Lack of practice makes perfect defence fail

26 March 2019

The New South Wales District Court considers a spate of recent peer professional opinion defence decisions and says no witness necessary for pure mental harm.

In this recent District Court decision four family members of a man who died following discharge from the hospital brought claims for pure mental harm suffered as a result of his death. While the hospital was found not to have been negligent in its treatment of the deceased, it was held that the plaintiffs would have been entitled to damages, had negligence and causation been established.

In Issue

  • Whether the allegations of negligence could be considered a practice to which the peer professionals 'defence' under s5O CLA would apply;
  • Whether the hospital breached its duty of care to the deceased, and whether the hospital’s omissions caused the deceased’s death; and
  • Whether the hospital owed the plaintiffs a duty of care not to cause mental harm – i.e. whether injury to persons of normal fortitude in the position of the plaintiffs was foreseeable.

The Background

The deceased presented to Liverpool Hospital on 13 November 2016 suffering from a severe heart attack. He had multiple serious co-morbidities and was classed as a high-risk patient. He received treatment over subsequent days and a management plan was devised prior to his discharge on 18 November 2016.

The plaintiffs alleged that the hospital failed, at the time of the deceased’s discharge, to:

  1. recommend the deceased use a wearable defibrillator;
  2. supply the deceased with the drug Eplerenone; and
  3. conduct a further cardiac MRI study on the deceased prior to his discharge.

He was found dead on his bathroom floor by his ex-wife on 21 November 2016. She, together with his three children, each brought claims for damages for mental harm, commonly referred to as ‘nervous shock’ claims. Of the four plaintiff’s, three had pre-existing mental illnesses which were allegedly exacerbated by the deceased’s death.

The Decision

The court rejected the hospital’s submission that section 5O CLA applied to each of the above allegations, on the basis that the hospital had failed to identify features sufficiently common in a variety of circumstances to establish that any relevant ‘practice’ existed. Instead, the hospital and its doctors had devised a treatment plan specific to the deceased’s peculiar circumstances. The evidence showed that the treatments the plaintiffs alleged ought to have been given were not indicated in the deceased’s circumstances, and the hospital was found to have acted in accordance with the standard of care owed. Further, the evidence could not establish what caused the heart attack, or that any of the omissions alleged would have prevented the attack.

Alternatively, the court considered whether the hospital owed a duty of care to the plaintiffs for pure mental harm under s32 of the Civil Liability Act 2002 (NSW). The hospital submitted that plaintiffs could not receive damages for pure mental harm in NSW unless they had witnessed the death. The court held that the South Australian case relied on in support of that proposition involved the application of quite different statutory provisions. It was not necessary for a plaintiff to have witnessed the death to claim damages arising out of pure mental harm in NSW, and the risk of mental harm to a family member of normal fortitude was foreseeable in the deceased’s circumstances. The court held that the hospital owed a duty of care to each plaintiff not to cause mental harm.

Implications for you

The decision reinforces the principles which have emerged recently regarding the operation of the peer professional opinion ‘defence’, and is a reminder for defendants to consider whether or not a ‘practice’ is capable of being established in relation to the alleged negligence. The decision supports the proposition that s5O (and potentially ‘equivalent’ defences in other States) will not be available in rare or unusual cases.

Frangie v South Western Sydney Local Health District trading as Liverpool Hospital [2019] NSWDC 42

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