DUTY OF CARE
85The 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.
86In 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.
87In 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.
88Sheller 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]).
89Santow 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 ... ".
90In 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]).
91Central 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]).
92In 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."
93His 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.
94Contrary 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.
95It 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.
96An 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]).
97This 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."
98The 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).
99Undoubtedly, 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.
100On 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.
101These 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.
102The 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]).
103In 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.
104My 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.
105Furthermore 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.
106Santow 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.
107In 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.
108These 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.