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Accident Compensation Cases

S v Midcentral District Health Board (HC, 18/03/03)

Judgment Text

Master Gendall
This is an application by the defendant to strike out the plaintiff's claim. 
The application is opposed by the plaintiff. 
As a preliminary matter, in so far as it may be necessary, I make an order continuing the suppression of the name of the plaintiff in these proceedings. 
Background facts 
On 20 March 1996 the plaintiff was sexually assaulted and raped by a man (“P”), who at the relevant times had been or was a patient of MidCentral Health through its psychiatric services. P was sentenced on 18 March 1997 in the Palmerston North High Court after conviction for raping the plaintiff. 
It seems that P had a long history of involvement with the mental health services of the defendant, and in her Statement of Claim the plaintiff pleads that the defendant recklessly failed in the exercise of its duties in dealing with P as a patient, including his discharge as a mentally disordered patient, and failed to carry out adequate clinical assessments so as to protect members of the public generally. In broad summary she alleges that P was inadequately treated by the defendant under the relevant mental health legislation, and the defendant acted in gross dereliction of care to members of the public including herself, and as a result of such default in its duty, the plaintiff suffered the sexual assault at the hands of P. 
The plaintiff claims exemplary damages of $150,000. 
Following the charge and conviction of P concerns were raised as to the adequacy of the service provided to him by the defendant. The Director of Mental Health instructed Ms H Cull QC, District Inspector, and Dr B Taumoepeau, a clinical psychiatrist and director of Area Mental Health Services for Capital Coast Health Limited, to conduct an enquiry. This committee of enquiry under s 95 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 provided its report in August 1997. 
This August 1997 report, according to counsel for the plaintiff, resulted in various conclusions being reached as to the adequacy of care by the defendant. He alleges that these conclusions included the following: 
Discharges/grants of leave for P were premature, or made without adequate information as to past history, or appropriate terms and conditions of leave - page 27. 
Clinical assessments of P were not adequate. Caregivers missed P's chronic state of hypomania, becoming evident in December 1995/January 1996. No cognisance was taken of P's familiarity with females or other grandiose behaviour noted on his file. Despite a request for longer admission of P, this was not adequately communicated or properly actioned - page 32. 
A Programme Agreement of 14 February 1996 was not adequate for clinical support of cultural needs - page 41, 
Delivery by Alcohol and Drug Services were less than adequate - page 45. 
P's need for accommodation and work skills and training was not adequately assessed and reviewed - page 54. 
There appeared to be no close working relationship with the authorities and P's parents - page 56. 
A treatment plan of October 1995 was not updated or reviewed. A further treatment plan of 14 February 1996 for P was not adequate and subsequently not reviewed or updated - page 58. 
P's Mental Health Act status as an in-patient on leave from hospital was overlooked - page 61. 
Apparently it was as a co-patient of the Horowhenua Mental Health Team that P came in contact with and came to know the plaintiff. 
Counsel's submissions and my decision 
The defendant makes this strike out application pursuant to Rule 186 of the High Court Rules. That Rule provides: 
“Without prejudice to the inherent jurisdiction of the Court in that regard, where a pleading - 
Discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or 
Is likely to cause prejudice, embarrassment or delay in the proceeding; or 
Is otherwise in abuse of the process of the Court - 
the Court may at any stage of the proceeding, on such terms as it thinks fit, order that the whole or any part of the proceeding be struck out. ”
Counsel in this matter both agree that, as a strike out application, this application must proceed on the assumption that the facts pleaded in the Statement of Claim are true and that to strike out the proceedings, the Court must be satisfied the causes of action are so untenable that they could not succeed - Attorney General v Prince and Gardner [1998] 1 NZLR 267
In addition, Attorney General v Prince and Gardner made clear that the strike out jurisdiction is one to be exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material - Gartside v Sheffield Young and Ellis [1983] NZLR 37, 45 and Electricity Corporation Limited v Geotherm Energy Limited [1992] 2 NZLR 641. The fact however that applications to strike out raise difficult questions of law and require extensive argument does not exclude jurisdiction - see Gartside v Sheffield Young and Ellis
To succeed, the defendant must show that the cause of action is so clearly untenable that it cannot possibly succeed - see R Lucas and Son (Nelson Mail) Limited v O'Brien [1978] 2 NZLR 289 and Takaro Properties Limited (in rec) v Rowling [1987] 2 NZLR 314, 316-317. 
Some useful judicial observations regarding strike out applications are noted in McGechan on Procedure HR186.05 where he refers to the decision of Master Williams QC in Adams v Joseph Banks Trust Limited (4 March 1992, High Court Wellington, CP224/91). Amongst these observations, McGechan notes: 
The standard of proof the applicant must achieve ‘is made deliberately difficult to attain’. ”
In this regard Mr Corkill, counsel for the plaintiff, indicated that he relied heavily in his submissions on a statement of Richardson P in Attorney-General v Prince & Gardiner at page 267 where he stated: 
“Mr Chambers QC for the respondents submitted that the Court should be very slow to rule on novel categories of duty at the striking out stage. Where the hypothetical facts cover a range of factual possibilities, deciding wide public policy questions may lead to an unfocused approach because the enquiry is then set against too broad a factual canvas. And imperical evidence and other expert evidence properly tested may help the Court in making the right public policy choices. ”
See also Bryan v Phillips NZ Limited [1995] 1NZLR 632
Turning to counsel's arguments, the plaintiff pleads two causes of action: 
The first is in negligence, for which exemplary damages are sought. 
The second is pursuant to s 8 of the New Zealand Bill of Rights Act where it is pleaded that the plaintiff had a right not to be deprived of life and public law compensation is sought. 
I will deal with each of these claims in turn. 
Claim in negligence for exemplary damages 
In its strike out application the defendant raises two principal arguments with respect to this pleading. These are: 
Whether there is sufficient proximity between the defendant and the plaintiff for the defendant to owe the plaintiff a duty of care; and 
Even if a duty of care is owed, the plaintiff's claim is for exemplary damages, and the defendant's conduct as pleaded by the plaintiff falls well short of the type of conduct which would justify an award of exemplary damages. 
I will consider each of these issues in turn: 
(a)Duty of care 
The essence of the plaintiff's case is that it was entirely foreseeable that women with whom P came into contact, especially at hospital facilities (for this provided an opportunity for P to interact with women), were at risk from P's sexual behaviour. As a result, it is claimed that the defendant owed a duty to its vulnerable female patients to protect them from P by properly treating him and/or warning them of what he might do. 
The accepted approach to determining the duty issue was encapsulated by the Court of Appeal in Attorney-General v Prince (1998) 1 NZLR 262 where it said at 268; 
“The issue is whether a claim in negligence may lie. The ultimate question is whether in the light of all the circumstances of the case it is just and reasonable to recognise a duty of care by the defendant to the plaintiff. That depends on consideration of all the material facts in combination. It is an intensely practical question. For almost 20 years, and drawing on Anns v Merton London Borough Council [1978] AC 728, we have found it helpful to focus on two broad fields of inquiry. The first is the degree of proximity or relationship between the alleged wrongdoer and the person who has suffered damage. That is not a simple question of foreseeability as between parties. It involves consideration of the degree of analogy with cases in which duties are already established and reflects an assessment of the competing moral claims. The second is whether there are other policy considerations which tend to negative or restrict - or strengthen the existence of - a duty in that class of case (Fleming v Securities Commission [1995] 2 NZLR 514 at pp 527-528). ”
The defendant argues that it is not just and reasonable in the circumstances that the defendant should owe a duty to the plaintiff. In particular, it submits that there is insufficient proximity or relationship between the defendant and the plaintiff or the class of persons of which the plaintiff forms part. Further it is argued that there are powerful policy factors which militate against the imposition of such a duty. I turn to consider these two arguments. 
The defendant submits that there are two key issues which arise in cases of this nature, that is to say, cases where proximity is an issue in establishing the existence of a duty as between one party for failing to prevent another party from causing harm to a third. These issues are said to be whether the harm is sufficiently foreseeable, and whether the threat of harm posed (if there was one) was to a clearly identifiable victim or identifiable category of victims. 
As to the defendant's first submission it is argued that where the possible duty is as between an alleged wrongdoer and a third party and where human action forms the link between the wrong doing and the loss, the test for foreseeability is that the action (here the act of rape) must be regarded as having been “something very likely to happen” if it is not to be regarded as a novus actus interviens (Dorset Yacht Co v Home Office [1970] AC 1004). 
Counsel for the defendant argued that the alleged wrongdoing in this case was the defendant's failure to properly assess and treat P, and therefore to prevent the plaintiff being harmed by him. P's action in raping the plaintiff is the link between the alleged wrongdoing and the harm suffered by the plaintiff. The question to be answered, therefore, is whether P's action in raping the plaintiff was “something very likely to happen” (following the failure to properly assess and treat him) as opposed to a mere foreseeable possibility. If it was the former, then it can be regarded as a consequence of the original wrongdoing. If it is the latter, then the rape can more properly be regarded as a new cause, and was thus a novus actus interviens breaking the chain of causation. 
Counsel for the defendant contended that the facts as pleaded in the plaintiff's Statement of Claim are not of a kind that suggest that P raping the plaintiff was something that was very likely to happen - or indeed that it was even a mere foreseeable possibility. He argued that the incidents referred to were minor and involved nuisance type offences only. The principal incidents referred to in the Statement of Claim (paragraph 7), which the plaintiff alleges should have made the defendant aware of the danger P posed to her, were: 
Paragraph 7.26 - a member of the public requested the Police to remove P from her doorstep. 
Paragraph 7.27 - P attended another member of the public's address and she kept him off her property with a dog. 
Paragraph 7.29 - P apologised to a member of the public for his behaviour. 
Paragraph 7.34 - a minor swimming pool incident at the Palmerston North Hospital Rehabilitation Centre. 
Paragraph 7.35 - an incident where P spoke to a female patient in a sexually explicit fashion in a lift. 
Paragraph 7.37 - an incident where P requested “cuddles and kisses” from a woman constable. 
Paragraph 7.41 - P approached a woman at her work and hugged her and later entered a lingerie shop and behaved peculiarly. 
These incidents are generally of a nuisance type, and I am satisfied that there is nothing from them which would lead the defendant to conclude that P's behaviour would escalate with some speed to the level of raping the plaintiff, or indeed that raping anyone was something very likely to happen. 
Contrast the facts in Palmer v Tees Health Authority [1999] Lloyd's Reports (Medical) 351 (CA) where during treatment, the offender said he was going out to rape a young girl, and that is indeed what he did. There, the possibility of rape/murder was clearly foreseeable. This is in my view an entirely different situation from the present case. 
Applying the Dorset Yacht test, I am satisfied that P's action in raping the plaintiff cannot be regarded as “something very likely to happen”, and must be seen as novus actus interviens breaking the chain of causation. On this ground alone, I find that no duty of care on the part of the defendant exists here. 
I now turn to consider the second issue which arises with respect to the proximity test - that is whether the threat of harm posed was to a clearly identifiable victim or category of victims. 
In Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 (the Yorkshire Ripper case), the House of Lords considered what further element was required in order to establish the necessary relationship for a duty to exist in circumstances similar to the instant case. In Hill the plaintiff (mother of a serial murder victim) sued the Police on behalf of her daughter's estate for negligence, claiming that in the conduct of investigations into the crimes which had been committed, the police had failed to apprehend the murderer and thereby to prevent her daughter's death. The Court held that there was no general duty of care to identify and apprehend criminals owed by the Police to members of the public who might suffer injury as a result of criminal acts. After quoting extensively from Dorset Yacht (another case which had dealt with liability for the deliberate and criminal acts of third parties), the Court said this; 
“The Dorset Yacht case was concerned with the special characteristics or ingredients beyond reasonable foreseeability of likely harm which may result in civil liability for failure to control another man to prevent his doing harm to a third. The present case falls broadly into the same category. It is plain that the characteristics which were present in the Dorset Yacht case and which led to the imposition of liability are here lacking, Sucliffe was never in the custody of the police force. Miss Hill was one of a vast number of female general public who might be at risk from his activities but was at no special distinctive risk in relation to them, unlike the owners of yachts moored off Brownsea Island in relation to the foreseeable conduct of the Borstal boys. 
Miss Hill cannot be regarded as at special risk simply because she was young and female. Where the class of potential victims of a habitual criminal is a large one the precise size of it cannot affect the issue. All householders are potential victims of the habitual burglar, and all females of the habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sucliffe were not identified or apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. ”
(at p 62)
The dicta in Hill was adopted in Palmer v Tees Health Authority [1999] Lloyd's Reports (Medical) 351 (CA). That case involved a claim by the plaintiff (mother of the deceased) in her own right and as executrix of her daughter's estate that the defendant health authority had failed to properly diagnose that there was a real risk of the patient committing serious sexual and violent offences against children and that insufficient measures were taken in his treatment. 
The Court found that in order for proximity to exist where injury is caused by the intentional act of a third party, there must be a “special relationship” between the defendant and the victim. An identified or identifiable victim was necessary, though perhaps not sufficient requirement (per Stuart-Smith LJ) or at least, an important factor (per Pill J) in the establishment of such a relationship. On the facts, it was found that the victim was not specifically at risk of injury or death from the patient, albeit that she was a young girl living on the same street as him. 
The requirement of identifiability distilled from Palmer was approved by Wild J in Maulolo v Hutt Valley Health Corporation [2002] NZAR 375. In that case, a psychiatric patient, a little over a year after his release back into the community from care, killed his girlfriend. The girlfriend's relatives brought a claim against the health provider for shock suffered. The Judge found that it was impossible to distinguish the plaintiffs from the public at large, despite the fact that there were medical records which showed the perpetrator of the murder might be a risk to those in his immediate family circle. The nature of the patient's illness (schizophrenia) made him most dangerous to whoever was in his immediate vicinity (presumably at the time of a particular schizophrenic delusion or such like). 
Equally in Van de Wetering (HC Wellington, CP368/98, 25/9919 May 2000), Master Thomson found that there was no “unique relationship” between the defendant health care authority and the by-standers to a multiple shooting by a voluntary psychiatric patient which would give rise to special proximity. In short, the plaintiffs, as mere members of the public did not have the requisite degree of proximity or relationship with the defendant to justify imposing a duty of care in the circumstances. 
The plaintiff seeks to distinguish herself from the plaintiffs in the cases reviewed above. In short, the plaintiff argues that she is one of a class of persons capable of being identified, distinguishable from the public at large. This class of persons to whom the defendant is said to owe a duty of care is said to be restricted to “vulnerable female patients”. It is the plaintiff's case that based on the patient's behaviour, women who came within his orbit, particularly in the context of hospital facilities, were at risk and thus the defendant owed duties to that particular group to protect them by properly treating P and warning them against that threatened harm. 
The plaintiff relies on various cases where a duty of care has been recognised between health care providers and patients in support of the recognition of such a duty in this case. However, all of these cases are, in my view, distinguishable on the facts. 
Munroe Ltd v London Fire Authority [1996] 4 All ER 318 only recognises a direct duty to patients to provide them with adequate health care but does not explicitly consider the position vis a vis a third party. At best it could be said that the judgment lends implicit support to the existence of a duty to patients to protect them against harm while on hospital premises - “patients are invited in, whether to the ward or casualty department, and are entitled to rely upon the hospital assuming responsibility for them” (at p 329). 
In Wenden v Trikha (1991) AJ 612 the Court held that a “hospital treating mentally ill patients does owe a duty of care to a person or class of persons other than its staff or patients if it can be said that it is foreseeable that harm will likely occur to such a person or persons as a result of the behaviour of a mentally ill patient, provided that there is some further ingredient which establishes a relationship between the hospital and that third party”. The Judge then went on to refer to Dorset Yacht and Hill and the requirement of a “particular risk” to the third party. 
He cited Wellesley Hospital v Alrson [1978] 1 SCR 893 which recognised a duty to provide adequate control and supervision to prevent injury from occurring to third persons by reason of the conduct or behaviour of a patient. That case was concerned with a mentally-ill patient who injured a fellow patient on hospital premises. Similarly, the Court in Stewart v Extendicare Ltd (1986) 4 WWR 559 recognised a duty to fellow patients on hospital premises. The Judge in Wenden v Trikha thought that this could easily be extended to outpatients a psychiatrist treats on his premises or even to persons who were on the premises of a hospital on business or simply visiting other patients. None of these identified situations are applicable to the present case. 
Finally, in Grameller v New York Medical College [1999] Lloyd's Medical Reports 343, it was known to the defendant that a psychiatric resident had paedophile tendencies and that he intended to become a child psychiatrist. It was held that a child patient of the resident was within a foreseeable class of victim, thus giving rise to duties on the part of the defendant. That seems altogether different from the instant case. 
It would seem that the mere fact that one is a patient of a hospital does not in and of itself give rise to obligations of protection, however, where by virtue of that fact one is exposed to greater risk of harm by - to use an example from the above case law - being kept in close proximity to a dangerous co-patient, that may be sufficient. 
By contrast, in the present case the status of the plaintiff as an out-patient of the defendant and co-patient of P did not place the plaintiff in the “at risk” category. The broad reason that the plaintiff was at risk was first and foremost as a woman. That, to my mind, was the true category of persons requiring protection from P. While it is inescapable on the pleadings at present that her status as co-patient of P was a contributing factor in that it provided the initial point of contact, in my view it could equally have easily have been any women who P had met in town and followed home. A degree of analogy can be drawn with Palmer where the fact that the child victim lived on the same street as the dangerous patient did not distinguish her from other children - the real “at risk” category. 
While it is true that P had indulged in a number of sexual acts prior to the rape, the evidence as pleaded does not disclose that female patients he came into contact with at hospital facilities were particularly at risk. Of the incidents identified by the plaintiff involving women, only two had any connection whatsoever to female patients. 
These are an observation of P in the Palmerston North Hospital Rehabilitation changing room and later in front of the defendant's hospital pool. The same day Police received a call from a female patient who said that P had spoken to her in a sexually explicit manner in the lift. 
However, there were numerous other incidents of P's annoying behaviour or harassment of female members of the general public, including on the day prior to the rape, an incident involving a female police officer and on the day itself, harassment of a female shop assistant. Why should just vulnerable co-patients of P be singled out for particular attention by the Courts? The logical scope of the duty is to all women in the community. 
As such, the plaintiff cannot be regarded as at special risk just because she is female. In this regard analogy can be drawn with the position of the deceased in Hill, where the category of people at risk from harm was, as here, women in the general public. That being so, it was found in Hill that there was insufficient proximity between the defendant and the plaintiff on which to base a duty of care. The category of potential victims here is only marginally more circumscribed than in Van de Wetering or Maulolo where the relationship between the defendant health authorities and the plaintiffs as members of the general public was found to be insufficiently proximate. 
On the basis of all the authorities before me, I find that the plaintiff has been unable to show the necessary proximity or relationship on which to base a duty of care in this case. 
Policy considerations 
As a second limb to the defence, the defendant argues that even if there was sufficient proximity (and I have found there was not here), policy considerations negate the existence of such a duty. The defendants substantially adopt the five policy factors considered in Van de Wetering and endorsed by Wild J in Maulolo. They are; 
If doctors and health providers are to be liable in situations such as this, then there is the danger that a fear of possible liability will result in over-cautious and defensive medical treatment. An intolerable burden would be placed on clinicians to divert attention away from focusing on the best interests of their patients, towards “cautious self-protection”. (See Van de Metering at p 16). 
The danger of defensive medicine is especially so when a clinician is operating under a statutory framework such as the Mental Health (Compulsory Assessment and Treatment) Act where patients can only be compelled to have treatment under the Act. The Mental Health framework does not allow continuing detention of patients without good reason. Where possible treatment should be in the community (s 28). There is a danger that the clinician would be over-cautious in refusing to treat patients in the community, contrary to the intention of the legislature. 
Similar policy considerations were determinative in analogous situations in Hill v Chief Constable of West Yorkshire, Van de Metering and Maulolo. (See also A-G v Prince and Gardner). 
The far-reaching scope and the inappropriateness of an unlimited duty; see Cooke P's critical comment in South Pacific Mfg Co Ltd v NZ Security Consultants & Investigations Ltd [1992] 2 NZLR 282 (CA) - “liability in an indeterminate amount for an indeterminate time to an indeterminate class”. Recognising a duty by the defendant to protect the plaintiff in this case (being indistinguishable from women in the community at large) has far-reaching scope. The defendant argues that any duty that a health care provider may have to protect a patient from harm from other patients should at most only exist in a situation where a hospital has responsibility and control of both patients (ie on hospital premises). 
In considering whether a duty should be imposed, it is important to note that the plaintiff was entitled to seek compensation under s 8(3) of the Accident Rehabilitation and Compensation Act 1992 and is therefore not without a remedy. 
Given the finding that there is insufficient proximity on which to base a duty of care in this case, it is strictly unnecessary for me to draw any firm conclusions on these policy grounds. Suffice to say, however, that the above policy reasons in the main serve to reinforce my conclusions and do not tell in favour of broadening or widening the duty in circumstances such as the present. Accordingly, the plaintiff's first cause of action must be struck out. 

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