Patrech v State of New South Wales [2009] NSWCA 118

New South Wales Court of Appeal

CITATION: Patrech v State of New South Wales [2009] NSWCA 118

HEARING DATE(S): 28 November 2008

JUDGMENT DATE: 22 May 2009

JUDGMENT OF: Beazley JA at 1; Campbell JA at 152; Macfarlan JA at 153

1. Appeal allowed; DECISION: 2. Set aside the verdict for the respondent/defendant; 3. Order that the matter be remitted to the District Court for rehearing; and 4. Order that the respondent pay the appellant's costs of the appeal. The costs of the first trial are to abide the outcome of the remitted hearing and are to be in the discretion of the trial judge conducting the remitted hearing.

CATCHWORDS: EVIDENCE – analysis of medical evidence – importance of analysing medical evidence in its proper context – importance of considering the purpose for which the medical evidence was created – importance of considering medical evidence in conjunction with other evidence - EVIDENCE – rejection of evidence – rejection on dubious basis or without regard to other relevant evidence – rejection subject to appellate scrutiny - TORTS – negligence – duty of care – threats made to a person – steps taken by a person in response to threats does not mean that a duty of care is no longer owed to that person

LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990, s 32 Mental Health Act 1990

CATEGORY: Principal judgment

Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 CASES CITED: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

PARTIES: Robert George Patrech (Appellant) State of New South Wales (Respondent)