Hunter Area Health Service & v Presland [2005] NSWCA 33 (21 April 2005)

CITATION: HUNTER AREA HEALTH SERVICE & ANOR v PRESLAND [2005] NSWCA 33

FILE NUMBER(S):

40821/03

HEARING DATE(S): 15 November 2004, 16 November 2004, 17 November 2004

JUDGMENT DATE: 21/04/2005

PARTIES:

Hunter Area Health Service - First Appellant

Jacob Nazarian - Second Appellant

Kevin William Presland - Respondent

JUDGMENT OF: Spigelman CJ Sheller JA Santow JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20192/98

LOWER COURT JUDICIAL OFFICER: Adams J

COUNSEL:

P R Garling SC/G Gregg - Appellants

B W Walker SC/G P Craddock - Respondent

SOLICITORS:

Francess Allpress - Appellants

Steve O'Connor - Legal Aid - Respondent

CATCHWORDS:

NEGLIGENCE - duty of care - nature and content of duty of care owed to psychiatric patient - Mental Health Act 1900 - ex turpi causa non actio - public policy - causation

LEGISLATION CITED:

Crimes Act 1958 (Vic)

Fatal Accidents Act 1975

Mental Health (Criminal Procedure) Act 1990

Mental Health Act 1990

DECISION:

1 Appeal allowed

2 Set aside the verdict and judgment for the plaintiff

3 In lieu thereof verdict and judgment for the defendants

4 The plaintiff to pay the defendants' costs of the trial and of the appeal but to have a certificate under the Suitors' Fund Act 1951, if so entitled.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40821/03

SC 20192/98

SPIGELMAN CJ

SHELLER JA

SANTOW JA

HUNTER AREA HEALTH SERVICE & ANOR v PRESLAND

This is an appeal from the judgment of Adams J of 21 August 2003, whereby the plaintiff (Presland) was awarded damages as a result of the negligence of a psychiatric hospital (Hunter Area Health Service) and a psychiatrist (Dr Nazarian) in discharging and failing to restrain him and care for him, in circumstances where he was at risk to himself and others as a consequence of a mental illness.

Six hours after Presland was released from the psychiatric hospital, he killed the fiancée of his brother, Ms Laws. Presland was acquitted of the murder of Ms Laws on the grounds of mental illness and was detained for a period in a psychiatric hospital until released pursuant to the Mental Health (Criminal Procedure) Act 1990.

The substantive issues for determination by the Court of Appeal included:

(i) the nature and content of the duty of care owed to patients presented for psychiatric assessment both at common law and under the Mental Health Act 1900 and whether there was a breach of the duty of care;

(ii) whether the killing of Ms Laws, disentitled Presland to recover damages under the principle of ex turpi causa non actio or on the basis of a break in the chain of causation or on public policy grounds; and

(iii) whether the award of general damages was manifestly excessive.

Held in relation to the duty of care, breach and causation;

Per Sheller JA:

1. There was no difficulty in accepting that Dr Nazarian and through him, Hunter Area Health Service, owed the respondent a general duty of care to exercise reasonable care and skill in the provision of professional advice and treatment.

Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479 applied.

2. While Presland was acquitted of the murder of Ms Laws on the grounds of mental illness, his act was and remained an unlawful act. The act was not justifiable homicide but an unlawful homicide for which he was not criminally responsible.

3. The damages sought are for the consequences of acts of killing. The result of those acts was that the plaintiff was lawfully detained in strict custody in a psychiatric hospital as a forensic patient until released by due process of law. Public policy must loom large in a court’s consideration of whether the plaintiff should be compensated for the harm so suffered.

4. The Mental Health Act 1900 is directed to enabling detention only as a last resort. It is doubtful that the policy behind the statutory provisions contemplates or permits a party to recover damages because a medical superintendent has refused to admit the claimant to a hospital as an informal patient, albeit that the decision to refuse was a negligent decision. This would have a tendency to discourage the due performance by the statutory authority and medical superintendents of their statutory duties.

5. The nature of the harm suffered by the plaintiff points as a matter of commonsense against the existence of a legal responsibility in the defendants for that harm.

Per Santow JA:

1. The duty of care that Dr Nazarian (and hence Hunter Area Health Service) as a psychiatrist owed to the respondent, did not extend to Dr Nazarian’s decision whether or not to detain the respondent so as to permit any recovery for non-physical injury, essentially based on loss of the respondent’s liberty.

2. No such extended duty can be derived from, or properly accommodated to, the Mental Health Act 1990 and is not sufficiently justified by the factors of control of risk, which is necessarily incomplete, or vulnerability. To impose such an extended duty for loss not derived from serious physical injury would be inappropriate by reason of the purpose and scope of the statutory scheme, distorting the impartiality of the exercise of discretion under the Mental Health Act 1990. It would in some cases distort its focus by introducing a detrimentally defensive frame of mind, and by promoting a bias towards detention, when that should be an impartial decision, taken only when fully justified, if not a last resort.

3. In terms of the normative aspects of causation, it would be unjust to render the appellants as defendants legally responsible for a non-physical injury traced back to unlawful but not criminal conduct. This is because it is excused but not justified by the law on the ground of the respondent plaintiff’s insanity. It nonetheless constituted wholly unreasonable action on the respondent’s part, though lacking moral culpability only by reason of his insanity.

Per Spigelman CJ (dissenting):

1. There was a duty of care which extended to the exercise of the statutory powers in s18 and s21 of the Mental Health Act 1900. The factors which are entitled to weight in determining the scope of the duty owed by the appellants to Presland, are control and vulnerability. The option of voluntary admission did not detract from the high level of control exercised by the appellants and the high level of vulnerability exhibited by Presland. The duty of care owed by the appellants to Presland was clearly breached.

2. The significance of moral culpability in determining the weight to be given to unlawful conduct is clearly established on the authorities. Where a person has been held not to be criminally responsible for his actions on the grounds of insanity, the common law should not deny that person the right to a remedy as a plaintiff and the acts which would otherwise constitute a crime do not break the causal chain.

Held in relation to damages:

Per Sheller JA (Spigelman CJ and Santow JA) agreeing:

1. The award of general damages of $225,000 was so high as to fall outside that range of what could reasonably be regarded as appropriate.

Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 applied.

2. There was no doubt that Presland suffered in the ways described immediately after his arrest in terms of the prison environment which he endured on remand, his confinement as a forensic patient and for loss of amenities over a limited period of time. An appropriate award for general damages would be $100,000 attributable as 75 per cent for past damages and 25 per cent for the future.

Legislation:

Crimes Act 1958 (Vic)

Fatal Accidents Act 1975

Mental Health (Criminal Procedure) Act 1990

Mental Health Act 1990

Cases cited:

Adamson v Jarvis [1827] EngR 277; (1827) 4 Bing 66

AMP v RTA [2001] NSWCA 186; (2001) Aust Torts Rep 81-619

Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195

Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Rep 81-636

Barnes v Hay (1998) 12 NSWLR 337

Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Beresford v Royal Insurance Company Ltd [1937] 2 KB 197; [1938] AC 586

Boruschewitz v Kirts 554 NE 2d 1112

Burrows v Rhodes [1899] 1 QB 816

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1

Champagne v United States, Supreme Court of North Dakota (513 NW 2d 75) (N.D. 1994)

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Chief Constable of West Yorkshire [1989] AC 53

Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147

Clunis v Camden & Islington Health Authority [1998] QB 978

Cole v South Tweed Heads Rugby [2004] HCA 29; (2004) 78 ALJR 933

Cole v Taylor 301 NW 2d 766 (1981)

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1

Cross v Kirkby The Times, 5 April 2000

Czarnikow Limited v Koufos [1969] 1 AC 350

Devries v Australian National Railways Commission (1993) 177 CLR 472

Diamond v Minter [1941] KB 656

Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶81-695

Dorset Yacht Co Ltd v Home Office [1970] UKHL 2; [1970] AC 1004

Edwards v Attorney General (NSW) [2004] NSWCA 272; (2004) 208 ALR 605

Environment Agency v Empress Car Co (Abertillery) Ltd [1992] 2 AC 22

Everett v Griffiths [1920] 3 KB 163; [1921] 1 AC 631

Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106

Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gala v Preston [1991] HCA 18; (1991) 172 CLR 243

Glazier v Lee 171 Mich. App. 216, 429 NW 2d 857 (1988)

Godbolt v Fittock (1964) NSWR 22

Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Gray v Barr [1971] 2 QB 554

Haber v Walker (1963) VR 339

Hall v Herbert [1993] 2 SCR 158

Hardy v Motor Insurers’ Bureau [1964] 2 QB 745

Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315

Harvey v PD [2004] NSWCA 97; (2004) 59 NSWLR 639

Haynes v Harwood [1935] 1 KB 146

Henville v Walker [2001] HCA 52; (2001) 206 CLR 459

Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438

Hill v Chief Constable of West Yorkshire [1989] AC 53

Holdlen Pty Ltd v Walsh [2000] NSWCA 87; (2000) 19 NSWCCR 629

Holman v Johnson [1775] EngR 58; (1775) 1 Cowp 341; 98 ER 1120

Holt v Manufacturers Mutual Insurance Ltd [2001] QSC 230

Home Office v Dorset Yacht Company Ltd [1970] UKHL 2; [1970] AC 1004

Huber v Walker (1963) VR 449

Hyde v Tameside Area Health Authority English Court of Appeal (Civil Division) Transcript No 130 of 1981

Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438

John Pfeiffer v Canny (1981) 148 CLR at 241

Kirkham v Chief Constable of Manchester [1990] 2 QB 283

Knight v Home Office [1990] 3 All ER 237

Lock v Ashton [1848] EngR 878; [1848] 12 QB 871, 116 ER 1097

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

McLoughlin v O’Brian [1982] UKHL 3; [1983] 1 AC 410

Meah v McCreamer (No 1) [1985] 1 All ER 367

Meah v McCreamer (No 2) [1986] 1 All ER 943

Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254

Nance v British Columbia Electric Railway Co Ltd [1951] AC 601

National Coal Board v England [1954] AC 403

New South Wales v Godfrey [2004] NSWCA 113; (2004) Aust Torts Rep 81-741

New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536

New South Wales v Paige (2003) 60 NSWLR 371

O’Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262

Oropesa [1943] P 32

Paff v Speed [1961] HCA 14; (1961) 105 CLR 549

Pallister v Waikato Hospital Board [1975] 2 NZLR 725

Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180

Pitts v Hunt [1991] 2 QB 24

Progress & Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651

Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

Reeves v The Commissioner of Police of the Metropolis [2001] 1 AC 360

Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; (2001) 53 NSWLR 43

Rimert v Mortell 680 NE 2d 867 (1997)

Rogers v Nationwide News [2003] HCA 52; (2003) 201 ALR 184

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431

Ruddock v Taylor (2003) 58 NSWLR269

Saunders v Edwards (1987) 1 WLR 1116

Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342

Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397

Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256

Standard Chartered Bank v Pakistan National Shipping Corporation (No 2) (2001) Lloyd’s Reports 218

State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113

State of New South Wales v Paige [2002] NSWCA 235

State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500

Sullivan v Moody (2001) 207 CLR 579

Summers v Salford Corporation [1943] AC 283

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

Tambree v Travel Compensation Fund [2004] NSWCA 24; (2004) Aust Contract R ¶90-195

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

Thackwell v Barclays Bank plc [1986] 1 All ER 676

The King v Porter [1933] HCA 1; (1933) 55 CLR 182

Tinsley v Milligan [1994] 1 AC 430

Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

Vellino v Chief Constable of Grater Manchester Police [2001] EWCA Civ 1249; [2002] 1 WLR 218

W v Meah and D v Meah [1986] 1 All ER 935

Williamson v Liptzin 539 S.E 2d 313 (NC App 2000)

Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) HCA 16; 78 ALJR 628

Worrall v British Railways Board (Court of Appeal, Civil Division, unreported 29 April 1999)

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633

ORDERS

1. Appeal allowed;

2. Set aside the verdict and judgment for the plaintiff;

3. In lieu thereof verdict and judgment for the defendants;

4. The plaintiff to pay the defendants’ costs of the trial and of the appeal but to have a certificate under the Suitors’ Fund Act 1951, if so entitled.

**********

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40821/03

SC 20192/98

SPIGELMAN CJ

SHELLER JA

SANTOW JA

Thursday, 21 April 2005

HUNTER AREA HEALTH SERVICE & ANOR v PRESLAND

Judgment

1 SPIGELMAN CJ : I have had the advantage of reading the judgment of Sheller JA in draft. I adopt his Honour’s outline of the facts and summary of the issues and submissions. For the reasons his Honour gives the various grounds of appeal relating to breach and Adams J’s findings of fact should be rejected. I also agree, if the appeal were otherwise to be dismissed, that the appeal on the quantum of damages should be allowed.

2 On the basis of the findings of fact by the trial judge, as set out and affirmed by Sheller JA, the Appellants were negligent in failing to detain the Respondent on the basis of his manifest psychotic state. His condition was a danger to others with the tragic consequence that an innocent life was taken. That would not have happened if the Hunter Area Health Service, and those for whose conduct it is responsible, had acted with care and diligence. The Respondent’s psychotic conduct before he was brought to the hospital indicated clearly just how dangerous he was. Adams J correctly concluded that the Appellants had enough information about that conduct to require his detention.

3 The doctor who made the decision not to detain him failed to conduct a proper inquiry into the Respondent’s mental state, even on the basis of the information which Adams J found that he had before him. Furthermore, the records available to that doctor did not, by reason of defective record keeping, contain the full range of information available to the hospital, particularly the information conveyed by the police and ambulance officers who brought the Respondent to the hospital.

4 Accordingly, if there was a relevant duty of care, the Appellants were in breach of it. The critical issue in this case is the scope of the duty of care, particularly whether it extends to encompass the effects of unlawful conduct. I wish to state my own reasons in this respect.

5 As with other issues that arise in the context of negligence, the effect of unlawful conduct is capable of being analysed in terms of a number of different elements into which the tort is conveniently divided for purposes of analysis: existence and scope of duty, breach, causation, remoteness or a defence of unlawful conduct, sometimes expressed by the maxim ex turpi causa non oritur actio. However, each element is often capable of being considered only in terms of other elements. (See John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218 at 241-242; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 349 [90]; Dorset Yacht Co Ltd v Home Office [1970] UKHL 2; [1970] AC 1004 at 1052.)

6 The Appellants accepted that they had a duty to the Respondent to provide proper care with respect to diagnosis and, subject to consent, treatment. They contended however that the duty did not extend to encompass the exercise of the statutory power to detain him.

Scope of Duty

7 There is no authoritative guidance from the High Court for the determination of when a common law duty of care exists with respect to the exercise of statutory power. A number of different approaches are discernible in the authorities. (See Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330; Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540. See Stephen Todd “Liability in Tort of Public Bodies” in Nicholas J Mullany and Allen M Linden (eds) Torts Tomorrow: A Tribute to John Fleming (1998) at 36; Martin Davies “Common Law Liability of Statutory Authorities: Crimmins v Stevedoring Industry Finance Committee” (2000) 8 Torts LJ 133.)

8 Mr B Walker SC, who appeared for the Respondent, submitted that this Court should apply the reasoning of McHugh J in Crimmins at 39 [93]. Although his Honour’s reasons are instructive, I do not believe that they represent the ratio of Crimmins. In any event, the subsequent judgments in Graham Barclay Oysters must also be taken into account.

9 Where, as in the present proceedings, a novel issue arises with respect to the existence or scope of a duty of care, the contemporary Australian approach to determining both matters is to engage in a multifactorial or “salient features” analysis. (See the summary in the joint judgment in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at 579 [50]- [51]. See also Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at 198 [27]- [198] and 254 [201], 302 [333], 326 [406]; Graham Barclay Oysters supra at 597 [149], 624 [236]-[237].)

10 This approach, in the context of determining whether a duty of care arises with respect to the exercise of a statutory power, is exemplified in the joint judgment of Gummow and Hayne JJ in Graham Barclay Oysters supra at 596-597:

“[146] The existence or otherwise of a common law duty of care allegedly owed by statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

[147] Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.

...

[149] An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. ...” [Footnotes omitted]

11 For the purpose of determining whether the relationship between a statutory decision-maker and an individual is such as to create a duty of care with respect to the exercise of the power, a court must consider a range of circumstances. As the above passage from the joint judgment of Gummow and Hayne JJ indicates, four matters are of significance:

· The purpose to be served by the exercise of the power;

· The control over the relevant risk by the depository of the power;

· The vulnerability of the persons put at risk; and

· Coherence.

12 The purpose or purposes of the exercise of the power identifies the beneficiary of its exercise. Insofar as the beneficiary is the public at large, or a section of the public, it is unlikely that a duty of care will attach to the exercise of the power. Where the person asserting the existence of a duty is a person whose welfare or safety is to be protected by the exercise of the power, then the Court will more readily reach the conclusion that a duty of care at common law arises. The fact that a power has been conferred for the protection of a particular class of person is not determinative, but it is indicative. (See, e.g. Graham Barclay Oysters at 574 [79] and at 580 [91] per McHugh J.) In Graham Barclay Oysters the Court concluded that the powers there under consideration were conferred for the benefit of the public generally.

13 Analysis of the statute is required in order to determine whether the person, who asserts a duty is owed to him or her, is a beneficiary of the power. What is not authoritatively established, on the authorities, is the degree to which the scope and purpose of the power defines the scope or extent of the duty. Nevertheless, where the power is conferred for the purpose of protecting, inter alia, the plaintiff, from a risk that has materialised, that is a factor entitled to considerable weight and will, in the ordinary case, be determinative on the issue of scope of duty. Where there is no coincidence between the scope and purpose of the power and the scope of duty required to determine the proceedings, the weight to be given to this consideration will be less.

14 On the issue of control, Gummow and Hayne JJ said in Graham Barclay Oysters supra at 598:

“[150] The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority.”

15 This sentence reiterated the approach adopted in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie supra at 559:

“[102] ... [O]n occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance.” [Footnotes omitted]

16 The significance of control has also been emphasised in a number of other authorities including Crimmins supra at 24 [43]-[46], 42 [104], 61 [166], 82 [227], 104 [304], 116 [357]; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at 260 [19]- [21], 270 [42]-[43], 292 [110]-[117]; Graham Barclay Oysters supra at 558 [20], 579 [90]-[95]; see also Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports ¶81-636 at [64]- [69].

17 In the legislative scheme considered in Crimmins, the relevant depository of the statutory power had a power to direct where waterside workers had to work. McHugh J regarded that as a decisive consideration and said at 42:

“[104] ... It can seldom be the case that a person who controls or directs another person, does not owe that person a duty to take reasonable care to avoid risks of harm from that direction or the effect of that control.”

18 The case law applying a multifactorial analysis has also emphasised the vulnerability of the person to whom it is alleged the duty is owed. (See Perre v Apand supra at 194 [10]-[11], 220 [104]-[105], 225 [118]-[120], 228 [125]-[126], 229 [129], 259 [216]; Crimmins supra esp at 26 [51], 39 [93], 40 [100]-[104], 24 [44], 25 [46], 65 [233]; Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; (2001) 53 NSWLR 43 at 49 [29]- [43].)

19 The concept of vulnerability in this context is a reference to the inability of a particular person to protect himself or herself from the consequences of the conduct alleged to be negligent. (See Crimmins supra at 40 [100] and Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 78 ALJR 628 at [23] and [80].)

20 The next issue which arises is the question of coherence between the law of tort and the statutory scheme. (See Perre v Apand supra at 253 [197]; Sullivan v Moody supra at 576 [42], 579 [50], 580 [53]-[55]; Tame v New South Wales supra at 335 [28], 342 [58], 361 [123], 425 [323]; Graham Barclay Oysters supra at 574 [78]; New South Wales v Paige (2003) 60 NSWLR 371 at 390 [93]-[95]; New South Wales v Godfrey [2004] NSWCA 113; (2004) Aust Torts Reports ¶81-741 at [71]- [80]; Edwards v Attorney General (NSW) [2004] NSWCA 272; (2004) 60 NSWLR 667 at 671 [6]- [9].)

21 The imposition of a duty of care may be inconsistent with some aspect of the scheme or, if not directly inconsistent, may be otherwise inappropriate by reason of the scope and purpose of the legislation:

· liability in tort may “distort [the] focus” of the statutory decision-making process; (Crimmins supra at [292])

· the decision may be made in a “detrimentally defensive frame of mind”; (Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63D)

· a common law duty should not be imposed if it “would ... have a tendency to discourage the due performance of ... statutory duties”; (X v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 at 739E)

· the imposition of a duty of care may “undermine the effectiveness of the duties imposed by the statute”; (Graham Barclay Oysters supra at 574 [78])

· “a common law duty could distort the performance of the functions of the statutory body”. (Crimmins supra at 77 [216])

The Statutory Scheme

22 The relevant provisions of the Mental Health Act 1990 (“the Act”) are set out in the judgment of Sheller JA. Other than where it may be necessary for purposes of exposition of my reasoning, I will not repeat the sections.

23 The provisions most directly relevant for present purposes are s18 and s21 of the Act set out by Sheller JA. Section 18 provides that, in the case of a voluntary patient, as the Respondent relevantly was, a medical superintendent may take steps to detain a patient under Pt 2, which includes s21. That section provides that a person may be taken to and detained in a hospital upon the issue of a certificate to that effect by a medical practitioner. The failure by the Second Appellant to issue such a certificate is the step which was found to constitute a breach of duty.

24 The purpose to be served by the exercise of the s21 power is identified in two matters about which the practitioner must form a professional opinion, namely:

· “That the person is a mentally ill person or a mentally disordered person” (s21(1)(b)); and

· “That no other appropriate means for dealing with the person are reasonably available and that involuntary admission and detention are necessary” (s21(1)(c)).

25 Of particular significance is the definition of mentally ill person and mentally disordered person in s9 and s10, respectively, as set out by Sheller JA. In each case, by reason of an extant mental illness or sufficiently irrational behaviour, respectively, it must be shown to be the case that care, treatment or control of the person is necessary, relevantly, for one or other of the two purposes stated in both s9(1)(a) and (b) and s10(a) and (b):

“(a) For the person’s own protection from serious physical harm; or

(b) For the protection of others from serious physical harm.”

26 There are additional references in s9 with respect to serious financial harm or serious damage to a person’s reputation, which do not alter the fundamental analysis.

27 The words “serious physical harm” are not defined. In some contexts the terminology of “physical harm” could extend to mental trauma of some character, but in the context of this legislation that does not appear to me to be the true construction, although it is unnecessary to express a final view in that regard. It is not a phrase which would extend to deprivation of liberty, which is the principal source of injury allegedly suffered by the Respondent. For this reason consideration of the scope and purpose of the statute does not strongly support a common law duty.

28 Furthermore, the Act distinguishes between the protection of the person under consideration from serious physical harm and the protection of others from serious physical harm. In the first case the focus is on self-inflicted or accidental harm to the particular person whose mental state is under consideration and, in the second case, to physical harm to third parties caused by the person whose mental state is under consideration. The facts of this case do not fall within either category. The loss or injury occasioned to the Respondent in the present proceedings came about as a consequence of the harm he committed on another. Such loss or injury does not fall within either category of harm in the relevant sections.

29 If this were a case involving self-inflicted or accidental harm to the Respondent that arose from his mental illness or disorder, or if this were proceedings by a third party who had suffered harm at the hands of a mentally ill or disordered person, then it would fall within the intended sphere of protection to which the statutory provisions expressly relate. The loss or injury suffered in the present case is not of that character. For this reason, one matter which may otherwise be entitled to considerable weight in the determination of whether a duty of care should be imposed with respect to the statutory relationship does not have such weight.

30 The element of control is, however, entitled to substantial weight. A person may only be taken and detained in the hospital pursuant to s21 if a medical practitioner has issued a certificate. However, the degree of control exercised by the medical practitioner over the relevant risk is attenuated by the fact that the Act makes provision for voluntary admission. By s12 a person may be admitted upon application, by the person, to a medical superintendent of a hospital. By s17 the superintendent may refuse to admit, if not satisfied that the person is likely to benefit from care or treatment.

31 It will, of course, often be the case that the very nature of the matter to be determined will prevent a person understanding the desirability of his or her admission and, accordingly, the person would not seek voluntary admission or, if previously admitted voluntarily, seek to be discharged. Where there is evidence that that may be the case, the level of control by the medical practitioner and, thereafter, by the medical superintendent at the hospital acting pursuant to s28 and s29, and other practitioners acting pursuant to s32 and s33, of the Act, must be regarded as increased, perhaps, depending on the information available, substantially so.

32 In this regard, it is relevant to point out that, on the findings of fact of Adams J, accepted by Sheller JA with which I concur, this was not a case of a voluntary patient actively seeking to leave, supported by his brother. It was, however, common ground that the Respondent was a voluntary patient at the time of Dr Nazarian’s assessment.

33 The option of voluntary admission is also relevant to the issue of vulnerability, understood in the sense of the inability of a person to protect himself or herself from the consequences of negligent conduct by, relevantly, a medical practitioner acting under s18 and s21. Again the nature of the circumstances in which the issue arises may attenuate the import of the voluntary admission option.

34 In the present circumstances, each of the factors of control and vulnerability are entitled to significant weight in the determination of whether or not a duty of care of sufficient scope arises with respect to the exercise of the statutory power under s18 and s21 of the Act.

35 On the issue of coherence, there is no direct inconsistency or incompatibility between the statutory duty and a common law duty. Nevertheless, as noted above, there may still be inappropriate tension if a common law duty were superimposed on the statutory powers.

36 The Appellants contend that it is undesirable to create a situation in which medical practitioners or medical superintendents are given any incentive to practice a form of defensive medicine. The fear of civil liability may create an increased likelihood that a person will be the subject of an involuntary admission. Relevantly, the focus of the statutory inquiry on “serious physical harm”, could be distorted if the decision making process takes into account the full range of categories of foreseeable damage that may be recoverable in tort.

37 There is evidence to suggest that in many spheres of medical practice the fear of liability has led to defensive practices. Nevertheless, the Court ought to be slow to conclude that a medical practitioner, acting true to his or her profession, would permit the process of formulating a professional opinion to be distorted by the prospect of civil liability. In this regard, any such tendency would already exist if a common law duty of care existed in favour of the mentally ill person, with respect to self-inflicted harm, or in favour of third parties upon whom the mentally ill person may inflict serious physical harm. In each of these cases, as I have indicated above, the case for imposing civil liability is stronger. The additional factors in the present case, involving the particular mechanism by which injury or loss was suffered and the nature of the injury or loss occasioned, do not appear to add much to such incentive as may already arise to practise defensive medicine.

38 It is, however, material to note that the legislative scheme is directed to protecting the right of liberty of an individual. Accordingly, there is an important aspect of the public policy to be served by the operation of the statutory scheme, which policy requires that the formation of a professional opinion is not subject to any kind of distortion. This aspect of the scheme is manifest in a number of its features:

· Section 4(2) expressly states that every function performed under the Act is to be performed so that persons “receive the best possible care and treatment in the least restrictive environment” and “any restriction of the liberty of patients ... are kept to the minimum necessary”;

· As Sheller JA notes, the Act commands a refusal to detain unless certain opinions are formed (ss20, 28, 29(2)); and

· The decision making process must be seen to be impartial. The certified medical practitioner may not be a near relative of the person (s21(1)(d)) and must disclose any pecuniary interest in any authorised hospital of the medical practitioner or a related person has (s21(3)).

39 Furthermore, the successive stages through which a person who is detained must pass, indicates that the Act is concerned to ensure that a person is only detained after a number of different persons make the judgment that the individual concerned should be detained. A person taken to and detained in a hospital must be examined within 12 hours of his or her arrival by the medical superintendent and must not be detained unless the medical superintendent provides another certificate (s29). If such a certificate is issued, the medical superintendent must cause the person to be examined by another medical practitioner. If the medical superintendent is not a psychiatrist, that other practitioner must be a psychiatrist who must affirm the appropriateness of detention (s32 and s33) or the person must be released (s35). Thereafter the medical superintendent is required to bring the person before a magistrate, who must conduct an inquiry (s38 and s41).

40 The judgment that must be made by each such person, before causing or continuing the detention of an individual, is to form an opinion that “no other care of a less restrictive kind is appropriate and reasonably available to the person” (see ss20, 21(1)(c), 35(3), 51(3); see also s4(2)).

41 There may be circumstances in which the possibility of defensive medicine can unduly impinge on the performance of the statutory duty by, to use one of the formulations set out in [21] above, distorting the focus of the process. However, in the statutory scheme here under consideration, the number of times a decision to detain must be reviewed, culminating in a decision by a magistrate, indicates that this is not likely to be a problem in the present context. One of the reviewing practitioners or the magistrate should be able to resist the institutional imperative of minimising the risk of civil action. Coherence is not, in my opinion, entitled to significant weight in the present context.

Unlawful Conduct

42 Whether unlawful conduct by a plaintiff has the consequence that the plaintiff has no remedy for injury or loss s/he has suffered has frequently arisen in the context of the tort of negligence and other cognate contexts, e.g. in proceedings for an intentional tort or for breach of contract. When I come below to set out such considerations I do not, for present purposes, find it necessary to distinguish one context from another.

43 Save for one United States case, I have found no authority which has considered conduct which would otherwise constitute a crime of the utmost gravity but which, by reason of the insanity of the plaintiff, was not criminal.

44 The present case does not raise any issue about the existence of a duty of care, unlike proceedings in which a plaintiff and defendant are jointly engaged in a criminal enterprise. It was common ground that the Appellants owed the Respondent duties of care of the well-established character owed by a medical practitioner and hospital to a patient. The issue before the Court concerns the scope of that duty.

45 The mere fact of unlawful conduct is not determinative. It does not necessarily lead to the denial of a remedy at law. On the authorities, the weight to be given to unlawful conduct by a plaintiff depends on a range of considerations.

46 The closeness of the connection between the unlawful conduct and the alleged wrong is material:

· “No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” (Holman v Johnson [1775] EngR 58; (1775) 1 Cowp 341; 98 ER 1120 at Cowp 343, ER 1121.)

· “The act must ... at least be a step in the execution of the common illegal purpose.” ( National Coal Board v England [1954] AC 403 at 429.)

· Was the injury suffered “on a journey directly connected with the criminal purpose” so that there was a “sufficient of the connection to require a conclusion that it would be contrary to public policy that damages should be awarded for the injury”. (Godbolt v Fittock [1964] NSWR 22 at 28.)

· “Where the plaintiff’s action in truth arises directly ex turpi causa, he is likely to fail ... Where the plaintiff has suffered a genuine wrong, to which allegedly unlawful conduct is incidental, he is likely to succeed ...” (Saunders v Edwards [1987] 1 WLR 1116 at 1134.)

· “The facts which give rise to the claim must be inextricably linked with criminal activity.” (Vellino v Chief Constable of Greater Manchester Police [2001] EWCA Civ 1249; [2002] 1 WLR 218 at 236 [70].)

47 Furthermore, case law recognises that there is a scale of seriousness, so that if the unlawfulness involves a regulatory offence the weight to be given to illegality will often be slight. (See, e.g. Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438 at 461-463; Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 at 253; Godbolt v Fittock supra at 28.) As one recent authority put it, the criminal conduct “has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify”. (Vellino supra at 236 [70].)

48 In Beresford v Royal Insurance Co Ltd [1937] 2 KB 197, Lord Wright MR, Romer and Scott LLJ referred to the maxim ex turpi causa and said at 220:

“In these days there are many statutory offences which are the subject of the criminal law, and in that sense are crimes, but which would, it seems, afford no moral justification for the court to apply the maxim. There are likewise some crimes of inadvertence which, it is true, involve mens rea in the legal sense but are not deliberate or, as people would say, intentional.”

49 That questions of fact and degree arise is also reflected in the observations of Diplock LJ in Hardy v Motor Insurers’ Bureau [1964] 2 QB 745 at 767. His Lordship referred to the ex turpi causa maxim as constituting a rule:

“... that the courts will not enforce a right ... which is regarded by the court as sufficiently anti-social to justify the court’s refusing to enforce that right.”

50 Neither degree of connection nor seriousness of the offence invokes a bright line test. Unlawful conduct should be regarded as a factor, the weight of which can vary from one situation to another. This approach would apply, to the multifactorial analysis in this context, to the determination of the existence and scope of duty in novel situations, to which I have referred above.

51 Indeed, this was the approach adopted with respect to unlawful conduct by Jacobs J in Progress & Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651, where his Honour, with whom Stephen, Mason and Murphy JJ agreed, said at 668:

“A plea of illegality in answer to a claim in negligence is a denial that in the circumstances a duty of care was owed to the injured person. A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed.” [Emphasis added]

52 His Honour reiterated his approach, with the agreement or concurrence of other members of the Court, in Jackson v Harrison [1978] HCA 17; (1977) 138 CLR 438 at 457 and see 456 (Mason J), 462 (Murphy J), 466 (Aickin J).

53 In Gala v Preston [1991] HCA 18; (1990) 172 CLR 243, the joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ adopted Jacobs J’s approach at 250-253 but rephrased it in the then authoritative language of proximity. It is now appropriate to revert to Jacob J’s original formulation: illegality “adds a factor to the relationship”, which needs to be considered when determining the existence or scope of a duty of care.

54 In Progress & Properties Ltd v Craft, Jacobs J went on to refer to circumstances involving joint illegal activity, such as Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397. Where both the plaintiff and the defendant are engaged in a crime, in the course of which one injures the other, it is not possible to determine a standard of care. (See Progress & Properties Ltd v Craft at 668, Jackson v Harrison at 456, Gala v Preston at 252, 253, 254-255.) In such a case, the element of illegality, considered as one of many factors in a relationship, is entitled to considerable weight as, but for the criminal venture, there would be no relevant relationship. That has the consequence, to use Jacobs JA’s terminology, of “extinguishing” any duty of care. In the present case, where the relationship is such that a duty does exist, as both parties in this Court accepted, the issue is one of the extent of the duty or, to again use Jacobs JA’s terminology, whether the duty of care was “modified”.

55 Of particular significance in determining the weight to be given to unlawful conduct is the degree of moral culpability that attaches to the plaintiff’s conduct. That consideration is of great significance where, as here, the plaintiff has been held not to be criminally responsible for his actions.

56 The fact that the unlawful conduct constitutes a crime is itself material for reasons which have been variously expressed:

· “ ... the concern ... is with the integrity of the legal system”. Hall v Herbert [1993] 2 SCR 159 at 176 [17] per McLachlin J, as her Ladyship then was. (See also at 179.)

· “the civil law cannot condone breaches of the criminal law” Gala v Preston supra at 270.8, or “impair ... the normative influence of a law creating an offence” 271-272 per Brennan J, and see at 277 per Dawson J.

· It is desirable to avoid “the sort of clash between civil and criminal law that is apt to bring the law into disrepute”. State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 at 514E per Samuels JA.)

57 Furthermore, the fact that the plaintiff knew that his or her conduct was wrongful is a matter that has been emphasised in a number of cases. This is perhaps understandable because none of these cases involved the situation in which a defence of insanity had been available to a plaintiff. Nevertheless, the significance of knowledge and intention has been frequently emphasised in a manner which indicates that the moral culpability of the plaintiff was a material factor.

58 In Adamson v Jarvis [1827] EngR 277; (1827) 4 Bing 66; 130 ER 693, Best CJ said, in a contractual context, at Bing 73; ER 696:

“... the rule that wrong-doers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.”

59 In Burrows v Rhodes [1899] 1 QB 816 Kennedy J stated the relevant principle in terms of a person being disentitled to relief: “If an act is manifestly unlawful, or the doer of it knows it to be unlawful” (at 828). His Lordship went on to note that mere ignorance that the act to be done constituted an offence would not be material so long as the person did the act “with knowledge of all the circumstances necessary to constitute the act an offence” (at 829) and distinguished conduct “which was not at the time apparently unlawful, and was done in honest ignorance of the particular circumstances which constituted its unlawfulness” (at 828-829).

60 In Hardy v Motor Insurers’ Bureau supra Lord Denning MR referred at 760 to Beresford as authority for the following proposition:

“... no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it ... This rule ... is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime.”

61 To similar effect was the observation of Diplock LJ who referred to the ex turpi causa maxim as applying where there was “an intentional crime committed by the assured” (at 769).

62 In Grey v Barr [1971] 2 QB 554, Lord Denning MR concluded that, on the civil onus, what was involved was an act of manslaughter. He applied the following test at 568:

“If his conduct is wilful and culpable, he is not entitled to recover.”

63 The above line of case law was explained in Pitts v Hunt [1991] 2 QB 24 at 39G as drawing a clear distinction between “deliberate intentional acts and those which are unintentional though grossly negligent”.

64 The element of moral culpability turning on a “rational and voluntary act” was also emphasised in this Court in State Rail Authority v Wiegold supra, where Samuels JA said at 517E:

“... a defendant should not be held responsible for the losses a plaintiff sustains the result from a rational and voluntary decision to engage in criminal activity. Such losses ... fall outside the limits for which the wrongdoer should be held responsible. There was no suggestion that the Respondent’s criminal conduct in the present case was not based upon voluntary and rational decisions. Indeed, his conviction and sentence for the crimes in question necessarily proceed upon the hypothesis that his conduct was so based .... Accordingly he was fully cognisant of the consequences of his conduct. The criminal conduct and its consequences were therefore not reasonably foreseeable.”

65 The case that bears the closest resemblance to the present case is Clunis v Camden & Islington Health Authority [1998] QB 978. The plaintiff had a history of mental disorder and was found guilty of manslaughter on the grounds of diminished responsibility. He had been discharged from the defendant hospital shortly before killing a person. He sued the hospital for failing to detain him. He failed, but the reasons of the Court turned on the fact that he was guilty of a crime. In a joint judgment the Court of Appeal said, at 987:

“... public policy only requires the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts.”

66 After quoting the extract from Best CJ in Adamson v Jarvis that I have quoted above, the Court went on to say:

“The restriction of the operation of the policy to cases in which the person seeking redress must be presumed to have known that he was doing an unlawful act was confirmed in Burrows v Rhodes [1899] 1 QB 816.”

67 The Court rejected a submission the it should recognise that the offence of manslaughter is an offence which varies greatly in its moral blameworthiness and that it should take into account the fact that the verdict of manslaughter was occasioned by reason of diminished responsibility. The Court concluded at 989:

“In the present case the plaintiff has been convicted of a serious criminal offence. In such a case public policy would in our judgment preclude the Court from entertaining the plaintiff’s claim unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong. The offence of murder was reduced to one of manslaughter by reason of the plaintiff’s mental disorder but his mental state did not justify a verdict of not guilty by reason of insanity. Consequently, though his responsibility for killing Mr Zito is diminished, he must be taken have know what he was doing and that it was wrong. A plea of diminished responsibility accepts that the accused’s mental responsibility is substantially impaired but it does not remove liability for his criminal act. We do not consider that in such a case a court can or should go behind the conviction and, even if it could, we do not see in the medical report attached to the statement of claim any statement which would justify the court taking the view that this plaintiff had no responsibility for the serious crime to which he pleaded guilty.”

“The plaintiff in this case, though his responsibility is in law reduced, must in Best CJ’s words be presumed to have known that he was doing an unlawful act.”

68 A number of United States cases reach the same result as Clunis for essentially the same reasons. (See Cole v Taylor, 301 NW 2d 766 (Iowa, 1981); Glazier v Lee, 429 NW 2d 857 (Mich, 1988); Rimert v Mortell, 680 NE 2d 867 (Ind, 1997).)

69 In Worrall v British Railways Board (Unreported, Court of Appeal, Civil Division, Beldam, Roch and Mummery, LJJ, 29 April 1999) the plaintiff suffered an electric shock as a result of the negligence of the defendant. He claimed that as a result of the electric shock he suffered psychological effects and his personality changed causing him to commit sexual offences against two prostitutes, for which he was convicted and sentenced to six years imprisonment. The Court held that the defendant was not liable for the plaintiff’s subsequent loss caused by his imprisonment.

70 In Worrall the plaintiff submitted that the damage he had suffered was complete before he had committed the criminal offences and accordingly his cause of action did not depend on proof that he had committed the offences in question. Beldam LJ rejected the claim on the basis that the loss was founded on the commission of serious criminal offence for which the plaintiff was “fully responsible in law” and concluded that it would be contrary to public policy to allow him damages consequent upon the commission of the offences. Mummery LJ said:

“Having been convicted of those offences the plaintiff must be treated in this action as fully and personally responsible in law for his deliberate criminal acts and for the consequences of them, including financial loss resulting from the criminal conviction. It would be inconsistent with his criminal conviction to attribute to the negligent defendant in this action any legal responsibility for the financial consequences of crimes for which he has been found guilty of having deliberately committed.”

71 There is only one case in which a criminal conviction for a serious offence has not led to a denial of civil remedy. That case, Meah v McCreamer (No 1) [1985] 1 All ER 367, has not been subsequently followed and must be taken to have been overruled (see Clunis supra at 989-990; State Rail Authority v Wiegold supra at 514; and Worrall supra).

72 Furthermore, this Court’s decision in Grey v Simpson (Unreported, Supreme Court of New South Wales, Court of Appeal, Hope, Reynolds and Samuels JJA, 3 April 1978), on whether a plaintiff can recover for heroin addiction, may need to be reviewed. It was distinguished in Wiegold supra at 515B on the basis that the plaintiff in Grey v Simpson had never been found guilty of a crime. However, Grey is an application of a “but for test” simpliciter and does not appear to be consistent with the subsequent authority of March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. The result has been different in other similar more recent cases. (See Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195 at [51] affirmed [2003] NSWCA 78 appeal dismissed; Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 78; Holt v Manufacturers’ Mutual Insurance Ltd [2001] QSC 230 at [3].)

73 There are a number of obiter dicta which strongly indicate that conduct which has been successfully defended on the basis of a plea of insanity is not unlawful conduct which should lead to a denial of civil liability.

74 In Beresford supra, the deceased was found not to have been insane at the time of suicide. Relevantly for present purposes, albeit in the context of a claim by the deceased estate under a policy of life insurance, their Lordships said at 210-211:

“The question, therefore, is whether the felonious suicide of the assured is a bar to the present action. If the assured had taken his life while insane, the fact would not have constituted a defence. The act of an insane person is not in law his act – Felstead v The King [1914] AC 534 – and such a death is a death within the terms of the policy, unless there are special conditions excluding it. But suicide when sane is by English law a felony.”

75 An appeal to the House of Lords was dismissed. (See Beresford v Royal Insurance Company Ltd [1938] AC 586.) Lord Atkin confined his reasoning to the situation of “intentional suicide by a man of sound mind” (at 594).

76 Similarly, in Clunis as quoted above, the Court indicated that the conclusion would be different if “it could be said that he did not know the nature and quality of his act or that what he was doing was wrong” (at 989). Dicta to similar effect appear in Rimert v Mortell supra at 874-875).

77 One United States case is in point. In Boruschewitz v Kirts, 554 NE 2d 1112 (Ill, 1990), an outpatient at a mental health centre killed two people. She was charged with murder and entered a plea of guilty but mentally ill. The court entered a finding of guilty but mentally ill, (a finding that she had the capacity to distinguish right from wrong) and sentenced her to incarceration. In some States such a finding is an alternative to insanity, with the consequence that incarceration is in a treatment facility. She brought an action against her psychiatrist and mental hospital alleging that their negligence caused her mental condition to deteriorate until she ultimately became insane, and committed the killings. The trail judge dismissed the complaint. On appeal, the judgment of the trial judge was reversed and the case was remanded for further proceedings. The court said at 1114:

“[P]laintiff has alleged in her complaint that she was insane, and we must accept this allegation as true. An insane person is not held to be responsible for his acts. Plaintiff is allowed an opportunity to rebut the prima facie case and prove that she was criminally insane. In other words, she should be allowed to demonstrate that she did not commit an intentional act and thus was not guilty of a crime. This is a question of fact. Whether she can maintain her burden of proof the issue is not our concern at this juncture.

Defendants claim that even if LuWanda is not criminally responsible for her actions, she still has committed an immoral or wrongful act. We reject this argument. Society cannot hold people who are insane to the same moral standards as people who are sane. Additionally, the term ‘wrongful’ must also take on a different meaning in the context of an allegation of insanity.” [References omitted]

78 The significance of moral culpability in determining the weight to be given to unlawful conduct is clearly established on the authorities. Where, as here, a person has been held not to be criminally responsible for his or her actions on the grounds of insanity, the common law should not deny that person the right to a remedy as a plaintiff. In such a context the unlawfulness of the conduct is not entitled to weight in a multifactorial analysis.

Conclusion on Duty

79 For the reasons outlined above, the factors which are entitled to weight in determining the scope of the duty owed by the Appellants to the Respondent are control and vulnerability. Because of the option of voluntary admission, these factors, for the reasons outlined above, require consideration of the particular circumstances of the case.

80 In this, as in many other contexts, facts and matters relevant to the existence and scope of duty overlap with the facts and matters which are relevant to breach. It was in the latter context that many considerations relevant to the former were considered by Adams J, raised in the submissions to this Court and dealt with in the judgment of Sheller JA. These are matters considered by Sheller JA in rejecting the Appellants challenges to the factual findings of Adams J. For those reasons, in my opinion, the option of voluntary admission did not detract, in the present case, from the high level of control exercised by the Appellants and the high level of vulnerability exhibited by the Respondent.

81 The detail of the information which was in fact available to the Appellants was such that there was no proper basis on which either could have proceeded on the basis that the Respondent could look after his own interests to the extent of seeking voluntary admission or, on the Appellants’ case, requesting a discharge.

82 Accordingly, balancing the various pertinent factors, and setting aside, for the reasons I have given, the unlawful but not criminal conduct of the Respondent, there was, in my opinion, a duty of care which extended to the exercise of the statutory powers in s18 and s21 of the Act. That duty was clearly breached.

83 The Appellants put the case in terms of causation as well as scope of duty. As I have mentioned above, similar considerations arise on either approach. The Appellants submitted that there was no causal nexus between their conduct and the killing of Ms Laws or, alternatively, that the killing broke the causal chain.

84 The death of Ms Laws was precisely the kind of “serious physical harm” which the exercise of the statutory power was designed to avert. As Lord Hoffman said in Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35; [2000] 1 AC 360 at 367H:

“It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss.”

85 The death of Ms Laws did not break the causal chain.

86 The issue of unlawful conduct could also arise in terms of causation. As was emphasised in March v Stramare supra at 515-516 and 524, value judgments must enter into the analysis of causation when determining whether a defendant is in law responsible for the loss or injury to a plaintiff. There has always been a normative dimension to causation. The Court asks “Should a person be held legally responsible for the loss or damage?” (See Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at 248 [36]; Barnes v Hay (1988) 12 NSWLR 337 at 339G, 353E-F; State Rail Authority v Wiegold supra at 511; O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 271-272; AMP General Insurance Ltd v Roads & Traffic Authority (NSW) [2001] NSWCA 186; (2001) Aust Torts Reports ¶81-619 at [26], [151]-[153]; Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 491 [98]- [100].) Professor Jane Stapleton has divided the elements into a factual and a normative dimension. (Stapleton “Cause-in-fact and the Scope of Liability for Consequences” (2003) 119 LQR 388.) This has been characterised as a “two-limbed test”. (See Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at 285 [85]- [88]; Tambree v Travel Compensation Fund [2004] NSWCA 24; (2004) Aust Contract R ¶90-195 at [146]- [150]; Harvey v PD [2004] NSWCA 97; (2004) 59 NSWLR 639 at 670 [181]- [191].) In Harvey, I indicated at 643 [11] a reservation about the general application of a “two limbed test”. However, I did not doubt that normative considerations are relevant when determining causation.

87 In the present case, the normative considerations that have been urged on the Court are those which I have considered above under the heading of “Unlawful Conduct”. For the reasons there set out, where a person has been found not guilty of a criminal offence by reason of insanity, the acts which would otherwise constitute a crime do not break the causal chain.

88 The position is the same as that identified by Smith J in Haber v Walker [1963] VR 339: the “intervening occurrence” was not “human action that is properly to be regarded as voluntary” (358) in the sense that it could not be said “the actor should have exercised a free choice” (358 and see 361). (See also AMP v RTA supra at [21]-[24].)

89 In the present case the intervening event of the killing of Ms Laws cannot be regarded as “voluntary” or as the “exercise of free choice”. Nor, to use another formulation, can it be regarded as “unreasonable or extraneous or extrinsic” (Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 428).

90 This Court is concerned with the application to a novel situation of principles that have been established by the progressive development of the law of negligence. The determination of a particular case in accordance with those principles may lead to results which some sections of the community regard as inappropriate. In recent times the Parliaments of Australia have shown no reluctance to intervene where such a reaction receives a high level of political salience. Judicial decision-making must focus on the application and development of legal principle, rather than be constrained by policy considerations which are more appropriately left to parliamentary intervention.

91 Lord Scarman identified the proper role of the courts in this respect in McLoughlin v O’Brian [1982] UKHL 3; [1983] 1 AC 410 at 430:

“The function of the court is to decide the case before it, even though the decision may require the extension or adaptation of a principle or in some cases the creation of new law to meet the justice of the case. But, whatever the court decides to do, it starts from a baseline of existing principle and seeks a solution consistent with or analogous to a principle or principles already recognised.

The distinguishing feature of the common law is this judicial development and formation of principle. Policy considerations will have to be weighed: but the objective of the judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court’s function is to adjudicate according to principle, leaving policy curtailment to the judgment of Parliament. Here lies the true role of the two law-making institutions in our constitution. By concentrating on principle the judges can keep the common law alive, flexible and consistent, and can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.”

92 The decision of Adams J in the present case was the subject of some criticism in the media. That criticism was unfounded. It is the task of the courts to apply the law, irrespective of the popularity or otherwise of the outcome.

93 There was a suggestion, in some of the commentary, that somehow the Respondent has profited from the death of Ms Laws. That suggestion is completely misconceived.

94 First, the criminal process has determined that Mr Presland was not morally responsible for her death. Secondly, there is no profit. Mr Presland is entitled to compensation, and only compensation, for the loss he has suffered. He obtains no advantage or profit. He is to be placed in the same position as he would have been if the Appellants had not been negligent. He does not come out ahead in any way. Insofar as money can do so, he comes out square.

95 Finally, I observe, how a society treats it citizens who suffer from mental illness, particularly the criminally insane, is often a test of its fairness. It is never easy to be fair where an innocent person has suffered as Ms Laws, and those who grieve her loss, clearly have. The law must, however, insist on protecting the rights of people, even if they are unpopular. Mr Presland was the instrument by which Ms Laws died. However, by reason of his insanity, his acts were not such that his right to receive proper medical treatment should effectively be taken away without compensation.

Damages

96 The Appellant asserts that the award of general damages by Adams J was manifestly excessive. The test for intervention on this basis involves a high hurdle. Sheller JA refers to Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190, at 195-196 where Dixon CJ and Kitto J cite Nance v British Columbia Electric Railway Co Ltd [1951] AC 601, at 603. I would add a reference to Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at 348 [62]- [64].

97 I agree with Sheller JA that the test is satisfied for the reasons given by his Honour. The two cases to which the Court was referred, New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 and Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶81-695, are of some assistance, although it was not suggested that they manifested anything in the nature of a tariff. The loss or injury for which general damages were granted in those cases was of a qualitatively different magnitude to that of the Respondent.

98 In my opinion, the exercise of judgment in determining the amount of general damages miscarried, leading to a result that is erroneous.

99 The source of the error was, it appears to me, likely to be found in the observations of Adams J when dealing with general damages that:

“[173] ... His time in prison on remand was a terrifying nightmare. His incarceration as a forensic patient only slightly less so.”

100 His Honour had earlier set out Mr Presland’s experiences in this regard, including his fear of violence in the remand centre, restrictions on movement and activities involved in being kept in the prison hospital and restrictions on his liberty after his conditional release. All of these were matters which arose from the lawful conduct of the authorities. In my opinion the loss or damage he suffered in this regard is too remote from the tortious conduct of the Appellants.

101 There is a line of authority in wrongful imprisonment cases which awards damages only up to the time of a lawful order which authorises imprisonment. (See Lock v Ashton [1848] EngR 878; [1848] 12 QB 871; 116 ER 1097; Diamond v Minter [1941] 1 KB 656; McGregor on Damages (17th ed, 2003) at [37-011]; Ruddock v Taylor supra at 276 [29]-[33].) A similar principle should be applied in the determination of damages for negligence. (I note that this proposition could have had implications for the award of damages to the Respondent for loss of income, but there is no appeal from that award.)

102 Mr Presland did suffer general damage by reason of the negligent conduct of the Appellant, particularly in the form of mental anguish arising from his sense of guilt and from his alienation from his family, including, as his Honour found, the distress he feels that his family is frightened of him. I agree with the computation of general damages proposed by Sheller JA.

103 SHELLER JA:

Introduction

On 21 August 2003, Adams J ordered that judgment be entered for the plaintiff, Kevin William Presland, to whom I shall refer as the plaintiff, in the sum of $369,300 against Hunter Area Health Service (Hunter) and Dr Jacob Nazarian, the defendants in the proceedings. The facts of the case were unusual. On 4 July 1995, the plaintiff killed Kelley Ann Laws (Ms Laws) at the house she occupied with her fiancé, the plaintiff’s brother, Allan Presland. The plaintiff was subsequently charged with and tried for murder before Newman J sitting without a jury. On 7 May 1996, a special verdict was entered of not guilty on the grounds of mental illness. The plaintiff was detained in strict custody in a psychiatric hospital as a forensic patient until released by due process of law pursuant to s39 of the Mental Health (Criminal Procedure) Act 1990; see the definition of “forensic patient” in Schedule 1 of the Mental Health Act 1990 (MHA). The damages awarded to the plaintiff were for injury he suffered by reason of the negligent failure of the defendants, before the plaintiff killed Ms Laws, to care for him and, in particular, to detain him pursuant to the power conferred upon Dr Nazarian to do so by the MHA.

104 On 26 November 1997, the Governor ordered the release of the plaintiff. On 8 December 1997, on the recommendation of the Mental Health Review Tribunal, he was discharged from Long Bay Prison Hospital subject to conditions.

Mental Health Act 1990 (in the form reprinted as at 17 October 1994)

105 In Schedule 1 of the MHA “Dictionary of terms used in the Act” are found the following definitions:

“forensic patient” means:

(a) a person who is detained in a hospital, prison or other place pursuant to an order under section ... 39 of the Mental Health (Criminal Procedure) Act 1990 ...

“informal patient” means:

(a) a person who has been admitted to a hospital under section 12; or

(b) a person who has been classified as an informal patient under section 54 or 64;

“medical superintendent”, in relation to:

(a) a hospital, other than an authorised hospital, means the medical practitioner appointed, under section 209, as medical superintendent of the hospital; and

(b) an authorised hospital, means the medical practitioner appointed, under section 220, as medical superintendent of the authorised hospital,

and, in Chapter 4, sections 142 and 143 and Division 2 of Part 1 of Chapter 7, includes a reference to a medical officer, nominated by the medical superintendent, attached to the hospital or authorised hospital, as the case may be;

“mental illness” means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a) delusions;

(b) hallucinations;

(c) serious disorder of thought form;

(d) a severe disturbance of mood;

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d);

“mentally disordered person”, for the purposes of this Act set out in section 8, means a person who satisfies the relevant criteria set out in Chapter 3; and

“mentally ill person”, for the purposes of this Act set out in section 8, means a person who satisfies the relevant criteria set out in Chapter 3.

106 Chapter 2 of the MHA headed “Objects etc” deals first in s4 with what in its heading is called “Care, treatment and control of mentally ill and mentally disordered persons”. The phrase “care, treatment and control” expresses a theme which is central to those parts of the MHA with which this appeal is concerned. According to s4(1)(a) and (b) the objects of the Act in relation to the care, treatment and control of persons who are mentally ill or mentally disordered are to provide for and facilitate the care, treatment and control of those persons through community care facilities and hospital facilities and then:

“(c) to facilitate the provision of hospital care for those persons on an informal and voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis; and

(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care.”

107 Section 4(2) is important:

“(2) It is the intention of Parliament that provisions of this Act are to be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act is, as far as practicable, to be performed or exercised so that:

(a) persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given; and

(b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.”

108 Section 8, headed “Criteria for involuntary admission etc. as mentally ill person or mentally disordered person” emphasises that a person is a mentally ill person or a mentally disordered person for the purpose of involuntary admission to a hospital or the detention of a person in a hospital under the Act or determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a hospital or other place “if, and only if, the person satisfies the relevant criteria set out in this Chapter.”

109 Section 9 headed “Mentally ill person” so far as presently relevant provides:

“(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious physical harm; or

(b) for the protection of others from serious physical harm,

....

(2) In considering whether a person is a mentally ill person, the continuing condition of the person is to be taken into account.”

110 Section 10 headed “Mentally disordered persons” provides:

“A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious physical harm; or

(b) for the protection of others from serious physical harm.”

111 Section 11(1) provides that a person is not a mentally ill person or a mentally disordered person merely because, amongst other things not relevant to this appeal:

“(k) that the person takes or has taken alcohol or any other drug;

(l) that the person engages in or has engaged in anti-social behaviour.”

112 Chapter 4 of the Act is headed “Admission to, and care in, hospitals”. Part 1 (ss 12-19) provides, as its heading states, for “Voluntary admission to hospitals” and Part 2 Divisions 1-3 (ss 20-59) provides for “Involuntary admission to hospitals”.

113 Section 12, which is headed “Admission on own request”, so far as presently relevant, is as follows,:

“(1) A person may be admitted to a hospital as an informal patient on an oral or a written application made by the person to the medical superintendent.”

114 Sections 17, 18, 18A and 19 deal with refusal to admit, discharging, detaining and reviewing decisions to refuse to admit or to discharge informal patients. The sections are as follows:

“Medical superintendent may refuse to admit person

17. The medical superintendent may refuse to admit a person to a hospital as an informal patient if the medical superintendent is not satisfied that the person is likely to benefit from care or treatment as an informal patient.

[It is to be noted that this section sets out the condition for refusal to admit a person as an informal patient where the patient has requested admission.]

Other functions of medical superintendent concerning informal patients

18. A medical superintendent may:

(a) discharge an informal patient; or

(b) if, having regard to the condition of an informal patient, the medical superintendent considers it proper to do so, do all such things as may be necessary to cause the patient to be detained in the hospital under Part 2.

Procedures for detaining patients

18A. If the medical superintendent decides under section 18(b) to take action to detain an informal patient in the hospital under Part 2, the patient:

(a) must be dealt with as if the patient has been admitted to and detained in the hospital under section 21; and

(b) must be examined under section 29 not later than 12 hours after the medical superintendent decides to take action to detain the patient.

Review of decisions made by medical officer

19. (1) A person who is refused admission to a hospital as an informal patient under this Part, or who is discharged from a hospital under section 18, by a medical officer nominated by the medical superintendent may apply to the medical superintendent for a review of that decision.

(2) On receiving an application for a review of a decision, the medical superintendent must review the decision as soon as practicable and:

(a) in the case of a person refused admission – confirm the refusal or admit the person as an informal patient or take such other action under this Act as the medical superintendent thinks fit; or

(b) in the case of a person who is discharged – confirm the person’s discharge as an informal patient or admit the person as an informal patient or take such other action under this Act as the medical superintendent thinks fit.”

115 The provisions of Part 2 of Chapter 4 “Involuntary admission to hospitals” are relevant in this appeal because of the operation of s18A and hence the need to have regard to ss20, 21 and 29 particularly. Division 1 is headed “Admission to and detention in hospitals” The first section in that division is s20 “Detention of persons generally” which provides:

“20. A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.”

116 This section reflects the objects stated in s4(1)(c) and (d) and (2). It is to be noted that s20 is not expressed as imposing a duty to admit to, or detain in, or continue the detention in, a hospital under Part 2 if the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person. It is expressed as imposing a duty not to admit to, or detain, or continue the detention in, a hospital of a person unless the medical superintendent is of that opinion.

117 Section 21 which is headed “Detention on certificate of medical practitioner or accredited person” provides:

“(1) A person may be taken to and detained in a hospital (other than an authorised hospital) on the certificate of a medical practitioner [or an accredited person]:

(a) who has personally examined or personally observed the person immediately before or shortly before completing the certificate; and

(b) who is of the opinion that the person is a mentally ill person or a mentally disordered person; and

(c) who is satisfied that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary; and

(d) who is not a near relative of the person.

(2) The certificate is to be in the form set out in Part 1 of Schedule 2.

(3) A medical practitioner [or an accredited person] who gives any such certificate and who has (directly or indirectly) a pecuniary interest in any authorised hospital, or has a near relative, partner or assistant who has such an interest, must, on giving the certificate, disclose that fact and give particulars of the interest in the certificate.

(4) A person may not be admitted to or detained in a hospital on a certificate:

(a) certifying that the person is a mentally ill person – unless the person is so admitted within 5 days after the day on which the certificate is given; or

(b) certifying that the person is a mentally disordered person – unless the person is so admitted within 1 day after the day on which the certificate is given.”

118 Section 28 which is headed “Refusal to detain” provides:

“28. The medical superintendent must refuse to detain a person under this Division [ie Div 1 of Pt 2 of Chapter 4] if the medical superintendent is of the opinion that the person is not a mentally ill person or a mentally disordered person.”

119 Section 29 under the heading “Examination on detention at hospital” provides:

“29. (1) A person taken to and detained in a hospital under this Division must be examined, as soon as practicable (but not more than 12 hours) after the person’s arrival at the hospital, by the medical superintendent.

(2) A person must not be detained (except as provided by section 37 or 37A) after the examination unless the medical superintendent certifies that, in the opinion of the medical superintendent, the person is a mentally ill person or a mentally disordered person.

(3) A medical practitioner on whose certificate or request a person has been admitted to a hospital must not examine the person for the purposes of this section.”

120 Again it is to be observed that s28 commands refusal to detain if the condition is satisfied. Satisfaction of the condition depends on the opinion of the medical superintendent. The same can be said of s29(2).

121 While it is commonplace for medical practitioners in treating patients to give advice and make decisions upon the correctness of which the wellbeing or survival of the patient may depend, the sections of the MHA quoted and applicable to the time in question in this case, introduce into the doctor/patient relationship the factor that in certain circumstances the medical practitioner is empowered to detain the patient. The medical practitioner who holds the position of medical superintendent and who is in the doctor/patient relationship, decides not only whether the patient is a mentally ill person or a mentally disordered person but also whether detention is necessary for the person’s own protection from serious physical harm or for the protection of others from serious physical harm. The medical superintendent will be conscious, when making the decision, that the power can only be exercised if no other care of a less restrictive kind is appropriate and reasonably available to the person.

122 On 3 July 1995, the day before Ms Laws was killed, the plaintiff had been brought to the John Hunter Hospital (JHH), a public general hospital, by police following an episode of bizarre and violent behaviour. After some treatment, he was transferred to the James Fletcher Hospital (JFH), a public psychiatric hospital, for assessment and was admitted to JFH as an informal patient under s12(1) of MHA in the early hours of 4 July 1995. After his assessment at about 10.30 am on the same day, pursuant to s18(a), he was discharged by Dr Nazarian in the company of his brother. The plaintiff killed Ms Laws about six hours later.

123 On 26 June 1998, the plaintiff began these proceedings against Hunter and Dr Nazarian in the Supreme Court to recover damages from the defendants for negligence ultimately by amendment particularised as:

“By reason of the admission of the plaintiff to the James Fletcher Hospital as a voluntary patient, there arose on the part of the first and second defendants a duty of care to exercise, in respect of the plaintiff’s assessment, management and treatment, the care and skill to be expected of a specialist psychiatric hospital and of a psychiatrist.”

124 The plaintiff alleged that by reason of this negligence he was injured and suffered loss and damage. The plaintiff’s case was that it was negligent of Hunter, which was responsible for the operations of JHH and JFH, and the doctor who discharged him, Dr Nazarian, not to have detained him as an involuntary patient under the MHA, an action which, it was said, would have averted his killing Ms Laws, his subsequent incarceration and the distress and economic loss he suffered as the result of those events.

125 It is well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty. The principle is that if statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered; see per Mason J in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 458. At 459 his Honour said:

“... it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care.”

126 Mason J identified amongst the categories of conduct which might impose a common law duty of care conduct by which a public authority “may place itself in such a position that others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action”; at 461 and see Liability in Negligence Public Authorities: The Divergent Views, the Hon Sir Gerrard Brennan AC KBE, (1990) at 42. Mason J said at 463:

“... that a public authority is liable for negligent failure to perform a function when it foresees or ought to foresee that:

(a) the plaintiff reasonably relies on the defendant performing the function and taking care in doing so, and

(b) the plaintiff will suffer damage if the defendant does not take care.”

Findings of fact

127 In the course of his careful and thorough judgment, Adams J reviewed and assessed all the evidence. For the purpose of this appeal it will not be necessary to refer to more than parts of this review.

128 The important facts took place within a few days of each other. The plaintiff was thirty-six years old, nearly thirty-seven, when on the evening of Friday, 30 June 1995 he became involved in a fight at a pub with a man who “grabbed him by the throat and smashed his head into a nearby traffic sign, causing a cut to his head.” The plaintiff was taken home but was angry and wished to return for revenge. He rang William Blake, an employee of his, who said that with an uncle he would “handle” the matter. Adams J observed that although the plaintiff had been acting strangely in a number of respects for some months before 30 June 1995, “the night of 30 June 1995 (as it seems to me) marks the commencement of a rapid decline into an acute psychotic state”. The plaintiff said he could not sleep on the night of 30 June and stayed at home for the most part until the late afternoon on Saturday, 1 July.

129 On Sunday, 2 July at Mr Blake’s invitation he went to his house. Mr Blake, his wife, his uncle and one of his sons, a three-year-old, were there. The plaintiff left at about 7 pm. On Monday, 3 July the plaintiff went to work finishing about 4 pm. He rang Mr Blake and went to his house at about 7.30 pm. In a statement given to the police on 23 July 1995, Mr Blake said that the plaintiff arrived at about 8 pm on 3 July. The two men sat on the lounge and had a beer. The plaintiff was mumbling something and suddenly said to Mr Blake “I have to kill you.” He smiled and Mr Blake thought he was joking so he smiled back. The trial Judge recorded from the statement:

“The plaintiff then grabbed him by the throat with his two hands and squeezed tightly. Mr Blake said that Kevin then said ‘I don’t think I could kill you’, stood up and walked towards Mrs Blake who was nearby. He said something to her but Mr Blake could not work out what it was. He said that the plaintiff jumped up and down around the lounge room and then went into Mr Blake’s bedroom. Young Timothy Blake (aged 3 years) followed him. Mr Blake thought there was something wrong and also followed. He saw the plaintiff opening and slamming the wardrobe doors while at the same time jumping into the air. Mr Blake took Timothy by the hand and led him out into the lounge room. The plaintiff followed, sat on the lounge and said ‘I’d better go’ grabbing his hair at the same time. He stood up, walked to the door and out onto the veranda with Mr Blake following him. When the plaintiff got to the stairs he said ‘So much for the new fence’, grabbed the top of the fence and kicked it with his foot about fifteen times, running out onto the footpath towards the street and then coming back. Mr Blake grabbed him around the body as he started kicking the fence again and both men fell to the ground. Mr Blake asked him ‘what is the matter Kevin?’ The plaintiff said ‘Do you believe in God?’ Mr Blake replied, ‘Doesn’t everybody?’ Mr Blake said the plaintiff, who had been shaking, appeared to calm down and he helped him up onto the veranda. As the plaintiff got to his feet, he pushed Mr Blake away with his two hands, causing Mr Blake to fall backwards, and ran into the house through the front door. Timothy was then standing in front of the television. The plaintiff grabbed him by the throat with his left hand. Mr Blake tackled him whilst his wife grabbed Timothy and tried to pull him away. Mrs Blake started to punch Kevin in the head with her open hand and managed to pull Timothy out of his grasp. Mr Blake and the plaintiff struggled on the lounge room floor. The plaintiff elbowed Mr Blake in the ribs forcing him to release him and then ran down the hallway and head butted the back door with such force that the door was holed across the centre. The plaintiff stepped back and kicked the bottom of the door causing another hole. Mr Blake then grabbed Kevin around the body and punches were exchanged. Mr Blake managed to drag the plaintiff to the front gate where his next-door neighbour, Jeremy Hughes, opened the gate for him. The plaintiff then grabbed Mr Hughes by the throat but the two men managed to pull him away and get him out of the front gate. The plaintiff and Mr Blake were still exchanging punches, the plaintiff yelling ‘the rats must die’. Mr Blake said that the plaintiff tried to hit him with a piece of lattice (from the fence), which was grabbed by Mr Blake and thrown away. The plaintiff got hold of him and the two men pushed over the fence into the barbed wire whilst they struggled. The plaintiff released his grip after Mr Blake punched him in the face. Mr Blake went inside and got his cricket bat. He ran out onto the veranda and saw the plaintiff coming back through the gate, so he hit him in the middle of the head with the bat. The plaintiff staggered back and then came forward again. Mr Blake hit him a second time on the side of the head. The plaintiff staggered backwards and yelled ‘the rats must die’ several times, starting to remove his clothing as he did so. Mr Blake said that he believed that the plaintiff was referring to pet rats that he kept in the garage as pets for his children. Mr Blake said that he and the plaintiff stood facing each other for about five or ten minutes until the police arrived. When they did so, Mr Blake told the officers what had happened but indicated that he did not want to lay any charges and said that he thought that the plaintiff needed help.”

130 The police who attended were Senior Constables Jones and Duffey. They arrived at about 8.30 pm. Jones said that when they arrived he saw Mr Blake standing with a cricket bat raised above his shoulder facing the plaintiff, who was standing about three metres away. Jones approached Mr Blake while Duffey approached the plaintiff. Duffey stood between the plaintiff and the house. However, the plaintiff appeared to be attempting to get passed Duffey towards Mr Blake and the house. Jones said that he thought at this time he heard the plaintiff talking about rats eating his toes and eyes. The plaintiff screamed, but wordlessly. He attempted to push Duffey aside and appeared desperate to come towards Mr Blake and Jones, who was standing next to him. Jones went to give Duffey some assistance. The plaintiff used both arms to push the police officers to one side. They attempted to restrain him. The plaintiff’s level of aggression increased. The police officers forced him to the ground and handcuffed him. Further police officers arrived as did an ambulance. The screaming stopped and the plaintiff was placed in the ambulance and taken to JHH accompanied by Duffey. There was a great deal of blood on the upper part of the plaintiff’s body and possibly on his shirt. He had been bleeding profusely from his head wound. Earlier when Duffey approached the plaintiff and asked him if he was OK and what had happened, the plaintiff stared “right through me towards William Blake”. The plaintiff tried to push past him towards Mr Blake. At one point, when the officer took hold of the plaintiff’s arm, the plaintiff yelled that the rats were eating his eyes and his toes. These words were repeated during the incident. In one long incoherent sentence, the plaintiff spoke about killing and children and mentioned the devil at least once. The plaintiff showed surprising strength in reacting to attempts to control him. Once when restrained with handcuffs, he appeared just to go into a trance. At one point it took two ambulance officers, two other police officers and Duffey to restrain the plaintiff. The plaintiff yelled again about rats and eyes and rats eating his toes.

131 The patient report made by the ambulance officer, who attended, stated (expanding abbreviations):

“Head injury – patient in psychotic state – seeing rats eating his eyes, head butted a door and was also ? assaulted by cricket bat. On arrival patient conscious on footpath. Handcuffed by police. Patient incoherent. Initially thought patient had priapism. Treatment commenced for spinal injury. On further investigation nil priapism. Patient’s head bandaged prior to our arrival. Hypertensive tachycardic. Pupils equal and reacting. Abdomen soft. Chest clear. Redness on chest visible. Limbs intact. Patient agitated/aggressive. Police escort (indecipherable).”

JHH

132 When the ambulance arrived at JHH, Duffey said he spoke to the casualty nurse and asked to get the crisis team to attend and assess the plaintiff. Duffey believed that the plaintiff was mentally ill. Jones asked the plaintiff to tell him about what had happened earlier that night. The plaintiff replied: “I don’t know, I just cracked. I haven’t been the same since I split from my girlfriend about two or three months ago.” Jones asked him what that had to do with Mr Blake. The plaintiff said: “Nothing. I have only known him for about six months. I was working with him. I don’t want to cause him any hassles or anything. It is not his fault.” Jones asked the plaintiff what brought this on “tonight” and the plaintiff replied: “I don’t know. It has been brewing up for a while.” He denied he had been drinking alcohol but admitted he had smoked a couple of joints that afternoon. The plaintiff apparently could not explain and apparently did not recall his bizarre and extremely violent behaviour. The attack on Mr Blake appeared to be completely unprovoked and disconnected with his apparently amiable feelings towards him. Adams J said that he answered questions responsibly and was cooperative.

133 When the plaintiff was wheeled to the radiology section of the hospital for a CAT scan he said he thought “it was a morgue or like a big hole” and said he jumped up and said “I’m not dead, I’m not dead.”

134 After the CAT scan, and while the plaintiff was in the casualty section, Jones spoke with Ms Angela Jeffs at 11.20 pm. She was a social worker employed with the crisis assessment treatment team at JHH. Her task was to assess the plaintiff to ascertain whether he needed psychiatric assessment, care or treatment. She was called just after 10 pm.

“They gave me a history of a client, who I would be seeing soon, who had been involved in some form of violent interaction with another person. I asked if the other person was also in the hospital and they said ‘no’. I asked if there were going to be charges laid one way or the other. They said ‘no’. I formed an impression of a violent interlude between two men. They did not give an outline of why I had been called.”

135 Ms Jeffs had only to wait a short time before she was able to interview the plaintiff. She interviewed him alone. He was very polite and willing to speak to her. She said he told her that he had “gone around to see his boss” but was unable to give a clear account as to why he had done so. She said the plaintiff told her that he had tried knocking at the door but without any response, that he then started head butting the door and that his “boss” (sic) then came out with a cricket bat and hit him. There was no conversation. The plaintiff said that he was then brought to JHH. According to Ms Jeffs, he did not tell her about anything else that had transpired at Mr Blake’s house. Ms Jeffs said that the plaintiff denied anything indicating a delusional state. He described Mr Blake as “a decent bloke” or “a good sort” and did not appear to have any residual animosity. The plaintiff denied any form of auditory hallucination but told her that he had had a tactile hallucination concerning rats on his skin in New Zealand when on holiday about four years previously. He told Ms Jeffs nothing about experiencing rats at Mr Blake’s house or JHH. He said he had been drinking very very heavily the day before. Ms Jeffs did not recall discussing illicit drugs. The plaintiff displayed no aggression and remained responsive to her questions.

136 After speaking with the plaintiff, Ms Jeffs spoke with Dr McHue, the emergency doctor. She told Dr McHue that she thought the plaintiff should go to JFH to have ongoing further assessment as a voluntary “client” (sic). The plaintiff was “more than willing to go to” JFH for further assessment. She said she could see no delusional state or evidence of hallucinations, thought disorder or thought blocking. She thought that there was a possibility that something “connected with the alcohol ... warranted further investigation”. That is why she referred him to JFH. She never considered the plaintiff might need to be made an involuntary patient.

137 Mr Allan Presland had arrived at the hospital. Ms Jeffs suggested that it would be a good idea if he accompanied his brother to the hospital and he said he would do this.

138 Ms Jeffs’ note on her referral sheet stated:

“Went to his boss’ [sic] and head butted the door and was beaten off by boss with cricket bat. Chased by boss and police. Taken to JHH to assess injuries. Relationship break-up over 12 months ago. Physically fine. Appeared to be psychotic from previous effects of alcohol. Relates a long history of alcohol [semble, abuse].

Main presenting problem: Alcohol psychosis.”

139 Concerning the rats, the note stated:

“Involved story about rat ? (psychosis) and history of it happening four years ago.”

140 Ms Jeffs was emphatic she had not been informed by either of the two attending police constables that the plaintiff had tried to attack a young child or had made any threats to kill or attack Mr Blake’s family. She said the police did not discuss with her whether the plaintiff should be detained as an involuntary patient or “scheduled” although she was unable to say one way or another whether the police had said to her that they thought he was insane and something should be done about it. In the circumstances, Adams J thought it both surprising and most unlikely if the police had not communicated their views about the plaintiff. Jones said that he told Ms Jeffs what had happened to the plaintiff at Mr Blake’s house, what he saw happen, what he saw the plaintiff do and say and what he was told by Mr Blake that the plaintiff had done before the police arrived. Jones had made a note in his official notebook of what he was told, including that the plaintiff “lashed out at the child Timothy”. He said he had told these things to Ms Jeffs because he intended to give her sufficient information to make whatever decisions needed to be made from her point of view concerning the plaintiff’s case. The trial Judge said he regarded it as so unlikely as to be fanciful that Jones would keep to himself important facts which he knew might well not otherwise be made known to the people he wanted to understand what had happened. His Honour preferred Jones’ account.

141 Duffey said that he kept close to the plaintiff at the hospital. The plaintiff told him that while he was at Mr Blake’s house he saw faces of his mother and other members of his family floating before him. Duffey recalled speaking to Ms Jeffs in the plaintiff’s presence. She introduced herself to the plaintiff as a member of the crisis team. Duffey told her that the plaintiff had been assaulted with a cricket bat because he was trying to get hold of Mr Blake’s children. He told her how the plaintiff was screaming about the devil and rats eating his eyes and toes, about his references to children, the change in his behaviour from extreme violence to passivity when he was hand cuffed, the renewed violence when the handcuffs were removed and passivity when he was placed in the ambulance after he was subdued. Duffey said he tried fully to describe what had happened to ensure the plaintiff was admitted to JFH. He believed the plaintiff was mentally ill. Ms Jeffs told him that she intended to talk with the plaintiff about what had happened. When requested to leave the vicinity by Ms Jeffs, Duffey complied. Later Ms Jeffs told him that the plaintiff had an alcohol-induced psychosis and would not be “scheduled”.

142 Duffey gave this evidence about what he told Ms Jeffs:

“A. Yes, I recall telling her that he had been assaulted with a cricket bat, this was because he was trying to get hold of Blake's children. I talked about or inferred things about how he was screaming about the devil, about rats eating his eyes and toes, how he referred to children, how his behaviour changed from when we were at the scene to while we were waiting for the ambulance to while we were with the handcuffs coming off and then changing again before going into the ambulance to go to the Hospital and then his change again at the Hospital and the conversations I have had there. I tried to fully explain that night to her to get the desired outcome that I wanted.

OBJECTION. QUESTION ALLOWED.

CRADDOCK: Q. What was the desired outcome that you wanted?

A. If his medical situation did not need him to remain at the Hospital, at the John Hunter Hospital, for him to go to the James Fletcher Hospital.

Q. Why did you want him to go there? A. Because I believed he was mentally ill.”

143 Ms Jeffs’ notes were made in the car park as she was leaving the hospital that night and were not intended to form part of any medical record. Adams J regarded the account in the notes as significantly mistaken and accepted the police officer’s evidence of what had been told to Ms Jeffs. His Honour said:

“...It mentions nothing of the plaintiff’s aggression towards Mr Blake, let alone his family, his extreme violence interrupted by periods of apparent catatonia as witnessed by the police and the ambulance officers or anything about rats attacking him. It may be that the plaintiff did not give further information to Ms Jeffs because of confusion or some other reason and some aspects of the account (such as referring to Blake as his boss) do not make sense. But it seems to me to be impossible to accept that the police officers did not mention to Ms Jeffs the salient features of the dramatic and extraordinary events that led them to conclude that he was seriously mentally disturbed and needed to be brought to JFH. Nor do I think it likely that Ms Jeffs would have thought that the plaintiff had been brought to the hospital just to have his head injuries looked to or that the police believed he had merely been in a fight. The most likely explanation for Ms Jeffs’ present account differing from that of the police officers is that she made no note of what they said at the time – confining herself to what the plaintiff said – and her recollection has failed as to what they told her.”

144 When the plaintiff was brought to JHH on 3 July an admission form was filled out. Dr McHue made notes on the form. He was on duty in the emergency ward at the time. The notes included the following:

“Details of incident:

Apparently head butted door down. Householder defended himself with cricket bat. Ran away. Chased by police. Spoke of ‘rats eating his eyes’. On arrival eyes open, mute, doesn’t obey commands. Possible ETOH [alcohol]. Drug ingestion.

Place of injury: employer’s house.”

145 Dr McHue, to whom ambulance officers usually gave a verbal handover, said that he would have expected the ambulance officers to have communicated the important features of the history on the ambulance form and, in all events, it was Dr McHue’s normal practice to examine that form in the course of treatment. The hospital notes show that the plaintiff arrived at 21.10. Problems presenting at triage were noted as follows:

“Alleged assault. Entered house, shouting and irrational. Has been hit in head by cricket bat. O/A collar in situ; quiet, staring. Also hit head on door. Remains unresponsive, staring into space, dressing to head - ?Laceration. Arrived with police escort.”

146 The record under the heading “Summary: history from police” showed:

“21.30 patient attacked workmate’s door around 20.20 – head-butted door down – head butted hole in interior wall. Police came. Wrestle patient to the ground.

Now patient catatonic (however, intermittently aggressive). Eyes open. Staring.”

147 His Honour regarded this as significantly understating what the police said. Dr McHue said the plaintiff was quiet and cooperative throughout the process of radiology. Dr McHue made a provisional diagnosis of minor head injury and psychiatric illness and referred the patient to JFH. Dr McHue spoke to the then psychiatric registrar at JFH, Dr Sheng, and sent him a brief referral note. In the opinion of Adams J, the JHH hospital notes were not sent to JFH.

JFH

148 Adams J observed that the evidence of the police officers as to the information which they conveyed almost certainly to the triage nurse when they accompanied the plaintiff to JFH was of considerable importance. A form was necessary for one or other of the police officers to fill out when bringing the patient for assessment. It was described as requiring an explanation of the behaviour which led the police to bring the patient to the hospital. Jones said he had a conversation with Dr Sheng in which, he said, he informed him of what he knew about the plaintiff including, in particular, what happened at Mr Blake’s house. He said that he also told Dr Sheng that he believed the plaintiff was mentally ill. In addition, he wrote a short version of the facts of the case on the appropriate form which he said was handed to Dr Sheng. His Honour did not think in fact the form had been handed to Dr Sheng. His Honour said:

“60 ... Most regrettably, the police escort form is not now part of the hospital records. Indeed, so badly are those records maintained, it is not objectively possible (by way, for example, of noting a missing page number) to corroborate the officers’ evidence about filling in and providing the form. In other circumstances, the fact that the form is missing would justify an inference adverse to the record holder, if that holder was (as here) a party. However, as I have already said, the records of the hospitals have been through so many hands that it would be unfair to draw any adverse inference from the fact that an important form is missing. It is obvious that it is not now possible to reconstruct the account given in the form. I am satisfied, however, that it very probably referred to the obvious points: the attack on Mr Blake and his family, including his young son; the lack of any rational motive for so doing; the extreme violence and unusual strength demonstrated by the plaintiff when they tried to prevent him from attacking Mr Blake and restrain him; his apparent catatonia, extreme violence and resumed catatonia; his screaming about rats eating his eyes; and the opinion of the officers that he was mentally ill.

149 At JFH the plaintiff was seen by Mr Mazun, a psychiatric nurse, at about midnight. Adams J quoted this part of Mr Mazun’s notes:

“Brought by ambulance officers and two escorting police following erratic aggressive behaviour. Kevin has head-butted a friend’s (employer’s) door down and exhibited some psychotic features Dr McHue thinks is due to acute alcoholic psychosis. Patient denies ETOH. However, admits to smoking a small amount of THC [cannabis].

Drowsy when taken into Admissions Unit on stretcher. Patient stated he was calm and keen to talk about presenting problem/precipitants to illness.

Not much thought disorder but when referred to his own sister, Kevin felt very uneasy and could not elaborate why.

Unusual or bizarre behaviour: aggressive outbursts at mate’s house. Head-butted door.

No hallucinations but heard voices of family members and misidentified other people for family members (visual hallucinations) during period of erratic behaviour.

Patient perceives the problem as ‘battle between the devil and the good fella’.

Patient’s attitude to hospitalisation: Feels he needs to be here.

Speech: slurred speech on admission.

Good family support network.”

150 Dr Sheng recalled Dr McHue telling him that the plaintiff thought he was being taken to the morgue when he was being taken for a CAT scan. He recalled that Ms Jeffs told him that she thought the plaintiff had exhibited psychotic symptoms early in the night and was suffering from alcohol hallucinosis. Dr Sheng was told by the police that they had been asked to attend the plaintiff “when he was at his workmate’s place, where the assault incident with the cricket bat and the security door had occurred” but Dr Sheng stated that he did not get very much more information from them. He confirmed that a police escort form would have been filled out and was on this occasion. He would always read the police escort form but said he did not think “there was anything additional on the form ... which went beyond what Angela Jeffs had told me.”

151 Dr Sheng said that if there had been anything in the police escort form that suggested either risk of violence or suicide he would have included it in his own notes. It was not referred to in his own notes. He inferred he was not informed of the plaintiff’s prior bizarre behaviour which would certainly have suggested the risk of violence. Adams J said that the explanation of absence from Dr Sheng’s notes of the suggested risk of violence or suicide, namely, that the police did not tell him of the plaintiff’s bizarre behaviour that led them to conclude that he needed psychiatric care, was so improbable as to lead the judge to conclude that, on this point, the police officers’ recollections were more reliable than that of Dr Sheng or Ms Jeffs.

152 Dr Sheng said that when he first saw the plaintiff his head was bandaged and he was not restrained. The plaintiff was awake, alert, orientated and cooperative. Dr Sheng’s notes of his interview with the plaintiff begin at 12.16 am and are as follows:

“HISTORY, EXAMINATION AND PROGRESS NOTES

PRESLAND, Kevin William

Sheng (MO) 0016

4/7/95 Identifying Data

36 year old male

Lives by self

House

Source of Referral

Transferred voluntarily from JHH in ambulance with police escort.

Presenting Problem

’Split up not long ago and it’s just been driving me bonkers’

HPI – Speech slightly garbled

Having an affair with the wife of a friend, but she cheated on both of them. Broke off 12 months ago.

Now suffering financial strain from mortgage.

Some other relational problems with nephew and drinking partners.

Has known Bill for a couple of months (works with him). Tonight Kevin used 2 cones of THC and went round to Bill’s with a six pack, they started talking and then Kevin snapped started making threats. Bill asked him to leave and Kevin head butted Bill’s security door, he kicked Bill’s fence down tried to tear Bill’s gate apart Bill picked up a cricket bat and warned him to keep away from his family Kevin went for Bill and was hit by the cricket bat. Police came and handcuffed Kevin.

At this stage, Kevin had odd thoughts. He thought if he closed his eyes he would die and he had odd perceptual experiences. Everyone looked like someone he knew. When they arrived at JHH, he thought he was dead and in a hearse. He was wheeled down the corridor for a CT scan and thought he was being taken to the morgue.

Additionally, Bill has pet rats, which Kevin was told about on 2/7/95 and Bill showed them to Kevin and Kevin threatened to kill the rats and Bill’s family today.

During the CT scan, Kevin snapped back to reality and realised he wasn’t dead.

Kevin also experienced auditory hallucinations – low voices, Barely audible which sounded like his parents.

Past Psych Hy

No previous psych illness

Past Med Hy

Stabbed once

Peri-anal abscess

Systems R/V

CVS – NAD

Respiratory – NAD

GIT – NAD

GVS – NAD

Neuro – NAD

Medication: Nil Allergies: Nil

Family Hy

Dad had heart attack, hypertension

Mother suffered from depression

Current History

Lives by self

House cleaning

? 1 illegitimate child

Sheng (MO)

Drug Alcohol

30-200 g ETOH/DAILY

smokes cigarettes

THC daily – 6 cones average

Has tried magic mushrooms once

Has tried LSD twice

Nothing else

MSE

Appearance - Basically healthy looking young man

- Head bandaged

Behaviour - Pleasant

- Friendly and garrulous

Speech - Normal

Thought - Normal – No FTD

- No delusions

- No suicidal/violent ideation

Cognitive - Orientated

- Able to concentrate

- Good memory missing of events

Intelligence - Within normal range

Perception - No abnormalities when seen

Mood - “Very stressed out”

Affect - Reactive and appropriate

Insight - Wants brief admission

Impression: Brief reactive psychosis

DDx - Drug induced psychosis

? Organic psychosis

- Schizophrenic unlikely

Axis II - Deferred

Axis III - Nil

Axis IV - Relationship break-up

- Financial strain

- Drug use

Axis V - Highly functioning gentleman

- Moderately impaired

Plan

1. Admit as informal patient

2. Screened originally at JHH but TFT’s, TPHA, B12 and folate probably not done may be able to be done or sample collected.

3. CT normal.

4. No medications

O/E

Neuro Intact

CVS - JVP not raised

AB - dyskinetic

HS - Dual no murmurs

Chest - Clear

Abdo - Soft

Prominent arterial pulsation

BSN

Sutures in scalp.

Sheng”

153 Added were entries made by nurse Mazun and the ward nurse as follows:

“3.7.95 – C Nursing C – P/C from Allan Presland who inquired as to the health of his brother and voiced concerns over Kevin impulsive behaviour and suicidal ideation. Kevin apparently stated he was “going to do away with himself”. Nurse Mazun (RN) Admissions

4.7.95 Nursing C Patient oriented to ward and settled quickly. Awake ‘praying’ at 2am. States that he is afraid to go to sleep, because he has ‘seen the devil’ and will die if he closes his eyes. S Rodger RN”

To which Dr Sheng added –

4/7/95 Sheng – Additional – 1806 Apparently still exhibiting some psychotic features. See above note.

?Stat 100mg Largactil

Sheng”

[Adams J found some of this paragraph difficult to decipher and misquoted it. Dr Sheng’s verified type written copy is as I have quoted it.]

154 Adams J said:

“66 Dr Sheng suggested four differential diagnoses. I do not doubt that Dr Sheng thought that there was, indeed, something seriously wrong with the plaintiff although he had some difficulty, at the time he assessed him, in determining what was actually wrong with him. This was also Dr Phillips’ view, as to which see later.

67 Dr Sheng considered that the nurse’s note about the plaintiff being afraid to close his eyes indicated that he was “apparently still exhibiting some psychotic features” and also thought it reasonable to form the view that he was likely to be a danger to himself, as he had, as communicated by his brother, threatened suicide. However, he thought that it was unnecessary to wake the plaintiff up or revisit him after Allan Presland’s telephone call because the plaintiff was extremely tired and Dr Sheng thought that he was safe in the ward. In Dr Sheng’s opinion, the plaintiff’s fear of going to sleep because he had seen the devil and would die if he closed his eyes was a delusion – and, I infer, clinically significant. He also thought (as I do) that it was a matter of critical importance, having noted the threat to kill the rats and Mr Blake’s family, that the apparent link between these two ideas in the plaintiff’s mind needed to be clarified but this was a matter that should be done in the assessment which he expected to occur in the morning.

68 In considering the interview with Dr Sheng, it is very important, as it seems to me, to bear in mind the situation of the plaintiff. He had scarcely had any sleep in the previous forty-eight hours. The events of the previous six hours or so had been extremely traumatic and it cannot be seriously disputed he had been involved in a major violent and bizarre episode. He had been seriously injured. Mr Mazun notes that the plaintiff was drowsy. I have no doubt that he was. The circumstances were, therefore, far from ideal from the point of view of eliciting any narrative that required concentration or patience. It is significant that, at this point, the plaintiff said to Dr Sheng that he wanted to “come into hospital to sort things out”. Although Dr Sheng noted visual hallucinations, in which the plaintiff heard voices of family members and thought that other people were family members, he understood this to have been experienced before the plaintiff’s arrival at JFH. This was also the case as to the delusions. Dr Sheng also noted that the plaintiff’s perception of his problem was that it was a “battle between the devil and the good fellow” but said that this was not of concern to him because, as he explored it in the interview, it was consistent with the plaintiff’s religious and cultural background. However, there is nothing in the notes which suggests any explanation for this statement. This omission is significant, having regard to the otherwise unqualified observation on the psychiatric nursing history. I am sceptical that the plaintiff would have explained away his bizarre thoughts in this way. I do not think he was attempting to conceal them, because of what he later told the ward nurse when he was offered a sedative. In the result, I think that this explanation by Dr Sheng is a reconstruction based upon what he thought he would have done but that he did not, in fact, explore the matter, most likely because he had provisionally diagnosed a psychosis and he thought that the plaintiff would be fully assessed in the morning. It may be that he simply asked the plaintiff if he believed in God or was a Christian; either way, the lack of any explanatory note as to what appears, in the circumstances, to be a troubling statement leads me to conclude that it was in fact unexplained.

69 It seems to me that the plaintiff was in the admission room with Dr Sheng for something less than an hour, of which some time was taken up with physical examinations. The plaintiff’s account of this conversation refers to matters which, it is clear, were actually discussed. Thus, for example, he refers to Dr Sheng’s asking him about whether there was a family history of mental illness, the drugs, if any, he used and how much he drank. As the notes set out above show, Dr Sheng noted that the plaintiff used two cones of THC earlier in the night and told Dr Sheng that he averaged six cones a day. His evidence was that he told him that he smoked something like ten cones a day and sometimes might drink as much as ten schooners a day. Although these quantities are somewhat greater than those noted by Dr Sheng, I do not think this difference is significant for present purposes.

70 The major difference between Dr Sheng’s and Mr Mazun’s accounts on the one hand and that of the plaintiff on the other is the plaintiff’s insistence that Dr Sheng stopped him from telling him why he was at the hospital, did not ask him about how he got his injury to his head and, strangely, gave him a writing pad and told him to go to a room (by himself) and write down everything he could remember about the night. The plaintiff said that he wrote down what he could remember, about the rats biting him, about being hit with a cricket bat, about Mr Blake telling him that he would “get these white rats to bite me” as some sort of initiation and about his family. The plaintiff said that these events were “starting to come back” and he filled about half a page with his account. He said that he waited for Dr Sheng to return after he had finished writing, for about twenty minutes. I do not doubt that the plaintiff believes his account to be true. He is, however, completely mistaken. There is every reason for accepting the evidence of Dr Sheng and Mr Mazun, and I do. I suspect that the plaintiff is simply confabulating with another occasion upon which he was asked to write his account, perhaps following the death of Ms Laws.”

155 Mr Allan Presland was contacted by Jones at about 10.30 pm on 3 July and told that his brother was at JHH and he should come up and see him. He said that, when he got to the hospital, he was told that his brother had lashed out at someone, been hit over the head with a cricket bat over at Islington (the suburb of Mr Blake’s house). When he spoke to the plaintiff, the plaintiff told him that he was going to do away with himself. He told the plaintiff that he was going to be there for a week and the plaintiff said “Yeah” and then lunged out of the bed at him. Later Mr Allan Presland went home. He rang JFH at 1.30 am to check that his brother had arrived safely. He was told to bring some clothes for him. He packed a bag for the plaintiff in the expectation that he would need to stay at the hospital for some time. The next day he went into town and bought some pyjamas for the plaintiff. He took all these to the hospital. When he arrived he went to the ward and was told by a nurse that his brother was out playing bowls. Later he was told that his brother was at the police station. Mr Allan Presland went down to the police station, not far from the hospital, where he was told that his brother had just walked in and he saw him sitting on a bench. He told the police he would take his brother back and asked him to come back. The plaintiff then said to him “somebody in there told me if I closed my eyes the devil will get me.”

156 Adams J said:

“77 When Mr Presland brought his brother back to the Acacia Ward he saw two nurses there. He said that he asked, “What is going on with my brother?” He said that one of the nurses replied, “You will have to have him assessed before you can take him”. I am inclined to think that, indeed, he was told this by the nurse. The nurses’ evidence in this regard, to which I will come in due course, is certainly that they understood that Mr Presland wanted to take his brother with him. Although I have no doubt that he did not wish to do so, I think it is likely that he was somewhat aggressive and that they assumed that he wished to do so, an assumption built into the information which they gave him at this point. It is, of course, very difficult to reconstruct events now, but it seems to me that the nurses probably assumed that Mr Presland and the plaintiff were leaving because Mr Presland had a bag packed, which they thought was the plaintiff’s, and the brothers came in from outside the ward. I think that there was a mutual misunderstanding between the nurses and Mr Presland. I do not believe that Mr Presland understood that they thought he wanted to take the plaintiff out of the hospital. He was, as it were, focused on his own campaign to get his brother care and I do not think that he really heard what was said to him. Whatever the explanation for the nurses’ evidence, however, I have concluded that Allan Presland did not want, let alone, demand the release of his brother and that the plaintiff himself made no such request.”

157 A registered nurse employed at JFH on duty on the night of 3-4 July 1995, Ms Stephanie Thomas, recalled the plaintiff coming into the Acacia Ward at JFH. When he first came in he was quite distressed. She noted that he was awake at 2 am apparently praying and that he told her that “he was afraid to go to sleep because he had seen the devil and will die if he closes his eyes.” He was otherwise polite, “appropriate and calm.”

158 Mr Adam Vincent, a community mental health worker, recalled a man, who was obviously Mr Allan Presland, entering the unit and aggressively demanding that his brother should be “released right now”. Adams J said:

“81 ... I simply do not believe that he would march into the hospital and, without even asking how his brother was, demand that he be discharged. Nor would such a demand make any more sense after Mr Presland had retrieved the plaintiff from the police station. ... Certainly it was in Allan’s interests that some qualified person take care of his brother, about whose behaviour he had been concerned for some time. I do not think that he saw himself or his fiancée, as an appropriate carer – they had their own lives to lead.”

159 His Honour was convinced that far from Mr Presland wanting the plaintiff to be released, he was anxious that he should stay in the hospital to deal with whatever emotional or psychiatric issues were adversely affecting him. He, for reasons given, put aside the evidence of Mr Vincent and also that of Ms Lockett, which suggested that Mr Allan Presland had said words to the effect of “what was his brother doing here, why was he here and he wanted to take him home.”

160 On 4 July 1995, Dr Nazarian, the psychiatric registrar on the Acacia Ward of JFH, commenced his shift as usual at 8.30 am. The plaintiff was allocated to his care. He said he was approached by several of the staff who told him that the plaintiff and his brother wanted to leave the hospital. His Honour observed that aside from the matters to which he had otherwise referred, Dr Nazarian’s notes of his consultation with the plaintiff made no reference at all to any request or suggestion that the plaintiff or his brother wished to leave the hospital. Yet Dr Nazarian suggested in evidence that it was a major, indeed the major, influence on the character of the consultation and prevented him from exploring matters that he otherwise would have. Dr Nazarian’s notes were:

“4.7.95 Psych. Regis Nazarian

10.30 I saw Kevin with his brother, the brother stated initially that Kevin had an accident which Kevin approved, but later on inquiry about what type of accident, Kevin claimed he was hit on the head by a bat. He admitted drinking alcohol 12–15 schooners and smoking 10–20 cones/day when stressed out. He got separated from his girlfriend recently, claims it was his choice, he didn’t love her if she didn’t love him. He had a fight with one of his colleagues at work, he claims that the new colleague was trying to boss them. He claims he’ll have no trouble in getting back his job.

His family are supportive, they’re aware of his alcohol and drug problem so they’ll offer him support. He agreed to go to Kirkwood House and other D&A services to seek help.

Diagnosis - No psychotic illness

- No major depressive illness.

Mainly Drug & Alcohol abuse and personal problems.

No need for follow-ups.”

161 Adams J said:

“88 ... Of course, the purpose of making such notes is to create a record of the consultation, not only for future treatment by the psychiatric registrar but for reference by future carers or doctors and against failures of recollection which, in the course of any busy practice, are likely. This is so obvious that I accept Dr Nazarian’s own evidence to the effect that he made a note of all matters of importance. I should also make the observation, at this point, that of itself the fact – if it were the fact – that the plaintiff wished to leave the hospital is not decisive of the ultimate issue in this trial, since the plaintiff’s case is that, whatever his wishes, it was negligent for the defendants to have released him, in other words, not to have kept him as an involuntary patient in accordance with the Act, whether as a mentally ill or a mentally disordered person. To my mind, the significance of the finding that the plaintiff did not express a desire to leave the hospital is that this renders a number of explanations given by Dr Nazarian as to why relevant and important matters were not either raised or explored with the plaintiff unlikely to be accurate; the finding that Allan Presland did not seek the immediate release of his brother similarly removes that explanation for not raising or exploring matters with the plaintiff. At all events, the desires of Allan Presland, however strongly expressed, were only of the most marginal relevance and should have been disregarded. The risk – in the circumstances as described by the nurses and Dr Nazarian himself – that he was overbearing his brother is obvious. It is important to note that, even if the plaintiff and his brother had indicated – however strongly – a desire to leave the hospital, they had consented to seeing Dr Nazarian before doing so and permitted him to assess the plaintiff. The notion that they would have dismissed any opinion that Dr Nazarian expressed concerning the desirability for the plaintiff to remain in the hospital for a short time – perhaps a few days – to enable his condition to be explored and to obtain some explanation for his bizarre behaviour and fearful thoughts is, in my view, fanciful. The significance of these considerations will become more evident as I deal with Dr Nazarian’s evidence and the opinions of the defendants’ experts. Dr Nazarian also said, and I accept, that he had the plaintiff’s hospital file with him during the consultation. That file should have contained the ambulance report, the JHH admission note and the police escort report setting out the details of the events that led to the plaintiff’s admission to the hospital. Had they been in the file and had Dr Nazarian given them appropriate consideration, I think it likely that both the consultation and its outcome would have been quite different. However, I think it probable that these documents were not, for some reason, in the file at this point. This, however, is not the end of the matter so far as Dr Nazarian is concerned since I am persuaded that his consultation was, in a number of respects, at all events seriously inadequate.”

162 According to Dr Nazarian, after he had introduced himself, he asked the plaintiff how he ended up in hospital and what had happened. He said that Mr Allan Presland told him that it was an accident and the plaintiff agreed with this. His Honour observed:

“89 ... These answers, in all the circumstances, are so much at odds with any reasonable view of the probabilities that I have concluded that, somehow or other, Dr Nazarian has misunderstood what was said or else Allan and the plaintiff had misunderstood the question. Allan knew that there had not been any accident. He had no reason to suggest that there had been or to omit mention of his fear about his brother’s threat to kill himself.”

163 Dr Nazarian said that he “confronted him gently by saying ‘Are you sure?’ and then when they noticed that I did not believe it, well, they backed off and said ‘Well, I was hit on the head by a bat’.” Dr Nazarian noted an account which was significantly at odds with what the plaintiff now said. Dr Nazarian said that he verified this account with Mr Allan Presland. The Judge observed:

“89 ... Since Allan was not present at any relevant time, and did not claim to have been present, I do not see how this so-called verification could have occurred. It was obviously inappropriate for Dr Nazarian to simply accept Allan’s “verification” without exploring its basis and, unless he did so, the “verification” was useless. If Dr Nazarian had read Dr Sheng’s notes with any attention, he would have noticed that Allan Presland’s presence at the relevant events was not suggested.”

164 Dr Nazarian ascertained that the plaintiff had been drinking heavily and also abusing marijuana. This led Dr Nazarian to propose that he should undertake drug and alcohol counselling. The plaintiff said, according to Dr Nazarian, that it was OK for him to go home and Mr Allan Presland added “We’re a big family, we will look after him”. Dr Nazarian said that he tried to convince the plaintiff to stay, saying words to the effect “It is too early to leave the hospital, how about if you rest here?”. He said the plaintiff’s response was that he “would rather go and rest at home” and that when he asked whether he had support, Allan Presland repeated his observation about being a big family that could look after him.” His Honour observed:

“89 ...This matter strikes me as being so significant that a note would have been made of it had the exchange actually occurred. I am satisfied that it did not. Dr Nazarian said that he tried to approach this matter another way by saying to the plaintiff that his head needed attending to but got the response, ‘Oh we will go to the GP. We have got a good GP. The GP can look after that’. I am also sceptical that this was said, having regard both to the lack of a note and to the circumstances. I repeat that I am quite sure that Allan Presland was anxious for his brother to stay in hospital, since he believed that he needed help and that, this being so, I do not accept that he would have suggested that his brother would be better off at home, let alone contradicting the doctor’s advice that he should stay in hospital. On every other occasion when the question of staying in the hospital had been raised by medical staff, the plaintiff had responded positively.”

165 Dr Nazarian said that he carried out a mental state examination. No note either of the elements or the fact of such an examination was made by him. He said that although he did not do so formally, he considered the plaintiff’s history, his coherence of speech, whether he appeared depressed or indifferent, whether he was restless or agitated, calm or distracted by external stimuli, whether he acted inappropriately, whether his speech was normal or accelerated and whether there were any signs of thought disorder. He said that the plaintiff was calm and cooperative. Dr Nazarian said that he did not raise the issue about the plaintiff fearing to close his eyes because the devil might get him. He said, however, that he had discussed the issue of the plaintiff being afraid to sleep indirectly because “if you ask questions the patients deny it and close the matter”. Yet, Adams J observed, he asked a direct question about suicidal thoughts. The plaintiff’s tiredness, his sleep, his feelings at the hospital, what had happened at the hospital, how his head felt were not mentioned in the notes, either explicitly or implicitly. Adams J said: “These were obviously important matters.”

166 The trial Judge did not accept Dr Nazarian’s evidence. His Honour went on to deal with several other matters said to have been put to the plaintiff but not noted. Dr Nazarian asked the plaintiff, so he said, whether he had any strange experiences the previous night or the previous day or so but the plaintiff denied it. He said this denial was reflected in his note of “No psychotic features”. Adams J said:

“90 ... However there is no such note. The only note in this regard is ‘Diagnosis’ – No psychotic illness’. I do not believe that the conversation referred to is reflected in this note. The matter is so obviously crucial and the plaintiff’s denial (if he gave one) so plainly important that I do not accept that Dr Nazarian would have failed to note it or otherwise thought that the note ‘no psychotic illness’ was remotely sufficient in light of the notes already made by others. I am satisfied that Dr Nazarian did not make a note of the conversation or its effect because he, in fact, did not make any inquiry: the conversation did not occur. Moreover, I think that, so far from a denial, it is probable that any inquiry would have elicited a response consistent with those that had already been made by the plaintiff to earlier interlocutors. Dr Nazarian concluded that he could not see any psychotic illness, nor a psychiatric disorder. He said that ‘the only thing which was obvious, there was alcohol and drug abuse, and personal problems’. He did not see any psychotic illness or a psychiatric disorder, in my opinion, because he did not conscientiously look for them. I regret to say that I think that Dr Nazarian was merely going through the motions and, even then, only some of them.”

167 Further, Dr Nazarian made no attempt or serious attempt to question Mr Allan Presland about his knowledge of the plaintiff’s history of behaviour. His Honour said it was obvious that he should have done so. By way of example, his Honour referred to questions Dr Nazarian put about whether the plaintiff felt that he was at risk of harming himself. The plaintiff’s response “It’s okay” was scarcely a responsive answer. The question itself implicitly signalled that denial was appropriate or even sought. Dr Nazarian should have asked open-ended questions. Suicidal thoughts by the plaintiff were obviously a most important consideration. His Honour concluded “that Dr Nazarian did not ask the plaintiff about the risk of suicide and, at all events, if he did so in the terms deposed to, he did so incompetently.”

168 Dr Nazarian gave evidence that Mr Allan Presland was harassing staff to release his brother from the hospital. In those circumstances, his Honour regarded it as self-evident that he should have interviewed the plaintiff in the absence of Mr Allan Presland, or attempted to do so, because of the possibility that the plaintiff was being overborne by his brother. Dr Nazarian said he did not see the importance of ascertaining whether it was the plaintiff’s independent wish to leave or whether it was his brother’s. His Honour said: “The fact that he neither did do so nor sees why it was important to do so is part of the picture which supports my adverse opinion of his competence.”

169 Although Dr Nazarian said the plaintiff described himself as under duress because the plaintiff wanted to be at home he made no note to this effect. His Honour observed that the notes did not so much as hint that the plaintiff’s attitude was that he did not want to stay. His Honour said:

“93 ... I do not wish to suggest that Dr Nazarian has fabricated it. Rather, I think that he has extensively reconstructed events rather defensively, having regard to the horrific aftermath of the plaintiff’s release.”

170 A number of points which Dr Nazarian should have explored with the plaintiff and which appeared on the records in the file which Dr Nazarian had read included the plaintiff’s actual feelings at the time of his fight, what threats he had made and why he made them, why he head butted the security door and attacked the fence, why Mr Blake warned him to keep away from his family, why he believed Mr Blake hit him with a cricket bat, why and in what circumstances the police came and handcuffed him, whether he thought if he closed his eyes he would die and what was the nature of that feeling and how long had he had it and whether he still had it, the extent to which people looked like someone he knew, although they were strangers, his feelings when he was brought to JHH that he was dead and in a hearse and later being taken to the morgue when he went for a CT scan, his auditory hallucinations, why he threatened to kill both Mr Blake’s rats and his family, what he thought about rats and whether he still felt that his problem was a “battle between the devil and the good fellow”, where and when he had seen the devil, why he did not want to go to sleep and so on. Dr Nazarian said that he did not do so in any specific way because he thought that the plaintiff would simply deny these feelings or thoughts and seek to present himself as relatively normal in order to go home. The trial Judge found Dr Nazarian’s evidence quite unconvincing about the ways that he approached these issues.

171 Adams J said:

”95 On the whole of the evidence, I have formed the view that, more probably than not, had the plaintiff been asked in appropriate, non-leading and non-threatening ways about the matters which were exhibited on the notes made by Dr Sheng, Mr Mazun and the ward nurse, the plaintiff – especially if he was seen alone – would have disclosed further details which would have been extremely significant (and, having regard to the medical evidence to which I will refer in due course) decisive on the question whether he should have been treated as an involuntary patient.”

172 Furthermore, Dr Nazarian should have been informed of the plaintiff’s trip to the police station and, had he been so informed, should have asked questions concerning how this came about. It was probable that the plaintiff’s answers would have been likely to reveal a significant level of mental disturbance. Although repeatedly referring to confirmatory responses from Mr Allan Presland with respect to the plaintiff’s assertions about going home, Dr Nazarian did not inquire about the relationship between the plaintiff and his brother, how frequently they communicated, whether he was present at any of the relevant events, whether he was prepared to look after him and how he proposed to do it. This suggested indifference if not incompetence. Dr Nazarian had no recollection of seeing the police escort form but he was aware the police had been involved in bringing the plaintiff to the hospital. He failed to make any inquiry about this matter. Typical of Dr Nazarian’s approach was that he did not ask about the rats because as he said “it ... wouldn’t have been useful ... because it would have come to a denial [and] if you continue denying I cannot do anything.” “It is clear that Dr Nazarian’s attitude was that unless there were frank psychotic symptoms or suicidal intentions expressed at the time of his interview, he would not detain a patient.” It should be noted that, in 1995, s9, as I have quoted it, referred to “physical” harm. In 1997 this was amended to remove the reference to “physical”. Section 9(2) was amended to read as follows:

“In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.”

The explanatory note of the amendment is:

“A person may not be involuntarily detained under the Act unless the person is a mentally ill person or a mentally disordered person. The amendment inserts a new definition of mentally ill person that removes the existing requirement that a person suffering from a mental illness is such a person if the person requires care, treatment or control for protection of the person or others from serious physical harm and replaces it with a requirement that such a person requires care, treatment or control for protection of the person or others from serious harm. The effect of this is to enable other kinds of harm, such as financial harm or harm to reputation, to be considered when determining whether a person can be detained as a mentally ill person. The new definition omits the existing provisions classifying persons suffering from certain mental illnesses characterised by severe disturbance of mood or sustained or repeated irrational behaviour as mentally ill if they require care, treatment or control for protection from serious financial harm or serious damage to reputation. The new definition also makes it clear that, in assessing whether a person is a mentally ill person, any likely deterioration in the person’s condition and its effects is to be taken into account.”

173 Dr Nazarian said that he asked the plaintiff about whether he was having any unusual experiences and “sort of seeing things, hearing things” and the plaintiff denied this. There was no reflection of such an enquiry in his notes and his Honour did not believe that it was made.

174 In his statement, which was apparently made shortly after 25 July 1995, Dr Nazarian said that the plaintiff “denied having delusions or hallucinations”. Adams J said:

“101 ... It seems to me significant that, although Dr Nazarian says that he was informed by the nurses that the plaintiff intended to leave the hospital and that he found him sitting with his brother with his bag already packed to leave (this plainly being an assumption), the statement never adverts to any indication given to Dr Nazarian in the interview that he did not want to stay in the hospital and wanted to leave, nor give the slightest intimation that the Doctor was under any difficulty in properly assessing the plaintiff or that the plaintiff was hesitant or evasive in respect of any information the Doctor sought. It may be that Dr Nazarian now believes that his interview was significantly curtailed by what he described as “duress” but his failure to mention this consideration in his statement to the police – considering the purpose for which the statement was obviously provided – reinforces my view that this is very much an ex post facto rationalisation.”

175 After the plaintiff and Mr Allan Presland left the hospital they went to Kirkwood House, a drug and alcohol service not part of JFH but situated within the hospital. The plaintiff was told to come back in three weeks time. They then went back to Mr Allan Presland’s house where the plaintiff was going to stay for a while. Later in the day, Mr Allan Presland went to the plaintiff’s house to get some clothes and tidy up. While he was away, shortly after 5 pm, the plaintiff attacked Ms Laws and killed her.

176 The plaintiff gave this evidence:

“I remember my brother telling me at some stage that Kelley was – Katy was coming over, his daughter, my little niece. I think she is about 7 or 8 years old. I believed she was going to be the next to die. I actually believe that Kelley was going to be the next one to leave and die and then Katy would come and she would be the next to die and I believed I had to do something. I didn’t know what to do. I remember thinking, “I have got to kill Kelley. I have got to keep her in the house to stop the devil getting her so Katy might come.” I walked out. I think she was peeling vegetables. I think I just said to her, “I have got to kill you”. She said “What?” I said, “I have got to kill you”. I believe I picked up the knife she had with the vegetables and I hit her in the chest with it and the knife just bent. I think she screamed. I think I might have punched her twice and dragged her in the kitchen. I got another knife and I killed her, your Honour.”

177 In March 1996, the plaintiff was examined by Dr William Lucas, who concluded that there was no doubt that the plaintiff suffered from an acute severe psychotic illness at the time he killed Ms Laws.

Expert evidence

178 Of the psychiatrists called to give evidence, (Dr Jonathon Phillips and Dr John Robert Strum for the plaintiff and Dr Rod Milton, Dr Peter Shea and Dr Howard Johnson for the defendants), Adams J, for reasons he gave, preferred the evidence of Dr Phillips. Dr Phillips pointed out that it was crucial that Dr Nazarian and Dr Sheng should each have taken a history which dealt not only with the situation of the patient in the immediate moment but also in the preceding period, particularly the preceding minutes or hours. His Honour said:

“108 ... This is obviously vital where there was (as here) overwhelming evidence, both objectively and in what was either told to relevant staff or noted in the records or both, that in the few hours before the plaintiff was brought into JHH by the police, he had suffered a very severe mental disturbance, of whatever character.”

179 The Judge understood Dr Phillips to have said, not only that he would have detained the plaintiff as a mentally disordered person but that he should have been so detained. In his Honour’s view, this opinion was plainly right. Adams J thought it was known – to a greater or lesser but sufficient extent – to Dr McHue and Dr Sheng that, in the immediately preceding twelve hours or so, the plaintiff had been violent or very violent and that this violence, raising the likelihood that he might inflict serious physical injury, was irrational. His Honour considered that this was or ought to have been known to Dr Nazarian, either because he should have made enquiries (whether of the plaintiff or Mr Allan Presland or otherwise) or because he should have been informed by the police escort form.

“110 ... Sufficient information was, however, available on the file for Dr Nazarian, at all events, to alert him to the risk that there had been some serious violence and disordered thinking exhibited in the previous twelve hours or so, which should, in turn, have alerted him to the need, nay the necessity, to ensure that he explored the apparently irrational elements of his history to see whether they were still present and whether they represented a risk of serious injury to the plaintiff or others.”

180 His Honour did not accept that it was improbable that Dr Nazarian would have got, at least, some very useful information from one or other or both of the plaintiff and Mr Allan Presland. Every other interlocutor of the plaintiff at about this time noted that he was keen and certainly compliant to requests to explain what had happened and remained calm when he did so. The judge thought that Dr Nazarian would have got such information with relative ease and the overwhelming likelihood is that it would have indicated that the plaintiff had, indeed, been acting with significant dangerousness shortly before he was taken into JHH and then transferred to JFH and was still so irrational as to constitute a danger to himself or others.

“110 ...If this conclusion be correct, it is obvious that there were ‘reasonable grounds’ within the meaning of s10 of the Act that required the plaintiff to be treated as a mentally disordered person and that Dr Nazarian was negligent in failing, in the circumstances as he knew or ought to have known them to be, to perceive that this was so. Thus, I consider that Dr Phillips is right when he says that ‘from Dr Sheng’s history there were adequate grounds to hold [the plaintiff] as a mentally disordered patient at least for twenty four hours’.”

181 His Honour had regard to Dr Phillips’ opinion, which did not appear to be controversial, that most mental illnesses are confined to a particular period of time, either once in a person’s lifetime or repeated episodes, although there are some illnesses, of which the classic example is chronic schizophrenia, where a patient tends to be symptomatic most, if not all, of the time. If there is a discrete episode then the person will be free of symptoms and then, perhaps, at a time of further stress, another episode will occur. Once a person has had a psychotic episode, however, that person is more likely to have a further episode than otherwise. Dr Phillips made the point in respect of the supposition that the plaintiff had merely suffered from a short episode of psychosis that, in all his years of practice, he had never seen a psychotic disorder that lasted less than twenty-four hours. Dr Phillips said that most psychotic episodes do not terminate suddenly. There will almost always be a prodromal phase at the beginning and diminishing phase at the end of a psychotic episode. Over a period of time, the symptoms will become intermittent, begin to fade and finally disappear. Dr Phillips said, in substance, that he was very sceptical that there had been a sudden termination of the plaintiff’s psychotic thinking. Assuming that there were psychotic features sometime after 2 am as noted by Dr Sheng, he would be surprised if the plaintiff had entirely shed his psychotic symptoms by the time he saw Dr Nazarian, although there may have been some attenuation in its intensity. Adams J said:

“112 ... Having regard to the history overall, including especially the reasons for his going to the police station and his bizarre thoughts as expressed to his brother Allan on his way back to the hospital, just before he spoke to Dr Nazarian, and then his increasingly disturbed thoughts relatively shortly after he left the hospital, I have little doubt that proper, even gentle, probing by Dr Nazarian would have led the plaintiff to exhibit significant disturbed thinking which, taken with the history, would have satisfied s10 of the Act. But even if this degree of certainty is unjustified, I consider that this would have been so to a high level of probability, well past the balance.”

182 His Honour agreed with Dr Phillips’ opinion that it was very important for Dr Nazarian to have established his own history from the patient and carry out his own mental state examination of him, to make an appropriate notation in relation to both and then draw his own conclusions with regard to diagnosis and further treatment and discharge. It was put to him that it was reasonable for Dr Nazarian to rely on Dr Sheng’s history and to work through it and seek to identify any points of departure but Dr Phillips said that that was not the preferred way to approach the question. Although he accepted that, if there is to be an alternative, painstakingly going through Dr Sheng’s history with the patient would have been a second best. As his Honour had pointed out, however, Dr Nazarian did not even do this. Adams J said:

“114 Taking only the material disclosed in the notes, Dr Phillips regarded the following as indicating that the plaintiff had wide-ranging and severe symptoms which were not transitory –

In Dr Sheng’s notes –

· The plaintiff having snapped

· The plaintiff starting to make threats

· Headbutting the security door

· Kicking Mr Blake’s fence down

· Trying to tear Mr Blake’s fence apart

· Thinking if he closed his eyes he would die

· Everyone looking like someone he knew

· Thinking he was dead and in a hearse

· Thinking he was being taken to the morgue

· The plaintiff threatened to kill the rats and Mr Blake’s family

· The auditory hallucinations: low voices sounding like his parents

Nurse Mazun’s notes –

· Bizarre delusional system regarding rats

· Battle between the devil and the good fella

· When a distant patient referred to his own sister the plaintiff felt uneasy and could not elaborate why

From other nursing notes –

· Allan Presland’s call about suicidal ideation

· The plaintiff was awake, praying at 2 am, afraid to go to sleep because he had seen the devil and would die if he closed his eyes.

115 To these matters should, of course, be added those of which Dr Sheng ought have been aware, namely the police account of what happened at Mr Blake’s house. This is material which also should have come to the attention of Dr Nazarian. It is true that both Dr Sheng and Mr Mazun somewhat qualified the significance of the references to “a delusional system” but, of course, Dr Nazarian was not aware of that. At all events, having regard to the material as a whole, I think that if Dr Sheng had been aware of the plaintiff’s earlier experiences, whether a “system” or not, the plaintiff undoubtedly had delusions about rats, and the connection with Mr Blake was indicative of a substantial risk of irrational further violence.

116 I mean no disrespect to the other doctors called by the plaintiff by not referring to their evidence in these reasons; it seems to me sufficient to state that, generally, their evidence supports Dr Phillips’ most crucial conclusions. It is not necessary for me to analyse the areas of difference. I regard them as insignificant for present purposes.”

The aftermath

183 After his arrest the plaintiff was taken to JHH for treatment of his physical injuries. He had multiple lacerations over his entire body with a large laceration to his skull. The wounds to his head, his right hand and both feet were sutured. He needed a blood transfusion. Violent behaviour recurred and it was necessary to sedate him. Eventually, he became orientated and cooperative whilst restrained and he was seen by Dr Vamos. He was then transferred to the psychiatric ward at Long Bay Gaol, where he remained for some five weeks. Adams J had no doubt that his sojourn in the hospital was traumatic, having regard to the forensic patients who were detained there, some of them very violent. The plaintiff said that he was threatened a couple of times. Although his brother came for a short visit, he was extremely angry and the plaintiff was very much alone and frightened. He was discharged to remand on 3 August 1995. The plaintiff was very afraid in the remand centre because he perceived it as a very dangerous place. On 10 July 1995, he went to Maitland Gaol for a court appearance. The plaintiff was transferred to Maitland Gaol on those occasions when he was required to attend court and would stay at the gaol for several weeks at a time. The conditions were filthy. The gaol was very crowded. He saw many bashings. He was visited by his father and on at least one occasion by his mother. He came to understand what had happened and then became very depressed and very ashamed.

184 After his acquittal and on becoming a forensic patient under the MHA, the plaintiff was detained at the prison hospital at the Long Bay Gaol for about eighteen months. He was in C ward for the first three months of this period and then transferred to A ward where the conditions were less harsh. He got a job doing maintenance which involved repairing the damage caused by the prisoners to the premises. He would also mow the lawns and keep the gardens. During this time he was unable to sleep and had bad headaches. On 26 November 1997, he was conditionally released and required to live in accommodation provided by the Salvation Army bridge programme. On 9 December 1997, he was discharged from A ward to Foster House also administered by the Salvation Army. On 25 March 1998, he was released from detention upon conditions and in May 2001 some of these conditions were varied. However, his Honour observed that the plaintiff lived under controls which most people would find both intrusive and demeaning. It was likely that he would continue to do so for the foreseeable future. His Honour found that the conditions had the effect of cutting him off from his parents and also his older sister, with whom he is very close and that the plaintiff felt, perhaps rightly, that his family was frightened of him. This was very distressing for the plaintiff.

185 Adams J considered what he referred to as the scope of the duty of care including causation and concluded that the plaintiff’s fatal attack on Ms Laws and the personal legal consequences which followed were both foreseeable and caused by the negligence of the defendants. He assessed general damages at $225,000 and the plaintiff’s past loss of income at $550 a week for the whole of the period less a period of six weeks (four weeks in hospital and a further two weeks for follow up attendances) and accepting that his income between February and 30 June 1998 was $4,700 and from 1 July 1998 to 15 March 1999 at a rate of $360. An amount of $4,000 was allowed in respect of vicissitudes over this period. The trial Judge observed that on 31 July 1998, the plaintiff qualified for a full electrician’s licence after completing a TAFE course. Since 15 March 1999, he had been in full-time employment as an electrician and did not claim for economic loss from that date. On the basis of what his Honour said and as I have already mentioned, judgment was entered in the sum of $369,300.

Adams J’s reasons for judgment

186 Adams J noted that the defendants did not suggest that Dr Nazarian, and through him vicariously Hunter, did not owe to the plaintiff a duty to exercise reasonable care and skill in the provision of professional advice and treatment. His Honour cited in part from the following passage from the majority judgment in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483:

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment ... The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill ...”

In that case the skill was that of an ophthalmic surgeon specialising in corneal and anterior segment surgery.

187 The defendants argued that the question in issue was the nature and extent of the duty and whether the scope of the duty of care owed by the defendants extended to guard against the risk that the plaintiff would suffer harm as a result of committing a homicide. In other words, was the risk that the plaintiff would suffer harm as a result of committing a homicide a reasonably foreseeable risk. Adams J said that this formulation did not correctly state the relevant question. The relevant risk was that the plaintiff, without appropriate treatment (that is detention), might suffer harm by seriously injuring himself or another.

188 This formulation treated detention as part of treatment by reference to phrases in the Act such as “care, treatment and control” which, as I have said, expressed a theme which was central to those parts of the MHA with which the appeal was concerned. But each of the words ”care”, “treatment” and “control” expressed a separate and distinguishable form of action. None necessarily involved either of the other two forms of action. Section 18 enabled a medical superintendent to cause a patient to be detained. That might be done for the purpose of caring for, or treating, or controlling the patient but again it was a separate form of action. As was emphasised by Mr Walker SC, who appeared for the plaintiff on the appeal, the question was whether Dr Nazarian with the special skill and competence of a psychiatrist registrar observed that standard of care of the ordinary skilled person exercising and professing to have that special skill in failing to cause the plaintiff to be detained in the hospital under Pt 2 of the Act; Rogers v Whitaker at 487. As Adams J said, clearly enough the likelihood of the plaintiff seriously injuring himself or another was something that Dr Nazarian, in the circumstances, had to consider.

189 Adams J quoted from the judgment of Kirby J in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 at 480:

“Although a reasonably foreseeable risk may indeed give rise to a duty, it is the enquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness (Phillis v Daly (1988) 15 NSWLR 65 at 73 per Mahoney JA)”.

190 Adams J held that had Dr Nazarian properly assessed the plaintiff, he would (and certainly should) have appreciated that there was a substantial risk that if the plaintiff was released, he might well seriously injure himself or some other person. Releasing the plaintiff into the care of his brother was completely inappropriate, even if the doctor had given his brother guidance as to how the plaintiff’s care could be managed, and amounted to an abdication of his responsibility as a doctor. While in this context his Honour adhered to detention as a means of treatment, in substance he was saying that the power to cause the patient to be detained in the hospital enabled Dr Nazarian to obviate or reduce this immediate risk.

191 As to breach of duty, his Honour quoted the well-known passage from the judgment of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8 and put aside criticism of the plaintiff’s experts for placing too much emphasis on the circumstance that the plaintiff killed Ms Laws relatively soon after he was discharged from the hospital. Adams J said:

“158 ... My judgment of the matter has been confined, however, to both the material that was actually before Dr Nazarian, then the material that should have been before him, had the records of the hospital been complete, namely, had they contained the police escort form, and the information gathered at JHH and, thirdly, what Dr Nazarian would probably have gathered if he had conducted his assessment of the plaintiff in an appropriate way. In respect of each of these scenarios, I have formed the view that, had Dr Nazarian dealt with the plaintiff as an ordinary skilled psychiatrist according to the standard of reasonable care and skill required of such a specialist, he should have detained the plaintiff either as a mentally ill person or as a mentally disordered person. Moreover, had the plaintiff been detained, even as a mentally disordered person and was not found to be a mentally ill person, I am satisfied that it would have been most unlikely that he would have caused serious physical injury to any person after appropriate treatment. Obversely, no psychiatrist of ordinary skill, applying the standard of reasonable care and skill required of such a specialist, would have failed to detain the plaintiff. Even assuming that there was some slightly lesser standard applicable to Dr Nazarian as a third year psychiatric registrar, this conclusion would be the same.”

192 The defendants relied upon Gala v Preston [1991] HCA 18; (1991) 172 CLR 243, a case in which a motor car passenger injured as a result of the driver’s carelessness in driving a car which they had earlier stolen and were unlawfully using at the time of the accident was held in the High Court not entitled to recover damages from the driver because it was said, at 254, that it was difficult to see how in the circumstances a relationship of proximity such as would generate a duty of care could be sustained. At 264 Brennan J referred to Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397 saying that, as he read the judgments of Barwick CJ, Windeyer and Owen JJ, their Honours agreed upon the principle:

“that the joint participation in the commission of the offence in that case precluded either of the participants from recovering from the other damages for injuries received in the performance of the offence. ... The proposition was limited, as it had to be, to the absence of a duty of care with respect to the conduct which caused the damage in suit, being conduct ‘in the performance of the offence’, or, to use the language of Windeyer J, ‘in the actual performance of the criminal act’.”

After referring also to Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438 and Progress and Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651 Brennan J said at 270:

“None of the approaches thus far adopted in this Court is wholly satisfactory. The unqualified Smith v Jenkins principle at least furnishes a criterion, but it is too Draconian in its application. If some other approach is to be adopted, the starting point must be the reason why a plaintiff’s participation in illegal conduct should affect the arising of a duty of care. In Jackson v Harrison, Murphy J, recognizing that ‘denial of recovery is a question of judicial policy’ (or, as I should prefer to put it, a question of the policy of the law), thought that recovery should be denied on the ground of illegality ‘only where denial is statutory policy’ and that, those (rare) cases apart, ‘recovery should be denied only where there is a voluntary assumption of the risk’. That view is at one extreme; the unqualified principle of Smith v Jenkins is at the other.”

193 Adams J in his judgment quoted as follows from the judgment of Brennan J at 273:

“The principle that there is no duty of care where the admission of the duty would condone a breach of the criminal law is, regrettably but inevitably, one that calls for a classification of the laws creating offences according to the effect which admission of the duty would have on their normative influence. ... To admit a duty of care owed by one offender to a co-offender in the unlawful use of a vehicle would be to assure the co-offender of compensation for damage to himself occurring in the course of conduct which damages the interests of the person from whose possession the car is taken and carries the risk of damage to others. The normative influence of s408A [of The Criminal Code (Q) which made such use unlawful] would be destroyed by admitting a duty of care. Applying the principle stated, the duty of care must be denied – a result in accord with the decision in Smith v Jenkins.”

194 Adams J observed that the reliance by the defendants on Gala v Preston overlooked the crucial fact that the plaintiff was acquitted of the unlawful killing of Ms Laws. Further, it was obvious that there was no moral turpitude involved in what the plaintiff did, given his psychotic state of mind at the time. His Honour quoted from Clunis v Camden & Islington Health Authority [1998] QB 978. That was a case about a plaintiff who had a history of mental disorder, was discharged from hospital after having been detained under mental health legislation and was subject to after care by the defendant health authority but failed to attend appointments arranged and in a sudden and unprovoked attack killed a man by shooting him. The plaintiff pleaded guilty to manslaughter on the grounds of diminished responsibility and was ordered to be detained in a secure hospital. He brought an action against the defendant claiming he had suffered injury, loss and damage and the defendant was in breach of the common law duty of care. The Court of Appeal held that the rule of public policy that a plaintiff should not be able to rely on his own criminal or immoral act was not confined to particular causes of action; the public policy only required a court to deny its aid to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and sought to rely on the illegal act in putting forward his case; see per Beldam LJ, giving the judgment of the Court at 987. At 989 his Lordship said:

“In the present case the plaintiff has been convicted of a serious criminal offence. In such a case public policy would in our judgment preclude the court from entertaining the plaintiff’s claim unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong. The offence of murder was reduced to one of manslaughter by reason of the plaintiff’s mental disorder but his mental state did not justify a verdict of not guilty by reason of insanity. Consequently, though his responsibility for killing Mr Zito is diminished, he must be taken to have known what he was doing and that it was wrong. A plea of diminished responsibility accepts that the accused’s mental responsibility is substantially impaired but it does not remove liability for his criminal act. We do not consider that in such a case a court can or should go behind the conviction and, even if it could, we do not see in the medical report attached to the statement of claim any statement which would justify the court taking the view that this plaintiff had no responsibility for the serious crime to which he pleaded guilty.”

An application for leave to appeal to the House of Lords was dismissed.

195 Adams J referred to the judgment of Diplock LJ in Hardy v Motor Insurers’ Bureau [1964] 2 QB 745 at 767. The issue was whether the liability of a person to pay damages for the personal injuries he caused to the plaintiff by his criminal act was a liability against which he was required to be insured under the Road Traffic Act. His Lordship was concerned with a contractual context and in that context he said that the rule of law ex turpi causa non oritur actio was concerned not specifically with the lawfulness of contracts but generally with the enforcement of rights by the courts, whether or not such rights arise under contract. At 767 Diplock LJ said:

“All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right ... which is regarded by the court as sufficiently anti-social to justify the court’s refusing to enforce that right.”

196 In Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18 at 35 Brennan J cited this passage in the judgment of Diplock LJ saying:

“The broad policy that private rights are not enforceable when their enforcement is injurious to the public is not a charter for judicial idiosyncrasy in refusing to enforce private rights. The policy corresponds with the general principle stated in Chettiar v Chettiar [1962] UKPC 1; [1962] AC 294: just as the court refuses to lend its aid to one who founds his cause of action upon an immoral or an illegal act, so the court will not lend its aid to one who seeks it in order to effect an immoral or illegal purpose.”

197 Adams J acknowledged that in a sense the plaintiff’s acts were intentional and voluntary and quoted from March v E & MH Stramare [1991] HCA 12; (1991) 171 CLR 506 per McHugh J at 536:

“When a defendant has a duty to a plaintiff to prevent the occurrence of damage of the kind which occurred and the defendant’s breach of duty was a cause of that damage, the damage will be held to be within the scope of the risk which the defendant was required to avoid unless the plaintiff sustained the damage intentionally (or, perhaps, recklessly) or the damage occurred in a manner which could not reasonably be foreseen in a general way.”

198 Adams J referred back to what had been said by Mason CJ at 517-8, namely:

“The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff’s injuries are not a consequence of the defendant’s negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Limited (1970) 92 WN (NSW) 1070. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content.

It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening action: (Chapman v Hearse (1961) 106 CLR at 122; M’Kew (1970) SC (HL) at 25) Caterson v Commissioner of Railways [1973] HCA 12; (1973) 128 CLR 99 at 110. But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant’s negligence.”

199 The trial Judge regarded Caterson as instructive. The plaintiff had entered a train standing at a platform when the train started to move without warning. The plaintiff wished to leave the train and jumped out. He fell between the train and platform and suffered serious injuries. The New South Wales Court of Appeal set aside a jury verdict in favour of the plaintiff. The High Court upheld an appeal from that decision. At 102 Barwick CJ adopted the language of Lord Reid in Czarnikow Limited v Koufos [1969] 1 AC 350 at 385-6:

“ ‘The modern rule of tort is ...the defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it’, if by ‘liable to happen’ is meant, as I apprehend Lord Reid intended it to mean, ‘not unlikely to happen’.”

200 At 110 Gibbs J referred to Summers v Salford Corporation [1943] AC 283 at 296 where Lord Wright said that:

“if a plaintiff suffers damage by the defendant’s default, the damage may be directly due to that default and recoverable even though the accident and damage would not have happened but for some action of the plaintiff, so long as his action was in the ordinary course of things and, at least generally speaking, was not blameworthy.”

201 Gibbs J went on to refer to Haynes v Harwood [1935] 1 KB 146 at 156. In that case, a policeman was injured by the defendant’s runaway horses with a van attached. The defendant’s servant was guilty of negligence in leaving the horses unattended in a busy street. At 156 Greer LJ said:

“If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole question is whether or not, to use the words of the leading case, Hadley v Baxendale (1854) 9 Ex 341, the accident can be said to be ‘the natural and probable result’ of the breach of duty. If it is the very thing which ought to be anticipated by a man leaving his horses, or one of the things likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving that the damage is the result of the wrongful act.”

202 Adams J said:

“164 In this case, I have no doubt that the likelihood that the plaintiff might cause another person serious physical injury was, indeed, foreseeable. In the circumstances, his doing so was both “in the ordinary course of things” and “the very kind of thing” that might well happen as a result of the defendants’ negligent discharge of him from the hospital. Of course, I use ‘ordinary’ not to describe what the plaintiff did but the unsurprising (though shocking) course of events.”

203 Dealing with causation, his Honour referred to Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at 244 [27] where McHugh J said:

“Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases (‘increases’ in this context includes ‘creates’) the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring.”

204 Adams J posed the test proposed by McHugh J at 251 [46], as, Adams J thought, the defendants would wish to have it phrased: “Did the defendants’ failure to detain the plaintiff cause or materially contribute to him killing Ms Laws?”. To his mind the answer had to be yes and his Honour concluded that indeed, it would be an offence to commonsense to answer this question otherwise.

205 The trial Judge referred to Reeves v The Commissioner of Police of the Metropolis [1999] UKHL 35; [2000] 1 AC 360 where a claimant committed suicide whilst in a cell in the police station. His de facto wife sued the Commissioner of Police for negligently causing her husband’s death. The House of Lords accepted that the police were in breach of their duty of care to the prisoner, a known suicide risk. Lord Hoffman pointed out that there was a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. In that context his Lordship said at 368:

“People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself.” (Emphasis added)

206 Adams J went on:

“This plaintiff was not of “sound understanding” either at the hospital before his discharge or later when he killed Ms Laws. I do not think that there is a material difference for the purposes of considering causation between self harm and causing serious physical injury to another even though, in the latter case, the injury for which the plaintiff seeks compensation comprises the legal and personal consequences of having committed such an act.”

207 His Honour referred to AMP v RTA [2001] NSWCA 186; (2001) Aust Torts Reports 81-619. In this case an employee who had been injured in a work accident instituted a common law claim out of time. His cross-examination, on an application for an extension of the limitation period, caused him stress. As a result, he developed depression and committed suicide eight days after the hearing. The question was whether his widow was entitled to damages for nervous shock. Spigelman CJ at 67,219 [29] cited the observations of McHugh J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 428:

“... the common law concept of commonsense causations accepts that the chain of causation between breach and damage is broken for the purpose of attributing legal responsibility for that damage if there has been an intrusion of ‘a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic’.”

208 The quotation came from the observations of Lord Wright in the Oropesa [1943] P 32 at 39. The Chief Justice continued at [30]:

“Actions involving the deliberate infliction of self harm should generally be regarded as ‘independent and unreasonable’ [a quotation from the judgment of Mason CJ in March v Stramare at 517] and as a break in the sequence of events that may otherwise constitute a causal chain for the purpose of attributing legal responsibility.”

The Chief Justice concluded that the conduct of the deceased following the legal proceedings could not be regarded as a response which was causally related to the original injury, so that the causal chain was broken and the widow’s claim must fail. Heydon JA (as his Honour then was) remarked at 67,245 [153] that “developing depression and committing suicide were events which were not only unreasonable, but were independent of the defendant’s conduct”.

209 I interpolate that in Holdlen Pty Ltd v Walsh [2000] NSWCA 87; (2000) 19 NSWCCR 629, an appeal concerned with a claim under the Workers Compensation Act 1987 by a child of a worker who had been injured at work and then committed suicide, Giles JA, in a decision with which Meagher and Heydon JJA agreed, discussed the test of whether a worker was “suffering from mental derangement sufficient to dethrone his power of volition”. Such a destruction of volition may cause the suicide to be referable to what caused the destruction of the volition, such as an accident, even though there is no insanity in the legal sense. The test of dethronement of the power of volition does not necessarily turn on insanity. Giles JA said at 639 [37]: “The law recognises in contexts not involving insanity that the will may be overborne or subjected to such influences that, although an act is deliberate, it is not regarded as the actor’s intentional act.” See also Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342.

210 Adams J said:

“169 In this case, the plaintiff was mentally ill or mentally disordered and it was the duty of the defendants to detain him and to care for him so that he was not a risk to himself or to others. The form of his illness or mental condition made him susceptible both to harming himself and seriously injuring others. I see no difference in substance between a bodily illness not treated by appropriate medicine or surgical procedure and an illness or irrational condition of the mind not treated by a remedy reposed in the defendants to be used for his benefit in precisely the circumstances that occurred here. The direct and foreseeable consequence of the violence he then committed was his ensuing incarceration. The infliction of violence by the plaintiff on Ms Laws was unwitting in the relevant sense. Although it was not reasonable, it was that very lack of rationality which permitted, indeed, required, the defendants to detain him and, in the ordinary course of things the infliction of very serious injury or death was the ‘very kind of thing likely to happen as a result’ of his discharge. I do not see that any considerations of commonsense, logic or policy should operate to break the chain of causation. Indeed, in my view, breaking the chain of causation because the plaintiff acted in a way which was foreseeable and in circumstances which his detention should have prevented, because of the very risk that what he did might occur – when associated either with mental illness or irrationality – would be both arbitrary and capricious. The plaintiff would not have attacked Ms Laws but for his negligent discharge from the hospital, which was required to treat him for the very condition which led to the attack and the connection between his discharge and the attack was substantial. Although it is true that nothing at the hospital caused his illness or mental disorder, the ‘effective’ or ‘substantial’ cause of the attack on Ms Laws was, in all the circumstances, his being discharged from the hospital.”

211 Spigelman CJ in AMP v RTA at 67,218 [22] referred to Haber v Walker (1963) VR 339 and the following passage from the judgment of Smith J at 358:

“In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless that harm would not have occurred without the act or omission having previously occurred with such of its incidents as rendered it wrongful. Exceptions to this first principle are narrowly confined. Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connection. And, finally, the intervening occurrence if it is to be sufficient to sever the connection, must ordinarily be either –

(a) human action that is properly to be regarded as voluntary, or

(b) a causally independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence...”

212 Further, in Haber v Walker, Smith J stated that the question whether “the deceased’s conduct could be categorised as a ‘voluntary act’ could be asked ‘in terms of whether or not’ the actor should have exercised a free choice”. Adams J remarked:

“In the present case I do not think that the plaintiff’s attack on Ms Laws could be described as a ‘voluntary’ act in the sense that he was exercising a ‘free choice’. He was acting – to put it briefly – under the compulsion of his overwhelming delusions and was not, to my mind, acting voluntarily in the relevant sense although he was acting voluntarily for the purposes of the criminal law.”

To adopt the language of Giles JA, which I have quoted, the plaintiff’s will was overborne or subjected to such influences that, although his act was deliberate, it was not voluntary.

213 For the reasons he gave, Adams J concluded that the plaintiff’s fatal attack on Ms Laws and the personal and legal consequences which followed were both foreseeable and caused by the negligence of the defendants.

Appeal

214 The defendants, Hunter and Dr Nazarian, appealed on forty-eight grounds. Four of those under the heading “Conduct of the trial”, namely grounds 43 to 46 were not pressed. In their written submissions, the defendants divided the remaining grounds of appeal into the following headings:

Common law duty of care/statutory duty (grounds 1 – 4)

Breach of duty (grounds 5-9)

Causation (grounds 10-15)

Specific findings:

· The evidence of Mr Blake, his statement and the appellants’ knowledge (grounds 16-20)

· The evidence of Angela Jeffs (grounds 21-24)

· Police escort form (grounds 25-29)

Dr Nazarian:

· Refrained from examining and obtaining information (grounds 30-33)

Defendants’ experts (grounds 34-38)

Allan Presland (grounds 39-42)

General damages (grounds 47-48)

The appellants sought to have the appeal allowed with costs, the verdict and judgment below set aside and a verdict and judgment entered for the appellants against the respondent.

215 In broad terms, as argued, the submissions on appeal were directed to the nature and content of the duty of care owed by the defendants to patients who presented for psychiatric assessment and treatment; the appropriate test for determining whether a breach of any such duty had occurred; the interaction between the common law duty and the MHA and the role it played in the formulation of any common law duty; breach of duty and causation. As to the findings of fact that Adams J made, the appellants, in particular, challenged the trial Judge’s findings about the material available to Dr Nazarian to be taken into account at the time that he assessed the plaintiff and his findings about whether the plaintiff and Mr Allan Presland, or either of them, wished the plaintiff to remain as an informal patient at JFH. The appellants submitted that the trial Judge erred in failing to find that Mr Allan Presland demanded, or alternatively requested, in a forceful manner the release of the plaintiff. The appellants also challenged his Honour’s findings about the contents of the police escort form. The challenge to many of the findings of fact fed into the appellants’ submissions that Adams J wrongly rejected the opinion of the defendants’ expert Dr Milton and failed to attach significance to the divergence of opinion between the various medico-legal experts. The appellants submitted that the award of general damages was manifestly excessive and not supported by adequate reasons.

Duty of care

216 What may, in some respects, be regarded as an unconditioned power to discharge an informal patient, bearing in mind, for example s18(a) (though compare s17), led Mr Walker to emphasise that the plaintiff alleged general negligence. The plaintiff pleaded that by reason of his admission to JFH as an informal patient, there arose on the part of the defendants a duty of care to exercise, in respect of his assessment, management and treatment, the care and skill to be expected of a specialist psychiatric hospital and of a psychiatrist. However, the relevant power to be exercised in due care for the patient, while to be considered as part of the necessary care, treatment or control of the patient for the patient’s own protection from serious physical harm or for the protection of others from serious physical harm, was subject to a statutory constraint designed to ensure that the patient received the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given. The facts of this case were such that no question turned upon any difficulty in determining the balance. According to the trial Judge, such was the negligence of Dr Nazarian that he was never able properly to determine whether or not the plaintiff was a mentally ill person or a mentally disordered person within the meaning of the MHA. Dr Nazarian, who was acting as medical superintendent, had the conditioned power on the morning of 4 July 1995 to detain the plaintiff in JFH pursuant to s18(b) of the MHA. Whether Hunter’s negligence or the negligence of Dr Nazarian enabled the plaintiff to recover damages for that negligence required close consideration of the circumstances in which Dr Nazarian was called upon to exercise the statutory power to detain.

217 Hunter and Dr Nazarian accepted that each owed the plaintiff a general duty of care at common law of the nature pleaded. That concession inevitably recognised that if the plaintiff should have been detained because he was mentally ill or mentally disordered and there were reasonable grounds for believing that his detention was necessary for the protection of others from serious harm, the defendants could scarcely argue that they could not have foreseen the risk of injury of the kind which in fact occurred; compare Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 578 [87]. Moreover, it is obvious that a person charged with the care of another person who is mentally ill or mentally disordered to a degree that he may cause serious harm to others owes a duty to the patient to take reasonable care to ensure that the patient does not do serious harm to others. Absent the availability under statute of power to detain the patient what can reasonably be done to achieve this object may be limited to advising the acceptance of confinement or medication or other forms of care. But that at least would be within the scope of the duty. No one could doubt the duty of a medical practitioner to a patient suffering from a contagious disease to advise the patient, in the patient’s own interest, to take steps, so far as reasonably possible, to avoid spreading it to others.

Causation and public policy

218 In March v Stramare at 515 Mason CJ said:

“The common law tradition is that what was the cause of a particular occurrence is a question of fact which ‘must be determined by applying common sense to the facts of each particular case’, in the words of Lord Reid: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 681.”

His Honour referred to English decisions and the High Court’s decision in Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268. The Chief Justice went on at 515-6:

“It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the ‘effective cause’ of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense.

Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact – to be determined by the application of the ‘but for’ test – and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see, eg Fleming, Law of Torts, 7th ed (1987), pp 172-173; Hart and Honore, Causation in the Law, 2nd ed (1985), p 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p 173. However, this approach to the issue of causation (a) places rather too much weight on the ‘but for’ test to the exclusion of the ‘common sense’ approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn at 277 ‘it is all ultimately a matter of common sense’ and ‘[i]n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula’ at 278.

That said, the ‘but for’ test, applied as a negative criterion of causation, has an important role to play in the resolution of the question.”

219 At 516 the Chief Justice said:

“The commentators acknowledge that the ‘but for’ test must be applied subject to certain qualifications. Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater: see Hart and Honore, at 122. As Windeyer J observed in Faulkner v Keffalinos (1970) 45 ALJR 80 at 86:

‘But for the first accident, the [plaintiff] might still have been employed by the [defendants], and therefore not where he was when the second accident happened: but lawyers must eschew this kind of ‘but for’ or sine qua non reasoning about cause and consequence.’

The ‘but for’ test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The application of the test ‘gives the result, contrary to common sense, that neither is a cause’: Winfield and Jolowicz on Tort, 13th ed (1989), p134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury: see, eg, Chapman v Hearse; Baker v Willoughby [1969] UKHL 8; [1970] AC 467; McGhee v National Coal Board; M’Kew [to which the Chief Justice referred in some detail]. The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.”

Toohey and Gaudron JJ agreed with the Chief Justice’s reasons. See also per Deane J at 522-4.

220 In Gray v Barr [1971] 2 QB 554, the defendant, armed with a loaded shotgun, went in search of his wife in her lover’s farmhouse. When there he intentionally fired one shot into the ceiling to frighten the lover. There was a grappling and there was a second shot which killed the lover. The defendant was acquitted of murder and manslaughter. The plaintiffs, the father and widow of the deceased, brought proceedings against the husband claiming damages. The husband sought an indemnity from his insurers under his policy. It was held that it would be contrary to public policy to allow him to recover an indemnity for the consequences of his own act in threatening the lover with a loaded gun which amounted to manslaughter. Denning MR said at 569:

“In my opinion, therefore, Mr Barr cannot recover on the policy. It was not an ‘accident’, and also he is defeated by ‘public policy’. It will be noticed by the observant that the two questions raise one and the same point of ‘causation’. If the death of Mr Gray was caused by the deliberate act of Mr Barr in going up the stairs with a loaded gun, it was no accident, and it would, in any case, be against public policy to allow him to recover indemnity for the consequences of it.”

221 At 581-2 Salmon LJ said:

“Although public policy is rightly regarded as an unruly steed which should be cautiously ridden, I am confident that public policy undoubtedly requires that no one who threatens unlawful violence with a loaded gun should be allowed to enforce a claim for indemnity against any liability he may incur as a result of having so acted. I do not intend to lay down any wider proposition. In particular, I am not deciding that a man who has committed manslaughter would, in any circumstances, be prevented from enforcing a contract of indemnity in respect of any liability he may have incurred for causing death or from inheriting under a will or upon the intestacy of anyone whom he has killed.

....

The cases of Tinline [1921] 3 KB 327 and James [1927] 2 KB 311, in which it was held that persons convicted of manslaughter for reckless and drunken driving could nevertheless recover indemnity from their insurers, were doubted in Haseldine v Hosken [1933] 1 KB 822 but approved by this court in Marles v Philip Trant & Sons Ltd [1954] 1 QB 29. It seems now to be settled law that a motorist can rely on his policy of insurance to indemnify him in respect of his liability for any injuries which he has caused otherwise than on purpose: Hardy v Motor Insurers’ Bureau [1964] 2 QB 745. These road traffic cases may be sui generis. In any event, although motor cars have sometimes been called lethal weapons, these cases are not in my view akin to the cases in which injuries are caused in the course of unlawfully threatening a man with a loaded gun. Public policy is not static. Even if the crime of suicide had not been abolished by statute, it may be that today Beresford’s case [1938] AC 586 would have been differently decided. In any event, threatening violence with a loaded gun would, I am sure, now be generally regarded as much more shocking and necessary to be deterred than what the unfortunate Major Rowlandson did in Beresford’s case. I am confident that, in any civilised society, public policy requires that anyone who inflicts injuries in the course of such an act shall not be allowed to use the courts of justice for the purpose of enforcing any contract of indemnity in respect of his liability in damages for causing injury by accident.”

222 In Meah v McCreamer (No 1) [1985] 1 All ER 367, Woolf J found that the plaintiff, Meah, had suffered severe injuries including severe brain damage, in a traffic accident on 9 August 1978. As a result his personality had changed, he had become aggressive, violent and dangerous and attacked a series of women, two of whom were plaintiffs in separate proceedings against him. (W v Meah and D v Meah [1986] 1 All ER 935). In consequence of some of these attacks, the plaintiff had been sentenced to life imprisonment. Woolf J held that the disinhibiting effects of brain damage sustained in the motor vehicle accident entitled the plaintiff to recover from the driver of the vehicle, in which he was a passenger when he was injured, damages for the life imprisonment imposed upon him for the brutal rapes committed two years later.

223 The question in Meah v McCreamer (No 2) [1986] 1 All ER 943 was whether Meah could recover from the driver or from the driver’s insurers damages he was ordered to pay to his two victims. Woolf J posed the question at 945 “Are the damages that the plaintiff has to pay to his victim so remote that, although they are a consequence of the accident, they are not recoverable at law?” At 950, Woolf J came to consider the argument that it would be contrary to public policy that the plaintiff should be indemnified for the consequences of his crime. He referred to Gray v Barr. On like grounds, Woolf J held that in Meah v McCreamer (No 2) the plaintiff was not entitled to be indemnified for his criminal attacks on the two ladies concerned; 951.

224 In State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500, this Court considered a claim by a worker injured in a workplace accident for damages said to have resulted, as the trial judge found, from the inducement of the plaintiff into the criminal enterprise of cultivating Indian hemp by his impecuniosity, the result of the accident. Samuels JA, with whose judgment Handley JA agreed, (Kirby P dissented), had doubts as to whether, as a purely factual matter, the impecuniosity resulting from the respondent’s disability was the true reason for his decision to grow Indian hemp. At 513, Samuels JA said that it was clear that the trial Judge determined the question of causation by application of the undemanding “but for” test. His Honour said:

“Following March, as I have indicated, this is an incorrect approach. Causation is as much a normative question as it is a factual one. It seems to me that the application of the ‘but for’ test, tempered by considerations of policy, lead to the result that the respondent’s crime cannot be said to have been caused by the appellant’s negligence.

225 His Honour observed that there was no doubt that the respondent pleaded guilty to charges of cultivating and supplying Indian hemp and that he was punished in accordance with the criminal law. “Ex hypothesi, the respondent was found by a court of law to have voluntarily and intentionally committed the criminal acts.” His Honour referred to Meah v McCreamer (No 1) and said at 514:

“But this decision has been roundly condemned. EK Banakas has said of the case:

‘...Although it is morally irrational to punish a person unable to account for his actions, it is even less rational to compensate such a person for his punishment following his unchallenged conviction for a mens rea offence; if the conviction stands, punishment is a lawful injury, if not, there should be no punishment at all and no injury of the kind compensated in this case. Tort law has enough on its plate without have to play criminal law’s conscience; besides, if lawful injury, inflicted by the courts themselves, starts being compensated in negligence, where will it end?’

‘Tort Damages and the Decline of Fault Liability: Plato Overruled, But Full Marks to Aristotle!’ [1985] Cambridge Law Journal 195 at 197.”

226 Samuels JA continued at 514-5:

“The potentially unlimited scope of the holding in Meah may explain the decision of Woolf J in Meah v McCreamer (No 2). In that case Woolf J held that the plaintiff was not entitled to recover an indemnity from the defendant in relation to compensation for trespass awarded by his Lordship to two victims of the plaintiff’s crimes in W v Meah [1986] 1 All ER 935. His Lordship declined to allow the plaintiff to recover because, in his view, the damage was too remote and because it would be against public policy to indemnify him for the consequences of his crimes against others.

In my respectful opinion, Meah was wrongly decided. If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute. Hence, the application of the simple ‘but for’ test to determine causation would be singularly inappropriate in this case. In all the circumstances, it would be quite unreal to find that the appellant caused the respondent to engage in criminal conduct.

This is not a case like Grey v Simpson (Court of Appeal, 3 April 1978, unreported). In that case a physician’s negligent failure to treat the plaintiff’s severe pain resulted in psychological problems that led ultimately to the plaintiff becoming addicted to heroin. This Court held that the plaintiff was entitled to recover damages for the addiction. It is true that Samuels JA said (at 9):

‘Once a detriment for which recovery is claimed is seen to be causally linked to the breach of duty and is of a kind which the defendant ought reasonably to have foreseen, there is no general principle which denies recovery because the detriment is in some way connected with anti-social or even unlawful activity. Mr Brownie argued that the plaintiff’s use of heroin and his trafficking in the drug, of which there was some evidence, were illegal acts of conscious volition and could not be the subject of compensation. On one view of course they were deliberate and conscious acts. But the plaintiff is not to be compensated for illegal activity as such but, if he is entitled at all, for the adverse consequences of activities, causatively linked to the breach of duty and foreseeable as a not unlikely result of it.’

But in that case, the plaintiff was never judged by a court of law to be guilty of a crime, and punished for it.

It is true that in the present case the learned trial judge did not, as in Meah, find that the respondent was entitled to compensation for loss of liberty resulting from imprisonment, or for lost wages during incarceration, or for any loss in post release earning capacity resulting from his conviction and imprisonment. Rather, what he did was to refuse to treat the conviction and imprisonment of the appellant as a vicissitude of life, for want of a better term, which had crystallised before the date of the hearing, and which reduced the notional economic loss which could be attributed to the appellant’s negligence: cf Faulkner v Keffalinos (1970) 45 ALJR 80 at 85, 88. But in point of principle, I cannot see that there is a relevant distinction between the two sorts of case. If one cannot get ‘direct’ compensation for the non-economic or economic loss resulting from imprisonment, one should not be able to receive ‘indirect’ compensation for lost earning capacity after imprisonment by treating the fact of imprisonment as irrelevant to the assessment of economic loss.”

227 Thereafter, in referring to several cases Samuels JA stressed the rational and voluntary decisions of the plaintiffs which led to criminal conduct, for the consequences of which compensation was sought from defendants. At 517 Samuels JA said:

“To my mind, a defendant should not be held responsible for the losses a plaintiff sustains that result from a rational and voluntary decision to engage in criminal activity. Such losses, to echo the words of Chapman, fall outside the limits for which the wrongdoer should be held responsible. There was no suggestion that the respondent’s criminal conduct in the present case was not based upon voluntary and rational decisions. Indeed, his conviction and sentence for the crimes in question necessarily proceed upon the hypothesis that his conduct was so based. Moreover, in cross-examination in this case he said that he had entered into an arrangement with others whereby ‘if it went off all right I would get some money at the end and if it didn’t, they would look after me if I went to jail [sic], if I went to court’. Accordingly, he was fully cognisant of the consequences of his conduct. The criminal conduct and its consequences were therefore not reasonably foreseeable.”

228 Although Kirby P dissented, he did so largely because he found that there was no single view in the Australian community concerning the moral disapprobation of the respondent’s conduct in cultivating Indian hemp and contrasted Woolf J’s decision in Meah which concerned “brutal rapes which everyone would condemn”; p505.

229 Kirkham v Chief Constable of Manchester [1990] 2 QB 283 concerned the husband of a plaintiff who committed suicide while in custody. His widow sued the Chief Constable of the Greater Manchester Police for the failure of the police, who knew that the deceased was a suicide risk and that he had made recent attempts to commit suicide, to communicate that information to the prison authorities. The widow’s action was as administratrix of the deceased’s estate claiming damages in negligence for the benefit of his estate under the Fatal Accidents Act 1976. The trial judge held the police negligent and gave judgment for the plaintiff. The Chief Constable appealed. In dealing with a defence founded on the dictum ex turpi causa non oritur actio, Lloyd LJ at 292 referred to the judgment of Lord Denning MR in Hyde v Tameside Area Health Authority, English Court of Appeal (Civil Division) Transcript No 130 of 1981, a case concerning a plaintiff who had made an unsuccessful suicide attempt and brought an action for damages against the health authority alleging negligence on the part of the hospital staff. Lord Denning in a passage with which Lloyd LJ disagreed referred to the fact that suicide was no longer a crime, and continued:

“But is it still unlawful. It is contrary to ecclesiastical law which was, and is still, part of the general law of England: see Mackonochie v Lord Penzance (1881) 6 App Cas 424 at 426, per Lord Blackburn. The suicide’s body was not buried in the churchyard with Christian rites. You will remember the gravediggers’ scene in Hamlet, V.i.1: ‘Is she to be buried in Christian burial that wilfully seeks her own salvation?’ I know this all sounds very out of date: but it has a useful lesson for us in modern times. I feel it is most unfitting that the personal representatives of a suicide should be able to claim damages in respect of his death. At any rate, when he succeeds in killing himself. And I do not see why he should be in any better position when he does not succeed. By his act – in self-inflicting this grievous injury – he has made himself a burden on the whole community. Our hospital services and our social welfare services have done, and will do, all they can to help him and his family – in the grievous injury that he has inflicted on himself and on them. But I see no justification whatever in his being awarded, in addition, the huge sum of £200,000 – because he failed in his attempt. Such a sum will have to be raised, in the long run, by society itself – a sum which it cannot well afford. The policy of law should be to discourage these actions. I would disallow them altogether – at the outset – rather than burden the community with them. Especially when, as this experience shows, they all fail in the end. At any rate, all failed before the trial judges until this one – and this one now fails before us.”

230 Lloyd LJ demonstrated that since, in Hyde, there had been no argument on the application of public policy or the maxim, the Court had not been referred to several previous cases. Lloyd LJ said at 292:

“I accept of course that the ecclesiastical law is part of the law of England. But I would not for that reason refuse all relief in the common law courts. In the end it comes down to Lord Denning’s view that to allow such an action as the present would be unfitting. I have respect for that view. But I do not share it. The court does not condone suicide. But it does not, in Bingham LJ’s graphic phrase in Saunders v Edwards [1987] 1 WLR 1116, 1134, ‘draw up its skirts and refuse all assistance to the plaintiff’.”

231 Farquharson LJ at 295 extended the quotation from Lord Denning’s judgment to include:

“Before 1961 I cannot think that any such claim would have succeeded. Suicide was then a crime. So was attempted suicide. And no one was allowed to benefit from his own deliberate crime. Nor were his personal representatives; see Beresford v Royal Insurance Co Ltd [1938] AC 586.”

232 Beresford’s case failed because the jury found that the deceased was sane. The principle was said, by Lord Atkin at 596, to be that stated in the judgment of Fry LJ in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 at 156:

“It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.”

233 In Beresford in the Court of Appeal [1937] 2 KB 197, Lord Wright MR, who gave the judgment of the Court, remarked at 213 on the absence of decided cases in England precisely on point, which his Lordship said might be explained by the notorious fact that juries will seldom find felo de se but generally bring in a verdict of suicide while insane. At 219-20 his Lordship said:

“We have quoted the above authorities in support of that principle, which is of general import. The principle has been applied not only in the authorities quoted above but also in many decisions dealing with varied states of fact and applications of the same or similar principle. These are all illustrations of the maxim ex turpi causa non oritur actio. The maxim itself, notwithstanding the dignity of a learned language, is, like most maxims, lacking in precise definition. In these days there are many statutory offences which are the subject of the criminal law, and in that sense are crimes, but which would, it seems, afford no moral justification for a Court to apply the maxim. There are likewise some crimes of inadvertence which, it is true, involve mens rea in the legal sense but are not deliberate or, as people would say, intentional. Thus in Tinline v White Cross Insurance Association [1921] 3 KB 327 and James v British General Insurance Co [1927] 2 KB 311, both cases of motor car manslaughter, the judges held that policies against third party liability were enforceable. In these cases something may turn on the special legislation on the matter. The cases have been questioned in Haseldine v Hosken [1933] 1 KB 822 but need not further be considered here.

The principle that a Court will not generally enforce transactions tainted with fraudulent or immoral purposes or objects has often been recognized and was recently expounded in a decision of the Court of Appeal in Alexander v Rayson [1936] 1 KB 169.”

234 In Knight v Home Office [1990] 3 All ER 237 the personal representatives of a prisoner, who had attacked a man and subsequently pleaded guilty to wounding with intent to cause grievous bodily harm and assault occasioning actual bodily harm, was detained in a hospital pursuant to mental health legislation and committed suicide when so detained. His personal representatives brought an action against the Home Office in negligence. At 243, Pill J said that he could not accept what was at one time submitted by counsel for the defendants that the plaintiff’s only remedy would be a political one. However, the claim failed because negligence was not proved.

235 In Cross v Kirkby, The Times, 5 April 2000, Judge LJ commented:

“The medieval concept of outlawry is unacceptable in modern society. An outlaw forfeited the protection of the law. He could not invoke the assistance of the court to enforce non-existent rights. In the United Kingdom today there are no outlaws. However abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but enforceable in practice.”

See the Law Commission Consultation Paper No 160 “The Illegal Defence in Tort” at 9.

236 A case similar to Knight v Home Office is Pallister v Waikato Hospital Board [1975] 2 NZLR 725, an appeal from a decision of Mahon J. At 736-7 Richmond J in the Court of Appeal said:

“The question of causation was not directly dealt with by Mahon J. As I have said, however, it was argued on this appeal, reliance being placed on certain observations by members of this Court in McFarland v Stewart (1900) 19 NZLR 22 and Murdoch v British Israel World Federation (New Zealand) Inc [1942] NZLR 600. It was argued that these cases establish that a ‘voluntary’ act of suicide must always be regarded as the sole cause of the death, and that such an act will always be ‘voluntary’ unless the deceased was criminally insane. But since McFarland v Stewart was decided there have been many statements of high authority to the effect that causation is essentially a question of fact to be decided on common sense principles having regard to the circumstances of the particular case. I need only refer to the opinion of Lord Reid in Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663, 681[1953] UKHL 4; ; [1953] 2 All ER 478, 485. I would regard McFarland v Steward as a decision on its own facts and not as laying down any rule of law applicable to the special situation in the present case, where the respondent board was under a duty to use reasonable care to guard Mr Pallister against his own suicidal tendencies. Had there been an actual and continuing failure in that duty then in my present view such a failure would, as a matter of common sense, be an effective or substantial cause of Mr Pallister’s death. I doubt if it could be called the sole cause, but that would not prevent a right of action against the board. Possibly the act of the deceased in jumping from a window would amount to ‘fault’ as defined by s2 of the Contributory Negligence Act 1947. This possibility was not the subject of argument on the present appeal. The position of a plaintiff who intentionally brings harm upon himself is, however, discussed by Dr Glanville Williams in his book Joint Torts and Contributory Negligence (1951) 345-355. As regards Murdoch v British Israel World Federation (New Zealand) Inc I need only comment that no duty to guard a person against a suicidal tendency was in question in that case.

The question of public policy was considered at length by Mahon J. In this context he concluded that what was said in McFarland’s case and in Murdoch’s case was binding on him notwithstanding the fact that in the meantime attempted suicide has ceased to be a crime in New Zealand. My present view is that this alteration in the law has left the position open for review in this Court and that the conclusion at which Mahon J would have arrived, had he thought himself free to do so, is one which is both desirable and correct in principle. I refer to his judgment – [1947] 1 NZLR 561 – the particular passage being at p575 lines 14-39.”

237 At 747-8 Woodhouse J in the Court of Appeal said:

“In a careful and detailed survey of the public policy issue as it relates to suicide Mahon J reached the conclusion that the exclusion of suicide and attempted suicide from the criminal code in New Zealand did not invalidate the principle that benefits should not accrue to the estate or representatives of a man who had committed suicide while responsible for his actions. He then remarked upon the fundamental difference between Beresford’s case and the two New Zealand decisions and said:

‘A contractual obligation conditioned to deliberate self-destruction is one thing, but the denial of remedy in a case of this kind is another. If the matter were res nova I would find without hesitation that the public policy consideration must be subordinated in this case to the paramount duty of the present defendant to exercise due care to preserve from harm a man with a known and demonstrated tendency, resulting from disturbance of mind, to end his life by conscious volition while still responsible at law for his actions.’

He considered, however, that the two New Zealand decisions were binding and also that the principles which they affirmed controlled the facts of the present case. For the reasons I have given earlier in this judgment I think, with Mahon J, that the hospital did indeed have a ‘paramount duty ... to exercise due care to preserve from harm a man with a known and demonstrated tendency’ to attempt to commit suicide. On the other hand I think the two decisions of this Court are distinguishable and should not be followed.

Before leaving the case I should add a comment concerning Pallister’s state of mind at the relevant time. Acting upon the decision in Murdoch’s case Mahon J held that to overcome the issue of public policy the widow needed to prove affirmatively that the man was insane within the meaning of s23 of the Crimes Act 1961. And he was unable to feel satisfied on the balance of probabilities that this was so. However, he then expressed his view concerning the general state of deceased’s mental health. He said:

‘It was proved without question that he was in a mentally disturbed state of a fluctuating kind in which from time to time he would tend to magnify whatever worries he had, and that for this reason the continuance of his life became intolerable to him. The balance of his mind was clearly disturbed but he was not shown to be insane to the extent required by the standards which define legal responsibility.’

Those observations may or may not suggest that the deceased was so disturbed mentally as to be rendered irresponsible in a medical sense; and on the view I take of the whole case the question is not relevant. However, if it had been necessary to consider the issue of insanity whether in relation to causation or in terms of the wider question of public policy I think there is a great deal of evidence which would support a finding that at the relevant time the deceased was incapable of rational or normal behaviour – in other words it is likely that he was ‘medically’ insane. And in my opinion ‘ medical’ rather than ‘legal’ insanity would now be the true test in both areas.”

238 At 732, the Chief Justice (Wild CJ) said it was unnecessary for him to consider in relation to the deceased’s suicide the issues of causation and public policy but associated himself with the comments made by Richmond J in that regard.

239 In the United States’ case Champagne v United States, a decision of the Supreme Court of North Dakota (513 NW 2d 75) (N.D. 1994), the parents of Ricky Champagne, as the personal representatives of his estate, brought a medical malpractice/wrongful death action against the United States alleging that the Indian Health Services (IHS) were negligent in their care of their son following a suicide attempt and that this negligence was the approximate cause of his later suicide. The court said at p80 that it was not persuaded by the Champagnes’ argument that, when a patient’s act of suicide is a foreseeable result of a medical provider’s failure to treat reasonably to prevent the suicide, it is never appropriate to compare the victim’s act of suicide with the medical provider’s fault.

“Rather, if the evidence shows that the patient is incapable of being responsible for his own care and that the medical provider has undertaken the duty of care for the patient’s wellbeing, there would be no allocation of fault to the patient. ... If the medical provider has taken on the duty of caring for a patient with a diminished capacity, and if the patient is capable of being responsible for his own care, allocation of fault is in order.” (80 [3,4]).

The court went on at 81 [7-9]:

“Moreover, when a patient’s suicide is a foreseeable consequence of the medical provider’s negligent care, the act of suicide cannot be deemed a superseding intervening cause. ... To relieve a defendant of the responsibility for the consequences of his negligence, an intervening cause must be one that is both independent and unforeseeable. ... If Ricky’s act of suicide was a reasonably foreseeable consequence of IHS’s failure to provide reasonable medical care, then Ricky’s suicide cannot be a superseding cause that entirely absolves IHS from responsibility by breaking the legal chain of causation. “

Ex turpi causa

240 National Coal Board v England [1954] AC 403 concerned a mine worker injured by the premature explosion of a detonator. The worker sued the mine owners for damages for breach of statutory duty by their servant, a shot-firer. The worker had also committed a breach of the regulations by agreement with the shot-firer. The House of Lords held that the short-firer’s statutory duty did not supersede his common law duty and he was liable for his failure to perform that common law duty, thereby rendering his employers vicariously liable. The worker was held guilty of contributory negligence. At 419, Lord Porter said that the maxim ex turpi causa non oritur actio was generally applied to a question of contract “and I am by no means prepared to concede where a concession is not required that it applies also to the case of a tort”. See also per Lord Oaksey at 422, Lord Tucker at 427 and Lord Asquith of Bishopstone at 428. Lord Reid at 424 did not find it necessary to determine the precise meaning or the limits of the application of the maxim.

241 A useful analysis of the law is to be found in the decision of the English Court of Appeal in Vellino v Chief Constable of the Greater Manchester Police [2001] EWCA Civ 1249; [2002] 1 WLR 218. In that case, the claimant had been arrested by police after a struggle and held by two officers. In some manner, the claimant escaped from the officer holding him and jumped from a bedroom window fracturing his skull and suffering severe brain damage and tetraplegia. The trial Judge held that the police did not owe to an arrested person a duty to take care that the claimant was not injured in a foreseeable attempt by him to escape from police custody. This finding was on the basis that escaping from custody was a sufficiently serious criminal offence to require the application of the principle ex turpi causa non oritur actio and it was not fair, just or reasonable to impose a duty of care on the police to prevent the claimant from injuring himself by his own unlawful act. The appeal was dismissed by a majority of the Court of Appeal, Schiemann LJ, and Sir Murray Stuart-Smith with Sedley LJ dissenting. The claimant relied on Reeves v Commissioner of Police of the Metropolis, to which Adams J referred.

242 Schiemann LJ, observed at 224 [19]: “To suggest that the police owe a criminal the duty to prevent the criminal from escaping, and that the criminal who hurts himself while escaping can sue the police for the breach of that duty, seems to me self-evidently absurd.” At 235-6 Sir Murray Stuart-Smith referred to National Coal Board v England and said:

“In that case their Lordships may have doubted whether the maxim ex turpi causa had any application in tort. Many decisions of this Court since hold that it does.

70 From these authorities I derive the following propositions:

(1) The operation of the principle arises where the claimant’s claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the defendant.

(2) The principle is one of public policy; it is not for the benefit of the defendant. Since if the principle applies, the cause of action does not arise, the defendant’s conduct is irrelevant. There is no question of proportionality between the conduct of the claimant and defendant.

(3) In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal but relatively trivial, it is in any event difficult to see how it could be integral to the claim.”

243 His Lordship said that it was common ground that the claimant had to rely on his criminal conduct in escaping lawful custody to found his claim.

244 In dissenting, Sedley LJ observed at 233 that the House of Lords in Tinsley v Milligan [1993] UKHL 3; [1994] 1 AC 340 rejected the “public conscience” test articulated by Hutchison J in Thackwell v Barclays Bank plc [1986] 1 All ER 676 as a filter on claims with a criminal dimension. His Lordship said:

“We are not now required, in other words, to look over our shoulders at what we fear the press will make of our decisions in this already difficult field. The public conscience, an elusive thing, as often as not turns out to be an echo-chamber inhabited by journalists and public moralists. To allow judicial policy to be dictated by it would be as inappropriate as to let judges dictate editorial policy.”

Compare per Kirby J in Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1 at 53 [137].

245 Smith v Jenkins, to which Brennan J referred in Gala v Preston, particularly at 270, concerned a claim by a person injured through the other party’s negligent driving of a motor car which both parties were using unlawfully contrary to the provisions of the Victorian Crimes Act 1958. The majority of the Court held that if two persons participated in the commission of a crime, each took the risk of the negligence of the other in the actual performance of a criminal act. At 409-414 Windeyer J explained why he thought there was no warrant for deciding a question of liability in tort in Australia by resorting to the maxim. At 413-4 his Honour said:

“Fivaz v Nicholls [1846] EngR 271; (1846) 2 CB 501; 135 ER 1042 has been cited to support the proposition that the maxim applies to torts. That seems to be because Sir Frederick Pollock referred to it as the only clear example of this known to him. But he added that its facts were very peculiar: see Pollock on Torts, 15th ed (1951), pp 127-128. It was an action in case arising out of complicated facts of an unlawful transaction to which both plaintiff and defendant had been parties. It was held that the plaintiff could not recover, as to support his claim he had to prove and rely upon the preceding illegality. The case is thus really only an illustration of the principle expressed in Simpson v Bloss [1816] EngR 821; (1816) 7 Taunt 244 at 250[1816] EngR 830; ; 129 ER 99 at 100, where it was said that the plaintiff’s claim was

‘... so mixed with the illegal transaction in which he and the defendant ... were jointly engaged, that it cannot be established without going into proof of that transaction, and therefore cannot be enforced in a court of law’.

That is well-settled doctrine. If a plaintiff has to rely upon an unlawful transaction to establish his cause of action, the court will dismiss his case: see the passage in the judgment of Denning LJ, as his Lordship then was, in Marles v Philip Trant & Sons Ltd; Mackinnon, Third Party [1954] 1 QB 29 at 38. But that is as far as that rule goes: Gordon v Chief Commissioner of Metropolitan Police [1910] 2 KB 1080; Bowmakers Ltd v Barnet Instruments Ltd [1945] 1 KB 65. Those who like to interlard English law with Latin may be pleased to remember at this point two further maxims, one from Coke (4 Inst 279), the other from Hale (2 Pleas of the Crown 386): ‘Nemo allegans turpitudinem suam est audiendus’; and ‘Frustra legis auxilium quaerit qui in legem committit’. But, whether the talk be in Latin or English, it is important to remember that in the present case it was the defendant, not the plaintiff, who asserted the illegality of the proceedings in the course of which the negligence sued upon occurred. The plaintiff did not have to say that the defendant was driving the car in breach of the law, only that he drove it negligently.”

246 At 416 Windeyer J observed:

“The question here is not, Is the plaintiff precluded from recovering because he was a wrong-doer? It is, Had the defendant a duty to the plaintiff to carry out carefully the unlawful enterprise on which they were jointly engaged?”

See also Gollan v Nugent at 46 and per Mason J in Jackson v Harrison at 452 where his Honour said that the correctness of the decision in Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438 was confirmed by Smith v Jenkins, “which proceeded on the footing that the maxim ex turpi causa non oritur actio has no place in the law of torts”.

247 In Hall v Hebert [1993] 2 SCR 159 Hebert owned a “souped-up” muscle car. His passenger, Hall, had been drinking. When the car stalled on an unlit and particularly rough gravel road with a sharp drop off to one side, Hebert, when he could not find the keys which had shaken out of the ignition, decided that a “rolling start” was the only way to start the car. At Hall’s request, Hebert allowed Hall to drive when they tried the rolling start. Hebert had been aware that Hall had consumed eleven or twelve bottles of beer that evening, three within the last hour prior to the accident. Despite this, he did not consider Hall drunk. Hall lost control of the car, it left the road, went down the steep slope and turned upside down. Hall suffered significant head injuries. The trial judge allowed Hall’s action for civil damages and apportioned liability 75 per cent to Hebert and 25 per cent to Hall. The Court of Appeal allowed Hebert’s appeal. At issue were:

1. Whether a person having the care and control of a motor vehicle owes a duty of care to another who is known to be impaired to deny that impaired person permission to drive the vehicle.

2. Whether ex turpi causa non oritur actio provided Hebert with a complete defence.

3. Whether the trial judge erred in the apportionment of liability.

248 By a majority, the Supreme Court of Canada upheld the appeal from the Court of Appeal. McLachlin J, delivering the judgment of the majority, said at 169:

“My own view is that courts should be allowed to bar recovery in tort on the ground of the plaintiff’s immoral or illegal conduct only in very limited circumstances. The basis of this power, as I see it, lies in duty of the courts to preserve the integrity of the legal system, and is exercisable only where this concern is in issue. This concern is in issue where a damage award in a civil suit would, in effect, allow a person to profit from illegal or wrongful conduct, or would permit an evasion or rebate of a penalty prescribed by the criminal law. The idea common to these instances is that the law refuses to give by its right hand what it takes away by its left hand. It follows from this that, as a general rule, the ex turpi causa principle will not operate in tort to deny damages for personal injury, since tort suits will generally be based on a claim for compensation, and will not seek damages as profit for illegal or immoral acts.”

Later at 176 the judgment continued:

“For the courts to punish conduct with one hand while rewarding it with the other, would be to ‘create an intolerable fissure in the laws conceptually seamless web’.”

At 185-6 McLachlin J concluded:

“The doctrine of ex turpi causa non oritur actio properly applies in tort where it will be necessary to invoke the doctrine in order to maintain the internal consistency of the law. Most commonly, this concern will arise where a given plaintiff genuinely seeks to profit from his or her illegal conduct, or where the claimed compensation would amount to an evasion of a criminal sanction. This appellant need not be denied recovery since these grounds are not relevant to his claim. The compensation sought by this appellant is for injuries received. This compensation can be reduced to the extent of the appellant’s contributory negligence, but cannot be wholly denied by reason of his disreputable or criminal conduct.”

The order of the Court of Appeal was set aside and the trial judgment restored but varied to provide for an equal division of liability.

249 According to the LCC paper No 160 at 11, it has now been confirmed unequivocally in England that the defence ex turpi applies in tort; Standard Chartered Bank v Pakistan National Shipping Corporation (No 2) [2000] 1 Lloyd’s Reports 218 per Aldous LJ.

250 In Clerk & Lindsell on Torts, 18th ed, 3-12, it is said that some degree of caution is appropriate in attempting to state how the ex turpi causa defence will be applied.

“The earlier cases must be considered in the light of Clunis and Reeves. Formerly, it was arguable that there were at least three relevant factors:

1. The claimant’s conduct must have been so clearly reprehensible as to justify condemnation by the court;

2. That conduct was so much part of the claim against the defendant as to justify refusing any remedy to the claimant; and

3. In some types of case there had to be some “proportionality” between the claimant’s conduct and that of the defendant – the defence did not apply where the defendant’s conduct was an excessive response.

In a footnote the editors remark:

“It is highly unlikely that, say, members of the general public would appreciate the difference between ‘compensation’ and ‘profit’ in an award of damages, and moreover would probably have even greater difficulty with the notion that a legal system can retain its ‘integrity’ whilst at one and the same time prosecuting the burglar for his criminal activity yet requiring the householder to compensate that same burglar for his injuries.”

251 According to Adams J [at 1] at the time that the plaintiff attacked and killed Ms Laws he was in a psychotic state which so affected his capacity to reason that he did not know that what he was doing was wrong and, accordingly, he was not guilty on the grounds of mental illness. In The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 188 Dixon J, speaking of the necessary state of mind of disease, disorder or disturbance for acquittal, explained one as being of such character as to prevent the accused from knowing the physical nature of the act he was doing. At 189 his Honour said:

“The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act.”

In the opinion of Doctor Lucas, who conducted a psychiatric assessment of the plaintiff, when the plaintiff was on remand, in his report of 19 April 1996:

“Although Mr Presland knew the nature and quality of his act he was unable to reason about its wrongness with a moderate degree of sense and composure. He was completely in the grip of his delusional beliefs and the killing was entirely based on these. He believed his brother was dead and that everyone entering the house was killed by Satan on leaving. He came to believe that he had to kill Ms Laws in order to save his niece who was due to arrive soon and would have been killed when she left.”

Appeals against findings of fact

The evidence of Mr Blake

252 It is convenient now to turn to the appeal against the specific findings concerning the evidence of Mr Blake and his statement, the evidence of Angela Jeffs and the police escort form. In para 27, I have set out the account Adams J gave about the evening of 3 July taken from Mr Blake’s statement to the police of 23 July 1995. In their written submissions, the appellants suggested that the trial Judge proceeded on the basis that this statement had the same content and detail as Mr Blake’s statement to police on the evening of 3 July 1995 which was contained in Constable Jones’ notebook. In recounting what Jones said he told Ms Jeffs, the trial Judge referred to the note in his official notebook which was the earlier statement by Mr Blake of 3 July 1995. In that earlier statement, Mr Blake stated only that the plaintiff started kicking at the front fence of “our place”, kept saying “the rats have got to die, the rats have got to die”, lashed out “for my child Timothy”, so his wife took Timothy away, ran straight at a door with his head and “just kept, just kept trying to get back inside but I didn’t know if he was trying to get my pet rats or my son”. The earlier statement contained no reference to the plaintiff’s saying to Mr Blake “I have to kill you”, grabbing Mr Blake by the throat with his two hands and squeezing tightly, diving at Timothy and grabbing him by the throat and not letting him go, grabbing the neighbour, Jeremy Hughes by the throat and trying to hit Mr Blake with a piece of lattice.

253 There was evidence from the two police witnesses that their knowledge of what had occurred before they arrived at the scene was confined to the contents of Mr Blake’s statement of 3 July. Further, Jones, whose note it was, agreed that up to the point of time he left the premises there was nothing of substance that he had learnt there that was not recorded in his notebook. There were police statements made by Jones on 19 July 1995 and Duffey on 20 July 1995. Both say that while they were at the premises the plaintiff started yelling, “the rats are eating my eyes, the rats are eating my toes”.

254 The trial Judge did, as I have indicated, set out the contents of Mr Blake’s statement of 23 July 1995 and when he had done so continued “when they did so [that is, when the police arrived] Mr Blake told the officers what had happened but indicated that he did not want to lay any charges and said that he thought that the plaintiff needed help.” That is a summary of what Mr Blake said in the second last paragraph of his statement: “I spoke to Constable Brook Jones, Carrington, and told him what had happened. I also told Constable Jones I did not want any charges laid, I just wanted help for Kevin.” The appellants suggest that it should be inferred that the trial Judge wrongly proceeded on the basis that the information contained in the statement of 23 July 1995 was passed onto the police on 3 July 1995.

255 Adams J was at pains to recite the evidence about the events leading up to the time when the plaintiff was brought to JHH. Part of that evidence was found in Mr Blake’s statement of 23 July 1995, which his Honour summarised in para 35 of his reasons for judgment. Adams J was also concerned to recite the information available particularly to Dr Nazarian when he saw the plaintiff. I reject the suggestion that the trial Judge mistakenly proceeded on the basis that the material set out in para 35, taken from Mr Blake’s later statement, was available to those hospital staff who assessed the plaintiff at JHH or JFH. Properly understood, no such inference can be drawn from the last sentence of para 35.

256 Mr Garling SC, who appeared for the appellants on the appeal, sought to bolster the inference by reference to other parts of the reasons for judgment. Reference is made to para 41 where Adams J was dealing with the events at the hospital and the plaintiff’s account of those events. His Honour said: “The plaintiff said that he did not believe that he had grabbed Mr Blake’s child.” This is taken from the plaintiff’s evidence in chief, which relevantly was as follows:

“Q. ... Whatever the cause was, at the time the police officer asked you ‘Do you remember what happened?’, and you said “No’, what I’m asking you is, is that the fact, did you or did you not remember what had happened? A. I did not remember a thing. The police officer said to me that I had grabbed a three year old child. They didn’t want to charge me, the people [Mr Blake?] didn’t want to charge me.

...

HIS HONOUR: Q. The police officer said? A. Told me that I had grabbed a three year old child by the throat and Blake had belted me with the cricket bat and that sort of struck a chord with me because Blake had told me some time before this how he had been to Court, that somebody had attacked his child and cricket batted them. He told me that months before and it sort of come back to me and I was just sort of in a confused state and the policeman said ‘Is there someone we can call?’”

257 In para 41 after referring to this, Adams J said: “Upon this point, as with others, I regard Mr Blake’s statement as more reliable.” Again, his Honour is dealing with the evidence of what happened. Similar reliance is put upon further recitals by the trial Judge of parts of the plaintiff’s evidence. None supports the submission. The trial Judge carefully reviewed the police constables’ evidence of what they told Ms Jeffs and Dr McHue at JHH and the triage nurse and Dr Sheng at JFH. His Honour referred to the various hospital notes including Dr Sheng’s notes of his interview with the plaintiff which included the following:

“Additionally, Bill has pet rats, which Kevin was told about on 2/7/95 and Bill showed them to Kevin and Kevin threatened to kill the rats and Bill’s family today.”

258 Added to those notes were entries made by Nurse Mazun and the ward nurse which included “3.7.95 – C nursing C – P/C from Allan Presland who inquired as to the health of his brother and voiced concerns over Kevin’s impulsive behaviour and suicidal ideation. Kevin apparently stated he was ‘going to do away with himself’.” In none of this material is there to be found a suggestion that the trial Judge mistakenly thought that any of these recipients of information knew of the contents of Mr Blake’s statement of 23 July 1995.

259 I have referred in para 46 to the police escort form which was not available at the trial and have quoted what his Honour said, namely, that it would probably have referred to “the obvious points”. The reference in that passage to “the attack on Mr Blake and his family” accords with the threat to kill the family described in Dr Sheng’s notes, Jones’ note that the plaintiff “lashed out for my child Timothy”, and Duffey’s evidence, which Adams J accepted, of the threats to Mr Blake’s family.

260 There is, in my opinion, nothing in this point of appeal. I have given it particular attention. The appellants claim that the asserted error is significant because it led Adams J into error in making specific findings about Ms Jeffs, the police escort form and the defendants’ experts.

The evidence of Angela Jeffs

261 The appellants submitted that Adams J erred in not accepting Ms Jeffs’ evidence that she had not been informed by either of the two police constables that the plaintiff had tried to attack a young child or had made any threats to kill or attack Mr Blake’s family. I have summarised his Honour’s finding at para 38.

262 In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ said:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact, See Brunskill [1985] HCA 61; (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his of her advantage’, SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’ Brunskill at 844; at 57.”

263 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 146-7 McHugh J said:

“It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge’s finding when it is based, expressly or inferentially, on demeanour. Those cases recognise – in accordance with a long line of authority – that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; (1999) 73 ALJR 306; 160 ALR 588, for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it.”

264 The transcript of the relevant part of Ms Jeffs’ evidence in cross-examination was as follows:

“Q. Is it the case that one of them made a mention to you that Mr Presland had tried to attack a young child? A. No.

Q. Is it the case that he, the policeman, told you that he grabbed the child, or grabbed a child by the throat? A. The first mention that this was ever made to me was in the first court case. I have never heard about it from the police at John Hunter Hospital.

Q. You are quite positive about that? A. I am a hundred percent positive. I am a mandatory notifier.

Q. What does that mean?. A. If there is [are] children at risk, in any manner or form, I am legally obligated to notify DOCS. As a social worker, I have a really strong commitment to the welfare of children. There was no mention of children. This was a violent interaction between two grown men. That is what I was told. There was no mention of children at any stage.

Q. And that would include threats, would it, to kill the family? A. No.

Q. Killing of anyone? A. No. There was fight between two grown men. That’s what I was told, or violence between two grown men. There was no mention of the family. There was no mention of anyone else’s involvement.

Q. Was there any mention that Mr Presland said he had to kill the children so they weren’t eaten by the rats? A. No. There was no mention of any children at any time by the police at John Hunter.”

265 Adams J, for reasons he gave, thought it would be both surprising and most unlikely if the police had not communicated their views about the plaintiff to Ms Jeffs and preferred Jones’ evidence that he told Ms Jeffs of the matters included in Mr Blake’s statement in his notebook including that the plaintiff “lashed out for my child Timothy”. I do not accept, as the appellants submit, that Adams J failed adequately to expose his reasoning. Nor do I think this is undermined by the suggestion that his Honour failed to take into account the fact that Jones did not see this information as important enough to include in his statement in the event reference on the same night. Adams J said:

“49 ... Jones had made a note in his official notebook of what he was told, including that the plaintiff “lashed out for my child Timothy”. He said that he told these things to Ms Jeffs because he intended to give her sufficient information to make whatever decisions needed to be made from her point of view concerning the plaintiff’s care. It strikes me as so unlikely as to be fanciful, having come this far, as it were, Jones would keep to himself these important facts, which he knew (having spoken to the plaintiff in the meantime) would or might well not otherwise be made known to the very people he wanted to understand what had happened. He was, it seems, in no hurry to go as he remained at the hospital to escort the plaintiff to JFH. The fact that these matters are not reflected in Ms Jeffs’ notes, of course, gives considerable support to her evidence that she was not told of these things by Jones. Ms Jeffs said that she would have taken particular note of the attempt to attack the Blake child because of her legal obligation to notify DOCS of any child at risk in any circumstances. It is also important to bear in mind that the plaintiff committed an appalling killing relatively soon after his release from JFH the following day and the constable would, I think, have strong motives for (perhaps unconsciously) reconstructing his account to avoid some blame being placed on him for the plaintiff’s premature release but, then, so would Ms Jeffs. Weighing up these competing contentions decisively favours acceptance of Jones’ account.”

266 No sufficient ground has been shown for interfering with this finding or for concluding that Adams J’s reasoning was flawed.

The Police Escort Form

267 The grounds of appeal under this head also relate to the contention that those who assessed the plaintiff at JHH and JFH had limited knowledge of what had occurred at the Blake household before the police arrived. On Jones’ evidence, he wrote a short version of the facts in the police escort form. I have set out the relevant parts of the trial Judge’s findings at para 46. Orally, it was submitted, that it was not permissible for his Honour to speculate about the contents of the lost document. Jones gave this evidence in relation to this document:

“Do you now recollect what you did put in it with any precision? A. With any precision?

Q. Yes? A. Not exactly, but the form starts with, it might be the patient’s name, address, age or date of birth, I am uncertain about that, and then there is a space provided where me, as a police officer, fills out a narrative if you like of the reasons that he is being presented for assessment and those reasons were what I have been told and what I had seen.

Q. What you had been told by Blake and what you had seen on arrival at Blake’s place and afterwards? A. Yes.

Q. And these matters you have given evidence about today? A. Previously, yes.

Q. And today? A. Yes.”

268 With due respect, this point has no merit. We know from Dr Sheng’s notes that the plaintiff made threats after he had arrived at Mr Blake’s house, that Mr Blake warned him to keep away from his family and that the plaintiff went for Mr Blake and threatened to kill Mr Blake’s pet rats and his family. The fact that the trial Judge rejected Dr Sheng’s evidence that he saw the police escort form is merely one of many demonstrations that his Honour was careful to weigh every part of the evidence and make findings accordingly. From one source or another, Dr Sheng was aware at least of the matters set out in his notes.

Dr Nazarian

269 The appellants led evidence that Allan Presland, who came to JFH on the morning of 4 July 1995, demanded the plaintiff’s release. I have referred to this part of the judgment in paras 54-57. After that part of para 81, which I have quoted, Adams J said: “Indeed, my overwhelming impression of Mr Presland is that he regarded his brother’s behaviour as, to some degree, his own foolishness and was angered by being put to the inconvenience of having to deal with the consequences.” In their written submissions, the appellants recite the evidence of parts of Mr Vincent’s evidence and Sister Lockett’s evidence, including that part in which Sister Lockett said:

“Well, I went over to Dr Nazarian and said that this was Kevin Presland’s brother who had been admitted during the night and told Dr Nazarian of his legal status and said that his brother wanted to take him home and then left Mr Presland with Dr Nazarian.”

270 It was submitted that the trial Judge failed to refer to the statement made by Allan Presland on 4 July 1995 in which he said that having found the plaintiff in the police station on 4 July 1995:

“16 I took hold of Kevin’s arm and we both walked back to James Fletcher. I took him back to the ward, it was in the new part Acacia Ward. I spoke to the nurse again and she said, ‘You’ll have to see the Doctor to have him assessed before he goes.’ The Doctor came out and took Kevin and I to another room. When we got in the room the Doctor started asking Kevin some questions about his behaviour being stress related. Kevin didn’t really answer these questions just agreed with what the Doctor asked him. I said to the Doctor, ‘Look mate this has been happening for a couple of months. It’s all to do with alcohol and marijuana. I’m going to take him home for a couple of days and let him get his head together.’ I then spoke to the Doctor about some course that the Hospital have on for drug and alcohol abuse. I made some inquiries about these courses and then drove Kevin to my house.”

271 In his evidence in chief, Allan Presland denied that he had ever said to the doctor at the JFH “I’m going to take him home for a couple of days and let him get his head together”. When this part of the statement was read to him in chief the trial Judge intervened [Black, Vol 2, p409] and the following interchange took place:

“HIS HONOUR: Q. Mr Presland we are now talking about what is being said at two different times. The time which you have just talked about is what happened in Dr Nazarian’s office? A. That’s right, this happened when I was at the police station.

Q. At the police station. Did you say those things at this part ‘I’m going to take him home for a couple of days and let him get his head together’, did you say that to the Detective? A. I may have said that to the Detective at the time or I may not have. He might have put it in there.

Q. You don’t now remember? A. No. I mean, may be he must have a tape or something of the conversation surely? I might have said that after all that happened but I distinctly remember what the Doctor said.”

272 It was submitted that Allan Presland had a clear motive for not telling the truth.

273 In her evidence Donna Maria Rouse, who at the relevant time was employed as a barmaid at the Hamilton Station Hotel at Newcastle, said that on the afternoon of 4 July Allan Presland came into the pub by himself and told her that he was going to have the plaintiff stay with him for a week or so, then he was going to send the plaintiff to New Zealand to see his sister. A later statement which Allan Presland believed was made in August or September, though it was undated, was tendered on behalf of the defendants, made no reference to this conversation.

274 The appellants’ written submissions submit that Allan Presland’s further conduct on 4 July 1995 was inconsistent with his testimony that he wanted the plaintiff kept at the hospital. Reference is made to a statement by Dr B L Coppa of 27 July 1995 referring to a visit on 4 July 1995 by the plaintiff accompanied by Allan Presland. It is said that within half an hour or an hour of leaving JFH, Allan Presland had in place a plan for the plaintiff’s care which did not involve hospitalisation, drug and alcohol treatment or any form of counselling and treatment. This it was said was consistent with a passage in his earlier statement to Dr Nazarian that the plaintiff’s problems were all to do with alcohol and marijuana. “I’m going to take him home for a couple of days and let him get his head together.” It was said that Allan Presland’s behaviour was not that of someone who thought his brother needed psychiatric care and was asking for him to be kept in hospital. No doubt these arguments were put to the trial Judge and taken into account.

275 The trial Judge saw the various witnesses give evidence. There is no reason to interfere with the conclusion he came to that Allan Presland was anxious that the plaintiff should stay in hospital to deal with whatever emotional psychiatric issues were adversely affecting him.

276 In oral submissions, reference was made to the undated statement of Dr Nazarian, in which he said that on the morning of 4 July 1995 he was informed by the nurses to review the plaintiff “because he was intending to leave the hospital with his brother who had come to visit him.” He said that the plaintiff stated that he would go to his family’s place to have a few days of rest. Allan Presland stated that their parents and other family members would look after the plaintiff.

277 In a separate statement of 5 July 1995 Dr Masters, the medical superintendent at JFH, wrote: “Dr Nazarian states that this brother was keen for Kevin to be discharged into his care.”

278 In para 58, I have set out Dr Nazarian’s notes of consultation with the plaintiff. Adams J observed that the notes make no reference to any request or suggestion that the plaintiff or his brother wished to leave the hospital. Adams J said that the purpose of making such notes is to create a record of the consultation, not only for future treatment by the psychiatric registrar, but for reference by future carers or doctors and against failures of recollection which, in the course of any busy practice, are likely. The paucity of the notes compared with Dr Nazarian’s evidence undermined the veracity of that evidence at several levels. Dr Nazarian’s evidence was that he made a note of all matters of importance. Further, as Adams J pointed out, the fact, if it were the fact, that Dr Nazarian believed that the plaintiff wished to leave the hospital was not decisive of the ultimate issue. The plaintiff’s case was that, whatever his wishes, it was negligent for the defendants to have released him, in other words, not to have kept him as an involuntary patient. If, as his Honour found, the plaintiff did not express a desire to leave the hospital, that rendered several explanations given by Dr Nazarian as to why relevant and important matters were either not raised or not explored with the plaintiff unlikely to be accurate. The desires of Allan Presland were only of marginal relevance and should have been disregarded. The risk was that he was overbearing the plaintiff. Moreover, so far as the duty of Hunter was concerned, Adams J concluded that the file containing the ambulance report, the JHH admission note and the police escort report setting out details of the events that led to the plaintiff’s admission to the hospital should have been available to Dr Nazarian.

279 In paras 60-72 above I have summarised Adams J’s findings. Particular conclusions are found at paras 69 and 72.

280 I have no doubt that Adams J’s conclusions that Dr Nazarian’s consultation with the plaintiff was in several respects seriously inadequate were amply justified.

Defendants’ experts

281 The appellants submitted that the trial Judge erred in not accepting the appellants’ medical experts’ conclusions that Dr Nazarian’s treatment of the plaintiff fell within the boundaries of appropriate professional standards. His Honour said that he believed that had the appellants’ experts actually been faced with the plaintiff in the hospital on the morning in question, their interviews with him would have been very different, as would their conclusions about him and they would have acted under either s9 or s10 of the MHA to detain him. The argument, that Dr Nazarian’s conduct met the appropriate standard measured against the assessment of a voluntary patient who wished to leave the hospital, failed because of his Honour’s conclusion that the plaintiff did not wish to leave the hospital. Again, the argument depended upon the assertion that Adams J did not distinguish between what in fact happened at Mr Blake’s house on the one hand and what others, such as the police, Ms Jeffs, Dr Sheng and Dr Nazarian, at the time were able to ascertain, on the other. As I have indicated, I reject this submission.

282 The appellants rely on a passage from the report of Dr Milton of 25 July 2000 based on Dr Nazarian having later said that, if he had known about the unprovoked attack on Mr Blake and his son, he would have acted differently. But Dr Nazarian’s notes give no indication of any attempt to obtain any history from the plaintiff or Allan Presland. Adams J did not accept that all Dr Nazarian was told was that the plaintiff ended up in hospital as the result of an accident. Adams J did not accept Dr Nazarian’s evidence. Dr Nazarian apparently never explored matters recorded in the file which he had read, such as, what threats the plaintiff had made and why he had made them, why he head butted the security door and attacked the fence, why Mr Blake warned him to keep away from his family and why he threatened to kill both Mr Blake’s rats and his family. In my opinion, there is no sound ground for interfering with his Honour’s conclusion not to accept the opinions of the appellants’ medical experts as to the adequacy of Dr Nazarian’s treatment of the plaintiff. In light of Adams J’s findings, there was no ground for saying that Dr Nazarian’s conduct should be measured against the purpose of undertaking an assessment of a voluntary patient who wished to leave the hospital.

283 Although the appellants relied upon the divergence of opinion between the plaintiff’s experts, Dr Strum and Dr Phillips, about whether the plaintiff was, at the time each of them saw him, suffering from mental illness, that seems to me of little significance in this case. The fact that psychiatry is not a precise science does not mean that a psychiatrist is not under a duty to take reasonable care for his or her patients. Adams J’s finding was that Dr Nazarian failed in this regard.

284 In my opinion, the appeal against the specific findings gathered under grounds 16-42 of the grounds of appeal fail and should therefore be rejected.

Grounds 1-15

Discussion

285 I have no difficulty in accepting that Dr Nazarian, and through him Hunter, owed the plaintiff a general duty of care of the sort described in the passage from Rogers v Whitaker which Adams J cited and which I have set out at para 84. I am equally satisfied that if the plaintiff had been convicted of the murder of Ms Laws a claim based upon loss and damage flowing from his subsequent incarceration would have failed; State Rail Authority v Wiegold; Gray v Barr; and particularly the short dictum of Fry LJ in Cleaver v Mutual Reserve Fund Life Association. In such a case, the plaintiff’s intention to kill would have intervened to break the chain of causation. But that apart either public policy or the policy embodied in the phrase ex turpi causa non oritur actio would have prevented recovery of damages.

286 Had the plaintiff in the event not killed Ms Laws but injured himself in an attempted suicide, and sued the defendants for damages, the defence that the act of attempted suicide was voluntary may not have succeeded, for reason that the defendants’ negligence foreseeably resulted in an increased risk of injury to the plaintiff and that risk had eventuated. The defendants’ conduct had materially contributed to that injury whether or not other factors, and particularly the plaintiff’s voluntary act, had also contributed to its occurrence. The situation was as described by Mason CJ in March v Stramare at 517 in the passage Adams J referred to (see para 96 above). The defendants had come under a duty of care not to expose the plaintiff to a risk of injury arising from his own deliberate or voluntary conduct in attempting suicide.

287 The impact of the criminal conduct of a plaintiff or others who have suffered injury caused by that conduct, upon the recovery of damages for the tortious conduct of the defendant has been, as the cases cited above show, discussed in several contexts. These contexts include claims for injury caused by suicide or attempted suicide, claims for injuries suffered during the course of a crime in which both plaintiff and defendant were participants, claims by plaintiffs said to have engaged in criminal conduct as a consequence of the defendant’s tortious conduct and claims under insurance policies by persons insured to be indemnified for their liability to plaintiffs injured as a result of the insured’s criminal conduct.

288 Relevant to the decisions in such cases have been the maxim ex turpi causa non oritur actio or public policy or the policy of the law expressed in the statement that the court refuses to lend its aid to one who founds his cause of action on an illegal act; novus actus interveniens; and causation and the breaking of the chain. But the last two at least can be trumped by the plaintiff’s showing that the defendant came under a duty of care to guard against the risk of injury arising from the plaintiff’s deliberate or voluntary conduct and not to expose the plaintiff to that risk; March v Stramare at 517. Particularly is this apposite in the suicide cases where the known condition of the plaintiff may mean that, in the ordinary course of things, suicide or its attempt was likely to happen as a result of the defendant’s negligence. It is within that principle that it can rightly be said in the present case that the defendants should not have released the plaintiff into an environment where he could harm others. This was the very kind of thing which was likely to happen as a result of the defendants’ negligence.

289 In the suicide cases, close attention has been paid to the nature of the act or attempted act of suicide and whether that was intentional or deliberate or voluntary. The act of suicide is not now criminal. Nor is attempted suicide an offence. In Reeves v Commissioner of Police at 367 Lord Hoffmann, after referring to the general principle that the “free, deliberate and informed act or omission of a human being, intended to exploit the situation created by a defendant, negatives casual connection” continued:

“. . . [T]here is an exception to this undoubted rule in the case in which the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being. It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss.”

290 Clunis v Camden & Islington Health Authority, to which I have already referred, is to be contrasted. The psychiatrist employed by the defendant was responsible for the plaintiff, a patient by reason of mental disorder. When at large, the plaintiff killed another man, was charged with murder and pleaded guilty to manslaughter on grounds of diminished responsibility. The employed psychiatrist was negligent in various ways which mirror the claims made by the plaintiff in these proceedings. In Clunis, it was contended on the plaintiff’s behalf that if he had been assessed in a timeous and proper manner he would either have been detained or would have consented to become a patient and would not have committed manslaughter. In consequence of the defendant’s breach of duty, he would be detained for longer than he otherwise would have been detained and was unlikely to regain his liberty for many years (p 985B). The Court, as already mentioned, held that public policy precluded it from entertaining the claims of the plaintiff who had been convicted of a serious criminal offence unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong (p 989E). At 990, Beldam LJ referred to Gray v Barr and the emphasis placed by Lord Denning on the proposition that in manslaughter of every kind there must be a guilty mind. In considering the defendant’s duty, the Court of Appeal at 993 referred to X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 at 753 where it was observed that the question whether a doctor owed a duty of care to a patient in certifying that a patient was fit to be detained under the Mental Health Acts was left undecided in Everett v Griffiths [1920] 3 KB 163; [1921] 1 AC 631 and still remained open for decision in an appropriate case. However, their Lordships had no doubt that it would not be right to hold the employed psychiatrist liable to the plaintiff in damages for failure to arrange the plaintiff’s assessment more speedily than she did.

291 In X (Minors) v Bedfordshire County Council at 739, Lord Browne-Wilkinson said that the question whether there is a common law duty owed by a public authority to the plaintiff and, if so, its ambit must be profoundly influenced by the statutory framework within which the acts complained of were done. In his Lordship’s judgment “a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.”

292 In general terms, two considerations may stand in the way of the plaintiff’s success in the present case. Although he was acquitted on grounds of mental illness, his act was and remained an unlawful act. His was not justifiable homicide but an unlawful homicide for which he was not criminally responsible. By contrast, suicide or attempted suicide have not since 1984 been crimes in New South Wales; see s31A of the Crimes Act 1900 inserted with effect from 3 August 1984. Adams J recognised that the plaintiff’s acts were deliberate acts of killing. His acquittal on the grounds of mental illness proceeded in the language of Dixon J in Porter on the supposition that the plaintiff knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. Although the plaintiff was acquitted and hence held not criminally responsible for the murder, what followed for which he now seeks compensation was the statutory response to the reason for his acquittal; s39 of the Mental Health (Criminal Procedure) Act. He was accordingly detained in strict custody in a psychiatric hospital. He claims damages for the consequence of that detention.

293 While the plaintiff could call in aid the decision of Woolf J in Meah v McCreamer (No 1) that decision has been rejected by this Court in State Rail Authority of New South Wales v Weigold. But in that case, Samuels JA categorised the plaintiff’s criminal activity as the result of a rational and voluntary decision. It is notable that in the earlier decision of this Court in Grey v Simpson Samuels JA had remarked that the plaintiff was not to be compensated for illegal activity as such but for the adverse consequences of activities, causally linked to the breach of duty and foreseeable as a not unlikely result of it. The theme, through the cases I have referred to, is that where compensatory damages claimed for the consequences of a criminal act are refused this is because the act was indeed criminal and the plaintiff was sane when committing it. See for example, Champagne v United States. In this case, in the language of Smith J in Haber v Walker, which I have quoted in para 110, the plaintiff’s human action could not properly be regarded as “voluntary”. It was not the result of the exercise of a free choice.

294 The review of the cases demonstrates that the present case is unusual if not unique. In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at 262 [14] Gleeson CJ said: “In some cases, where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable.”

295 The following features assist in identifying the harm that the plaintiff here suffered. First, the plaintiff claims to recover damages because of the failure of the defendants to detain him when according to his own evidence he wished to be detained. Secondly, the plaintiff claims to recover damages the consequence of his deliberate and unlawful killing of Ms Laws. The damages sought are for the consequences of those acts of killing. The result of those acts was that the plaintiff was lawfully detained in strict custody in a psychiatric hospital as a forensic patient until released by due process of law. Public policy must loom large in a court’s consideration of whether the plaintiff be compensated for the harm so suffered.

296 In the first place, the MHA is directed to enabling detention only as a last resort. I doubt that the policy behind the statutory provisions contemplates or permits a party to recover damages because a medical superintendent has refused to admit the claimant to a hospital as an informal patient albeit that the decision to refuse was a negligent decision. This “would have a tendency to discourage the due performance” by the statutory authority and medical superintendents of their statutory duties; X (Minors) v Bedfordshire County Council. In Hill v The Chief Constable of West Yorkshire [1989] 1 AC 53, the plaintiff claimed on behalf of the estate of her daughter, who had been murdered in the defendant’s police area, damages against the defendant for negligence. The claim was brought on the basis that in the conduct of investigations into the crimes which had been committed by the murderer the police had failed to apprehend him and prevent the murder of her daughter. At 63, Lord Keith of Kinkel said:

“The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded.”

There is no reason whatsoever to doubt that persons working in a psychiatric hospital would be applying their best endeavours to the care of those who come to the hospital. From time to time, things go wrong.

297 The facts of Williamson v Liptzin 539 S.E 2d 313 (NC App 2000) were these. A former psychiatric patient killed two people on the streets of Chapel Hill, North Carolina, and then sued the psychiatrist who had treated him for failing to prevent the murders. A jury awarded the patient US$500,000 in damages. The patient, a second year law student at the University of North Carolina, had some previous history of mental health problems. It appeared that the psychiatric treatment complained of had occurred eight months before the fatal shooting. On the defendant’s appeal the Court of Appeals of North Carolina directed the trial court to enter judgment in the defendant’s favour. An application for leave to appeal to the Supreme Court of North Carolina was refused 548 S.E 2d 734 (NC 2001). Principally the appeal was upheld because the Appeals Court found that the alleged negligence was not the proximate cause of the plaintiff’s injuries and therefore he was entitled to a directed verdict [4,5]. However, in the course of its judgment the Appeals Court said at 323:

“Our conclusions concerning the foreseeability of plaintiff’s injuries and the unpredictability of mental illness are further supported by public policy concerns. A court must ‘evaluate [the plaintiff’s] allegations in light of the goal of treatment, recovery and rehabilitation of those afflicted with a mental disease, defect or disorder.’ Seibel v Kemble 631 P.2d 173 (1981) at 176. Imposing liability on a psychiatrist in an outpatient, short-term setting for the actions of a patient that were at most based on risk factors and not foreseeability would have adverse effects on psychiatric care. It would encourage psychiatrists and other mental health providers to return to paternalistic practices, such as involuntary commitment, to protect themselves against possible medical malpractice liability. Despite public perceptions to the contrary, the vast majority of the mentally ill are not violent or are no more violent than the general population and thus, such rigid measures as involuntary commitment are rarely a necessity. See generally John Monahan, Mental Disorder and Violent Behaviour: Perceptions and Evidence, 47 Am. Psychol. 511, 519 (1992) ...’If a liability were imposed on the physician ... each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated.’ Taig v State, 19 A.D.2d 182, 241 NYS 2d 495, 496-7 (1963).”

298 The evidence in the present case demonstrates that the plaintiff was harshly, if not badly, treated as a forensic patient. There may be much to be said for the argument that a person so detained lawfully is entitled to better treatment and monetary compensation. But the detention and treatment of the plaintiff was that prescribed by law as the consequence of the unlawful killing of Ms Laws. Yet, the damages here awarded are similar to those which would be awarded, as general damages, if the plaintiff had been unlawfully detained.

299 In none of the cases discussed has the Court needed to consider, in general terms, and apart from vicarious responsibility, the responsibility of one person to another for the harm done to the latter by a third person. In a well known passage in Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 at 262, Dixon J, said:

“...he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature.”

In that case, the special relationship was between a parent and a young child. But in the present case, the duty to control or indeed ability to control depended upon a decision to exercise the power of detention. Once that control was lost by the refusal to detain, it is difficult to see how a duty to control extended for some indeterminate time while the plaintiff was at large; compare State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113 at [52] and following. If responsibility is limited to a particular period of time, in this case six hours, or to harm done to persons with some relationship to the attacker, in this case the fiancée of the plaintiff’s brother, or otherwise, where is the line to be drawn either in the case of a claim by the attacker for the consequences of his attack (the present case) or a claim by the victim or the victim’s representatives?

300 If, in the present case, instead of killing Ms Laws the plaintiff had come upon Dr Nazarian that night and killed or injured him, Dr Nazarian’s estate or Dr Nazarian would by parity of reason, have been liable to compensate the plaintiff for the consequences of his detention as a result of the unlawful killing of or assault upon Dr Nazarian. In this case, identification of the nature of the harm suffered by the plaintiff points as a matter of commonsense against the existence of a legal responsibility in the defendants for that harm. In my opinion, the verdict and judgment in favour of the plaintiff must be set aside.

Damages

301 Adams J noted that the plaintiff was still a relatively young man and that it was very likely that he would be subject to significant restraints on his freedom for the rest of his life. In one way or another he was alienated from his family and there was a heavy load of guilt. His Honour described the plaintiff’s time in prison on remand as a terrifying nightmare. His incarceration as a forensic patient only slightly less so. It was put to the judge that the plaintiff would have been detained for a period in any event as a mentally ill person. In his Honour’s view that period of detention would have been for about four weeks or so. Some period of post-discharge supervision would also have been necessary. Having considered it probable that he would have been detained as a mentally ill person and taking the likely period of detention into account his Honour assessed general damages at $225,000.

302 The appellants claimed this was manifestly excessive and that his Honour failed adequately to state his findings and the reasons for his decision. Examples were given of cases in which plaintiffs had suffered “horrific injuries” such as gross and extended scarring of the face and body, burn marks, many operations involving skin grafts and painful procedures with consequent after effects; see New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports 81-695 in which cases general damages between $225,000 and $390,000 were awarded. By contrast, the plaintiff’s experience in the psychiatric ward of the prison hospital was summarised as follows in a report of the consultant psychiatrist, Dr Olav Nielssen of 1 August 1995:

“Mr Presland has been an inpatient in the psychiatric ward of the prison hospital since 6/7/95. He arrived two days after killing his brother’s fiancé while experiencing a florid alcohol withdrawal syndrome.

On admission he reported psychotic symptoms over the previous three days, including believing his movement were being controlled by a former employee who he thought was trying to recruit him into devil worship, believing he recognised police officers who took him to a psychiatric hospital as former enemies in disguise, believing he was going to be killed while having a CT scan at Newcastle Hospital or if he fell asleep during his overnight stay at James Fletcher psychiatric hospital, and voices telling him that his family had been killed.

Mr Presland had no history of psychiatric illness or treatment in the past. He had been a heavy drinker for many years and had never attempted to stop drinking until two days before the offence. There was no previous history of alcohol withdrawal symptoms.

On admission Mr Presland looked battered from three separate fights in the proceeding days and had cuts on his feet and hands as well as several bruises and lacerations on his face and scalp. He was lucid and correctly oriented in time and place. The withdrawal symptoms had abated by the time he reached the ward and he gave a reasonable account of the events. There was no evidence of alcoholic brain damage.

He was treated with diazepam (Valium), vitamins and physical care. At subsequent interviews he was coherent and showed no evidence mental illness or brain damage. Nursing observations indicate that he slept well, was not depressed and the only abnormal feature was his indifference to his predicament.

He is currently on no psychotropic medication and is fit for trial.”

303 The respondent referred to what Dixon CJ and Kitto J said in Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190 at 195. The appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal at first instance is a judge sitting alone, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one) or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

304 I have already summarised what Adams J said about what took place immediately after the plaintiff had killed Ms Laws. After the time that the plaintiff was in remand, the subject of Dr Neilssen’s report, he was in Maitland Gaol, a primitive prison where he saw many bashings. He had limited visits from his father and mother and became very depressed and very ashamed. After his acquittal he was in the prison hospital at Long Bay for about eighteen months and described his daily routine which perhaps not unexpectedly lacked incident. When he was transferred to A Ward conditions were somewhat less harsh. There was more space and television and radio were allowed. Even after he was released from detention, conditions were imposed essentially that he accept the supervision of a named clinical nurse consultant and accept directions as to his living arrangements and live in accommodation in metropolitan Sydney. He was subject to return to detention in a psychiatric hospital if the consultant or his treating psychiatrist thought it in his best interests to do so.

305 As was said by Fullagar J in Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 559 general damages are of their very nature incapable of mathematical calculation and very much “at large”. The trial judge has a wide discretion in assessing them. Damages may be awarded for “pain and suffering” both in the past, at the present and for the future. Also to be considered is the loss of amenities or enjoyment of life.

306 In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 the majority (Mason CJ, Deane, Dawson and Gaudron JJ) at 61 referred to Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 516 as expressing the governing principle applying to an appeal against a jury verdict on the ground that it is excessive. “[T]he amount is such that no reasonable body of men could have awarded it.” Their Honours said at 61-62:

“If an appellate court is convinced, not that in its own view the amount is too high or too low but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, the proper performance of its function will require it to intervene to prevent a miscarriage of justice.”

307 In the present case, in my opinion, general damages of $225,000 is so high as to fall outside that range of what could reasonably be regarded as appropriate. Assuming, contrary to the conclusion that I have come, that the plaintiff was entitled to recover damages from the defendants there is no doubt that the plaintiff suffered in the ways described immediately after his arrest in terms of the prison environment which he endured on remand, his confinement as a forensic patient and for loss of amenities over a limited period of time. No doubt the trauma of these events would, to an extent, carry forward into the future. In my opinion, an appropriate award for general damages would be $100,000 attributable as to 75 per cent for past damages and 25 per cent for the future.

Orders

308 I propose the following orders:

1. Appeal allowed;

2. Set aside the verdict and judgment for the plaintiff;

3. In lieu thereof verdict and judgment for the defendants;

4. The plaintiff to pay the defendants’ costs of the trial and of the appeal but to have a certificate under the Suitors’ Fund Act 1951, if so entitled.

309 SANTOW JA:

INTRODUCTION

This appeal is an unusual, quite possibly unique case, arising out of tragic circumstances. It concerns the liability in negligence of a statutory authority and the employed psychiatrist of a hospital, for whose operations the authority was responsible. The trial judge, Adams J in his judgment of 19 August 2003 (at [3]) described the substance of the successful plaintiff’s case in these terms:

“3. ..... it was negligent of the Hunter Area Health Service, responsible for the operations of the two hospitals to which [Mr Presland] had been admitted on 3 July, [1995] and the doctor [Dr Nazarian, a psychiatrist employed at that hospital] who discharged him, not to have detained him as an involuntary patient under the Mental Health Act 1990 ..... an action, which would have averted the tragic death at his hand of Ms Laws, his subsequent incarceration and the distress and economic loss which resulted from these events.”

310 The trial judge concluded that both the authority Hunter Area Health Service (“Hunter”) and the psychiatrist Dr Nazarian (“the appellants”) were liable in negligence to Mr Presland (“the respondent”). This was for Dr Nazarian’s failure, in terms of the Mental Health Act 1990 (NSW) (“the Act”) to conduct a proper enquiry into his mental state and in consequence failing compulsorily to detain him under its provisions. The trial judge accepted that the respondent, when he killed his brother’s fiancée Ms Laws, was acting under the compulsion of his overwhelming delusions rather than voluntarily, with the result that he was subsequently found not guilty on the ground of insanity. He concluded that the adverse personal and legal consequences for the respondent which followed, and in particular his loss of liberty as a forensic patient for 18 months, were both foreseeable and caused by the negligence of the appellants.

311 What makes this case so unusual is that the action is brought, not by the victim or the victim’s relatives, for the consequences they have suffered. Nor is the plaintiff compensated for any physical self-harm suffered. Nonetheless, the respondent undoubtedly suffered other non-physical harm of a serious kind following the hospital’s failure compulsorily to detain him. It is for this harm that he seeks to recover.

312 The respondent’s case needs to be considered with a fair appreciation of that fact to determine whether in accordance with the proper application of principle, he was entitled to recover from the appellants. I have had the advantage of reading the draft judgments of Spigelman CJ and of Sheller JA. Spigelman CJ rightly observes at [95] of his draft judgment that “how a society treats its citizens who suffer from mental illness, particularly the criminally insane, is often a test of its fairness.” I would however add, to paraphrase what was said by McHugh J in Cole v South Tweed Heads Rugby [2004] HCA 29; (2004) 78 ALJR 933 at [46] “some minds may instinctively recoil” at the idea that a hospital authority and psychiatrist, however careless, may be liable for the loss of liberty lawfully suffered by a forensic patient, following his killing of another while insane, itself an unlawful act, but without criminal consequence. Such an instinctive recoil is no substitute for the objective application of tort principle, as McHugh J there points out. But that reaction may nonetheless be a reflection of more considered community values, not to be stigmatised as based merely on prejudice or emotion. As H L A Hart pointed out over 40 years ago insanity is not a justification for an unlawful act of homicide but rather an excuse. As an excuse, it reflects the fundamental moral principle “that a person is not to be blamed for what he has done if he could not help doing it”. H.L.A. Hart “Punishment and the Elimination of Responsibility” (Athlone Press, 1962) at 20. The history of insanity as a defence to criminal responsibility by reason of absence of mens rea, is illuminatingly set out in O’Brien J’s judgment in R v S [1979] 2 NSWLR 1.

313 But it does not follow that such a person, as distinct from his victim, should be compensated for the lawful consequences to him that followed the hospital authorities’ initial failure to detain him for treatment. This is for two possible reasons. The first is grounded in legal policy and the second relates to what would have happened if the supposed duty had been performed.

314 Gummow J observed in Chappel v Hart [1998] HCA 55; [1998] 195 CLR 232 at 255-6 [62] concerning causation that:

“... the “but for” test is not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations. So, it may be “unjust” to hold a defendant legally responsible for an injury which, though it may be traced back to the wrongful conduct of the defendant, was the immediate result of unreasonable action on the part of the plaintiff.”

315 While here the respondent was, by reason of insanity, judged incapable of acting with the necessary intent, his act of homicide was an unlawful act, hardly to be described as constituting reasonable action. Without in any way relying on the ex turpi causa maxim, I ultimately conclude that it would be unjust for the common law to allow the respondent a remedy for the non-physical injuries he has suffered in these circumstances. I here differ respectfully from Spigelman CJ’s conclusion to the contrary, at [78]. I do not base my conclusion on any moral culpability on the part of the respondent. Rather I base it on what I conceive legal policy, ultimately based on community values, would consider just in such a case.

316 The second possible reason is more difficult, turning as it does on what would have happened, absent the negligent omission on the part of the appellants. Hayne J in Chappel v Hart (supra) at 282 [113], though in the minority in the result, put the issue in these terms:

“The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged.”

317 Here the trial judge considered on the evidence that the respondent would have been detained only some four weeks (as against 18 months he spent as a forensic patient); judgment at [174]. Providing him access to treatment in that four weeks does not mean that it could have been effectively imposed against his will or would have removed the risk of psychotic behaviour. This is so, given the evidence that compulsion would have been needed to detain him in the first place and recognising that the 18 month period he spent as a forensic patient was much longer, albeit there would have been need for a substantial margin of safety before releasing him. Here, unlike the situation in Chappel v Hart (where Mrs Hart would not have had the operation done by the less experienced surgeon if properly warned of risk) what would have happened here had the respondent been compulsorily detained for the four weeks is unclear. But if it be accepted that the risk of a psychotic episode leading to the death of some other third party if not Ms Laws, may have been reduced, it certainly would not, on the evidence, have been eliminated.

318 In causal terms, that factor may nonetheless not suffice to break the chain of causation. Thus, to quote Dixon J in Betts v Whittingslowe, cited for example by Gaudron J in Chappel v Hart (at 238 [8]):

“breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach.”

319 Here however, the “accident” whose consequences are sought to be brought home is not the immediate death of Ms Laws, but the ultimate consequences for the respondent who was carelessly released rather than compulsorily detained for treatment. In answering the question posed by Lord Hoffman in Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 at 91, what is the purpose and scope of the (common law) rule said to render the appellants liable, one is taken back to legal policy. At the least, causal uncertainty as to what would have happened had the duty been performed is strong reason for caution in extending the appellants’ duty of care to the non-physical consequences suffered by the respondent, primarily from deprivation of his liberty though not disregarding the other adverse personal consequences.

320 On damages, the trial judge, having concluded in favour of the respondent, awarded him general damages of $225,000 and $119,300 for economic loss. The former was principally for the deprivation of liberty he suffered as a forensic patient over an eighteen-month period before his release. But it also took into account that he suffered damage in the form of mental anguish arising from his sense of guilt and from his alienation from his family, including the distress he feels that his family is frightened of him.

321 Dr Nazarian, and the Hunter Area Health Service appealed on forty-eight grounds. Four of those grounds, under the heading “Conduct of the trial”, namely grounds 43 to 46, were not pressed. The appellant challenged a number of specific factual findings of the trial judge. These went principally to whether Dr Nazarian and the hospital were at fault in failing to carry out a proper enquiry and in failing in consequence compulsorily to detain the respondent under their statutory powers, in the circumstances that obtained. They also challenged a number of the trial judge’s legal conclusions, namely,

(a) that there was a duty of care extending in scope to the injury and damages claimed;

(b) that there was a breach of that duty;

(c) that the requirements for causation were made out, and

(d) that damages should be awarded in the amounts in question.

322 Sheller JA set out the scope of the appeal in terms which it is convenient to repeat:

“In broad terms, as argued, the submissions on appeal were directed to the nature and content of the duty of care owed by the defendants to patients who presented for psychiatric assessment and treatment; the appropriate test for determining whether a breach of any such duty had occurred; the interaction between the common law duty and the MHA [the Mental Health Act 1990] and the role it played in the formulation of any common law duty; breach of duty and causation. As to the findings of fact that Adams J made, the appellants, in particular, challenged the trial judge’s findings about the material available to Dr Nazarian to be taken into account at the time that he assessed the plaintiff and his findings about whether the plaintiff and [the Respondent’s brother] Mr Allan Presland, or either of them, wished the plaintiff to remain as an informal patient at JFH. The appellants submitted that the trial judge erred in failing to find that Mr Allan Presland demanded, or alternatively requested, in a forceful manner the release of the plaintiff. The appellants also challenged his Honour’s findings about the contents of the police escort form. The challenge to many of the findings of fact fed into the appellants’ submissions that Adams J wrongly rejected the opinion of the defendants’ expert Dr Milton and failed to attach significance to the divergence of opinion between the various medico-legal experts. The appellants submitted that the award of general damages was manifestly excessive and not supported by adequate reasons.

Duty of Care

What may, in some respects, be regarded as an unconditioned power to discharge an informal patient, bearing in mind, for example s18(a) (though compare s17), led Mr Walker [senior counsel for the respondent] to emphasise that the plaintiff alleged general negligence. The plaintiff pleaded that by reason of his admission to JFH as an informal patient, there arose on the part of the defendants a duty of care to exercise, in respect of his assessment, management and treatment, the care and skill to be expected of a specialist psychiatric hospital and of a psychiatrist. However, the relevant power to be exercised in due care for the patient, while to be considered as part of the necessary care, treatment or control of the patient for the patient’s own protection from serious physical harm or for the protection of others from serious physical harm, was subject to a statutory constraint designed to ensure that the patient received the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given. The facts of this case were such that no question turned upon any difficulty in determining the balance. According to the trial judge, such was the negligence of Dr Nazarian that he was never able properly to determine whether or not the plaintiff was a mentally ill person or a mentally disordered person within the meaning of the MHA. Dr Nazarian, who was acting as medical superintendent, had the conditioned power on the morning of 4 July 1995 to detain the plaintiff in JFH pursuant to s18(b) of the MHA. Whether Hunter’s negligence or the negligence of Dr Nazarian enabled the plaintiff to recover damages for that negligence required further consideration of the circumstances in which Dr Nazarian was called upon to exercise the statutory power to detain.

Hunter and Dr Nazarian accepted that each owed the plaintiff a general duty of care at common law of the nature pleaded. That concession inevitably recognised that if the plaintiff should have been detained because he was mentally ill or mentally disordered and there were reasonable grounds for believing that his detention was necessary for the protection of others from serious harm, the defendants could scarcely argue that they should not have foreseen the risk of injury of the kind which in fact occurred; compare Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 578 [87]. ...”

323 For reasons elaborated below, the conclusions I have reached are these. I adopt, as does Spigelman CJ, Sheller JA’s outline of the facts and summary of the issues and submissions. I consider that, for the reasons which Sheller JA gives, the various grounds of appeal relating to breach should be rejected. As however is clear from his reasons, Sheller JA reaches different conclusions concerning the ultimate legal questions set out at (a) to (c) above, as well as on damages, were it required to be determined.

324 I agree with Sheller JA as also Spigelman CJ that the appeal on quantum of damages should be allowed were any damages to be awarded. However, I agree with Sheller JA that the respondent was not entitled to recover any damages from the appellants. In particular I agree with Sheller JA that the appellants’ duty of care did not extend in scope to encompass the claims of the respondent. On causation, I conclude with Sheller JA that the appellants were not responsible at law for the damage claimed by the respondent, being damage said to arise out of the respondent’s failure to exercise proper care with respect to diagnosis of the respondent and, subject to any necessary consent, treatment. I set out below my own reasons for reaching those conclusions.

325 I agree in the main with Spigelman CJ’s powerfully reasoned exposition of the principles for determining the scope of liability of statutory authorities for negligence. Where I respectfully differ is as to the application of those principles, and the weighting given to the relevant factors, when applied to determine the extent of any legal responsibility for what befell the respondent. In particular I respectfully differ as to the proper scope of the duty of care in this context and on causation.

326 I deal below with:

(a) the statutory scheme governing compulsory detention of the mentally ill, and its implications for the scope of the duty of care of the appellants,

(b) the scope or extent the appellants’ duty of care,

(c) the relevance of unlawful conduct,

(d) causation, and

(e) damages.

The Statutory Scheme and its Implications

327 The Act empowers a hospital, subject to a number of significant statutory constraints and pre-conditions, to impose involuntary detention for a limited period, on a person within its purview. Such a person must first be certified under s21 of the Act by a medical practitioner to be a “mentally ill person” (s9) or “mentally disordered person” (s10) as those expressions are there defined.

328 The Act differentiates between voluntary and involuntary admission to hospitals. A voluntary admittee is called an “informal patient”. Different procedures and consequences follow from that categorisation. An informal patient may become a compulsory detainee in certain circumstances.

329 Section 9 of the Act is headed “mentally ill person”, and section 10 “mentally disordered persons”. In the case of a mentally ill person, the definition is predicated on there being “reasonable grounds for believing” that care, treatment or control is necessary

“(a) for the person’s own protection from serious physical harm; or

(b) for the protection of others from serious physical harm.”

330 Similarly, in the case of a “mentally disordered person”, the definition is predicated on “behaviour ..... so irrational as to justify a conclusion on reasonable grounds” that “temporary” care, treatment or control is necessary for the above protective purpose. (There are other differences between the two categories, but they do not matter here.)

331 Spigelman CJ in his judgment concludes (at [25]) that these definitions are of particular significance. I agree; indeed I consider them pivotal to the operation of the Act and as bearing directly on the scope of the psychiatrist’s and hospital’s duty of care. Spigelman CJ points out that “serious physical harm” is not a phrase which would extend to deprivation of liberty. As this is the principal source of injury allegedly suffered by the respondent from the failure to detain, he observes that “consideration of the scope and purpose of the statute does not strongly support a common law duty” (at [27]).

332 This notwithstanding, Spigelman CJ ultimately found sufficient basis in other factors for the appellants’ duty of care to extend to the harm suffered by the respondent. He emphasised two factors in particular. The first was “control” (the hospital had a “high level of control” over whether the respondent was detained or not (at [80]). The second factor was “vulnerability” (the respondent could not “look after his own interests to the extent of seeking voluntary admission or, on the appellant’s case, requesting a discharge” (at [81] and earlier at [19]); see also [34].

333 The question this poses is whether those factors are sufficient to justify a duty of care extending to the non-physical injuries suffered by the respondent, following the hospital’s failure compulsorily to detain him pursuant to the statutory power in that behalf. It is important to bear in mind that the duty of care here invoked is directed not to any physical harm the respondent suffered, serious or not, nor to any physical harm suffered by a third party at the hands of the respondent while in his psychotic state. Rather the claimed duty of care is directed primarily to compensating the respondent for the 18 months deprivation of liberty he suffered as a forensic patient, following his killing Ms Laws while insane, as well as compensating him for the mental anguish he suffered as a result of that killing and in being alienated from his family.

334 That poses a number of questions. First as to the scope of such a duty of care. Would allowing a duty of care of such extent be compatible with the statutory scheme? Would its recognition introduce incoherence to the law or at the least give rise to unacceptable tensions within the law, in particular in relation to the statutory scheme?

335 Second, as to causation or the scope of liability for consequences. Are these injuries suffered by the respondent properly attributable to the appellants’ failure compulsorily to detain him? Has it been shown by the respondent that, had the postulated duty been performed, he would not have suffered that harm, or like harm, to that which befell him? In particular, had he been compulsorily detained for the likely four weeks estimated by the trial judge, as against the eighteen months he suffered as a forensic patient, has it been established on the balance of probabilities that he would (a) have undergone treatment that might have had to have been imposed against his will, and (b) would such treatment have averted his killing Ms Laws, or if not her then some other person, on his discharge?

336 Finally there is the question of principle bearing upon the reasonableness of the imposition of a duty of the kind here asserted, or the reasonableness of so extending causal responsibility. Here the law does make value judgments such as respecting personal autonomy; compare for example Gleeson CJ in Cole (supra) at [13] to [15]. That principle with its normative aspects necessarily underlies consideration of the extent of any duty, and the extent of causal responsibility. It is connected to the question of coherence in legal principle and values when, as here, we are considering a relatively novel extension of a recognised form of duty of care. Coherence in values (the phrase used by Gleeson CJ in Cole at [14]) affects the weight to be given to factors such as vulnerability and control as affecting the capacity to make impartial decisions under the Act. The statutory scheme requires the civil rights of the individual to be accommodated and balanced against the need for restraint of a mentally ill or disturbed person so affording him access to treatment in the interests of both patient and the wider community. The critical task is to assess whether the person meets the statutory description of a mentally ill person or mentally disturbed person and then ensuring that “any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances” (s4(2)(b) of the Act, quoted below).

337 The trial judge held that Hunter Area Health Services owed a common law duty of care to the respondent which it had breached by failing to detain him for treatment; this must be taken to be under s21 of the Act, referred to below. In particular he held that, subject to issues of foreseeability of injury, causation and possibly the ex turpi causa principle, on each of which he found for the respondent, the defendants were obliged in their diagnosis and treatment of the respondent to provide an appropriate level of care, including detention.

338 The respondent as plaintiff pleaded that, by reason of his admission to James Fletcher Hospital (“JFH”) as an “informal patient” (defined in the Act as a person “admitted to the hospital under s12”, meaning at his own request) there arose on the part of the defendants a duty of care. That duty, as pleaded was to exercise, in respect of his assessment, management and treatment, the care and skill to be expected of a specialist psychiatric hospital and of a psychiatrist.

339 Specifically on the respondent’s case at trial, this meant, in the circumstances, applying the statutory powers of compulsory detention relevantly to be found in ss18 and 21 of the Act, in order to exercise the required care and skill in assessment, management and treatment (see judgment at [156]). On that the appellants had joined issue at trial, submitting that:

“the correct formulation of the scope and content of the duty is that the appellants owed to the respondent a duty to provide proper care by acting reasonably in diagnosing his condition and, subject to his consent, treating it appropriately. This did not include a consideration of whether it was appropriate to exercise a statutory discretion to compulsorily detain him and deprive him of his liberty.”

340 The objects of the Act (s4) bear upon this question. They disclose the purpose for any admission imposed or, importantly, continued, though the person be first admitted voluntarily. Those objects are “to facilitate the provision of hospital care ... on an involuntary basis” (s4(1)(c)) and in particular “while protecting the civil rights of those persons to give an opportunity for those persons to have access to appropriate care” (s4(1)(d)). Those persons are those referred to in ss9 and 10, namely a “mentally ill person” ors a “mentally disturbed person”.

341 As Clarke JA explained in Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315, when dealing with whether the Tribunal had the power to make a community treatment order under s131 of the Act, the statutory scheme is a beneficial one (at 342). He described the objects of the Act (at 337) in broad terms thus:

“to provide for the care and treatment of persons who are mentally ill, or mentally disordered, through community care facilities and hospital facilities and to ensure that they are given an opportunity to have access to appropriate care, while at the same time protecting the civil rights of those persons. This is made clear by s4(2) in which there is an expression of the intention of Parliament that the provisions of the Act be interpreted so that:

‘(a) persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given; and

(b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.’”

342 In Harry (supra) there emerged a clear difference of view between Kirby P and Mahoney JA on the purpose of the legislation, as affecting its interpretation when it came to compulsory treatment by community treatment order. On the broader question Clarke JA did not expressly take sides but his conclusion on compulsory treatment places him closer to Mahoney JA. The broader issue was whether, in interpreting the Act, the civil rights aspects protective of the patient against unwanted treatment, should be given special weight or primacy (Kirby P) as against the perceived interests of the patient and society whereby, subject to statutory safeguards, medical treatment can be imposed even against consent (Mahoney JA).

343 While the present case is concerned directly with the compulsory detention power the question of whether during detention treatment could have been imposed has some relevance to the causation question, though it is not determinative. The civil rights issue reflected in that judicial conflict in Harry brings out a fundamental point about which there is unlikely to be dispute. It concerns the need for impartiality of decision-making in this difficult area, on the part of hospital psychiatrists and hospital supervisors. They are charged with making difficult decisions which are to accommodate in the words of Clarke JA in Harry “access to appropriate care” with “protecting ... civil rights”. If the duty of care is so extended as to render hospitals and psychiatrists liable for any carelessness that brings about adverse consequences to those affected by those difficult decisions, will this distort the impartiality of that judgment, so made in a detrimentally defensive frame of mind? That may affect the quality of the decision in either direction, depending on the circumstances.

344 It is for that kind of reason that the police, in the performance of their investigative functions, have enjoyed immunity. Thus more recently, in State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371, in the context of a claim for psychological damage suffered as the result of the way in which the principal of a school was dismissed, Spigelman CJ observed (at 393):

“[114] One factor that is common to all three stages [of the statutory decision-making process] is the inhibiting effect on the process of investigation and decision that would arise if the law were to impose a duty of care to avoid the risk of mental trauma to the person whose conduct was being investigated.

[115] As a general rule, in my opinion, it is undesirable to inhibit an investigation into the exercise of a statutory power which protects public interests by imposing the chilling effect of a risk of civil liability. As Lord Keith of Kinkel said with reference to police investigation of crime:

“In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind.’

(Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 63.)

[116] In X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633, Lord Browne-Wilkinson said:

‘... a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.’ (at 739)...”

345 That said, candidates for immunity from negligence liability, particularly for physical injury have to satisfy a heavy burden of justification for such dispensation. That is no less so for statutory authorities; see for example Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at 556-7 [97] per Gaudron, McHugh and Gummow JJ and 602-3 [234]-[235] per Kirby J. I emphasise physical injury. I do so recognising what McHugh J described as the common law’s reluctance to impose a duty of care on the harm-causing person, even where it was reasonably foreseeable that harm of that kind was reasonably foreseeable, “where the harm suffered ... is economic loss or injury to reputation or liberty”; McHugh J in D’Orta–Ekenaike v Victorian Legal Aid unreported [2005] HCA 12 at [102]- [103]. This is not the case of an action brought by a third party against a careless hospital, who was physically injured during a psychotic episode at the hands of someone whose compulsory detention for treatment would have averted the injury to that person.

346 As McHugh J also recognised (D’Orta-Ekenaike (supra) at [102]) when the law allows exceptions to the general rule that reasonable foresight of physical harm will give rise to a duty of care, it does so for reasons of policy. That is so no less for physical injury than for the non-physical economic injury or injury for loss of liberty, as barrister’s immunity illustrates. An important policy issue here is the asserted “chilling” effect from the threat of civil suit on hospitals in this kind of case.

347 In the present case Spigelman CJ resolved that issue in favour of liability. He explains (at [41]) his reasons by reference to the safeguards by way of review under the Act:

“There may be circumstances in which the possibility of defensive medicine can unduly impinge on the performance of the statutory duty by, to use one of the formulations set out in [21] above, distorting the focus of the process. However, in the statutory scheme here under consideration, the number of times a decision to detain must be reviewed, culminating in a decision by a magistrate, indicates that this is not likely to be a problem in the present context. One of the reviewing practitioners or the magistrate should be able to resist the institutional imperative of minimising the risk of civil action. Coherence is not, in my opinion, entitled to significant weight in the present context.”

348 Before dealing with my own consideration of that aspect, I need to return to the specific provisions of the Act. Section 18 of the Act provides that, in the case of a voluntary patient, as the respondent relevantly was, a medical superintendent may take steps to detain a patient under Pt 2 (“involuntary admission to hospitals”), which includes s21. That section provides that a person may be taken to and detained in a hospital upon the issue of a certificate to that effect issued by a medical practitioner:

“21 Detention on certificate of medical practitioner or accredited person

(1) A person may be taken to and detained in a hospital (other than an authorised hospital) on the certificate of a medical practitioner or an accredited person:

(a) who has personally examined or personally observed the person immediately before or shortly before completing the certificate, and

(b) who is of the opinion that the person is a mentally ill person or a mentally disordered person, and

(c) who is satisfied that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary, and

(d) who is not a near relative of the person.

(2) The certificate is to be in the form set out in Part 1 of Schedule 2.

(3) A medical practitioner or an accredited person who gives any such certificate and who has (directly or indirectly) a pecuniary interest in any authorised hospital, or has a near relative, partner or assistant who has such an interest, must, on giving the certificate, disclose that fact and give particulars of the interest in the certificate.

(4) A person may not be admitted to or detained in a hospital on a certificate:

(a) certifying that the person is a mentally ill person—unless the person is so admitted within 5 days after the day on which the certificate is given, or

(b) certifying that the person is a mentally disordered person—unless the person is so admitted within 1 day after the day on which the certificate is given.”

349 Importantly, s21 is preceded by the prohibition in s20 which will apply unless the medical superintendent forms the opinion there defined:

“20 Detention of persons generally

A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.”

350 Finally, s28 adds a further prohibition, again dependent on the medical superintendent’s opinion:

“28 Refusal to detain

The medical superintendent must refuse to detain a person under this Division if the medical superintendent is of the opinion that the person is not a mentally ill person or a mentally disordered person.”

351 These statutory provisions are grouped under Part 1, “Voluntary Admission to Hospitals” and Part 2 “Involuntary Admission to Hospitals”, each being under the general chapter heading of Chapter 4 “Admission to, and care in, hospitals”.

352 As their titles suggest, Part 1 deals with voluntary admission and therefore “informal patients”, while Part 2 deals with involuntary admission (Part 2). However, there is potential for overlap. A patient may first be admitted voluntarily under Part 1 to a hospital, so as to become an “informal patient”. Then the medical superintendent may decide under s18(b) to take action compulsorily to detain the patient under Part 2 (s21), so continued detention is no longer voluntary. It is that combination of provisions that came into play in the present case.

353 Under voluntary admission, ss18 and 18A in Part 1 of the Act, deal as I have said with the informal patient. Such a patient is “a person who has been admitted to a hospital under s12”, meaning on the oral or written application made by that person, so constituting voluntary admission within Part 1. Under s18 the medical superintendent ”may” then decide either to discharge such an informal patient, or “if, having regard to the condition of an informal patient, the medical superintendent considers it proper to do so”, do all things as may be necessary to cause the patient to be detained in the hospital. In so doing the medical superintendent is subject to the same strictures as apply to involuntary admission to hospitals under Part 2; see ss18(b) and 18A.

354 The applicable provisions dealing with compulsory detention are to be found in Part 2. Part 2 governs both detention, continued or otherwise, of an informal patient and the admission or detention, continued or otherwise, of an involuntary admittee. Sections 19, 20, 28 and 29 of Part 2 lay down when a person must not be admitted to, or detained in or continued to be detained in a hospital (ss20, 28 and 29) or may (not “must”) be admitted to, or detained in or continued to be detained in a hospital (s21).

355 Section 21 (headed “Detention on Certificate of Medical Practitioner or Accredited Person”) set out the conditions on which a person “may be taken to and detained in a hospital” on the certificate of a medical practitioner (or other accredited person). Apart from requiring that the person be personally examined or personally observed immediately before or shortly before, completing the certificate, the principal conditions are

(i) the certifier “is of the opinion that the person is a mentally ill person or a mentally disordered person” (see definitions of “mentally ill person” and “mentally disturbed person” earlier discussed in ss9 and 10);

(ii) ”is satisfied that no other appropriate means of dealing with the person are reasonably available, and

(iii) that involuntary admission and detention are necessary”.

356 There are other requirements but mention need only be made of two time limits for so admitting. A person must be admitted as a mentally ill person within five days of the day on which the certificate is given or as a mentally disordered person within one day after the day on which the certificate is given. Such time limits are not only a safeguard for the person concerned. They also reinforce the evident purpose of the legislation expressed in the definitions of mentally ill person and mentally disturbed person, of protecting that person and other persons, from “serious physical harm”.

357 While ”may” in some contexts can mean “must” (Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106) I do not consider that the statute by itself compels the hospital or medical practitioner to admit, or compulsorily detain even though the discretion to do so is enlivened by the meeting of its preconditions. That is borne out by the objects of the Act, set out in s4 to which I have earlier made reference. Thus under s4(1)(b) the object is “to facilitate the care, treatment and control of those persons [who are mentally ill or mentally disordered] through community care facilities and hospital facilities” [emphasis added]. Similarly s4(1)(c) refers to “facilitate the provision of hospital care for those persons on an informal and voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis” [emphasis added]. Had a statutory obligation compulsorily to detain been imposed, one would expect the words to refer not to “facilitate” but to “require”, or words to that effect.

358 Moreover, s4(1)(d) carries the important qualification: “while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care” [emphasis added]. The latter words do not suggest a power to compel a particular mode of treatment against the wishes of the person. However, this is subject to the further provisions in Part 3 for community treatment orders, dealt with in Harry and to the earlier provisions of s37(3). The latter indicate that treatment may in certain circumstances be compelled, subject to such constraint as may survive at general law, or is implied by the objects of the Act.

359 As to the latter I refer in particular to s4(2) of the Act:

“(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act is, as far as practicable, to be performed or exercised so that:

(a) persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given; and

(b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.” [emphasis added]

360 The emphasised words reinforce the conclusion that where a medical superintendent is empowered to detain a patient, that empowerment confers the capacity to exercise the discretion, it does not compel its exercise. One may envisage circumstances where the medical superintendent simply does not have the facilities available to admit the person concerned, or to continue to detain him or her. More importantly, there are fine judgments required, where opinions may legitimately differ, as to the proper balance between “protecting the civil rights” of those persons and giving those persons “access to appropriate care”. Here Part 2 contemplates that access is in fact imposed by compulsory detention or its continuance, rather than as a matter of voluntary choice. The threat of legal action could readily distort that balance, in either the direction of compulsory detention, or away from compulsory detention, depending on how the litigious threat was perceived.

361 There are a number of provisions directed to protecting the patient’s civil rights, doing so in terms of mandatory obligation. I refer here not only to the provisions of the Act requiring certain opinions to be formed failing which the person must be released (ss20, 28, 29(2)). There are also the successive stages through which a person who is detained must pass, culminating in a requirement to bring the person before a magistrate, who must conduct an inquiry (ss38 and 41). Moreover, each such person carrying out a review is required to form an opinion that “no other care of a less restrictive kind is appropriate and reasonably available to the person” (ss20, 21(1)(c), 35(3), 51(3) and s4(2)). I have already referred to s21(4).

362 It is also significant that s19 of the Act places no fetter on the discretion of the medical superintendent required to review a decision by a medical officer not to admit or detain a person seeking voluntary admission. Section 19 is in the following terms:

“19 Review of decisions made by medical officer

(1) A person who is refused admission to a hospital as an informal patient under this Part, or who is discharged from a hospital under section 18, by a medical officer nominated by the medical superintendent may apply to the medical superintendent for a review of that decision.

(2) On receiving an application for a review of a decision, the medical superintendent must review the decision as soon as practicable and:

(a) in the case of a person refused admission—confirm the refusal or admit the person as an informal patient or take such other action under this Act as the medical superintendent thinks fit, or

(b) in the case of a person who is discharged—confirm the person’s discharge as an informal patient or admit the person as an informal patient or take such other action under this Act as the medical superintendent thinks fit.”

363 The significance is this. In the case of the person who applies for review of a decision declining to admit that person as an informal patient, the Act leaves it to the medical superintendent’s unfettered discretion. In particular, while the medical superintendent “must review the decision as soon as practicable”, sub-paragraphs (a) and (b) of s19(2) simply leave it to the medical superintendent to determine whether to confirm the refusal or admit the person or take such other action under the Act as the medical superintendent thinks fit. Likewise in the case of a person who is discharged.

364 There is no suggestion that if the conditions for compulsory detention were made out under s21, with nothing to the contrary under ss20, 28 and 29, the medical superintendent must admit the person concerned or compulsorily detain that person or must continue compulsorily to detain that person. All this is left to the discretion of the medical superintendent. The provisions are mandatory only in a negative sense, that is to say in precluding admission, detention or continued detention in the circumstances where either the conditions in s21 are not made out or admission, detention or continued detention is precluded under ss20, 21(4), 28 and 29, as applicable.

365 That is a powerful reason for concluding that there is at least no statutory duty in the case of a decision not to admit, detain or continue to detain, whether that decision is made in the context of someone seeking to be admitted or detained, or of someone resisting admission. This is not therefore a case where the common law duty is derived from statute; see for example Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 and earlier Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [184] per McHugh J. It is also reason for questioning whether an extended duty of care may be inconsistent with the legislative scheme.

366 On the first matter, the foregoing analysis leads me to conclude that the statute does not of itself generate a common law duty to compulsorily detain. But that, as I have said, is not the end of the matter. Here there is a pre-existing general law duty. It is imposed on the medical practitioner to exercise reasonable care and skill in the provision of advice and treatment, at the standard of care and skill of the ordinary skilled psychiatrist, exercising and professing that special skill; Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483. Does that duty extend to governing the way the psychiatrist must exercise the power to detain compulsorily, whenever the discretion is enlivened and there is no statutory prohibition on doing so? This is where failure to do so does not subject the person concerned to serious physical harm, but puts the person concerned at risk of losing his liberty by reason of detention as a result of homicidal acts committed whilst insane. (By detention I mean detention in strict custody in a psychiatric hospital as a forensic patient until released by due process of law; s39 of the Mental Health (Criminal Procedure) Act 1990 and the definition in Schedule 1 of the Act.)

367 I would answer that question in the negative for these reasons. First, there is no statutory indication that the psychiatrist’s duty of care extends beyond the person’s own protection from serious physical harm or, were action brought by an injured third party, serious physical harm to that party at the hands of the person not detained; compare ss9(1) and 10(1).

368 Moreover, to impose a duty of care in favour of that person with respect to his or her compulsory detention entails that the duty would apply both for carelessly failing to detain or carelessly choosing to detain. That introduces a distortive influence upon the hospital superintendent’s or psychiatrist’s exercise of his or her statutory discretion in either direction. The review safeguards offer no ultimate solution. At each point in the review process, depending on the circumstances, there will be a fear of legal action for failing to detain or failing to release; the discretion would be prone to being exercised in “a detrimentally defensive frame of mind”; compare Hill v Chief Constable of West Yorkshire (1989) AC 53 at 63D; Cummins (supra) at [216]. That distortive effect is also an example of where the imposition of duty of care, so extended, introduces an incoherence to the law by being inconsistent with the impartial exercise of discretion under the Act.

369 That distortive effect, and the bias it imports into what must be an impartial exercise of discretion under the Act may not arise to the same degree, if liability were limited to serious physical injury suffered by third parties at the hands of a psychotic person about whose compulsory detention the hospital were negligent. But it is not necessary to decide that question here, and I refrain from doing so.

370 There is indeed an incongruity in bringing an action based in part on loss of liberty when the loss is attributed to an earlier failure to deprive the person compulsorily of that same liberty, albeit for a much shorter time. The compulsory detention, if imposed, would likely have been for four weeks, not the eighteen months suffered by the respondent as a forensic patient. But would earlier treatment over four weeks have removed the risk of this respondent committing some other homicide or serious injury, if not against Ms Laws? Remember this would have been during a very short compulsory detention period. He was, on the evidence, suffering not only from excessive intake of alcohol and cannabis along with personal problems but paranoid schizophrenia (report of Dr Shrum, Blue, 4(6)). At most the risk would be reduced though that conclusion is not free from doubt. It is certainly impossible to say with any confidence based on the psychiatric evidence that it would, on the balance of probabilities, have been substantially removed. Thus Jonathan Phillips, a psychiatrist, in his report of 7 October 1999 concludes (Blue, 446):

“It is speculation to try and predict the life which Mr Presland would have led if it were not for the alleged negligence of the James Fletcher Hospital.

However, if Mr Presland had received proper treatment he would have made a slow but satisfactory recovery from his then paranoid psychotic illness. He may well have overcome his abuse of alcohol and cannabis, provided that appropriate counselling was offered to him both during his period of hospitalisation and following discharge the community.

Further, on the balance of probabilities, Mr Presland would not have made the attack on Ms Laws which caused her death in the absence of a paranoid psychotic illness.” [emphasis added]

371 The problem is that the psychiatrist’s report does not come to grips with what would have been the extent of his likely treatment had he been compulsorily detained for the four week period the trial judge thought would probably have occurred, on the psychiatrist’s view of the evidence (Red, 188D). Nor does it focus on the likelihood of an attack on some other person than Ms Laws. It concedes that “it is speculation to try and predict the life which Mr Presland would have led if it were not for the alleged negligence of the James Fletcher Hospital”.

372 That consideration strongly militates against imposing a duty of care of such scope, at least one going beyond self-inflicted or third party serious physical injury.

373 Second, while the factors of control and vulnerability are to a degree present, neither are in my view determinative.

374 Taking control first, it cannot be said that the depository of what is clearly a limited, conditional power to detain is in full control of the relevant risk, namely the risk that the person concerned will later kill or injure someone while insane. Compulsory detention is unlikely under the Act to last very long if resisted, given the statutory constraints. While it lasts, compulsory detention will afford some opportunity for treatment of a mentally ill or mentally disturbed person exhibiting psychotic symptoms, though the power of treatment is subject to constraint; see s4(2) of the Act. It by no means follows that the limited period that compulsory detention can be anticipated will remove the risk. If a third party were seriously injured by such a person who, through carelessness, was not compulsorily detained at the time but certainly in retrospect should have been, control would have a very different aspect. For that specific third party, but only during that limited period when compulsory detention would be maintainable, the psychiatrist is in control of the risk. But the psychiatrist and hospital cease to be in control of the risk for that third party or importantly for others, once the review mechanisms bring about release. In saying that, I again emphasise that I express no view as to whether a third party injured or killed by the person not compulsorily detained can recover. What I do say is that the factor of control is capable of operating differently in the case of a specific third party plaintiff than for a plaintiff in the position of the respondent. What I also say is that the Act confers a discretion to detain which is itself constrained only against exercise. The Act never compels an exercise of that discretion in favour of detention.

375 Moreover, the situations where due care in the exercise of discretion point to no other statutory outcome than compulsory detention will be rare. I should emphasise that here the carelessness consisted in the psychiatrist failing to carry out any proper enquiry at all so he was never in a position to make a proper diagnosis.

376 Vulnerability, similarly, bears a different aspect where the basis of claim is for loss of liberty by the person who was not compulsorily detained. Certainly such a person is vulnerable to committing homicidal acts whilst insane, unless compulsorily detained. But given the civil liberty and other hurdles in the way of compulsory detention, more especially if prolonged, that vulnerability may be reduced but is unlikely to be obviated by imposing a duty to exercise care in the decision whether to compulsorily detain. Nor is there any assurance that treatment made available to a person against his or her will, especially for such a temporary period of around the four weeks as found likely by the trial judge, will be efficacious. This is more especially when constrained by the statutory safeguards.

Summing Up

377 Accordingly, I would conclude that the duty of care that Dr Nazarian as a psychiatrist owed to the respondent (and hence, vicariously, Hunter), did not extend to Dr Nazarian’s decision whether or not to detain the respondent so as to permit any recovery for non-physical injury, essentially based on loss of the respondent’s liberty; that is to say, lost by reason of his detention in strict custody in a psychiatric hospital as a forensic patient following his killing of Ms Laws while insane. Nor do I consider that any such extended duty can be derived from, or properly accommodated to, the relevant statutory scheme. Rather I consider that to impose such an extended duty for loss not derived from serious physical injury would be inappropriate by reason of the purpose and scope of the statutory scheme, distorting the impartiality of the exercise of discretion under the Act. It would risk distorting its focus by promoting a bias towards detention, when that should be an impartial decision, taken only when fully justified, if not a last resort.

378 Moreover, if exercise of the discretion not to detain gave rise to legal liability in negligence at the suit of the person not detained, it must logically follow that in other circumstances legal liability in negligence would attach to the decision to detain compulsorily. That would further distort the exercise of the discretion in a way which would be contrary to the purpose of the statutory scheme.

379 What is said by the High Court in Sullivan v Moody at 582 [60] is directly apposite:

“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”

The above passage applies here, with the addition of “undue” before “regard”.

Relevance of Unlawful Conduct or Ex Turpi Causa

380 I agree with the observations of both Spigelman CJ and Sheller JA, insofar as they deny application of the ex turpi maxim as a defence to civil action, or as automatically breaking the chain of causation, where there is no crime, nor any rational and voluntary act, nor moral culpability, by reason of the respondent’s insanity at the time he killed Ms Laws. That said, I consider that the residual unlawfulness of the respondent’s act of homicide is a factor that may properly be taken into account, when considering the normative aspects of causation. It is to that aspect I now turn.

Causation

381 The considerations which have led me to conclude against a duty of care re-emerge with others in considering causation. This is particularly at the point where normative considerations are brought to bear. In answering the question should a person who commits an unlawful act while insane be held responsible for loss or damage, here primarily from denial of liberty of some 18 months, but also general damage in the form of mental anguish, we are not dealing with physical harm to the respondent nor to the person he killed while insane. Rather we are dealing with those other non-physical consequences suffered by the respondent following his act of homicide while insane.

382 The effect of a successful plea of insanity is that the act of homicide, while remaining unlawful, is shorn of both criminality and, in an enlightened society, moral opprobrium as well. Spigelman CJ concluded (at [78]) that where, as here, a person has been held not to be criminally responsible for his actions on the ground of insanity, the common law should not deny that person the right to a remedy as a plaintiff and that, in “such a context, the unlawfulness of the conduct is not entitled to weight in a multifactorial analysis”.

383 While I agree that the unlawfulness of an act of homicide committed while insane should not be an automatic bar to recovery, I respectfully disagree that it has no weight when it comes to determining what consequences of such actions should give rise to civil liability in negligence. Legal policy treats insanity as an “excuse”, though not justification, for what remains an unlawful act. According to Hart, the essence of an excuse is that the act may be “deplored, but the psychological state of the agent when he did it exemplified one or more variety of conditions which are held to rule out public condemnation and punishment of individuals”; H L A Hart “Punishment and Responsibility” (1968) at 13, cited in Jones “Insanity, Automatism and the Burden of Proof on the Accused” in (1995) 111 LQR 475 at 495. But considerations of coherence as well as difficulties of causation lead it in my view to draw the line at permitting recovery by the person who committed that act for the non-physical consequences of his later detention in a mental hospital even though but for the hospital’s failure to detain, Ms Laws would not have been killed. Moreover, one may readily agree with Spigelman CJ and Sheller JA there is to be no recovery for the respondent’s fear of violence at the remand centre and for the additional restrictions on his liberty whilst in prison hospital and on conditional release, based on these being too remote, and because they represent the lawful conduct of the authorities. But if that be so, why should there be recovery for other constraints on the respondent’s liberty, no less the result of lawful conduct by the authorities?

384 On causation, the argument is also that a supervening event, namely the killing of Ms Laws, broke the chain of causation, or that there was no causal nexus between the appellants’ failure to act and the killing of Ms Laws. It is said by Spigelman CJ (at [84]) that the death of Ms Laws was precisely the kind of “serious physical harm” which the exercise of the statutory power was designed to avert. That is so. But Ms Laws’ relatives are not the plaintiff. This is not a situation of a prisoner’s suicide where his relatives sued as occurred in Reeves v Commissioner of Police of the Metropolis (2000) 1 AC at 367H where Lord Hoffman’s observations would be relevant:

“It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatives causal connection between the breach of duty and the loss.”

385 But this is a case where one needs to consider whether the injury the subject of claim, or like injury, would have resulted even had the presumed duty of care been performed. On that, what is said by Gaudron J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 481 is apposite:

“However, the question whether some supervening event broke a chain of causation which began with or which relates back to an omission or a failure to perform a positive duty, is one that can only be answered by having regard to what would or would not have happened if the duty had been performed. It is only by undertaking that exercise that it is possible to say whether the breach was “still operating”, or, continued to be causally significant when the harm was suffered.”

386 Here, when one asks what would or would not have happened if the positive duty had been performed (assuming there was such a duty contrary to the view I have earlier reached), one is reduced to speculation. It is true Ms Laws may have been spared her death, if the respondent had been compulsorily detained for the four weeks estimated by the trial judge. But even allowing for the margin of safety necessarily reflected in the 18 months spent as a forensic patient, who had killed a person while insane, it has not been shown that the respondent would have been cured in four weeks, not just of excessive alcohol and cannabis intake, but of the psychotic psychiatric condition attributed to him of paranoid schizophrenia so as to cease to be a homicidal risk to others. It should be borne in mind that during the estimated four weeks of access to treatment, that treatment would be subject to the civil rights constraints expressed in the objects of the Act, accepting that it could be imposed against the will of the person so detained. One may contrast that with what was deemed necessary, and capable of being achieved, when the respondent was detained over 18 months as a forensic patient, even allowing for a margin of safety attending the time of his release. At most, had the four weeks of treatment occurred the risk of the respondent then injuring another on release, whether Ms Laws or someone else, may have been reduced. While that may nonetheless still satisfy the test for causation in terms of the negligence materially contributing, in risk terms, to the injury suffered, it remains a powerful reinforcement of the policy considerations against allowing recovery.

387 Other considerations governing causation of a normative character consist of control and vulnerability. But for the same reasons as those factors do not suffice in my view to give rise to an extended duty of care covering the consequences suffered by the respondent, so to my mind they do not countervail against the powerful considerations against finding causation.

OVERALL CONCLUSION

388 I am of the view that it would be unjust to render the appellants as defendants legally responsible for a non-physical injury suffered by the respondent from deprivation of his liberty, when traced back to his unlawful but not criminal conduct. This is because that homicidal conduct is excused but not justified by the law on the ground of the respondent plaintiff’s insanity. That conduct nonetheless constituted wholly unreasonable action on the respondent’s part, lacking moral culpability only by reason of his insanity. Such a normative conclusion is reinforced by the Act’s emphasis on serious physical harm when none eventuated to the respondent. The law in consequence should be reluctant to visit civil liability, more especially in such a novel area and for non-physical consequences. Civil liability attaching to a failure to restrain risks promoting a bias towards detention, when the statutory scheme calls for an impartial exercise of discretion compulsorily to detain, taken only when fully justified, if not as a last resort. Therefore to introduce civil liability, which logically must also apply to decisions to restrain, is likely to induce a detrimentally defensive frame of mind on the part of the decision-maker in either context, so undermining coherence of the statutory scheme.

Damages

389 If, contrary to the conclusion I have reached, the respondent as plaintiff was entitled to recover damages from the appellants as defendants, I agree with Sheller JA that such damages should be assessed in the way he proposes and for the reasons he gives. I note that Spigelman CJ is of the same view.

ORDERS

390 I would agree with the orders proposed by Sheller JA.

**********

LAST UPDATED: 21/04/2005