Naidoo v Brisbane Waters Administration Pty Ltd trading as Brisbane Waters Private Hospital  NSWDC 372 saw the claimant allege that at the time of her discharge from hospital was she was suffering from tiredness, drowsiness and/or sedation and ought not to have been permitted to drive her motor vehicle home from the hospital – a distance of about 50 kilometres. She claimed against the hospital and a psychiatrist in respect of injuries suffered as a consequence of a motor vehicle accident which occurred following and shortly after the plaintiff’s discharge from the hospital.
The psychiatrist denied negligence and also sought to rely on section 5O of the Civil Liability Act 2002 (NSW). The hospital sought to deflect liability to the psychiatrist, who prescribed the medication. Both alleged contributory negligence on the part of the claimant.
The claimant succeeded against both defendants. Liability was apportioned one third to the hospital and two thirds to the psychiatrist (at ). The defendants did not discharge their evidentiary burden for a finding of contributory negligence (at ).
In relation to the section 5O evidence, the trial judge referred to the irrationality exception saying at :
The main opinion against Professor Phillips and Dr Teoh came from Professor Large whose opinion, for the reasons provided above, I do not accept. He thought the conduct of the defendants met peer professional standards of practice. I consider Professor Large’s opinion to be irrational within the meaning of s5O(2) and find that it cannot be relied upon for the purposes of s5O. Professor Large’s opinion contains an implicit assumption that the Psychiatrist assessed the plaintiff as “fit to drive”. That does not reflect the evidence of the Psychiatrist. The effect of her evidence was that she left the assessment of fitness to drive as a matter for the plaintiff herself. In my view, that could never be considered acceptable professional practice for a patient taking sedative medication.