Fit to drive home? The scope of a health provider’s duty of care Fit to drive home? The scope of a health provider’s duty of care


Fit to drive home? The scope of a health provider’s duty of care

6 March 2018 | Health Law

A hospital and psychiatrist were liable for injuries sustained by a patient who had a car accident when driving herself home after being discharged from hospital. 

In Issue

  • Whether permitting the plaintiff to drive home on discharge was negligent.  
  • Whether the psychiatrist could rely on the peer professional opinion defence.
  • The amount of any loss suffered where the plaintiff was receiving compensation payments prior to discharge.


After becoming suicidal, the plaintiff was admitted to Brisbane Waters Private Hospital and assigned to the care of psychiatrist Dr Grund.

During her stay, she reported sleep disturbance due to pain and tiredness and was on a mix of psychoactive drugs. Treating doctors, including Dr Grund, noted concerns about her chronic pain and major depressive illness. On examination she was recorded as being overly sedated, drowsy (including during the day) and suffering insomnia. This continued during her admission.

Despite this, the psychiatrist authorised the plaintiff to drive. The plaintiff had made two very short trips prior to discharge.

When questioned about how the plaintiff would drive given she was so tired, the psychiatrist stated that the plaintiff would have adapted to the medication and been capable of realising when she could and could not drive.

On the day of the accident, the plaintiff was scheduled to leave hospital at 10:00am but did not leave until around 2:30pm. She had fallen asleep during breakfast and needed to be woken up by nursing staff on four other occasions that morning. While she was having a shower to wake up, her bed was stripped and her bags were packed for her as the bed was needed for another patient.

Judge Wilson accepted the plaintiff’s evidence that, prior to discharge, she was given a dose of OxyContin (a strong opioid narcotic) by nursing staff, and shortly after given her keys and transported to her vehicle. 

The plaintiff blacked out while driving and suffered minor injuries.

The Decision

Judge Wilson of the NSW District Court entered judgment for the plaintiff, apportioned one-third against the hospital and two-thirds against the psychiatrist. 

He was critical of the hospital’s argument that the scope of the duty of care it owed to the plaintiff was for hospital services only, and did not extend to her transportation home.

He found that it was obvious and common sense that the plaintiff should not have been permitted to drive. She was not in a fit state to make a decision about driving and, if she had been told she could not drive, she would have made arrangements to take a taxi or for friends to pick her up. Additionally, it would have been fairly simple for the psychiatrist or nursing staff to enquire about her condition on the day of discharge. The breach of duty was so clear that the peer professional opinion defence could not be made out.

It was not accepted that the plaintiff’s already very limited ability to work (she had prior injuries for which she was receiving compensation payments) was affected by the accident. However, there was an award of $96,500 for pain and suffering, future treatment costs and future economic loss on the basis that the limited fresh injuries arising from the motor vehicle accident may become productive of loss.

Implications for you

This decision is a timely reminder to hospitals that liability can attach to incidents which occur outside of hospital premises, and that their duty of care extends to taking reasonable care to decide whether a particular patient is capable of safely driving themselves home, or whether alternative arrangements ought be made.

Naidoo v Brisbane Waters Administration Pty Ltd trading as Brisbane Waters Private Hospital [2017] NSWDC 372


Emma Harman

Emma Harman

Senior Associate