Local Spiritual Assembly of the Baha'Is of Parramatta Ltd & v Babak Haghighat [2004] NSWCA 21 (19 February 2004)

Last Updated: 27 February 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: THE LOCAL SPIRITUAL ASSEMBLY OF THE BAHA'IS OF PARRAMATTA LTD & ANOR v Babak HAGHIGHAT [2004] NSWCA 21

FILE NUMBER(S):

40633/2002

HEARING DATE(S): 12 June 2003

JUDGMENT DATE: 19/02/2004

PARTIES:

THE LOCAL SPIRITUAL ASSEMBLY OF THE BAHAI'S OF PARRAMATTA LTD & ANOR v Babak HAGHIGHAT

JUDGMENT OF: Mason P Tobias JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 7606/2001

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:

Appellant: J D Hislop QC/ D Wilson

Respondent: M J Cranitch SC/ D Andrews

SOLICITORS:

Appellant: Henry Davis York

Respondent: Rishworth Dodd

CATCHWORDS:

NEGLIGENCE - duty of care - custodial analogy - exceptional duty of care - breach of duty - causation - whether conduct materially contributed to respondent's injury - whether increasing risk of injury unreasonable - whether serious danger foreseeable or avoidable - relevance of religious and moral opinions (D)

LEGISLATION CITED:

DECISION:

Appeal upheld.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40633/02

MASON P

TOBIAS JA

McCOLL JA

Thursday 19 February 2004

LOCAL SPIRITUAL ASSEMBLY OF THE BAHA'IS OF PARRAMATTA LTD & Anor v Babak HAGHIGAT

BACKGROUND

This was an appeal from the decision of Phegan DCJ at first instance who awarded substantial damages to the respondent based on a finding of negligence made against two representatives of the Local Spiritual Assembly of the Baha'is at Parramatta.

The respondent was injured when he fell to the ground through a third floor bedroom window of a home unit that he had opened. The unit was the home of Mr and Mrs Fanayan who held responsible positions in the Local Assembly of the Baha'i at Parramatta. The case was conducted on the agreed basis that the appellants were vicariously liable for any negligence of the Fanayans. The respondent was also a member of the Baha'is faith and he knew the Fanayans as they had been assisting him in resolving certain family issues. At the time of the incident the respondent was living with Ms Danielle Brown.

The evening before the incident the respondent returned to his home in an agitated state following an unsuccessful meeting intended to address his ongoing family problems. He left his home and travelled to a local shopping centre. Upon arriving he later took two Valium tablets and fell to sleep in the parking area. He was brought back to Danielle's unit the next morning by the police and slept until 5pm that afternoon. Later that day the respondent received a telephone call from Mrs Fanayan. Upon learning of the respondent's condition Mrs Fanayan told Danielle that she would come over. Mrs Fanayan also called an ambulance because she believed that the respondent had attempted to commit suicide by taking the Valium. During the time of the telephone conversation the respondent took at least two more Valium tablets and fell back to sleep.

Two ambulance officers arrived soon after. They examined the respondent and told Danielle that he would be fine in the morning and that she should keep him at home where he was familiar with the surroundings. Mr and Mrs Fanayan arrived as the ambulance officers were leaving and were told that the respondent was alright and just needed to sleep.

A disagreement then followed between Mrs Fanayan and Danielle as to what should be done with the respondent in the immediate future. Ultimately, the Fanayans took control of the situation and Danielle reluctantly agreed to let them take the respondent back to their flat and look after him.

After arriving at the Fanayan's unit the respondent was taken to a bedroom. Mrs Fanayan left the respondent in the bed and shut the door to the room. A few minutes later the respondent pulled open an unscreened section of a window in the room and fell through onto the ground below (it was not clear whether this was the result of pure accident or due to a deliberate attempt at self-harm).

DECISION AT FIRST INSTANCE

Phegan DCJ found the Fanalayans' to have been negligent. His Honour found that the Fanayans' had breached their duty by taking the respondent to their unit, such conduct having exposed the respondent to danger that did not exist if he had remained at Danielle's unit. Of central importance to judge's finding on breach was the reliance placed on the advice given by the ambulance officers that the respondent should be kept in familiar surroundings and his Honour's finding that any person exercising reasonable care would have heeded that advice.

HELD: per Mason P upholding the appeal (Tobias and McColl JJA agreeing):

It was not negligent for the Fanayans to have brought the respondent back to their flat [66]:

1. Not every action that increases the risk of injury is unreasonable and negligent [69]:

(a) The ambulance officers' did not see the respondent's situation as critical and did not express a view as to whether the respondent should be left with Danielle or taken to the Fanayans' unit. [73] [75]

(b) The Fanayans' action increased the risk of injury to the respondent to the extent that the risk of physical injury would have been less for the respondent if he had been left in the more familiar surroundings of Danielle's flat. [68]

(c) However, carelessness involves an unreasonable failure to protect the interests of someone within the scope of a duty of care. This is not shown merely by positing, with the benefit of hindsight, that something could have been done that would have avoided injury: Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at 305, Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 330, 332, 354 (referred). [65]

(d) Conduct will not be unreasonable in law, merely because it is officious and religiously motivated. [61] [62]

2. The danger that eventuated was serious, but neither foreseeable nor avoidable through the exercise of reasonable care: Phillis v Daly (1988) 15 NSWLR 65 at 74 (referred). [78]

(a) The Fanayans' decision to persuade the respondent to come to their unit was not an unreasonable response to the situation. The respondent was familiar with both the Fanayans' and their unit. Further, the room in which he was placed was a reasonably safe venue having regard to his known condition. [77]

In the circumstances of the case his Honour found it unnecessary to determine whether or not an exceptional duty of care was imposed on the Fanayans. [51]

ORDERS:

Appeal upheld;

Orders made in the District Court set aside and verdict entered for the defendants with costs;

Respondent to pay appellants' costs of appeal but have a certificate under the Suiters' Fund Act 1951.

***************

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40633/02

MASON P

TOBIAS JA

McCOLL JA

Thursday 19 February 2004

LOCAL SPIRITUAL ASSEMBLY OF THE BAHA'IS OF PARRAMATTA LTD & Anor v Babak HAGHIGAT

JUDGMENT

1 MASON P: The respondent was awarded substantial damages in the District Court based upon a finding of negligence made against two representatives of the Local Spiritual Assembly of the Bahá'ís at Parramatta. The primary issues in this appeal concern duty of care, causation and breach.

2 The learned trial judge's findings as to the credibility of the four main witnesses and as to the primary facts are largely unchallenged. The appellants attack the conclusions drawn from these primary facts. They submit that this Court is in as good position as the trial judge in this regard, recognising that they bear the persuasive onus in the appeal.

The accident and its background

3 The respondent was injured on 7 February 2001 when he fell to the ground through a third floor bedroom window of a home unit that he had opened. The unit at North Parramatta was the family home of Mr Danesh and Mrs Zarin Fanayan (who will hereafter be referred to by their first names). They held responsible positions in the Local Assembly of the Bahá'ís at Parramatta. Their duty of care as found by Judge Phegan stemmed from a combination of their pastoral relationship with the respondent, the events of 6 and 7 February, and their occupation of the premises from which the respondent fell. The case was conducted on the agreed basis that the appellants were vicariously liable for any negligence on the part of the Fanayans.

4 It was common ground on the pleadings that the respondent was a member of the Bahá'ís Faith. He and members of his family were associated with the Parramatta Assembly. He knew Mr and Mrs Fanayan and had visited their unit on at least two earlier occasions. Their help had been sought in resolving certain family issues.

5 The respondent was born in Iran in 1971. He left school when he was 14 and had generally worked as a builder's labourer. At the time of the accident he was a painting subcontractor. Army service in the Iran/Iraq war had been traumatic and had led him to rely on Valium to help him sleep and cope. He came to Australia in 1998, moving from Adelaide to Sydney in November 1999 where he lived with his mother and sister. His native language (like that of the Narayans) was Farsi, the modern Persian dialect. Judge Phegan described him as having a somewhat volatile personality, sometimes prone to exaggerated threats and overly dramatic statements about his circumstances. There had been threats of suicide that worried Zarin in particular.

6 At the end of 2000 the respondent stopped living with his mother and sister and commenced a relationship with a young woman, Ms Danielle Brown (Danielle). He was living with her in a unit at Wentworthville at the time of the accident. The intrusive behaviour of an uncle had been the trigger for leaving his mother's home and it was the cause of the ongoing problems for him that members of the Local Assembly were endeavouring to address. Zarin in particular had befriended the respondent. In the primary judge's words, she "became a receptive listener to [his] problems".

7 The relationship between the respondent and Danielle had also been discussed. Zarin was concerned about Danielle's suitability as the respondent's partner. This in turn caused tension between Danielle and Zarin. (As I explain below, the correctness of the moral/religious views of all four of the main participants had no bearing on the legal issues although tensions based upon them did, to some degree.)

8 A meeting was arranged at the Assembly hall on 6 February 2001. It was at Zarin's instigation and intended to address problems with the respondent's uncle. The meeting was unsuccessful and this had disappointed the respondent. The trial judge found that it was "a disillusioning experience... which led him to decide that he no longer wanted to be a member of the faith". The evidence did not however rise this high, as regards any decision to sever ties with the Baha'i faith (cf Black 22). As indicated, the respondent pleaded that he was a member of the Baha'i Faith at all material times and this had been admitted by the appellants.

9 The respondent returned home between 10.30 and 11.00pm in a very agitated state. He talked to Danielle about getting out of the Assembly. He then went out. In his words, he was "feeling very bad and I didn't want to stay at home, I felt quite confused and shattered so I decided to take my motorbike and go for a ride". He rode to Wentworthville shopping centre, took two Valium tablets, lay down and went to sleep in the parking area near his motorcycle. He was found at 6am the next morning by police officers who took him back to Danielle's unit. Danielle described him as "very sleepy, with a very pallid complexion". She asked him if he was drunk and he answered "No, I have a headache and have taken Valium". He appeared to be "quite disoriented and dizzy" and she helped put him to bed. He slept until about 5pm that afternoon.

10 While he was asleep Danielle telephoned her brother, a medical science student, to obtain advice about the possible effects of Valium. She remained with the respondent throughout the day, regularly checking his temperature and placing a wet cloth on his forehead. She took the phone off the hook and turned off his mobile phone so that he would not be disturbed.

11 When the respondent awoke at about 5pm he asked about his bike. Danielle told him the police had locked it and were holding the keys at the police station. The couple walked to the shopping centre about five minutes away. Since the respondent did not feel well enough to recover his bike, they left it there and returned home. The respondent was walking very slowly and his face lost colour as the walk proceeded. On the return trip it was necessary for Danielle to take his arm over her shoulder to support him. He lacked coordination when lighting a cigarette.

12 When the couple got home there was a call from Zarin to the respondent's mobile. He told her that he was "fine", though in need of rest and sleep. He said that he did not want to speak to her for the time being. This conversation was in Farsi. He handed the phone to Danielle who spoke to Zarin and told her that the respondent had taken Valium. Zarin asked "why didn't you call the ambulance?". Danielle replied "he doesn't need an ambulance, he just wants to sleep".

13 Danielle's telephone number and address were provided at Zarin's request. She said that she and Danesh were coming over. Danielle told the respondent and he said "make sure everything is clean", so she quickly tidied the apartment. The respondent went back to bed during the telephone conversation between the two women. He took at least two more 5 mg Valium tablets and Danielle found him asleep by the time she had completed the call.

14 Zarin called an ambulance which arrived soon after, to the surprise of Danielle who answered the intercom assuming that it was the Fanayans.

15 Danielle gave evidence about what the ambulance officers said and did when they examined the respondent at the Wentworthville unit. It took them about two minutes to wake him (Black 152. Contrast the finding of 10 minutes at Red 43U). The officers checked his eyes and pulse. One of them told Danielle "He'll be fine in the morning, keep him here at home where he is familiar with the surroundings".

16 The respondent himself recalled the ambulance officers by his bedside. He said that he told them his name was Babak "and I'm not sick, I'm just tired and want to sleep... after that I just remember them saying to me that I can rest at ease, there's no problem and they just left" (Black 26).

17 The ambulance officers were not called as witnesses, yet their views assumed significance in the ultimate finding of negligence (see below). They prepared a "non-treatment report" (Blue 13). It records that the respondent was sleeping after taking Valium. He was "arousable by verbal commands". He refused treatment and transport and said that he wanted to talk to the police.

18 Judge Phegan found that the ambulance officers were "quite calm", but had asked Danielle to stay with the plaintiff that night and that she agreed to do so (Red 44).

19 Zarin gave evidence that she had called the ambulance straightaway and told them "this person has attempted to commit suicide by taking some Valium tablets and you need to go and see him" (Black 232). When she and her husband arrived she spoke to the ambulance officers before they got into their car. They told her that they had seen the respondent and that "he's all right, he just-he needs to sleep it off... he just needs to be looked after and he'll be all right". She said "but this guy has a history of suicide, he's done it before, aren't you going to take him or anything?" The officer told her "No, he's very angry to see us, he wants nothing to do with us... He wants the police to come because he's angry about something about his motorbike... He's very nervous that we were there" (Black 234. See also 252, 265).

20 This evidence is adverted to in the judgment (Red 44-45), but curiously without any findings. Perhaps the judge perceived little difference between this account conveyed directly to Zarin and the officers' diagnosis conveyed to Danielle as recounted by her and recorded in the officers' notes.

21 His Honour had very considerable reservations about Zarin's credibility. But her evidence about her conversation with the ambulance officers was important and (it seems to me) called out to be accepted unless rejected as a deliberate lie. If the question whether to order a new trial were a live one, this conversation would be at the forefront of my consideration. Since however the appeal can, in my view, be disposed of on the basis of the primary findings of fact, it is unnecessary to take this matter any further. Zarin's evidence on this matter offers little assistance to the respondent's case as regards duty of care and breach.

22 A conversation ensued between the Fanayans and Danielle about what the ambulance officers had said in their separate discussions about the respondent. The Fanayans also spoke in Farsi to the respondent who was lying on a mattress, awake and able to talk. There are limited findings about these conversations although there was considerable evidence on the topic, some of it conflicting. It is a fair inference that there was at least a common understanding that the respondent's medical condition was not critical, because the officers had taken no action after examining him and because of their assessment as reported to each of the women.

23 It is also clear that there was disagreement between the two women about what should be done in the immediate future. Danielle asserted that she could and should continue looking after the respondent at home, invoking what the officers had told her. Zarin, who was an older woman (Danielle being 21 at the time), was anxious about the respondent's condition and believed that he would be better cared for if he were brought to stay at her home.

24 Mr and Mrs Fanayan gave evidence that Danielle was emotionally distraught and not in a fit state to look after the respondent (Black 251, 277). This particular evidence was not accepted, although there is a finding that Danielle exhibited "concern" about the respondent (Red 33).

25 The Fanayans nevertheless took control of the situation and the respondent was taken back to their flat.

26 Danielle reluctantly packed a bag for the respondent, letting the Fanayans know "she was not happy about him being taken away" but rather was happy "to continue to take care of him if he were left where he was" (Red 46).

27 It is understandable that Zarin's "matronising" attitude offended Danielle in all of the circumstances. It is less clear why the differences of opinion between the two women assumed the importance that it did for the trial judge. I return to this issue below.

28 There was an incident involving a knife. Danielle saw the respondent pick up a large knife from the side of the mattress against the wall. She told the Fanayans what she had seen and repeated "that they ought not to take the plaintiff with them because he was not familiar with their apartment" (Red 47). Pretending to give the respondent a farewell cuddle, she patted him down unobtrusively to see if he still had the knife on him. She did not discover it. It was found beside him after his fall. It had not caused any injury but its presence seems to have been viewed at trial as an indicator that the respondent was agitated. Since this fact seems common ground for divergent positions urged by the litigants I need not dwell on it further. The evidence about the knife seems to cut both ways.

29 The respondent was able to walk out to the Fanayans' car, although obviously still under the effects of the Valium he had taken. He was also able to make his way more or less unassisted from the car to the Fanayans' unit. He was very slow, both in speech and gait and this was obvious to Mr and Mrs Fanayan.

30 Initially he was seated in the living room and offered a glass of water. After a brief discussion with other guests he was taken by Zarin into a bedroom and shown a bed. He lay down. Zarin took off his socks and covered him with a sheet or blanket. She told him that she would prepare something to eat, since Danielle had told her that he had not eaten all day. He asked if he could smoke a cigarette and was told that he could. Zarin put the blind up in order to allow fresh air to circulate through the open, fly-screened window. The sliding window at the other end was in a closed position, but unlocked. Zarin turned off the light and shut the door with the respondent on the bed.

31 Within a few minutes, Zarin heard a noise from the room that caused sufficient concern for her to open the door to check on the respondent, only to find he had disappeared. One of her visitors drew attention to the then open window on the side that was not fly-screened.

32 Judge Phegan properly concluded that the unscreened section of the window had been pulled open by the respondent who somehow or other had fallen through onto the ground below. Ambulance and police were called and the respondent was transported to the intensive care unit at Westmead Hospital.

33 The distance to the ground from the window was 10-15 metres. The window could be opened from both right and left sides. It was positioned about 1.2 metres above the floor and was about 90cm high (Black 281). Each side of the window was about 50cms wide and was capable of being opened halfway (Black 262-3).

34 There was no evidence that the window was in any way unusual in its design or location. It could not be negligent to leave an adult in the room lying on the bed in ordinary circumstances.

35 The respondent's apparently genuine amnesia meant that he was unable to throw direct light upon the circumstances of the fall. He had no recollection of events between leaving Danielle's flat and waking up in hospital. Judge Phegan was unable to conclude whether this memory loss was caused by the intake of Valium or the injury or perhaps a combination of both (Red 38).

36 The ambulance officers who attended the respondent after the fall recorded in their report that he was "found on grass & bystanders state pt jumped". This appears to have been a reconstruction on the part of the bystanders. No one has suggested that it was evidence that cast any direct light on the critical issue.

The judge's conclusions on duty, causation and breach

37 The apparently ex tempore reasons of the primary judge were delivered shortly after counsel had finished their final addresses, or the following day. At times, the reasons lack clarity in distinguishing between recitation of evidence and findings, or hypotheses and findings. On one matter (the likelihood of a suicide attempt) there are apparently inconsistent findings. And the core findings as to causation and breach are difficult to discern. I trust that what follows does justice to the central reasoning upon which the verdict turns.

38 At one stage in his reasons, Judge Phegan signalled the importance of determining whether the injury was sustained as a result of some deliberate attempt at self-harm or was explained in some other way (Red 54). Ultimately, there was no clear finding.

39 The respondent had made threats of suicide in the past. He denied this, but the evidence of both Danielle and Zarin was to the contrary.

40 Dr Phillips, a psychiatrist, considered the issue in a report dated 21 May 2002. He accepted that the respondent had been psychologically distressed prior to the fall, but he was in the end "not confident regarding Mr Haghighat's level of suicidal ideation at/around the time of his fall" (Blue 94). [Dr Phillips proceeded on the basis of a significantly flawed history in that he understood that the respondent had been taken against his will to an apartment not previously known to him (Blue 94 I-J). He was not cross- examined, so it remains unclear whether and how adjustment of this factual misconception would have affected his views.]

41 At one point, the trial judge held that the evidence did not allow him to reach a conclusion that the respondent was trying to kill himself when he came out of the window (Red 61). There was, he observed, no evidence that the respondent had any immediate intention to commit suicide. Dr Phillips' view was accepted as to the likelihood that the respondent had taken more than the four Valium tablets he admitted to; and consequentially the likelihood was that his fall was due to a state of complete disorientation caused by the consumption of the Valium tablets rather than any conscious and deliberate attempt to take his own life (Red 58).

42 A later finding seems to prevaricate about attempted suicide, indicating that the evidence did not enable a conclusion to be arrived at on this issue (Red 61). The judge also mentioned Zarin's fears as to suicide as one factor supporting the imposition of a duty of care (Red 58).

43 Despite these ambiguities, I think that the hypothesis of attempted suicide should be put aside. The earlier finding at Red 58 is based upon medical evidence that the judge accepted. It was also a proper inference from the absence of evidence that the respondent had ever attempted suicide (as distinct from threatening to do so), and the absence of evidence indicating that he was feeling so depressed at the time as to contemplate self-harm. In any event, there was insufficient material to have put Zarin on such a heightened alert of possible suicide as to have rendered her negligent merely because she left the respondent alone in the room for a short time, apparently resting, while she prepared a meal for him.

44 It follows that the respondent got out of bed in a disoriented state due to the Valium, opened the window and fell through the gap. Since there was nothing abnormal about the room or window the mechanics of the fall are difficult to infer. There are no findings about the location of furniture in the bedroom either before or after the fall. Nor is there any suggestion in the evidence that the respondent was unusually tall.

45 What then was the basis of the finding of negligence?

46 Judge Phegan first addressed duty of care. He held that the relationship created by the Fanayans had become analogous to a "custodial relationship". Earlier he had stated that (Red 54):

The duty to protect persons against the injurious consequences of their own acts, whether intentional or negligent, only arises as a general rule in a number of relationships such as those between parent and child, between a school and its pupils or students, between a hospital and its patients and between prison authorities and those who are in custody. It is only in such situations that the Courts have been prepared to impose on persons with some such custodial responsibility liability for the consequences of the act of those who are in their custody.

47 The "custodial" analogy was applied because (Red 55):

The Fanayans had determined, rightly or wrongly, that the plaintiff was best taken into their care and there is no dispute about that fact. They considered themselves to be better qualified and better equipped temperamentally than Ms Brown to deal with the situation which confronted them when they arrived at the home unit occupied by the plaintiff and Ms Brown. In those circumstances they had assumed a responsibility and had in effect taken the plaintiff into their immediate custody and care. There was at least the rudiments of a relationship which could be treated as exceptional and one which therefore might give rise to a duty of care of the kind which has been imposed in analogous situations.

48 Later in his reasons, the judge pointed to a combination of assumption of responsibility, control and vulnerability to injury (Red 56):

The plaintiff, even on the evidence of the Fanayans was not fully conscious and affected by the Valium which he had shortly before consumed. He was, in that sense, vulnerable. Clearly there was a very significant degree of control. The Fanayans had asserted, not merely accepted, control over the plaintiff. In the face of the objections from Ms Brown they had insisted that they take the plaintiff with them and that he should be left in their care. They had in those circumstances not only asserted a degree of control over the plaintiff but had assumed responsibility for him.

49 I have already indicated that the judge appears ultimately to have declined to find that the respondent injured himself in a suicide attempt. The threat of suicide, known to Zarin at least, was however a factor in the finding about duty of care. Phegan DCJ held that the Fanayans (Red 58):

... certainly thought the plaintiff was a suicide risk and it was very much part of their evidence that the principal reasons that they took him with them was because of an overriding concern that he had in the past and indeed on that day attempted to take his life and this was a factor which in their minds required him to be placed in the care of someone capable of looking after him appropriately namely themselves.

50 The judge's conclusion as to the existence of a duty of care (Red 62) was properly informed by recognition that such a duty would be imposed only in the most exceptional circumstances. His Honour cited Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35; [2000] 1 AC 360 and AMP General Insurance Ltd v Roads & Traffic Authority of New South Wales [2001] NSWCA 186; (2001) Aust Torts Rep 81-619, 22 NSWCCR 247.

51 It is unnecessary in my view to determine whether or not an exceptional duty of care was imposed upon the Fanayans in the circumstances of the case. Assuming its existence, its scope depended critically upon what the Fanayans knew or ought to have known about the respondent's condition when they brought him back to their unit; and upon the reasonableness of their conduct in bringing him there and leaving him alone in the bedroom for a few minutes, apparently resting.

52 The findings as to causation and breach of duty are somewhat elided.

53 In a long passage set out in full below, Judge Phegan held that the "absolutely central" fact in resolving the question of breach of duty was the advice of the ambulance officers to Ms Brown that the plaintiff was best left where he was in familiar surroundings (Red 63). It did not matter to his Honour whether that particular advice was addressed to the possibility that the plaintiff might take his own life, or that he might get up in a semi-conscious trance affected by the drugs he had been taking and bring some injury upon himself, or that there was some other danger that might arise if he were placed in unfamiliar surroundings while recovering from the effect of the drugs. "It was advice which should have been heeded by any person exercising reasonable care for the plaintiff's safety."

54 The judge held that the officers' advice had been passed on to the Fanayans by Ms Brown. They had denied this, but the conclusion was well open on the evidence. I shall however return to consider in detail what the relayed advice actually conveyed.

55 Judge Phegan characterised the Fanayans' conduct in bringing the respondent back to their home unit as "both officious and patronising" (Red 66). He was highly critical of the way they had "discounted [Ms Brown] as an emotional, immature young woman incapable of taking care of the plaintiff". His Honour nevertheless accepted that there was absolutely no doubt that there was a genuine concern on both Mr and Mrs Fanayan's part about the respondent's welfare.

56 The judge observed that the Fanayans' genuine concern was overlaid with a sense of obligation (based upon their religious principles) that the respondent should be removed from a domestic situation which was disapproved by their religious community. It was against the principles of the Bahá'í faith that there should be sexual relations between unmarried persons (Red 67). (This particular motivation had been denied by Mr and Mrs Fanayan.) His Honour further held that concern for the respondent's physical and moral wellbeing contributed to the Fanayans being both deaf and blind to any indication that there might be some error of judgment on their part in doing what they did. The crux of the finding on negligence was in the following terms (Red 68-9):

In terms of the exercise of reasonable care, their minds were closed. They were not interested in making any enquiry of Ms Brown herself about what was best for the plaintiff. They assumed they knew when in fact they did not and they took the plaintiff into a situation where on the express advice of the ambulance officers he was exposed to danger which did not exist in the circumstances from which he was removed.

I conclude in those circumstances that there is a basis on the evidence for deciding that there was a breach of duty of care on their part. I just add one further observation and that is this: It is not necessary to require of the Fanayans a sophisticated medical knowledge to have alerted them to the risk of leaving the plaintiff unattended, particularly in the circumstances where he was left. I say that with some caution because it can reasonably be argued, as Mr Leahy did in the course of his submissions, that no-one could have reasonably anticipated precisely what eventually happened and I accept that argument, that is that the precise sequence of events was beyond ordinary expectation. But what can be said is this: That putting the plaintiff in circumstances with which he was relatively unfamiliar and leaving him unattended was fraught with risk.

57 In the final analysis, Judge Phegan did not fault the Fanayans merely because they left the respondent unattended in the bedroom. He accepted that no one could have reasonably anticipated precisely what eventually happened (Red 69).

58 Judge Phegan described the issue about keeping constant watch on the respondent as "a secondary consideration" (Red 70). He continued:

The real breach of duty in this case is not in the possible failure to maintain proper vigilance once the plaintiff arrived at the defendants' unit but in taking him there in the first place. The principles enunciated in Wyong Shire Council v Shirt are not even reached because the danger which gave rise to the plaintiff's ultimate injury was a danger which would not have arisen at all but for the ill-advised intervention of the Fanayans and their taking it upon themselves to do what they did. In other words, in terms of the magnitude of the risk and the extent to which there would have been a real cost to the defendants in averting that risk, any cost, even though it might have been relatively modest, was itself of the defendants' own creation and that in my view is a reason why there is nothing in the judgment in Wyong Shire Council v Shirt to assist the defendants in this case.

In those circumstances, therefore, I find that not only did a duty of care exist but that there was a breach of that duty on the Fanayans' part and that the defendants are therefore liable for the injuries which the plaintiff sustained.

59 This passage suggests that the Shirt factors formed part of some defence to be raised by defendants, as distinct from matters to be taken into account in assessing whether the plaintiff has established breach of duty through want of reasonable care. This observation is not however determinative of the appeal.

60 Earlier, his Honour had said (Red 63-66):

The fact in this case which in my view becomes absolutely central in resolving the question of breach of duty is the advice of the ambulance officers to Ms Brown, that the plaintiff was best left where he was in familiar surroundings. It does not matter in my view whether that particular advice was addressed to the possibility that the plaintiff might take his own life or that he might get up in a semi-conscious trance affected by the drugs he had been taking and bring some injury upon himself or that there was some other danger that might arise if the plaintiff were placed in unfamiliar surroundings in the course of recovering from the effect of the drug. It was advice which should have been heeded by any person exercising reasonable care for the plaintiff's safety.

The Fanayans' evidence is that that advice was never passed on to them. First of all, I do not accept that, having accepted Ms Brown's evidence but, secondly, even if they were given the benefit of the doubt as to their credibility in this regard, it would nonetheless have been a very easy matter for them to ask Ms Brown whether the ambulance officers had offered her any advice about the plaintiff's treatment and general care and Ms Brown, it must be anticipated, would have been forthcoming with what she said she told them anyway.

The Fanayans knew that the plaintiff was in a disturbed state. They were themselves particularly anxious about the possibility that he might take his own life.

...

It was submitted that to draw any conclusion that the Fanayans should have anticipated that anything of the kind might happen that actually occurred when the plaintiff was taken to their home unit, is going well beyond the ordinary bounds of foreseeability.

While a very compelling argument in the abstract, it loses much of its force when it is translated to the facts of this case as I have found them. I come back again to what I have already underlined as the central importance of the evidence that the only informed advice - that is, from a person with some medical qualification and therefore in a position better than either Ms Brown or the Fanayans to judge the appropriate action to take in the circumstances in which the plaintiff was placed - was that he should be left in familiar surroundings. That should have been sufficient in itself to alert anyone with the benefit of that advice that the plaintiff - whatever the medical or psychiatric diagnosis, whether it was an underlying urge to take his own life or whether it was a process of disorientation brought about by the drug or some other cause - was best cared for in the way in which the ambulance officers suggested.

Zarin herself conceded that she was beholden to the ambulance officers because she acknowledged that they were better qualified than she was to judge what was best for the plaintiff and in those circumstances the failure of the defendants to take account of that advice and to act in direct defiance of it is indicative of a failure on their part to exercise reasonable care. The same conclusion follows if the Fanayans failed to ascertain what advice had been given to Ms Brown.

It is not necessary in my view to come to some firm conclusion about exactly how the plaintiff came to fall through the window. It is not necessary therefore to adduce any evidence of any precise advice about what was to be done with the plaintiff or what was not to be done with him. What was clear was that the one thing that was inadvisable was for him to be taken away to unfamiliar surroundings.

Analysis

61 It remains unclear why discussion about the respondent's longer term (spiritual) welfare had any relevance to the legal issues that needed to be determined. I do not think that legal analysis was assisted by characterising the Fanayans' conduct as officious or patronising, or by entering into consideration of the appropriateness of their religious/moral opinions about Danielle or what was best for the respondent in the long run. Those matters had no more relevance than the differing views of Danielle or the wavering views of the respondent on such issues. Unless a court is prepared to find that holding such views is unreasonable in itself, on proper and justiciable grounds, there are (it seems to me) great dangers in venturing into this area unless it is demonstrably pertinent to the issue of breach (see generally Guido Calabresi, Ideals, Beliefs, Attitudes and the Law, Syracuse University Press, 1985). In the eye of the law it may not be unreasonable to hold categorically divergent opinions about certain matters of faith, morality or even good taste.

62 I put this in terms of relevance, because the ultimate question in the case is the assignment of legal responsibility in the sense of a causal link between conduct that is unreasonable in the eye of the law and the injury suffered. The law is not usually concerned with passing judgment on the reasonableness of moral or religious views about cohabitation or the suitability of someone as a long-term partner for another. It was found that the Fanayans' views on these matters were factors in their intervention, and in their shutting of "ears and eyes" to Danielle's protests and invocation of the advice of the ambulance officers. So be it. But on what legal basis was it unreasonable to disregard Danielle's views as distinct from those of the ambulance officers? The officious conduct of a "good Samaritan" is not unreasonable merely because of the latter's motives.

63 The respondent was a young man being tugged this way and that as he wrestled with continuing but conflicting loyalties to his family, his faith system and his girlfriend. But he was an adult and he was never a prisoner of the Fanayans. He had gone reluctantly but voluntarily to their unit and his girlfriend had acquiesced, also reluctantly.

64 This was not a custody dispute in which the question was whether it was better on balance for the respondent to go or stay having regard to all aspects of his "welfare" at the particular time. Rather, the issue is whether the conduct of the Fanayans (officious though it may have been) amounted to an unreasonable want of care in whatever they did that (in the eyes of the law) materially contributed to the respondent's injury.

65 More than once in recent years the High Court has reminded that carelessness involves an unreasonable failure to protect the interests of someone within the scope of a duty of care. Want of care is not shown merely by positing, with the benefit of hindsight, that something could have been done that would have avoided injury (see eg Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at 305 [13], Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 330 [8], 332 [14], 354 [102]).

66 I disagree with the trial judge's conclusion that it was negligent for the Fanayans to have brought the respondent back to their flat. "But for" their intervention the accident would not have occurred, but more than that had to be established to prove want of reasonable care and causation. Some of the passages quoted above suggest the contrary, although I do not suggest this comment does full justice to his Honour's reasoning.

67 The Fanayans would not have been responsible in law if their car had been struck by lightning or by a negligent driver as they took the respondent back to their flat (cf Environment Agency (Formerly National Rivers Authority) v Empress Car (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 at 30-1). There would have been no more than an historical connection between their conduct in removing the respondent and his injury, with the consequence that they would not be liable even if the removal were tortious (see Jane Stapleton, "Cause-in-fact and the Scope of Liability from Consequences" (2002) 119 LQR 388 at 421-3).

68 I am, however, prepared to accept that the risk of physical injury (through stumbling or otherwise) was less for the respondent if he had been left in the more familiar surroundings of Danielle's flat immediately after the ambulance officers left him. Intuition confirms the correctness of the general proposition. So too does the officers' advice to Danielle, although they were never asked to choose an alternative other than leaving the respondent where he was or somehow forcing him to come with them. It follows that the Fanayans' action increased the risk of injury to the respondent (cf Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at 244-5). But there must still be a breach of duty before liability ensues.

69 It would be fallacious to reason on the basis that every action that increases a risk of injury is unreasonable and negligent. On such logic, cars would be garaged permanently and school children would never be let away from their desks into the playground. Life is full of risks worth taking that do not betoken negligence.

70 To Judge Phegan, the "absolutely central" fact on breach was the Fanayans' disregard of the advice of the ambulance officers. This was found to be both unreasonable and causative of the injury suffered by the respondent in his disorientated, Valium-induced fall.

71 The views of the officers were conveyed to the Fanayans and the District Court through Danielle, presumably in similar terms and without exaggeration. Danielle said in her evidence that she was told by the officers "he'll be fine in the morning, he'll have a big headache. For tonight just keep him home where it's safe, where he's familiar with the surroundings". She told the officers that she had spoken with her brother. She continued (Black 152M):

I said I knew that he just needed to sleep it off and they were very calm about it - they were very - they weren't alarmed at all. Yeah, they just made a joke, `yeah, we didn't think we'd be needing the stretcher'.

72 The officers asked her if she would be there that night and she told them that she would. This evidence was accepted by Phegan DCJ (Red 43, 44).

73 This evidence and the "non-treatment report" (Blue 13) filed by the officers revealed that they did not see the situation as critical or requiring the constant watch of an intensive care ward. The respondent needed to sleep off the Valium and have someone keeping an eye on him, as Danielle had (to their knowledge) done for all that day (cf Black152S).

74 Whether or not Danielle overstated the position in her subsequent argument with Zarin (something that would be understandable given the relationship between the two women), this would not provide evidence that the risk was anything other than as conveyed by the words and actions of the ambulance officers.

75 One thing is clear: the officers were expressing no view about the net advantages or disadvantages of leaving the respondent with Danielle on the one hand or taking him to the Fanayans' apartment on the other. The ambulance officers had not met the Fanayans by the time they saw the respondent and spoke to Danielle. Danielle did not suggest in her evidence that she raised the issue with the officers by way of some pre-emptive strike against the Fanayans.

76 On what basis therefore was the Fanayans' decision to press the respondent to agree to come to their place (a) unreasonable and (b) legally causative of the injury?

77 I can accept that the respondent would be more likely to have been disoriented in the less familiar surroundings of the Fanayans' unit. But it does not follow that the decision to persuade him to come there represented an unreasonable response to the situation confronting Mr and Mrs Fanayan. Even discounting their assessment that Danielle was exhausted or emotionally overwrought, they were in a position to offer a change of shift, a comfortable bed and the food that the respondent had not eaten all day. The respondent and Danielle were adults. Together they agreed with the move, albeit reluctantly on Danielle's part and groggily on the respondent's part.

78 The respondent was familiar with the Fanayans and their unit. The room in which he was placed was a reasonably safe venue having regard to his known condition. The danger that eventuated was serious, but neither foreseeable nor avoidable through the exercise of reasonable care (cf Phillis v Daly (1988) 15 NSWLR 65 at 74 per Mahoney JA).

79 I reiterate my conclusion that attempted suicide should be put out of the picture. Since it was not the cause of the injury, then Zarin's fears about it cannot be made into something adverse to the appellants on breach or causation. What then was unreasonable in putting the respondent to bed in the Fanayans' unit and leaving him alone for a short time while Zarin prepared something to eat? Judge Phegan acquitted the appellants of negligence as regards failure to provide around-the-clock invigilation. Not even prisoners and hospital patients need this if they are otherwise placed in a reasonably safe environment.

80 The Fanayans' officious and religiously-motivated conduct partially explained why they were not deflected by Danielle's protestations. But this was not a black mark against them on the issue of the (un)reasonableness of their conduct. Nor can these extraneous matters be used to make the ambulance officers' advice anything other than what it was.

81 Some evidence was adduced from Dr McMurdo about the impact of Valium upon cognitive processes. It would cause confusion in strange surroundings and clumsiness (Black 177). This provides a partial clue as to what possibly happened when the respondent fell, but it does not provide any additional basis for a conclusion that the Fanayans ought to have taken extra precautions than they did. They did not assume the duty of care of a medical practitioner.

82 I would uphold the appeal, set aside the orders made in the District Court and enter a verdict for the defendants with costs. The respondent should pay the appellants' costs of the appeal, but have a certificate under the Suitors' Fund Act 1951.

83 TOBIAS JA: I agree with Mason P.

84 McCOLL JA: I agree with Mason P.

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LAST UPDATED: 24/02/2004