Hospital liability for sexual assault of a patient by another patient

A B v Australian Capital Territory [2018] ACTSC 16 is an unusual decision in which a young female patient claimed against a hospital, having been the victim of a sexual assault by a male patient who had been placed in the same ward as her. At the time of his admission, the male patient had been abusive and apparently affected by alcohol and or drugs. The male patient had also had a ‘significant’ history of attendances at the hospital. He later pleaded guilty to a criminal charge in respect of the sexual assault (at [9]).

The trial judge held at [24] that the male patient was a “very foreseeable danger because of his history, his conduct on presentation at the hospital and his conduct after his admission and in particular in the ward…..should not have been in that ward and he should not have been so unsupervised that he was capable of freely molesting other patients“.

The hospital sought to rely on section 110 of the Civil Law (Wrongs) Act 2002 (ACT), a section dealing with resources and responsibilities of public authorities. The trial judge noted however that there was “no evidence about the hospital’s funding, its capacity to provide extra nursing staff, its capacity to provide emergency warning systems and its ability to provide resources to prevent assaults by patients upon other patients. In addition, there was no evidence that (the male patient) could not have been placed in a bed in a different ward and there was no evidence that there was a shortage of beds available” (at [4]).

The plaintiff succeeded in her claim and damages were assessed.

With thanks to Janine McIlwraith for noting this decision.


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