Simon and Anor v Hunter and New England Area Health Service

Supreme Court Act 1970 Mental Health Act 1990 LEGISLATION CITED : Civil Liability Act 2002 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496 Malo v South Sydney District Junior Rugby Football League Limited and Anor [2008] HCA Trans 135 (7 March 2008) CASES CITED : Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Priest v State of New South Wales [2006] NSWSC 12 Sullivan v Moody (2001) 207 CLR 562 Chambers v North Coast Area Health Service (NSWSC, Cooper AJ, 15 November 2005, unreported)

TEXTS CITED : "Expert Witnesses", Report 109 (2005), paragraphs [6.46]-[6.62], New South Wales Law Reform Commission

Sheila Mary Simon (First Plaintiff) PARTIES : Wendy Rose (Second Plaintiff) Hunter and New England Area Health Service (Defendant)

COUNSEL : Mr GR Graham (Plaintiffs) Mr M Fordham (Defendant)

SOLICITORS : TD Kelly & Co (Plaintiffs) GIO General Insurance Law Department (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20378/06 Sheila Mary Simon and Anor v Hunter and New England Area Health Service

JUDGMENT 1 JOHNSON J: By Notice of Motion filed 30 January 2007, the Plaintiffs seek an order under s.85(1) Supreme Court Act 1970 that these proceedings be tried with a jury. 2 The Plaintiffs filed a requisition for trial by jury on 30 January 2007 and paid the requisite fee: r.29.2 Uniform Civil Procedure Rules 2005. As the Plaintiffs have filed a requisition for trial with a jury and have paid the prescribed fee, the requirements of s.85(2)(a) Supreme Court Act 1970 have been met. In those circumstances, the Court may make an order under s.85(1) that the proceedings are to be tried with a jury if the Court is satisfied that the interests of justice require trial by jury: s.85(2)(b). 3 The present application is opposed by the Defendant. It remains a matter for the Court to determine whether an order under s.85(1) ought be made.

The Principal Proceedings 4 The Plaintiffs in these proceedings are Sheila Mary Simon and Wendy Rose. Following amendments made on 29 July 2009, the sole Defendant is the Hunter and New England Area Health Service. 5 Ms Simon and Ms Rose are the mother and sister respectively of the late Stephen Rose. Mr Rose was attacked and killed by William John Pettigrove on the evening of 21 July 2004. 6 As at July 2004, Mr Rose was living in camping accommodation in Coopernook National Park near Taree. He was sharing accommodation with Mr Pettigrove with whom he was acquainted, both coming from Victoria. 7 At 3.50 am on 20 July 2004, Mr Pettigrove was assessed in the Emergency Department of the Defendant's Manning Base Hospital at Taree, having been conveyed there by ambulance. At 12.45 pm that day, Mr Pettigrove was admitted to the Mental Health Unit of the Manning Base Hospital. At some point on 20 July 2004, Dr Wu, psychiatrist, issued a certificate under the Mental Health Act 1990 expressing the opinion that Mr Pettigrove was a mentally ill person suffering from schizophrenia. 8 It is alleged that Mr Rose offered to drive Mr Pettigrove from Taree to his family home in Victoria, when he was well enough to be discharged. Hospital staff decided to release Mr Pettigrove for this purpose. At about 11.35 am on 21 July 2004, Mr Rose and Mr Pettigrove set out on this journey. At about 8.30 pm that night, Mr Pettigrove attacked Mr Rose, strangling him and suffocating him to death. The fatal attack occurred on the Newell Highway some 25 kms south of Dubbo. 9 Mr Pettigrove had a prior history of mental illness in Victoria and had been hospitalised in Bendigo in 2001. 10 Mr Pettigrove was charged with the murder of Mr Rose but later hanged himself whilst in custody. 11 By their Statement of Claim, the Plaintiffs assert that, as a result of these events, they have suffered major depressive illness. They assert that the Defendant owed a common law duty of care to each of them, and also to Stephen Rose, and that Mr Rose's death and their injuries occurred by reason of the Defendant's breach of that common law duty. Further, the Plaintiffs assert that the Defendant was in breach of a statutory duty under the Mental Health Act 1990 to detain Mr Pettigrove. The Plaintiffs claim damages, including exemplary and aggravated damages.

Evidence on the Application 12 In support of the present application, the Plaintiffs read the affidavit of Grant Watson sworn 27 February 2007 and relied upon reports of Dr Michael Giuffrida dated 19 June 2006, Dr William Kingswell of 13 July 2006 and Dr Jonathon Phillips dated 19 September 2006, all of which were filed on 21 September 2006 with the Plaintiffs' Schedule of Documents. In addition, Mr Graham, counsel for the Plaintiffs, tendered extracts from the Manning Base Hospital records concerning Mr Pettigrove (Exhibit A).

Applicable Legal Principles 13 The leading decision with respect to the construction and application of s.85 Supreme Court Act 1970, in its present form, is that of the Court of Appeal in Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496. 14 The High Court of Australia refused an application for special leave to appeal from the decision of the Court of Appeal: Malo v South Sydney District Junior Rugby Football League Limited and Anor [2008] HCA Trans 135 (7 March 2008). 15 The following summary of principles is taken from the decision of the Court of Appeal in Malo.

16 In Malo, Mason P observed at 498 [9] that the longstanding entitlement to trial by jury in civil proceedings at common law had been removed as had the "more Janus-faced statutory framework" discussed in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (cf Priest v State of New South Wales [2006] NSWSC 12 at [78]-[82], [106]-[122]). 17 The general rule for non-defamation matters is that proceedings in any Division of the Supreme Court are to be tried without a jury, but the Court has a power to order otherwise if the conditions in s.85(2) are met: Malo at 499 [13]-[14]. The presence of particular complex factual issues does not necessarily preclude an order for trial by jury, because those issues can be tried without a jury: s.85(5); Malo at 499 [15]. 18 For the purposes of s.85(2), the "interests of justice" refer to considerations going beyond the private interests of the parties, and a party's self-interested right to requisition for trial by jury is not to be endorsed in order to advantage that party: Malo at 499 [17]-[18]. 19 The Court must be positively satisfied that the disinterested interests of justice require departure from the general rule from trial by judge alone: Malo at 499-500 [18]. In determining whether the interests of justice "require" trial by jury in the proceedings, the applicant need not show "ineluctable necessity", but the statutory language of "require" connotes that which is obligatory, not that which is authorised: Malo at 501 [25]. 20 Section 85 is concerned, and only concerned, with whether the interests of justice require departure from the mandated general rule that civil proceedings in the Supreme Court are to be tried without a jury: Malo at 502 [29]. Parliament has made the call that trial by judge alone is the norm. Absence of a "representative" or "community" viewpoint is not an inherent defect of trial by judge alone: Malo at 502 [31]. 21 So long as the Court remains focused on the statutory test, it may have regard to the incidents of the two different modes of trial, both generally and in their application to the particular proceedings, but it must not lose sight of the fact that, as a general proposition, it must be assumed that each mode of trial is satisfactory and calculated to produce a fair trial of the action according to law: Malo at 500 [19]. 22 Section 85(2)(b) does not direct or permit the Court to weigh which mode of trial is preferable in the proceedings, and to prefer trial by jury if traditional considerations or perceptions would have supported that mode. Nor does it permit judicial fact finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern "moral, ethical or general social values", assuming them to be relevant to the task at hand: Malo at 502 [31]-[32]. 23 The presence of fraud allegations, or major credibility issues, will not suffice for an order for trial by jury. Judges can and do decide such matters frequently and, unlike juries, their reasons are fully exposed, thereby aiding appellate accountability, itself a matter that serves the interests of justice: Malo at 502 [33]. Having made these observations, Mason P continued in Malo at 502 [33], in a passage relied upon by the Plaintiffs in the present application: "This is not to deny that the combination of serious credibility issues and something more (for example, a serving judge as a potential witness) might require trial by jury in the interests of justice." 24 Decision making may be value laden, but great caution is required before a court could be satisfied that reference to "community" or "moral, ethical or general social values" were pertinent to any proceedings, and that this could satisfy the judge that the interests of justice required departure from the general rule: Malo at 502-503 [34]. 25 It is the judge, not the jury, who decides whether a duty of care exists and what is its scope. While the jury determines factual issues, including questions of breach and negligence, that task proceeds in accordance with the law as directed by the judge. In negligence, it is concerned with what is reasonable in the circumstances, in light of the evidence presented and the verdict of a jury has no precedential value: Malo at 503 [35]. 26 A juror has no authority to disregard instructions because he or she is unhappy with the morality of the ground rules. Moral, ethical or social values are only pertinent so far as they address the task at hand. They should be clearly identified if they are to be taken into account as part of the reasoning towards satisfaction that s.85(2)(b) is met: Malo at 503 [36]. 27 Since a jury verdict has no precedential effect, the novelty of the context adds nothing to deciding whether the interests of justice require the participation of jurors: Malo at 505 [46]-[48]. 28 Care must be taken where it is submitted that the subject matter of the proceedings are such that a "community activity" is involved, so that members of the general community are said to be well equipped to exercise a fact-finding function: Malo at 515 [49]-[50]. Mason P continued in Malo at 505-506 [51], in a passage relied upon by the present Defendant: "In any event, I fail to see how community involvement in amateur sports administration could in itself lead to a court being satisfied that the interests of justice require a trial by jury. Members of the public have daily contact with roads and footpaths and many of them are ratepayers who may have a financial concern in the way in which local council's conduct their affairs. But these matters could not conceivably, standing alone, enliven the interests of justice to require trial by jury in preference to trial by judge alone in such matters. Sadly, cases involving injuries arising out of amateur sports injuries are quite commonplace. There is nothing that creates the reality or perception that the interests of justice would be undermined by judicial determination of such matters."

Submissions of the Plaintiffs 29 Mr Graham emphasised that Parliament recognised, in s.85, that a civil trial with a jury would be appropriate in certain cases. Each case is to be assessed on its own facts. 30 Mr Graham submitted that issues of credit will arise with respect to the medical and nursing staff at Manning Base Hospital given what he submitted was the sparse and, in some instances, non-sequential hospital notes. In response to questions from me, Mr Graham acknowledged that an inquest into the death of Mr Rose had taken place at which certain nurses and a medical practitioner had given evidence. He submitted, however, that as the evidentiary source concerning events at Manning Base Hospital on 20-21 July 2004 would be the oral evidence of nursing and medical staff, taken with hospital records, significant credit issues existed. This was especially so, given that both Mr Rose and Mr Pettigrove were deceased. 31 Mr Graham submitted that the Defendant is a State government authority, and the claim of the Plaintiffs is that the action or inaction of the staff at the Manning Base Hospital led to the death of Mr Rose at the hands of Mr Pettigrove, within 10 hours of the discharge of Mr Pettigrove from hospital. Accordingly, the claim is that a citizen lost his life due to the negligence of a government authority. He submitted that this was a most significant claim against the State, and the mode of a trial with a jury would enable the community to be the tribunal of fact. 32 He submitted that members of the community would be well placed to decide what would reasonably be expected of a public hospital in July 2004 in the present context. Such an assessment would involve the utilisation of "social values" in the sense of what members of the community believe to be an appropriate balance between treatment and cost. 33 Mr Graham relied upon the statement of Mason P in Malo at [23] above, and submitted that there was present in this case a combination of serious credibility issues and something more (a serious claim against a State authority involving the death of a citizen at the hands of another person soon after discharge from hospital) so that trial by jury was required in the interests of justice. 34 Counsel submitted that in this case justice, and the appearance of justice, required that members of the community should be charged with the fact-finding tasks involved in the determination of the proceedings.

Submissions of the Defendant 35 Mr Fordham, counsel for the Defendant, submitted that the suggested credit issues in this case did not materially advance the application. As Mason P emphasised in Malo (see [23] above), this alone will not suffice. The Defendant submitted that there were no other features in this case which could be added to the suggestion of credibility issues so as to require trial by jury in the interests of justice. 36 The Defendant submitted that the fact that the claim was brought against a government authority did not advance the application, lest it be said that trial by jury ought be more readily granted where a claim is brought against a government entity. 37 Further, Mr Fordham submitted that care must be taken when an applicant urges the desirability of community involvement in the fact-finding process. As Mason P observed in Malo at 502 [31], absence of a representative or community viewpoint is not an inherent defect of trial by judge alone, and members of the public have daily contact with many aspects of human activity but those matters do not enliven the interests of justice to require trial by jury (Malo at 505 [51]). 38 With respect to the existence of a duty of care, Mr Fordham submitted that a number of issues arose involving varying levels of complexity, including:

(a) whether any duty of care the Defendant might have owed to Mr Pettigrove extended to Mr Rose's family members (largely a question of law);

(b) whether any duty of care could require the Defendant to exercise its statutory powers to detain Mr Pettigrove, in particular having regard to the conditions that must be satisfied prior to the exercise of those powers (a question of law);

(c) whether there is a conflict between the provisions of the Mental Health Act 1990 that emphasised the importance of the liberty of mentally ill persons as a restraint on the exercise of powers of detention under that Act, such as to prevent a duty to exercise such powers arising in accordance with Sullivan v Moody (2001) 207 CLR 562 (a question of law). 39 The Defendant submitted that, having regard to ss.43 and 43A Civil Liability Act 2002, a question would arise, assuming the existence of a duty of care, whether or not the conduct of the Defendant in this case was such that no hospital having the same functions and powers could have considered the conduct of the Defendant to be a reasonable exercise of its functions and powers. Mr Fordham submitted that this was a question of irrationality or unreasonableness, and not a question of what the reasonable person might have done, let alone what the reasonable member of the public is entitled to expect. The Amended Defence also sought to invoke s.5O Civil Liability Act 2002 concerning the standard of care for professionals. 40 Mr Fordham submitted that the fact that the Plaintiffs seek to demonstrate that the interests of justice require a jury trial by reference to what the public are entitled to expect, exposes the vice of a jury trial in a case such as this. He submitted that, while judges are accustomed to considering the effects of limited resources, conflicting responsibilities and incompatible obligations on the performance by public authorities of their functions, members of the public in general are not. The effect of this, the Defendant submitted, is that any trial by jury will necessarily be significantly longer, and require detailed evidence to be adduced as to those conflicting responsibilities, limited resources and consideration of various statutory provisions. 41 Further, Mr Fordham submitted that a trial of these proceedings will involve consideration of the statutory responsibilities of mental health professionals, the interaction between those statutory responsibilities and the exercise of clinical judgment in a particular case. The Defendant submits that these are not simple factual issues which invite the application of a community standard. 42 To the extent that the case might raise an issue as to what the general public might expect concerning the treatment and management of mentally ill persons in a country town, the Defendant submitted that a jury trial in Sydney is unlikely to provide the necessary perspective to make that consideration a persuasive one. 43 The Defendant submitted that the ultimate determination of liability in this case will involve resolution of issues of pure fact, issues of mixed fact and law and the application of various statutory provisions governing the exercise of the functions of the Defendant in respect of mentally ill persons, and the application of the exculpatory provisions of the Civil Liability Act 2002. Mr Fordham submitted that the proceedings are complicated and that, for that reason alone, the interests of justice favour the determination of the dispute by judge sitting alone, subject to the discipline of providing cogent reasons for each step of the reasoning process, rather than the simple delivery of a verdict by a jury. 44 Mr Fordham submitted that the ordinary method of adducing expert evidence in matters in the Professional Negligence List involves the taking of concurrent evidence. This process involves the preparation of reports (including a joint report), a meeting of experts, the tender of reports and the active role of the trial judge in the adducing of evidence concurrently, all of which enhances the fact-finding function of the trial judge. If trial by jury is used in a case such as this, the expectation would be that each expert witness would give evidence orally in the Plaintiffs' and Defendant's cases. The advantages of concurrent evidence would not be available to the jury to assist its fact-finding function. Mr Fordham submitted that this was a further feature which stood in the way of a finding that the interests of justice required trial by jury in this case. 45 Finally, Mr Fordham referred to the decision of Cooper AJ in Chambers v North Coast Area Health Service (NSWSC, 15 November 2005, unreported). The Defendant submitted that the facts of that case bore similarities to aspects of the present case, involving a claim by relatives of persons killed by a person released from a psychiatric facility, and that similar considerations supported the same outcome to the present application. Mr Fordham submitted that the position of the present Plaintiffs was more difficult again than that of the Plaintiff in Chambers, given that the judgment of the Court of Appeal in Malo was given after that of Cooper AJ in Chambers, and that the application of the principles in Malo posed a sterner test for an applicant under s.85 of the Act.

Resolution of Competing Submissions 46 The general rule for proceedings such as these is that they are to be tried without a jury: s.85(1). The Court has a power to order otherwise if the Court is satisfied that the interests of justice require trial by jury. 47 In my view, the submissions of the Plaintiffs tend to skate over the levels of complexity, at a legal and factual level, present in these proceedings. The Court must not lose sight of the fact that, as a general proposition, the two modes of trial must each be assumed to be a satisfactory mode calculated to produce a fair trial of the action according to law. However, so long as the Court remains focused on the statutory test under s.85, the Court may have regard to the incidents of the two different modes of trial both generally and in their application to the present proceedings (see [21] above). In this case, regard may be had to the complexity of issues raised in the proceedings, including several questions of mixed fact and law, and the effective loss of the ability to take concurrent evidence with its significant advantages ("Expert Witnesses", Report 109 (2005), paragraphs [6.46]-[6.62], New South Wales Law Reform Commission) which would result from the use of trial by jury. 48 It is not self-evident that significant credibility issues will necessarily arise in this case. However, assuming that will be so, that feature does not significantly advance the present application (see [23] above). The Plaintiffs seek to add to that factor the fact that these are proceedings against a government entity alleging wrong doing leading to the loss of life of a citizen. I am not persuaded that these considerations, taken together, lead to a conclusion that the interests of justice require trial by jury in this case. 49 Although the decision of Cooper AJ in Chambers was given before the Court of Appeal had determined Malo, I consider that aspects of the judgment in Chambers assist the resolution of the present application. Although, Mr Graham emphasised factual differences between Chambers and the present case, it does not seem to me that those differences bear in any significant way upon the present application. 50 Cooper AJ in Chambers observed at [24]-[25] that questions of law were involved concerning the existence of the duty of care, and the content of that duty, and that those questions of law bore upon the factual questions to be determined. The submissions for the Plaintiff in support of the application for trial by jury in that case (at [26]) bore some similarity to those advanced in support of the present application. In particular, the Plaintiff contended in Chambers that there was a fundamental question concerning the level of care and responsible conduct which the public is entitled to expect from a public psychiatric facility, and that this question fell to be considered in a context where a "theoretical risk … became a brutal reality" to innocent members of the public. 51 In broad terms, I accept the submissions of the Defendant on this application. 52 Of course, it is necessary to concentrate upon the facts of the present case in determining the outcome of the application. Having considered the facts and circumstances of the present case, and the submissions advanced with respect to the application, I express the conclusion that the Plaintiffs have failed to satisfy the Court that the interests of justice require a trial by jury in these proceedings.

Submissions 53 In the event that the present application failed, Mr Fordham submitted that an indemnity costs order ought be made against the Plaintiffs. He relied upon correspondence from the Defendant's solicitor to the Plaintiffs' solicitor in 2007 and 2008 referring to the decision of Cooper AJ in Chambers, and then that of the Court of Appeal in Malo. The correspondence invited the Plaintiffs to withdraw the present application, and foreshadowed that a special costs order would be sought in the event that the application was pressed and was dismissed. Mr Fordham submitted that the present application, in reality, was doomed to fail in light of the decision of the Court of Appeal in Malo. 54 Although Mr Graham accepted that costs should follow the event, he submitted that an indemnity costs order ought not be made against the Plaintiffs if the present application failed. He submitted that s.85 left open the ability to make an application for trial by jury, and that the Plaintiffs were entitled to bring the application to be determined on the merits by the Court. He emphasised that it remained for the Court to determine the application in light of the facts and circumstances of the case at hand.

Decision 55 Costs are in the discretion of the Court, and the Court may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s.98(1) Civil Procedure Act 2005. If the Court makes any order as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made: r.42.1 Uniform Civil Procedure Rules 2005. 56 Although it may be said that the Plaintiffs did not have good prospects of success on the present application, either before or after the decision of the Court of Appeal in Malo, it was open to the Plaintiffs to make application under s.85, an avenue which Parliament has left open to litigants in civil proceedings. The task of an applicant under s.85 is an onerous one. The Plaintiffs sought to discharge the statutory test in s.85, but have failed. Although the correspondence from the Defendant's solicitor put the Plaintiffs on notice as to the present costs application, I am not persuaded that a special costs order should be made in this case. 57 The Plaintiffs should pay the Defendant's costs of this Notice of Motion on the ordinary basis. These costs do not become payable until the conclusion of the proceedings: r.42.7 Uniform Civil Procedure Rules 2005.

Progressing the Litigation 58 These proceedings were commenced in this Court on 21 September 2006. In early 2007, the present Notice of Motion was filed together with Motions by the then Defendants, one seeking to amend its Defence and the other seeking dismissal of the claim against it. All Motions were adjourned, by consent, on no fewer than eight occasions between March 2007 and 6 April 2009, at which time they were listed for hearing on 30 July 2009. The parties resolved the Defendant's Motions on 29 July 2009 so that there is now one Defendant in the proceedings and an Amended Defence has been filed. The Plaintiff's application for a jury trial has now been determined. 59 As I observed in a judgment on 29 July 2009 refusing yet another adjournment application, the history of the proceedings in this Court does not sit well with the obligations of litigants under s.56 Civil Procedure Act 2005. I propose to give directions to progress this litigation, and the expectation of the Court is that the parties will move the proceedings, in a timely fashion, through the remaining interlocutory phases to allow a hearing date to be fixed.

(a) the Plaintiffs' Notice of Motion filed 30 March 2007 is dismissed;

(b) the Plaintiffs are to pay the Defendant's costs of the Notice of Motion on the ordinary basis, such costs not to be payable until the conclusion of the proceedings.

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