as that term is used in the CL Act.

202 As well the provisions of Part 3 of the CL Act dealing with mental harm need to be addressed. Some provisions refer to mental harm generally, and others to pure mental harm, namely, mental harm not consequent upon a personal injury: see s 27 of the CL Act. Section 30 of the CL Act, is in these terms:

"30 Limitation on recovery for pure mental harm arising from shock

(1) This section applies to the liability of a person ("the defendant") for pure mental harm to a person ("the plaintiff") arising wholly or partly from mental or nervous shock in connection with another person ("the victim") being killed, injured or put in peril by the act or omission of the defendant.

(2) The plaintiff is not entitled to recover damages for pure mental harm unless:

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or

(b) the plaintiff is a close member of the family of the victim.

...

(5) In this section:

"close member of the family" of a victim means:

(a) a parent of the victim ..., or

...

(d) a brother, a sister ... of the victim. "

203 As can be observed, there are a number of particular provisions contained in the CL Act which are required to be satisfied before damages for pure mental harm, or nervous shock can be recovered. The first is that a plaintiff is a close member of the family of the victim who was killed, injured or put in peril. There is no doubt that this requirement was satisfied in this case, because each appellant is a close member of the family who suffered nervous shock upon learning of the death of the late Mr Rose.

204 It is necessary to note that the phrase in s 30 of the CL Act "... killed, injured or put in peril ..." refers disjunctively to each of three separate events which may occur to "the victim", although there is no reason to think that a death may not be the last outcome in a sequence where a person was first put in peril, then injured, and then died. Each circumstance will be different: see Wicks v State Rail Authority of NSW [2010] HCA 22; (2010) 241 CLR 60 at [43]-[48].

205 The second requirement is that the nervous shock arises in connection with "... the act or omission of the defendant" by which the victim was killed, injured or put in peril. Although it was accepted on appeal that the nervous shock arose from the death of the late Mr Rose, these provisions serve here to concentrate attention on the fact of the death being caused by the Hospital's act or omission. As will be seen later, this tends to support, rather than detract from, the need to identify the risk of harm in s 5B of the CL Act as reflecting the death of the late Mr Rose, rather than a more general notion of the foreseeability of some physical harm, however that may be caused, to the late Mr Rose.

206 Although the parties were content to argue, as Macfarlan JA notes, that if a duty of care was owed by the Hospital to the late Mr Rose, then it was also owed to the appellants, that is not necessarily so, in claims of this kind. The common law has always taken a different approach to whether a duty is owed to a person with respect to pure psychiatric injury.

207 As Hayne J said in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [243]:

The common law has long shown a marked reluctance to allow damages for psychiatric as distinct from physical injury. Most often this reluctance is seen to be based in fears that exaggerated or false claims will be allowed: that judges or juries will be unable to discern error in diagnosing psychiatric injury or to distinguish between the injured and the malingerer. Sometimes the reluctance is seen to be based in the difficulty of distinguishing between emotional consequences, for which it has been held damages will not lie, and psychiatric consequences for which damages will be allowed. Developments in psychiatry are said now to have much reduced, if not altogether eliminated, these problems. (Footnotes omitted)

208 As well attention must be paid to the nature and content of any such duty, because depending upon the circumstances, the content of the duty owed to the late Mr Rose, and that to the appellants may well be different. One simple reason for this is that, as the appellants submitted the duty owed to the late Mr Rose related to a risk of physical injury, whereas the appellants claimed a duty with respect only to psychiatric harm.

Factual Context

209 Although the judgment of Macfarlan JA refers extensively to the facts surrounding the claim and the expert opinions of those called upon to deal with the facts, there are some features of the factual context which it is convenient to note here.

210 Mr Pettigrove's mental illness, which consisted of schizophrenia, had been of long-standing, about 20 years or so. It was a chronic illness, during which he lived, and was treated, in the community.

211 That illness had acute episodes during which he was treated as an in-patient for comparatively short periods at the Alexander Bayne Centre at the Bendigo Hospital Campus. The evidence disclosed only one occasion in February 2001 when Mr Pettigrove's behaviour could be regarded as anti-social, at which time he was referred by police to the Alexander Bayne Centre, where he was detained as an involuntary patient under the relevant Victorian legislation.

212 Mr Pettigrove's admission in July 2004, to the Hospital occurred as a consequence of an acute psychotic episode which arose whilst he was living in NSW, away from his usual home in Victoria.

213 The most contemporaneous record of that acute psychotic episode is contained in the ambulance service record. It records that the ambulance was called at 2:50am on 20 July 2004. It arrived about 30 minutes later. The essence of the call to the ambulance was that Mr Pettigrove had collapsed. On arrival the ambulance officers were told by Mr Rose that Mr Pettigrove had "semi collapsed" into a state of introvertedness. There was no loss of consciousness. The ambulance officers could not get Mr Pettigrove to talk to them and noted that he was reluctant to have his pulse and blood pressure taken. He refused oxygen and other treatment by pulling away from the ambulance officer's attempts to deliver it. The ambulance officers noted that Mr Pettigrove had a past medical history of mental illness, and may not have been taking his medication.

214 When able to conduct an examination, the ambulance officers found that Mr Pettigrove was well perfused, he had an elevated heart rate, his blood pressure appeared to be normal and there were no obvious physical injuries. He refused most treatment.

215 The ambulance officers observed that he had an episode of shaking whilst in their presence. They questioned whether that episode was due to the cold environment, but did not seem to arrive at any firm conclusion about the nature of the episode, or its cause.

216 The outward manifestations of this acute psychotic episode, and the features of Mr Pettigrove's behaviour did not give rise to any suggestion or hint that he would, or may, behave violently to Mr Rose, or anyone else.

217 Amongst the factors relevant to the discharge of Mr Pettigrove from the Hospital, and a part of the context against which the subsequent events need to be viewed, were that Mr Pettigrove had no history at all of threatening, or committing, any violent act towards another person. As well, Mr Pettigrove and Mr Rose, having been friends for some lengthy period of time and having been in each others company for a period of months leading up to his admission, were observed by the Hospital staff prior to the discharge to be at ease in each other's company, on amicable terms, and had greeted each other warmly on 22 July when Mr Rose arrived at the Hospital.

218 The trip upon which Mr Pettigrove and Mr Rose embarked was without incident until they were about 25 km from Dubbo. There, Mr Rose stopped the car in a rural location to enable Mr Pettigrove to relieve himself. Mr Rose did as well. It is apparent that upon both of them returning to the car, and without any forewarning to Mr Rose which may have provided him with an opportunity to escape, Mr Pettigrove attacked Mr Rose intending to kill him. Although there was a struggle, he succeeded in fulfilling his intention.

219 Such behaviour on the part of Mr Pettigrove was plainly unlawful. He intended to, and did kill Mr Rose, by his own deliberate act. There was no suggestion that Mr Rose had, by his conduct, done anything at all to cause Mr Pettigrove to behave as he did. It seems from his interview with police that Mr Pettigrove was unable to rationally explain his behaviour, nor did he feel able to control it.

220 Whether Mr Pettigrove would ultimately have been convicted of the criminal offence of murder depended upon whether he raised the defence of mental illness, a matter which he was required to establish on the balance of probabilities: Mizzi v The Queen (1960) 105 CLR 659. Having raised such a defence, the onus fell on Mr Pettigrove to prove that at the time he killed Mr Rose, he was labouring under such a defect of reason so as not to know the quality and nature of the act he was doing, or if he did know it, he did not know what he was doing was wrong: see R v M'Naghten (1843) 8 ER 718 at 722; The King v Porter (1933) 55 CLR 182 at 189-190; Stapleton v The Queen (1952) 86 CLR 358. Because no criminal trial took place, these issues remained unresolved. The evidence in the District Court in these proceedings did not address those issues.

221 However, it can be said, with confidence that having regard to all of the circumstances, it is clear that the Hospital did nothing which caused, in a direct way, Mr Pettigrove to behave as he did. For example, it was not suggested that any medication, or treatment, provided by the Hospital, caused Mr Pettigrove to behave as he did. As well, at the time of his unlawful conduct, there was nothing the Hospital could do, in the immediate circumstances, to control, restrain or prevent Mr Pettigrove's unlawful conduct.

222 Thus, the essence of the claim against the Hospital had to be, and was, directed to its conduct up to the point of discharge of Mr Pettigrove some hours earlier, and whether at that time, by any act or omission, it could be said that the Hospital was a cause, in accordance with s 5D of the CL Act, of the death of Mr Rose, and consequently, the nervous shock suffered by the appellants.

223 Recognising this, senior counsel for the appellants expressed the substance of the claim against the Hospital during oral submissions on the appeal as being the failure of the Hospital to detain Mr Pettigrove as an in-patient, either voluntarily or involuntarily, to enable his treatment with depot injections of Zuclopenthixol (Clopixol). This is a long-acting type of medication, with which Mr Pettigrove had previously been treated.

224 As I discuss in more detail later in this judgment, the trial judge did not make a finding that Mr Pettigrove would have agreed to stay as a voluntary patient at the Hospital for a period sufficient to enable Clopixol to take effect. Equally, there was no finding that the Hospital, or its staff, ought to have, but failed to detain, Mr Pettigrove as an involuntary patient for a period sufficient to enable Clopixol to take effect.

The role of the Statute

225 The power which the Hospital staff had to detain Mr Pettigrove as an involuntary patient was to be found in the Act. In order to find the basis, in this case, why the common law would impose a duty of the kind alleged, it is necessary to examine the statute to identify whether its terms support the imposition of a duty of the kind alleged.

226 This is appropriate because the existence of a common law duty owed by a statutory authority (such as the Hospital), in the exercise of its statutory power, turns on an examination of the terms, scope and purpose of the relevant statutory regime: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [146] per Gummow and Hayne JJ. Whilst this approach concerns the existence of a duty, it also affects the nature and content of a duty.

227 The context of the examination of the statute is that the common law does not ordinarily impose a duty of care upon a statutory authority to protect another from a risk of harm, unless it has created that risk: Graham Barclay Oysters at [81] per McHugh J with the consequence that:

A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public.

Mental Health Act 1990

228 It is now convenient to examine the objects and purposes of this Act, together with the means by which those objects are to be fulfilled which are so central to the issues in this case.

229 Section 4(1) sets out the objects. It is in these terms:

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

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

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

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

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

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

230 Section 4(2), which is important provides a constraint, expressed as the intention of Parliament, in these terms:

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

(a) persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, and

(b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances."

231 It is to be observed that the Act does not have as a defined objective the protection of the public, or any section of it. Rather, it concentrates attention on the provision of treatment for the mentally ill person. The Act specifically acknowledges that involuntary care is to be provided in only a "limited number of situations...": s 4(1)(c). The phrase " ... protection of others from serious harm" is only used in s 9, and there only as a necessary element in reaching a conclusion that a person is mentally ill. Once such a conclusion is reached, then the question arises as to what treatment ought be provided by the Hospital.

232 The treatment which can be provided must meet the objectives set out in the Act. The constraints determined by parliament on that treatment are those contained in s 4(2) of the Act, namely,

(a) that any care and treatment is provided in the least restrictive environment; and

(b) any restriction on the patient's liberty and any interference with the patient's rights, dignity and self-respect are kept to the minimum necessary.

233 These objectives do not explicitly acknowledge any exception which enables the involuntary detention of a mentally ill person in order to protect the public from a risk of serious harm where such detention was not the least restrictive environment for the provision of treatment. Involuntary detention is only able to be engaged where it is necessary for the effective treatment of the mentally ill person. In those limited circumstances, the protection of others from serious harm, is an incident of the proper exercise of the statutory power, and not the aim or purpose of it. The protection of others from serious harm is not acknowledged by the Act as a reason for the exercise of the power of involuntary detention.

234 Other provisions emphasise this approach. Section 18A which is in Part 1 of Chapter 4 of the Act, provides for a procedure to detain an "informal patient" in the Hospital as an involuntary patient under Part 2 of the Chapter 4 of the Act. Section 20, which is in Part 2, is of particular importance. It provides:

"20 Detention of persons generally

A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person."

235 Of s 20 of the Act, Sheller JA said in Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22 at [116]:

This section reflects the objects stated in s4(1)(c) and (d) and (2). It is to be noted that s20 is not expressed as imposing a duty to admit to, or detain in, or continue the detention in, a hospital under Part 2 if the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person. It is expressed as imposing a duty not to admit to, or detain, or continue the detention in, a hospital of a person unless the medical superintendent is of that opinion.

236 If a medical superintendent forms the opinion that a person is not a mentally ill person, s 28 of the Act, commands the medical superintendent to refuse to detain the person. Other sections, 29 and 32, ensure that detention only occurs in accordance with a system of prescriptive checks and balances.

237 The provisions of Part 2 of the Act vary the ordinary decision-making process which exists between hospital and patient or doctor and patient by introducing the power to detain, constrained in the way previously described. But the discharge of the duty owed by the hospital to the patient including the exercise of that power, cannot legitimately take place in a way which gives priority to the interests of the public at large, unless the statute so provides. It does not.

238 The Act constrains any treatment of a mentally ill person in a way which is designed to ensure that the patient receives the best possible care and treatment in the least restrictive environment without in any way detracting from the civil rights of the patient, and without in any way interfering with the patient's rights, dignity and self respect in any way other than the minimum necessary. The patient and these considerations assume primacy of place in the exercise of these powers.

239 As Santow JA noted in Presland, the terms of the Act, although setting out conditions for compulsory detention, do not provide that a medical superintendent must admit a mentally ill person, or compulsorily detain, or continue the detention of, that person. These were matters which were left to the discretion of the medical superintendent. His Honour noted that the provisions of the Act were mandatory "... only in a negative sense, that is to say, in precluding admission, detention or continued detention ...".

240 Accordingly, the terms, scope and purpose of the Act raise real issues about whether the imposition of a common law duty of care, the reasonable discharge of which requires the involuntary detention of a person, is compatible with the Act.

Duty of Care

241 In the particular circumstances of this case, the nature and content of any duty of care owed by the Hospital to the late Mr Rose is a matter which requires attention. The plaintiff contended, in submissions, although without any pleading to reflect it, that the duty was one to take reasonable care to prevent Mr Pettigrove inflicting physical harm on the late Mr Rose. Macfarlan JA concludes that such submission ought be accepted. I am unable to agree.

242 The duty postulated by the plaintiff was not limited in time - was it to continue for a day, a week or a month? Nor was it limited to the currency of a specified event, such as whilst Mr Rose was in the motor vehicle with Mr Pettigrove on the trip to Victoria - and, if so, was it only for a reasonably direct trip, or would the duty continue if they had taken a detour to visit a distant but not too remote town, such as Griffith. Would the duty have continued during that visit or only once the principal trip had been resumed? It was not limited by reference to any other event, such as until Mr Pettigrove again visited a doctor, or a psychiatric facility. It was not limited by reference to the type or seriousness of any physical injury sustained by Mr Rose, nor by the mechanism of such injury. In short the duty postulated was a very broad one without any of the control mechanisms ordinarily applied, so as to limit within a reasonable scope the obligations of the Hospital.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Breach of Duty

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

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

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

262 He went on to say at [59] that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 43A - Civil Liability Act 2002

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Orders

298 I would propose the following orders:

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

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

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

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Decision last updated: 28 January 2014