Wednesday, 10 December 2014

A duty to prevent a person from harming others? The latest from the High Court

On 12 November 2014 the High Court handed down judgment in Hunter and New England Local Health District v McKenna, unanimously allowing an appeal against an award of damages arising out of the deliberate killing of a man by his severely psychiatrically disturbed friend. While the Court's judgment only directly concerns the liability in tort of medical practitioners who exercise statutory functions relating to the involuntary hospitalisation of psychiatric patients, it is likely to have significant implications for statutory bodies charged with the exercise of public functions.

The Facts

Early in the morning of 20 July 2004, Mr Stephen Rose became concerned about the mental state of his friend Mr Phillip Pettigrove, who suffered from schizophrenia. Mr Rose took Mr Pettigrove to Manning Base Hospital in Taree. Upon his arrival at the hospital, Mr Pettigrove was admitted as an involuntary patient under the former Mental Health Act 1990 (NSW).

During the afternoon of 20 July 2004, hospital staff examined Mr Pettigrove and discussed his condition with Mr Rose. It was determined that Mr Pettigrove would be discharged into the care of Mr Rose, who would take him by car to his mother's home in Echuca. On the morning of 21 July 2004, Mr Pettigrove and Mr Rose departed Taree for Echuca. That night, while in a delusional state, Mr Pettigrove strangled Mr Rose to death.

Mr Rose's mother and his two sisters alleged that they had sustained psychiatric injury as a result of Mr Rose's death and commenced proceedings for damages against the hospital authority. They alleged that hospital staff had been negligent in failing to order the continued involuntary treatment of Mr Pettigrove and that this negligence had been a cause of Mr Rose's death and of their subsequent psychiatric injuries. At trial, the plaintiffs were unsuccessful. However, they successfully appealed to the New South Wales Court of Appeal. The hospital authority then appealed to the High Court.

The NSW Act

Central to the case were the provisions of the NSW Act. Section 21 provided for the involuntary detention of a person in a hospital if a medical practitioner certified that he or she was mentally ill. However, the Act contained numerous safeguards to protect the rights of patients. In particular, it provided that a decision to involuntarily admit a patient was subject to multiple stages of internal review by specialist medical practitioners and that the involuntary admission of a patient pursuant to the order of a medical practitioner could not exceed three days' duration. Thus the Act manifested a strong bias against involuntary detention. This policy was reflected in the express terms of section 20 of the Act, which provided that involuntary admission was not to be ordered where a less restrictive treatment option was reasonably available.


The High Court held that staff at the hospital owed no duty to take reasonable care in determining whether or not to order the continued involuntary treatment of Mr Pettigrove. The Court considered that this conclusion was mandated by the express terms of s 20 of the NSW Act and by other provisions which 'reinforced' the policy enunciated in s 20. The Court determined that to impose upon hospital staff a common law duty to take reasonable care in determining whether to order the continued involuntary treatment of Mr Pettigrove would be inconsistent with the strong presumption against involuntary treatment manifested in the Act.

Implications for Decision Makers

While the judgment of the Court directly concerns only the specific provisions of the (now repealed) NSW Act, it will be welcomed by parole boards, quarantine authorities and other decision makers whose powers require them to balance the interests of individuals against the interests of the wider community. The imposition of a duty to take reasonable care in the exercise of such powers has the potential to act as a potent incentive to a decision maker to make the decision that he or she considers least likely to result in an award of damages, rather than the one he or she considers to be correct or preferable. It thus may place a decision maker in an impossible situation in which the proper performance of a statutory function carries with it a risk of incurring liability in damages, while minimising the risk of liability entails neglecting the performance of a statutory duty. The judgment of the High Court contributes to a body of authority, which includes such cases as Sullivan v Moody, Regent Holdings v State of Victoria and X v State of South Australia, that holds that a duty of care will not be found to exist in such circumstances.

If you are in the Victorian Government and would like further guidance on decision-making, risk and liability, we can help.

Jonathan Bayly
t 8684 0223

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