McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Hearing dates: 24, 25 and 31 July 2013 Decision date: 23 December 2013 Before: Beazley P at [1]; Macfarlan JA at [4]; Garling J at [191] Decision: (1) Grant leave to appeal to Ms Simon and Ms Rose. (2) Allow the appeal of Ms McKenna, Ms Simon and Ms Rose. (3) Set aside the judgments entered at first instance in favour of the respondent and the costs order made in its favour. (4) Judgments to be entered in due course as follows: (a) In favour of Ms McKenna in the sum of $108,041.20 together with interest. (b) In favour of Ms Simon in the sum of $63,957.30 together with interest. (c) In favour of Ms Rose in the sum of $79,725.93 together with interest. (5) Order the respondent to pay the costs of Mss McKenna, Simon and Rose incurred at first instance and on appeal. (6) If the parties are able to agree as to the amounts of the judgments to be entered, direct that within seven days they file a form of consent order. (7) If the parties are unable to so agree, direct that: (a) The plaintiffs file written submissions concerning that issue within seven days of the date of this judgment. (b) The respondent reply within a further seven days and (c) The plaintiffs respond within a further seven days. (8) Direct that the amounts of the judgments to be entered be determined by the Court upon the basis of the written submissions to be filed, without the necessity for a further oral hearing. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - person detained as mentally ill person under Mental Health Act 1990 - discharged next day into care of friend to be driven home from Taree to Victoria - s 35(3) Mental Health Act 1990 required that a mentally ill person not be detained if no longer mentally ill or care of a less restrictive kind is available and appropriate - during the trip to Victoria the person had a psychotic episode during which he killed his friend - family of deceased claimed damages for mental harm due to shock of learning of death of the deceased - whether duty of care owed by Hospital to deceased, and thence to family - whether such a duty of care inconsistent with requirements of the Mental Health Act 1990 - whether such a duty of care would create indeterminate liability - Hunter Area Health Service v Presland 63 NSWLR 22 discussed - whether Hospital negligent in making discharge decision - whether relevant risk of harm was the person killing deceased or causing some lesser harm to him - s 5B Civil Liability Act 2002 - whether conduct of Hospital psychiatrist conformed with a widely accepted 'practice' for the purposes of s 5O Civil Liability Act - special statutory power under s 43A Civil Liability Act - whether there was an exercise or failure to exercise a power conferred by s 35(3) Mental Health Act - whether Hospital's negligence caused deceased's death - s 5D Civil Liability Act - whether "appropriate for the scope of the negligent person's liability to extend to the harm so caused"