The claimant suffered brain damage as a result of attempted suicide, when on a period of leave during the course of involuntary detention for mental illness. His claim failed at trial: Smith v Pennington [2015] NSWSC 1168. An appeal by the claimant was heard on 25 July 2016, with judgment reserved until today: Smith v South Western Sydney Local Health Network [2017] NSWCA 123. The appeal was dismissed (Gleeson JA, with Meagher JA and  Payne JA agreeing).

The issues on appeal were :

  • Whether Mr Smith was entitled to rely on a reformulation of the content of the duty of care owed to him by the respondent, that the respondent should have advised his parents that he was to be immediately returned to the SAMHU if he had any alcohol or contact with Ms Scott (whether direct or indirect);
  • Whether the primary judge erred in finding that there was no causal connection between Mr Smith’s consumption of alcohol or the text message exchange with Mr Campion during the afternoon of 16 November 2008 and his attempt to commit suicide later that evening;
  • Whether the primary judge erred in rejecting the evidence of Mr Smith’s mother about what she would have done in a hypothetical situation if she had been properly advised by the respondent.

The reasons for judgment are summarised in the headnote as follows:

1: Parties are bound by the conduct of their case at trial, and Mr Smith had not demonstrated that it was expedient or in the interests of justice or that there were exceptional circumstances justifying the Court of Appeal entertaining the new point on appeal: at [92]. Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48; Metwally v University of Wollongong (1985) 60 ALR 68; Water Board v Moustakas (1988) 180 CLR 491 cited.

2: Mr Smith should not be allowed to rely on the reformulated content of the duty of care he sought to advance on appeal, when that case had not been advanced at trial.

3: It was open to the primary judge to conclude that there was no causal connection between Mr Smith’s consumption of alcohol during the afternoon of 16 November 2008 and his attempt to commit suicide over four hours later that evening: at [138].

4: It was also open to the primary judge to conclude that there was no causal connection between the Campion text messages during the afternoon of 16 November 2008 and Mr Smith’s later attempt to commit suicide: at [149].

5: The primary judge was best placed to evaluate the matters which impacted on the weight to be given to Mr Smith’s mother’s evidence of her hypothetical actions, and his Honour was entitled to accept or reject part of the evidence of a witness as is thought appropriate, including on the ground of hindsight bias: at [178]. Gardner v Duve (1978) 19 ALR 659 cited.

9: The objective circumstances of 16 November 2008, including that Mr Smith was an adult and subject to limited control by his parents, that he appeared to be coping well and that he was unaffected by his consumption of alcohol or upset by the exchange of text messages with Mr Campion, meant that it was open to the primary judge to reject the inference based on Mr Smith’s mother’s evidence that she would not have allowed him to go on the excursion with his friends, or would have returned him immediately to the hospital on his return home: at [181]-[182], [186].

The judgment at [96] when dealing with factual causation seems to have departed from recent negative comments about common-sense, saying that it is plain that factual causation involves the application of common sense to the proved primary facts.

In relation to material contribution, the court said at [131]:

… Ground 10 contended that the consumption of alcohol and the Campion text messages were factors which “materially contributed” to the injury which the appellant suffered. In Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 at [11], Allsop P noted that the concept of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test and that “[s]ome factors which are only contributing factors can give a positive ‘but for’ answer”. In the present case the appellant’s reference to material contributions is to be understood in that sense, not in the broader sense of material contributions which at common law have been taken to be causes, notwithstanding the failure to pass the “but for” test, such as in Bonnington Castings Ltd v Wardlow [1956] AC 613, a case involving the gradual accumulation of injurious silica dust from several sources of exposure, only one of which the employer was responsible for. That type of case is now taken up by s 5D(2) of the Civil Liability Act, but as mentioned, the appellant did not rely upon s 5D(2) at trial.


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