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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 22 December 2003
NEW SOUTH WALES COURT OF APPEAL
CITATION: SOUTHERN AREA HEALTH SERVICE v BROWN [2003] NSWCA 369
FILE NUMBER(S):
41166/02
HEARING DATE(S): 2 October 2003, 3 October 2003
JUDGMENT DATE: 18/12/2003
PARTIES:
Southern Area Health Service - Appellant
Jodi Lorraine Brown - Respondent
JUDGMENT OF: Sheller JA Hodgson JA McColl JA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 4519/00
LOWER COURT JUDICIAL OFFICER: Graham DCJ
COUNSEL:
J E Maconachie QC/Ms J M Sandford - Appellant
Ms C E Adamson SC/S B Loughnan - Respondent
SOLICITORS:
Frances Allpress - Appellant
Button Hawdon & McMahon - Respondent
CATCHWORDS:
DUTY OF CARE - content of duty - failure to warn - CAUSATION - whether advice would have been acted upon - FAILURE TO TAKE INTO ACCOUNT EVIDENCE - whether evidence that advice potentially harmful - Browne v Dunn - DAMAGES - whether excessive
LEGISLATION CITED:
DECISION:
Appeal dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 41166/02
DC 4519/00
SHELLER JA
HODGSON JA
McCOLL JA
The respondent had been receiving treatment, including psychiatric treatment from the appellant since 1996 and had a long history of psychiatric disturbance, which was known to the appellant. During a period of hospitalisation in June 1997, the respondent became acquainted with Mr Hodder. Mr Hodder was a student nurse on placement with the appellant at Bateman's Bay Hospital for the period 10 June to 20 June 1997. After the discharge of the respondent from hospital, she had further contact with Mr Hodder, and members of the Mental Health Service of the appellant were aware of this contact. In the early hours of 21 July 1997, after accepting an invitation to accompany her to her home, Mr Hodder sexually assaulted the respondent.
The respondent brought proceedings against the appellant, claiming that the appellant had breached its duty of care to her and that, as a result, she was sexually assaulted by Mr Hodder, became pregnant and subsequently underwent a termination procedure. The respondent alleged that the incident, and the aftermath of the incident, gave rise to the ordinary pain and suffering that may be expected to flow from such an encounter, as well as an exacerbation of her existing psychological condition.
The trial Judge held that the appellant had assumed a particular responsibility for the respondent's safety, which extended beyond circumstances on which there was formal contact between them. There was a breach of this duty and consequently the appellant was liable for the violation to the respondent's personal integrity as a result of the assault, the resulting pregnancy, the consequent termination of the pregnancy and the psychiatric consequences attendant upon each of the above. The trial Judge pronounced a verdict for Ms Brown in the sum of $371,395 with interest and costs.
The appellant submitted that the trial Judge had erred in failing to take into account evidence that the giving of advice to the respondent, in relation to Mr Hodder, could have had a potentially harmful impact on the respondent. The appellant also challenged the findings of the trial Judge in relation to the content of the duty of care, that the appellant owed to the respondent, and in regard to the causal connection between failing to warn Mr Hodder not to associate with the respondent and the actual harm suffered. It was further submitted by the appellant, that the amounts awarded by the trial Judge in respect of general damages, past economic loss, future economic loss and the loss of superannuation benefits were excessive.
The respondent filed a notice of contention in which she contended that the decision of the trial Judge ought to be affirmed on additional grounds, namely, that the duty of care owed by the appellant required it to make contact with Mr Hodder to warn him against social contact with the respondent. It was submitted that there was a breach of this duty and that this breach was an independent cause of the harm suffered by the respondent.
Held in relation to the content of the duty of care and causation:
Per Sheller JA, Hodgson and McColl JJA agreeing:
1. The trial Judge's conclusions in relation to the content of the duty of care were correct. The respondent should have foreseen that a failure to warn the respondent left her open to a risk of harm, of the general nature of that which occurred, namely a sexual relationship, whether forced upon the respondent, as the trial Judge found, or not.
2. It was open to the trial Judge, for the reasons that he gave, to conclude that the respondent would have acted upon advice given to her by the appellant in relation to meeting with Mr Hodder. Similarly, his Honour was entitled to conclude that there was nothing to suggest, had Mr Hodder been rebuffed and/or warned off by the appellant's staff, that he would have forced the issue, in the sense that, he would have broken into the respondent's home and committed a sexual assault upon her.
3. The trial Judge correctly found that there was a duty owed by the appellant to speak to Mr Hodder, immediately, in order to indicate that he was not to associate, in any way socially, with Ms Brown. Further, it was held that if this happened, the probabilities were, that he would have abided by the direction. This was another basis for concluding that the appellant was liable in negligence to the respondent for the injury she suffered as a result of the assault.
Held in relation to the failure to take into account evidence:
Per Sheller JA, McColl JA agreeing:
4. Counsel for the appellant cannot avoid putting directly to its witnesses what in their opinion would have been the effect of the advice on the respondent, that Doctor Phillips and Doctor Ellard said should have been given, and then proceed on the basis that these witnesses were dealing with this question. It was open to the trial Judge to conclude that they were not, and hence, that there was nothing to suggest that the advice, proposed by Doctor Phillips and Doctor Ellard, would have been harmful to Ms Brown.
Per Hodgson JA:
5. The trial Judge was in error when he found that it was not suggested by any of the appellant's witnesses that the giving of the advice to the respondent, which Doctor Phillips thought should have been given, could have any potentially harmful impact on the respondent. The evidence of Ms Nash and Ms Mayers did suggest that such advice may well have been counter-productive and possibly harmful. There was no greater onus on the appellant than on the respondent to put to those witnesses the precise terms of the advice supported by Doctor Phillips.
Held in relation to damages:
Per Sheller JA, McColl JA agreeing:
6. The assessment of damages, particularly general damages, is a matter of discretion. In the circumstances of this case, the amount awarded does not indicate any judicial error.
7. No ground was shown for interfering with the trial Judge's award as to past and future loss of earnings and loss of superannuation benefits.
Per Hodgson JA:
8. There is some force in the appellant's contention that the primary judge gave insufficient attention to the principles in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR at 642-3, particularly in relation to damages for past economic loss. However, on balance, the more favourable interpretation of the trial Judge's reasons adopted by Sheller JA should be preferred.
Legislation:
Mental Health Act 1990
Cases cited:
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214
Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Lepore v The State of New South Wales [2001] NSWCA 112; (2001) 52 NSWLR 420
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
New South Wales v Lepore [2003] HCA 4; (2003) 77 ALJR 558
Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49
R v Birks (1990) 19 NSWLR 677
Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35; [2000] 1 AC 360
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256
Stansbie v Troman [1948] 2 KB 48
Tame v New South Wales [2002] HCA 35; (2002) 76 ALJR 1348
Wilson v Peisley (1975) 50 ALJR 207
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 41166/02
DC 4519/00
SHELLER JA
HODGSON JA
McCOLL JA
Thursday, 18 December 2003
1 SHELLER JA:
Introduction
Southern Area Health Service appeals from the judgment of his Honour Judge Graham entered on 15 November 2002 in proceedings brought against the appellant by Jodi Lorraine Brown to recover damages for the appellant's breach of its duty of care to her. She claimed, that as a result of this breach, she was sexually assaulted by a person in the appellant's employ, became pregnant and subsequently suffered termination of the pregnancy and substantial aggravation to a borderline personality disorder and existing state of depression.
2 Judge Graham pronounced a verdict for Ms Brown in the sum of $371,395 with interest and costs.
3 Ms Brown was born on 21 June 1971. She left school in 1988 during Year 11. At the beginning of 1989 she undertook a twelve months' traineeship as an office assistant. From 2 April 1991 through to 1995 she was employed in various full and part-time positions as a legal secretary until she became pregnant in 1995. On 15 March 1996, her son Jayden was born. On 8 May 1996, she presented to the Moruya District Hospital with depression. A provisional diagnosis of post-natal depression and personality issues was made thereafter. On 8 June 1996, she was admitted to Moruya District Hospital and assessed as being at great risk of self-harm or suicide. She began an anti-depressant medication and was discharged on 21 June 1996. She was admitted to that hospital again on 3 December 1996 and remained there until 18 December presenting with suicidal ideation. On 17 December 1996, she left the hospital without permission and was detained on the certificate of a medical practitioner or an accredited person in the form set out in Part 1 of Schedule 2 under the provisions of Part 2 of the Mental Health Act 1990 (scheduled) following an attempt at self-harm. On 18 December 1996, Ms Brown was admitted to Kenmore Hospital as an involuntary patient. The principal diagnosis was borderline personality disorder. She was discharged on 30 December 1996.
4 At the beginning of February 1997 she was admitted to Kenmore Hospital as a voluntary patient and diagnosed with personality disorder, hypermania and pathological gambling. Later that month she presented to Moruya District Hospital following self-mutilation and, after her release, was admitted again pending transfer to the Pialla Unit. This Court was told the Pialla Unit was a facility at the Nepean Hospital where Ms Brown underwent a course of ECT and associated treatment under the care of a psychiatrist, Professor Boyce. She was scheduled under the provisions of the Mental Health Act during admission. She was discharged to the Tresillian Family Care Centre until 29 March 1997. The detention on the schedule certificate was rescinded and a community treatment order under the Act was made by a magistrate on 27 March 1997. In April 1997, Ms Brown was admitted to Moruya District Hospital following self-mutilation and remained there from 5 to 23 April. On 11 May 1997, she was admitted to Moruya District Hospital, presenting with suicidal ideation following self-mutilation. On 28 May, she was again admitted to Moruya District Hospital and scheduled under the provisions of the Mental Health Act following an overdose of prescribed medication. She apparently continued to abuse Valium during this time. Between May and June 1997, Ms Brown continued to consume alcohol, contrary to advice given by treating doctors and counsellors.
5 On 13 May 1997, Charles Sturt University confirmed clinical placement for first year nursing students at Bateman's Bay Hospital for the period 10 June to 20 June 1997. On 10 June 1997, first year students from Charles Sturt University began clinical placement at Bateman's Bay Hospital. One of the nursing students so placed was Ian Hodder. Bateman's Bay Hospital was conducted by the appellant at Bateman's Bay.
6 On 10 June 1997, Ms Brown vacated a home she previously shared with a de facto partner and moved into rented premises to live alone. On 11 June, Denise Nash, a registered psychiatric nurse and the co-ordinator of the Mental Health team based at the Moruya Community Health Centre, reported that Ms Brown was continuing to abuse Valium. On 12 June, Professor Boyce recommended that Ms Brown undergo voluntary admission to the Pialla Unit to be "detoxed" from Valium. Ms Brown refused to consider voluntary admission. Between 12 and 13 June, Ms Brown was admitted overnight to Bateman's Bay Hospital after excessive consumption of prescribed medication. On 14 June 1997, Ms Brown was again admitted to Bateman's Bay Hospital at 11 pm following a reported episode of self-mutilation. She remained hospitalised until the morning of 17 June. During this period she met Mr Hodder.
7 On 16 June, Ms Brown requested that her family not be informed of her circumstances and gave a direction in writing to Celeste Mayers, a registered psychiatric nurse and clinical nurse specialist in anxiety disorders and depression, who had become Ms Brown's case manager, to refrain from communicating with her family.
8 On 17 June 1997, Ms Brown was discharged from the Bateman's Bay Hospital at 10.30 am. Medication was prescribed to be supervised and dispensed by a pharmacy on a daily basis in view of her history of non-compliance. On that day Ms Nash telephoned and spoke with Ms Brown. During their conversation Ms Brown received a telephone call on her mobile phone. Ms Nash was informed by Ms Brown that the caller was a student nurse that Ms Brown had met and that he was coming over to visit her. Before their conversation ended, Ms Nash ascertained that Ms Brown was happy and comfortable with that proposal. On that day Mr Hodder visited Ms Brown at her home. They sat and talked and listened to music. Mr Hodder extended a dinner invitation to Ms Brown. She declined. Ms Brown drove Mr Hodder home and they made no plans to meet up again.
9 On 18 June 1997, Ms Mayers attended upon Ms Brown and was informed of Mr Hodder's visit. Ms Brown spoke of other men in her life but told Ms Mayers that she did not want any men in her life. Ms Mayers counselled Ms Brown and advised her, amongst other things, to avoid going out to clubs and pubs where she was gambling.
10 On 19 June 1997, Ms Brown attended at the Community Health Centre for follow up. She reported that she had received a superannuation refund of $1,300 on 17 June and had lost $600 at the club in the past two days. She had plans for further spending at the club.
11 On 20 June 1997, she attended upon Ms Mayers at the Community Health Centre for follow up. She reported she had not been taking Valium as prescribed and had been gambling at the club. On that day, the first year nursing students from Charles Sturt University completed their clinical placement at Bateman's Bay Hospital.
12 Also on that day, Ms Brown went to the Bowling Club with $50, consumed one beer and played "the machines". She returned home to collect more money and went to the RSL Club. She stated that she must have taken a few Valium that day and night because she was not in the mood for talking. She met Mr Hodder in the foyer of the RSL Club at around 9.30 pm. She consumed more alcohol and played the machines until closing time which was midnight. She stated she felt "quite wasted". She invited Mr Hodder to her home and he accepted her invitation. Mr Hodder sexually assaulted Ms Brown in the early hours of 21 June 1997.
13 Later that day, Ms Mayers attended upon Ms Brown. Ms Browm informed Ms Mayers that at no time did she consent to sexual intercourse but acknowledged that she had been under the influence of Valium and alcohol.
14 On 21 June 1997, Ms Mayers arranged for her to have "the morning after pill". Later Ms Brown was admitted to Bateman's Bay Hospital.
15 During the later part of June, and throughout July, Ms Brown had multiple attendances and hospital admissions. On 30 July 1997, the pregnancy, the result of the assault, was terminated. Her attendances and hospital admissions, thereafter, continued from August 1997 through to December 1999.
Reasons for judgment
16 At the beginning of his judgment, Judge Graham said that before Mr Hodder was placed with the hospital the University made a criminal records check by application to the Department of Health which disclosed several convictions in the name of Mr Hodder. It revealed that he had been dealt with at the Cowra Local Court and sentenced to fixed terms of three months imprisonment in relation to one charge of assault, one of stalking, one of unlawful entry and three charges of breaching an apprehended domestic violence order. This resulted in the University, on 29 May 1997, sending a fax transmission to the manager of the relevant section of the Health Department with information in these terms:
"Following an interview with Mr Ian Arthur Hodder concerning his identified criminal record during the recent checks, the following is included for your deliberation.
Following discovery of a situation by Mr Hodder, he was involved in a domestic dispute with his then wife and an incident developed for which he was later charged. Subsequent to this, the domestic situation has been resolved, the marriage ceased, and no further incidents of this nature have occurred."
17 This suggested that the matters were all related to a specific episode of a domestic nature and represented an isolated act or series of acts committed by a man, who was then 35 years of age, in circumstances where in the two years after the convictions no further incidents were said to have occurred. In the view of the manager, the placement could proceed. He expected that a student nurse would be subject to supervision.
18 Ms Brown's case was that as a result of an unwanted act of sexual intercourse and, on her version, a criminal act by Mr Hodder, she suffered the ordinary pain and suffering which might be expected to flow from such an encounter, including the distress of the discovery of pregnancy as a result of the act of intercourse and of the need to undergo a termination procedure. Further, she alleged that the incident gave rise to an exacerbation of her existing psychological condition and brought about additional psychological harm to her.
19 It was clear that, since 1996, Ms Brown had been receiving treatment, including psychiatric treatment, and that the appellant was aware of the state of her mental health from time to time and had allocated a case manager to provide and co-ordinate the treatment administered to her from time to time. A document headed "Mental Health Case Management" from the appellant's discovered documents was in evidence (exhibit C). Against the side note "Outcome" appeared "To ensure that all clients of the mental health service receive the appropriate care and treatment through a co-ordinated case management process and according to their respective needs."
20 In his reasons for judgment Judge Graham said the following about this document:
"It is clear from the document that the system is a process intended to draw together all necessary services for a particular client into a single coherent local system. The allocated case manager is the person who bears the primary responsibility for ensuring that within the Mental Health system the clinical and functional needs unique to each client are met consistently. To do so involves ensuring that a full cycle of assessment, planning, implementation and regular review occurs for that individual patient. The fulfilment of that responsibility includes the coordination of resources to meet that patient's needs from within the Mental Health system and from a wider physical, social and cultural environment. The document asserts, and the evidence in this case establishes, in any event, that the interaction between the case manager and the client is an important therapeutic tool, ensuring effectiveness and continuity of care. It goes on to say `the case manager is counsellor, mentor and advocate on behalf of the client'. Case management is intended to be assigned to one case manager only, at least ideally, and the document speaks of the pivotal role and primary responsibility of that case manager.
The case manager, according to the document, undertakes to ensure a number of matters. They include a monitoring and regular review of progress, a preference to delivering service to the client in their own environment, wherever possible, and with the permission of the client, an updating and modifying of plans according to progress, and implementing changes; involvement of the client, family, and significant others in all planning or changes of plans; identification and action to ensure gaps in services and resources are filled, for example, lack of housing or lack of social network; counselling of the client; crisis availability, including access to case manager or designated substitute, for example, a rostered team member at all times; continuity of case management services for as long as they are needed, that is as long as the client remains at risk due to psychiatric disorder; full consultation with the client, care givers, area team, and any significant other likely to take over care prior to referral, transfer or case closure. Those are some of the case management functions identified in exhibit C.
Under the heading `client needs' the document asserts `the case manager shall ensure that attention is given to all aspects of the client's needs. This will include' - then follows a page long list of items, including all impairments, disabilities and handicaps as a consequence of psychiatric disorder; reducing psychiatric symptoms; improving acceptance of and cooperation with treatment; economic issues; family relations; personal dignity and self esteem; social network; fellowship, acceptance, tolerance; sexuality/intimacy.
The relationship is one in which the case manager seeks to establish and maintain trust and rapport with the client and seeks to achieve an appropriate balance between active and assertive involvement while the client remains at risk and being non-intrusive in the individual's or family's life. The case manager must use the therapeutic relationship as a means of ensuring continuity and a cooperative and collaborative approach to the client's treatment and care."
21 Ms Mayers was appointed case manager for Ms Brown. His Honour found, on the evidence, that the case manager and those involved with Ms Brown's management were conscious of the structure of the plan and of the functions and objectives of such a form of treatment. The system was being implemented at various stages and in circumstances which suggested that both Ms Brown and the appellant understood that it was an arrangement of a type such as that described in the document itself. Ms Brown's condition and progress were continually recorded and monitored. Her case manager was in contact with her, and when not available, a designated and rostered staff member of the appellant stood in place for the nominated case manager. A consequence of this system was that not only did the appellant become well aware of the conditions, needs and behaviour of Ms Brown, but did so in a context of an ongoing and considerable involvement in aspects of her day to day life. These included contact outside the formal structure of clinics or hospital surroundings, and clearly put the case manager in the position of a person, who was regarded both by Ms Brown and by the appellant's officers, as a person who truly was in the role of a counsellor, mentor, and advocate on behalf of Ms Brown.
22 Judge Graham said:
"In the course of the implementation of this plan of management, the first defendant's officers became aware of many aspects of the plaintiff's conduct, behaviour, and thought. Those officers, [in] particular the case manager, were in a position to evaluate her strengths and weaknesses in terms of her capacity to deal with her psychological condition and its consequences. They were consciously monitoring, at all relevant times, the plaintiff's response to her programme of treatment and on the lookout for signs or indications that the level of supervision or contact or treatment might need to be modified to augment the normal level of attention given to her."
23 His Honour set out the history of Ms Brown from the time of the birth of her son in 1996. In addition to the matters that I have already referred to, there was a history of bipolar depression on Ms Brown's father's side. She gave a history of a previous episode of depression after a miscarriage two years earlier when she was started on Zoloft. Her gambling problems had given rise to multiple financial worries. She was described as being depressed, sleeping poorly, emotionally labile and with a decreased appetite. After her discharge from Moruya District Hospital in June 1996, she was prescribed Zoloft and Mogadon. For her borderline personality disorder, she was prescribed Lithium Carbonate. On one occasion, self-mutilation involved the use of a razor blade to her stomach, thighs and both inner arms. At another stage, she was given a course of seven unilateral ECTs. Self-mutilation in April 1997 required five sutures. In May 1997, her medication was Melleril, Zoloft and Valium. In June 1997, she expressed the view that suicide was her only option to get out of the mess in which she found herself.
24 When Ms Brown first met Mr Hodder she understood he was the person detailed to take her outside when she wanted to have a cigarette. The hospital manager gave evidence that Mr Hodder was restricted to undertaking rudimentary training and was under very close supervision on a one to one basis. He was not involved in providing medical treatment, nor had his conduct at the hospital, during the period of placement, been in any way remarkable. It gave rise to no concern on Ms Brown's part. Ms Brown described Mr Hodder as a person who would "more or less counsel me while I was a patient". His Honour regarded this as more in the nature of a conversation about issues generally rather than a formal structured session of counselling.
25 Mr Hodder was not closely supervised in the sense of being under the constant and vigilant eye of a member of staff at every moment of the shift. Since part of his duties included mundane activities, such as accompanying Ms Brown outside, he had the opportunity, in the course of his rostered shift as a trainee, to engage in conversations with her. These were not described by Ms Brown in terms which suggested any overt impropriety about their nature or the topics dealt with.
26 While Ms Brown was in the hospital she provided Mr Hodder with her telephone number. She agreed that when she was discharged from hospital she would contact Ms Mayers for a follow up appointment on 18 June and she would contact the mental health team via an 1800 number provided for after hours access, if it was necessary. The trial Judge said there was no doubt that she was aware of the existence of that service and that it was free and available 24 hours a day. She was encouraged to use it whenever she was feeling anxious or if she felt suicidal.
27 On the evening of 17 June, Ms Nash telephoned Ms Brown. At that point Ms Nash was the person acting for the case manager. She became aware that a student nurse had telephoned Ms Brown and was proposing to visit her at home that night.
28 The trial Judge said:
"In a statement to the police made a few weeks after these events the plaintiff expressed the view that she was comforted by the fact that Ms Nash knew that Mr Hodder was coming to see her. Ms Nash did not regard whatever it was she said as intended to convey any approval to social contact between the plaintiff and Mr Hodder. Indeed, it is clear that the knowledge gained in that conversation caused Denise Nash concern about the ethical issues arising from a student nurse seeing a patient socially. She said that flowed from her knowledge of what was described as an unspoken rule that staff did not have personal relationships with patients. She rang Mr Garland, who was the clinical nurse consultant, and he advised her to contact the acting manager Mr David West. Mr West was unavailable at that time but the next day she told him of the contact between the plaintiff and Mr Hodder. Mr West referred her to Mr Robben, [the Health Services Manager of Bateman's Bay Hospital] who was unavailable. A meeting took place between Denise Nash and Celeste Mayers when Ms Mayers was informed of the approach made the previous evening. It appears from the evidence that, on 18 June, Mr Hodder worked at the Bateman's Bay Hospital and was thus capable of being contacted during that day by members of the Mental Health team or those responsible for his more immediate or general supervision in the hospital throughout the placement."
29 On 18 June, Ms Mayers visited Ms Brown at her home. Ms Brown told Ms Mayers that Mr Hodder had visited her on the previous evening and that he was concerned about her safety and felt he needed to talk to her after he had himself viewed an autopsy. In the course of counselling the plaintiff, Ms Mayers tried to impress upon her the need to be "up front" with the men in her life. But, Judge Graham found, it was clear also, that she did not convey to Ms Brown a distinction (which was present in her own mind) between contact between her and the student and contact between her and two other men who had been mentioned in the conversation, one who lived in the flat behind her parents' home and the other an employee of the local RSL Club. Ms Mayers was herself, by that stage, concerned about the contact between Mr Hodder and Ms Brown.
30 The next day, before the sexual assault took place, Ms Nash spoke to Ms McIntyre, the Deputy Health Services Manager of the appellant, about the contact between Mr Hodder and Ms Brown. In the opinion of Judge Graham, "rather curiously", they decided they would meet with the manager, Mr Robben, but not until Monday, 23 June 1997. Mr Hodder worked again at the hospital on 19 June and 20 June when his placement was supposed to conclude. As his Honour said:
"In other words, there were three days, 18, 19 and 20 June, on which the issue of his contact with the plaintiff could have been raised with him had there been a need to do so. Certainly both Ms Nash, who had the initial contact with the plaintiff, and Ms Mayers, the case manager who followed up the issue, each had their own concerns about the inappropriateness of the contact, stemming from the inappropriateness of a staff member having a social relationship with a patient."
31 Ms Nash felt that Ms McIntyre would seek out Mr Hodder, pat him on the shoulder and have a word with him but that did not happen. Thus, before Ms Brown and Mr Hodder met by coincidence in the local RSL Club on the evening of 20 June 1997, there had been two opportunities for the appellant's officers to advise Ms Brown specifically about the inappropriateness of contact between herself and Mr Hodder and, on each of the three days, an opportunity for the appellant's officers to warn off Mr Hodder. Mr Hodder was not spoken to and Ms Brown was given advice, only in general terms, which failed to specify the difficulty involved in any proposed social relationship with a student nurse.
32 Ms Brown gave relatively contemporaneous accounts within a few weeks by way of a handwritten statement prepared for her solicitor and a statement to the police, forming part of her complaint of sexual assault on the part of Mr Hodder.
33 Of the events which began on 17 June 1997, Judge Graham said:
"On the evening of 17 June the visit of the student nurse to her home had been one which might have been regarded as not a threatening or intrusive visit in some respects. They simply sat and talked and listened to music. The plaintiff viewed it as a pleasant visit. She drove him home because he was staying a fair distance from her own home. Nothing about the visit caused her any concern or alarm and, at that stage, she had no plans to meet up with him again.
On the other hand, despite the particular visit being fairly unremarkable, when she spoke to Celeste Mayers the next day at her home, she stated to Celeste Mayers that she did not want any attention from men at all. She sent on to say `Ian had asked her out for dinner tonight but she didn't want any men in her life'. Part of the advice given by Ms Mayers was that, apart from being up front with men, particularly those she did not want in her life, she advised her to avoid going to places where she was meeting men in clubs or hotel situations where she was gambling. At that stage, the plaintiff had had no plan to meet up with the student again and she did not suggest to Ms Mayers that she proposed to have any further contact with him."
34 The trial Judge summarised Ms Brown's account of what happened on the Friday evening of 20 June and the early hours of 21 June 1997. Ms Brown had been to the Bowling Club, where she had had one glass of beer and had played the poker machines for a while. She said that she must have taken a few Valium that night or that day because she was not in the mood for talking. After the Bowling Club she went to the RSL Club, on her own, to play the poker machines. She thought she could play the machines there in peace. She went to the RSL Club from the Bowling Club at about 9.30 pm. There she met Mr Hodder and a friend of his in the foyer of the club. While the entrance formalities were being attended to they started talking. They went upstairs to the bar, she bought herself a beer and Mr Hodder and his friend bought Coca Cola. She went to play the poker machines and Mr Hodder followed her and sat next to her. His friend in the meanwhile had gone to the TAB but then rejoined them. Mr Hodder was putting money in the poker machine next to the one Ms Brown was using. Mr Hodder's friend went off and played other machines. Mr Hodder stayed. Ms Brown said that Mr Hodder knew she had a gambling problem and kept saying he wished she would stop playing. The friend returned and the two men went to watch football for a while, presumably on television. Ms Brown got herself another beer and kept playing the poker machines. She said she probably should not have had the third beer because she then started to feel "quite wasted". The two men came back and said they had to start work at 7 am. Mr Hodder's friend went home.
35 Ms Brown was under the impression that Mr Hodder was due to work at the hospital on the Saturday. Her subsequent conversation with Ms Mayers was couched in terms indicating that she thought Mr Hodder would be working at the hospital on the Saturday until about 3 pm. She mentioned that later, as a matter concerning her, when Ms Mayers asked her if she would be admitted to Bateman's Bay Hospital, Ms Mayers having expressed some concerns about the effect of this incident upon her.
36 Mr Hodder and Ms Brown stayed until the club closed at midnight. They were talking. When they walked downstairs Mr Hodder came over to her car and she asked him if he wanted a lift home or to come to her place for a cup of tea. She said that because he had been over to her house before, she could trust him. He elected to come to her place and wanted to talk to her. She believed, that because he was one of the nurses working at the hospital and she had been in hospital the week before, he at least knew that she had "a lot of hassles". He seemed to have some knowledge of her condition because he kept telling her that he did not want her to kill herself and that he wanted to help. They sat in front of the fire talking.
37 There followed a distressing telephone conversation between Ms Brown and a relative. By the end of that conversation, she said, she was quite depressed. Mr Hodder mentioned how quiet she was. She took more Valium and said she was really tired and had to go to bed. She reminded Mr Hodder that he had to start work in a few hours and that she felt unable to drive. She offered him the loan of her car saying that he could bring it back at morning tea the next day and she would run him back to work. He seemed concerned about her. He did not want to accept that offer. She suggested he could sleep on the floor or in the spare room and she would be fit enough to drive by 7 am when the Valium would have worn off. He said it was not fair for him to sleep in those locations when she had an electric blanket. She told him that that was "bad luck" because she did not want him in her bed. She did not want a one-night stand and she did not want a relationship. She told Mr Hodder that if he felt differently he had better leave straight away. Apparently he acknowledged that situation. She told him to choose either the floor or the spare room and he stayed in the lounge room. She went to the bedroom to change and returned to the lounge room and told him that she was going to sleep so he had better decide what he was doing. She said she felt "really wasted". She got into bed and described herself as nearly crashing out straightaway. She was aware at that stage that he was still in the lounge room. Then he was lying on the bed next to her. She told him to get off and reinforced that she did not want sex. He told her that he would massage her to sleep. She voiced concerns about that. He assured her it was part of his job and described having massaged one of the patients who was in the room next to her when she was in the hospital.
38 Ms Brown said she found herself lying in bed, her body was totally exhausted and it was difficult to move because of the Valium and alcohol. He started to rub her back and she nearly fell asleep and then he started touching her. She told him to stop it and if he wanted to go further he had to leave. She thought he was leaving because he got up and she remained lying in the bed. She said she was too tired to even roll over. Then he got under the blankets with her wearing only boxer shorts. She told him, for what she said was about the tenth time, that she did not want sex but he said that she should just relax. She said she could not do much else because she was hardly able to move. He started massaging her again and touched her where she did not want to be touched. She told him not to. She then described him going down. She said she did not want him to do this and said no but he continued. She said she was so out of it she was powerless to do anything physical to him. She said the Valium must have affected her physically more than mentally because she knew she did not want him to do it but her body could not fight him off. The next thing he was on top of her having intercourse, with her still just lying there. She recalled saying that she hoped he used a condom because she was not on the pill. He told her he would be careful. She said "no" but he continued. Eventually he got up and went to get a towel to clean up. She continued just lying there. She wanted him out of her house, so, as soon as she felt strong enough, she got up and told him she was taking him home. She said she should not have driven but she just wanted to get him out of the house, so she drove him home.
39 When they arrived at his temporary home, he told her that he really cared about her, lent over and kissed her before he got out of the car. She described herself as being really disgusted by what had happened and that she felt really sick and ashamed. She did not want this to happen and felt dirty so she went home and sat in the shower for what seemed to her like half an hour.
40 Later in the morning her counsellor telephoned her. Ms Brown told Ms Mayers what had happened. She stated specifically "at no time did I consent to sexual intercourse but I felt I could have been more forceful in saying no." She told Ms Mayers that she was under the influence of Valium and alcohol. She indicated that she did not want the police or anyone to know what had happened. Ms Mayers said that she would need to let Ms Nash, her nursing manager, know about the incident. Ms Brown also expressed her concern about being pregnant because of what was described as the unsafe sexual intercourse. In that context Ms Mayers said: "I am worried about the high risk of you committing suicide and would you be admitted to Bateman's Bay Hospital." Ms Brown answered: "Yes, but Ian will be working there until 3 pm today." After Ms Mayers had arranged for the first dose of the morning after pill to be given to Ms Brown at her home, she was taken to Bateman's Bay Hospital for admission. She agreed she would stay there until 26 June. On 8 July Ms Mayers told Ms Brown that her pregnancy test was positive. Ultimately, Ms Brown required a termination which, in itself, was a matter of ongoing distress for her.
41 Ms Brown's case was that what occurred amounted to a sexual assault, that is to say, sexual intercourse without consent, in circumstances where Mr Hodder must have known that Ms Brown was not consenting or was at least reckless as to that issue. Mr Hodder was not a party to the proceedings and had not been called. He had apparently left the country. Judge Graham approached this question with considerable caution but was satisfied that Ms Brown had established on the balance of probabilities and applying the Briginshaw test (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-3) that the act of intercourse was one to which she did not consent and in respect of which she communicated that lack of consent to Mr Hodder. In short, a sexual assault was established.
42 Judge Graham said:
"It occurred, ultimately, because there had been a coincidental meeting at the club. Mr Hodder had inveigled himself into the confidence of the plaintiff. She had invited him home with the memory that the earlier encounter had not been of any particular moment and he had so manipulated events once he was at her home as to engage in sexual intercourse with her, either without consent or in circumstances where her consent amounted to no real consent in any substantial form. But, to the extent that it is relevant to express a preference for the appropriate interpretation of the event, I accept that the plaintiff has established that this amounted to a sexual assault. In any event, the plaintiff certainly has always viewed it as such and conveyed that view as early as the next morning when she spoke to Celeste Mayers. Thereafter she made the two statements to which reference has been made and, ultimately of course, that included a willingness to make a statement to the police concerning these events."
43 Ms Brown's case was that the event was such as to produce in her an exacerbation of her existing psychological condition and the production of a post-traumatic stress disorder at least for some time after the incident occurred. Ms Brown claimed that the appellant owed her a non-delegable duty of care to do various matters which were alleged in the statement of claim and included a duty to administer timely and appropriate medical treatment, including psychiatric and psychological treatment; to protect her from foreseeable harm; to advise her from time to time as to the manner in which she could safeguard and enhance her mental and physical health; to take reasonable and timely steps to ensure that she was not exposed to persons who would take advantage of her mental state; to ensure that those servants and agents of the appellant and of other health professionals, including student health professionals who came into contact with her through the actions or to the knowledge of the appellant, were adequately appraised of the appropriate ethical standards applicable to mental health professionals. Ms Brown alleged that in circumstances where the appellant, through its servants or agents, had a substantial basis to believe or suspect that there was a material possibility that a health professional with whom Ms Brown had come in contact would use that contact with her in a professional setting in a manner inconsistent with professional ethics, to take reasonable steps to ensure that no such breach of ethics eventuated, and, in the circumstances set out above, to warn her of the dangers of associating with a health professional in a non-professional context and to take all reasonable steps to ensure that that contact did not occur.
44 Finally it was alleged that the appellant had a duty to ensure that criminal record checks were obtained of those servants and agents of the appellant, including student nursing placements, who came into contact with her through the actions or to the knowledge of the appellant.
45 The trial Judge referred to Lepore v The State of New South Wales [2001] NSWCA 112; (2001) 52 NSWLR 420. At that stage judgment on appeal to the High Court from this Court stood reserved. See now New South Wales v Lepore [2003] HCA 4; (2003) 77 ALJR 558. His Honour set out and took account of the principles stated in Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 at 236-243. His Honour described Ms Brown as a particularly vulnerable patient of the appellant, who by June 1997, had a considerable history of psychological and emotional illness which had resulted in a number of hospital admissions. There were significant issues about her social vulnerability and her capacity to look after her own safety, particularly as to her willingness to engage in potentially harmful behaviour including self-mutilation and excessive gambling. The trial Judge said that the whole background of Ms Brown's association with the appellant established, and ought to have established, in the minds of the officers of the appellant dealing with her, that she was a patient who was of particular vulnerability. That vulnerability stemmed from the length of time during which she had exhibited the psychological problems, the depth of those problems and the risk to her well being that those problems represented. Issues concerning her relationship with her family, with her partner and in relation to other men, were all matters which had clearly come to the attention of the appellant and formed part of the process of treatment or management of her condition.
46 Judge Graham held that the appellant had undertaken, not only in practice, but in words, the care, supervision and control of Ms Brown. The appellant had assumed a particular responsibility for her safety in circumstances where Ms Brown might reasonably expect that due care would be exercised. Moreover, the arrangements extended beyond occasions on which there was formal contact between them. It was not limited to the duration of any admissions to hospital or any structured sessions of counselling or advice. The provision of the 24-hour phone number was an illustration of the intimacy of the relationship between the case manager and those working with her and Ms Brown.
47 His Honour said:
"The evidence in the case amply illustrates that the management of this plaintiff was conducted broadly in accordance with a wide ranging plan of that type. The plaintiff herself clearly understood that the first defendant, through its officers, was engaged in this ongoing process of treatment and counselling with her and, in those circumstances, might reasonably expect that due care would be exercised in that care, supervision or control by officers of the first defendant. The very reason for the relationship, and the need for an ongoing relationship, was essentially the plaintiff's inability to cope on her own without advice and assistance and treatment of that type. Whether it be described as a separate category of non delegable duty or simply as an instance of the category of non delegable duties imposed on those providing medical treatment is not of any particular importance."
48 The trial Judge said that the appellant was clearly under an obligation or duty to use reasonable care in its treatment of Ms Brown. His Honour was not persuaded that there was any lack of reasonable care in conducting the criminal check or in assessing that, in the circumstances, Mr Hodder might be permitted to act in the role, on a temporary basis, of a student nurse under supervision in the hospital.
49 Judge Graham said:
"The other major aspect of the plaintiff's claim, and one in respect of which I take a different view, concerns the basis which might generally be termed a failure to warn the plaintiff in relation to the inappropriateness of social contact with the student nurse. Clearly, any duty of care which the defendant had to the plaintiff, whether it be described as non delegable or simply an ordinary manifestation of the duty of care owed by a hospital authority to a patient, was one which encompassed a duty to take appropriate steps when a particular circumstance of potential harm to a patient became known to the defendant, particularly in circumstances where the patient herself might not appreciate the potential risk of harm involved in such a relationship."
50 However, Ms Brown was particularly vulnerable for reasons his Honour had expressed. The appellant was aware of that vulnerability and was aware of the interest which Mr Hodder had displayed in Ms Brown. The question was whether there was a duty of care to do any more than was actually done by the appellant when seized of that knowledge. His Honour said:
"Effectively, the first communication with Ms Nash involved, if not an express approval of contact, a question which was calculated, if not intended, to convey to the plaintiff that this was not a matter of any great concern or moment, despite the fact that Ms Nash herself thought that it was a matter of concern, particularly in view of the potential ethical breach involved. Similarly, Ms Mayers, when she gave advice in the context of the plaintiff discussing potential or possible relationships with three men including the student, did not single out the student's particular position and the risks to the plaintiff inherent in her having a social relationship with him."
51 A little later his Honour said:
"The plaintiff was a person who was particularly vulnerable and at risk, particularly in circumstances where a relationship might be formed with a person who was involved in a therapeutic relationship with her. Secondly, the student nurse was acting inappropriately from a professional point of view. In other words, it would have been advantageous to his training to have informed him, as indeed it was expected by some of the defendant's officers he would be informed, that such a relationship was an inappropriate one. In other words, if there were two duties owed to two different people, they were perfectly compatible duties and could easily be discharged without any risk of inconsistency in the discharge of those two duties."
52 There was evidence that any contact between a nurse and a patient by way of social relationships, certainly one which might become an intimate social relationship, was unethical. Mr Hodder was clearly not intimately involved in those aspects of Ms Brown's treatment which would most clearly lead to the existence of a power relationship between the person providing the treatment and the person receiving it. Nonetheless, the expert opinion in the case was all couched in terms which would lead to the conclusion (which his Honour drew) that the level of involvement of the student was sufficient to make it inappropriate, because of his involvement even in that general sense in the treatment of Ms Brown, for him to become involved in any social or intimate relationship with her, particularly at the time when the contact took place in this case.
53 Judge Graham said:
"The expert evidence also, in my view, clearly establishes that there is not only an ethical risk for the nurse or student nurse involved in such a relationship - an ethical risk which, of course, is contrary to the public interest, including the interest of a patient - but also establishes that there is a risk of harm to a patient who engages in any social relationship with a person in a therapeutic relationship with them because such a relationship may cause emotional or psychological harm."
54 Judge Graham concluded:
"In my view, the officers of the defendant who were dealing with the plaintiff in the days leading up to 20 June 1997 were aware that she was at risk of becoming involved in an inappropriate relationship with a person who had been involved in her treatment and that they ought to have known that, not only would such a relationship be inappropriate from the point of view of the nurse or student but also from the point of view of the plaintiff. There was, in my view, a clear duty in those circumstances to warn the plaintiff, and indeed to warn the student, that such a relationship ought not be fostered. The precise content of such a warning has been the subject of some argument."
55 His Honour referred to the evidence of Dr Jonathon Phillips, a medico-legal expert in the case, that there were firmly held boundaries across the nursing profession as well as the medical profession about not mixing in a treatment setting and a social setting. He was of the view that it was a slippery slope that any health professional, particularly in the mental health area, would recognise. The conversation between Ms Brown and Mr Hodder was something that might quickly get out of control. While he acknowledged that Ms Nash had been very worried about it, the problem, as he saw it, was that she did not, at that very moment, intervene in a proper manner. If she had not felt able to intervene at that point in the evening she should have rung her superior for further guidance. She should have heard the warning bells ringing on the spot and should have moved to do something about it on the spot. He said:
"that his belief was that the advice that should have been given on the night of the telephone conversation, when Mr Hodder rang on the other line, should have been about the risks to the patient as a person, an individual, the immediate risks of a relationship developing of a magnitude that would be dangerous to her or maybe not wanted by her. That was advice which should have been immediate and it would have been about matters, including sexual matters, which would have been poignant and important. He said that he thought she would have been more likely to respond to that type of advice than maybe to advice about how she treated her father, that being an issue which was not in the `immediate' category."
56 Dr Phillips regarded the issue with Mr Hodder as a much more important and immediate one. In a discussion, which should have been held, the issue of things getting out of control and Ms Brown finding herself in the situation where she was induced to have a sexual relationship, or forced to have a sexual relationship, were of a different order. He would have addressed the slippery slope and the consequences kindly, thoughtfully and immediately. In response to a question the Judge asked him as to what extent it would have been useful to communicate to Ms Brown the ethical problem about a student nurse making contact, Dr Phillips said he thought the primary advice was about self-protection. Secondarily, it would have also been useful to give her some understanding of the risks that Mr Hodder was taking professionally, involving himself. He said that if he had been doing it, he would have put emphasis on the risk to her as a person and how things can escalate out of control very, very rapidly. He did not see any ethical constraint in either Ms Nash or Ms Mayers communicating to Ms Brown that it would be unethical or improper from the student nurse's point of view for him to initiate some contact.
57 Judge Graham emphasised that the advice which Dr Phillips thought should have been given would have been immediate advice. It would have been advice relating to the risk to the patient involved in any such association but it would have included, as a secondary element, pointing out the situation, ethically speaking, in relation to the conduct of a student nurse having a social relationship with a person in whose care he had been involved. His Honour said:
"There is nothing to suggest that giving that advice would have been, itself, in any way harmful to the plaintiff and it would, in my view, have alerted her to the risk which she was running to herself in encouraging any further contact of a social nature between herself and Mr Hodder. There was a duty to give that warning because, in my view, it was foreseeable that there was a risk of harm flowing in the absence of that warning. It could not be assumed by the first defendant's officers that the plaintiff would herself have concluded that such a relationship would have any particular harmful aspects over and above the risk of any other relationship with a male. It has not been suggested by any of the defendant's witnesses, or their expert, that the giving of that advice could have any potentially harmful impact on the plaintiff. There was a risk of foreseeable injury, and that is the risk of harm which would flow from what was an inappropriate social or sexual relationship. As I understand the expert evidence on this point, that harm would flow whether the contact was consensual or arose out of a sexual assault. It was, as I understand it, a risk of emotional harm, in the first instance, to the plaintiff arising out of her particular psychological vulnerability in the context of her having a relationship with a person seen by her and known to be seen by her as having a part in her treatment. It has been argued on behalf of the defendant that the type of harm which must be foreseeable, or reasonably foreseeable, is harm by way of sexual assault and that no such harm could have been reasonably foreseen on the basis of what was known by the officers of the defendant. In particular, the argument is that the officers of the defendant had no reason to suppose, on what they knew of the relationship as it had unfolded, that the student nurse was capable of committing an act of sexual assault on the plaintiff.
It seems to me, however, that that is to unduly narrow the range of foreseeability which the defendant was required to consider; that is, there was a clear risk of emotional harm flowing from any intimate relationship between the plaintiff and Mr Hodder. The defendant knew of the risk of there being such a relationship. These events occurred in a country town, he was staying in the town during his placement and the plaintiff lived in town. The defendant knew, after the first visit, that he had visited her home and, thus, that he knew where she lived and that he had expressed an interest in further communication with her. There was, thus, a real risk to a vulnerable patient of some initiation of an intimate relationship by Mr Hodder. The defendant ought to have known that such relationship was not only unethical or improper or inappropriate but was one which was so principally because it would give rise to a real risk of emotional harm to the plaintiff. In that connection, the risks that she would become pregnant as a result of such an association would itself carry with it real risks of emotional harm to her as well.
In those circumstances it seems to me that the foreseeability required is not one as to the precise event which occurred but as to damage of the type which occurred, that is the damage flowing from an inappropriate sexual relationship. That there was a material risk of harm was abundantly clear. There was a real risk that the plaintiff and Mr Hodder would have such a relationship, albeit that it might not have been foreseeable that it would be a violent or criminal incident that would give rise to that harm. In my view, the plaintiff has established that there was a material risk of serious harm to the plaintiff arising out of a close intimate or sexual relationship between herself and Mr Hodder. The risk being foreseeable, there being a duty to take reasonable care to prevent it and a failure to do so, the question is whether that failure to warn was productive of the damage in this case. I am satisfied that it was. There are two aspects of the argument however that need to be particularly addressed."
58 His Honour next referred to occasions on which Ms Brown had failed to act on the advice given to her by those responsible for her treatment or management. She was by no means an ideal patient in that regard. His Honour gave examples and said the question was how the advice about any relationship between herself and Mr Hodder might have had any more effect than other advice which had been given. His Honour was satisfied that Ms Brown was likely to have acted upon it. His Honour said:
"She said she would have acted upon such advice but that answer, of course, must be assessed in the light that it was given with the benefit of hindsight, but there are, it seems to me, other indications. She was anxious to avoid contact with men or with some men; she explained that to her case manager.
She indicated that she had declined an invitation from Mr Hodder made on the occasion of the first visit. She was willing to discuss the issue further with Ms Mayers and to talk about the problems that she had in relation to how she should deal with men. The circumstances in which she actually came to be in a bed with Mr Hodder on this evening were, on the evidence which I have accepted, circumstances in which she was hardly the principal actor or the person who precipitated the events. She was obviously willing to associate with him in the club and prepared, when he came and stood next to her car, to offer him the choice of a lift home or a cup of tea at her home. But the overwhelming impression of her evidence is that Mr Hodder was in control of the situation and was indeed manipulating the plaintiff, who felt powerless to stop him, even when he commenced having intercourse with her against her will. It seems to me that there is every likelihood that a clear and specific piece of advice to her about Mr Hodder would have tipped the balance against her associating with him on that evening. He was trying to inveigle himself into her confidence, as his conduct amply demonstrated, and he was using the relationship, albeit of student nurse and patient, as a device by which he could foster and enhance the confidence which the plaintiff had in him. If she had been given advice as to the inappropriateness for herself and for him, in each case for special reasons, when Ms Mayers had spoken to her or, indeed, earlier when Ms Nash had spoken to her, then there is, in my view, a very strong likelihood that the plaintiff would have accepted that advice, to the extent that she would have resisted Mr Hodder's interest on the evening of 20 June and would not have invited him to her home."
59 His Honour accepted that there was inevitably a degree of uncertainty as to how she would have acted. The intervention of hindsight made assessment more difficult. But this was an area in which Ms Brown was apparently keen to seek advice. Acting upon it, would have been generally in accordance with her desires and interests at about that time. The fact that the ultimate act of intercourse was one which was unwanted and, more probably than not, a criminal act against her, tended to reinforce the extent to which she was not interested in any sexual relationship with Mr Hodder in any event. Further, it tended to reinforce the likelihood that the plaintiff would have acted upon any advice given to her to stay away from Mr Hodder. "There would have been in her mind a good reason to rationalise to herself why she should do so, in his interests as well as her own."
60 His Honour found that the failure to give that advice to Ms Brown was a significant contributor to the damage which she ultimately suffered. This led his Honour to the second issue which needed to be particularly addressed in relation to the issue of causation, the submission that the act of Mr Hodder was a new act, an independent willed act of Mr Hodder, which broke any chain of causation. His Honour said:
"As to that submission, the fact that the damage which came to pass was at the hands of an independent actor who was, in this instance, prepared to act in breach of the criminal law to get his way is a material consideration. On the other hand the fact that he was in the house at all was, as I have indicated, a matter which arose because the plaintiff had not been armed with the advice as to the harm which might befall her emotionally from a relationship with this particular person and because she had not been armed with the knowledge that, for him to manipulate her by reference to some apparent therapeutic relationship, would itself be inappropriate behaviour on his part, as well as likely to be a source of harm to herself. The causation chain is not, in my view, broken by the act being a criminal act in these circumstances. It came about because the plaintiff was prepared to have Mr Hodder into her house in circumstances where, I am satisfied, it would be most unlikely that she would have allowed him into her house at all if she had been armed with this appropriate advice."
61 His Honour referred to a further element of the argument which related to whether a person willing to commit rape would be prepared to accept no as an answer to some earlier attempt to form some sort of relationship. His Honour said:
"Whilst nothing is impossible, logically speaking, there is nothing to suggest that, had Mr Hodder been rebuffed and/or warned off by the defendant's staff, that he would have forced the issue in the sense that he would have broken into the plaintiff's home and committed a sexual assault upon her."
62 His Honour said:
"The whole of his conduct is redolent of a person who is simply using the opportunity of having struck up a friendship or relationship with a person as a patient in hospital to foster his own interests in a sexual relationship by persuasion and manipulation, rather than by the exercise of a more substantial level of violence involved in an act such as breaking into the plaintiff's home and violently assaulting her. His conduct on this occasion was to use manipulation and persuasion to get himself into a position where he was able to have intercourse without the consent of the plaintiff. But her account does not suggest that, in the course of those acts, he displayed any overt violence or aggression other than that which is inherent in a non-consensual sexual encounter. It is not suggested that he struck the plaintiff, that he threatened her with violence or that he used any great force to overcome her resistance. Her account is that she was physically unable to offer much in the way of resistance because of her state of tiredness or intoxication at the time. It is, it seems to me, quite speculative to suggest that Mr Hodder may still have engaged in this act of sexual intercourse with the plaintiff even if an appropriate warning had been given to the plaintiff. That does not seem to have been his style or modus operandi on this particular occasion, nor is there anything else in the evidence to suggest that he might have committed an act in that different way I have described. It seems to me, therefore, that the only conclusion which should be drawn is that there was such an intimate connection between the association with the plaintiff in hospital and his ultimate opportunity to commit this criminal assault, that it should be regarded as part of the same chain of causation and not an independent act sufficient to break that chain of causation. I am satisfied, therefore, that the damage inherent in the act of sexual intercourse which was not consented to was caused, in the relevant legal sense, by the failure of the defendant to provide timely advice of the type which I have described."
63 Judge Graham awarded damages as follows:
Out of pocket expenses as agreed $5,550.45
General damages $120,000
Past economic loss $80,000
Future economic loss $112,500
Past loss of superannuation $7,270
Future superannuation $10,125
Future medication $10,000
Future counselling $21,000
Future surgery $5,000
Total $371,445.45
Grounds of appeal and notice of contention
64 The appellant appealed against Judge Graham's decision on the following grounds (as amended):
"1. His Honour erred in that he found, contrary to the evidence, that it had not been suggested the giving of advice could have any potentially harmful impact on the plaintiff.
2. Thereby his Honour failed to decide, according to law, a fact central to the question of duty of care and of breach of duty.
3. His Honour erred in deciding that the defendant owed to the plaintiff a duty of care, the content of which was capable of being breached by a failure to warn the plaintiff not to associate with Hodder.
4. His Honour erred in finding that there was a causal connection between any failure to warn the plaintiff not to associate with Hodder and the harm that she suffered.
5. His Honour erred in finding that there was a causal connection between failing to warn Hodder not to associate with the plaintiff and the harm that the plaintiff suffered.
6. His Honour's award of general damages was excessive.
7. His Honour's award in respect of:
(a) past economic loss;
(b) future economic loss;
(c) loss of superannuation benefits,
was excessive and determined otherwise than by the application of principles of loss of a chance."
65 During the course of argument on the appeal, the respondent Ms Brown sought leave to file a notice of contention in which she contended that the decision ought to be affirmed on grounds other than those relied upon by the trial Judge, namely:
"(a) the duty which the appellant owed to the respondent required it to speak to Mr Hodder and counsel him against social contact with the respondent, with whom he had been in a therapeutic relationship;
(b) the appellant breached the duty referred to in (a) above in that no such contact was made with Mr Hodder, notwithstanding that he worked as a student nurse on 18, 19 and 20 June 1997; and
(c) the breach referred to in (b) above, was an independent cause of the harm which the respondent suffered in that, had Mr Hodder been given an appropriate warning, and counselled about the ethical prohibition against such contact, and the potential disciplinary consequences of pursuing such contact, he would not have continued to make social contact with the respondent, would have refrained from engaging in such contact following a fortuitous meeting with her on the evening of 20 June 1997 and he would not have had sexual intercourse with her."
Discussion
66 Grounds 1 and 2 of the appeal, as argued, drew attention to evidence led on behalf of the appellant which did suggest that advising Ms Brown not to associate with Mr Hodder might have been harmful to Ms Brown, evidence which it was submitted the trial Judge did not refer to. If the appellant made good these grounds, it claimed to be entitled to a new trial. On the other hand, if any one of grounds 3, 4 and 5 were upheld, the appellant claimed to be entitled to a verdict. Accordingly, it is convenient to deal first with grounds 3, 4 and 5. Before doing so, I will deal with the appellant's opposition to Ms Brown being permitted to rely upon the notice of contention which was filed out of time.
67 The form of notice of contention was sent to the Court. I see no reason why Ms Brown should not in justice be allowed to rely upon her notice of contention, even though filed out of time. There is, it seems to me, no prejudice, except possibly as to costs, in allowing Ms Brown to do so. As Pt 51r21 of the Supreme Court Rules says the notice is designed to enable a respondent in an appeal to contend that the decision of the court below should be affirmed on grounds other than those relied upon by the court below. Those grounds were argued before the trial Judge.
Ground 3 - the content of the duty of care
68 The trial Judge held that, Ms Brown had established, that there was a material risk of serious harm to her arising out of a close intimate or sexual relationship between herself and Mr Hodder. The appellant submitted that the risk of injury that eventuated was a physical and psychiatric harm consequent upon a criminal assault or a criminal assault with consequent physical and psychiatric sequelae. The appellant submitted that his Honour did not find, nor was there any evidence to support a finding, that a reasonable person in the position of the appellant ought to have foreseen that a failure to warn Ms Brown not to associate with Mr Hodder might lead to a criminal assault or to physical and psychiatric harm consequent thereon. The appellant was not aware of Mr Hodder's criminal history.
69 Part of the appellant's submission was directed to what was said to be the free voluntary and informed criminal act of Mr Hodder in sexually assaulting Ms Brown at a place other than what might be regarded as Mr Hodder's place of employment with the appellant. The appellant argued that it was only liable in negligence, if Ms Brown proved that the appellant owed a duty of care to protect her from a criminal sexual assault by a third party. The appellant submitted that a relationship or situation giving rise to such a duty was not proved. Put from a different perspective, the appellant contended that Mr Hodder's voluntary and informed act broke the chain of causation between any breach of duty and the injury Ms Brown suffered from the sexual assault.
70 The context of such a submission is the contrast drawn by Dixon J in Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 at 261-2 between the case where, apart from vicarious responsibility, the defendant is responsible to the plaintiff for the harm done to the latter by a third person, a responsibility grounded on the act of the third person being one which "could not have taken place but for" the defendant's fault or breach of duty, and the general rule that one person is under no duty of controlling another to prevent the latter doing damage to a third.
71 Whether in this case there was a special relationship between the appellant and Ms Brown, which enlarged the scope or measure of the duty of care owed by the appellant to her, cannot be solved by resort alone to statements of principle in other cases. In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at 262 (13) Gleeson CJ observed, that in cases such as the present where the real issue is about the scope of legal responsibility, that issue cannot be resolved
"by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense. ... A recitation of facts may not be useful unless it distinguishes between facts essential to the cause of action, particulars, and evidence."
72 Ms Brown suffered personal injury, the direct and immediate cause of which was Mr Hodder's sexual assault upon her. Her claim was based upon the following particular facts. Ms Brown following the birth of her child, Jayden, suffered psychiatric illness notably a borderline personality disorder. In a paper in the July 1998 issue of Modern Medicine of Australia, which was in evidence, Dr John Ellard, a practising consultant psychiatrist and one of Ms Brown's witnesses, writing of "Professional boundaries: the forbidden territories", said of that disorder:
"These are tumultuous, insecure people who cannot bear to be alone and who do not know how to sustain a relationship. Chaos reigns; both naive and unscrupulous doctors are likely to become part of it."
In part of the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, which was in evidence, the criteria were described as "a pervasive pattern of instability of interpersonal relationships."
73 In 1996 Ms Brown had come under the care of the appellant in several hospitals and ultimately in 1997 at the Bateman's Bay Hospital. The occasions of these admissions and the particular diagnoses demonstrate that Ms Brown required special care, not least because of her suicidal and self-mutilation tendencies, but also because of the borderline personality disorder. Furthermore, the appellant recognised its responsibility and was aware of Ms Brown's illness.
74 However, where possible, Ms Brown remained living in the community outside a hospital environment and therefore was susceptible, without constraint, to the temptations of gambling, alcohol and overdosing. Also she was free to mix with other people, particularly in clubs, whether those people were male or female. She had a de facto partner with whom she lived until 10 June 1997.
75 Her meeting and relationship with Mr Hodder was pivotal to the alleged breach of the appellant's duty of care to her. Mr Hodder came to Bateman's Bay Hospital on 10 June 1997 as a first year nursing student. As such he was under the supervision and control of the appellant. In the course of his work, as a student nurse, he met Ms Brown after her admission on 14 June 1997. He attended to her in the supervisory or companionship role of taking her out when she wanted fresh air or a cigarette. Ms Brown described him as a person who would "more or less counsel me while I was a patient". While she was in hospital she provided Mr Hodder with her telephone number. The relationship could be described as a professional one between health worker and patient and involved a degree of dependence by Ms Brown and a degree of power in the hands of Mr Hodder.
76 The relationship continued after Ms Brown was discharged. Critically on the morning of 17 June 1997, the day of her discharge, Mr Hodder visited Ms Brown at her home, at his request by telephone. Thereafter, and particularly on the night of 20 and 21 June 1997, the relationship continued as a result of the chance meeting at the RSL Club, her invitation to Mr Hodder to her home and the sexual assault in the early hours of 21 June.
77 That Ms Brown felt uncomfortable or perhaps uneasy in her relationship with men was known to the appellant. She told Ms Mayers on 18 June 1997 that she did not want any men in her life. Even so, Mr Hodder had visited her in her home and she was happy and comfortable with that.
78 In his report of 22 May 2000, Dr Ellard said:
"My understanding is that the team leader (Ms Nash) became aware of the situation on the night of the first visit (ie 17 June 1997). She was aware of Ms Brown's borderline personality disorder - with all that that signifies - and further that such a visit would be a breach of professional standards. It would be prudent to make the least charitable assumption and to assume that the purpose of the visit was predatory.
Her immediate duty was to state in the firmest possible terms to Ms Brown that such a meeting would be both improper and potentially dangerous and to do her best to cause her to reverse her decision."
79 In his oral evidence Dr Ellard said:
"It seems to me that they were dealing with a very vulnerable person and they should have been absolutely clear in their instructions to any professional who might wish to have a relationship with her of any kind, other than a professional relationship, to stay out of it. Borderline people are very vulnerable and very seductive."
80 Mr Maconachie QC, who appeared for the appellant on the appeal, urged upon us that the appellant could not reasonably have foreseen that its conduct in failing to warn Ms Brown not to associate with Mr Hodder involved a risk that Mr Hodder would sexually assault Ms Brown; (Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47). I have no doubt that the appellant should have foreseen that there was a risk of sexual intercourse between Ms Brown and Mr Hodder. The trial Judge was satisfied that Ms Brown had established that there was a material risk of serious harm to her arising out of a close intimate or sexual relationship between herself and Mr Hodder. In his Honour's opinion, the foreseeability required was not one as to the precise event which occurred, but as to damage of the type which occurred, that is the damage flowing from an inappropriate sexual relationship. But in my opinion, the risk of sexual assault could not be said to be far fetched or fanciful. As Dr Ellard said "prudence would have dictated the assumption when Ms Nash learnt of Mr Hodder's impending visit to Ms Brown's home that the purpose of the visit was predatory".
81 In Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 a doctor, while assisting the driver of a car who had been thrown onto the roadway as the result of a collision, was struck by a car driven by the defendant and killed. The defendant joined as a third party the driver that the doctor had been assisting when the accident occurred. The High Court held that the third party was under a duty to the doctor to exercise reasonable care in the management of his vehicle and that the presence of the doctor in the roadway was immediately the result of the third party's negligent driving. The risk of injury from passing traffic was real and substantial. In dealing with the submission that it was not reasonably foreseeable that the driver would be precipitated onto the roadway, that the doctor would at that moment be in the immediate vicinity and that he, as a doctor, should be first on the scene and within a few moments run down by a negligent driver, the High Court said at 120:
"But this argument assumes as the test of the existence of a duty of care with respect to Dr Cherry the reasonable foreseeability of the precise sequence of events which led to his death and it was rejected, and rightly rejected, by the Full Court. It is, we think, sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow a collision between two vehicles on a dark wet night upon a busy highway. In pursuing this enquiry it is without significance that Dr Cherry was a medical practitioner or that Chapman was deposited on the roadway. What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured. As Greer LJ said in Haynes v Harwood [1935] 1 KB 146 at 156:
`It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act'."
82 In their judgment in Tame v New South Wales [2002] HCA 35; (2002) 76 ALJR 1348 at 1384 (203), Gummow and Kirby JJ said:
"... it is not necessary that the particular type of disorder that eventuated be reasonably foreseeable; it is sufficient that the class of injury, psychiatric illness, was foreseeable as a possible consequence of the defendant's conduct (Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 390, 402-3 and 413-4). So much follows from a proposition that liability does not depend upon `the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of' (Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 121). If liability be established by application of these criteria there, then, consistently with the approach tentatively favoured by Windeyer J in Pusey, the `eggshell skull' rule applies to the assessment of damages."
83 On behalf of Ms Brown it was submitted that there was unchallenged expert evidence of the foreseeability of the harm that occurred. That evidence was that a reasonable person, in the position of the appellant, should have warned Ms Brown of the very risk that ensued, namely unwanted sexual intercourse with Mr Hodder. Reference was made to the evidence of Dr Phillips who spoke of the "slippery slope" that any health professional, particularly in the mental health area, would recognise "the conversation that transpired between Ms Brown and Mr Hodder as something that might quickly get out of control". Dr Phillips said: "Prima facie if anybody in a treating situation, indeed Ms Nash was in that situation, should have heard the warning bells ringing on the spot and should have moved to do something about it on the spot." Dr Phillips believed that there was an established relationship between Ms Brown and her carers. Discussion about possible risks to her, including seduction and intercourse against her will, might have been just what she needed to make a more considered decision about whether she saw Mr Hodder. The advice that should have been given, on the night of the overheard telephone call from Mr Hodder, should have been about the risks to Ms Brown as a person, an individual, the immediate risks of a relationship developing of a magnitude that would be dangerous to her or maybe not wanted by her.
84 In New South Wales v Lepore [2003] HCA 4; (2003) 77 ALJR 558 the Chief Justice said at 560 [1]:
"If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is `No, never'. In Australia, at least until recently, an answer `Yes, always' would also have been surprising. More information would have been required."
85 In Lepore an important matter was the school authority's duty to take reasonable care for the safety of its pupils. In the present case, the appellant undeniably owed a duty to take reasonable care for the safety of Ms Brown and the scope of that duty must be determined having regard to her particular vulnerability. Moreover, the predator in this case was, or had been, a person the appellant employed as a health worker and carer of Ms Brown and there was the well-recognised danger of non-professional association between carers and patients. To my mind, the case was overwhelming that the appellant should have foreseen that a failure to warn Ms Brown in the way that Dr Phillips insisted left her open to a risk of harm of the general nature of that which occurred, namely a sexual relationship whether forced upon Ms Brown, as the trial Judge found, or not.
Grounds 4 and 5 - causation
86 The appellant submitted that there was a general principle that the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by a defendant, negatived any cause or connection between the tort and the loss or damage; see Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 at 55 where McHugh J said:
"Under the common law theory of commonsense causation, a free, informed and voluntary act of the plaintiff or a third party, which builds on a situation resulting from the defendant's tort and causes loss or damage to the plaintiff, negatives any causal connection between that tort and the loss or damage. Hart and Honore, Causation in the Law, 2nd ed (1985) 136, Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed (1990) at 121; Haber v Walker (1963) VR 339 at 358. That is so even though the act of the plaintiff or third party would not have occurred but for the defendant's tort."
87 In seeking to distinguish Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35; [2000] 1 AC 360, a case of suicide in custody, the appellant submitted, that there, the free, voluntary and informed causation principle was displaced because protection against suicide was the very thing in respect of which the Commissioner owed a duty. The appellant relied upon the facts that Ms Brown was living in the community, had "freedom of movement" and "freedom of choice" and that while the appellant was the cause of Ms Brown's initial acquaintance with Mr Hodder it had nothing to do with the later meeting and had no duty to protect Ms Brown against criminal assault or even consensual sexual conduct.
88 In Environment Agency(formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 Lord Hoffmann at 29 and following discussed the oft repeated notion of "causing" as one of commonsense and observed that "it is of course the causal significance of acts of third parties (as in this case) or natural forces that gives rise to almost all the problems about the notion of `causing' and drives judges to take refuge in metaphor or Latin." His Lordship gave examples such as the well-known case of Stansbie v Troman [1948] 2 KB 48 where a decorator working alone in a house went out to buy wallpaper and left the front door unlocked. The decorator was held liable for the loss caused by a thief who entered while he was away. Lord Hoffmann observed at 31:
"For the purpose of attributing liability to the thief (eg in a prosecution for theft) the loss was caused by his deliberate act and no one would have said that it was caused by the door being left open. But for the purpose of attributing liability to the decorator, the loss was caused by his negligence because his duty was to take reasonable care to guard against thieves entering."
His Lordship continued:
"These examples show that one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule. Does the rule impose a duty which requires one to guard against, or makes one responsible for, the deliberate acts of third persons? If so, it will be correct to say, when loss is caused by the act of such a third person, that it was caused by the breach of duty."
89 What Lord Hoffmann said was referred to by Gleeson CJ in Modbury Triangle at 269 and by McHugh JA in Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 491. In the present case, if Mr Hodder had been prosecuted it would have been no defence to say that the appellant had failed to warn him or had failed to warn Ms Brown that they should not associate. If the appellant's duty is correctly characterised, as I believe it should be, as a duty to warn Ms Brown not to associate with Mr Hodder for reason that there was a risk of a sexual relationship developing, then for the purpose of considering the breach of this duty, it is correct to say that if the probabilities are that the warning would have prevented the association, then even though the injury was caused by the act of the third person, Mr Hodder, for the purpose of determining the appellant's liability, it was caused by the appellant's breach of duty. In the language of Tucker LJ in Stansbie v Troman at 51-52 "the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened."
90 The trial Judge found that there were "a whole host of matters detailed in the submissions and apparent from the transcript and the exhibits" where Ms Brown was "prepared to go her own way despite the advice which was given to her from time to time." However, Ms Brown said, casting her mind back slightly before 21 June 1997, that if Ms Mayers had told her that it was not appropriate that she see Mr Hodder in a social setting, Ms Brown would have listened to her. "I always listen to her. I still listen to everything she tells me." If Ms Nash had said to her that she should not see Mr Hodder the night Ms Nash spoke to her, Ms Brown said she would have listened to her "basically". "They helped me run my life then." When asked if in giving evidence, her approach to the question was coloured by what had happened afterwards, Ms Brown said: "I don't believe that is so. I believe if she had told me that it was unethical and it was against hospital procedure or policy that I would have agreed with what she said." She did not agree that her responses were coloured by her bad experience. Her response would have been the same. She said that she honestly believed she would have given that response had she been told that it was not appropriate for her to see Mr Hodder in a social setting.
91 The trial Judge was satisfied that Ms Brown would have acted on advice given to her about meeting with Mr Hodder. In the passage that I have quoted at para 58 above, after referring to the indications that she would, the trial Judge was satisfied that there was every likelihood that a clear and specific piece of advice to her about Mr Hodder would have tipped the balance against her associating with him on that evening. His Honour was well aware of the occasions, to which he referred, in which Ms Brown had not followed advice. Mr Maconachie listed the many occasions where this had happened. But his Honour took account of this "host of matters" and, in my opinion, its existence does not permit this Court to hold that his Honour's conclusion about the effect of the appropriate advice was not open to him. Similarly, it was open to the trial Judge for the reasons he gave, to conclude that whilst nothing was impossible, logically speaking, there was nothing to suggest that, had Mr Hodder been rebuffed and/or warned off by the appellant's staff, that he would have forced the issue in the sense that he would have broken into Ms Brown's home and committed a sexual assault upon her. His conduct was redolent of a person who was simply using the opportunity of having struck up a friendship or relationship with a person as a patient in hospital to foster his own interests in a sexual relationship by persuasion and manipulation, rather than by the exercise of a more substantial level of violence involved in an act, such as, breaking into Ms Brown's home and violently assaulting her. His conduct was to use manipulation and persuasion to get himself into a position where he was able to have intercourse without the consent of Ms Brown. Her account did not suggest that he displayed any overt violence or aggression other than that which was inherent in a non-consensual sexual encounter. She was physically unable to offer much in the way of resistance because of her tiredness and intoxication.
92 Once it is accepted that the trial Judge's findings on causation were open to him, the appeal on grounds 4 and 5 collapses.
Grounds 1 and 2 - failure to take account of evidence
93 These grounds of appeal were directed to the trial Judge's conclusion that there was nothing to suggest that advising Ms Brown not to associate with Mr Hodder would have been, in itself, in any way harmful to Ms Brown and that it had not been suggested by any of the appellant's witnesses that the giving of that advice could have any potentially harmful impact on Ms Brown.
94 Ms Nash, the co-ordinator of the Mental Health team at Moruya Community Health Centre, gave this evidence in chief about her telephone conversation with Ms Brown on 17 June 1997 and Mr Hodder's proposed visit to Ms Brown:
"Q. Was there any reason why you didn't speak to her further about the visit? A. I guess I didn't want her to feel that she was in the wrong in any way. I didn't want her to feel that she was to blame in any way. Her emotional state had been quite fragile. On that particular evening, speaking to her, she seemed very well and I felt that may just inflame things for her, it may make things worse for her. I felt, as this was a student nurse, it really was our business to, I guess, deal with that separately from her in order that she wasn't upset by it.
Q. Given your past contact with her what concerns did you hold at that time in relation to upsetting her or inflaming her as you indicated? A. Could you repeat that?
Q. You said you didn't want to inflame the position? A. No.
Q. What specific concern did you have in that regard vis-à-vis Ms Brown's welfare that evening, she being at home alone? A. Again, to have gone into further discussion with her, I think I am answering the question here, to have gone into further discussion with her, focusing on this nurse, may have made her feel less worthy or less important. I think I have answered your question, I am not sure that I have though.
Q. I suppose what I am really directing the question to is, did you think it was appropriate to talk to her that night and suggest to her that perhaps she wouldn't want to see the student nurse that evening for one reason or another? A. No, I didn't.
Q. Was there some reason for that? A. Again, to go into detail with her may have unsettled her, she had a recent exacerbation, she had recently been hospitalised, she was settled. I felt that it should be dealt with professionally and not via the client.
Q. I want you to amplify on that in the sense of your reluctance to speak to Jodi about it by reference to your knowledge of her history and treatment? A. Her history would have indicated that if you said, not all the time, some of the time, if you said to her, perhaps this isn't a good idea to do this, then she may well do it, almost as a rebellious child. So I guess that was going through my mind. Although I didn't, at that particular time of night, I didn't have access to her notes, to her history, but I felt that that was the appropriate thing to do, because of that past history. Had I said, I don't believe that this is good for you, or it's not advisable, et cetera et cetera, I am not sure that that would have made any difference to whether or not she allowed this chap to come and visit her."
95 Ms Mayers, Ms Brown's case manager, a clinical nurse specialist, specialising in anxiety disorders and depression, who had known Ms Brown since May 1996 and had over 20 years experience as a psychiatric nurse, gave this evidence in chief, speaking of 18 June 1997:
"Q. ...This was note of February 1997, you have written `Dear Graham' and you have made a note there in reference to the plaintiff that she wanted to do things her own way. Do you see that? A. Yes.
Q. Tell us what you meant by that and the reasons why you formed that view? A. In my experience with Jodi, my primary concern was her safety. On some occasions she would take advice and follow advice. Sometimes for a short period of time, sometimes for a week or so. She was grossly ambivalent about a lot of things, treatment, whether to stay with her de facto, what to do. However, I believed at the end of the day she very much did the things that she wanted to do.
Q. Coming back to 18 June 1997, did the plaintiff say anything to you to suggest that she was proposing to have further contact with the student nurse? A. No, she didn't.
Q. It has been suggested in this matter that you should have spoken to the plaintiff on that occasion when you saw her about the contact that she had with Mr Hodder and that you ought to have suggested that it wasn't such a good idea. That has been put to the court? A. I believed on that day that she would not have taken advice and I also believed that my nursing unit manager was attending to it via Batemans Bay management.
Q. Was your understanding of the matter that was in relation to the student nurse as distinct from an approach to the plaintiff? A. That is correct.
Q. But what I am asking you is the reason or the reasons which informed a decision that you made at the time not to speak to her specifically about Hodder. Can you elaborate upon that? A. I have seen in the past where she has been told by people that care for her, members of her family, her de facto, not to maintain friendships with certain people. I saw her reaction, quite angry and hostile towards people giving that advice. My role is to be non-directive in the counselling situation, and I believed, if I was direct, that in fact she would do the opposite.
Q. And had there been instances prior to this point in time when she had done the opposite of what you may have suggested in general that she should do? A. Her friendship with Michael James, her relationship with her partner Brett, her relationship with her family, particularly her father.
...
Q. Did what you have already described and recorded in the notes as the plaintiff's trouble at this time very time of non-compliance with medication have any bearing upon the decision that you made on 18 June? A. It did.
Q. In what way? A. The fact that she was abusing Valium and alcohol, she was physically unwell and I believed at that time for me to be direct and tell her not to have contact with the student nurse was not my role and I didn't believe it would make a difference.
HIS HONOUR: Q. Were there directives about advising her that it would be ethically improper for a nurse to try and have a social relationship with her? A. No.
Q. That would be advice, wouldn't it, not direction? A. I didn't feel at that time though, with the content that she was telling me, it wasn't only Mr Hodder, there were other men, and I felt that to be specific with one, that it would be - she would be oppositional and not take the advice.
SANDFORD: Q. I think you have already told us that your role wasn't to be directive? A. That is correct.
Q. So that when his Honour asked you whether you could have spoken to her about it being ethically inappropriate for her to have contact with Mr Hodder -
HIS HONOUR: For him to have contact with her. It is a subtle but important distinction.
WITNESS: My primary concern was Jodi's safety, the fact that she had been abusing Valium for a period of time, she had been abusing alcohol, I felt that her mental state was well altered at particular points in time.
Q. Knowing her as you did at that point, and having had a relationship with her, had you told her or suggested to her by way of a gentle argument or persuasion that it might have been ethically inappropriate for the student nurse to have contact with her, what do you think her reaction would have been? A. I believe it would have been oppositional.
Q. And what do you mean by oppositional? A. That she would have done the opposite of what I would have gently suggested to her, and I reiterate again, at that point in time and for months preceding my primary concern had been this girl's safety.
Q. When you say `safety', specifically what? A. Specifically suicide and self-mutilation."
96 Judge Graham outlined the substance of Dr Phillip's evidence about the "slippery slope" at length. Dr Phillips was vigorously cross-examined but as I read the cross-examination gave no ground about the central theme which his Honour explained. I have quoted that part of Dr Ellard's report of 22 May 2000 in which, speaking of Ms Nash, he said that since she had become aware of the situation on the night of the first visit and was aware of Ms Brown's borderline personality disorder, Dr Ellard thought it would be prudent to assume that the purpose of the visit was predatory. Dr Ellard said what Ms Nash's duty was as he saw it. He continued:
"If I assume that the alleged assailant was still on hospital staff then it would be most important that he be visited next day and given the firmest possible instructions about what not to do. It would also be necessary to visit Ms Brown the next day firstly to emphasise the advice given by telephone and secondly to make sure that nothing happened which might lead to an immediate exacerbation of her psychiatric disorder."
97 Cross-examined about this part of his report Dr Ellard gave evidence as follows:
"Q. Do you think that there is room in a situation where someone has had the care of a patient such as the plaintiff for some time, is familiar with that particular person's condition, history, motivations, moods and the like, is there not room for the making of a clinical judgment as to whether or not to counsel and direct that person as to whom it is that they ought to have contact with? A. Well, it depends what you mean by counsel. If you mean to do what he did -
Q. No. In specific terms, is there not room for the making of a clinical judgment, in this case specifically the making of a clinical judgment by people in the situation faced by Nurse Nash and Nurse Mayers, about what to tell the plaintiff in view of her condition and history and their intimate association with her over the period of time since May of 1996? A. Yes, you would have to make judgments all the while but they are made within a firm boundary.
Q. I appreciate that, doctor, but mental health is obviously a specialised area, isn't it? A. Yes.
Q. And this lady at this point in time had an established history. A. Yes, she did.
Q. And if you assume that there was a primary concern on the part of those nurses looking after her to guard against self-harm at this point of time? A. Yes.
Q. And a primary associated concern to not, if I can use this expression, rock the boat? A. One certainly should not rock the boat.
Q. So what I am putting to you, doctor, is that in this particular situation, where one is familiar with someone's history, one also learns, may I ask you to assume, the following morning that the contact, however it may have been thought to have been inappropriate, was unharmful? A. Unharmful?
Q. Unharmful. A. How would you know?
Q. Well, can you assume that the following morning after the contact that you had noted as occurring on 17 June there was discussion between the plaintiff and one of the - in fact her case manager, Nurse Mayers, and in general terms it was reported that the plaintiff in fact drove the student nurse home at 1.30 that morning and that there was further discussion between the two of them as to how to deal appropriately with men? A. I don't think the patient was in a position to make a judgment. I have considerable experience about doctors doing things they shouldn't do and many times patients welcome the attentions, which of course in the long run turn out to be destructive. So the patient's opinion doesn't move me really."
98 A little later in cross-examination Dr Ellard gave evidence which I have already quoted about borderline people being very vulnerable and very seductive and continued:
"Q. Well, doctor, I suggest that there was room for clinical judgment in that matter and I understand you disagree with me. A. I am sorry, I couldn't -
Q. I suggest there is room for a clinical judgment to be made in all the circumstances. I understand you disagree with that. A. I have firm views about professional relationships."
99 The state of the evidence was that both Dr Phillips and Dr Ellard had been cross-examined in an attempt to get them to agree that the advice they said should have been given to Ms Brown would or might have been harmful, that in the words of Ms Nash it might "just inflame things for her" or "make things worse for her". Ms Mayers said it would have done "the opposite" of what needed to be done for Ms Brown's safety, which was Ms Mayer's primary concern, specifically suicide and self-mutilation.
100 Ms Nash was a registered psychiatric nurse and unit manager of the Eurobodalla Mental Health Service, its team leader. She was responsible for co-ordinating the community mental health team within the Eurobodalla
area. She started psychiatric nursing in 1976 and qualified at the end of 1979. She first came into contact with Ms Brown in late 1995 early 1996. Ms Mayers was a clinical nurse specialist, specialising in anxiety disorders and depression. She had known Ms Brown since May 1976. She had finished her training in 1973 and at the time of the trial had been working in the community for over 15 years. The evidence of Dr Phillips and of Dr Ellard could be understood as a significant criticism of the competence of Ms Nash and Ms Mayers. In accepting it, the trial Judge was bound to take account of their evidence, their experience and the nature of their contact, over a period of almost a year, with Ms Brown. The appellant submitted that his Honour failed to do this and indeed apparently overlooked their evidence. Otherwise, his Honour could not have concluded that there was nothing to suggest that the giving of the advice, Dr Phillips and Dr Ellard said was required, would have been, itself, in any way harmful to Ms Brown. His Honour either misunderstood or overlooked the evidence of Ms Nash and Ms Mayers when he said:
"It has not been suggested by any of the defendant's witnesses or their expert, that the giving of that advice could have any potentially harmful impact on the plaintiff."
Further, neither Ms Nash nor Ms Mayers were cross-examined about this part of their evidence.
101 In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if the first party wishes to submit to the Court that the evidence should not be accepted on that point; see Phipson on Evidence, 15th ed, 244 para 11-04.
102 There are several leading cases about the need to cross-examine a witness if the opposing party wishes to put a submission that the witness' evidence should not be accepted. First among these cases is Browne v Dunn (1893) 6 R 67 which has given its name to what is regarded as an important rule of practice explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 at 16. At 23 Hunt J said:
"In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence in chief. But sometimes quite properly he may not be aware either of the other material or of its relevance; or for quite legitimate tactical reasons he may prefer his opponent to be the first to raise the matter, and then deal with it in re-examination or (if allowed) in his case in reply. But at some stage during the course of the evidence, the witness must be given a proper opportunity to deal with the material to be relied upon for the challenge. If he has not been given that opportunity during the course of his own evidence, the situation may in some cases be remedied by his recall. Sometimes, particularly in jury trials, a party's failure to give such an opportunity to his opponent at the proper time may in justice require a ruling that a challenge to the evidence of the witness cannot be permitted or, if such a challenge has been made without warning, either the discharge of the jury or an appropriately strong direction to the jury in order to redress the unfairness which results. The various courses open in such a trial and the remedies upon appeal are discussed by the New South Wales Court of Appeal in Seymour v Australian Broadcasting Commission (Court of Appeal, 3 June 1977, unreported)."
103 As stated by Hunt J, a comprehensive discussion of the rule in Browne v Dunn is found in the decision of this Court in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 in the judgment of Glass JA, with whom Reynolds JA agreed, at 224-225 and in the judgment of Mahoney JA at 235-237. In R v Birks (1990) 19 NSWLR 677 Gleeson CJ said at 689-690:
"The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. In a judgment of Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, his Honour said (at 236-237):
`This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness's evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. In other cases, the problem may arise only on appeal. This, in my opinion, is what happened in Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362. The appellant had argued successfully before the Court of Appeal that the amount awarded to her by the jury was so small that it was out of proportion to her injuries. The respondent defendant had apparently argued before the High Court that the amount awarded would not have been out of proportion if the jury had concluded that the plaintiff, uninjured, would not have continued to work as she had sworn that she proposed to do. Gibbs J (at 370-371) pointed out that the plaintiff had not been cross-examined upon her evidence in that regard and that therefore it would not have been open to the jury to reject that part of her case. It would have been `unreasonable' for them to have taken a contrary view, and his Honour concluded that it was not open to the respondent to support its case upon the basis that it had.'
The above passage indicates the variety of circumstances in which a failure to observe the rule can manifest itself, and the ways in which a significant unfairness may be avoided."
104 In this case after the evidence of Dr Phillips and Dr Ellard had been given, Ms Nash and Ms Mayers gave their evidence. Their evidence was not challenged in cross-examination. In the written submissions put on behalf of Ms Brown, a textual approach is relied on which, in substance, is that by using the expression "that advice" the trial Judge was focusing precisely on the advice that Dr Phillips said should have been given and that the appellant had led no evidence that the advice, couched in Dr Phillips' terms, could reasonably have been regarded as harmful to Ms Brown. The problem is that the trial Judge did not give this explanation, and in his reasons for judgment, made no mention of these parts of Ms Nash's and Ms Mayers' evidence. Furthermore, counsel for Ms Brown had the opportunity to cross-examine Ms Nash and Ms Mayers to make the point that is now made in Ms Brown's submissions.
105 Ms Adamson SC, who appeared for Ms Brown at the trial and on the appeal, gave this explanation for not cross-examining Ms Nash and Ms Mayers:
"The way the case started there were the expert reports of Ellard and Phillips, nothing on liability, and then Phillips and Lee on damages, so the plaintiff's independent expert case was uncontroverted. A forensic decision was taken by me as I was running the case on behalf of the plaintiff, that because Denise Nash and Celeste Mayers, the relevant members of the Southern Area Health Service who had contact with the plaintiff, had not been asked what they thought would have happened if the warning that Dr Phillips outlined in his evidence had been given or what their view would have been of the consequences of that warning--"
106 Ms Adamson further submitted that, if the effect of the rule in Browne v Dunn was that it was not open to Ms Brown, because of the failure to cross-examine Ms Nash and Ms Mayers, to put submissions that contradicted their evidence or if, properly understood on this aspect of the case, the trial Judge had ignored their evidence, the plaintiff relied on what was described as the second limb of the failure to warn case, namely the failure to take any action in relation to Mr Hodder. This had not been challenged except on the question of causation. A question then arose as to whether Ms Brown needed to file a notice of contention, which, as I have indicated, was ultimately the course she took.
107 In its written submission the appellant referred to the passage in the trial Judge's reasons for judgment, which I have quoted in para 61 above. During the course of argument, it had been suggested that this finding of fact by the trial Judge supported a case that if the appellant had counselled or advised Mr Hodder not to associate with Ms Brown that would have been effective, Mr Hodder would not have associated with Ms Brown and the events that gave rise to the sexual assault would not have occurred. As will be seen, the three paragraphs in the proposed notice of contention allege a duty owed by the appellant to Ms Brown, a breach of that duty and that the appellant's failure to counsel Mr Hodder was an independent cause of the harm which Ms Brown suffered.
108 Rightly, the appellant submitted, that that part of the reasons for judgment relied upon was directed to the question of whether the assault by Ms Hodder was an independent willed act which broke any chain of causation flowing from the failure to warn Ms Brown. The appellant submitted that the trial Judge made no finding that a failure to counsel Mr Hodder was a cause of Ms Brown's harm but merely considered the hypothesis in testing his conclusion that there was a novus actus interveniens. The appellant accepted that earlier in his judgment, in the passage I have quoted at para 54 above, the trial Judge found there was a clear duty owed by the appellant to warn not only Ms Brown, but Mr Hodder, that the relationship between them ought not be fostered.
109 As the appellant submitted, it can fairly be said that the trial Judge directed close attention, when dealing with the scope and breach of duty, to the appellant's failure to warn Ms Brown and the effect such a warning would have had upon Ms Brown. It was "that failure" (see the last four lines of the final passage in his Honour's reasons for judgment quoted in para 57 above) that his Honour directed himself to when considering causation. The trial Judge concluded that it was the appellant's failure to give appropriate advice to Ms Brown that was a significant contributor to the damage she ultimately suffered. The appellant submitted that the trial Judge, in dealing with the novus actus interveniens submission, was not considering, and at no point considered, what (if any) causative effect a rebuff or warning off by the staff of the appellant would have had upon Mr Hodder's conduct.
110 At trial Ms Brown relied upon the expert evidence of Dr Phillips and Dr Ellard. There were boundaries across which people in the nursing profession should not go. When Ms Nash heard on the night of 17 June 1997 that Mr Hodder had telephoned Ms Brown and that Mr Hodder was coming to see Ms Brown, Ms Nash should have warned Ms Brown immediately against allowing this. The way of doing this needed to be kind and thoughtful but immediate. Dr Phillips said he would have emphasised to Ms Brown the risk to her person and how things can escalate out of control very very rapidly. Judge Graham dealt with this evidence as I have described it in para 57 above. I have set out part of Dr Ellard's evidence in paras 72 and 78-79.
111 Counsel for the appellant raised in a general way with Ms Nash and Ms Mayers when they were giving their evidence in chief the reason why they did not speak further to Ms Brown about Mr Hodder's visit. However, counsel did not put to them directly and squarely the expert evidence of Dr Phillips and Dr Ellard, which could be summarised by Dr Ellard's evidence, that Ms Nash's immediate duty was to state in the firmest possible terms to Ms Brown that the proposed meeting on 17 June would be both improper and potentially dangerous and to do her best to cause Ms Brown to reverse her decision. With the strength of the expert evidence behind her, counsel for the appellant might have thought it appropriate to cross-examine Ms Nash and Ms Mayers on this. Clearly the matter was in issue. If counsel for the appellant thought that it would be raised in cross-examination and it was not, it was open to counsel for the appellant to seek to re-agitate it in re-examination. In the circumstances of this case, I do not think Ms Brown suffers any penalty for her counsel's failure to cross-examine Ms Nash or Ms Mayers about the expert evidence. This was a legitimate tactical decision open to counsel for Ms Brown.
112 Further, in the way that counsel for the appellant dealt with its witnesses, Ms Nash and Ms Mayers, on this issue, I am not persuaded that the trial Judge, in the passage criticised by the appellant, was doing anything other than saying that the expert evidence of Dr Phillips and Dr Ellard was not directly, or even indirectly, challenged by the appellants' witnesses. It was open to the trial Judge to treat the evidence of Ms Nash and Ms Mayers as not directed to the advice that Dr Phillips and Dr Ellard said should have been given. I do not think that counsel for the appellant can, first, avoid putting to its witnesses directly what in their opinion would have been the effect of the advice that Dr Phillips and Dr Ellard said should have been given to Ms Brown and then proceed on the basis that those two witnesses, called by the appellant, were directly responding to the opinions of Dr Phillips and Dr Ellard. It was open to the trial Judge to conclude that they were not and hence, that there was nothing to suggest that the advice, proposed by Dr Phillips and Dr Ellard, would have been harmful to Ms Brown.
113 Further, I am satisfied that the trial Judge in the passage I have quoted in para 54 found that there was a duty also owed by the appellant to Ms Brown to speak to Mr Hodder immediately, indicating that he was not to associate in any way socially with Ms Brown and that, if this had happened, the probabilities were that he would have abided by that direction and kept away from her; see the passages from the reasons for judgment quoted at paras 61 and 62. This was another basis for concluding that the appellant was liable in negligence to Ms Brown for the injury she suffered as a result of the assault.
114 Accordingly, in my opinion, the appeal on these grounds and on liability fails. Even if I were of opinion that the appeal on grounds 1 and 2 should be upheld, Ms Brown has made good the grounds of her notice of contention for upholding the trial Judge's decision on liability.
Ground 6 - general damages
115 The appellant submitted that the trial Judge gave no sufficient weight to what was said by Barwick CJ in Wilson v Peisley (1975) 50 ALJR 207, a case in which the respondent had suffered injuries in a motor vehicle accident as the result of the appellant's negligence. The accident precipitated a rare psychosomatic disease. At 209 the Chief Justice said:
"Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant's negligence intervened."
116 The appellant submitted that a consensual sexual act leading to pregnancy and either termination, or the birth of a child, could and might in the ordinary course of life, have evoked the psychotic condition of which Ms Brown complained, had not the harm which is sued upon, intervened. After the birth of her son, she suffered psychiatric, and indeed psychotic consequences, which required hospitalisation and produced a vulnerability that needed protection from the ordinary events of life. In those circumstances, the appellant contended, an award of $120,000 for general damages was outside the range of a properly exercised discretion. The trial Judge, it was submitted, had failed to have regard to the fact that the appellant was only liable to pay for the exacerbation of a condition that was florid at the time of the events complained of.
117 The trial Judge said:
"The question is what damage has been established? In short, the plaintiff's case is that, as a result of this assault, her personal integrity was violated, she was distressed and had to undergo the uncertainly of the use of the morning after pill, the further distress and shock of discovering the positive pregnancy test and then undergoing the termination of that pregnancy. That history needs only to be blandly recited to indicate that it was a substantial harm to the plaintiff but, to the extent that it is necessary to prove further harm from a legal point of view, the evidence clearly establishes that this incident caused substantial psychological harm to her, including instances of self harm when she cut herself in the course of episodes related to this incident. Whilst there is some uncertainty as to the precise condition she had at the time of this incident, the evidence, on balance, seems to support the diagnosis made at Kenmore Hospital in 1996, that is that the plaintiff at that time suffered from borderline personality disorder and that remains the principle diagnosis for her condition. That condition was clearly exacerbated by her experience of involvement in this incident and in its aftermath. It is also not in dispute, as I understand it, that she had what her treating psychologist described as post traumatic stress disorder, at least for some time after this incident.
The plaintiff was being treated for depression and those treating her were somewhat optimistic, prior to this incident, that her depression would be contained.
Dr Ellard, on the other hand, persuasively put before the court the opinion, which I accept, that the nature of her depression was not simply post natal depression but was a genetic or endogenous depression, that being a conclusion drawn from, among other things, a family history. The treatment of her depression was clearly disrupted by the experience and the aftermath of this incident. The question is as to whether that remains the situation, or whether her situation has improved to the point where it might be said that she is in basically a similar condition to that in which she would have been had this incident not occurred. Reference has been made to the principles in Purkiss v Crittenden and the evidentiary onus upon the defendant. In the end I have not needed to have recourse to those principles because it seems to me that the evidence in the case which I accept substantially provides an answer to the type of question which the principles in Purkiss v Crittenden are designed to assist in resolving.
For a number of years after this incident, the plaintiff's emotional wellbeing was clearly significantly deteriorated. It is difficult to conclude precisely to what extent that represented a change from her situation before the incident on 21 June 1997. Clearly the plaintiff was a very emotionally unwell and vulnerable person in that thirteen months or so from the time she first came under the care of the first defendant. But, clearly, with the onset of the post traumatic stress disorder referable to this incident and the exacerbation of her existing psychological conditions for a number of years after this event, her mental health was even worse than it was before, and significantly worse. The process of treatment which she was undergoing and which appeared to be showing some signs of progress in June 1997 according to Mr Erskine, the treating psychologist, was clearly thrown into reverse by this incident and the process of recovery has been a slow one and is by no means complete. During the course of this hearing, the plaintiff experienced what I am satisfied was a psychotic episode, one which gave Dr Phillips considerable concern. Though he did not witness the episode itself, he saw the plaintiff the next morning and was able, from his own observations as well as from what she told him, albeit during a fairly brief period outside the court, to conclude that she had probably had a psychotic episode and he was indeed concerned that she should get some immediate treatment so dangerous was her condition at that point.
I accept also Dr Phillips' view that, whilst a person with a borderline personality disorder may well react adversely to significant stressors, and thus a person with her disorder might from time to time in any event suffer perhaps psychotic episodes, or otherwise react to stressors, I accept that the experience of this particular incident and its aftermath has simply made her more vulnerable to the effect of those other stressors upon her. Clearly, in some respects, the plaintiff's situation has improved. She is now in a stable relationship and for a number of years she was able to pursue employment. Dr Phillips' view is that, in any event, vocational capacities may be one of those areas in which a person with her principal disorder may be able to function. However, the picture is by no means complete simply by reference to the fact that she has a stable relationship and has been able to perform work of the type for which she was earlier trained and experienced. The plaintiff is, on the evidence before this court, still a person suffering significant psychological problems and with a prognosis which is uncertain and that those matters are matters related to and stemming from this particular incident in June 1997."
118 In its written submissions, the appellant suggested, that an appropriate allowance for general damages would be no more than $40,000. Senior counsel for the appellant, in his oral submissions, suggested that the top award would be between $50,000 and $60,000. Such suggestion pays scant attention to the trial Judge's findings which I have set out. Ms Brown's personal integrity was violated, she became pregnant in consequence of this criminal act and had to go through the termination of that pregnancy. The appellant's suggestion of some correlation with the possible results of a consensual sexual act, is unreal and heartless. Not only was Ms Brown's condition clearly exacerbated by the experience but, it was not in dispute, that she suffered post traumatic stress disorder after the incident. The treatment of Ms Brown's depression was disrupted by the experience and his Honour regarded it as a moot question whether her situation had improved to the point where it might be said that she was in basically a similar condition to that in which she would have been had the incident not occurred. Several years after the incident her emotional wellbeing had clearly significantly deteriorated. The trial Judge found that her mental health was worse than it had been before and in fact significantly worse. Ms Brown's progress was thrown into reverse. During the hearing, Ms Brown experienced a psychotic episode which gave Dr Phillips considerable concern.
119 The trial Judge accepted that as a result of the incident and its aftermath she had become more vulnerable even though, as the trial Judge acknowledged in the passage I have quoted, in some respects her situation had improved.
120 The assessment of damages, particularly general damages, is a matter of discretion. In the circumstances of this case, the amount awarded does not indicate any judicial error.
Ground 7
Past economic loss
121 The trial Judge said:
"So far as past economic loss is concerned, the plaintiff has prepared calculations as to how she might be awarded $80,000 on that head. There are a number of issues as to that claim, the first being that there may well have been periods during which the plaintiff would not have been employed. At one point, she withdrew from rehabilitation services because she had decided to wait until her child was old enough to go to school in 2001. In fact she started work in 2000 and that decision was made in the light of the exacerbated psychological condition which she was experiencing. It seems to me that that decision would not necessarily preclude the plaintiff having worked for the period claimed by her if this incident had not occurred to her. Certainly Mr Erskine was confident of a prospect of a return to work and return to a fairly normal life, generally speaking, within a period not long after early June 1997. That expectation was not met but it is clear that the principal reason for that was the incident for which the defendant is liable.
It seems to me, therefore, that the plaintiff has established a loss in the order of that which is claimed as being the probable result of the disabilities occasioned by the incident for which the defendant is liable to compensate her. I propose to allow a round figure of $80,000 for past economic loss."
122 Ms Brown's prepared calculations were as follows:
"Past Loss of Earnings
6. The plaintiff accepts that her claim for loss of past earnings must be discounted for uncertainties relating to 2 factors:
(a) Probable time off relating to the birth and nursing of her child Jayden; and
(b) Time off pending resolution of her post natal depression.
7. The plaintiff submits that, but for the intervening events of June 1997, the plaintiff would have re-entered the workforce by at least the beginning of 1998, ie, some 20 months after the birth of her child (see Mr Erskine's opinion about her relatively favourable prognosis as at 3 June 1997: ... Thereafter she would have returned to employment as a legal secretary earning about $500 per week nett.
8. On that basis, from 1 January 1998 to the date of the trial the plaintiff would have earned $500 pw x 241 weeks = $120,500. However, the plaintiff actually earned about $39,800 (nett) in the period from 1 January 1998 to the date of the trial.
9. The plaintiff is entitled to $120,573 less $39,800, ie, $80,773."
123 The appellant submitted that the trial Judge failed to have regard to the principle expounded in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-3.
124 Ms Brown's calculations of past loss of earnings took account of uncertainties about the probable time off relating to the birth and nursing of her child Jayden, and time off pending resolution of her post natal depression. The trial Judge's acceptances of these calculations carried an acceptance of the discount for these uncertainties. The appellant's general assertion, that the chance of Ms Brown returning to work and continuing to work, absent the criminal assault, could only be regarded as modest, did not detract from its being open to the trial Judge to accept Ms Brown's submissions.
Future loss of earnings
125 The trial Judge said:
"Future economic loss is, of course, a little more difficult to ascertain. The plaintiff seeks a substantial buffer and I propose to allow one. A claim for $150,000 was made based on a notional figure of $200 a week loss, discounted by thirty per cent. Clearly there has been some improvement in the plaintiff's health and there are prospects that they will continue to some level. The conclusion of the litigation itself will remove one stressor. There is some measure of stability and Dr Phillips' view is that the vocational area is one in which a person with this personality disorder may nonetheless be able to function reasonably well. Clearly the plaintiff is capable, given her skills and experience, of earning $500 per week net. Presently that capacity is still significantly reduced, and in practical terms, there is a very real question mark over her capacity in the short term to be able to engage in full time employment. The experts recognise, for example, that, on the occasion of relevant anniversaries, her condition may flare up and make it difficult for her to maintain employment. It is difficult to be certain about these things, but there is, it seems to me, a good case made for the proposition that there has been, and is likely for the indefinite future to be, a significant diminution of her earning capacity attributable to the disabilities flowing from this incident. There is, of course, already some disability which could be said to flow from the pre-existing condition and that needs to be given appropriate weight. The calculation involving a thirty per cent discount seems to me to adequately take into account that consideration. But I am not persuaded that it would be appropriate to start on the assumption that the loss, at least in the longer term, should be regarded as in the order of $200 per week. That is forty per cent of the present earning capacity of the plaintiff should she be able to carry out her work as a legal secretary. It seems to me that a figure based on a lesser amount would more appropriately reflect the considerations I have mentioned and would more adequately take into account the level of uncertainty as to the future extent of economic loss flowing from this incident and would also give more weight to the pre-existing risks to her employability stemming from her pre-existing psychological conditions. It seems to me that $150 would represent a proper starting point for that calculation and so I propose to award the sum of $112,500 for future economic loss."
126 Again, the appellant asserted, that having regard to Ms Brown's underlying psychiatric condition, the prospect of her being able to obtain and retain work was not adequately reflected in a 30 per cent discount. It was submitted that the assessment of a buffer could not result in an award for future economic loss greater than $35,000. Again, I do not think such an assertion undermines the trial Judge's conclusion.
127 Ms Brown, in her written submissions to the trial Judge, pointed to her history of stable and successful employment before May 1996 to claim a buffer of $150,000 equivalent to lost future earnings of $200 per week and discounted by 30 per cent. The trial Judge was less generous but no ground is shown for interfering.
Loss of superannuation benefits
128 The trial Judge said:
"Claims are made for past loss of superannuation and no submissions have been addressed to that topic. It seems to me that the claim is one which ought to be allowed. Adjusting the figures as they appear in the written submissions for past loss of superannuation, the sum of $7,270 should be awarded, and, in respect of loss of future superannuation loss, adjusting the figures again, the figure of $10,125 should be allowed."
129 The appellant's written submissions conclude, that in the circumstances, awards for past and future economic loss adequately compensated for the loss of a chance of accrual of any superannuation benefits. Ms Brown responded that this ignored the fact that the trial Judge was required to assess damages, including loss of superannuation benefits, irrespective of the level of uncertainties. Ms Brown's earning capacity fitted her for employment in which her employer would have had to make a contribution to superannuation. The respondent submitted that to fail to compensate her for that loss, would be to fail to compensate her adequately for the consequences of the appellant's negligence. I agree with this submission.
Conclusion
130 The appeal should be dismissed with costs.
131 HODGSON JA: : I agree with the orders proposed by Sheller JA and, subject to what I say below, substantially with his reasons. I agree that Ms. Brown should be permitted to rely on the Notice of Contention. There is no suggestion of any disadvantage to the appellant in dealing with the grounds sought to be relied on, as compared with what the position would have been if the Notice of Contention had been filed and served in accordance with the rules.
132 In relation to submissions by the appellant that there was no duty to prevent a deliberate criminal act, and that such an act negatived the causal connection between any breach of duty and the damage, in my opinion this submission fails in this case because, where a male health worker has sexual intercourse with a female patient, there is no obvious or clearly discernible line between his taking advantage of the patient's vulnerable position on the one hand, and his not having a real consent from the patient on the other: there is in my opinion a continuum of improper and/or criminal conduct that overlaps the area of transition between these two cases, and the appellant's duty extended to taking appropriate steps in relation to the risk of conduct at least to the extent of that continuum. It may have been another matter if the health worker's conduct had involved overt physical compulsion, unassociated with exploitation of the patient's vulnerability; but that is not this case.
133 I think the primary judge was in error when he said that it was not suggested by any of the appellant's witnesses that the giving of the advice to the respondent which Dr. Phillips thought should have been given could have any potentially harmful impact on the respondent. I think that the evidence of Ms. Nash and Ms. Mayers did suggest that such advice may well have been counter-productive, and very possibly harmful. Their evidence was in terms apt to apply to the advice supported by Dr. Phillips; and I do not think there was any greater onus on the appellant than on the respondent to put to those witnesses the precise terms of the advice supported by Dr. Phillips.
134 In my opinion, the views of experienced health workers who actually had to grapple with the real problems of dealing with this patient should be given significant weight; and but for the Notice of Contention, I would have been minded to order a new trial.
135 However, in my opinion, the primary judge correctly found that there was a duty to warn Mr. Hodder that the relationship with the patient ought not to be fostered (and see particular (v) to paragraph 10, paragraph 13(ii)-(v), and particulars (iii)-(v) of paragraph 14 of the Statement of Claim); and correctly found that there was nothing to suggest that, had he been rebuffed and or warned off by the appellant's staff, he would have forced the issue. In any event, Mr. Hodder did not give evidence before the primary judge; and in my opinion this Court can and should draw the inference that an appropriate warning to Mr. Hodder would have been effective. There is no justification suggested by the appellant for not promptly warning Mr. Hodder; and in my opinion it is implicit in the primary judge's judgment that the failure to give an appropriate warning to Mr. Hodder was a breach of the appellant's duty to the respondent. In any event, in my opinion this Court can and should make such a finding. Accordingly, the respondent succeeds on the Notice of Contention.
136 In relation to damages, I think there is some force in the appellant's contention that the primary judge gave insufficient attention to principle in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-3 in determining economic loss. Particularly in relation to past economic loss, the primary judge could be seen as having accepted a best case scenario on the balance of probabilities, without having regard to the chances that this scenario would not have been achieved. However, on balance I prefer the more favourable interpretation of the primary judge's reasons adopted by Sheller JA, and I agree that the appeal on this aspect should also be dismissed.
137 McCOLL JA: I agree with Sheller JA.
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LAST UPDATED: 22/12/2003
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