Australia: Personal Injury Law: Conflict between statutory and common law duties of care

Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] 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 (NSW) ("MHA").

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 treatment.

During the trip, Mr Pettigrove killed Mr Rose and later took his own life.


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 found.

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, namely:

  • type of harm suffered;
  • defendant is a repository of statutory power or discretion;
  • class of persons; and
  • coherence.

All of the above were considered relevant by the Court to the matter at hand. Emphasis was placed on the issue of statutory power.

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 available.

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 person's detention.

Inconsistent Duties

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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