Brendan Richard Warner by his tutor the Protective Commissioner v State of Queensland [2006] NSWSC 593

New South Wales Supreme Court

CITATION : Brendan Richard Warner by his tutor the Protective Commissioner v State of Queensland [2006] NSWSC 593

HEARING DATE(S) : 19/10/2005 - 21/10/2005, 24/10/2005, 26/10/2005 - 27/10/2005, 31/10/2005 - 01/11/2005.

JUDGMENT DATE : 19 June 2006

JUDGMENT OF : Hislop J

DECISION : 1. Verdict and judgment for the defendant; 2. The plaintiff is to pay the defendant's costs.

CATCHWORDS : Negligence - Hospital - Psychiatric patient - Alleged negligence by triage nurse - No breach of duty - No causative link established.

LEGISLATION CITED : Mental Health Act (NSW) Mental Health Act (Qld) - ss 18, 26

CASES CITED : Holloway v McFeeters (1956) 94 CLR 470 Hunter Area Health Service v Presland (2005) 63 NSWLR 22

PARTIES : Plaintiff - Brendan Richard Warner by his tutor the Protective Commissioner Defendant - State of Queensland

FILE NUMBER(S) : SC 20879/01

COUNSEL : Plaintiff - Mr M. Williams SC with Mr A. Casselden Defendant - Mr J.L. Glissan QC with Ms S.A. Gallagher

SOLICITORS : Plaintiff - Maurice Blackburn Cashman Lawyers Defendant - Tress Cox Lawyers

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HISLOP J

19 June 2006

20879/01 Brendan Richard Warner by his tutor the Protective Commissioner v State of Queensland

JUDGMENT

Introduction 1 The plaintiff, was born on 14 April 1970. He suffers from schizophrenia. Shortly after 7am on 6 November 1998 he attended Cairns Base Hospital. There he was seen by a triage nurse. The nurse was informed that the plaintiff suffered from schizophrenia and had not been taking his medication. The nurse asked the plaintiff to wait to be seen by a doctor. The plaintiff left the hospital before seeing the doctor. He did not inform staff he was leaving. 2 At approximately 5.30pm on 7 November 1998 the plaintiff was observed lying unconscious on the pavement outside the Brisbane Transit Centre in Roma Street, Brisbane. He was suffering from severe facial and orthopaedic injuries. 3 The plaintiff has sought damages in these proceedings from the State of Queensland ("the defendant") in respect of those injuries. He alleges the injuries were occasioned when he jumped from the third level of the Transit Centre, either in a suicide attempt or in attempting to avoid an execution squad which, in his delusional state, he believed was trying to kill him. He alleges he would not have sustained those injuries had he been afforded proper care and treatment at the hospital. The defendant is sued as it was responsible for the management and control of the hospital. 4 The plaintiff's case, as ultimately advanced, was that the defendant was vicariously liable for the negligence of the triage nurse. The negligence of the triage nurse was alleged to be that: (a) she failed to assign the plaintiff to the appropriate triage category; (b) she failed to contact the plaintiff's mother, treating specialist, or the Wagga Wagga Community Mental Health Centre to obtain further information as to the plaintiff's medical history when triaging the plaintiff; (c) she failed to keep the plaintiff under adequate observation whilst he was at the hospital and failed to prevent him leaving the hospital before he had been seen by a doctor; (d) she failed to ensure a search was made for the plaintiff upon discovering he had left the hospital waiting room; failed to contact the plaintiff's mother, treating specialist, or Wagga Wagga Community Mental Health Centre and failed to request the police to locate the plaintiff and return him to the hospital. 5 The defendant has denied liability. The amount of damages recoverable, should the plaintiff succeed in his claim, is also in dispute. It is common ground that the issues of liability and damages are to be determined by the law of Queensland as the alleged negligence and damage occurred in that State.