Carrier v Bonham[2000] QDC 226

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 10 January 1996 in the evening the plaintiff was driving a bus north along Bowen Bridge Road towards its intersection with O'Connell Terrace. He was in the kerb side lane, and as he approached the traffic lights, the first defendant, whom he had seen waiting at the lights and looking in his direction, stepped out on to the road in front of the bus. The plaintiff braked heavily but was unable to prevent his vehicle striking the first defendant who suffered some injury; however, it was the intention of the first defendant to kill himself, and in that he was unsuccessful.

2. [2]
   The plaintiff was not physically injured as a result of the collision with the first defendant, but alleges that, as a result of that incident, he suffered psychiatric or psychological injury. By this action he claims damages in respect of such injury from the first defendant, for trespass or negligence, and from the second defendant, the State of Queensland for negligence or breach of statutory duty. The claim against the second defendant was because the first defendant had earlier on the same evening been admitted to a psychiatric ward of the Royal Brisbane Hospital, and the plaintiff alleges that there was negligence in the way in which the hospital was conducted, for which the second defendant is responsible, which was a cause of the first defendant’s being able to make the suicide attempt, and hence a cause of his injury. The Royal Brisbane Hospital is conducted beside Bowen Bridge Road, and one of its entrances is at the intersection with O'Connell Terrace. The amended plaint also alleges there was a breach by the second defendant of a duty imposed by s.21 of the Mental Health Act 1974, but no submissions were advanced in support of this claim, and there is no reason to think that that section imposes a duty breach of which is actionable at the instance of someone in the position of the plaintiff.  It is not necessary to consider that matter further. 

Background of the First Defendant

3. [3]
   The first defendant was born on 31 October 1950 and was 45 at the date in question. He had a long history of chronic schizophrenia, having been diagnosed when he was aged about 26. He was treated by Doctor Klug, a psychiatrist, until about 1990, which involved hospitalisation in the Belmont Private Hospital or Princess Alexandra Hospital from time to time: Exhibit 22. His affairs were placed in the hands of the Public Trustee and have apparently remained there ever since because he was represented at the trial by the Public Trustee. There have been a number of other admissions to either the Princess Alexandra Hospital or the Royal Brisbane Hospital, some of which are documented in extracts from hospital records, Exhibit 16 (Princess Alexandra Hospital) and Exhibit 15 (Royal Brisbane Hospital).

4. [4]
   In 1989 he was briefly admitted to the Princess Alexandra Hospital after taking an overdose of tablets, apparently in a suicide attempt: Exhibit 22. In 1991 there was a prolonged psychiatric admission to the Princess Alexandra Hospital, during which he showed severe evidence of psychotic illness, improving very slowly on medication. He was frequently non-compliant with treatment and absconded on several occasions. On 3 June 1995, he was brought by police to the Princess Alexandra Hospital after some bizarre behaviour, where it was noted that he had not been taking his medication for months: Exhibit 16, p. 1. He was identified as a “high absconding risk”, and he was placed under what is called close observation. That means that there was a particular psychiatric nurse detailed to keep him under observation at all times, which required the nurse to be in the same room with him: p. 93, 209.

5. [5]
   He was at that time a regulated patient, that is a recommendation was made by a medical practitioner under s.18 of the Mental Health Act 1974 under which his hospitalisation became compulsory, and the hospital had the right to detain him in hospital for the purpose of treatment.  It seems that he remained in hospital until mid-August 1995. While at the Princess Alexandra Hospital there were a number of attempts to abscond while he was under close observation, and after his level of supervision was reduced so that he was only checked every 15 minutes, he would leave the hospital without permission.  This occurred on a number of occasions prior to his being granted leave of absence, although it seems that he generally returned of his own accord.  For example, on 2 July 1995 he was noted missing from the hospital and police were notified, but he returned of his own volition about four hours later: Exhibit 16, p. 11. 

6. [6]
   On 15 September 1995 the psychiatry registrar wrote to the Patient Review Tribunal indicating that the first defendant had been hospitalised for some 2½ months after his admission in June 1995, which indicated he had then been supervised as an out-patient for about a month. It is apparent that at that stage he was living in independent accommodation but with supervision. There were times when he was non-compliant with treatment, and he was receiving medication in part in the form of a periodic injection, in order to reduce the risk of this: p.349. There are nursing notes which show that he was back in the hospital by 26 September 1995: Exhibit 16, p. 20. A report to the Patient Review Tribunal advised that during the period when he was out of hospital he was only partially compliant with the treatment and showed decreased levels of self care and created a disturbance in the neighbourhood. On 20 September 1995 and on 21 December 1995 the Patient Review Tribunal recommended that it was necessary in the interests of his own welfare that the first defendant should continue to be liable to be detained.

7. [7]
   My impression from the notes in Exhibit 16 is that generally the first defendant’s behaviour, although bizarre, has been relatively harmless, but there was a period in October 1995 when he became more aggressive, becoming involved in altercations with other patients, and making threats to staff, apparently after a threat to transfer him to a “security unit”. He agreed not to make threats, but some threats continued, although in time his conduct seems to have settled. On the evening of 18 October there was a further absence and voluntary return about three quarters of an hour later: p. 27.

8. [8]
   In late 1995 he was thought to be unsuited for independent living but it was proposed that he reside at a hostel where there had been a supervisor: p. 260.. To that end he was discharged on 15 December. He was granted leave of absence until 18 July 1996 (Exhibit 16, p. 28) and his care transferred to the Royal Brisbane Hospital, although he was to be followed up at the Valley Clinic as an out-patient. Apparently the transfer to the Royal Brisbane Hospital was because that hospital was responsible for supervising the Valley clinic which would be the most convenient treatment point for the hostel.

9. [9]
   His stay at the hostel was initially limited to three days, after which he was taken by ambulance to the Royal Brisbane Hospital: Exhibit 15. The hospital notes in connection with this admission suggest that there has been a further suicide attempt during the hospitalisation at the Princess Alexandra Hospital, when an overdose of paracetamol was taken, although staff were not told for some days and the incident was evidently not very serious: p. 122. During his assessment by a medical practitioner on 18 December there is reference to suicidal ideas having been expressed in the last few days, although that was said not to be current; this was attributed to depression, loneliness and an inability to control his financial affairs. He was offered admission to the ward and agreed to this, but left prior to admission although later that evening he was returned to the hospital by police. The following day he was expressing a wish not to return to the hostel. He was still in hospital and still expressing concern about the hostel on 27 December 1995, and the same attitude was expressed the following day, although he was otherwise apparently in a reasonably good state and was discharged late in the morning.

10 January 1996

10. [10]
    Evidently the first defendant did return to the hostel and remained living there, because the next incident disclosed by the evidence was that on 10 January 1996 Ms. Bubbers, a social worker who was the first defendant’s case manager, was advised by the supervisor of the hostel that the first defendant was acting in a bizarre fashion and did not seem to be very well: p. 260. She went to the hostel where she spoke to the first defendant. He said that he had been trying to cure his schizophrenia by eating flowers and smoking leaves: p. 265. She did not at the time believe that he was at risk of self harm, being more concerned that he may have been suffering some effects from this material: p. 265. He agreed to come to the Valley Community Mental Health Service, and she drove him there in a car.

11. [11]
    There he saw Dr. Scott, who was then a psychiatric registrar at that centre, for about 30 – 45 minutes: p. 285. Dr. Scott was told that he had been eating various flowers and leaves, and was concerned that his behaviour was disorganised and there was formal thought disorder which led to his becoming incoherent at times: p. 285. He was also told that 24 hours previously he had been settled at the hostel, so that there was apparently a rapid decline in his mental state. This made him concerned about the possibility that this might be because of some toxins from the consumption of this material, or of drugs: p.286. In the notes made by Dr. Scott, there is a reference to the first defendant’s feeling suicidal for one day but not having any definite plans: p. 27 of Exhibit 15. He decided to refer the first defendant to the Emergency Department of the Royal Brisbane Hospital to exclude any sort of physical problems associated with the plant material and then for psychiatric assessment: p. 287.

12. [12]
    Dr. Scott said that the first defendant was willing to go back into hospital, although if he had not been Dr. Scott would have regulated him if necessary in order to ensure that he was hospitalised: p.290. This was because of concern about the consequences of eating the flowers, the fact that he did not appear to be coping at the hostel, and the risk of suicide. Dr. Scott’s recollection is that the plaintiff was being co-operative, and he was taken to hospital by Ms. Bubbers: p. 287. She confirmed that she took him to the hospital, that he came with her willingly, and that he was handed over to the Accident and Emergency Department: p. 262. Dr. Scott had telephoned that department and the first defendant was taken over as soon as he arrived, and Ms. Bubbers left: p. 263.

13. [13]
    The first defendant arrived at the Emergency Department at 4.17 p.m.: Exhibit 15, p. 18. His physical state was examined and it was decided that there were no features suggesting any adverse effects from plant ingestion, and he was transferred to the psychiatric section of the Emergency Department, known as Ward 3A at 6.10 p.m.: Exhibit 15, p. 36. There he apparently had something of a wait before he was seen by Dr. Burton who was then senior registrar in psychiatry at the Royal Brisbane Hospital and is now a consultant psychiatrist there: p.325. Dr. Burton’s recollection was that the first defendant was seen at approximately 8 p.m., but this was obviously a very vague recollection, and all that he could really say for sure was that it must have been between 5.30 and 10.30 because those were the hours that he worked: p. 325. He thought this interview took between three quarters of an hour and an hour; unfortunately, the time of the commencement and the conclusion of the assessment were not noted: p.330.

14. [14]
    During the interview with Dr. Burton, the first defendant described increasing feelings of suicide, stating that he felt 45 was a good age (i.e. to die). He also seemed to have insight into the consequences of his illness and referred to his having little positive in his life, and being a drain on society: Exhibit 15, p. 32. He did not have any definite plan to self-harm. Dr. Burton concluded that the first defendant was showing objective and subjective forms of thought disorder and because of concerns about suicide and his mental state, it was appropriate to admit him to hospital for observation and treatment: p. 327. Dr. Burton’s understanding was that the first defendant had been agreeable to everything that had happened to him that day, he appeared to want to get better and was very agreeable to being in hospital and had made no attempt to abscond that day and he did not in these circumstances think that it was necessary for the first defendant to be regulated: p. 329. In fact, the first defendant was already regulated at this stage, but Dr. Burton may not have been aware of this, or it may have been that because of the co-operation on the part of the first defendant the issue did not arise.

15. [15]
    Dr. Burton’s direction to the nursing staff was that the first defendant was to be kept under “category 3 ¼ ” observation, which involved observation every 15 minutes; (p. 32 of Exhibit 15, p. 328) Dr. Burton was of the view that there was nothing to indicate to him a need for a greater level of supervision of the first defendant at that time p. 329. The first defendant was to spend the night in one of the beds in Ward 3A and be transferred to one of the psychiatric wards in the mental health centre of the hospital the following day.

16. [16]
    The first defendant was handed over by Dr. Burton to Mr. Conneely, one of the two psychiatric nurses on duty in Ward 3A that evening: p. 293, 351. He had been a psychiatric nurse then for about six years, and had worked at the Royal Brisbane Hospital since 1992, mostly in Ward 3A. His recollection of the time when Dr. Burton saw the first defendant was after 8 o’clock but this was certainly just a matter of impression: p. 297. The first defendant was given some medication, haloperidol, part of his treatment for his schizophrenia: p. 349.

17. [17]
    Mr. Connelly said that his recollection of the evening was that it was fairly busy up until about the last hour of his shift: p. 295. There is at p.36 of Exhibit 15 a copy of a schedule showing the times when various patients arrived at and left Ward 3A on 10 January 1996. The times in the departure time column which are difficult to read were clarified during the trial from another document: p. 310. At the time when the first defendant arrived, 6.10 p.m., there were four other patients who had arrived and not departed, and another patient arrived 5 minutes later. Two of the patients were discharged home at 6.30 p.m., another arrived at 7.00 p.m. and at 7.15 p.m. two were transferred to psychiatric wards, as was another at 8.00 p.m. This left one other person in the ward apart from the first defendant, and that other patient was discharged home at 9 p.m. From 9 p.m. then the first defendant was the only patient in Ward 3A.

18. [18]
    Smoking is banned in the buildings at the hospital, including Ward 3A: p. 272. It is not unusual for schizophrenic patients to be heavy smokers (p. 233), and the first defendant was one: Exhibit 22, p. 333. There was an open area outside Ward 3A where people could go to smoke (p. 273), which was really just a sheltered area between the car park and the outside walls of the building housing this ward: Exhibit 32. The area was not enclosed (p. 220, 281), nor was the car park enclosed, and one could walk from the area into the car park and down the access road about 100 metres to the entrance to the hospital grounds from Bowen Bridge Road at the intersection of O'Connell Terrace: p. 217, 219. The window from the nursing station in the ward, shown in photograph Exhibit 25, overlooks this area (p. 273); it is the window marked X immediately to the left of the person shown in the photograph Exhibit 24. The nursing station also overlooks the indoor waiting area, shown in photograph Exhibit 27, which also has a window looking out into the car park: p. 274.

19. [19]
    Mr. Conneely can recall that at some time after the first defendant was admitted to the ward, the first defendant said that he was going outside for a cigarette: p. 298. This did not cause Mr Conneely any concern, because nothing he had seen suggested that there was cause for concern regarding his safety, or that he was likely to abscond from the area. He said this was based on his observation of the first defendant since he had arrived in the ward (p.298) although no doubt he also had some regard to the fact that by then he would have been told by Dr. Burton that the first defendant was on category 3 observation. By then the first defendant had changed into hospital pyjamas: Exhibit 15, p. 124.

20. [20]
    The first defendant was not fit to give evidence (p. 106), but his recollection of the events of that evening were given to a Dr. Grant, a psychiatrist, for the purposes of a report on 15 September 1999: Exhibit 22. He said that he had been smoking leaves he had found on the ground for about two weeks before he was admitted to the hospital, and eating flowers for two or three days, in an attempt to cure himself of his mental illness. After he was admitted to Ward 3A he changed into pyjamas and got into bed but could not sleep. He reported to Dr. Grant that he was having thoughts about wanting to die, and went outside, sat outside the ward for a short time with another man, and then walked down to the footpath beside the road. He claimed to have had no definite suicidal plans until shortly before he stepped in front of the bus. Dr. Grant regarded the suicide attempt as an impulsive act: p. 230.

21. [21]
    Dr. Grant noted elsewhere in his report that the first defendant’s account to him was not always accurate; he denied hallucinations in the past, although hospital records noted such complaints. He was vague and it was difficult to obtain a history: p. 229. It is therefore difficult to know how reliable this account really is. Taken at face value however, the first defendant went outside for only a fairly short time before he left, and he left only a short time before he encountered the bus.

22. [22]
    At the time of the incident, the plaintiff had been employed by the Brisbane City Council as a bus driver for 7 years: p. 4. He was driving a bus on Route 44A from the city to McDowall, in the left hand lane in Bowen Bridge Road, approaching the traffic lights: p. 3. He saw the first defendant standing at the lights, looking at him, and as his bus got closer to the lights, the first defendant just walked in front when the bus was about 20 feet away. The bus had not stopped at the hospital stop (p. 24) and had been travelling at about 60 kilometres per hour. When the first defendant stepped off the footpath, the plaintiff applied the brakes hard but was unable to prevent the left hand side of the front of the bus from hitting the first defendant, who suffered injuries but survived. The plaintiff recalls the first defendant had been looking right at him (p. 24), but turned his head away just before impact: p. 4.

23. [23]
    The first defendant told Dr. Grant that there appeared to him to be no one on the bus: Exhibit 22. There were, in fact, a number of passengers on the bus, one of whom was called to give evidence: p. 162. She attended the first defendant after the accident, and recalls his mumbling something about being sorry for being a nuisance. She had noticed the driver using the bus radio as she disembarked, and recalls that later the driver got off the bus and disappeared for a time: p. 162. She said an ambulance arrived a few minutes later.

24. [24]
    The plaintiff said he notified the Council authorities by radio of the incident, checked on the passengers and spoke briefly to the ambulance people, and then went across the road to console a woman whom he had seen crying in a car: p. 9. He then went to a shop and bought some cigarettes. When he returned, the police and a union representative were there and he told them the story: p. 10. The plaintiff did not continue to drive the bus that night, and afterwards had a week off work: p. 10.

25. [25]
    The ambulance was called by a security officer on duty at the entrance to the hospital. His incident report noted the time as 21.45 hours approximately: Exhibit 15, p. 33. The ambulance report (Exhibit 15, p. 20) has an “on case” time of 21.47 hours, and has the ambulance arriving back at the Emergency Department of the hospital at 21.55 hours. The Emergency Department attendance record has the first defendant arriving at 22.05 hours. These records suggest that the ambulance was telephoned approximately 9.45 p.m., and it is likely that this occurred quite soon after the actual collision. But there is no reliable evidence of just when the first defendant left the smoking area outside Ward 3A. It would not have taken long to walk down to Bowen Bridge Road from the smoking area. I know that Bowen Bridge Road carried bus services on a number of routes, and if the first defendant threw himself under the first bus that came along, he might not have had to wait very long to do that.

Claim Against The First Defendant - Trespass

26. [26]
    The plaintiff’s claim against the first defendant was pleaded as lying in the alternative in trespass or in negligence: amended plaint p. 7. It was alleged that the act of the first defendant in intentionally stepping off the footpath in front of the plaintiff’s bus so that the bus collided with him constituted an assault and battery on the plaintiff: para. 5. In my opinion, however, it is difficult to characterise what occurred in this case as an assault or battery on the plaintiff by the first defendant. If a person deliberately drives a vehicle at another so as to strike him with it, that would be actionable as assault and battery: Savignac v. Roome (1794) 6 TR 125;  101 ER 470.  That involves the intentional inflicting of harm on that person.  But here the intent was to inflict the harm on the first defendant, not on the plaintiff. 

27. [27]
    Battery may be defined as the intentional and direct application of force to another person: Winfield & Jolowicz on Tort (13^th ed., 1989) p. 54.  What occurred in the present case cannot be characterised as the tort of battery.  There would have been some very slight application of force to the plaintiff as a result of the impact between the bus and the first defendant;  when the bus struck the first defendant force would have been applied to the first defendant by the bus, and an equal and opposite force would have applied by the first defendant to the bus.  The first defendant was accelerated in the direction of travel of the bus, and the bus was decelerated by the application of the opposite force.  Because the mass of the bus was very much greater than that of the first defendant, the consequences for the first defendant were much greater than for the bus, but strictly speaking, the same force was applied to the bus.  The plaintiff was moving with the bus and his mass was part of the total mass of the loaded bus, so part of the force was transmitted through the bus to the plaintiff, in the proportion that his mass bore to the total mass of the loaded bus.  In that way, some force was applied to him, via the bus, but I do not think it would be sensible to regard that as a battery.  The force concerned would have been very small, and more importantly, it was not applied directly to the plaintiff, nor was the application of the force to the plaintiff intentional.  There is not the slightest reason to think that the first defendant was even aware that one of the consequences of his acts would have been to apply a slight force to the plaintiff, let alone that he committed the act in order to achieve that result. 

28. [28]
    In any case, what happened to the plaintiff (and for the reasons given later I find that the plaintiff did suffer psychiatric or psychological injury as a result of the incident) did not happen because of this slight application of force; it happened because of the plaintiff’s intellectual appreciation of the harm done to the first defendant, coupled with his understanding of his (unwilling and helpless) involvement in the incident. Hypothetically, if the plaintiff had not been aware of the first defendant, and never found out that he struck him, he would not have suffered any harm as a result, even though his body would have been subject to the same force as a result of the collision. In my opinion, therefore there was no actionable battery.

29. [29]
    I think a similar analysis applies to an assault. That is defined in Winfield & Jolowicz as “an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant.” There can be an assault without a battery, but only where there is an apprehension of a battery which then does not occur for some reason. But again, there was no intention to harm or frighten the plaintiff, or to cause him fear that he would suffer as a result of the collision with the first defendant, and the plaintiff’s concern, between the time when the first defendant stepped on to the road and the moment of impact, was not for what was going to happen to himself, but for what was about to happen to the first defendant.

30. [30]
    Battery and assault are merely two of the more common types of the tort of trespass: Fleming “The Law of Torts” (9^th ed., 1998) p. 23.  There is authority for the proposition that, if a person wilfully does an act calculated to cause harm to another and in consequence causes a mental injury, there is a cause of action in the absence of lawful justification: Wilkinson v. Downton [1897] 2 QB 57.  In that case the plaintiff was told, falsely, by the defendant, as a practical joke, that her husband had been seriously injured. The plaintiff suffered nervous shock as a consequence, and was held entitled to recover.  This was approved by the Court of Appeal in Janvier v. Sweeney [1919] 2 KB 316 (at 324),  where there was an intentional terrifying.  The decisions are regarded as authoritative by text writers, although they were treated with some caution by Latham CJ in Bunyan v. Jordan (1937) 57 CLR 1 at 11. 

31. [31]
    In Bunyan the plaintiff was employed by the defendant to work in a shop, and one day while the defendant was drunk he did various things, which some members of the High Court regarded as somewhat theatrical, to give the impression that he was proposing to commit suicide, possibly with an intention to frighten his sons.  The plaintiff saw him with a revolver and a bottle marked “Poison” on his table, and later overhead him saying to another employee that he was going to shoot someone.  Later he left the shop and the report of a firearm was heard, although he reappeared later.  When the plaintiff took the takings to him later that day, he tore up pound notes and said that he would not be there in the morning to mend them or have them banked, and that they would hear of a death before morning.  The plaintiff sued for damages for assault, negligence, intentionally inflicting injury, or breach of contract of employment, but was non-suited at trial, and appeals to the Court of Appeal of New South Wales (1936) 36 SR NSW 350 and the High Court of Australia were unsuccessful. 

32. [32]
    The claim for assault was disposed of on the basis that there was no personal violence exercised in relation to the plaintiff or threatened against her: p. 8. This aspect received very little discussion. The principle of Wilkinson v. Downton was discussed by both Chief Justices.  Jordan CJ treated an intention to alarm the plaintiff as a necessary element of this, and that what was done be either reasonably capable of terrifying a normal human being or be known (or ought to have been known) to the defendant to be likely to terrify the plaintiff for reasons special to her: p. 353.  Latham CJ expressed the distinction somewhat differently at p. 11:

“The person suffering the injury was the person to whom the words were uttered, and the words spoken were of such a character and were spoken in such circumstances that it was naturally to be expected that they might cause a very severe nervous shock with serious results to the health of the person to whom the words were said.  In the present case the words were not uttered to the plaintiff  and they were not even uttered in her presence.”

The only other judge who mentioned Wilkinson v. Downton was Evatt J who dissented: p. 18.

33. [33]
    Notwithstanding the cautious approach of Latham CJ, Wilkinson v. Downton was cited by the majority of the High Court with apparent approval in Northern Territory v. Mengel (1995) 185 CLR 307 at 347, and by the Court of Appeal in Khorasandjian v. Bush [1993] QB 727 at 735, and it was applied in Sherry v. Dunwoody (Mackay Plaint 129/94, Wolfe DCJ, 7/8/98, unreported).  Fleming is not clear about the nature of the cause of action, but it is identified by Trindale & Cane “The Law of Torts in Australia” (1985) at p. 59 as an action on the case.  This  has implications for the defence of unsoundness of mind, to which I shall return.

34. [34]
    It seems that an intention to frighten the plaintiff is not necessary, so long as the defendant’s actions would reasonably be expected to cause such harm, so the defendant may be said to have acted recklessly: Fleming, p. 38. See also Trindale & Cane at pp. 60-61 as to the significance of the expression “calculated to produce some effect of the kind which was produced” used by Wright J, with which I agree. It is really laying down an objective test. Obviously in Wilkinson there was no intention to cause nervous shock;  rather, the defendant intentionally did something which was likely to produce greater consequences under the circumstances, so that an intention to produce that effect was imputed: p. 59.  In my opinion, the facts of the present case lie inside the boundaries of liability indicated in the judgments in Bunyan.

35. [35]
    There are cases where it has been held that a person who commits suicide in the premises of the plaintiff is liable for consequent nervous shock to the plaintiff: A v. B’s Trustees (1906) 13 SLT 830; Blakeley v. Shortal’s Estate 20 NW 2d 28 (1945).  In each of these cases the plaintiff suffered nervous shock after coming upon a person who had committed suicide in the plaintiff’s home.  In the former, the plaintiffs were the landladies of furnished apartments who came upon one of their tenants who had committed suicide in the bathroom.  The judgment of Lord Johnston held the plaintiffs were entitled to recover specifically under the principle in Wilkinson v. Downton (supra), although he went on to conclude that the actions of the deceases were wrongful because they were in breach of the contract under which he was occupying the premises.  He did not appear to realise that the claim was actionable as an action on the case without the need to show any other cause of action.  In the latter case, the plaintiff came upon a neighbour who had committed suicide in her kitchen by cutting his own throat, and his estate was held liable on the basis that her shock was the actual result of his wrongful act.  In each of these cases the suicide attempt was successful, but neither was carried out in the presence of the plaintiff, although carried out in a place where the plaintiff was going to come upon the consequences. In neither of these cases did it appear that there was an actual intention to cause mental distress to the plaintiff, but there was an actual intention to do something which was likely to cause such distress, and that was regarded as sufficient. 

36. [36]
    On this basis, it would seem that the distinction between the facts in those cases and Bunyan v. Jones is that in the latter case there was no actual suicide attempt, successful or otherwise, or its results, in the presence of the plaintiff.  The recurring theme in Bunyan is that there was no reasonable likelihood of harm of some such nature resulting from what the defendant did: see for example, p. 16 per Dixon J.  He regarded this as an essential element of any possible cause of action, and therefore fatal to all of them.  In my opinion, for a person deliberately to throw himself in front of a vehicle so as to cause the vehicle to strike him in a way which is intended to kill him is something which is likely to cause serious mental distress, and potentially psychiatric or psychological injury, to the driver of the vehicle: p. 61, p. 138.  Although there was no actual intention to cause that psychiatric injury, such intention is to be imputed because that is a natural consequence of the intentional act of the defendant. 

37. [37]
    I do not regard it as obviously right that a suicide attempt in such circumstances should be actionable at the suit of the person so injured. If the attempt is successful, the practical effect of allowing liability for the injury will be that the dependants or other beneficiaries of the suicide will be deprived of the benefit of some or all of his estate, which would probably add to their own emotional distress. They may well suffer considerable loss anyway. I would think few people would be insured against causing psychiatric injury to others by suicide attempts, successful or otherwise. If the attempt was successful, allowing liability will merely transfer the loss from one innocent person to another or others. Take the case of a man who is supporting his wife and children and who commits suicide because he cannot cope with a false allegation of sexual impropriety made against him. Why should some person who sees the event, or finds his body, and suffers psychiatric injury as a result, be entitled to first call on his estate ahead of the wife and children? Perhaps the principle in Wilkinson v. Downton which, like Rylands v. Fletcher (1868) LR 3 HL 330, preceded Donoghue v. Stevenson [1932] AC 562, should now be absorbed by the ordinary principles of negligence: cf. Burnie Port Authority v. General Jones Pty Ltd (1994) 178 CLR 520.

38. [38]
    However, it is probably unhelpful for me to consider such questions; in the light of the authorities to which I have referred, in my opinion, and subject to the defence raised, the first defendant is liable to the plaintiff for any psychiatric or psychological injury suffered as a consequence of his suicide attempt. This liability arises from the facts pleaded. The relevant evidence was led and the relevant arguments ventilated, although there was no reference to Wilkinson v. Downton and related cases during argument after the trial.  After judgment was reserved, submissions in relation to this matter were invited, and received, from the parties, and I have considered them. It was not submitted that any further factual issue arose.    Insofar as there is any obscurity about the nature of the cause of action, that I think is a matter more usefully debated in another place where any pronouncement on the point will be more authoritative.

Defence of Unsoundness of Mind

39. [39]
    There is ancient dicta that illness significantly interfering with thought processes, then described as lunacy, was no defence to an action in trespass: Weaver v. Ward (1616) Hob 134;  80 ER 284.  There have been, however, over the years relatively few decisions, and these are not always consistent.  The early cases will not reflect the refinements in the law of torts which have occurred in more recent times, particularly confining liability in trespass to conduct that was intentional or negligent: Fleming, p. 23.   There is a very helpful analysis of the early decisions in an article by E C E Todd “The Liability of Lunatics in the Law of Tort” (1952) 26 ALJ 299.  One of the points made by the author is that there is no discussion in cases about degrees of mental infirmity, possibly because of the difficulties lawyers have experienced in coming to grips with the whole question: Mordaunt v. Mordaunt (1870) LR 2 P&D 103.  The article notes that there are cases where a lunatic has been held liable for assault, or where it has been concluded that a lunatic would be liable in trespass, in England – Morriss v. Marsden [1952] 1 TLR 947; in New Zealand - Donaghy v. Brennan (1900) 19 NZLR 289; in Canada - Taggard v. Innes (1862) 12 Upp.Can.C.P.77, and in the United States of America:  Williams v. Hays 143 NY 442 (1894). Standing against these was the decision of O'Sullivan DCJ in White v. Pile (1951) 68 WN(NSW) 176, a case described by Mr. Todd as “a most doubtful authority” and criticised in an earlier note in 25 ALJ 129. 

40. [40]
    The approach in Morriss v. Marsden, that it was sufficient that the lunatic directed the blows that were struck, even though there was no appreciation that they were wrong, has subsequently been applied also in Beals v. Hayward [1960] NZLR 131, Attorney-General for Canada v. Connolly (1989) 64 DLR (4d) 84, and Whaley v. Cartusiano (1990) 68 DLR (4d) 58.  One difficulty with the older cases dealing with liability for trespass is that they pre-date the rule that liability in trespass is confined to intentional or negligent acts, or do not appear to take it into account:  see Street on Torts, 9thed., p. 571 n3.  That rule may have originated in 1890 in Stanley v. Powell [1891] 1 QB 86:  Fleming, p. 26.  It may have taken some time to become generally accepted, but it is now said to be both by Fleming (p.23) and Trindale and Cane: p.20. See for example Fowler v. Lanning [1959] 1 QB 426.   Although I have not been able to find a decision supporting this proposition of the full High Court, it was the conclusion adopted by Windeyer J in McHale v. Watson (1964) 111 CLR 384, and has the support of Gibbs CJ in Hackshaw v. Shaw (1984) 155 CLR 614 at 620 (and see p. 670 per Dawson J).  Gibbs CJ also pointed out that it was not necessary in that case to determine whether, in the case of negligent trespass, the plaintiff had the onus of proving negligence, or the defendant had the onus of disproving negligence, but expressed a preference for those authorities which supported the former view, which is the established position in England: p.619. 

41. [41]
    In my opinion, there is no reason why the liability of a person of unsound mind in negligent trespass should be any different from the liability of such a person in negligence, and the issue in relation to intentional trespass would then, in my opinion, simply be a factual issue of whether the defendant had the necessary intention. The question of what is intentional for the purposes of an action in trespass can itself be a fairly complicated one; see the discussion in Trindale & Cane at p. 30-36. In my opinion, if because of unsoundness of mind a defendant does not in fact have whatever state of mind is required in order to make his acts intentional for the purpose of establishing liability for intentional trespass, the defendant will not be liable, whether because the plaintiff fails to prove an essential ingredient for the cause of action (intent) or the defendant proves a defence (absence of intent).

42. [42]
    Hence if A shoots B because of an insane delusion that B is the devil, A will be liable in trespass just as if a sane A had shot B under a mistaken belief that he was shooting C: Bunyan v. Jordon (supra) at p. 12 per Latham CJ.   But if A shoots B without any intention to do so, there would (absent negligence) be no liability in trespass, whether because A is of unsound mind, or a child – Hogan v. Gill [1992] Aust. Torts.R. 61,578 – or was intending to shoot some pheasants: Stanley v. Powell (supra).  In my opinion, the earlier authorities which suggest that there can be liability based essentially on causing the harm to the plaintiff in the absence of fault no longer reflect the law, which has developed to the point where fault is an essential element in determining liability in an action for trespass: Trindale & Cane p. 25. 

43. [43]
    The position with liability under the principle in Wilkinson v. Downton is analogous, because that is an intentional tort.  The defendant’s action against the plaintiff must have been intentional, but it is accepted that causing the harm does not have to be intended, but can be imputed: see Trindale & Cane p. 61.  This is analogous to the position in battery, where what is required is intentional contact, not an intention to do harm:  Trindale & Cane p.31.  In the context of harm associated with suicide, the fact that the suicide was intentional seems to have been regarded as sufficient;  where the harm was caused by things said to the plaintiff, there has to be an actual intention to harm, or the things said have to be of such a nature that harm would be imputed.  In the latter case, the liability depends on the existence of an actual intention to say the relevant things to the plaintiff, and so long as that is present, the defendant will be liable because the intention to cause harm is imputed.  Consistent with the approach in relation to liability in trespass, therefore, a defendant of unsound mind should be liable if, notwithstanding the unsoundness of mind, he intentionally does the thing which, if done by a sane person would render that sane person liable under this principle.  If, because of unsoundness of mind, that intention is not present, he is not liable. 

44. [44]
    In those cases where the harm was caused by committing suicide, the emotional injury to the plaintiff was regarded as a sufficiently probable consequence of such an act for the intention to cause that injury to be imputed. See also Bielitzki v. Obadisk [1922] 2 WWR 238, where the defendant was found liable by the Saskatchewan Court of Appeal under Wilkinson v. Downton because he had deliberately spread a report that the plaintiff’s son had committed suicide intending that it come to her notice, with an intention to harm being imputed on the basis that:

“Any reasonable man would know that the natural and probable consequence of spreading such a report would be that it would be carried to the plaintiff and would, in all probability, cause her not only mental anguish but physical pain.”  (p. 242)

In the present case there was psychiatric evidence that an ordinary person would be likely to suffer some mental distress from such an incident, which could well extend to psychiatric injury: p. 61, p. 138.  That evidence was uncontradicted, and is consistent with the approach adopted in these cases. 

45. [45]
    It was submitted on behalf of the first defendant that there was no liability for assault because of s. 27 of the Criminal Code, but that section expressly provides for an absence of criminal liability. Assuming that the provisions of the Criminal Code might otherwise be relevant to the existence of liability for intentional torts, in my opinion, where the Code expressly excludes only criminal liability the exclusion is irrelevant when considering civil liability. In any case, the cause of action on which the plaintiff recovers is distinct from assault or battery.

46. [46]
    I am satisfied that the first defendant’s act was a willed act in the sense that he deliberately placed himself in front of the bus with the intention that the bus would strike him, so as to kill himself: p. 69, p. 216, p. 242. In my opinion, once that intention was present, his action was sufficiently intentional to make him liable for an intentional tort under the principle in Wilkinson v. Downton.

Claim Against The First Defendant – Negligence

47. [47]
    Turning to the claim in negligence, a pedestrian owes a duty to other road users to take reasonable care to avoid causing harm to them: Nance v. British Columbia Electric Railway Co Ltd [1951] AC 601 at 611. That overcomes the difficulty identified in Bunyan v. Jordon in finding a duty of care.  The other difficulty identified in the way of an action for negligence in that case was the issue already mentioned of whether there was any reasonable likelihood of harm of some such nature resulting from the act done. I have already concluded that here there was.  The issue raised on behalf of the first defendant in resisting the claim in negligence was that there was no liability because of the first defendant’s mental condition at the time.  But for that consideration there was, in my opinion, liability in negligence, so it is necessary to consider whether that mental condition made a difference to the defendant’s liability. 

48. [48]
    It was submitted that an incapacity of understanding the duty of care, and inability by reason of mental disease to discharge the duty, meant that he did not owe the plaintiff a duty of care, and was not responsible for actions which in a sane person would have been a breach of that duty. It is difficult to see, however, how the mental state of the defendant is relevant to the existence of a duty of care, since the various matters which are commonly relied on as giving rise to a duty of care do not relate to anything which is subjective to the defendant. The question of foreseeability of harm depends on an objective test, not whether the defendant foresaw harm, or indeed whether the defendant had the capacity to foresee harm. Questions about proximity between the parties, or about reliance by the plaintiff on the defendant, do not touch on the mental state of the defendant. The test in Donoghue v. Stevenson [1932] AC 562 at 580 – “Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question” – is not subjective to the person having the duty, unless it is treated as being based on and therefore assuming a capacity to direct a mind to the relevant acts or omissions. 

49. [49]
    Given the inability of the High Court to agree on a definitive test for when a duty of care does or does not exist, it is difficult to be dogmatic about whether factors subjective to the defendant are relevant to the existence of a duty, as distinct from the question of whether the duty has been breached. It is not necessary, however, for me to answer this question either in the abstract or in all possible situations; I am concerned with a duty owed by one road user to another, and if anything is uncontroversial in the law of torts it is that such a duty is owed. The circumstances which give rise to this duty, being the common use of the roads and the capacity of road users to cause harm to each other if they do not take care, arising from the nature of the activities conducted on roads, are all factors which are independent of the mental state of the defendant, and in my opinion, the existence of a duty of care is unaffected by his mental state. Although Lord Aitkin spoke of the need to avoid “acts or omissions which you can reasonably foresee would be likely to injure your neighbour” (p. 580), the test of foreseeability is an objective one, not one which depends on subjective foresight of the defendant or a capacity for foresight.

50. [50]
    The standard of care is ordinarily spoken of in objective terms, as being reasonable care, that is, what a reasonably careful person would have done with a view to avoiding a foreseeable risk of injury to persons such as the plaintiff: Cook v. Cook (1986) 162 CLR 376 at 382.  In the case where the risk of injury is small, and any particular injury likely to occur if the risk materialised relatively minor, what a reasonable person might well have done is nothing, and the same might apply if there was no way of reducing or avoiding the risk without generating other risks which were at least as serious.  As well, other conflicting responsibilities may operate to deter action to mitigate the risk: Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47.  It is clear that in practice what is reasonable is influenced by the identity of the defendant.  Hence, employers, particularly large employers, may be expected to go to more trouble to identify and exclude relatively minor risks than, for example, occupiers of property which is apparently safe: Fleming (supra) at p.137.  A person who has special knowledge or ability may be subject to a higher standard by way of reasonable care: Fleming, p. 120.  What is less clear is whether people whose capacity for taking care is diminished because of their mental state are subject to a lower standard. 

51. [51]
    One area where this is the case is in relation to contributory negligence; the standard of care for one’s own safety with respect to a child will be lower than for an adult, particularly in the case of a young child: Fleming, p.321, where it is said that a plaintiff subject to some mental disability is in the same position. In the case of contributory negligence, this is not confined to mental disability; it extends for example to physical disability: McHale v. Watson (1966) 115 CLR 199 at 223.  Fleming says that the position is the same in relation to negligence in the case of children, but that the position of lunatics remains controversial: p. 126.  Fleming welcomes those authorities which disregard any mental abnormality on the part of the defendant, although that view is justified in part by a reference to the undesirability of such considerations interfering with compensation for victims of traffic accidents from insurance schemes. 

52. [52]
    Fleming refers to an article by Professor Pedrick “The Lunatic Driver” (1957) 31 ALJ 354 which is strongly critical of anything which would interfere with the process of compensation from the insurance fund to those injured through the use of motor vehicles. Hence, his conclusion:

“If one is hit by a driver who turns out to be an authentic lunatic, as contrasted with the ordinary Australian motorist, it may be some consolation to know that under [Adamson v. Motor Vehicle Insurance Trust (1957) 58 WALR 56] the circumstance of the driver’s mental condition will not affect the claim for injuries sustained from the negligent driving of a motor vehicle.”

One can understand why it may not be thought very logical to draw a distinction between “an authentic lunatic” and those motorists who merely drive like one, but I think it is important not to fall into the trap of allowing the existence of an insurance fund behind certain defendants to distort the law as it will apply to those defendants who do not have or are unlikely to have the benefit of insurance.

53. [53]
    In Adamson v. Motor Vehicle Insurance Trust (supra) the plaintiff was injured when he was run down by a car driven by a person who was found to be insane at the time.  The accident occurred in circumstances which, but for the state of mind of the driver, amounted to clear negligence.  The defendant was sued because the driver had subsequently disappeared.  There was medical evidence that at the time the driver was suffering from schizophrenia, that he would have been conscious of what he was doing, and that he would know it was wrong, but that his judgment would have been clouded by the delusions from which he was suffering, namely that his workmates were trying to kill him. 

54. [54]
    Wolff SPJ considered the law as stated by a number of text writers, and in a number of cases dealing with liability in trespass, generally the cases discussed in the article in 26 ALJ, and concluded (p. 67):

“There is much to be said in support of the theory that a lunatic should be responsible for his tortious acts.  The ancient rule of liability, based on the good of the community, which seems to have been part of the ratio decidendi in the case of William v. Hays 143 NY 442 (1894) also 42 Am.St.Rep. 743 has much to commend it.  This leaves untouched cases where an act is committed in a state of amnesia or mania where the actor is entirely disorientated.  If the law is to be logical, it ought to fix the actor with liability even in these cases.  I consider that [the driver] was responsible in negligence when he collided with the plaintiff.  I have expressly made findings that he understood what he was doing, and that he also knew that he was doing wrong.  I have made these findings in case this matter should go further, but for reasons I have expressed, I do not think they have anything to do with the case. I can find no authority which would temper the view held by the earliest writers that insanity was not a defence.”

55. [55]
    I am concerned about the reasoning in Adamson, because it seems to me that it turns too much on the analogy with the tort of trespass, and does not address what seems to me to be the relevant question.  In my opinion, the issue is not whether insanity is a defence as such, but whether the standard of care required to amount to “reasonable care” is a standard which takes into account any unsoundness of mind on the part of the defendant.  That, I think, is a different issue and one not considered by Wolff SPJ.  It seems to be accepted that the position of lunatics is similar to that of infants in relation to contributory negligence, and that the standard of care required of an infant defendant is diminished because of the fact of infancy.  It was also dangerous to rely too much on William v. Hays (supra) in circumstances where at least one proposition stated in that judgment is contrary to the law in Australia as established by the High Court.  One of the propositions stated, at p. 749 of 42 Am St.Rep., is that infants and lunatics were both liable for negligence without regard to their particular circumstances, and that is clearly not the law in Australia with regard to infants.  The decision, like so many at that time, emphasises the fact of the causing of harm as the basis of liability, and Wolff SPJ has apparently disregarded the rise of the importance of fault in the law of tort since the 1890’s: see Fleming, pp. 24-25.  Although Professor Fleming may regret this change so far as it applies to motor vehicle accidents, it ought not to be ignored.  Old authorities on the irrelevance of fault to liability in tort ought these days to be regarded as highly suspect. 

56. [56]
    The case which establishes that the standard of care which applies to a child may be different from and lower than the standard of care which would apply to an adult is the decision of the High Court in McHale v. Watson (1966) 115 CLR 199.  In that case a boy of 12 threw a sharpened piece of welding rod at a post, but it glanced off and struck a younger girl in the eye causing injury.  It was held that, judged by the standard of a reasonably careful 12 year old, he was not negligent, and that decision was confirmed by the High Court on appeal.  McTiernan ACJ noted that various text writers had supported the view that the standard of care for a child was reasonable care for a child of that age.  He noted that there was ample American authority in favour of applying that approach, and that the same position was adopted by the British Columbia Supreme Court in Walmsley v. Humenick [1954] 2 DLR 232.   His Honour concluded that it was not the law that a young boy cannot be guilty of negligence in any circumstances, but that it was right to take his age into account when determining whether he had failed to take reasonable care. 

57. [57]
    Kitto J also concluded that the liability of a child should be considered by reference to the child’s age (p. 214), finding support for this view in the cases dealing with contributory negligence by a child: p. 215. He did say, however, at p. 213:

“A defendant does not escape liability by proving that he is abnormal in some respect which reduces his capacity for foresight or prudence.  The principle is of course applicable to a child.  The standard of care being objective, it is no answer for him, any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow witted, quick tempered, absent minded or inexperienced.”

Owen J also had regard to text writers and decisions in Canada and the United States in arriving at the same conclusion: p. 234. 

58. [58]
    Menzies J dissented and concluded that the applicable standard was that of an ordinary reasonable man: p.225. Indeed, he would also have held that even judged by the standard of a reasonably careful 12 year old, the defendant was negligent: p. 226. He noted that there was no necessary connection between legal liability to make compensation and moral culpability. He regarded cases on contributory negligence as not being a useful guide, since in that context “Any person under disability is only required to take such reasonable care for his own safety as his capabilities permit. A one legged man crossing the road is not expected, in the face of danger, to display the agility of a two legged man.” (p. 223).

59. [59]
    In these circumstances, it appears anomalous for the standard of care required of a person of unsound mind not to be diminished because of that unsoundness of mind. In the case of congenital mental disability, it is difficult to see why the standard of care required of a person whose mental functions are the equivalent of those of a six year old child should be any different from the standard required of a six year old child. It is also difficult to distinguish between those whose diminished mental function is a product of natural infirmity and those who are inflicted by a disease or suffering the consequences of injury.

60. [60]
    There are other areas where it has been said that the standard of care will depend on the personal capacity of the defendant. In Goldman v. Hargrave [1967] 1 AC 645, the Privy Council, when dealing with the liability of the defendant for failing to extinguish a fire started on his land by natural causes, held that the standard was what was reasonable to expect of this defendant in his individual circumstances, saying at p. 663:

“Less must be expected of the infirm than of the able bodied … [and the defendant] should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstances should, have done more.”

Once one accepts that a lower standard of care in taking positive action to suppress a fire is required of an elderly property owner afflicted with arthritis than of a young, healthy property owner, I think it is difficult not to take into account the existence of a mental infirmity when assessing whether there is negligence in the case of, for example, an elderly property owner suffering short term memory loss who comes upon a fire on his property and decides to put it out, goes away to get some fire fighting equipment and then forgets about the fire. 

61. [61]
    The question of whether the standard of care modified to take into account features personal to the defendant was considered by the High Court in Cook v. Cook (1986) 162 CLR 376, where the court was considering an action by a passenger who had invited an inexperienced and unlicensed person to drive her car and was injured as a result of a loss of control of the vehicle by that person.  The majority at p.382 started with the proposition that “the measure for determining what constitutes reasonable care is an objective and impersonal one.”  They said, however, that a more detailed definition of the objective standard of care for the purposes of a particular category of case must necessarily depend upon the identification of the relationship of proximity which is the touchstone and control of the relevant category, and gave the example of a person who asked a blacksmith to mend a watch;  the blacksmith would not be expected to take the standard of care required of a professional watchmaker.

62. [62]
    The court said that ordinarily the duty owed by a driver to a passenger was the degree of care and skill to be expected of an experienced and competent driver, but that it was not a standard which was necessarily immutable:

“While the personal skill or characteristics of the individual driver are not directly relevant to a determination of the content or standard of the duty of care owed to a passenger, special and exceptional facts may so transform the relationship between driver and passenger that it would be unreal to regard the relevant relationship as being simply the ordinary one of driver and passenger and unreasonable to measure the standard of skill and care required of the driver by reference to the skill and care that are reasonably to be expected of an experienced and competent driver of that kind of vehicle.  It would, to take an extreme example, affront the standards of the reasonable man of the law of negligence to define the duty of care which a mentally retarded and completely unqualified and inexperienced person owed to a professional pilot who had persuaded him or her to attempt to pilot an aircraft in which they were both travelling as being the skill and care that are reasonably to be expected of a qualified and experienced pilot”. (p. 383)

The court then went on to consider the position of a learner driver driving a vehicle in which an instructor was a passenger (p. 384):

“The point may be illustrated by reference to the above mentioned example of a professional driving instructor and a pupil having his first lesson.  In relation to other users of the highway, the duty of care of both instructor and pupil will ordinarily fall to be measured by the same objective standard since the relevant relationship will be the ordinary one between a driver and another user of the highway.  As between themselves, however, it would be to state a half truth to say that the relationship was, if the pupil was driving, that of driver and passenger.  The special circumstances of such a case remove the relationship into a distinct category or class which, while possessing the requisite degree of proximity, could not rationally be seen as giving rise to a duty to drive with the skill reasonably to be expected of a competent and experienced driver.  Indeed, it is the very absence of that skill which lies at the heart of the special relationship between the driving instructor and his pupil.  In such a case, the standard of care which arises from the relationship of pupil and instructor is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which the pupil is placed.  The standard of care remains an objective one.  It is, however, adjusted to fit the special relationship under which it arises.”

63. [63]
    This is really saying that there is a modified duty rather than a modified standard of care. It is the duty which is the product of the relationship between the parties; the court is saying that a different duty is owed to the passenger from that owed to other road users, and that duty depends on the particular features of the relationship between them. That is made clear by the passage at p. 387 where the majority said:

“It would … be to ignore the objective standard set by the law of negligence to adjust the duty of care in the particular case by reference to the physical characteristics and expertise, or the usual carefulness or otherwise of the particular driver.  It is only when special and exceptional circumstances clearly transform the relationship between a particular driver and a particular passenger into a special or different class or category of relationship that the case will be one in which the duty of care owed by the particular driver to the particular passenger will be either expanded or confined by reference to the objective standard of skill or care which is reasonably to be expected of a driver to a passenger in the category of a case where that special or different relationship exists.”

64. [64]
    The majority went on to conclude that the defendant was guilty of negligence in that she did not live up to the standard to be expected of a reasonable person who was inexperienced in managing and controlling a motor vehicle: p. 389. Brennan J delivered a separate judgment, arriving at the same conclusion for, it seems to me, essentially the same reasons. The court rejected the approach of the Court of Appeal in Nettleship v. Weston [1971] 2 QB 691.

65. [65]
    Obviously, questions of standard of care cannot be modified to take into account levels of skill and experience of the defendant, at least for the purpose of depressing the standard below that expected of the objectively reasonably competent person without special skill or experience. For that reason it is easy enough to accept the proposition that an unskilled or inexperienced driver should not be allowed a lower standard of care than others. Whether the modification of liability to the driving instructor should be achieved by modifying the duty, rather than by considerations of contributory negligence or volenti, might be an interesting topic for academic debate. But that case really does not deal with the particular problem posed by diminished mental capacity, although it is touched on in the earlier example given of the mentally retarded person put in charge of an aeroplane by the professional pilot. It seems to follow from the later analysis that in those circumstances the court would regard that person as owing only a modified duty of care to the professional pilot, but what of other persons on the aeroplane who know nothing about this and know nothing about the incapacity of this person. The analysis of the High Court would suggest that the mentally retarded and completely unqualified and inexperienced person persuaded to attempt to pilot the aircraft owed those people a duty to exercise the skill and care reasonably to be expected of a qualified and experienced pilot. I find that proposition almost as unsatisfactory as the proposition that such a duty was owed to the pilot. Such a person would not only not be able to control an aircraft properly, he would not know that he could not control the aircraft properly, and would be unaware of the risk his actions posed to other people, that is people apart from himself and the pilot, on the aircraft.

66. [66]
    It is possible for a person to suffer interference with mental functioning as a result of some physical cause. Examples of this have arisen in the context of motor vehicle cases, where a person has become incapable of driving for some physical reason. Perhaps the most common example is where a person falls asleep at the wheel, where there is usually little difficulty in finding liability although this is properly analysed on the basis of negligence in driving while too tired, rather than treating the driver as negligent directly by reference to what happens to the vehicle after he goes to sleep: see Jiminez v. R (1992) 173 CLR 572:  Leahy v. Beaumont (1981) 27 SASR 290.  Where a driver loses control of a motor vehicle as a result of a heart attack which comes on without warning, there has been held not to be negligence:  Waugh v. James K Allen Ltd [1964] 2 Ll.Rep. 1. Contrast Breunig v. American Family Insurance Co (1970) 173 NW(2d) 619 where there was liability because there had been warning so that it was negligent to drive at all.  In such a situation the defendant was held not liable, although a different outcome was reached in a related case, Roberts v. Ramsbottom [1980] 1 WLR 823, a case which has some parallel with Adamson. 

67. [67]
    In that case there was a collision in circumstances where the driver had suffered a stroke earlier that morning, which came on without warning, and thereafter his consciousness was impaired, so that he had some but impaired awareness of his surroundings and traffic conditions, and had some capacity to drive his vehicle, although inefficiently, but he had no awareness that he was unfit to drive: p. 829. Neill J noted that the standard of care was an objective one, and made some reference to authorities concerning the crime of dangerous driving. After considering a number of these cases which excluded liability in the case of sudden and unexpected unconsciousness, His Lordship said (p.832):

“I am satisfied that in a civil action a similar approach should be adopted.  The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control.  The most obvious case is sudden unconsciousness. But if he retained some control, albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable.  His position is the same as a driver who is old or infirm.  In my judgment, unless the facts establish what the law recognises as automatism the driver cannot avoid liability on the basis that owing to some malfunction of the brain his consciousness was impaired.”

68. [68]
    On this basis he was held to be liable although His Lordship went on to say that in any event he would have been liable because he continued to drive after an earlier collision, notwithstanding that “owing to his mental state he was unable to appreciate that he should have stopped” (p. 833). The learned authors of Winfield & Jolowicz (p. 679) asked rhetorically in a footnote:

“How can the defendant be held negligent in not stopping if he could not appreciate that he should have stopped?”

In my opinion, there is no good answer to that question, and the decision is unsatisfactory, and prompted by a desire to ensure compensation from the defendant’s insurer to the injured plaintiffs.  Such an approach, which has the support of, for example, Fleming (p.127) and, apparently, Street on Torts (9^th ed., 1993) p. 227, may be appropriate in circumstances where personal liability has been displaced by insurance, but in my opinion it is out of place in circumstances where the real effect of a finding of liability is to transfer the loss from one innocent individual to another innocent individual. 

69. [69]
    Counsel for the first defendant relied on the decision of the Ontario Court of Appeal in Buckley v. Smith Transport Ltd [1946] 4 DLR 721.  In that case a collision occurred between a streetcar and a semi-trailer, caused by the manner in which the semi-trailer was operated, but the owner of the vehicle alleged that the driver was insane and under the delusion that it was under remote electric control from the employer’s office so that he was unable to control it.  The Court of Appeal found that he was labouring under a delusion, and considered a number of authorities on the question of the liability in tort of lunatics.  It was not merely a question of whether he had some insane delusion, but (p. 728):

“Whether or not he understood and appreciated the duty upon him to take care, and whether he was disabled, as a result of any delusion, from discharging that duty.  The delusion or delusions may manifest the fact that due to mental disease the individual’s mind has become so deteriorated or dilapidated or disorganised that he has neither the ability to understand the duty nor the power to discharge it.”

70. [70]
    The court concluded that he did not understand and appreciate the duty, and the delusion prevented him from discharging it: p. 729. In my opinion, the point was whether there was a capacity to appreciate the need for care or a capacity to do what was required by way of discharge of the duty. This decision is stated as authoritative in Fridman “The Law of Torts in Canada” vol. 1, p. 299, and is said in Linden “Canadian Tort Law” 6^th ed., 1997 at p. 143 to be the main test used in Canada, although the author notes that it is not the universal view and favours the approach in Adamson, at least for motor vehicle accident cases.  He notes that in one recent case involving a motor vehicle accident such an approach was adopted: Wendin v. Trikha (1991) 8 CCCT 2d 138.

71. [71]
    There is a thorough analysis of the whole question of the tort liability of persons of unsound mind in an article by Professor Fridman in (1964) 80 LQR 84, where both points of view are discussed and the state of the decisions and dicta in the area are described as unsatisfactory: p.55. Both views are summed up on p. 93, with the comment that there is much to be said for either view, but at p. 94 he concludes:

“Whereas some courts and writers would appear to take the view that this illogicality should be resolved, it is resolved at all, in favour of making a mentally incompetent person fully liable in tort, the present writer would prefer to see the courts adopt the alternative approach.  This would mean that, wherever a person’s mental incompetence was causally connected with his infliction of harm on another, whether accidentally (in circumstances normally involving liability), negligently, or intentionally (in the sense of a voluntary act produced i.e, caused in consequence of the mental illness or disease from which the defendant was suffering) such incompetence should justify relieving the defendant from personal liability.”

72. [72]
    In Clarke & Lindsell on Torts (16^th ed., 1989) the authors say at p. 168:

“The liability of a person of unsound mind in an action for negligence seems to stand on the same footing as the liability of the young child in a similar action, that is to say, it is a question of fact whether he was sufficiently self-possessed to be capable of taking care.  This should not, however, be taken too far in view of the objective standard normally applicable in cases of negligence.  A motorist could scarcely escape liability on the ground of his unsoundness of mind if he failed to exercise the care and skill of a reasonably competent driver.”

This is not very helpful, and is probably distorted by an attempt to accommodate the decision in Roberts v. Ramsbottom which is thereafter discussed.

73. [73]
    When the law was in a more primitive state, a desire to compensate the injured was a basis for allowing compensation essentially on the basis of causation.  As the law became more sophisticated, liability in trespass came to be confined to situations where there was either an intentional act or negligence, so that a person who caused injury to another unintentionally and without negligence would not be liable, even though the plaintiff was just as much injured: Fleming p. 24.  The existence of compulsory insurance in the case of motor vehicle accidents, and accidents in the course of employment, has distorted the application of the law of negligence in recent years, and led to a very high standard of care being required of drivers of motor vehicles and employers.  Indeed, the point may have been reached when most people who drive motor vehicles would be regarded as driving negligently most of the time.  It is understandable that there should be such an approach when there is a scheme of compulsory insurance available, but it is unfortunate if this distorted approach should be applied also in cases where a fund is not available.  Perhaps the time has come to acknowledge that the standard of care, or some other aspect of liability for negligence, is different in cases where there is compulsory insurance in place.  The idea that the liability of the mental incompetent should be assessed according to economic resources is not unknown: see Englard “The Philosophy of Tort Law” (1993) p. 51, where the author describes the solution of exempting the incompetent from liability as “apparently more coherent”.

74. [74]
    In my opinion, the position of a person of unsound mind ought to be equated to the position of an infant for the purpose of the law of negligence, at least in those cases where there is not necessarily an insurance fund standing behind the defendant. Where there is such a fund, the position is only potentially difficult in the case of a motorist who is an infant or of unsound mind; an infant or a person of unsound mind who is an employer would still be subject to the same statutory duty, and therefore be liable for breach of statutory duty, even if there were no liability in negligence. I think a better solution is to say that, in the case of a motorist, as a matter of policy, the objective standard will prevail even in the case of infants or persons of unsound mind, so that a pedestrian who is run down by a car will be able to recover whether it is driven by an ordinary Australian motorist, an authentic lunatic, or a child on a criminal spree. But that situation should be treated as an exceptional position justified by special considerations of public policy based on the existence of compulsory insurance, and should not apply in circumstances where there is no compulsory insurance. In that situation, which I would regard as the ordinary case, the position of a person of unsound mind should be equated with that of an infant, that is the standard of care should be that to be reasonably expected of a person with that mental state. What is required, in my opinion, is the existence of a capacity to comprehend the possibility of harm to others from one’s particular actions, so that at least there will be a capacity to understand that, if something is done, someone else may suffer harm. It was this capacity which was absent in the child in McHale v. Watson (supra), and indeed in the defendant in Roberts v. Ramsbottom, and the driver of this semi-trailer in Buckley.

75. [75]
    Liability for negligence does not depend just on causation of the injury to the plaintiff, it depends on an issue of fault, and the reasoning which justifies a lower standard of care as the test of the existence of fault in the case of children also justifies a lower standard of care as the test for the existence of fault in the case of persons of unsound mind. I prefer the approach of those decisions, and those academic writers who arrived at that conclusion. I note that a similar conclusion, that the defendant was liable in trespass but not liable in negligence, was reached by Paris J of the British Columbia Supreme Court in Attorney General for Canada v. Connelly (1989) 64 DLR (4d) 84.  I think it is easier to identify the presence of fault in the case of liability for intentional acts than liability for careless acts, which would explain why a situation could arise where a person would be liable for an intentional tort but not liable for negligence. 

76. [76]
    To look at it another way, if a person of unsound mind inadvertently walks just in front of a bus because of an inability to appreciate the danger to himself posed by that course of action, he ought not to be liable in negligence for psychiatric injury caused to the bus driver, but I think there is a logical distinction between that situation and one where the person of unsound mind deliberately steps in front of a bus in order to cause a collision with the intention of thereby killing himself. In any case, I consider that the authorities to which I have referred justify the conclusion that there is liability under the principle in Wilkinson v. Downton, but that, when considering the question of liability for negligence, I am not bound by authority to arrive at a conclusion different from the one that I have just expressed, and consider that that is the appropriate conclusion.

77. [77]
    In this case the evidence is that the first defendant’s suicide attempt was the product of his disease, either by robbing him of the power of rational thought (p. 230) or perhaps by providing a rational justification for suicide: p. 10, p. 243. Suicide is common among people suffering from schizophrenia: p. 191. A person led as a consequence of such mental illness to an impulsive act of suicide is, in my opinion, not capable of taking care to avoid causing psychiatric injury to the driver of the bus in front of which he throws himself. I do not accept the statements apparently made years later to Dr. Grant (Exhibit 22), about there being no cars in front of or behind the bus, and apparently no passengers on the bus, as indicating some concern to avoid doing harm for others, particularly in the circumstances where the assessment that there were no passengers on the bus was not accurate: p. 23, 163. I prefer the opinion of Dr. Lawrence at p. 215-6. Dr. Lawrence said that, because of his mental state, he was not capable of assessing what effect his actions might have on someone else: p.191. The first defendant was apparently expressing regret for his actions immediately after the incident, and regret for being a nuisance to people, and I think this is a rationalisation rather than an indication of some process of reason or judgment prior to his suicide attempt.

78. [78]
    The effect of the evidence of Dr. Grant was that the first defendant was unable to appreciate that what he was doing was wrong, and unable to appreciate the possibility of injury to the plaintiff. Dr. Mulholland, who had not seen the first defendant, expressed the opinion that he had only limited ability to control his behaviour, and that his capacity to control his actions was seriously impaired but not totally lost: Exhibit 4. He was of the opinion that the first defendant was deprived of the ability to appropriately consider the rightness or wrongness of his actions, such that he acted on impulse. I accept this evidence. The first defendant was not in breach of the attenuated standard of care to be expected from a person with his mental illness at that time. On the basis of this I conclude that the first defendant was not negligent.

Liability of the Second Defendant to the Plaintiff - Duty

79. [79]
    It was submitted on behalf of the plaintiff that the hospital, and therefore the State of Queensland, had a duty of care to persons such as the plaintiff, to restrain persons who if they escape may get on to the surrounding streets and thereby cause injury to the plaintiff. An analogy was drawn with the position of a nursery school which owes a duty to motorists on surrounding roads to keep young children confined: Carmarthenshire County Council v. Lewis [1955] AC 594.  That decision was treated as authoritative by the High Court in The Commonwealth v. Introvigne (1982) 150 CLR 258 at 269.   I think the analogy is apt. See also, as to children Smith v. Leurs (1945) 70 CLR 256 at 262 per Dixon J.  In Holgate v. Lancashire Mental Hospital Board [1937] 4 All ER 19, the plaintiff was injured by a person who had been detained as a criminal lunatic but had been allowed out on licence, and recovered damages from the authorities responsible for him on the basis that they had been negligent in granting him that licence. 

80. [80]
    Some doubt, however, was subsequently cast on this case by, for example, Lord Diplock, in Dorset Yacht Co v. Home Office [1970] AC 1004 at 1062 (and see p. 1031-2 per Lord Reid, p. 1041 per Lord Morris).  In that case it was held that there was a duty on the authorities responsible for a group of Borstal boys to take care to prevent their escaping and doing damage to property located close to a particular place to which they had been taken by the authorities, on the basis that there was insufficient care taken to prevent their escape from that place.  The duty of care was said to exist, not to all the world, but to those whose property was so close to the place of detention as to make it particularly at risk of loss or damage in the event of an escape: see p.1070.  In the present case, the first defendant was immediately outside the hospital when he made his attempt, so that the presence of the first defendant at that place, and therefore making the suicide attempt at that place, were a consequence of the fact that the second defendant operated its mental health centre at that hospital.  If some element of physical proximity is required for a duty to exist, then it was present in this case.  It is not necessary for me to decide whether a duty is owed to the community at large, the issue is simply whether there was a duty owed to persons in the immediate vicinity of the hospital to which the first definition had been admitted because that was the hospital to which such persons were admitted because the mental health centre was conducted there.

81. [81]
    In the present case I think absconding by the first defendant was foreseeable, a proposition which says nothing about its likelihood to occur in a particular case. That follows really from the fact that persons with such schizophrenia commonly do abscond: p.357. The same applies to their attempting suicide: p. 143. I do not think that the duty arises merely because the first defendant came to be with a medical practitioner who was in a position to foresee a risk of absconding and a suicide attempt; what matters for present purposes in my opinion is the fact that a mental health facility was carried on at this hospital, so that mentally ill persons were particularly likely to be congregating at that site, with the consequence that, if reasonable care was not taken of them, there was a greater than usual risk for members of the public who happened to be in the near vicinity of that site of encountering an impulsive suicide attempt.

82. [82]
    There is Canadian authority that those responsible for conducting hospitals for the mentally ill are under a common law duty to provide adequate control and supervision to prevent injury to third parties by reason of the conduct or behaviour of the patient: Wellesley Hospital v. Lawson (1977) 76 DLR (3d) 688.   I think that there was a duty owed by the State of Queensland, as the operator of a facility for the mentally ill, to take reasonable care to prevent persons at that facility, who might if they leave it constitute a danger to members of the public in the vicinity, from leaving.

83. [83]
    Obviously, however, the duty is not an absolute duty to confine or restrain a person who is mentally ill in any circumstances where that person might foreseeably cause injury to another if not confined or restrained. A hospital is not under an absolute duty to confine dangerous patients, and the former doctrine in Rylands v Fletcher (supra) did not apply: Evans v Liverpool Corporation [1906] 1 KB 160 at 165, a case about a patient with an infectious disease. It is, in my opinion, clear that considerations as to the proper treatment of persons who are mentally ill are also relevant in these circumstances, and these considerations operate to limit the extent to which persons who are mentally ill are confined. Whether this is seen as modifying the duty or as affecting the question of what is reasonable to be done in the circumstances does not, in my opinion, matter.

Modern Policy For Treating The Mentally Ill

84. [84]
    It is therefore not enough simply to say that it was reasonably foreseeable that this person, if allowed at large, might cause injury to another. That would apply to almost anyone who is mentally ill. Relevantly, given that suicide is not an uncommon consequence of chronic schizophrenia (p. 143, 193), it is certainly reasonable foreseeable that a person suffering from that condition might commit or attempt suicide, and since it is reasonably foreseeable that that might cause injury, particularly psychiatric injury, to others, an absolute duty would require any person suffering from schizophrenia to be confined. At one time that would have been the approach adopted in dealing with such patients. The fact that the first defendant’s condition in January 1996 was such that the possibility of suicide was recognisable as a real risk would in the past have led to his being routinely confined in an asylum: p. 207. This would have been done principally for his own protection, but would have had the incidental effect of avoiding harm to others. But the modern approach involves a policy of minimal confining, so that patients are, wherever possible, allowed to live in the community, notwithstanding the continuing effects of the condition, or are not confined when residing in hospital: p. 12 of Exhibit 21; p. 119.

85. [85]
    This is justified by concern for the civil rights of persons who are mentally ill (p. 185), and considerations of improving the effectiveness of treatment, which is not necessarily assisted by confining such patients (p. 214), and I suspect not uninfluenced by considerations of minimising the high cost associated with keeping confined persons who are mentally ill. The National Mental Health Policy, adopted in 1992, a copy of which is Exhibit 21, emphasises the importance of protecting the civil rights of persons suffering from mental illness, and notes that there has been a change from routinely confining to a practice where most people with mental disorders are able to be cared for in the community and continue to participate in the life of the community with only a small proportion needing to spend extended periods in psychiatric hospitals: p. 7. These are all legitimate policy considerations, and it is necessarily more difficult to assess whether a particular approach to confining patients is negligent because of a balancing of such considerations than in other cases where there are no conflicting policy considerations and the only question is whether the additional cost of the precaution is reasonable.

86. [86]
    I do not think there is any question of finding the second defendant negligent on the basis that it was not continuing to apply the former policies of routinely confining persons for whom there was a real risk of suicide. The determination of policy on such matters is, in my opinion, not a matter to be questioned in courts; the correctness or otherwise of such a policy is not an issue of law. There cannot be negligence in merely giving effect to such a policy: Sutherland Shire Council v. Heyman (1985) 157 CLR 424 at 469.  The actions of Dr. Burton have to be assessed on the basis that there was no duty to act other than in accordance with that policy.  

Risk of Suicide

87. [87]
    Suicide is common among people with chronic schizophrenia, with a suicide rate of 10%-20%: p. 193. The suicide rate does not seem to have gone up as a result of the implementation of the current policy of minimal confining: p. 148. Schizophrenia is experienced to some degree by about 1% of the population: p. 143. Not all patients become chronic; about 50% have only one or two episodes, but about 25% suffer from a long term deteriorating course of the disease: p. 143. Obviously, all of these people are at risk of suicide, and if they were all therefore confined, a large number of people would need to be confined: p. 207, 226. That is not consistent with the current approach, under which it is necessary to make an assessment of the imminence of the threat of suicide: p. 194, p. 203. It is acknowledged that this is hard to assess (p. 205, p. 244) but once a policy of routinely confining anyone for whom there is a real risk of suicide is rejected, it becomes necessary to have some specific indications of imminence of suicide to justify confining. The presence of some suicidal ideation is not enough: p. 101, p. 120. There are different responses available depending on the degree of the perceived risk: p. 236.

88. [88]
    Although the first defendant had suicidal thoughts from time to time, and there had been a couple of suicide attempts in the past, there had been no serious suicide attempt in a lengthy period of treatment: p. 145, and see p. 122. Some suicidal thought is not unusual with patients suffering from schizophrenia: p. 357. There were on this day suicidal thoughts by the first defendant, and Dr. Scott thought there was some indication of vague suicidal intent: Exhibit 15, p. 30. But that is a common situation with psychiatric patients, and not enough to place the first defendant in the category of individuals who would need to be confined in order to prevent suicide: p. 107, 239. The state of the first defendant on this occasion was “a very common presentation”: Dr. Grant at p. 246. As he presented to Dr. Burton he was not close to the mental state required for him to be confined under current policy: p. 209, 220. The level of suicidal intent was fairly low: p. 239.

Risk Of Absconding

89. [89]
    The fact that he had previously absconded from hospital, including from the Royal Brisbane Hospital on 18 December 1995 after there was a decision to admit him, does not in my opinion change this. Although the first defendant’s history does show a risk of absconding, it does not show a particular risk of harm from absconding. Dr. Nothling’s evidence suggested that it was what the patient did when he absconded which mattered, not just the fact that he left: p. 121. On 18 December all that happened was that later that night he was found by police and returned to the hospital. At least one of the previous suicide attempts had occurred while he was in a hospital, and there was no pattern of absconding for the purpose of attempting suicide. There was no special reason to think he would abscond that day: p. 98.

90. [90]
    The first defendant was ordinarily allowed to be at liberty in the community, although he was hospitalised from time to time, principally it seems when he was just not coping in the community, or when he was failing to take medication. There was a time when the plaintiff was kept more closely confined at the Princess Alexandra Hospital, when he had been displaying behaviour which involved threatening harm to others, but once that behaviour abated, a less strict regime was instituted, notwithstanding various attempts to abscond while he was continuously under observation, and when a less strict regime was instituted he did abscond from time to time. Nevertheless, the more strict regime was not reinstituted, nor was this absconding seen as sufficient reason to prevent his subsequent release into the community. That occurred while he was still regulated under the Act, but it is not unusual for patients who are regulated to live in the community: p. 92.

91. [91]
    Where one is dealing with a patient who is either able to live in the general community, or close to being able to do so, absconding from the hospital from time to time is not necessarily a problem, particularly in circumstances where there was no indication that he did any harm either to himself or to anyone else during those periods when he was away. It seems that when he absconded he ordinarily returned of his own volition. Such behaviour is consistent with a situation where the plaintiff was in hospital, in the sense that he was living in hospital, but not confined to the hospital, that is the authorities were not making determined efforts to ensure that he did not just walk away. Dr. Burton said that most patients were not treated as regulated patients: p. 340. I think that that background is of some importance when assessing the question of whether it was reasonable on this occasion to take particular precautions to prevent the first defendant from absconding. Such a background is not unusual for someone with his condition: p. 357.

92. [92]
    This, in my opinion, explains why Dr. Burton said that he would not have changed his assessment had he been made aware of the history of absconding contained in the various medical records he was referred to during cross-examination, which he did not see or may not have seen on the night of 10 January. It was not just that the first defendant was apparently co-operative and happy to be hospitalised, there was also the consideration that, when he had absconded on previous occasions, there had been no adverse consequences. Although suicide was a possibility given his chronic schizophrenia and in the light of his reference when he saw Dr. Scott to some suicidal ideas, there was no particular reason to treat him as someone who was particularly likely to attempt suicide if he walked away from the hospital. He probably did not have suicide in mind when he did walk away from the smoking area: p.191. This suicide attempt was an impulsive act (Exhibit 22, p. 190) and that is not unusual for those suffering from this condition: Exhibit 20. He needed hospitalisation for treatment and care rather than to forestall an immediate threat of self harm. He was also not very happy living at the hostel: Exhibit 15. There was therefore no particular reason for special efforts to prevent him from leaving. Dr. Nothling would not have acted differently, even taking into account all the records: p. 146. Nor would Dr. Lawrence: p. 184.

93. [93]
    There are other features which are of some significance. Although the first defendant expressed some suicidal thoughts to Dr. Burton, he had spoken of the consumption of leaves and flowers as an attempt at self medication rather than an attempt at self harm. Contrast Selfe v. Ilford and District Hospital Management Committee (1970) 114 S.J. 935 where the patient was admitted following a suicide attempt.  He had also been entirely co-operative that day, and he had expressed a willingness to enter hospital that evening. He wanted to get better: p. 338.  He had plenty of opportunity to leave prior to the time when he was seen by the doctor, but he did not do so: p. 213. He may have gone to a canteen for dinner while he waited: p. 323.  It is not, I think, of any particular significance that both doctors said that, had the first defendant not been willing to be hospitalised, they would have taken the appropriate steps under the Mental Health Act to compel his detention in hospital.  If that situation had arisen, additional precautions may well have been taken to prevent the first defendant from departing.  But that was not the situation that faced the doctors.  Dr. Nothling regarded compliance with hospitalisation as significant for someone in Dr. Burton’s position (p. 145) as did Dr. Lawrence: p. 188.  

94. [94]
    It was submitted on behalf of the plaintiff that it would have been easy enough to prevent the first defendant from absconding by placing him under constant observation, which would have prevented his absconding, and would not have required any additional resources after 9 p.m.: p. 210. I accept that it would have been easy enough in the circumstances then prevailing in Ward 3A for the first defendant to have been kept under constant observation, and had this been done he probably would have not been able to abscond. However, in my opinion, Dr. Burton was not negligent in failing to require constant observation. There is a medical reason for not requiring more intense observation than appears to be indicated, since constant observation can be detrimental to the condition of the patient, probably because it is rightly seen by the patient as intrusive: p. 214, 237. In addition, the approach under the current policy is not to confine more than is thought necessary, even if that could easily be done: p.93. The possible adverse effects and the approach of the general policy have to be weighed against the apparent risk of suicide: Haines v. Bellissimo (1977) 82 DLR (3d) 215.  Additional patients could have come to the ward at any time: p.242.  It was appropriate to determine the level of observation by what the patient needed, not by the resources available.

Was The Admitting Doctor Negligent?

95. [95]
    The medical experts all said that Dr. Burton’s decision to fix the level of observation was reasonable in the circumstances, and some of them endorsed it as correct: Dr. Lawrence, Exhibit 20, Dr. Nothling, p. 118. I accept that evidence. Although a situation can arise where a doctor is negligent notwithstanding acting in accordance with a reasonable body of professional opinion, it is necessary before a court can arrive at such a conclusion for the plaintiff to show that there is some good reason why the ordinary practice was so clearly inadequate that it was not reasonable for a careful medical practitioner to follow it. No doubt that will be easier to achieve when the step which it is suggested ought to have been taken is one which involves no disadvantage, or perhaps no disadvantage other than cost, but I think it is quite impossible to say that it was negligent for Dr. Burton, in the exercise of his judgement as to the appropriate level of observation, to conclude that the risk of adverse consequences from absconding was not sufficiently high to justify a level of supervision which was intrusive and possibly make the treatment of the patient more difficult and which was not consistent with the modern policy of minimal confining.

96. [96]
    Some significance was attributed in submissions to Dr. Scott’s assessment that there had been a sudden and significant decline in the first defendant’s mental state: p. 286. This appears to be as a consequence of being told that 24 hours earlier he had been settled at the hostel. Dr. Scott’s concern was that he might be suffering from the side effects of the flowers he had been eating, or possibly the use of drugs. If he had refused to go to the hospital, Dr. Scott would have taken steps to have him compulsorily hospitalised, because of the risk of adverse effects from the flowers, the risk of suicide and the inability to cope in the hostel: p.290. This must be assessed against the background that the possibility of suicide is always there with a patient with schizophrenia, but they are not routinely confined all the time because of it. In addition, I think this answer must be assessed in the context that it was a response to a hypothetical situation where the first defendant was being uncooperative about hospitalisation. I think that that indicates a greater need for concern about him than if he is cooperative about hospitalisation. The more cooperative he is, the more reasonably he is behaving, and therefore the less risk of irrational behaviour.

97. [97]
    The effect of all of the evidence really is that on 10 January 1996 the first defendant’s state was that it was appropriate for him to be admitted to hospital for observation and treatment, but there were not present indications sufficient to justify the imposition of a regime of continuous observation, or physical restraint (i.e., locking him in), in accordance with the modern approach to treatment of persons with mental illness: cf. Thorne v. Northern Group Hospital Management Committee (1964) 108 SJ 484.  This, in my opinion, is not a case where it is possible to say that, on the basis of the interview with the first defendant and in the light of whatever the doctor knew or ought to have known from his records of that day, the only way to take reasonable care of the first defendant was to keep him under constant observation to prevent self harm or harm to others.  I find there was no negligence on the part of Dr. Burton.

Significance of the Hospital Records

98. [98]
    In view of the evidence of Dr. Burton to the effect that his position would not have been different if he had had access to all of the records of the Royal Brisbane Hospital and the Princess Alexandra Hospital (p. 350), it is strictly unnecessary to consider whether a failure to have those records immediately available amounted to negligence. If there was any such negligence, it was not a cause of the injury to the plaintiff, because had it been avoided it would not have changed the course of events. In any case, it was plainly not reasonable to expect the Princess Alexandra Hospital records to be available to Dr. Burton that evening. There was no negligence because he was not aware of them.

99. [99]
    He may well not have had the Royal Brisbane Hospital file available: p. 87, 156. Even if he did, he may well not have picked up the references to absconding on 18 December. He could not now recall whether he had access to the earlier hospital records at that time and could not say whether he had been aware that the plaintiff had left the hospital prior to admission on 18 December: p. 330. However, he said that if he had known that it would not have changed his assessment of the first defendant. The history of frequent absconding from Princess Alexandra Hospital would have also not altered his assessment of the appropriate level of supervision on 10 January 1996: p. 231. Nor would awareness of the earlier suicide attempts. The explanation for this may simply be that patients suffering from chronic schizophrenia commonly speak of feelings of suicide and talk about the possibility of suicide, so that this aspect of his presentation was not unusual, and it is common for such people to abscond from time to time (p. 245), so that the history of the first defendant would not be unusual for a person with his condition: p. 257.

100. [100]
     My impression was that Dr. Burton did not regard the history as being particularly important; what was important was his assessment of the first defendant, something which he was able to form with the benefit of a reasonably lengthy interview with him. In these circumstances, the significance of the records is substantially diminished. What particularly mattered to Dr. Burton was his condition at that time, and he had been able to access that for himself (and see p. 72 per Dr. Mulholland; “Your assessment is mostly derived from the patient you see in front of you”; p. 121 per Dr. Nothling, “His presentation at the particular time that I was assessing him would be the paramount consideration”.)

101. [101]
     There is no clear evidence as to whether or not the Royal Brisbane Hospital records were available to Dr. Burton, and no basis to infer whether they would probably have been available to Dr. Burton in the circumstances: p. 281, 348. If it were necessary for me to make a finding on this point, I would resolve it on the basis that whoever had the onus had failed to discharge the onus. Of greater importance is whether it is more likely than not that Dr. Burton was in fact aware from those records of anything about the first defendant’s history of absconding. He would not have been aware of the pattern of absconding from the Princess Alexandra Hospital, and at most he could have been aware that on 18 December the first defendant had absconded after seeing the doctor but before admission to the ward, and was later brought back by the police. I think it quite possible that even if he had the records he would not have examined them thoroughly enough to be aware of that, and I think that on the whole it is probable that he was not aware of that at that time. I do not think that there was any negligence on his part in failing to be aware of that. There was certainly no evidence that a reasonably careful psychiatric registrar in his position who had to make decisions about the plaintiff would have examined the records sufficiently to ascertain that fact, the evidence being rather as to what would have happened if that fact had been ascertained. Because of the emphasis on the current presentation of the plaintiff, a detailed examination of the record is not obviously necessary.

102. [102]
     The expert evidence is, in my opinion, clear that the application of that policy in the circumstances available to Dr. Burton, or the application of that policy with the additional information available from a perusal of the earlier hospital records in Exhibits 15 and 16, did not require or make appropriate the confining of the first defendant, that is, relevantly, the imposition of a regime of continuous supervision on him while he was in hospital: Dr. Nothling p.123, Dr Grant p. 246, Dr. Mulholland p. 74.

103. [103]
     I think it probable that at the time when Dr. Burton spoke to the psychiatric nurse after deciding to admit the first defendant he was not in fact aware of any particular history of absconding, even on 18 December. He did not then regard the first defendant as a very serious absconding risk: p. 355. I think therefore that he probably did not mention that to the psychiatric nurse, and therefore did not go on to make any suggestion about keeping an eye on the first defendant because of that history. If it were not negligent for Dr. Burton not to be aware of this, it cannot be negligent for him to fail to pass on information of which he was unaware, or instructions based on that information. I think it probable that the psychiatric nurse was given no particular warning or caution by Dr. Burton as to any particular risk of absconding on the part of the first defendant. Mr. Conneely was not aware of the first defendant as a particular absconding risk: p. 321. Given the nature of his condition there was of course always some risk of absconding, but I do not think there was any warning given that the risk was higher than usual for such a patient.

104. [104]
     The psychiatric nurse had also had some opportunity to assess the first defendant, and no doubt an experienced psychiatric nurse would have some ability to assess which patients were likely to cause trouble and which patients were likely to behave themselves. As well, it seems that the first defendant had been behaving himself up to the point when he decided to walk away from the smoking area; there was no indication to the contrary in any of the evidence. This is a relevant factor for the nurse: p. 233. In my opinion, the behaviour of the psychiatric nurses should be assessed on the basis that they had no particular instructions to take particular care of the first defendant, and no particular warning of any particular propensity to abscond. It is in any case by no means clear that the first defendant had a propensity to abscond which was any greater than that of any other person in his condition.

105. [105]
     The one exception to Dr. Burton’s general position that knowledge of the records would not have affected his assessment of the appropriate course, was that he said that if he had been aware that there was a long history of absconding it would have been reasonable to warn the nursing staff of this so they could keep an eye on him: p. 335. Dr. Grant (p. 247) and Dr. Mulholland (p. 74) also thought that such a warning might be appropriate. But none of this evidence was expressed in terms which justify a conclusion that it was negligent not to give such a warning. There is a difference between saying that something might usefully be done and saying that it ought to have been done by any reasonably careful doctor. Dr. Burton had made no notes to indicate any awareness of that history, and had no recollection of whether he did give any such instruction to the psychiatric nurses; unsurprisingly, they had no recollection of whether they had been given any such instruction. Dr. Burton, under cross-examination was inclined to downplay the significance of previous absconding for reasons that I thought persuasive: p. 339.

106. [106]
     Subsequently, Dr. Burton said that it was not appropriate to give a direction for modified category 3 observations, because it was important for there to be clarity as to just what the appropriate level of observation was, and important for that reason to adhere to the standard categories: p. 343. I think that this should be seen as modifying the earlier evidence. Although he later again said that if he had known about the absconding on 18 December he would probably have mentioned this to the nursing staff (p. 353) my impression remains that he did not regard that as a matter of any great importance in his overall assessment of the situation. The fact that he was still unsure of whether or not he knew of that absconding at the time when he saw the first defendant, suggests that it did not strike him at the time as being a matter of any great significance. In addition, Dr. Burton regarded it as common for people with this degree of schizophrenia to abscond from time to time, so knowledge of the history of absconding would not have told him anything that he might not have assumed anyway from the nature of the illness: p. 357. See also p.98 per Dr. Mulholland, p. 245 per Dr. Grant. In my opinion, it would not have been negligent for a doctor in possession of all of the records and aware of the full history of absconding to fail to give a special warning to the nurses.

107. [107]
     Ultimately, I am not persuaded that there was any negligence in failing to have available the earlier Royal Brisbane Hospital notes if that occurred, or the Princess Alexandra Hospital notes, or in failing to make Dr. Burton aware of any particular history of absconding. It therefore cannot be negligent not to give the nursing staff some sort of informal instruction to keep a bit more of an eye on the first defendant than was required under 15 minute observations. In my opinion, assuming that information and suggestion were not passed on to the nursing staff, the failure to do so was not a breach of duty on the part of Dr. Burton, or the result of a breach of duty by the hospital.

108. [108]
     Given that it would not take long to slip away from the smoking area, for practical purposes the issue is whether the first defendant ought to have been kept under constant observation (p. 206), either generally while he was in Ward 3A, or while he was outside smoking. As to the former, there is no evidence that that was indicated, and in my opinion it was not indicated. There was no negligence in failing to require continuous observation.

Significance of the Outside Smoking Area

109. [109]
     The issue then becomes whether there was negligence on the part of the system or the nurses in failing to keep him under continuous observation while he was in the area outside. There was evidence which I accept that patients suffering from schizophrenia are often heavy smokers, and that it is normal for them to be allowed to do so: p. 99, p. 186. It would be counter-productive in terms of treatment to attempt to prevent them from smoking: p. 233. It is understandable that the hospital would not want people smoking indoors (p. 272), and in those circumstances the patients really have to be allowed out of doors in order to smoke.

110. [110]
     None of the doctors expressed the opinion that a person in the position of the first defendant on the evening of 10 January 1996 ought to have been subject to continuous supervision while outside for the purpose of smoking. Dr. Mulholland thought that it might have been appropriate to supervise him on the first occasion he went out, but if there was no problem then he would not require particular supervision thereafter: p. 100, 104. It depended on the assessment made by the staff: p. 90 and see p. 232. Dr. Nothling expressed the opinion that if the first defendant had just been admitted, it would have been preferable that he did not go outside unobserved at that point (p. 159), but the first defendant could have been observed through the windows of the nurses station: p. 186. I do not think this evidence is inconsistent with the opinion expressed by Dr. Mulholland. The nurse in charge of Ward 3A since 1993, Ms. Ng (p. 269) said that, unless there was unusual behaviour, one would not be too concerned about a patient going outside to smoke: p. 282. However, a psychiatric nurse would go and check on the patient within 5 or 10 minutes: p. 279, 282. They would try to be generally aware of where all patients were all the time (p. 276), although this is obviously different from keeping all patients under constant observation.

111. [111]
     Although the account given to Dr. Grant suggests that there was only one occasion that the first defendant went outside, if he was a heavy smoker (he told Dr. Scott 50 a day) and had been at the ward from soon after 6 p.m. it is most unlikely that he had had only one cigarette prior to 9.45 p.m. I think it probable that there had been earlier occasions when he went outside to smoke that evening, without any adverse consequences, and that is relevant when assessing the reasonableness of not having him under continuous observation on the occasion when he did walk away. There is also the fact that he told Dr. Grant that there was someone else out there with him: Exhibit 22. That may have been one of the psychiatric nurses, who may have been keeping him under observation for a while; alternatively, it may be that one of the nurses came out with him on the first occasion when he had a cigarette, and that this aspect of the first defendant’s account is unreliable.

112. [112]
     Here the relevant considerations are that he was only on 15 minute observations and therefore he was not identified as someone requiring constant observation, therefore there were going to be periods when he was not under direct observation, that there was some opportunity for the nursing staff to be aware from time to time of what was going on outside through the window, that he had been apparently cooperative and patient during the time he had been in the ward, including some wait before he was seen, that it was not unusual for schizophrenic patients to want to smoke and go outside for that purpose, that it was probably not the first time that evening he had done so, and that there was no particular reason to be concerned about any serious adverse consequences if the first defendant did wander away. There is also the consideration that the first defendant may have found it intrusive and been made uncomfortable if he was aware that someone had specifically come out in order to watch him. Some observation is possible through the windows (p. 273) although this is more difficult at night: p. 322.

113. [113]
     The significance of the fact that one can just walk away from the smoking area can be overstated. As Dr. Lawrence put it, if something is going to happen it can happen anywhere: p. 225. Unless the entrances to Ward 3A were kept under constant observation, the patient who is not under constant observation can just walk out the door. A patient has to leave the ward to go to the toilet (p. 240, 282), and unless a patient is escorted to the toilet, there would be the opportunity to leave from there rather than return to the ward. The exit from Ward 3A to the rest of the emergency department is away from the nursing station: p. 232. To say that the first defendant ought to have been kept under constant observation except when he was in a place from which he could not leave without being seen is in substance to say that he ought to be kept under constant observation, and that was not the position adopted for the first defendant. Once it is accepted that it was not necessary for the first defendant to be constantly under observation, it must necessarily not be unreasonable for him to be left unobserved from time to time, wherever he is. Ms Ng who had been at Ward 3A since it opened in 1991 (p. 269) was not aware of any other instance when a patient wandered away from the smoking area and came to grief: p. 283. That is not necessarily inconsistent with some caution about his whereabouts while he was outside.

114. [114]
     In my opinion, there was no negligence on the part of the nursing staff in failing to keep the first defendant under constant observation while he was outside. I think it is safe to conclude that the psychiatric nurses on duty that night were not actually aware that the first defendant was leaving the area (p. 217), but I am not persuaded that they were negligent in not being aware of this. Although the first defendant was being treated as a voluntary patient, so that the nurses could not physically restrain him from leaving (p. 197, 235) had they been aware of his leaving they would probably have tried to talk him into staying, and get Dr. Burton to have him regulated, so that he could be restrained: p. 272, 322. If Dr. Burton had been available he would have regulated him: p. 338. In view of this, it is more likely than not that if his leaving had been observed his suicide attempt would have been averted.

115. [115]
     It was submitted on behalf of the plaintiff that there had been a failure to keep the first defendant under observation as required by Dr. Burton. The effect of the instructions given by Dr. Burton was that the first defendant should have been seen by one of the nurses in Ward 3A every 15 minutes. At the time of this incident, it was not the practice to record in the nursing notes the making of each such observation, the notes being written up at the end of the shift: p. 271, 320. It was submitted on behalf of the plaintiff that there had been a failure to maintain these 15 minute observations, as demonstrated by the fact that the absence of the first defendant from the ward was apparently not noticed, or at least not recorded, until after he was brought back in to the Emergency section following the collision. It seems that about 15 minutes elapsed between the time of the collision and the time when the first defendant was returned to the Emergency section, so the first defendant had not been observed for that period, together with whatever period elapsed prior to the collision after the first defendant left the smoking area.

116. [116]
     It is possible that the first defendant was observed in the smoking area, and shortly after that he left that area, walked down the hill and the incident occurred. When a psychiatric nurse went to look for him after 15 minutes, he would not have been found in the smoking area, but the obvious places then to look were the beds in Ward 3A, and the area of the toilets: p.283. Patients from Ward 3A used the toilets in the Emergency section (p. 282), so one of the psychiatric nurses could have been in the Emergency section looking for the first defendant either when the first defendant was brought in again or soon afterwards. If so, he would have been located, and the hospital records may not have been written up any differently from the way they were. There is no evidence from the psychiatric nurses that this occurred, but neither claimed to have any clear recollection of the events of that evening. Mr. Conneely said he was told by staff in the emergency department that the first defendant was there, but did not say where he was or what he was doing when he was told: p. 303. I think it is quite possible that such a thing occurred, and they have since forgotten about it. Dr. Burton saw the first defendant in the emergency section prior to 10.20 p.m. (p. 354) and I suspect he was told that the first defendant was there by one of the psychiatric nurses. The evidence therefore is not necessarily inconsistent with proper observations having been made of the first defendant. I should add that in any case I do not think that the concept of 15 minute observations would mean that it would be negligent for the period between observations to extend beyond 15 minutes, for example, to 20 minutes, on a particular occasion.

117. [117]
     It is not possible to know just when the first defendant was finally admitted to Ward 3A and allocated a bed, or just when he went outside to have a smoke. He speaks of there being someone else outside with him at the time; that might have been Mr. King, or it might have been someone from elsewhere in the hospital (p. 322); if the incident occurred after 9 p.m. it would not have been another patient in Ward 3A. It is not possible to know how long he was out there, how long he took from the moment that he began to move away until he was out of sight (although that was probably quite a short time) or just how long after he left that area the incident happened. In these circumstances, if there were some deficiency in the program of making observations every 15 minutes, it is impossible to say that it was more likely than not that, had such a program been rigidly adhered to, the first defendant would not have been able to walk away from the smoking area, or his having left would have been discovered in sufficient time to prevent him from attempting suicide in front of the plaintiff’s bus. Unless the plaintiff shows that, on the balance of probabilities, that would have prevented the incident, he has not proved that any such omission caused the incident: Keeys v. State of Queensland [1998] 2 Qd.R. 36;  Green v. Chenoweth [1998] 2 Qd.R. 572.

118. [118]
     I am not persuaded that there was a failure to keep the first defendant under the degree of observation specified by Dr. Burton, or spoken of by Ms. Ng in the case of a patient outside for a smoke. He might well have been seen outside 5 or 10 minutes after he went out there, but before he left. There is no evidence, other than the fact that he did leave, of any such failure. In any case, if there was such a failure, it was not a cause of the incident.

119. [119]
     Overall, I find that no case has been made out of negligence on the part of the second defendant which was a cause of the plaintiff’s injury. The plaintiff’s action against the second defendant must be dismissed.

Liability of the Second Defendant to the First Defendant

120. [120]
     The first defendant had also claimed indemnity or contribution from the second defendant. Insofar as the claim is based on contribution between tortfeasors both of whom are liable to the plaintiff , the claim must fail because, as I have just held, the second defendant is not liable to the plaintiff. The first defendant also pursued a claim for damages on the basis that the second defendant had been in breach of its duty of care to him, as a result of which he suffered loss for which he was entitled to damage. Indeed, he suffered personal injury, but the only claim specifically advanced in the action was in respect of the economic loss suffered, being the extent of the first defendant’s liability to the plaintiff.

121. [121]
     There is no doubt that a hospital has a duty of care to a patient: Albrighton v. Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 553.  There is, in my opinion, no reason why that duty would not apply in the case of a person admitted to hospital because of mental illness: Kelly v. Board of Governors of St Laurence’s Hospital [1988] I.R. 402; Villemure v. L’Hopital Notre-Dame (1972) 31 DLR (3d) 454.  If there was negligence on the part of the hospital which was a cause of the first defendant’s suicide attempt, his decision to attempt suicide did not amount to a novus actus intervemiens which would protect the hospital from liability:  Reeves v. Commissioner of Police of the Metropolis [1999] 3 WLR 363. The reasoning referred to earlier on the basis of which I would find that the first defendant was not liable to the plaintiff in negligence also leads to a conclusion that there was no contributory negligence on the part of the first defendant. 

122. [122]
     The substantial issue however is whether there was any breach of duty on the part of the second defendant, and in my opinion the reasoning which leads to the conclusion that there was no breach by the second defendant of its duty to the plaintiff also leads to the conclusion that there was no breach by the second defendant of its duty to the first defendant or, if there was a breach in failing to maintain observations every 15 minutes, that breach was not a cause of the incident. There is therefore no liability in negligence on the part of the second defendant to the first defendant.

123. [123]
     There was some debate in the course of the trial as to whether both of these claims were available, and whether the second defendant should have the opportunity to call further evidence in relation to the claim for a negligent breach of duty to the first defendant. Since I am satisfied that the claim is not made out anyway, it is not necessary to consider those issues further. It follows that the claim for contribution by the first defendant on the second defendant should also be dismissed.

Quantum

124. [124]
     The plaintiff was born on 25 June 1966: p. 3. He was therefore 29 at the date of the collision and is now 34. The plaintiff left school at 15 after he completed Year 10 (p. 4) and entered the workforce prior to 1983: p. 176. . He worked in a range of occupations, mostly unskilled, although he did receive training as a boot maker before he began work with the Brisbane City Council in January 1991: Exhibit 1. There were some periods of unemployment, but he generally seems to have been able to keep occupied, although the dates on Exhibit 1 need to be treated with some caution. The plaintiff said that he was working for Jolly and Batchelor for 4½ years (p. 5, p. 175-6) whereas Exhibit 1 shows only 1½ years. The plaintiff said that he obtained the job with the Brisbane City Council particularly because he wanted stable employment, as he was in a serious de facto relationship at the time: p. 6. However, that relationship broke up about the end of 1994: p. 7.

125. [125]
     On 31 January 1992 the plaintiff saw the Council medical officer, Dr. Niven: p. 254 As a result of this he was suspended from driving buses, and referred to a psychiatrist, Dr. Chalk. I accept that the plaintiff had seen Dr. Niven voluntarily: p. 7. The plaintiff said that he had seen Dr. Niven because his job and his relationship and a house which he and his de facto had bought together, which involved a mortgage, were all getting a bit too much for him: p. 7. The plaintiff was apparently referred to Dr. Niven by an employee counsellor, employed by the Council: p. 256.

126. [126]
     Dr. Niven, in his letter to Dr. Chalk of 3 February 1992 (Exhibit 11), refers to complaints of difficulty sleeping and finding his mind racing, difficulty in motivating himself for work. He thought that the plaintiff’s behaviour during the interview was quite inappropriate and was concerned about the possibility of schizophrenia, from which the plaintiff’s sister suffered. Although Dr. Niven refers to the plaintiff being quite guarded during the interview, the plaintiff was sufficiently frank to refer to a similar situation occurring about three years earlier when he was self-employed, when he was unable to continue to work and did not work for some three months, developing a headache when he went to his workshop, and having some suicidal thoughts and other unusual behaviour. He also admitted this to Dr. Chalk: p. 46. Dr. Niven was called but could not really add anything to the contents of his report and his notes: p. 249.

127. [127]
     Dr. Chalk wrote to Dr. Niven on 15 March 1992 as a result of this referral: Exhibit 5. Dr. Chalk reported that the plaintiff was looking run down and behaving uncharacteristically at work. Dr. Chalk did not think there was any formal thought disorder or any positive evidence of schizophrenic illness, but there were a number of unusual features in his presentation and he thought the plaintiff had an anxiety disorder in the setting of a rather diffident personality with a number of dependency features. He thought that some further sessions would be of assistance. However, the plaintiff only saw Dr. Chalk on two occasions: Exhibit 23. Dr. Chalk thought that the plaintiff was fit to drive buses: p. 43. Dr. Chalk prescribed medication in 1992, all in low doses, but the plaintiff did not take them, being generally reluctant to take medication: p. 35, p. 43.

128. [128]
     It does not seem there was anything very much wrong with the plaintiff at this stage; Dr. Chalk thought he was able to continue to drive buses, and he went back to doing so and remained in the job continuously until the incident in January 1996. Dr. Chalk said that when he saw the plaintiff in 1992, the plaintiff had no first rate symptoms of schizophrenia: p.55. Dr. Chalk described his condition in 1992 as “just generally anxious and sort of worried and uptight about things”: p. 56.

129. [129]
     After the collision the plaintiff was off work for about a week, but then returned to driving buses: p. 10, p. 26. He persevered with bus driving for about 18 months, but he found it more difficult to cope with the driving stresses usual with bus driving: p. 32. The plaintiff saw a general practitioner on 8 May 1997 with various symptoms which, after blood tests proved normal, were identified as a possible anxiety disorder on 3 July 1997 when he was referred to Dr. Chalk: Exhibit 13. Apparently he ceased work as a bus driver at this time after an incident when he was almost involved in a collision: p. 32. Following this he saw Dr. Chalk again in July 1997 (Exhibit 23) who initially certified him as unfit for work, but would not extend the certificate beyond the end of September, being of the opinion that the plaintiff, although unable to return to work as a bus driver, was not unfit for other work. Eventually, the plaintiff received a medical redundancy from the Council, being paid some $31,000: p. 171.

130. [130]
     Dr. Chalk was of the opinion that the plaintiff suffered an adjustment disorder as a result of the experience in January 1996: p. 56. This was a psychiatric condition that Dr. Chalk had not seen in the plaintiff previously, that is in 1992: p. 56. Once the plaintiff ceased driving buses, his life returned to a considerable degree of normality, and he did not require any medication or long term therapy: Exhibit 6. However, Dr. Chalk was of the opinion that it had left the plaintiff permanently unable to work as a bus driver (p. 44) and that this incident had also contributed to some of the other difficulties the plaintiff had experienced since 1996, although there were other factors involved in those difficulties: p. 50. Dr. Chalk was of the opinion that the plaintiff’s pre-existing personality would have been likely to leave him vulnerable to anxiety problems (p. 51), and had also made it more difficult for him to cope with the consequences of the incident: p. 62. Dr. Mulholland agreed that he was vulnerable pre-accident (p. 75) as did Dr. Prior: p. 169.

131. [131]
     Dr. Chalk did not think that the fact that the plaintiff was able to continue driving buses for about 18 months after this incident was inconsistent with the plaintiff’s having developed psychiatric problems as a consequence of it: p. 52. I prefer this evidence to the contrary evidence of Dr. Nothling (p. 128) which is based on what generallly occurs, whereas Dr. Chalk had the advantage of having seen the plaintiff when he had just stopped work. The plaintiff was the sort of person who tried to be resilient, and tried to battle on in the face of symptoms or other difficulties. Such a delayed reaction is not an unusual response to psychological trauma: p. 52 and p. 168 per Dr. Prior.

132. [132]
     The plaintiff went to Western Australia to get away from his problems, obtaining employment as a drilling offsider in Kalgoorlie, and later as a dewaterer at a mine: p. 12. Eventually, various symptoms reappeared, and he began to feel depressed and even had some suicidal thoughts: p. 12, p. 37. This may have been triggered by receipt of a letter from his solicitors in relation to his claim: p. 13. The plaintiff returned to Brisbane, and saw Dr. Chalk again in September 1998: Exhibit 8. At that stage he was also troubled by recalling the appearance of the first defendant’s face just before the collision. He was complaining about difficulty in working, lack of motivation and direction, and difficulty sleeping.

[133]The plaintiff was seen for the purposes of a report by Dr. Mulholland, a psychiatrist, on 26 March 1998. At that stage the plaintiff was living with his mother. Dr. Mulholland thought he was proposing to move to Western Australia: Exhibit 3. He did not realise the plaintiff had been there already: p. 80. The plaintiff complained of a number of symptoms in the period after the incident, while he was still driving buses. Eventually one day he just could not drive any more, and went to see a doctor. He had been deterred from seeking treatment earlier because of what had happened when he saw Dr. Niven, being put off work. Dr. Mulholland found some of the history difficult to understand and confusing. Dr. Mulholland found some difficulty in assessing the personality prior to this incident and commented that it was possible that it included schizotypal traits. Dr. Chalk (who had the advantage of having seen the plaintiff prior to the accident) did not think that there was any of the recognised symptoms of schizophrenia present: p. 55. Dr. Nothling also did not agree with Dr. Mulholland: p. 117.

134. [134]
     Dr. Mulholland had doubts about the degree of co-operation during the interview, but suspected that the plaintiff was just not able to co-operate better than he did. His affect was markedly incongruent, he did not exhibit any signs of depression or mania, or any features of agitation, apprehension, anxiety or fear. His thought processes were disorganised and circumstantial and he did not seem to have any insight into his condition. Dr. Mulholland found his condition difficult to define, but thought that the plaintiff decompensated into an adjustment disorder with anxious and depressed mood, together with some post-traumatic and phobic features as a consequence of the incident in January 1996. He thought the plaintiff was in need of some further treatment, but did not expect the event would have a permanent effect on his life, although he might be left with minor residual features indefinitely. The condition would come and go a bit: p.78, and see p. 169 per Dr. Prior. However, he regarded the plaintiff as being in the borderlands of having a schizophrenic illness. He invited comment on this report from Dr. Chalk.

135. [135]
     Dr. Chalk was provided with that report, and made some comments on it in his further report of 2 April 2000 (Exhibit 8) although he did not respond to it then in detail. He did, however, disagree with the diagnosis of schizophrenic illness.

136. [136]
     The plaintiff was seen by Dr. Prior, a psychiatrist, for the purposes of a report on 2 October 1998. Dr. Prior was given a history of the incident and subsequent symptoms, and the general life of the plaintiff, which was broadly consistent with the plaintiff’s evidence before me, although there were differences in some details. He thought that the plaintiff presented as co-operative, spoke freely during the interview, his affect was reactive, and there was no obvious evidence of anxiety or depression. His thought patterns were normal and there was no evidence of formal thought disorder. Dr. Prior was of the opinion that as a result of the incident in January 1996 that the plaintiff had developed an adjustment disorder with anxious and depressed mood of a chronic type, which settled significantly after he left his job driving buses, although it had subsequently been reactivated to some extent. He thought that the pre-morbid personality predisposed the plaintiff to development and continuation of the chronic adjustment disorder, but that it was primarily caused by the accident which had also aggravated his ongoing mental state difficulties. He did not think the plaintiff was fit to drive a bus again, but he was fit for other forms of employment not involving driving passengers. He thought that he would benefit from some further treatment, although it was difficult to engage him in therapy. He thought there would be some permanent partial impairment, which could be aggravated if he was involved again in some similar event.

137. [137]
     The plaintiff was seen by Dr. Nothling, a psychiatrist, on 17 June 1999, for the purposes of a report. Dr. Nothling noted that there was what the plaintiff said was a suicide attempt in May 1999 when the plaintiff took some tablets, but recovered. The plaintiff in evidence referred to taking a number of antihistamines but once he started to develop symptoms quickly changed his mind about suicide: p.14. He forced himself to throw up and then waited for the effect to wear off: p. 15. That does not strike me as a very serious suicide attempt, and there was no evidence of any other, although he apparently told Dr. Nothling that he had constant suicidal thoughts. Dr. Nothling found his manner somewhat vague, with difficulty at times in obtaining a definite chronology, but otherwise the plaintiff was generally co-operative. His effect was appropriate, although there was a nervous laugh at times during the interview. There was no thought disorder, no pain behaviour. He completed the Minnesota Multiphasic Personality Inventory – Second Edition, but the results were inconsistent and clinically meaningless. He thought this implied some degree of non-cooperation with the test: p. 153.

138. [138]
     Dr. Nothling did not think that the plaintiff was suffering from schizophrenia but thought he had decompensated into an anxiety disorder as a result of various stresses from time to time during his life, although he had recovered from these episodes. He characterised the plaintiff’s underlying condition as a recurring, and worsening, anxiety disorder which pre-existed the accident: p. 138. He did not think that there was an causal relationship between current complaints of feeling depressed and anxious, with some post-traumatic symptomatology, and the incident in January 1996, from which he had recovered in terms of psychiatric symptoms by late 1997. He thought it possible that he would suffer a situation specific anxiety associated with bus driving but did not regard this as a psychiatric illness (p. 111) or consider that he required psychiatric treatment as a result of the accident.

139. [139]
     Dr. Nothling’s appreciation of the significance of the accident may have been affected by a misunderstanding of the chronology; he had the plaintiff going to Western Australia before he saw Dr. Chalk later in 1997: p. 140. This is not correct. The plaintiff worked as a bus driver until July 1997 (Exhibit 13, Exhibit 2) and saw Dr. Chalk the same month (Exhibit 23) and later in 1997 before he went to Western Australia. He saw Dr. Chalk again in September 1998: Exhibit 8. For this reason I do not accept Dr. Nothling’s opinion as to the effect on the plaintiff of the accident, which is inconsistent with all the other expert evidence.

140. [140]
     Dr. Nothling subsequently commented on the report of Dr. Mulholland in a report of 9 March 2000: Exhibit 18. He noted that if the plaintiff had some schizotypal personality disorder, it was not related to the motor vehicle accident. Dr. Nothling remained of the view that the plaintiff did not have anything other than a situation specific anxiety associated with bus driving which he said was not a psychiatric disorder.

141. [141]
     There are some interesting differences between the psychiatrists in the way they have assessed the plaintiff; the contrast between the assessment of the plaintiff during the interviews with Dr. Mulholland and Dr. Prior is striking. My own assessment of the plaintiff in the witness box is rather like the assessment made by Dr. Nothling. The plaintiff’s answers were at times sometimes vague or unresponsive, and I think his evidence about dates and periods of time were not always reliable, but that is probably simply a feature of his personality. Some other parts of his evidence are not reliable. He was definite that the first defendant was not wearing pyjamas (p. 24) but the hospital records show that he was: Exhibit 15, p. 124. It is not unusual to find witnesses who are not very good with dates, and many say so frankly (e.g. p. 35). It seems to me that Dr. Mulholland has painted a rather more dramatic picture of the plaintiff’s condition than is justified by the weight of the medical opinion, and that is consistent with his account of a much more difficult person to interview. Perhaps the plaintiff was having a bad day when he saw Dr. Mulholland, but his account does seem to me inconsistent with the general pattern in the reports.

142. [142]
     Some reference was made during the trial to a couple of other incidents prior to the accident concerning the plaintiff’s psychiatric history. There was reference to some incident when he was 12 when, as a result of something which passed between him and a police officer, he went, he said voluntarily, to what he described as occupational therapy: p. 27. I do not think this is of any significance other than as a reflection of the personality features referred to by Dr. Chalk. The plaintiff also spoke of an incident which he described as a religious experience, when he was about 19, when he woke up and found himself unable to move but saying things with a religious content: p. 7. I accept that this occurred, and that it has been mentioned to a couple of the doctors who saw him, but do not think it is of any significance. I think the most plausible explanation for this is that it was a dream which the plaintiff has remembered because of the significance he attributed to its content: p. 129.

143. [143]
     It was put to the plaintiff that in December 1992 he was referred to the Winston Noble Unit, a psychiatric unit at Chermside Hospital, but he said he had no recollection of that (p. 172) and there was no other evidence of this. He did say that there was a period when he had been working very long hours doing shoe and bag repairs when ultimately he found he could not cope and could not do anything for about three months: p. 8. In my opinion, there is no reason to treat this other than as the plaintiff being in a position where he had more work than he could cope with, and not being able to manage that situation effectively, the only way in which ultimately he could cope was by abandoning that activity. Again, I think this is nothing more than a reflection of the plaintiff’s personality features.

144. [144]
     I think that for the same reason the plaintiff was and is likely not to cope well with any occupation where he is in effect operating his own business, and this is reflected in his current work, as a sub-contracting satellite dish and cable installer. His accounts for this business (Exhibit 12) indicate an average net income of just $74 per week, although he thinks that he has been doing better than that subsequently: p. 173. He was being paid approximately $100 for each job completed (p. 21), but he seemed to have very high costs: p. 173. I think the plaintiff would work better in employment where he just has to do his job and not worry about financial planning and self management, but in view of his personality, where he does not work well as part of a team (p. 11, 29, 117), and is no good at selling things (p. 177), there are not going to be a large number of positions to which he is really suited. He had a number of changes in occupation before he began work as a bus driver, and that has been his most settled occupation at any time. Allowing for the difficulties that he did have with it at times, he seems generally to have been able to cope with bus driving and it had probably suited him as well as anything could have. I do not accept the evidence of Dr. Mulholland that bus driving was not his ideal career: p.81. The assessment of Dr. Mulholland is in some ways the least consistent with the other expert opinion, and I am generally wary of it.

145. [145]
     Dr. Chalk had the advantage of having seen the plaintiff both before and after this incident, and is therefore in a much better position to be able to determine whether there was some specific psychiatric consequence of the incident, or whether the plaintiff’s problems were essentially, or ultimately completely, the result of his pre-existing personality features. Dr. Chalk was, I think, well aware of those, and I accept his evidence that there was some specific psychiatric condition present after January 1996 which was not there before (p. 56), which may be conveniently identified as an adjustment disorder. I do not regard the issue of whether the criteria for that condition in the DSM-IV manual were satisfied as important, and accept the evidence of Dr Prior at pp. 165-6. What matters is whether the plaintiff had something wrong with him, not what label it should have. Whether there was a condition which fits any particular criteria for a specific diagnosis is less important than whether there was some psychiatric or psychological problems with the plaintiff that he did not have before the accident, which were caused by the accident. On the basis of the evidence of Dr. Chalk, supported as it is particularly by Dr. Prior, in my opinion there were, and I so find.

146. [146]
     It was a disorder which was particularly significant when the plaintiff was persisting with his bus driving, something which in my opinion he did because of personality features which induced him to try to deal with the consequences of the accident by attempting to cope in spite of them. Ultimately, this proved an inadequate response. The plaintiff’s condition may have been worse than it otherwise would have been because of his previous personality features (p. 62), but, so long as the stressor was one which could well have caused psychiatric problems of this nature in a person without those unusual features, that does not affect the question of liability. Such a conclusion is justified by the evidence particularly of Dr. Chalk. The consequence therefore is that the defendant has to pay for the harm that was actually caused – see Gannon v. Gray [1973] Qd.R. 411 at 414 - although some allowance should be made for the possibility of the plaintiff’s having suffered some problems anyway from some other source because of his vulnerability. 

147. [147]
     Particular problems that the plaintiff has suffered as a result of this incident in my opinion are:

1. (a)
   the adjustment disorder with anxiety features which was particularly significant during the period up to the time when the plaintiff stopped driving buses, and the period of a few months thereafter while the plaintiff recovered (although presentation of this disorder may have been atypical because of the features of the plaintiff’s personality);

2. (b)
   a continuing inability to drive a bus, a feature which I think all of the psychiatrists thought was present;

3. (c)
   the prospect of aggravation from time to time of difficulties associated with pre-existing personality features, so that the plaintiff is even less able to cope with stressors in his life than would otherwise have been the case.  This, in my opinion, is properly seen as a feature which makes difficulties which would otherwise have been present worse rather than one which causes psychiatric difficulties which would probably not have been present at all but for that incident. Nevertheless, in my opinion, it is an effect for which the plaintiff is entitled to some allowance.  Subjectively he feels the continuing effect of the incident: p. 174.

148. [148]
     In all the circumstances, I think an award of general damages in the sum of $18,0000 is appropriate, of which I would apportion half to the past. The plaintiff’s psychiatric distress would have been significant during the period while he was persisting with bus driving in particular, and some subsequent difficulties have been aggravated, and that is likely to continue in the future. My impression is the plaintiff is not really susceptible to improvement through psychiatric treatment. I think the problems are of greater significance to this plaintiff because of his pre-existing personality, and that justifies a larger award than would otherwise have been appropriate. Interest should be allowed on the past loss at 2% per annum for 3½ years.

149. [149]
     With regard to economic loss, the difficulty is in knowing to what extent the plaintiff would have remained settled in a career as a bus driver but for this incident. Driving a bus is something of which some people do make a career, but the plaintiff had had some difficulty with bus driving in the past, and in view of his personality features, it was possible that he could have developed an inability to cope with this at some stage during his life anyway, particularly if some other event had stirred up some psychiatric problems. I think there was some real risk that the plaintiff would have given up bus driving for one reason or another anyway, although when assessing that risk it must be borne in mind that the plaintiff did show in 1996 and 1997 a considerable willingness to persist with that particular job, notwithstanding the significant problems he was then experiencing. There is also the consideration that the plaintiff is not, as a result of this condition, unemployable, although his employment history both before and after his time as a bus driver suggests that he may have some difficulty in obtaining suitable employment, and as I have indicated earlier, I do not think that he is really suited to running his own business.

150. [150]
     Obviously economic loss is not something which is susceptible of calculation, but it is relevant to take into account the potential earnings of the plaintiff if he had stayed as a bus driver. Even this is not something which can be calculated with precision because a bus driver can increase earnings by working overtime and swapping shifts, and the gross weekly wages for a bus driver now range between $600 and almost $1,000: Exhibit 14. In the financial year 1996-7, the last full year the plaintiff worked, he averaged $762 for the week (Exhibit 2) which suggests that he was in about the middle of the range for bus drivers. That was the equivalent at the time of average net weekly income of about $560. It appears that there has been some increase since 1996 (Exhibit 14) so it is probably reasonable to allow an average of $600 net per week for the period from mid 1997 to now, which produces a total of approximately $94,000.

151. [151]
     His actual earnings since July 1997 in the following two financial years are set out in Exhibit 2, but the period since October 1999 was not proved with any precision, although I do not think it was very great. I doubt if his actual earnings net during the period up to trial have been greater than $35,000. There should however be a significant allowance for vicissitudes of life, rather more than would normally be allowed, in making this assessment, but on the whole I think an allowance for past economic loss of $40,000 is reasonable. The calculation for past economic loss in the written submissions on behalf of the plaintiff seems to be based on the assumption that the loss of earnings as a bus driver extended for only 2.4 years; this is the period from the date when his redundancy package was finalised, but I think it is appropriate to assess past economic loss over the whole of the period from July 1997, although taking into account the income earned from the Brisbane City Council since then. It was not submitted that I should deduct the redundancy payment from the Council.

152. [152]
     If but for this incident the plaintiff would have worked as a bus driver until he was 65, the present value of his potential future earning capacity would be something approaching $500,000, but that is not an appropriate measure for future economic loss. He still has a substantial working capacity, and there was a substantial prospect that he would not have worked as a bus driver until 65 anyway. I suspect also that part of the difficulty is that the plaintiff has not yet settled in some other suitable employment, but just as in the past he found bus driving, so I would expect that sooner or later he will find something else which does suit him, and his employment will become more settled and his earnings will go up. I think therefore that the significance of his not being able to work as a bus driver will diminish even more in the future, and his earnings anyway are likely to grow. In those circumstance, in my opinion, it is appropriate to make a moderate global award for future economic loss, and doing the best I can, I will assess a figure of $50,000. Given the basis of this calculation, I do not think it appropriate to make a further allowance for loss of superannuation contributions.

153. [153]
     Special damages were admitted in the sum of $1,230.79.

Summary

154. [154]
     I therefore assess damages as follows:

A: Damages for pain and suffering and loss of amenities $18,000.00

B: Interest on $9,000 at 2% per annum for 3.5 years  $ 630.00

C: Past economic loss       $40,000.00

D: Interest at 4% per annum for 2 years    $ 3,200.00

E: Future economic loss       $50,000.00

F: Special Damages       $ 1,231.00

TOTAL:       $113,061.00

155. [155]
     There will therefore be judgment that the first defendant pay the plaintiff $113,061.00 which includes $3,830 by way of interest. The plaintiff’s claim against the second defendant is dismissed. The first defendant’s claim against the second defendant is dismissed. I will invite submissions in relation to costs.