The High Court ruled that the hospital did not owe a duty of
care to the family because any such duty would have conflicted with
a statutory duty.
Family of deceased argue that hospital was negligent
The nervous shock claim resulted from the actions of a mentally
ill man who was admitted to a hospital in NSW after suffering an
acute episode and who was subsequently held as an involuntary
patient pursuant to the Mental Health Act 1990 (NSW) (now repealed) ("the
Act"). The mentally ill man was discharged from the hospital,
into the care of a friend, who agreed to drive the man back to
Victoria so that he could continue his treatment.
Tragically, during the drive, the man had another episode and
killed his friend. He then subsequently took his own life. Family
of the friend commenced proceedings against the hospital in the
District Court of NSW for damages for psychiatric injury.
The family of the friend argued that the hospital negligently
put their relative at risk. The hospital was successful at first
instance, but the decision was overturned on appeal. The hospital
then obtained special leave to appeal to the High Court.
Statutory duty inconsistent with pleaded common law duty
The central issue for the court to resolve was a conflict
between a statutory duty on the one hand and a pleaded common law
duty on the other. The family argued that the hospital was under a
common law duty of care to regard the interests of those who a
mentally ill person might come into contact with if released from
its care (in this case, them).
However, this duty conflicted squarely with the hospital's
statutory obligation (pursuant to the Act) to discharge a patient
if voluntary rather than involuntary treatment was available and
appropriate. The court allowed the hospital's appeal, holding
that the pleaded common law duty did not exist because the relevant
provisions of the Act were completely inconsistent with such a
No duty of care owed by hospital to third parties
The court had to consider whether or not the hospital owed a
duty to take reasonable care to protect other persons from harm
when deciding to discharge a patient who had been involuntarily
admitted pursuant to the Act. The wording of the Act was
section 20, involuntary patients cannot be detained
continuously in a hospital unless the hospital forms the view that
"no other care of a less restrictive kind is appropriate and
reasonably available to the person". In this case, the doctors
and the relatives of the mentally ill man agreed that there was
"less restrictive" treatment available to him, at home in
Victoria. On that basis, the hospital was obliged under the Act to
discharge its patient.
The court looked to its previous decisions for guidance on
inconsistent duties and said that where it is argued that a
hospital may owe inconsistent obligations to a patient and a third
party, then that would ordinarily be a reason for denying that a
The court held that a hospital could not comply with its
obligations under the Act, and at the same time owe a common law
duty of care to have regard to all persons who may come into
contact with someone discharged from its care. Given that the
competing duties were inconsistent, the court held that no finding
could be made that a duty of care was owed by the hospital to the
Decision provides welcome guidance to doctors and
Hunter & New England is an important decision which
resolves the question of inconsistent duties of hospitals and
doctors in the context of involuntary patients and third parties.
It confirms the general principle that statutory duties can
override an inconsistent common law duty of care in some
The decision provides some welcome guidance to hospitals and
doctors making tough decisions in respect of mentally ill patients.
The decision also makes it clear that the requirements under the
Act (and equivalent legislation in other jurisdictions,
particularly those dealing with a person's liberty), will take
preference over the potential risk to third parties. This decision
will be influential in all Australian jurisdictions.
What happens if a patient, particularly a mental health patient,.
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