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

Monday, 1 December 2014

Show us the documents - a precursor to show us the money?

Settling claims prior to the issuing of court proceedings saves time and money, and complies with the State's model litigant obligation to pay legitimate claims without recourse to litigation.  But does the State have an obligation to provide a claimant with documents pertaining to the claim during pre-litigation settlement negotiations, or when a Generally Endorsed Writ (GE Writ) has been filed with the court?

Pre-litigation settlement negotiations

At its commencement, the Civil Procedure Act 2010 (the CPA) included 'Chapter 3 - Before a Civil Proceeding Commences'.  Chapter 3 contained pre-litigation requirements, including that each person involved in a civil dispute (defined as a dispute which may result in the commencement of a civil proceeding) must take reasonable steps:
  •  to resolve the dispute by agreement; or
  •  to clarify and narrow the issues in dispute in the event that civil proceedings were commenced. 

This included the exchange of documents critical to the resolution of the dispute.

However, Chapter 3 of the CPA was repealed in 2011 and there is now no obligation under the CPA for the State to provide documents to a claimant prior to a civil proceeding being commenced.

Filing of a GE Writ

Recently we have encountered matters where pre-litigation settlement negotiations have commenced, but claimants' solicitors have subsequently filed GE Writs with the court in order to protect their clients' rights in respect of time limit provisions under the Limitation of Actions Act 1958 (the LAA).  This effectively safeguards claimants from having to bring an application for an extension of time to commence a proceeding, if settlement negotiations ultimately prove unsuccessful. 

The claimants' solicitors have provided us with a copy of the GE Writs on an informal basis, rather than formally serving them on the State, on the basis that settlement negotiations would continue and that no action was required with respect to responding to the GE Writs. 

 What is a GE Writ?

Usually when a proceeding is commenced, a Writ and Statement of Claim (SOC), pleading the causes of action and particulars of the claim, is filed with the court and served on the State.  However, a plaintiff has the option of filing a GE Writ, which the Supreme Court (General Civil Procedure) Rules 2005 and the County Court Civil Procedure Rules 2008 (the Rules) define as a writ containing an indorsement of claim comprising 'a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding'. 

A GE Writ typically does not plead detailed particulars of the claim as in a SOC, and is generally followed by the filing and service of a SOC at a later stage.

Request for documents

Notwithstanding that in many circumstances the filing of a GE Writ was not intended to 'formally' commence proceedings, claimants' solicitors have requested that the State provide them with copies of documents pertaining to the claim in order to progress settlement negotiations.  Such requests have been made under the auspices of the CPA.

Section 26 of the CPA

Section 26 of the CPA provides that a person to whom the overarching obligations apply (being a party to a civil proceeding and their legal representatives) must disclose to each party the existence of all documents which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.  Such disclosure must occur at the earliest reasonable time after the person becomes aware of the existence of the document; or such other time as a court may direct.

Is the filing of a GE Writ the commencement of a civil proceeding for the purposes of s 26 of the CPA?

The CPA defines civil proceeding as 'any proceeding in a court other than a criminal proceeding or quasi criminal proceeding'.  'Court' is defined as the Supreme, County or Magistrates' Court.

The Rules define 'proceeding' as 'any matter in the Court commenced by writ or originating motion'.  The Rules further provide that 'a proceeding shall be commenced by filing the originating process' and that 'a writ shall be valid for service for one year after the day it is filed'. 

Accordingly, notwithstanding circumstances where a GE Writ has not been formally served on the State and that its filing was intended only to preserve a claimant's rights in respect of time limit provisions under the LAA, its filing constitutes the commencement of a proceeding and consequently s 26 of the CPA applies in respect of requests for documents. 

Are there any grounds to resist a request for documents?

As noted previously, a GE Writ must provide 'reasonable particularity' about the plaintiff's claim and causes of action.  If the Writ fails to provide satisfactory detail about the claim and does not accurately identify or particularise the causes of action with any precision, we consider that it is possible and reasonable to resist a request for documents under s 26 of the CPA on the grounds that the State:
  •  has insufficient knowledge about what the 'dispute' is alleged to be; and
  •  is unable to identify whether documents are 'critical to the resolution of the dispute'.

If you are in the Victorian Government and would like more information about this area of law, please contact:

Managing Principal Solicitor
t 8684 0417

Senior Solicitor
t 8684 0232