Thinking | 22 December 2017

The importance of a good night’s sleep – hospital and psychiatrist asleep at the wheel

The District Court of New South Wales recently considered the duty of care owed by a hospital and treating psychiatrist to a patient who suffered injuries in a motor vehicle accident after being discharged from hospital. The hospital attempted to persuade the Court that the plaintiff was discharged in accordance with the psychiatrist’s orders, sought an indemnity from the psychiatrist and pleaded contributory negligence against the plaintiff. The psychiatrist denied negligence, sought an indemnity from the hospital, pleaded contributory negligence against the plaintiff and attempted to defend her conduct based upon peer professional opinion as to competent professional practice (section 5O Civil Liability Act – CLA).


In a lengthy judgment published on 20 December 2017 by His Honour District Court Justice Wilson SC both the hospital and psychiatrist were found liable to the plaintiff based upon a breach of duty of care at discharge. Negligence was apportioned one third to the hospital and two thirds to the treating psychiatrist. His Honour had regard to the contemporaneous medical records which demonstrated clear evidence of sedation and disturbed sleeping in the weeks and days prior to discharge. He found that the hospital staff did not inform the psychiatrist of their observations of the plaintiff prior to discharge and the psychiatrist did not make appropriate enquiries of the plaintiff’s condition when authorising discharge or when contacted after authorisation but before final discharge. His Honour concluded that the plaintiff’s clinical notes should have alerted both the hospital and the psychiatrist to the risks associated with the plaintiff being discharged with authority to drive her own motor vehicle. There was no finding of contributory negligence against the plaintiff.

In assessing liability it was found that the risk was foreseeable for a number of reasons, including the psychiatrist being aware of the plaintiff’s sleep disturbance, the plaintiff had spent considerable time in bed the day prior to discharge, the plaintiff fell asleep at breakfast on the day of discharge and the plaintiff could not stay awake prior to her discharge and required hospital staff to wake her on a number occasions.

5O Defence

His Honour noted that:

“In the circumstances of this case, the breach of duty is so clear that this could have be answered by a lay person. As experts have been retained, however, that is not necessary.”

In rejecting the psychiatrist’s defence based upon section 5O of the CLA, reliance was placed on the reasoning provided by the plaintiff’s expert witness. The peer expert evidence led by the psychiatrist was rejected on the basis that it was irrational and not capable of acceptance. Further, findings were made against the second defendant personally as to frankness and candour of her evidence.


Ultimately, an award was made in favour of the plaintiff for $96,500 comprising amounts for non-economic loss, future treatment expenses and future economic loss. No allowance was made for past treatment, past economic loss or domestic assistance. The cross claims seeking indemnity between defendants were also dismissed.

This case serves as a timely reminder of both a hospital’s duty of care to patients upon discharge and also the care required to be provided by treating practitioners. It is also noteworthy that whilst evidence of peer professional opinion can be led by a defendant, there are circumstances in which it will not be accepted by the Court.

The full case is available here.


Oliver Jankowsky

Partner & Head of International Practice

Ed Paton

Partner & Head of SE Asia Practice

Eugene Chen

Partner & Head of China Practice

Melanie Smith

Director - Business Development, Marketing and Communications

Natalie Bannister

Partner & Commercial National Practice Leader

Rhett Slocombe

Partner & Insurance National Practice Leader

Katie McKenzie


James Bull

Special Counsel and Head of Frank

Melanie James

People & Culture Manager

Jacqui Barrett

Partner & Head of US Practice

Paul O’Donnell

Consultant & Head of Energy

Christopher Brown

Partner & Head of UK Practice

Lauren Parrant

Senior People & Culture Advisor, as at 1 July 2022

Melinda Woledge

Marketing & Communications Manager

Jasmine Koh

Senior Associate and Head of Frank

Alison Choy Flannigan

Partner & Leader, Health & Community

Billie Kerkez

Manager – Smarter Recovery Solutions

Peter Jones

Senior Commercial Counsel

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