Yesterday, 8 October 2014, saw argument before the High Court in the appeal Hunter & New England Local Health District v McKenna / Simon, from an earlier decision of the Court of Appeal (NSW) – [2013] NSWCA 476. The litigation related to claims for mental harm by the mother and sisters of a man killed by his friend, following the friend’s discharge from psychiatric care.

Five justices of the Court sat for the appeal: French CJ with Gageler, Hayne, Bell and Keane JJ.

The appellant hospital sought to ventilate a number of issues including the existence of a duty of care, breach, the widely accepted peer opinion defence and the public authority ‘Wednesbury’ provisions (regarding proceedings against public authorities for the exercise of special statutory powers).

However after hearing oral submissions only on the question of duty the Court adjourned, indicating that the Court would consider the appeal on the basis of the arguments heard thus far.

The early adjournment perhaps implies that that the High Court may allow the appeal on the duty issue, rendering the other points unnecessary to decide.

The transcript from 8 October 2014 is available online.

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