Hollier v Sutcliffe (2010) NSWSC 279
In the recent case of Hollier v Sutcliffe the NSW Supreme Court examined a doctor's duty not to cause mental harm to a patient. The case demonstrates that there are limitations on that duty that need to be considered when assessing whether a case for mental harm is available.
On 16 October 2006 Ms Hollier attended the surgery of Dr Sutcliffe, General Practitioner. At Ms Hollier's request, an Implanon contraceptive rod was implanted in her left upper arm. An Implanon device is a 4 cm long flexible plastic rod that is inserted into a patient's arm as a long-acting reversible contraceptive.
Subsequently Ms Hollier complained of pain which she attributed to the implantation procedure and ultimately had the device removed 9 days later by another doctor at the surgery.
Ms Hollier alleged that the insertion was performed negligently and that as a result she suffered from significant and on-going pain in her left arm, shoulder and the back of her neck which led to restrictions on her ability to lead a normal life. She alleged that this in turn caused her to suffer a significant psychological injury.
Hulme J found that the preponderance of opinion was that Ms Hollier had developed a pain syndrome which had given rise to a depressive reaction with a range of reactive symptoms, anxiety and depressed mood.
It was also generally agreed that there were a number of vulnerability factors relating to Ms Hollier's psychological condition. Although she had never had a previous psychiatric illness, the vulnerability factors included:
- a complex obstetric history;
- a history of an abusive relationship with her first husband;
- the suicide of her father in 2004;
- injuries suffered by her second husband; and
- her mother's leukaemia.
Hulme J found that s32(1) of the Civil Liability Act 2002 (NSW) applied. This sections states that:
A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Hulme J found that the section applied to both pure mental harm and mental harm that is a consequence of a personal injury of any other kind.
Hulme J found that the determination of'normal fortitude' is one that ultimately rests with the court as a determination of fact. He noted that the relevant question was:
Ought the defendant have foreseen that a patient of normal fortitude might suffer a recognised psychiatric illness if she did not take reasonable care in carrying out the procedure?
His Honour concluded that if the procedure was faulty in the manner for which Ms Hollier had contended, it could be foreseen that some physical damage causing pain to the patient might result. However, he was unable to conclude that Dr Sutcliffe ought to have foreseen that a recognised psychiatric illness might be suffered.
Application to Victorian Law
Sections 72 and 74 of the Wrongs Act 1958 (Vic) (the Victorian Act ) set out similar provisions to those under s32 of the Civil Liability Act 2002 (NSW) (the NSW Act ). However, there are some differences under the Victorian Act that may distinguish this case from Victorian cases.
Hulme J found that mental harm under s32(1) of the NSW Act included both pure mental harm and consequential mental harm. Under the Victorian Act, pure mental harm and consequential mental harm addressed separately. For cases of pure mental harm, the provision in s72 of the Victorian Act is the same as s32(1) of the NSW Act. In cases of consequential harm, however, the Victorian Act states the following:
A person (the plaintiff) is not entitled to recover damages from another person (the defendant) for consequential mental harm unless?
(a) the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken; or
(b) the defendant knew, or ought to have known, that the plaintiff is a person of less than normal fortitude and foresaw or ought to have foreseen that the plaintiff might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Therefore, under Victorian law, where a case relates to consequential harm, a court must consider both: whether a person of normal fortitude might have suffered a psychiatric illness; and whether the defendant knew or ought to have known that the plaintiff is a person of less than normal fortitude.
The case highlights that where a plaintiff has suffered mental harm it is not enough to prove that the plaintiff has suffered a psychiatric injury as a result of the relevant treatment or event. It must be considered whether it was reasonably foreseeable by the defendant that a person of normal fortitude might suffer a recognised psychiatric illness in the circumstances.
In Victoria, where the mental harm is a consequence of an injury of another kind, it should also be considered whether the defendant knew or ought to have known that the plaintiff was a person of less than normal fortitude and therefore might suffer a recognised psychiatric illness in the circumstances.