In the case of Carrier v Bonham [2002] 1 Qd R 474 Queensland Court of Appeal, Bonham was a psychiatric patient with a long history of schizophrenia. He was being detained in a hospital and escaped. Carrier was driving a bus when Bonham jumped in front of the bus with the intention to harm himself. Carrier attempted to brake, however, he was unable to avoid hitting Bonham.
Carrier (the plaintiff) sued Bonham (the defendant) in negligence on the basis that he breached his duty of care owed by him to the plaintiff.
At first instance, the trial judge decided on the question of negligence that, being a person of unsound mind, Bonham was not liable for the injury inflicted on Carrier. The trial judge was of the view that, for the purposes of the law of negligence, the legal position of a person of unsound mind ought to be equated with that of an infant. Therefore, Bonham was not capable of assessing the effect of his action on someone else and that his conduct was not to be judged by the objective standard of the ordinary person. The mental condition of Bonham had an effect on his liability in negligence and that his attempted suicide did not constitute a breach of his duty to Carrier. Bonham was unable to foresee that the harm inflicted on the occupants on the bus from his intentional act.
It is important to consider the analogy made by the trial judge in the Carrier case in light of the tortious liability of children. That question was settled in McHale v Watson (1966) 115 CLR 199, where the High Court held that age was a relevant consideration. In that case, a 12 year old boy was not held liable in tort to another child for his action in throwing a metal dart which glanced off a wooden post and striking another child in the eye. The boy’s conduct was not to be judged as an ordinary person, but as a 12 year old boy.
The Carrier case was appealed on the basis that a person of unsound mind is capable at common law of being legally liable in negligence and the analogy made by the trial judge should not be applied those with a mental disability.
On appeal, their Honours considered that one of the reasons why Bonham was able to escape from the hospital, is that psychiatric practice no longer insists that persons in his condition be kept under strict custody. There is now greater liberty of movement. Their Honours stated that if in the process, someone took advantage of that liberty to venture into “normal” society, it seems that their conduct should be judged according to society’s standards including the duty to exercise reasonable foresight and safety of others.
Their Honours found that Bonham’s mental condition had no effect on the standard of care owed by him to Carrier, which should have been judged by the standard of the ordinary and reasonable person and did not diminish or reduce his liability in negligence to Carrier.
If you have questions about duty of care, contact Nathanael Coles at ncoles@franklaw.com.au
This is not legal advice.
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