Reasons for judgment
16 At the beginning of his judgment, Judge Graham said that before Mr Hodder was placed with the hospital the University made a criminal records check by application to the Department of Health which disclosed several convictions in the name of Mr Hodder. It revealed that he had been dealt with at the Cowra Local Court and sentenced to fixed terms of three months imprisonment in relation to one charge of assault, one of stalking, one of unlawful entry and three charges of breaching an apprehended domestic violence order. This resulted in the University, on 29 May 1997, sending a fax transmission to the manager of the relevant section of the Health Department with information in these terms:
"Following an interview with Mr Ian Arthur Hodder concerning his identified criminal record during the recent checks, the following is included for your deliberation.
Following discovery of a situation by Mr Hodder, he was involved in a domestic dispute with his then wife and an incident developed for which he was later charged. Subsequent to this, the domestic situation has been resolved, the marriage ceased, and no further incidents of this nature have occurred."
17 This suggested that the matters were all related to a specific episode of a domestic nature and represented an isolated act or series of acts committed by a man, who was then 35 years of age, in circumstances where in the two years after the convictions no further incidents were said to have occurred. In the view of the manager, the placement could proceed. He expected that a student nurse would be subject to supervision.
18 Ms Brown's case was that as a result of an unwanted act of sexual intercourse and, on her version, a criminal act by Mr Hodder, she suffered the ordinary pain and suffering which might be expected to flow from such an encounter, including the distress of the discovery of pregnancy as a result of the act of intercourse and of the need to undergo a termination procedure. Further, she alleged that the incident gave rise to an exacerbation of her existing psychological condition and brought about additional psychological harm to her.
19 It was clear that, since 1996, Ms Brown had been receiving treatment, including psychiatric treatment, and that the appellant was aware of the state of her mental health from time to time and had allocated a case manager to provide and co-ordinate the treatment administered to her from time to time. A document headed "Mental Health Case Management" from the appellant's discovered documents was in evidence (exhibit C). Against the side note "Outcome" appeared "To ensure that all clients of the mental health service receive the appropriate care and treatment through a co-ordinated case management process and according to their respective needs."
20 In his reasons for judgment Judge Graham said the following about this document:
"It is clear from the document that the system is a process intended to draw together all necessary services for a particular client into a single coherent local system. The allocated case manager is the person who bears the primary responsibility for ensuring that within the Mental Health system the clinical and functional needs unique to each client are met consistently. To do so involves ensuring that a full cycle of assessment, planning, implementation and regular review occurs for that individual patient. The fulfilment of that responsibility includes the coordination of resources to meet that patient's needs from within the Mental Health system and from a wider physical, social and cultural environment. The document asserts, and the evidence in this case establishes, in any event, that the interaction between the case manager and the client is an important therapeutic tool, ensuring effectiveness and continuity of care. It goes on to say 'the case manager is counsellor, mentor and advocate on behalf of the client'. Case management is intended to be assigned to one case manager only, at least ideally, and the document speaks of the pivotal role and primary responsibility of that case manager.
The case manager, according to the document, undertakes to ensure a number of matters. They include a monitoring and regular review of progress, a preference to delivering service to the client in their own environment, wherever possible, and with the permission of the client, an updating and modifying of plans according to progress, and implementing changes; involvement of the client, family, and significant others in all planning or changes of plans; identification and action to ensure gaps in services and resources are filled, for example, lack of housing or lack of social network; counselling of the client; crisis availability, including access to case manager or designated substitute, for example, a rostered team member at all times; continuity of case management services for as long as they are needed, that is as long as the client remains at risk due to psychiatric disorder; full consultation with the client, care givers, area team, and any significant other likely to take over care prior to referral, transfer or case closure. Those are some of the case management functions identified in exhibit C.
Under the heading 'client needs' the document asserts 'the case manager shall ensure that attention is given to all aspects of the client's needs. This will include' - then follows a page long list of items, including all impairments, disabilities and handicaps as a consequence of psychiatric disorder; reducing psychiatric symptoms; improving acceptance of and cooperation with treatment; economic issues; family relations; personal dignity and self esteem; social network; fellowship, acceptance, tolerance; sexuality/intimacy.
The relationship is one in which the case manager seeks to establish and maintain trust and rapport with the client and seeks to achieve an appropriate balance between active and assertive involvement while the client remains at risk and being non-intrusive in the individual's or family's life. The case manager must use the therapeutic relationship as a means of ensuring continuity and a cooperative and collaborative approach to the client's treatment and care."
21 Ms Mayers was appointed case manager for Ms Brown. His Honour found, on the evidence, that the case manager and those involved with Ms Brown's management were conscious of the structure of the plan and of the functions and objectives of such a form of treatment. The system was being implemented at various stages and in circumstances which suggested that both Ms Brown and the appellant understood that it was an arrangement of a type such as that described in the document itself. Ms Brown's condition and progress were continually recorded and monitored. Her case manager was in contact with her, and when not available, a designated and rostered staff member of the appellant stood in place for the nominated case manager. A consequence of this system was that not only did the appellant become well aware of the conditions, needs and behaviour of Ms Brown, but did so in a context of an ongoing and considerable involvement in aspects of her day to day life. These included contact outside the formal structure of clinics or hospital surroundings, and clearly put the case manager in the position of a person, who was regarded both by Ms Brown and by the appellant's officers, as a person who truly was in the role of a counsellor, mentor, and advocate on behalf of Ms Brown.
22 Judge Graham said:
"In the course of the implementation of this plan of management, the first defendant's officers became aware of many aspects of the plaintiff's conduct, behaviour, and thought. Those officers, [in] particular the case manager, were in a position to evaluate her strengths and weaknesses in terms of her capacity to deal with her psychological condition and its consequences. They were consciously monitoring, at all relevant times, the plaintiff's response to her programme of treatment and on the lookout for signs or indications that the level of supervision or contact or treatment might need to be modified to augment the normal level of attention given to her."
23 His Honour set out the history of Ms Brown from the time of the birth of her son in 1996. In addition to the matters that I have already referred to, there was a history of bipolar depression on Ms Brown's father's side. She gave a history of a previous episode of depression after a miscarriage two years earlier when she was started on Zoloft. Her gambling problems had given rise to multiple financial worries. She was described as being depressed, sleeping poorly, emotionally labile and with a decreased appetite. After her discharge from Moruya District Hospital in June 1996, she was prescribed Zoloft and Mogadon. For her borderline personality disorder, she was prescribed Lithium Carbonate. On one occasion, self-mutilation involved the use of a razor blade to her stomach, thighs and both inner arms. At another stage, she was given a course of seven unilateral ECTs. Self-mutilation in April 1997 required five sutures. In May 1997, her medication was Melleril, Zoloft and Valium. In June 1997, she expressed the view that suicide was her only option to get out of the mess in which she found herself.
24 When Ms Brown first met Mr Hodder she understood he was the person detailed to take her outside when she wanted to have a cigarette. The hospital manager gave evidence that Mr Hodder was restricted to undertaking rudimentary training and was under very close supervision on a one to one basis. He was not involved in providing medical treatment, nor had his conduct at the hospital, during the period of placement, been in any way remarkable. It gave rise to no concern on Ms Brown's part. Ms Brown described Mr Hodder as a person who would "more or less counsel me while I was a patient". His Honour regarded this as more in the nature of a conversation about issues generally rather than a formal structured session of counselling.
25 Mr Hodder was not closely supervised in the sense of being under the constant and vigilant eye of a member of staff at every moment of the shift. Since part of his duties included mundane activities, such as accompanying Ms Brown outside, he had the opportunity, in the course of his rostered shift as a trainee, to engage in conversations with her. These were not described by Ms Brown in terms which suggested any overt impropriety about their nature or the topics dealt with.
26 While Ms Brown was in the hospital she provided Mr Hodder with her telephone number. She agreed that when she was discharged from hospital she would contact Ms Mayers for a follow up appointment on 18 June and she would contact the mental health team via an 1800 number provided for after hours access, if it was necessary. The trial Judge said there was no doubt that she was aware of the existence of that service and that it was free and available 24 hours a day. She was encouraged to use it whenever she was feeling anxious or if she felt suicidal.
27 On the evening of 17 June, Ms Nash telephoned Ms Brown. At that point Ms Nash was the person acting for the case manager. She became aware that a student nurse had telephoned Ms Brown and was proposing to visit her at home that night.
28 The trial Judge said:
"In a statement to the police made a few weeks after these events the plaintiff expressed the view that she was comforted by the fact that Ms Nash knew that Mr Hodder was coming to see her. Ms Nash did not regard whatever it was she said as intended to convey any approval to social contact between the plaintiff and Mr Hodder. Indeed, it is clear that the knowledge gained in that conversation caused Denise Nash concern about the ethical issues arising from a student nurse seeing a patient socially. She said that flowed from her knowledge of what was described as an unspoken rule that staff did not have personal relationships with patients. She rang Mr Garland, who was the clinical nurse consultant, and he advised her to contact the acting manager Mr David West. Mr West was unavailable at that time but the next day she told him of the contact between the plaintiff and Mr Hodder. Mr West referred her to Mr Robben, [the Health Services Manager of Bateman's Bay Hospital] who was unavailable. A meeting took place between Denise Nash and Celeste Mayers when Ms Mayers was informed of the approach made the previous evening. It appears from the evidence that, on 18 June, Mr Hodder worked at the Bateman's Bay Hospital and was thus capable of being contacted during that day by members of the Mental Health team or those responsible for his more immediate or general supervision in the hospital throughout the placement."
29 On 18 June, Ms Mayers visited Ms Brown at her home. Ms Brown told Ms Mayers that Mr Hodder had visited her on the previous evening and that he was concerned about her safety and felt he needed to talk to her after he had himself viewed an autopsy. In the course of counselling the plaintiff, Ms Mayers tried to impress upon her the need to be "up front" with the men in her life. But, Judge Graham found, it was clear also, that she did not convey to Ms Brown a distinction (which was present in her own mind) between contact between her and the student and contact between her and two other men who had been mentioned in the conversation, one who lived in the flat behind her parents' home and the other an employee of the local RSL Club. Ms Mayers was herself, by that stage, concerned about the contact between Mr Hodder and Ms Brown.
30 The next day, before the sexual assault took place, Ms Nash spoke to Ms McIntyre, the Deputy Health Services Manager of the appellant, about the contact between Mr Hodder and Ms Brown. In the opinion of Judge Graham, "rather curiously", they decided they would meet with the manager, Mr Robben, but not until Monday, 23 June 1997. Mr Hodder worked again at the hospital on 19 June and 20 June when his placement was supposed to conclude. As his Honour said:
"In other words, there were three days, 18, 19 and 20 June, on which the issue of his contact with the plaintiff could have been raised with him had there been a need to do so. Certainly both Ms Nash, who had the initial contact with the plaintiff, and Ms Mayers, the case manager who followed up the issue, each had their own concerns about the inappropriateness of the contact, stemming from the inappropriateness of a staff member having a social relationship with a patient."
31 Ms Nash felt that Ms McIntyre would seek out Mr Hodder, pat him on the shoulder and have a word with him but that did not happen. Thus, before Ms Brown and Mr Hodder met by coincidence in the local RSL Club on the evening of 20 June 1997, there had been two opportunities for the appellant's officers to advise Ms Brown specifically about the inappropriateness of contact between herself and Mr Hodder and, on each of the three days, an opportunity for the appellant's officers to warn off Mr Hodder. Mr Hodder was not spoken to and Ms Brown was given advice, only in general terms, which failed to specify the difficulty involved in any proposed social relationship with a student nurse.
32 Ms Brown gave relatively contemporaneous accounts within a few weeks by way of a handwritten statement prepared for her solicitor and a statement to the police, forming part of her complaint of sexual assault on the part of Mr Hodder.
33 Of the events which began on 17 June 1997, Judge Graham said:
"On the evening of 17 June the visit of the student nurse to her home had been one which might have been regarded as not a threatening or intrusive visit in some respects. They simply sat and talked and listened to music. The plaintiff viewed it as a pleasant visit. She drove him home because he was staying a fair distance from her own home. Nothing about the visit caused her any concern or alarm and, at that stage, she had no plans to meet up with him again.
On the other hand, despite the particular visit being fairly unremarkable, when she spoke to Celeste Mayers the next day at her home, she stated to Celeste Mayers that she did not want any attention from men at all. She sent on to say 'Ian had asked her out for dinner tonight but she didn't want any men in her life'. Part of the advice given by Ms Mayers was that, apart from being up front with men, particularly those she did not want in her life, she advised her to avoid going to places where she was meeting men in clubs or hotel situations where she was gambling. At that stage, the plaintiff had had no plan to meet up with the student again and she did not suggest to Ms Mayers that she proposed to have any further contact with him."
34 The trial Judge summarised Ms Brown's account of what happened on the Friday evening of 20 June and the early hours of 21 June 1997. Ms Brown had been to the Bowling Club, where she had had one glass of beer and had played the poker machines for a while. She said that she must have taken a few Valium that night or that day because she was not in the mood for talking. After the Bowling Club she went to the RSL Club, on her own, to play the poker machines. She thought she could play the machines there in peace. She went to the RSL Club from the Bowling Club at about 9.30 pm. There she met Mr Hodder and a friend of his in the foyer of the club. While the entrance formalities were being attended to they started talking. They went upstairs to the bar, she bought herself a beer and Mr Hodder and his friend bought Coca Cola. She went to play the poker machines and Mr Hodder followed her and sat next to her. His friend in the meanwhile had gone to the TAB but then rejoined them. Mr Hodder was putting money in the poker machine next to the one Ms Brown was using. Mr Hodder's friend went off and played other machines. Mr Hodder stayed. Ms Brown said that Mr Hodder knew she had a gambling problem and kept saying he wished she would stop playing. The friend returned and the two men went to watch football for a while, presumably on television. Ms Brown got herself another beer and kept playing the poker machines. She said she probably should not have had the third beer because she then started to feel "quite wasted". The two men came back and said they had to start work at 7 am. Mr Hodder's friend went home.
35 Ms Brown was under the impression that Mr Hodder was due to work at the hospital on the Saturday. Her subsequent conversation with Ms Mayers was couched in terms indicating that she thought Mr Hodder would be working at the hospital on the Saturday until about 3 pm. She mentioned that later, as a matter concerning her, when Ms Mayers asked her if she would be admitted to Bateman's Bay Hospital, Ms Mayers having expressed some concerns about the effect of this incident upon her.
36 Mr Hodder and Ms Brown stayed until the club closed at midnight. They were talking. When they walked downstairs Mr Hodder came over to her car and she asked him if he wanted a lift home or to come to her place for a cup of tea. She said that because he had been over to her house before, she could trust him. He elected to come to her place and wanted to talk to her. She believed, that because he was one of the nurses working at the hospital and she had been in hospital the week before, he at least knew that she had "a lot of hassles". He seemed to have some knowledge of her condition because he kept telling her that he did not want her to kill herself and that he wanted to help. They sat in front of the fire talking.
37 There followed a distressing telephone conversation between Ms Brown and a relative. By the end of that conversation, she said, she was quite depressed. Mr Hodder mentioned how quiet she was. She took more Valium and said she was really tired and had to go to bed. She reminded Mr Hodder that he had to start work in a few hours and that she felt unable to drive. She offered him the loan of her car saying that he could bring it back at morning tea the next day and she would run him back to work. He seemed concerned about her. He did not want to accept that offer. She suggested he could sleep on the floor or in the spare room and she would be fit enough to drive by 7 am when the Valium would have worn off. He said it was not fair for him to sleep in those locations when she had an electric blanket. She told him that that was "bad luck" because she did not want him in her bed. She did not want a one-night stand and she did not want a relationship. She told Mr Hodder that if he felt differently he had better leave straight away. Apparently he acknowledged that situation. She told him to choose either the floor or the spare room and he stayed in the lounge room. She went to the bedroom to change and returned to the lounge room and told him that she was going to sleep so he had better decide what he was doing. She said she felt "really wasted". She got into bed and described herself as nearly crashing out straightaway. She was aware at that stage that he was still in the lounge room. Then he was lying on the bed next to her. She told him to get off and reinforced that she did not want sex. He told her that he would massage her to sleep. She voiced concerns about that. He assured her it was part of his job and described having massaged one of the patients who was in the room next to her when she was in the hospital.
38 Ms Brown said she found herself lying in bed, her body was totally exhausted and it was difficult to move because of the Valium and alcohol. He started to rub her back and she nearly fell asleep and then he started touching her. She told him to stop it and if he wanted to go further he had to leave. She thought he was leaving because he got up and she remained lying in the bed. She said she was too tired to even roll over. Then he got under the blankets with her wearing only boxer shorts. She told him, for what she said was about the tenth time, that she did not want sex but he said that she should just relax. She said she could not do much else because she was hardly able to move. He started massaging her again and touched her where she did not want to be touched. She told him not to. She then described him going down. She said she did not want him to do this and said no but he continued. She said she was so out of it she was powerless to do anything physical to him. She said the Valium must have affected her physically more than mentally because she knew she did not want him to do it but her body could not fight him off. The next thing he was on top of her having intercourse, with her still just lying there. She recalled saying that she hoped he used a condom because she was not on the pill. He told her he would be careful. She said "no" but he continued. Eventually he got up and went to get a towel to clean up. She continued just lying there. She wanted him out of her house, so, as soon as she felt strong enough, she got up and told him she was taking him home. She said she should not have driven but she just wanted to get him out of the house, so she drove him home.
39 When they arrived at his temporary home, he told her that he really cared about her, lent over and kissed her before he got out of the car. She described herself as being really disgusted by what had happened and that she felt really sick and ashamed. She did not want this to happen and felt dirty so she went home and sat in the shower for what seemed to her like half an hour.
40 Later in the morning her counsellor telephoned her. Ms Brown told Ms Mayers what had happened. She stated specifically "at no time did I consent to sexual intercourse but I felt I could have been more forceful in saying no." She told Ms Mayers that she was under the influence of Valium and alcohol. She indicated that she did not want the police or anyone to know what had happened. Ms Mayers said that she would need to let Ms Nash, her nursing manager, know about the incident. Ms Brown also expressed her concern about being pregnant because of what was described as the unsafe sexual intercourse. In that context Ms Mayers said: "I am worried about the high risk of you committing suicide and would you be admitted to Bateman's Bay Hospital." Ms Brown answered: "Yes, but Ian will be working there until 3 pm today." After Ms Mayers had arranged for the first dose of the morning after pill to be given to Ms Brown at her home, she was taken to Bateman's Bay Hospital for admission. She agreed she would stay there until 26 June. On 8 July Ms Mayers told Ms Brown that her pregnancy test was positive. Ultimately, Ms Brown required a termination which, in itself, was a matter of ongoing distress for her.
41 Ms Brown's case was that what occurred amounted to a sexual assault, that is to say, sexual intercourse without consent, in circumstances where Mr Hodder must have known that Ms Brown was not consenting or was at least reckless as to that issue. Mr Hodder was not a party to the proceedings and had not been called. He had apparently left the country. Judge Graham approached this question with considerable caution but was satisfied that Ms Brown had established on the balance of probabilities and applying the Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-3) that the act of intercourse was one to which she did not consent and in respect of which she communicated that lack of consent to Mr Hodder. In short, a sexual assault was established.
42 Judge Graham said:
"It occurred, ultimately, because there had been a coincidental meeting at the club. Mr Hodder had inveigled himself into the confidence of the plaintiff. She had invited him home with the memory that the earlier encounter had not been of any particular moment and he had so manipulated events once he was at her home as to engage in sexual intercourse with her, either without consent or in circumstances where her consent amounted to no real consent in any substantial form. But, to the extent that it is relevant to express a preference for the appropriate interpretation of the event, I accept that the plaintiff has established that this amounted to a sexual assault. In any event, the plaintiff certainly has always viewed it as such and conveyed that view as early as the next morning when she spoke to Celeste Mayers. Thereafter she made the two statements to which reference has been made and, ultimately of course, that included a willingness to make a statement to the police concerning these events."
43 Ms Brown's case was that the event was such as to produce in her an exacerbation of her existing psychological condition and the production of a post-traumatic stress disorder at least for some time after the incident occurred. Ms Brown claimed that the appellant owed her a non-delegable duty of care to do various matters which were alleged in the statement of claim and included a duty to administer timely and appropriate medical treatment, including psychiatric and psychological treatment; to protect her from foreseeable harm; to advise her from time to time as to the manner in which she could safeguard and enhance her mental and physical health; to take reasonable and timely steps to ensure that she was not exposed to persons who would take advantage of her mental state; to ensure that those servants and agents of the appellant and of other health professionals, including student health professionals who came into contact with her through the actions or to the knowledge of the appellant, were adequately appraised of the appropriate ethical standards applicable to mental health professionals. Ms Brown alleged that in circumstances where the appellant, through its servants or agents, had a substantial basis to believe or suspect that there was a material possibility that a health professional with whom Ms Brown had come in contact would use that contact with her in a professional setting in a manner inconsistent with professional ethics, to take reasonable steps to ensure that no such breach of ethics eventuated, and, in the circumstances set out above, to warn her of the dangers of associating with a health professional in a non-professional context and to take all reasonable steps to ensure that that contact did not occur.
44 Finally it was alleged that the appellant had a duty to ensure that criminal record checks were obtained of those servants and agents of the appellant, including student nursing placements, who came into contact with her through the actions or to the knowledge of the appellant.
45 The trial Judge referred to Lepore v The State of New South Wales (2001) 52 NSWLR 420. At that stage judgment on appeal to the High Court from this Court stood reserved. See now New South Wales v Lepore (2003) 77 ALJR 558. His Honour set out and took account of the principles stated in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 236-243. His Honour described Ms Brown as a particularly vulnerable patient of the appellant, who by June 1997, had a considerable history of psychological and emotional illness which had resulted in a number of hospital admissions. There were significant issues about her social vulnerability and her capacity to look after her own safety, particularly as to her willingness to engage in potentially harmful behaviour including self-mutilation and excessive gambling. The trial Judge said that the whole background of Ms Brown's association with the appellant established, and ought to have established, in the minds of the officers of the appellant dealing with her, that she was a patient who was of particular vulnerability. That vulnerability stemmed from the length of time during which she had exhibited the psychological problems, the depth of those problems and the risk to her well being that those problems represented. Issues concerning her relationship with her family, with her partner and in relation to other men, were all matters which had clearly come to the attention of the appellant and formed part of the process of treatment or management of her condition.
46 Judge Graham held that the appellant had undertaken, not only in practice, but in words, the care, supervision and control of Ms Brown. The appellant had assumed a particular responsibility for her safety in circumstances where Ms Brown might reasonably expect that due care would be exercised. Moreover, the arrangements extended beyond occasions on which there was formal contact between them. It was not limited to the duration of any admissions to hospital or any structured sessions of counselling or advice. The provision of the 24-hour phone number was an illustration of the intimacy of the relationship between the case manager and those working with her and Ms Brown.
47 His Honour said:
"The evidence in the case amply illustrates that the management of this plaintiff was conducted broadly in accordance with a wide ranging plan of that type. The plaintiff herself clearly understood that the first defendant, through its officers, was engaged in this ongoing process of treatment and counselling with her and, in those circumstances, might reasonably expect that due care would be exercised in that care, supervision or control by officers of the first defendant. The very reason for the relationship, and the need for an ongoing relationship, was essentially the plaintiff's inability to cope on her own without advice and assistance and treatment of that type. Whether it be described as a separate category of non delegable duty or simply as an instance of the category of non delegable duties imposed on those providing medical treatment is not of any particular importance."
48 The trial Judge said that the appellant was clearly under an obligation or duty to use reasonable care in its treatment of Ms Brown. His Honour was not persuaded that there was any lack of reasonable care in conducting the criminal check or in assessing that, in the circumstances, Mr Hodder might be permitted to act in the role, on a temporary basis, of a student nurse under supervision in the hospital.
49 Judge Graham said:
"The other major aspect of the plaintiff's claim, and one in respect of which I take a different view, concerns the basis which might generally be termed a failure to warn the plaintiff in relation to the inappropriateness of social contact with the student nurse. Clearly, any duty of care which the defendant had to the plaintiff, whether it be described as non delegable or simply an ordinary manifestation of the duty of care owed by a hospital authority to a patient, was one which encompassed a duty to take appropriate steps when a particular circumstance of potential harm to a patient became known to the defendant, particularly in circumstances where the patient herself might not appreciate the potential risk of harm involved in such a relationship."
50 However, Ms Brown was particularly vulnerable for reasons his Honour had expressed. The appellant was aware of that vulnerability and was aware of the interest which Mr Hodder had displayed in Ms Brown. The question was whether there was a duty of care to do any more than was actually done by the appellant when seized of that knowledge. His Honour said:
"Effectively, the first communication with Ms Nash involved, if not an express approval of contact, a question which was calculated, if not intended, to convey to the plaintiff that this was not a matter of any great concern or moment, despite the fact that Ms Nash herself thought that it was a matter of concern, particularly in view of the potential ethical breach involved. Similarly, Ms Mayers, when she gave advice in the context of the plaintiff discussing potential or possible relationships with three men including the student, did not single out the student's particular position and the risks to the plaintiff inherent in her having a social relationship with him."
51 A little later his Honour said:
"The plaintiff was a person who was particularly vulnerable and at risk, particularly in circumstances where a relationship might be formed with a person who was involved in a therapeutic relationship with her. Secondly, the student nurse was acting inappropriately from a professional point of view. In other words, it would have been advantageous to his training to have informed him, as indeed it was expected by some of the defendant's officers he would be informed, that such a relationship was an inappropriate one. In other words, if there were two duties owed to two different people, they were perfectly compatible duties and could easily be discharged without any risk of inconsistency in the discharge of those two duties."
52 There was evidence that any contact between a nurse and a patient by way of social relationships, certainly one which might become an intimate social relationship, was unethical. Mr Hodder was clearly not intimately involved in those aspects of Ms Brown's treatment which would most clearly lead to the existence of a power relationship between the person providing the treatment and the person receiving it. Nonetheless, the expert opinion in the case was all couched in terms which would lead to the conclusion (which his Honour drew) that the level of involvement of the student was sufficient to make it inappropriate, because of his involvement even in that general sense in the treatment of Ms Brown, for him to become involved in any social or intimate relationship with her, particularly at the time when the contact took place in this case.
53 Judge Graham said:
"The expert evidence also, in my view, clearly establishes that there is not only an ethical risk for the nurse or student nurse involved in such a relationship - an ethical risk which, of course, is contrary to the public interest, including the interest of a patient - but also establishes that there is a risk of harm to a patient who engages in any social relationship with a person in a therapeutic relationship with them because such a relationship may cause emotional or psychological harm."
54 Judge Graham concluded:
"In my view, the officers of the defendant who were dealing with the plaintiff in the days leading up to 20 June 1997 were aware that she was at risk of becoming involved in an inappropriate relationship with a person who had been involved in her treatment and that they ought to have known that, not only would such a relationship be inappropriate from the point of view of the nurse or student but also from the point of view of the plaintiff. There was, in my view, a clear duty in those circumstances to warn the plaintiff, and indeed to warn the student, that such a relationship ought not be fostered. The precise content of such a warning has been the subject of some argument."
55 His Honour referred to the evidence of Dr Jonathon Phillips, a medico-legal expert in the case, that there were firmly held boundaries across the nursing profession as well as the medical profession about not mixing in a treatment setting and a social setting. He was of the view that it was a slippery slope that any health professional, particularly in the mental health area, would recognise. The conversation between Ms Brown and Mr Hodder was something that might quickly get out of control. While he acknowledged that Ms Nash had been very worried about it, the problem, as he saw it, was that she did not, at that very moment, intervene in a proper manner. If she had not felt able to intervene at that point in the evening she should have rung her superior for further guidance. She should have heard the warning bells ringing on the spot and should have moved to do something about it on the spot. He said:
"that his belief was that the advice that should have been given on the night of the telephone conversation, when Mr Hodder rang on the other line, should have been about the risks to the patient as a person, an individual, the immediate risks of a relationship developing of a magnitude that would be dangerous to her or maybe not wanted by her. That was advice which should have been immediate and it would have been about matters, including sexual matters, which would have been poignant and important. He said that he thought she would have been more likely to respond to that type of advice than maybe to advice about how she treated her father, that being an issue which was not in the 'immediate' category."
56 Dr Phillips regarded the issue with Mr Hodder as a much more important and immediate one. In a discussion, which should have been held, the issue of things getting out of control and Ms Brown finding herself in the situation where she was induced to have a sexual relationship, or forced to have a sexual relationship, were of a different order. He would have addressed the slippery slope and the consequences kindly, thoughtfully and immediately. In response to a question the Judge asked him as to what extent it would have been useful to communicate to Ms Brown the ethical problem about a student nurse making contact, Dr Phillips said he thought the primary advice was about self-protection. Secondarily, it would have also been useful to give her some understanding of the risks that Mr Hodder was taking professionally, involving himself. He said that if he had been doing it, he would have put emphasis on the risk to her as a person and how things can escalate out of control very, very rapidly. He did not see any ethical constraint in either Ms Nash or Ms Mayers communicating to Ms Brown that it would be unethical or improper from the student nurse's point of view for him to initiate some contact.
57 Judge Graham emphasised that the advice which Dr Phillips thought should have been given would have been immediate advice. It would have been advice relating to the risk to the patient involved in any such association but it would have included, as a secondary element, pointing out the situation, ethically speaking, in relation to the conduct of a student nurse having a social relationship with a person in whose care he had been involved. His Honour said:
"There is nothing to suggest that giving that advice would have been, itself, in any way harmful to the plaintiff and it would, in my view, have alerted her to the risk which she was running to herself in encouraging any further contact of a social nature between herself and Mr Hodder. There was a duty to give that warning because, in my view, it was foreseeable that there was a risk of harm flowing in the absence of that warning. It could not be assumed by the first defendant's officers that the plaintiff would herself have concluded that such a relationship would have any particular harmful aspects over and above the risk of any other relationship with a male. It has not been suggested by any of the defendant's witnesses, or their expert, that the giving of that advice could have any potentially harmful impact on the plaintiff. There was a risk of foreseeable injury, and that is the risk of harm which would flow from what was an inappropriate social or sexual relationship. As I understand the expert evidence on this point, that harm would flow whether the contact was consensual or arose out of a sexual assault. It was, as I understand it, a risk of emotional harm, in the first instance, to the plaintiff arising out of her particular psychological vulnerability in the context of her having a relationship with a person seen by her and known to be seen by her as having a part in her treatment. It has been argued on behalf of the defendant that the type of harm which must be foreseeable, or reasonably foreseeable, is harm by way of sexual assault and that no such harm could have been reasonably foreseen on the basis of what was known by the officers of the defendant. In particular, the argument is that the officers of the defendant had no reason to suppose, on what they knew of the relationship as it had unfolded, that the student nurse was capable of committing an act of sexual assault on the plaintiff.
It seems to me, however, that that is to unduly narrow the range of foreseeability which the defendant was required to consider; that is, there was a clear risk of emotional harm flowing from any intimate relationship between the plaintiff and Mr Hodder. The defendant knew of the risk of there being such a relationship. These events occurred in a country town, he was staying in the town during his placement and the plaintiff lived in town. The defendant knew, after the first visit, that he had visited her home and, thus, that he knew where she lived and that he had expressed an interest in further communication with her. There was, thus, a real risk to a vulnerable patient of some initiation of an intimate relationship by Mr Hodder. The defendant ought to have known that such relationship was not only unethical or improper or inappropriate but was one which was so principally because it would give rise to a real risk of emotional harm to the plaintiff. In that connection, the risks that she would become pregnant as a result of such an association would itself carry with it real risks of emotional harm to her as well.
In those circumstances it seems to me that the foreseeability required is not one as to the precise event which occurred but as to damage of the type which occurred, that is the damage flowing from an inappropriate sexual relationship. That there was a material risk of harm was abundantly clear. There was a real risk that the plaintiff and Mr Hodder would have such a relationship, albeit that it might not have been foreseeable that it would be a violent or criminal incident that would give rise to that harm. In my view, the plaintiff has established that there was a material risk of serious harm to the plaintiff arising out of a close intimate or sexual relationship between herself and Mr Hodder. The risk being foreseeable, there being a duty to take reasonable care to prevent it and a failure to do so, the question is whether that failure to warn was productive of the damage in this case. I am satisfied that it was. There are two aspects of the argument however that need to be particularly addressed."
58 His Honour next referred to occasions on which Ms Brown had failed to act on the advice given to her by those responsible for her treatment or management. She was by no means an ideal patient in that regard. His Honour gave examples and said the question was how the advice about any relationship between herself and Mr Hodder might have had any more effect than other advice which had been given. His Honour was satisfied that Ms Brown was likely to have acted upon it. His Honour said:
"She said she would have acted upon such advice but that answer, of course, must be assessed in the light that it was given with the benefit of hindsight, but there are, it seems to me, other indications. She was anxious to avoid contact with men or with some men; she explained that to her case manager.
She indicated that she had declined an invitation from Mr Hodder made on the occasion of the first visit. She was willing to discuss the issue further with Ms Mayers and to talk about the problems that she had in relation to how she should deal with men. The circumstances in which she actually came to be in a bed with Mr Hodder on this evening were, on the evidence which I have accepted, circumstances in which she was hardly the principal actor or the person who precipitated the events. She was obviously willing to associate with him in the club and prepared, when he came and stood next to her car, to offer him the choice of a lift home or a cup of tea at her home. But the overwhelming impression of her evidence is that Mr Hodder was in control of the situation and was indeed manipulating the plaintiff, who felt powerless to stop him, even when he commenced having intercourse with her against her will. It seems to me that there is every likelihood that a clear and specific piece of advice to her about Mr Hodder would have tipped the balance against her associating with him on that evening. He was trying to inveigle himself into her confidence, as his conduct amply demonstrated, and he was using the relationship, albeit of student nurse and patient, as a device by which he could foster and enhance the confidence which the plaintiff had in him. If she had been given advice as to the inappropriateness for herself and for him, in each case for special reasons, when Ms Mayers had spoken to her or, indeed, earlier when Ms Nash had spoken to her, then there is, in my view, a very strong likelihood that the plaintiff would have accepted that advice, to the extent that she would have resisted Mr Hodder's interest on the evening of 20 June and would not have invited him to her home."
59 His Honour accepted that there was inevitably a degree of uncertainty as to how she would have acted. The intervention of hindsight made assessment more difficult. But this was an area in which Ms Brown was apparently keen to seek advice. Acting upon it, would have been generally in accordance with her desires and interests at about that time. The fact that the ultimate act of intercourse was one which was unwanted and, more probably than not, a criminal act against her, tended to reinforce the extent to which she was not interested in any sexual relationship with Mr Hodder in any event. Further, it tended to reinforce the likelihood that the plaintiff would have acted upon any advice given to her to stay away from Mr Hodder. "There would have been in her mind a good reason to rationalise to herself why she should do so, in his interests as well as her own."
60 His Honour found that the failure to give that advice to Ms Brown was a significant contributor to the damage which she ultimately suffered. This led his Honour to the second issue which needed to be particularly addressed in relation to the issue of causation, the submission that the act of Mr Hodder was a new act, an independent willed act of Mr Hodder, which broke any chain of causation. His Honour said:
"As to that submission, the fact that the damage which came to pass was at the hands of an independent actor who was, in this instance, prepared to act in breach of the criminal law to get his way is a material consideration. On the other hand the fact that he was in the house at all was, as I have indicated, a matter which arose because the plaintiff had not been armed with the advice as to the harm which might befall her emotionally from a relationship with this particular person and because she had not been armed with the knowledge that, for him to manipulate her by reference to some apparent therapeutic relationship, would itself be inappropriate behaviour on his part, as well as likely to be a source of harm to herself. The causation chain is not, in my view, broken by the act being a criminal act in these circumstances. It came about because the plaintiff was prepared to have Mr Hodder into her house in circumstances where, I am satisfied, it would be most unlikely that she would have allowed him into her house at all if she had been armed with this appropriate advice."
61 His Honour referred to a further element of the argument which related to whether a person willing to commit rape would be prepared to accept no as an answer to some earlier attempt to form some sort of relationship. His Honour said:
"Whilst nothing is impossible, logically speaking, there is nothing to suggest that, had Mr Hodder been rebuffed and/or warned off by the defendant's staff, that he would have forced the issue in the sense that he would have broken into the plaintiff's home and committed a sexual assault upon her."
62 His Honour said:
"The whole of his conduct is redolent of a person who is simply using the opportunity of having struck up a friendship or relationship with a person as a patient in hospital to foster his own interests in a sexual relationship by persuasion and manipulation, rather than by the exercise of a more substantial level of violence involved in an act such as breaking into the plaintiff's home and violently assaulting her. His conduct on this occasion was to use manipulation and persuasion to get himself into a position where he was able to have intercourse without the consent of the plaintiff. But her account does not suggest that, in the course of those acts, he displayed any overt violence or aggression other than that which is inherent in a non-consensual sexual encounter. It is not suggested that he struck the plaintiff, that he threatened her with violence or that he used any great force to overcome her resistance. Her account is that she was physically unable to offer much in the way of resistance because of her state of tiredness or intoxication at the time. It is, it seems to me, quite speculative to suggest that Mr Hodder may still have engaged in this act of sexual intercourse with the plaintiff even if an appropriate warning had been given to the plaintiff. That does not seem to have been his style or modus operandi on this particular occasion, nor is there anything else in the evidence to suggest that he might have committed an act in that different way I have described. It seems to me, therefore, that the only conclusion which should be drawn is that there was such an intimate connection between the association with the plaintiff in hospital and his ultimate opportunity to commit this criminal assault, that it should be regarded as part of the same chain of causation and not an independent act sufficient to break that chain of causation. I am satisfied, therefore, that the damage inherent in the act of sexual intercourse which was not consented to was caused, in the relevant legal sense, by the failure of the defendant to provide timely advice of the type which I have described."
63 Judge Graham awarded damages as follows: