Smith v Pennington [2015] NSWSC 1168

Supreme Court New South Wales

Medium Neutral Citation: Smith v Pennington [2015] NSWSC 1168 Hearing dates: 4 August 2014 - 8 August 2014,11 August - 13 August 2014,15 August 2014,18 August 2014 - 20 August 2014 Date of orders: 28 August 2015 Decision date: 28 August 2015 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to s 64 of the Civil Procedure Act 2005, order that the name of the second defendant be amended to South Western Sydney Local Health District. (2) Judgment for the second defendant. (3) Plaintiff to pay the second defendant's costs. Catchwords: TORTS – negligence – beach of duty of care – causation – where plaintiff involuntarily detained as a mentally disordered person under the Mental Health Act 2007 – s 47 Mental Health Act 2007 – where period of leave granted to plaintiff to reside with parents – where plaintiff attempted suicide while on leave – where plaintiff sustained significant and permanent injuries – regard to statutory time limit of involuntary detention under Mental Health Act – whether breach of duty of care to grant leave – decision to grant plaintiff leave not unreasonable – whether imposition of formal conditions of leave ought to have been put in place – no requirement for imposition of formal conditions – whether instructions or advice given to plaintiff's parents prior to grant of leave – whether breach of duty of care to not provide clear instructions – s 43A Civil Liability Act 2002 – 'special statutory power' – whether defendant failed to exercise a special statutory power – advice not provided in exercise of power – breach of duty established – causation – application of s 5D Civil Liability Act 2002 – failure to properly advise parents did not cause plaintiff's injuries – causation not established Legislation Cited: Civil Liability Act 2002 Health Services Amendment (Local Health Districts and Boards) Act 2011 Interpretation Act 1987 Mental Health Act 2007 Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 Paul v Cooke [2013] NSWCA 311 Roads and Maritime Services v Grant [2015] NSWCA 138 RTA v Dederer [2007] HCA 42; (2007) 234 CLR 330 RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Wallace v Kam [2012] NSWCA 82 Texts Cited: Human Error 1990, Cambridge University Press Category: Principal judgment Parties: Daniel Smith (P) Shaun Raymond Pennington (D1) South Western Sydney Local Health District (D2) Representation: Counsel: D Higgs SC / V Thomas / T Hollo (P) R H Weinstein SC / K Richardson (D2)