The New South Wales Court of Appeal (Beazley P, Macfarlan JA and Garling J) late last week published its decisions in McKenna & Simon v Hunter & New England Local Health District [2013] NSWCA 476.

The Court allowed the appeals by McKenna & Simon (the , whose mental harm claims had failed at first instance.

On 20 July 2004 Mr Stephen Rose was concerned about the mental state of his friend Mr William Pettigrove, and arranged for him to be taken by ambulance to the Manning Base Hospital in Taree . Mr Pettigrove was compulsorily detained at the Hospital under the Mental Health Act 1990. After a subsequent assessment by a psychiatrist working at the Hospital, Mr Pettigrove was discharged  into the custody of Mr Rose to enable them to travel by car to Victoria where Mr Pettigrove’s mother lived. When the two men stopped on the Newell Highway near Dubbo after nightfall, Mr Pettigrove strangled and killed Mr Rose. Before his subsequent suicide, Mr Pettigrove said in an interview with police that he had acted on impulse, apparently believing that Mr Rose had killed him in a past life and seeking revenge. In these proceedings the late Mr Rose’s mother and sisters claimed damages for psychiatric injury.

The Court summary of the decision is reproduced below:

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

 

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

 

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

 

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

 

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

 

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