Hunter and New England Local Health District v McKenna; Hunter
and New England Local Health District v Simon  HCA 44
Phillip Pettigrove suffered from chronic paranoid schizophrenia.
He was receiving treatment for this condition in Echuca, Victoria.
While in New South Wales with his friend Stephen Rose, Mr
Pettigrove was involuntarily admitted and detained in the Manning
Base Hospital ("MBH") under the Mental Health Act 1990
On the day of his admission, Dr Coombes of the MBH obtained and
read his records. Afterward, Dr Coombes spoke with Mr Pettigrove
and his mother, as well as with Mr Rose. It was agreed by all
parties that Mr Pettigrove should spend the night at the MBH and be
released the next day into Mr Rose's care. It was intended that
Mr Rose would drive Mr Pettigrove back to Echuca for further
During the trip, Mr Pettigrove killed Mr Rose and later took his
Mr Rose's mother and two sisters ("the relatives")
brought a claim for damages in the District Court of New South
Wales against the relevant Health Authority for psychiatric injury
suffered as a result of Mr Rose's death. At trial, no breach of
duty was found. Reversely on Appeal, a breach of duty was
High Court Decision
The High Court granted special leave to appeal, focusing on the
issue of Duty of Care.
Based on the following reasons, it was held that no duty of care
was owed to the relatives by the Health Authority.
To who is the Duty of Care owed?
The High Court ("the Court") acknowledged that in some
instances, determining the existence of a duty of care could prove
difficult. Citing Sullivan v Moody in this regard, the Court noted
four examples of classes where such difficulty could arise,
type of harm suffered;
defendant is a repository of statutory power or
class of persons; and
All of the above were considered relevant by the Court to the
matter at hand. Emphasis was placed on the issue of statutory
The Court noted the need to identify the alleged duty owed to
the relatives: "a duty to take reasonable care when deciding
that the powers given by the Mental Health Act, which had been used
to detain Mr Pettigrove, should no longer be used to prevent him
leaving the Hospital". The Court held that identifying whether
such a duty was owed was dependant on whether the duty would be
consistent with the provisions of the MHA.
Mental Health Act 1990 (NSW)
In interpreting the MHA, the Court noted that it prohibited the
detention or the continuation of the detention of a person, unless
the medical superintendent formed an opinion that there was no
other appropriate or reasonably less restrictive care
The Court acknowledged that the determination of a person as
mentally-ill would not of itself necessitate the involuntarily
admission/detention of a person, or the continuation of a
The crux of the relatives' complaint was that they were
injured as a result of the decision to not continue the detention
of Mr Pettigrove, a mentally-ill person.
At common law, a doctor or hospital would owe a duty of care
against a risk of physical harm (or psychiatric harm upon learning
of a physical harm) to those persons with whom a mentally-ill
person would come in contact with, if the risk was considered
foreseeable and not insignificant. It was acknowledged that if a
person was mentally ill, the risk of that person engaging in
conduct resulting in adverse consequences to others (direct or
indirect) was neither unforeseeable nor insignificant. Therefore,
it would follow that in certain situations it may be reasonable to
detain a patient as long as they remain mentally ill.
This however would be inconsistent with the MHA, which requires
a minimal amount of interference with the liberty of a mentally ill
person. The MHA contains provisions prescribing the duties of
doctors and hospitals with respect to the involuntary admission and
detention of a mentally ill person. Mr Pettigrove was released from
the Hospital under a requirement prescribed by s 20 of the MHA.
Consequently, the finding of a common law duty of care owed to the
relatives was found to be inconsistent with these provisions. On
this basis, the Court held that the Appellant did not did not owe
the alleged duty of care to the relatives.
This case highlights the importance of considering statutory
obligations when determining the existence of a duty of care. As
demonstrated by this case, in certain instances the existence of a
statutory obligation may override a common law duty of care.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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