Dear Colleagues;

There is an interesting decision of the NSW Court of Appeal in McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 (23 December 2013) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2013/476.html which would no doubt have received more press coverage if not released just prior to Christmas. In short, a hospital was held liable for nervous shock suffered by the relatives of a Mr Rose, who was killed by his friend Mr Pettigrove. Mr Rose was driving Mr Pettigrove to be with his family after he had been released from the hospital where he had been admitted suffering with a mental illness. The family of Mr Rose claimed that the hospital ought to have continued to detain Mr Pettigrove rather than allow him to leave without administering further medication.

There is a 2-1 decision in favour of the plaintiffs (Beazley P & Macfarlan JA; Garling J dissenting), overturning the trial judge who found for the hospital. The hospital was held to have a common law duty of care to Mr Rose (and hence to his family); they were held to have breached this duty by releasing Mr Pettigrove; the statutory defence under s 43A Civil Liability Act 2002 applying to “exercise of a special statutory power” was held not to be applicable; and causation was established.

Without giving here a detailed critique of the majority judgment by Macfarlan JA, I have to say I have a very strong feeling this decision will be overturned on appeal. Garling J notes that there seems to be a clash between the provisions of the mental health legislation which require a presumption of release in the patient’s interests, and an allegation that the patient should have been detained in the interests of others. His Honour also criticises the finding of breach on the basis of foreseeable harm, which in the majority is said to refer to harm of all sorts that Mr Pettigrove might have committed (such as trying to commit suicide on the trip), rather than the specific harm of killing Mr Rose. He also, I think quite compellingly, says that this must be a case where the complaint is that the hospital in general failed to exercise a statutory power to detain, and hence that the defence under s 43A should have been applicable.

The case also contains, for those interested in medical negligence, an interesting discussion of s 5O CLA on “peer professional practice” in the majority decision which I suspect will also be criticised on appeal if it goes up further.

Regards

Neil