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Case Study - Hunter Area Health Service & Anor v Presland

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Case Study - Hunter Area Health Service & Anor v Presland

This essay will firstly attempt to discuss in what aspects the majority judgment differs from the approach adopted by Spigelman CJ in the case of        Hunter Area Health Service Anor v Presland[1].  In order to do this, the writer will secondly discuss the Civil Liability Act 2002 (Cth) and thirdly other cases and how they relate to the Civil Liability Act[2], in regards to criminal acts.  Lastly it will also be discussed the impact that a similar case should it have arisen in 2008.

Spigelman CJ was the minority in the decision of Hunter Area Health Service & Anor v Presland[3], with Santow and Sheller JJA having the majority judgment. Spigelman CJ does agree with Sheller JA that the original trial judges’ findings should be rejected, but does differ in where the appeal should be dismissed then damages should be allowed.  This was not case with Santow and Sheller JJA who found that it would be unjust to render the appellants as defendants legally responsible for a non-physical injury suffered by the respondent from deprivation of his liberty when it is traced back to his unlawful conduct.

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Spigelman found the plaintiff was owed a duty to provide proper care with respect to diagnosis and, subject to consent, treatment. But contended the appellants, agreed that the duty did not extend to encompass the exercise the statutory power to detain him. Santow JA did not find in the same manner, as per the Mental Health Act[4] (MHA) the harm suffered during forensic detention was outside the purpose of the MHA[5]. This is specific to sections 9 and 10 which relate to preventing serious harm to the plaintiff or others, but not non-physical harm, in the case of the plaintiff.  

In 2002 there were major changes to how criminals could claim damages, this was to stop the profiting from criminal  

Part 4 of s54 of the Civil Liability Act[6] is very relevant to the above mentioned case, if it was to be tried in 2008, the defendant in this case would not have a claim for damages.  This section does not apply to an award of damages against a defendant if the conduct of the defendant caused the death, injury or damage concerned. Part (b) of this section states that would have constituted an offence if the defendant had not been suffering from a mental illness at the time of the conduct.

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Other parts of s54 of Civil Liability Act[7], which apply are as follows:

Part 1 applies when;

  1. when liability arises out of the death of, or injury or damage to, a person, and
  2. that death, injury or damage occurred at the time of or following, conduct of the person that, on the balance of probabilities, would have constituted a serious offence if the person had not been suffering from a mental illness at the time of the conduct, and
  3. that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

Part 2 is regarding if the court awards damages in respect of a liability the following limitations will apply:

  1. no damages may be awarded for non-economic loss, and
  2. no damages for economic loss may be awarded for loss of earnings.

Part 3 states that a ‘serious offence’ is one of which is punishable by imprisonment of 6 months or more.

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In the case of the plaintiff it is evident that he was in a vulnerable position with which Spigelman CJ and Santow JA both agreed, but they came to different conclusions. Spigelman cites the following cases: Graham Barclay Oysters[8], Brodie v Singleton Shire Council[9]which relates to if a person controls or directs a person then they owe a duty of care.  There are four cases that distinguished the case of Hunter Area Health Service Anor v Presland[10], two of which are English cases:  Clunis v Camden and Islington Health Authority[11], where the courts found that based on the principle that ‘the act of an insane person is not in law his act’ and Beresford v Royal Insurance Company Ltd[12], and two of which are American cases: Boruschewitz v Kirts[13] and Rimert v Mortell.[14]Both Sheller and Santow JJA concur that a common law liability would encourage a detrimentally

                                        - 5 –

defensive viewpoint when officers are making decisions in relation to the MHA.[15] Santow JA proposes that in the case of Harry v Mental Health

Review Tribunal[16], that there is a need for impartial decision making as imposing a duty would put forth the possibility of civil suits.[17]

Lastly, had a similar case to Hunter Area Health Service Anor v Preslandgone to court in 2008, it would be found differently. How it would be found relates to Section 54A of the Civil Liability Act where it states that there are ‘damage limitations if loss results from serious offence committed by mentally ill person’.

Both Hunter and Dr Nazarian accepted that they did owe the plaintiff a general duty of care.  This acknowledgment confirms that they could not argue that there was the risk of injury of the kind which occurred. Spigelman CJ found for the plaintiff regarding duty of care and Santow JA did not. Santow JA maintains that in answering the question as to whether factors are sufficient to justify a duty of care extending to non-physical

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injuries, the claimed duty of care is directed primarily to compensating the respondent for the 18 months deprivation of liberty he suffered as a forensic patient, mental anguish suffered as a result of the killing of Ms Laws as well as being separated from his family. A question posed was the principle bearing upon the reasonableness of the imposition of a duty and whether the injuries suffered are properly attributable to the appellants’ failure to compulsorily detain the plaintiff, as to causation responsibility or the scope of liability for consequences. Santow JA points out that the purpose of sections 9 and 10 of the MHA[18]show that the Act is concerned with preventing serious harm to the plaintiff or others but not non-physical consequences of such conduct.

If the appeal was not allowed a more suitable general damages award would be $100,000 but as the appeal is allowed, then the plaintiff is not entitled to any damages.  As well as the verdict and judgment set aside for the plaintiff, and in lieu of thereof verdict and judgment for the defendants and the plaintiff is to pay the defendants’ costs of the trial and of the appeal but to have a certificate under the Suitors’ Fund Act 1951, if so entitled.

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In conclusion Spigelman CJ was in the minority judgment but did agree with Sheller and Santow JJA on the following points: the original trial judges findings should be rejected. Spigelman believed the appeallants should not be liable for a non-physical injury but did owe a duty of care in respect to diagnosis, but Santow JA did not agree.

The Civil Liability Act[19] was introduced in 2002 and made major changes to how the mentally ill can claim damages when they have caused the death, injury or damage to another party. This Act was also linked to cases showing how the three judges, Spigelman CJ, Santow and Sheller JJA came to their findings.

Lastly if a similar case went to court in 2008, it would be found differently, which is due to the damage limitations which are now applicable.

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Bibliography

Peterson K, Where is the Line to be Drawn? Medical Negligence and Insanity in Hunter Area Health Service v Presland, Sydney Law Review [2006] Rev 9

Beresford v Royal Insurance Company Ltd [1937] 2 KB 197; [1938] AC 586

Boruschewitz v Kirts (1990) 554 NE 2d 1112

Brodie v Singleton Shire Council (2001) 206 CLR 562

Clunis v Camden and Islington Health Authority [1997] EWCA Civ 2918

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315

Hunter Area Health Service Anor v Presland [2005] NSWCA 33

Rimert v Mortell (1997) 680 NE 2d 867

Civil Liability Act 2002 (Cth), s54 (A)

Mental Health Act 1995 (NSW) ss 9, 10


[1] Hunter Area Health Service Anor v Presland [2005] NSWCA 33.

[2]Civil Liability Act 2002 (Cth)

[3] Hunter Area Health Service Anor v Presland, above n.12

[4]Mental Health Act 1990 (NSW).

[5]Mental Health Act 1990 (NSW).

[6]Civil Liability Act 2002 (Cth)

[7]Civil Liability Act 2002 (Cth) s54

[8]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.

[9]Brodie v Singleton Shire Council (2001) 206 CLR 562.

[10]K Peterson, Where is the Line to be Drawn? Medical Negligence and Insanity in Hunter Area Health Service v Presland, Sydney Law Review [2006] Rev 9.

[11]Clunis v Camden and Islington Health Authority [1997] EWCA Civ 2918.

[12]Beresford v Royal Insurance Company Ltd [1937] 2 KB 197; [1938] AC 586.

[13]Boruschewitz v Kirts (1990) 554 NE 2d 1112.

[14]Rimert v Mortell (1997) 680  NE 2d 867.

[15]Mental Health Act 1990 (NSW)

[16]Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315.

[17] K Peterson, above n 8.

[18]Mental Health Act 1990 (NSW)

[19]Civil Liability Act 2002 (Cth)

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