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  • Unreported Judgment

Robertson v State of Queensland

 

[2020] QDC 185

DISTRICT COURT OF QUEENSLAND

CITATION:

Robertson v State of Queensland [2020] QDC 185

PARTIES:

MAUREEN JOY ROBERTSON

(plaintiff)

v

STATE OF QUEENSLAND

(first defendant)

and

GOLD COAST HOSPITAL AND HEALTH SERVICE

(second defendant)

FILE NO/S:

3311/15

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 August 2020

DELIVERED AT:

Brisbane

HEARING DATES:

16, 17, 18, 19, 20, 23, 24, 25 March 2020 and 25 June 2020

JUDGE:

Barlow QC DCJ

ORDER:

Judgment for the defendant

CATCHWORDS:

TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – AT COMMON LAW – FACTORS – FORESEEABILITY – plaintiff claims bullying, badgering and mobbing at work caused psychiatric injury – whether a duty of care to avoid a psychiatric injury arose – whether the risk of the plaintiff sustaining a recognisable psychiatric injury was reasonably foreseeable by the defendants – whether the defendants had notice that the plaintiff was at risk of suffering psychiatric injury

EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – CAUSATION AND FORESEEABILITY – FORESEEABILITY – whether a duty of care to avoid a psychiatric injury arose – whether the defendants had notice that the plaintiff was at risk of suffering psychiatric injury

TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – AT COMMON LAW – DAMAGE AND CAUSATION – the plaintiff suffered psychiatric injury while employed by the defendants – whether the plaintiff’s psychiatric injury was caused be the defendants’ breaches of any duty of care

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305N, s 306L, s 306O, s 306P

Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) s 129, s 130, sch 9, sch 10, sch 11

Calogeropoulos v Vergottis [1968] 2 Ll Rep 403, cited

Eaton v TriCare (Country) Pty Ltd [2015] QDC 173, cited

Eaton v TriCare (Country) Pty Ltd [2016] QCA 139, applied

Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, cited

Hayes v State of Queensland [2016] QCA 191, applied

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, applied

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, cited

Queensland Corrective Services Commission v Gallagher [1998] QCA 426, cited

Robinson v State of Queensland [2017] QSC 165, cited

State of New South Wales v Paige (2002) 60 NSWLR 371, cited

Woolworths Ltd v Perrins [2015] QCA 207, cited

COUNSEL:

SD Anderson for MsRobertson

RC Morton for the defendants

SOLICITORS:

Richardson McGhie for MsRobertson

McInnes Wilson Lawyers for the defendants

Table of Contents

Introduction4

The witnesses and other evidence5

The incidents8

1 April 2011 – patient death8

6 April 2011 – accusation of incompetence with insulin12

7 April 2011 – plans to retire15

19 May 2011 – “just the changes”17

11 August 2011 – infusion pump and alleged abuse about observations18

The lead-up events18

The particular alleged conduct19

5 November 2011 – ST elevation21

19 December 2011 – alleged medication error22

6 February 2012 – ongoing concerns, lost confidence26

18 March 2012 – Code Blue incident28

28 March 2012 – accusation of incompetence on Code Blue32

10 April 2012 – informing RNs about supervision35

12 April 2012 – rude and condescending attitude36

May 2012 – accusation of incompetence about low blood pressure #137

15 May 2012 – accusation of incompetence about low blood pressure #239

22 May 2012 – global assessment, calculation tests and education41

5 June 2012 – conflicting directions42

13 July 2012 – abuse about leg dressing44

27 July 2012 – not administering medications unsupervised45

17 August 2012 – abuse about chest pain46

Other relevant events49

Global assessment in August 201249

The hospital’s concerns about Ms Robertson’s performance52

First complaint to AHPRA – September 201253

Work at Robina53

Second complaint to AHPRA – June 201354

Psychological assessment – January 201455

Was Ms Robertson bullied, badgered or mobbed?55

Did a duty of care arise?56

Legal principles56

Did the circumstances alleged give rise to a duty?60

Did the hospital breach any duty of care?63

Ms Robertson’s illness65

Was Ms Robertson’s psychiatric injury caused by any breach of duty by the defendants?66

Damages71

General damages71

Special damages72

Past economic loss72

Future loss of earning capacity73

Future medical expenses74

Total nominal damages74

Conclusions75

Introduction

  1. [1]
    Maureen Robertson was an endorsed enrolled nurse (EEN) at the Gold Coast Hospital in 2011.  She had gained her qualification as an enrolled nurse in 2006.  She had worked night shifts on a permanent basis in the cardiology unit since 2008.
  2. [2]
    Ms Robertson claims that, over a period of time during 2011 and 2012, she was badgered, bullied and mobbed[1] by colleagues at work, most of whom were registered nurses (RNs).  Ms Robertson claims that this caused her a psychiatric injury, namely chronic adjustment disorder with mixed anxiety and depressed mood, with consequent loss of her career from 2013.  She alleges that the defendants had a duty of care, at least from December 2011, to take reasonable steps to avoid causing her a psychiatric injury, they breached that duty and that breach caused the injury.  She claims damages for breach of contract and negligence.  Liability and damages are in issue.
  3. [3]
    At the time, two RNs and an EEN would be rostered on for the night shift in the cardiology unit, also known as ward 9C.[2]  Two additional RNs would be rostered in the neighbouring coronary care unit (CCU) for night shifts.[3]  During the day, there would be more nurses rostered to work in both units.[4]  Although the two units were separate wards, they shared a medication room and the nurses in each unit regularly interacted with and, if necessary, helped the nurses on duty in the other unit.  Indeed, the heart rates and other vital signs of some of the patients in ward 9C were monitored on equipment present in the CCU rather than in ward 9C itself.
  4. [4]
    The defendants deny that Ms Robertson was badgered, bullied or mobbed.  They also deny that they owed her a duty of care to take reasonable steps to avoid causing her psychiatric injury and that, if they did owe such a duty, they breached it.  They also contend that any breach of any duty owed did not cause Ms Robertson a psychiatric injury.  They admit that Ms Robertson has a minor adjustment disorder, but say it was not caused by any breach of duty by them.  They contend that any psychiatric injury that may have occurred was, at most, a consequence of their reasonable and proper actions and interventions that were the result of genuine and reasonable concerns as to Ms Robertson’s competence to perform the tasks required of her as an EEN.  In particular, they contend that they had genuine concern for patient safety as a result of Ms Robertson’s inability to display the necessary degrees of competence to administer drugs and otherwise to attend to patient care needs at a reasonable standard.[5]
  5. [5]
    The principal issues that arise are whether Ms Robertson was treated in the manner she alleges and, if so, whether it caused her a psychiatric injury; whether the defendants had genuine and reasonable concerns about her competence as an EEN; whether the defendants at any stage knew enough facts about the plaintiff’s concerns and condition to give rise to a duty of care described above; whether they breached any duty and, if they did, whether that breach caused Ms Robertson’s injury and loss.
  6. [6]
    At the time, the Gold Coast Hospital was operated by a department of the State, which is why both entities are defendants.  However, the hospital was treated almost as a separate entity and it was admitted that one or other entity employed Ms Robertson.  I shall treat them equally (as the parties have done) for the purposes of this proceeding. Even though, at times, I will refer only to the hospital, I intend by those references to refer to both defendants.

The witnesses and other evidence

  1. [7]
    As will be seen from my recounting of the evidence, the parties’ witnesses differed substantially in their recollections of many of the relevant incidents.  Therefore, it is necessary to consider the reliability of the witnesses’ evidence (particularly where they differed) and of the contemporaneous documents.  At this stage, I make general comments about these matters, with reference to particular witnesses and documents.  In considering the evidence I will make comments, where I consider it appropriate, about the reliability or truth of some particular witnesses or evidence.
  2. [8]
    Ms Robertson struck me as attempting honestly to recall what happened on each occasion about which she complains.  However, it became clear that her recollection of events has been considerably affected by her perception that she was victimised by other staff at the hospital.  I have been unable to reconcile a good deal of her evidence with evidence of other witnesses and some of the contemporaneous documents kept by the hospital.  In most cases where there is a conflict of evidence, I accept that of other witnesses in preference to that of Ms Robertson, principally because I consider the other evidence to be more reliable and more plausible and Ms Robertson’s evidence to be substantially coloured by her perception of events rather than being accurate recollections.
  3. [9]
    Many of the relevant events are also the subject of entries made by Ms Robertson in a diary that she intermittently kept at relevant times.[6]  It was not suggested that the entries were not, in most cases, made soon after the alleged events occurred.  Normally such contemporaneous diary entries would constitute reliable evidence of what had occurred, as contemporaneously created documents are more likely to be an accurate record than evidence given from memory years after the events.  However, as with her oral evidence, Ms Robertson’s diary entries appear to me often to have been influenced by her perceptions of events rather than what actually happened.  She had a tendency, both in her diary entries and in her oral evidence, to describe the events in a way that shone a poor light on the other participants in the events or that failed to accept that she might have made errors, or have inadequate knowledge, herself.  As will become apparent, this was particularly evident in her inability to see that the efforts that the hospital management put into her further education or re-education were for her potential benefit and to ensure the safety of patients, rather than (as she perceived) part of a programme of harassment and bullying intended to fabricate reasons to dismiss her or to encourage her to resign.
  4. [10]
    The plaintiff’s adverse perception of the actions of other nurses and staff of the hospital was demonstrated, not only by her evidence about the hospital staff who, she contends, were bullying and mobbing her, but also her evidence about other staff (even those with whom she got on or with whom she had not previously had any dealings), in so far as their statements were critical of her.  Her failure to acknowledge that there may be good reasons for the hospital and its staff to have genuine concerns about her abilities was also indicated by some of the other evidence.  For example, Ms Robertson worked at the Robina Hospital for about three months in late 2012.  She said she enjoyed working there and that she felt valued there.  However, a global assessment of her work that was undertaken toward the end of her period there concluded that she did not work at a competent level.  That was also the view of an assessment carried out at the Gold Coast Hospital in August 2012.  Ms Robertson contended, in her evidence, that the earlier assessment was conducted with a preconceived intention to assert that she was not competent, which seems entirely contrary to the facts about that assessment and the person who conducted it.  She also contended that some of the criticisms of her work arose because her conduct was affected by working with people who she thought were out to get her.  She did not feel that way while working at the Robina Hospital, yet she was still found not to be competent.
  5. [11]
    Another example concerns her work with a nurse with whom she got on well, Roberto Oraiz.  She worked as a supernumerary[7] with him on 19 April 2012.  In his feedback on her performance, he criticised some of her actions in the course of patient care.  In her evidence about those criticisms, she did not accept that she got things wrong, but contended that he was wrong in how he did things.
  6. [12]
    Mr Morton, appearing for the defendants, submitted that Ms Robertson is both paranoid and narcissistic and that, at least on one occasion in the course of her evidence, she was lying.  I do not consider that she lied at any stage during her evidence, but she has a view of others’ actions that is coloured by her perception of having been bullied out of a job and into psychiatric illness.  She feels that she was unfairly criticised and accused of poor practice, as a consequence of which she will not accept that she committed any errors, nor that others were justified in criticising her. 
  7. [13]
    The plaintiff and her counsel were particularly critical of two RNs who worked often with the plaintiff: Alicia Harvey and Michelle Codd.  In her final address and written outline of submissions, Ms Anderson (appearing for Ms Robertson) contended that Ms Harvey made up events which she reported and made up some of her evidence in court.  A prime example is that she gave evidence that Ms Robertson had drawn up 10 milligrams too much of Clexane and at least gave her the impression that she always drew up too much and that she administered the excess medicine to patients.  If that were the case, it could be dangerous to patients (although, as Ms Harvey pointed out, the dose would always be checked by another nurse before it was administered), yet Ms Harvey did not report it, even though she apparently reported that Ms Robertson had drawn up too much insulin.[8]  In fact, Ms Harvey was correct in saying that, even if Ms Robertson drew up too much of either medicine, she would not be able to administer it, as both medicines had to be checked by another nurse before being given to a patient.  Ms Harvey said that she got the impression that Ms Robertson had overdosed patients, but that was not possible unless Ms Robertson also failed to get the medicines checked by another nurse.  Therefore, Ms Harvey’s evidence in this respect (or her “impression” that Ms Robertson might overdose a patient) was an exaggeration. 
  8. [14]
    Ms Anderson submitted that Ms Harvey was therefore lying about that and her evidence generally was unreliable.  I do not accept that submission.  Ms Harvey did come across to me as disliking Ms Robertson but, as a result of a particular incident, she had concerns about Ms Robertson’s ability to see sufficiently well to measure – or to check another nurse’s measurement of – the correct doses of some medicines.
  9. [15]
    Ms Anderson also appeared to contend that both Ms Harvey and Ms Codd were lying in giving evidence that Ms Harvey was not working on the night shift on 1 April 2011, which Ms Robertson says was the case.  In essence, her submission amounts to an assertion that they conspired together to agree to give that evidence, presumably in order to show Ms Robertson as having an incorrect recollection of events that night.
  10. [16]
    Ms Harvey and Ms Codd appeared to me to be very supportive and close friends of each other.  They also appeared to me to dislike Ms Robertson and to consider her to be an incompetent nurse.  I consider it likely that their dislike stemmed mostly from their view of her competence as a nurse, but that view and their dislike fed off each other.  Ms Harvey, in particular, seemed to me to be prone to exaggerate Ms Robertson’s poor qualities (as she saw them).
  11. [17]
    The effect of these conclusions about those two witnesses is that I treat their evidence with some circumspection.  However, I do not consider that either Ms Harvey or Ms Codd was lying.  In many respects their evidence about Ms Robertson’s apparent incompetence, especially concerning medicines, but also her general patient awareness, is similar to – and therefore partly corroborated by – the evidence of other nurses who worked with Ms Robertson:  not only on night shifts but also when she worked day shifts under the supervision of a number of different nurses.  Therefore, even allowing for some exaggeration by Ms Harvey and, perhaps, by Ms Codd, there is other evidence to support some of their views.
  12. [18]
    I found Mr McPhee to be honest and his evidence reliable.  He was clear in distinguishing between what he remembered and what he did not.  He spent quite some time with Ms Robertson in 2012 and, both from his own observations and from reports of the observations of others, he had and maintained concerns about Ms Robertson’s competence.  As clinical nurse educator, he was well qualified to form those views and, as will become apparent, I consider that he had reasonable grounds to form them.  He also made persistent attempts to provide Ms Robertson the further education and support that she appeared to need to improve her competence and her self-confidence.  His ultimate view was that his attempts did not bear sufficient fruit.
  13. [19]
    Ms Naylor remembered very little about the events themselves.  Like Ms Harvey, she appeared to me to be a person who would be forthright in expressing her views and she could be brusque in doing so.  I consider her to have been honest and reliable in giving her evidence and that her contemporaneous notes accurately summarised the events that they recorded.
  14. [20]
    I have no reason to doubt that the other witnesses gave honest evidence of their recollections of events.
  15. [21]
    I shall make comments about particular aspects of the witnesses’ evidence in the course of considering the respective incidents about which Ms Robertson complains.

The incidents

  1. [22]
    Ms Robertson’s claim was principally based on a number of incidents that she alleged occurred during the course of her employment.  Particulars of those incidents were given, although her case was advanced on the basis that the incidents were not exhaustive examples of the hospital’s alleged conduct.  Before and during the trial, I made it clear that she would not be permitted to conduct her claim on the basis of any incidents or other facts not expressly pleaded[9] as either having given rise to the relevant duty of care, or constituting a breach of such a duty, or demonstrating that a breach of duty caused her psychiatric condition.[10]
  2. [23]
    The following is a summary of the evidence and my findings in relation to each of the alleged incidents, together with other relevant events that were raised in the evidence.

1 April 2011 – patient death

  1. [24]
    Ms Robertson claims that, on 1 April 2011, she was working a night shift with two registered nurses, who she said were Alicia Harvey and Michelle Codd.  During that shift, a patient on the ward died and Ms Robertson said she was not offered any comfort, although Ms Codd was offered comfort in her presence.[11]
  2. [25]
    Ms Robertson gave evidence that she believed she was alone on the ward when a nurse from the CCU alerted her to the fact that a patient had died.[12]  She said she was not qualified to be alone on the ward and the RNs had not told her they were leaving the ward, as would normally be done.[13] 
  3. [26]
    Ms Robertson said Ms Harvey and Ms Codd returned to the ward and, on learning that the patient had died, comforted each other.[14]   Ms Robertson said she was very upset at the time, as she had assisted the patient to bed shortly before she died, she was not initially aware of the patient’s death and she realised that she had been alone when the patient had died.  She said she felt left out, as she was not offered any comfort, while the other nurses comforted each other.[15]
  4. [27]
    The defendants submit that the fact that a CCU nurse was monitoring the patient demonstrates that Ms Robertson was not alone, even if the CCU nurse who noticed that the patient had died (Ms Brunton) was not in ward 9C at the time.[16]  In fact, Ms Robertson gave evidence that if she needed the assistance of an RN, she need only call out.[17]  It is not disputed that Ms Codd was on a break at the time that the patient died and she returned to find that that had occurred.  There was no evidence about where the other RN on duty on the ward was at the time.
  5. [28]
    The patient was under the care of Ms Codd that night.[18]  Ms Brunton was on duty in the adjacent CCU, from where the patient was being monitored.  Ms Robertson gave evidence that she had assisted this patient to return from the toilet to her bed.[19]  Having done that shortly before the patient died, Ms Robertson submits that she was looking after the relevant patient.[20]  I accept Ms Robertson’s evidence that she assisted the patient shortly before the patient died, but it does not mean that Ms Robertson had responsibility for caring for the patient.
  6. [29]
    Ms Codd was then a relatively inexperienced nurse who had presumably never before experienced a patient under her care dying.[21]  When she found out that one of her patients had died, she was distraught and questioned whether she was somehow responsible for the patient’s death.[22]  Ms Brunton and the other nurse on duty comforted her and attempted to allay her concerns in that respect. 
  7. [30]
    It is not surprising that the attention of the nurses present in the ward was directed toward comforting the young nurse who was responsible for the patient’s care during that shift, particularly given her inexperience and obvious distress.  None of the nurses knew that Ms Robertson had recently assisted the patient and had, in fact, put her to bed.  Had they thought about it, they may have thought that Ms Robertson was involved in the patient’s care indirectly, as a nurse on the ward, but apparently she did not display any obvious signs of distress that might have shown that she felt that she too needed some comforting.  The other nurses were, in my view, justified in concentrating their efforts on comforting the young nurse who had not had such an experience before.  There was no intentional exclusion of Ms Robertson in that process.
  8. [31]
    Following the patient’s death, Ms Robertson said she was stopped from telling the CTC[23] what had happened when Ms Codd told Ms Robertson to go on her break.[24]  Ms Robertson said she was “mortified” about this, as she did not believe the RNs could accurately recount what had happened, as they had not been there, and she was not asked about what had happened to the patient.[25]  The defendants submit there was no logical reason why Ms Codd would have prevented Ms Robertson from talking to the CTC, particularly given that Ms Codd had a rational explanation for not having been present at the time.[26]
  9. [32]
    One issue raised by the evidence is whether Ms Harvey was in fact an RN on duty that evening.  Ms Robertson said that the nurses on duty were Ms Codd and Ms Harvey.  When the defendants’ counsel put to her that Ms Harvey did not work that shift, she said, “That’s what my mind tells me, she worked”.  When Mr Morton put to her that a pool nurse called Dana worked the shift with Ms Codd, she denied that, saying, “No.  …  Definitely not.”[27]  Ms Harvey and Ms Codd both said Ms Harvey was not on duty that evening.  Both gave evidence that Ms Codd later rang Ms Harvey to tell her what had happened and to discuss it.[28]  The hospital did not produce any shift records to prove who was or was not on duty that evening, nor was the nurse Dana called to give evidence, but Ms Anderson did not request that I infer that those records or the nurse’s evidence would not have assisted its defence.  I draw no such inference. 
  10. [33]
    Ms Robertson’s diary note does not record who were the RNs on duty with her in ward 9C that night.  Her diary note records that, when a Code Blue was called -

the other RNs appeared and just wrapped their arms about Sarah,[29] ‘oh you poor thing, are you alright Sarah’ ‘what a terrible thing for you.’  I just stood there & felt like I didn’t exist, like I wasn’t there.  My heart was in my boots.  I felt like I was excluded, not part of a team.

  1. [34]
    The defendants submit that Ms Robertson did not know, or at least cannot accurately recall, which RN was working and therefore would not have known where that RN was at the time of the incident.[30]  That seems to be supported by Ms Robertson’s diary entry, in which she wrote, “I was in 9C & not sure where the other 2 RNs were @ this time.”
  2. [35]
    I accept the evidence of Ms Codd and Ms Harvey that Ms Harvey was not on duty that evening.  Ms Robertson’s recollection that she was is mistaken.  However, I also accept that, when Ms Codd returned she, Ms Brunton and other nurses were huddled together comforting Ms Codd, while Ms Robertson stood to the side.  Nobody asked Ms Robertson whether she was alright, which should have occurred.[31]  But nobody knew that she had had the last interaction with the deceased patient and, in the circumstances, it is not an oversight that could constitute bullying, badgering or mobbing of Ms Robertson.
  3. [36]
    I accept that one of the nurses may have suggested that Ms Robertson go on her break, but I doubt that it was Ms Codd, given her distraught state.  Nor do I accept that it was a deliberate tactic to prevent Ms Robertson telling her version of events or otherwise to exclude her.  Rather, once things calmed down, one of the nurses probably thought it appropriate for Ms Robertson to take her break.  Ms Robertson’s view is clouded by her feelings now toward her colleagues on the ward and the hospital generally.
  4. [37]
    Ms Robertson also seemed to say that her realisation, after the patient’s death, that she had been alone on the ward at the time made it harder for her to cope with the death.[32]  She maintained that it was psychological abuse for the RNs on the shift to leave her alone on the ward.[33]  I do not accept that she was left entirely alone.  The fact that she assisted the patient to return from the toilet indicates that an RN may not have been on the floor of the ward itself, or may have been otherwise engaged at the nurses’ station or in the adjoining medication room, but the RNs would have discussed that Ms Codd would go on her break, so the other RN would have overall responsibility for the patients on the ward during Ms Codd’s break.  It is possible that the other RN was talking to the nurses in the CCU, but that does not mean she was not generally aware of what was happening in the ward, nor does it mean that Ms Robertson was alone.  The fact that the other RN and Ms Brunton from the CCU appeared very quickly when the patient’s monitor indicated that she had died indicates that the other RN on duty in ward 9C was close by.
  5. [38]
    Having regard to all the evidence about this incident, I find that:
  1. (a)
    Ms Robertson was on ward 9C at the time the patient died and assisted the patient from the toilet to her bed shortly before the patient died;
  2. (b)
    Ms Codd was on her break at the time;
  3. (c)
    the other RN on duty was somewhere in the vicinity of the ward (perhaps at the nurses’ station or in the medication room);
  4. (d)
    the other RN was not Ms Harvey;
  5. (e)
    Ms Brunton saw, on the monitor for that patient (which was in the CCU), that she had apparently died, came through to check and found that she had, and someone called a Code Blue;[34]
  6. (f)
    Ms Codd returned from her break to find that the Code Blue she had just heard concerned one of her patients and was very upset by it, having never before experienced one of her patients dying on her shift;
  7. (g)
    Ms Brunton and the other nurse on duty comforted Ms Codd;
  8. (h)
    after things had calmed down, one of the RNs suggested that Ms Robertson take her break;
  9. (i)
    nobody deliberately excluded Ms Robertson although, understandably, she felt upset and somewhat excluded, but that was simply a circumstance that occurred when the nurses present concentrated on comforting the young nurse whose patient had died and in circumstances where nobody else knew that Ms Robertson had had the last interaction with the patient and might herself be upset;
  10. (j)
    nevertheless, it was upsetting for Ms Robertson, as she felt some connection to the patient, and it was also upsetting to her that she felt excluded.
  1. [39]
    I do not accept that the nurses present on this occasion deliberately excluded Ms Robertson.  Therefore, I do not accept that it was an instance of bullying, badgering or mobbing her.  Ms Robertson does not claim that this event alone (nor any one event) caused her injury, but rather it is one of many instances of bullying, badgering or mobbing her over the course of 2011 and 2012 that contributed to, and together caused, her injury.[35]  But, as I have found that this event does not constitute bullying, badgering or mobbing in the circumstances, I shall exclude it as one of a number of events that together may constitute such behaviour.

6 April 2011 – accusation of incompetence with insulin

  1. [40]
    Ms Robertson claims that, on 6 April 2011, she was abused and accused of incompetence by Ms Harvey.[36] 
  2. [41]
    Ms Robertson gave evidence to the effect that, while she was being assessed by Ms Harvey,[37] she drew up, in one syringe, 25 units of insulin for a patient who had been prescribed 24 units.  She intended to disperse the extra unit but, before she could, Ms Harvey stopped her, asked what she was doing and said, “Do you need your eyes tested?”  Ms Robertson said Ms Harvey asked if she was incompetent, before snatching the syringe from Ms Robertson’s hand and disposing of it.[38] 
  3. [42]
    Ms Robertson said she was too shaken to respond to Ms Harvey and felt uneasy and frightened.[39]  She said she did not discuss this incident with anyone.[40]  She said the incident made her feel “shattered” and that she had no one she could talk to for support.[41]
  4. [43]
    The defendants submit that an inference should be drawn, from the fact that Ms Robertson did not discuss the incident with Linda Fraser in a meeting shortly after it allegedly occurred, that Ms Harvey did not behave in this way.[42]  Ms Harvey denied snatching the syringe and calling Ms Robertson incompetent.[43]  Ms Harvey’s evidence was that she would have suggested Ms Robertson have her vision checked, as it was important that she be able to dispense and to check medications.[44] 
  5. [44]
    Ms Robertson made a note that appears to relate to this incident, in her diary on 6 April 2011.[45]  She first recorded she was on the afternoon shift that day, Ms Harvey was her educator for the shift and, at the end of the shift, Ms Harvey told her that she had done well.  She went on to record that two types of insulin had to be given, with a total of 24 units.  Ms Harvey told her to draw them up in one syringe.
  6. [45]
    The diary note continued:

I need 24U – I drew 25U.  So the 25U was thrown out & Alisha drew up the 24U.  Alisha said ‘Do you need your eyes tested.’ Me ‘I’ve had them tested.’ Alisha ‘Maybe your incompident.’

  1. [46]
    Ms Harvey did not make a file note of the incident.  However, on 5 April 2011 she reported to the Nurse Unit Manager (NUM), Linda Fraser, that the previous evening she had worked with Ms Robertson who, among other things,

did not know how to read an insulin chart, did not know how to give the insulin correctly.  Drew up the wrong amount (double the amount).[46]

  1. [47]
    Ms Fraser went on to record that Ms Harvey had also told her that Ms Robertson did not know how to administer the drug Clexane and had demonstrated other serious misunderstandings of relatively standard procedures.
  2. [48]
    The hospital submitted that the incident about which Ms Robertson complains must have occurred before 5 April, rather than on 6 April, and that Ms Harvey’s record of the event, as recorded by Ms Fraser, was more likely correct than Ms Robertson’s diary note and recollection.  Given the significant amount of time that has passed since this incident, the defendants submit that Ms Fraser’s file note should be considered reliable evidence of what occurred.[47]  Furthermore, the defendants submit that Ms Harvey had genuine and reasonable concerns as to Ms Robertson’s ability to administer correct dosages of medications, as Ms Fraser’s file note records that Ms Harvey also relayed to her that Ms Robertson had drawn up an incorrect amount of the drug Clexane (a blood thinner).[48]
  3. [49]
    I am satisfied that, on at least one occasion, Ms Harvey asked Ms Robertson if she needed glasses, or said that she needed to get her eyes checked, after Ms Robertson had drawn up an incorrect amount of a medicine.  Whether that medicine was insulin or Clexane (or indeed, both) does not assist in determining whether or when the incident occurred as alleged.  Indeed, given the dates of the two notes and that Ms Fraser’s note records other concerns relayed by Ms Harvey, not just insulin, I consider there to be a real possibility that two incidents occurred.  First, on the night of 4 to 5 April, the incidents recorded by Ms Fraser and then, on the afternoon shift on 6 April, the incident recorded by Ms Robertson.  It would not be surprising if, having been concerned enough about Ms Robertson’s competence to administer insulin and Clexane on the night before to have reported her concerns to Ms Fraser on 5 April, when she was supervising Ms Robertson on 6 April Ms Harvey might have become concerned that Ms Robertson had again drawn up an incorrect amount of insulin.  Also, as it was a combined dose of two types of insulin, having drawn up too much (even if only one unit in total), it is logical that one could not just dispense with one unit of the combined medicines, as there might still be incorrect amounts of either or both medicines. 
  4. [50]
    During cross-examination of Ms Harvey, Ms Anderson suggested that the hospital required that both insulin and Clexane be checked by two nurses before being given to the patient, to ensure that the dosage was correct.[49]  It appears that Ms Anderson’s proposition was that it should not matter if Ms Robertson had made a mistake, as another nurse would identify that mistake.  The defendants submit that this ignores the fact that another nurse may also make a mistake and the whole purpose of requiring that a second nurse check medicine is to ensure that a correct amount is given.  If the checking nurse had poor eyesight, it was open to her or him not to notice that the nurse drawing up the medicine had made a mistake.  It was therefore essential that all nurses have sufficiently good eyesight to see the gradations on syringes and medicine bottles clearly.[50]  There was evidence that the gradations on Clexane and other medicine bottles were small and on some insulin bottles even smaller.  I agree with the defendants’ submission.  If Ms Robertson was unable to see sufficiently well both to draw up and to check the correct dosages, this would undermine the system of double-checking and put patients at risk.
  5. [51]
    I find that there were two incidents and that, on 6 April, Ms Harvey did say to Ms Robertson that she either needed her eyes checked or she was incompetent.  Ms Harvey struck me, when giving evidence, as a forthright person who would not hesitate to express her views about (and to) others whom she considered to be incompetent.  By 5 April 2011, she already had concerns about Ms Robertson’s competence with medicines and, on 6 April, she became frustrated or angered that Ms Robertson again (to her mind) demonstrated an incorrect understanding of how to deal with medicines.  Ms Harvey did not snatch the syringe away from Ms Robertson, as Ms Robertson alleged and said in her evidence, but she did take it and dispose of it and then herself draw up the correct amount.  (Ms Robertson’s evidence of “snatching” is her overly sensitive later interpretation of the event; she did not record it that way in her diary.)  These incidents led Ms Harvey to form the genuine view that, in the absence of any difficulties with her eyesight (which Ms Robertson had denied), Ms Robertson was not sufficiently competent to administer medicines.  Ms Fraser had been sufficiently concerned, after receiving the phone call from Ms Harvey the previous day, to appoint Ms Harvey to educate Ms Robertson.  That led to Ms Harvey supervising Ms Robertson on the day shift on 6 April and then to a meeting between Ms Fraser and Ms Robertson on 7 April 2011.
  6. [52]
    I do not consider that Ms Harvey made up the events, nor that she did not genuinely hold the concerns, that she relayed to Ms Fraser.  As she held those concerns, it was entirely proper for her to report them to Ms Fraser, in the interests of patient safety and proper management of the hospital’s professional staff.  Therefore it was not mobbing or otherwise improper for Ms Harvey to report to Ms Fraser the events as she recalled them and her concerns.
  7. [53]
    Ms Harvey was justified in taking away the insulin syringe when Ms Robertson drew up too much in total.  She was justified in asking Ms Robertson if she needed her eyes checked.  However, it was not appropriate that she put to Ms Robertson that, if her eyesight was alright, then maybe she was incompetent.  It seems that, by that time, Ms Harvey had real concerns about Ms Robertson’s competence, but it was still not appropriate for her to say such a thing to Ms Robertson.
  8. [54]
    To make such an assertion to Ms Robertson could amount to bullying or badgering her.  However, it is appropriate to consider it in the context of the other events about which Ms Robertson complains in order to determine whether, together, they demonstrate a pattern of such behaviour by Ms Harvey and others.  I shall reconsider the event in that context later.

7 April 2011 – plans to retire

  1. [55]
    Ms Robertson claims that, on 5 April 2011, during a yearly performance improvement plan meeting, NUM Linda Fraser told her that people had been complaining about her, asked her when she expected to retire and accused her of having insufficient knowledge of medications.[51]
  2. [56]
    There was initially some confusion about the date of this meeting, however I find that it actually occurred on 7 April 2011, as Ms Anderson conceded during the trial[52] and in her written submissions.[53] 
  3. [57]
    Ms Robertson gave evidence that, at a professional improvement plan meeting with Ms Fraser, Ms Fraser said, “They come and tell me everything, Maureen. They tell me everything,” but did not elaborate as to what she had been told.[54]  Ms Robertson said that Ms Fraser also asked when she expected to retire.[55]  Ms Robertson said Ms Fraser also discussed upskilling and further education, in which Ms Robertson was happy to participate.[56]
  4. [58]
    The meeting is recorded, in a fashion, in a performance appraisal and development plan completed by Ms Fraser and acknowledged and apparently agreed to by Ms Robertson.[57]  In her evidence, Ms Fraser[58] said that she did not recall the meeting, although she had completed the plan.[59]
  5. [59]
    Ms Robertson said that the content of Ms Fraser’s note of her conversation with Ms Harvey on 5 April was not discussed and, in particular, she was not told that Ms Harvey thought it would be unsafe for her to administer medications.[60]  I accept that it was likely that Ms Fraser did not mention Ms Harvey’s name, as it is unlikely that a NUM such as Ms Fraser would identify the person or persons with whom Ms Robertson worked and who had expressed concerns about Ms Robertson’s performance. 
  6. [60]
    Ms Robertson said that, during the meeting, while Ms Fraser took her through the performance appraisal and development plan, she did not raise any concerns about Ms Robertson’s performance.[61]  I find that evidence entirely implausible and I reject it.  Ms Fraser had received the telephone call from Ms Harvey two days before the meeting, in which Ms Harvey had outlined serious concerns she had with Ms Robertson’s performance and the reasons for them.[62]  Ms Fraser noted in the plan that Ms Robertson met some requirements of her position, but not all, and noted, “Maureen requires some further education with medication awareness, rhythm interpretation and general clinical skills.” That note clearly stems from her conversation with Ms Harvey.  Each of those concerns was specifically addressed in the plan by providing for Ms Robertson to undergo further education and to work under supervision.  Furthermore, as Ms Fraser said in her evidence, “If that was what I’d planned there must have been recognised gaps there” (that is, in Ms Robertson’s performance).[63]  She said that it was her practice to discuss with the staff member concerned why the matters in the plan were recorded there.[64]  Finally, in Ms Robertson’s own diary note of the meeting, she recorded that Ms Fraser had told her that her knowledge of medication was not good enough.  She wrote, “I know this …”.[65]
  7. [61]
    Ms Fraser did not remember saying the things about which Ms Robertson complains.[66]  She did not think she would have asked Ms Robertson when she planned to retire, although she would have asked her whether she enjoyed working in the cardiology unit.  Indeed, under the heading “career aspirations” she recorded that Ms Robertson was “happy in cardiology – aim is to keep current.”  Ms Robertson recorded, in her diary, that Ms Fraser talked about how Ms Robertson had been sick and had an operation the previous year, but she was now well.
  8. [62]
    I find that, during this meeting, Ms Fraser explained to Ms Robertson how she had come to know about her performance, by saying that people came to her with concerns or complaints about anyone.  I also find that, in the context of discussing Ms Robertson’s past illness and her career aspirations, Ms Fraser did ask when Ms Robertson thought she might retire.  (In this respect, even Ms Robertson’s note linked the question whether she liked working in the cardiology unit with the question when she intended to retire.)  But I do not consider that question, nor the conversation as a whole, to amount to bullying, badgering or mobbing of Ms Robertson.  It was appropriate to link those two questions in the context of discussing her past illness, her job satisfaction and her career aspirations.  Ms Robertson’s note is selective in recording the conversation and, in my view, she has taken the comments out of context in deciding that they are worthy of complaint.  It was also appropriate to raise doubts about the adequacy of Ms Robertson’s knowledge of medications, particularly in the context of a performance appraisal and formulating a career development plan.
  9. [63]
    Ms Robertson said she felt uneasy after this meeting, as she thought her colleagues were gossiping about her.[67]  That may have been her reaction at the time but, if so, it was unusual and unjustified given that, although some nurses had clearly told Ms Fraser about their concerns about Ms Robertson’s performance, that would not ordinarily be by way of gossip but out of a duty in all nurses to ensure the safety of the hospital’s patients.  Indeed, Ms Fraser appears to have tried to reassure her by explaining how she came to find out about other nurses’ concerns – it was her duty and responsibility to be told about concerns and complaints, so she could deal with them as she considered appropriate.  This was part of a normal process.  In this case, it led to the hospital looking to assist Ms Robertson in her aspirations to “keep current” and to improve her skills.  It was not bullying, badgering or mobbing, as she now contends.

19 May 2011 – “just the changes”

  1. [64]
    Ms Robertson claims that, on 19 May 2011, she was “prevented from giving a full handover of staff”.[68]  She claims that, after a nightshift, RN Lee Bagnall did not allow her to give a full handover presentation, cutting her off by stating, “Just the changes”. Ms Robertson pleads that that conduct negated her existence on the shift and took away any credibility of the information she had to pass on.[69]
  2. [65]
    In her evidence Ms Robertson said that, on 19 May 2011, as she was giving the morning handover to at least six nurses, Ms Bagnall yelled out, “Only the updates, Maureen.  Only the updates.”[70]  Ms Robertson said she was quite taken aback, as it was her job to give a full handover and Ms Bagnall was stopping her from doing so.[71]  The normal process, she said, was that the nurses coming on duty listen to what you have to say about your patients.[72]
  3. [66]
    Ms Robertson said the incident was demoralising, humiliating and made her feel terrible.[73]
  4. [67]
    In her cross-examination, Mr Morton put to Ms Robertson that it was common that a nurse who had worked an afternoon shift one day (finishing at about 9.00pm) would work the morning shift the next day (starting at about 7.00am).  Ms Robertson agreed with that proposition but denied that, at a handover to a morning shift involving a nurse in that situation, the nurse might ask for a handover involving only the changes since the previous evening.[74]  When asked how it would be bullying, harassment or mobbing for such a nurse to ask to hear only the changes, she said it was probably in the manner she said it and also it was not the only time.[75]
  5. [68]
    Ms Robertson’s only note of the incident in her diary for the day was, “when I gave hand over, Lee Bagnall just the changes Maureen.  So I give just the changes.”[76]  Ms Anderson did not point me to any other entries in which a similar event was recorded.
  6. [69]
    Ms Bagnall was unable to be called to give evidence, due to a medical condition.[77]
  7. [70]
    I accept that Ms Bagnall asked Ms Robertson only to give her an update, or just the changes (from the previous evening), about the patients.  I am not satisfied that Ms Bagnall asked for just the changes in a tone that was demeaning or belittling of Ms Robertson.  I infer that Ms Bagnall had been on duty the previous evening and therefore did not consider that she needed to be told everything about the patients who had been on the ward that evening.  Although Ms Robertson considered that it was her duty to give a full handover of her patients at every change of shift, I see nothing wrong in an experienced nurse, coming onto a morning shift after having worked on the ward until only 10 hours or so earlier, asking that a handover of patients for whom she was to be responsible on her shift, be limited to the changes or an update.  It does not constitute badgering or bullying.  Although I have found that there was nothing belittling or demeaning in Ms Bagnall’s tone, it would not be surprising that if (as Ms Robertson said in her cross-examination, although it has not been pleaded) Ms Bagnall had asked only for the changes on numerous earlier occasions, she may have sounded irritated in the face of a full handover, when Ms Robertson must have known that Ms Bagnall consistently only wanted to know about changes to her patients since her last, very recent, shift.
  8. [71]
    Ms Bagnall’s conduct was not bullying, badgering or mobbing of Ms Robertson.

11 August 2011 – infusion pump and alleged abuse about observations

  1. [72]
    Ms Robertson claims that, on 11 August 2011, she was abused and threatened by RN Fiona Naylor.[78]  The particulars of the allegation allege that a number of events took place earlier in the shift and in the lead up to the particular incident. 

The lead-up events

  1. [73]
    Ms Robertson gave evidence about the earlier events, as well as about the incident itself.  The RNs on the shift that night – Amanda Daly and Fiona Naylor[79] – also gave evidence about those events that was, in some respects, completely at odds with that of Ms Robertson.  Those events are not directly relevant to the incident on that shift about which Ms Robertson complains, but they become relevant to later incidents, in which Ms Robertson alleges Ms Naylor harked back to events that occurred on this shift.  It is therefore convenient to record the evidence about them at this juncture.  However, it is not necessary for me to decide between the conflicting evidence and to find what actually happened.
  2. [74]
    Ms Robertson recalled that, some time into the shift, while Ms Daly was on the ward with her but Ms Naylor had not yet started, she heard an infusion pump alarm which indicated that the pump had stopped.[80]  She said that, as an EEN, she was permitted to stop the alarm from sounding before telling an RN that there was an issue.[81]  Ms Robertson stopped the pump alarm and told Ms Daly but, she said, Ms Daly did nothing to acknowledge that she had heard her.  Ms Robertson then moved on and attended to other tasks.[82] 
  3. [75]
    Ms Robertson said that some time later, at about 11.00pm, which was after Ms Naylor had started her shift, she heard the alarm sound again, so she turned off the alarm and told Ms Daly and Ms Naylor about the issue.  Again, Ms Robertson said she then went and did other duties.[83]
  4. [76]
    Ms Robertson said that, at about 1.00am, Ms Naylor came to realise that the pump was not working.[84]
  5. [77]
    Ms Daly’s evidence was diametrically opposed to that of Ms Robertson.  She said she heard an infusion pump alarm, but it stopped while Ms Robertson was in the patient’s bay.  Ms Daly went to check it and found that it had been paused, so she restarted it.  She said she spoke to Fiona Naylor about it when she came on shift, because it was out of Ms Robertson’s scope of practice to pause an infusion pump.[85] Ms Daly said she did not recall Ms Robertson telling her, or telling her and Ms Naylor, that an infusion pump had alarmed.[86]  She said that there was no fluid on the floor when she restarted the pump.[87]
  6. [78]
    Ms Naylor’s evidence was also inconsistent with that of Ms Robertson.  She said that she found that the infusion pump had stopped and, as a consequence, there was fluid on the floor.  She had no recollection of Ms Robertson telling her and Ms Daly that an infusion pump alarm had sounded.  When she discovered that the pump had stopped, she put in a new line.[88]
  7. [79]
    As I have said, I do not need to reconcile the differences in these respective recollections of the events concerning an infusion pump.  They are simply background to later evidence about whether it was raised at later meetings.

The particular alleged conduct

  1. [80]
    I turn now to the particular complaint made by Ms Robertson about Ms Naylor’s behaviour on this shift.  Whether or not the earlier events happened as Ms Robertson related them, by the time of the incident Ms Robertson appears to have been frustrated, at the least, with what she saw as the two RNs having spent the evening gossiping.[89]  Nevertheless, she attempted simply to get on with her job of carrying out the duties of an EEN.
  2. [81]
    Ms Robertson said that, shortly before 2.00am, Ms Daly asked her if she would do Ms Daly’s 2.00am patient observations.  Ms Robertson got up to get the necessary equipment to do that, when Ms Naylor asked if Ms Robertson would do her observations too.  Ms Robertson turned to Ms Naylor and responded, “Can’t you do your own?”  In response, Ms Naylor flung herself out of her chair, threw her hands on her hips and said, “How dare you speak to me like that?  I am your superior.  You will respect me.  I’m going to take this to Linda.[90]  Better still, I’m going to take this to Jed Williams,”[91] to which Ms Robertson responded, “Let’s go then.” Ms Robertson then carried on to do both Ms Daly’s and Ms Naylor’s observations.[92]
  3. [82]
    Ms Daly’s evidence about the incident was that she and Ms Naylor were discussing patient care plans while Ms Robertson was sitting at another computer at the nurses’ station.  Ms Naylor turned around to Ms Robertson and asked her to do the observations in the men’s bay for the RNs.  Ms Robertson said, “No, why don’t you?”  Ms Naylor said, “Excuse me, what did you say?” and then Ms Robertson went to do the observations.  Ms Daly said that, after Ms Robertson had completed the observations, Ms Naylor asked her to go to the medication room.  Ms Daly overheard a conversation between them in which Ms Naylor asked Ms Robertson why she had spoken to her in such a manner and Ms Robertson said she did not see the reason why she had to do the observations when the RNs were there and that was why she had spoken to her like that.  Ms Daly said that the tone was harsh from both women; they both appeared to be upset with each other.[93]  She did not recall hearing Ms Naylor suggest that the matter be taken up with the NUM or Professor Williams.[94]
  4. [83]
    Ms Naylor said that she and Ms Daly were sitting together reviewing patient notes, when she asked Ms Robertson to do the patient observations.  Ms Robertson responded by asking her to do her own observations.  Ms Naylor could recall being shocked at the tone in which Ms Robertson spoke to her, but she could not recall getting out of her chair.  She denied saying, “I’m your superior and you will respect me.”  She recalled having a conversation with Ms Robertson later, but she could not recall what was said.  She did not recall saying that she would take it up with Ms Fraser or Professor Williams and she could not recall being angry.[95]
  5. [84]
    In her examination in chief, Ms Robertson said she did not feel that she spoke to Ms Naylor inappropriately.[96]  In her cross-examination, she agreed that it was not unusual for an RN to ask an EEN to do patient observations.[97]  She disagreed that her response was insubordinate or rude[98] and she agreed that it would not be surprising that, if an EEN spoke to the senior clinical nurse on the ward in that manner, it might cause some friction, as it did on this occasion.[99]  In re-examination, she said she did not think it was rude because she had to stand up for herself, as the RNs had been chatting all night while Ms Robertson had not had a break.[100]
  6. [85]
    It is clear that, when Ms Naylor asked Ms Robertson to do the patient observations, Ms Robertson responded, in a somewhat harsh tone, “Can’t you do your own?” or something similar.  That led Ms Naylor to have words with Ms Robertson about the attitude she had displayed and their discussion, although short, was heated.
  7. [86]
    It is not surprising that the discussion became heated.  However frustrated or tired Ms Robertson may have felt, it was entirely inappropriate for her to have responded to Ms Naylor’s request in the manner she did.  It may have been an unthinking reaction by her, but it was not surprising that Ms Naylor was unhappy with the reaction.  Even if Ms Naylor became heated and proposed that the incident be reported to Ms Fraser or Professor Williams, that was not a threat and I do not consider that Ms Naylor’s reaction or words constituted abuse of Ms Robertson.  Still less did they constitute bullying, badgering or mobbing, either alone or as part of a course of conduct.

5 November 2011 – ST elevation

  1. [87]
    Ms Robertson claims that, on 5 November 2011, she was humiliated in front of staff by Alicia Harvey.[101]  In the particulars of that allegation, it was alleged that, while Ms Robertson was giving handover of a patient with ST elevation to a morning shift, Ms Harvey said, in a sarcastic tone, “You can’t have worked that out on your own.”
  2. [88]
    Ms Robertson’s evidence about the incident was that, while she was handing over the patient, she spoke about a rhythm strip of a patient’s heart rate, when Ms Harvey yelled out in a mocking tone, “You can’t have got that by yourself” or, “You can’t have got that on your own.”  At the time, there were at least six other people present. Ms Robertson said she felt humiliated.[102]
  3. [89]
    An ST elevation is a serious matter, as it can indicate that a patient is having or has had a myocardial infarct (heart attack).[103]  An EEN who sees a new ST elevation on a patient’s telemetry or ECG must inform an RN immediately.
  4. [90]
    Another RN, Simone Griffiths, was alleged to have been present on that occasion.  She did not recall Ms Harvey saying any such thing and said she could not imagine her saying that, although at handover nurses would ask questions about such matters as ST elevations.[104]  However, it is clear that she did not really recall the occasion at all.[105]
  5. [91]
    Ms Harvey said she did not recall calling out or saying anything like Ms Robertson alleged and it was not her habit to call out something like that, nor to use a sarcastic, demeaning tone.  She said that, if an ST elevation was mentioned in a handover, she might ask questions, including whether it was new or old, as a new elevation would indicate a “STEMI” (ST elevation myocardial infarction). [106]
  6. [92]
    In cross-examination, Ms Harvey agreed that, in November 2011, having first expressed concerns about Ms Robertson’s competence in April 2011, she still had concerns about her.  She denied saying the words alleged by Ms Robertson or speaking in a sarcastic tone.[107]  She went on to say that it was not an EEN’s role to assess an ST elevation; it was the responsibility of a clinical registered nurse.[108]
  7. [93]
    Ms Robertson made a note of this incident in her diary.  Relevantly, she wrote,

“I was talking about ST ↑ [and] ITW I saw on rythm strips.  Alisha said – “How did U find that out.”  I said “Lisa [and] I were looking @ the ECG.”  With that Simon just looked @ Alisha [and] I got the feeling that Simon had pick up what I felt.  Very abusive attitude – as much to say, You couldn’t have worked that out on your own.  Well I did.”[109]

  1. [94]
    Ms Robertson’s diary note, apparently made within the following day or so, is likely to be more accurate than Ms Robertson’s memory in recording what Ms Harvey said.  It does not support Ms Robertson’s evidence that Ms Harvey said, “You can’t have got that by yourself” or “You can’t have got that on your own.”  Rather, it supports the proposition that that was simply Ms Robertson’s opinion of what Ms Harvey meant by her question, “How did you find that out?”
  2. [95]
    I find that, during the handover that day, when Ms Robertson spoke about a patient’s ST elevation, Ms Harvey asked (but did not yell), “How did you find that out?”  Ms Robertson then explained that she had discussed the patient’s ECG with another RN on duty.  Ms Harvey’s question was not inappropriate, as she knew that it was necessary for a clinical registered nurse to assess ST segments on an ECG.  It was appropriate to find out how Ms Robertson came to assess the patient’s ST on that occasion.  While she could have sought the information in a more discreet manner, to ask the question openly during the handover was not bullying, badgering or mobbing.

19 December 2011 – alleged medication error

  1. [96]
    Ms Robertson claims that, at a meeting on 19 December 2011, she was accused of making a medication error without any proof.  She claims that she later received an apology, but only after someone else had been identified as having made the error.  She also claims that, at the same meeting, she was abused by Ms Naylor and falsely accused of incompetence in relation to a separate incident.[110]
  2. [97]
    In an email of 15 December 2011 to Ms Robertson,[111] Ms Naylor (who was, by then, acting NUM) asked her to attend a meeting with Ms Naylor and Mr McPhee (then the clinical nurse educator for cardiology at the hospital) on 19 December 2011.   Ms Naylor informed her that she was entitled to bring a support person to the meeting.  In her evidence, Ms Robertson said she did not know why she ought to bring a support person but she did arrange for a support person from the union to attend.[112]
  3. [98]
    On 19 December 2011, Ms Robertson attended the meeting along with union representative, Judy Koch.[113]  Ms Robertson gave evidence that, possibly on her way to this meeting, Ms Naylor said to her, “I could have hurt myself slipping on that fluid, you know.”  Ms Robertson said she did not know what Ms Naylor was talking about at first, but then realised that she was referring to the infusion pump incident and fluid from the infusion pump being on the floor.[114]  She felt that Ms Naylor was talking down to her, “rousing” on her and treating her as if she were non-existent.
  4. [99]
    Ms Robertson said that, at the meeting, Ms Naylor said she wanted to discuss a medication error that Ms Robertson had made. Ms Robertson said she didn’t think she had made such an error and asked if she could look at the medication chart.  Ms Naylor did not have the chart with her and said that they would get the chart to her.[115]  Ms Robertson said that a medication chart would have shown what medication was given, by whom and when.  She said that the chart would have been readily accessible to Ms Naylor.[116]  She was told that a PRIME incident report had been made and the medicine was a beta blocker, but not who made the allegation nor what the potential risk to a patient was.[117]  She said she was “off the planet” and “in pieces” about the allegation that she had made a medication error, but could not recall telling Ms Naylor or Mr McPhee how she felt at the time.[118] 
  5. [100]
    Ms Robertson said that Ms Naylor and Mr McPhee went on to say that there were people who were not happy with her performance, but did not specify who those people were.[119]  However, Ms Robertson could not recall whether any other specific issues or allegations were raised.[120]
  6. [101]
    During her evidence in chief, Ms Robertson was asked if she had been shown a performance improvement plan at this meeting, to which she said that she had seen the document, but not at the meeting.[121]  Ms Robertson said she told Ms Naylor and Mr McPhee that she was not feeling supported by other nursing staff, which made her feel lonely.[122]  Ms Robertson said they told her she could seek help from other nursing staff or see one of the hospital’s counsellors.[123]
  7. [102]
    The performance improvement plan[124] was signed by Ms Naylor on 19 December 2011, but where Ms Robertson’s signature ought to have been someone has written, “refused to sign”.  Ms Robertson agreed that she refused to sign the document as she was on shift at the time it was presented to her, she was feeling hassled and it appears that she was annoyed that she was being asked to sign documents while working.[125]
  8. [103]
    According to the performance improvement plan, medication administration was discussed at the meeting and Ms Robertson agreed not to dispense medications during the performance improvement period (that is, from 19 December 2011 to 19 March 2012).  Ms Robertson recalled being told at one stage, after the meeting, that she could not dispense medications and then being told she could do so with an RN supervising her.[126] 
  9. [104]
    Ms Robertson said that, following that meeting, she felt she had to be careful of everything she did and that her colleagues were distancing themselves from her, which made her feel “shattered”.[127]  Ms Robertson said she was petrified that Ms Naylor, as her line manager, had “the power to do anything”.[128]
  10. [105]
    Each of Ms Koch, Ms Naylor and Mr McPhee gave evidence about this meeting.
  11. [106]
    Ms Koch clearly did not have a good recollection of the meeting.  She said that she had made a note of the meeting, to which she referred – and appeared almost totally to rely on – in giving her evidence.[129]  But her evidence was inconsistent in some respects with other evidence that clearly demonstrates facts inconsistent with Ms Koch’s evidence.  Two facts stand out in particular.  First, she said that her note recorded (and reminded her) that she told the meeting that she had spoken to a union representative, Bob Parker, about an allegation that Ms Robertson had made a medication error and the fact that Ms Robertson had since been emailed an apology from Fiona Naylor due to the fact that, after further investigation, it was discovered that she was not the nurse at fault.[130]  In fact, Ms Naylor did not find out that another nurse had allegedly made the error until after the 19 December meeting and she only sent an apology to Ms Robertson – by email – on 30 December 2011.  Secondly, Ms Koch said that Ms Naylor told her at the meeting that an apology would be forthcoming, but it is clear that, at the time of that meeting, Ms Naylor did not know that the allegation that Ms Robertson had made an error was wrong, so she could not have said such a thing at that meeting.  Nor could Ms Koch have said, at that meeting, that the union expected an apology to be given to Ms Robertson, as Ms Koch stated in her evidence.
  12. [107]
    I do not accept that Ms Koch had any real memory of the meeting on 19 December.  I reject her evidence that her note was a contemporaneous note made soon after she left the meeting, from handwritten notes that she made during the meeting.  It was clearly made after Ms Naylor had sent Ms Robertson the emailed apology, as it refers to it having been sent.  Her evidence appears to have conflated a number of events and meetings into one meeting.  It seems that she attended three meetings altogether, as she said.  But, contrary to her recollection that two were in 2011 and one was in 2012, as became apparent from Ms Naylor’s evidence and notes the meetings were, in fact, on 19 December 2011, 6 February 2012 and 18 March 2012.  Ms Robertson complains only about the first and last of those meetings.
  13. [108]
    Mr McPhee’s evidence was that, at the meeting, the persons present discussed medication problems that Ms Robertson apparently had.  They discussed a performance improvement plan that he had drawn up shortly before presenting it to Ms Robertson, to educate her about medications generally.  He could not remember if it was discussed at the meeting, but it was given to her soon afterwards.[131]  He said he remembered discussing the matters recorded in the plan with Ms Robertson at the meeting.[132]  He said the plan was presented to Ms Robertson at the end of the meeting,[133] although later he said they discussed it at the meeting and she would have been given a copy soon afterwards.[134]
  14. [109]
    Mr McPhee denied that the meeting was called specifically to discuss a medication error alleged to have been made by Ms Robertson, although he agreed that it was raised.  Rather, the meeting was to discuss her medication administration generally.[135]  During the meeting, it was agreed that Ms Robertson was not to dispense medications thereafter without supervision.[136]
  15. [110]
    Ms Naylor said she did not have a good recollection of the meeting, but the alleged medication error was discussed.  In response to Ms Naylor raising it, Ms Robertson said she had not made such an error.  After the meeting, Ms Naylor spoke to the person who had told her about the error and that person then told her that it had not been made by Ms Robertson.  As a consequence, Ms Naylor sent to Ms Robertson an email containing an apology.[137]  By reference to her note of the meeting,[138] she appeared to recall (or to be relying on the note as recording) that medication issues generally were also discussed.  Otherwise, she had no recollection of the specific discussion at the meeting.
  16. [111]
    Having regard to these differing recollections and notes of what was discussed at the meeting of 19 December 2011, I conclude that Ms Robertson was informed by Ms Naylor and Mr McPhee that the meeting was to discuss concerns about her knowledge and administration of medicines generally.  In the course of the discussion, she was told that someone had reported that she had made a medication error.  She denied that that had occurred, asked for details and the relevant chart and was told that Ms Naylor did not have the chart there, but would get it to her.  Ms Robertson, naturally, was upset by the allegation.  But the fact that Ms Naylor did not have any documentation about the alleged error with her supports my conclusion that the meeting was not called specifically to discuss that allegation, but rather to discuss Ms Robertson’s medication knowledge generally.  The alleged error was raised as an incident of the discussion.  If the alleged error was to be the principal cause of the meeting being called, I am sure that Ms Naylor and Mr McPhee would have obtained and checked the records before the meeting.
  17. [112]
    The persons present also discussed other concerns referred to in the performance improvement plan and agreed that they would be addressed by Ms Robertson undergoing further education, principally by and under the direction of Mr McPhee, over the following three months, at which time she would be reviewed.  In the meantime she was not to administer any medications except under supervision.
  18. [113]
    I accept Ms Robertson’s and Ms Koch’s evidence that, at this meeting, Ms Naylor asserted that Ms Robertson had left fluid on the floor on the occasion when she and Ms Naylor had had words (the August 2011 incident discussed above).  I find that that was in the context where Ms Naylor was asserting that Ms Robertson had been rude to her on that occasion.  What caused Ms Naylor to raise those matters is not clear on the evidence, although it may have been when they were discussing Ms Robertson’s clinical performance generally (as an example of her stepping outside the bounds of what she was permitted to do, by stopping the infusion pump alarm).   She may also have been discussing Ms Robertson’s manner toward (or, more generally, her relationships with) other nurses.  It clearly led to some robust discussion between them at the meeting.  Having regard to Ms Robertson’s behaviour on the prior occasion, it is likely that Ms Naylor raised it as an example of her behaviour.  It may have been unnecessary for Ms Naylor to raise that occasion at this meeting, but to do so did not amount to bullying, badgering or mobbing.  Nor does the fact that Ms Naylor and Ms Robertson raised their voices to each other when discussing it.  Rather, as Ms Robertson’s line manager at the hospital, Ms Naylor was discussing with her, forcefully, concerns about her behaviour, knowledge and practice as a nurse. 
  19. [114]
    I do not consider that Ms Naylor abused Ms Robertson.  Rather, although there was some tension between them, the focus of the meeting was on more general concerns about Ms Robertson’s practice generally, and particularly her competence with medicines and how to address those concerns.  They were to be addressed by Mr McPhee organising and giving her more education and support to improve her knowledge of medicines and their administration and her clinical practice generally.
  20. [115]
    Ms Anderson submitted that the hospital did not investigate the alleged medication error before accusing Ms Robertson of it, nor did it investigate the other complaints that had been made about her before requiring her to undertake a performance improvement plan or process.  She submitted that to act in that way was “consistent with Ms Robertson’s claims of mobbing.”[139]  I disagree.  For the defendants to raise that and other complaints with Ms Robertson before taking any other steps about them was not an inappropriate course.  Indeed, she accepted that she was not fully confident in her medication knowledge and practice.  The discussion was the precursor to, or part of, an investigation of the complaints about her, which was pursued by the implementation of a performance improvement plan.  Far from constituting mobbing, the discussion at the meeting and the preparation and implementation of that plan were ways of supporting her.

6 February 2012 – ongoing concerns, lost confidence

  1. [116]
    A meeting took place on 6 February 2012.  It is not the subject of complaint, but it provides context to other relevant matters, so it is appropriate to consider the evidence about it and the events that apparently led up to it.
  2. [117]
    On about 18 January 2012, Mr McPhee wrote a memorandum to Ms Naylor,[140] noting that several staff had expressed concern about Ms Robertson’s drug administration skills.  Under the performance improvement process several drug rounds with her had been undertaken, including by Mr McPhee and Ms Naylor.[141]  Mr McPhee attached a list of areas of concern with Ms Robertson’s practice and a copy of the relevant standards of medication administration for EENs, in which he had highlighted sections where he believed she did not meet the standards.  He suggested having a follow up meeting with Ms Robertson, at which they should explore the option of not allowing Ms Robertson to administer drugs until there was a dramatic improvement in safety and drug knowledge.
  3. [118]
    On 6 February 2012, Ms Robertson was told by email that she was to tell the nurse in charge that she was unable to administer medications.[142]  Ms Robertson could not initially recall a meeting taking place on 6 February 2012.  However, she later appeared to recall some parts of it when reminded of the matters discussed.  A file note by Ms Naylor records (and I find) that a meeting took place that day, between Ms Naylor, Mr McPhee, Judy Koch and Ms Robertson.[143]  It clearly occurred before the email was sent to Ms Robertson.  At that meeting, the National Competency Standards for the Enrolled Nurse published by The Australian Nursing and Midwifery Council were discussed and Ms Robertson was given a copy.[144]  Ms Naylor’s file note refers to a discussion at a previous meeting about a medication error.[145]  Ms Robertson gave evidence indicating that this was the same medication error that was alleged at the 19 December 2011 meeting.[146]  However, she could not recall a discussion about the medication error actually taking place at the meeting on 6 February 2012.[147]  The reference to the alleged medication error in the file note shows that Ms Naylor did raise it, but I find that she did so only as a matter of history and to confirm that it was no longer an issue because the hospital accepted that Ms Robertson did not make the error. 
  4. [119]
    Ms Robertson recalled telling Ms Naylor and Mr McPhee, at this meeting, that she had lost confidence and felt her ability to administer medications was often disregarded by other staff.[148]  She also recalled being told that there was support available, such as counsellors, and that she could speak to the director of nursing.[149]  These matters were recorded in Ms Naylor’s file note.
  5. [120]
    Ms Robertson agreed that the list of concerns attached to Mr McPhee’s memorandum of 18 January 2012 was shown to her and discussed at the meeting.[150]  On 8 February 2012 she prepared a hand written response to each of the matters raised, although she could not recall if she provided it to Mr McPhee or Ms Naylor, nor whether she looked up details of the medicines referred to when writing it.[151]
  6. [121]
    Ms Robertson agreed that the result of the meeting was that Ms Robertson would cease medication administration for three months.[152]  Ms Naylor’s file note states, and Ms Robertson agreed, that further education was offered and specific education was to be discussed with her.[153]
  7. [122]
    Mr McPhee recalled very little about this meeting.  He referred to it as a follow up meeting, after which her performance improvement plan continued.[154]
  8. [123]
    Ms Naylor did not recall the meeting.  She relied on her note of the meeting, which she said she would have made just after the meeting.[155]

18 March 2012 – Code Blue incident

  1. [124]
    Ms Robertson claims that, on 18 March 2012, she was falsely accused of incompetence by other staff.[156]  The incident is particularised as the “Code Blue incident” and involved Kirra Ashman, Vicki Fox and Terri-Ann Bell, who were RNs at the time.[157]
  2. [125]
    Ms Robertson said that a serious incident occurred with respect to a “Code Blue” on 18 March 2012 while she was working with Ms Ashman and Ms Fox.[158]  Ms Robertson realised something was wrong after Ms Fox ran out of the patients’ bay to the nurses’ station and appeared to be concerned with the monitor.[159]  Ms Robertson said she followed Ms Fox back to the patients’ bay and saw a patient lying in the middle of the room on her back with a pillow under her head while Ms Ashman was doing compressions.[160] 
  3. [126]
    Ms Robertson recalled Ms Ashman saying, “Get a sick bag; she’s going to be sick” and Ms Fox apparently left to get a sick bag while Ms Robertson placed a rolled up blanket under the patient’s head while she vomited.[161]  Ms Robertson then recalls Ms Ashman saying, “I want the guedels and I want a code called,” in response to which Ms Robertson ran out to the resuscitation trolley where the guedels were kept.[162]  Ms Robertson recalls both Ms Ashman and Ms Fox being in the room as she left to get the guedels.[163] 
  4. [127]
    Ms Robertson recalled that, as she reached the resuscitation trolley, the two nurses from CCU[164] came from their ward with a resuscitation trolley and said, “What do you need Maureen? We’ve heard some rumbles out there.”  Upon responding that she needed guedels, the CCU nurses told her they had everything and to follow them.[165] 
  5. [128]
    Ms Robertson said that, as they entered the patient’s room, Ms Ashman said, “Why didn’t you call a code like I told you to, Maureen?” to which Ms Robertson said, “You didn’t tell me to.”[166]  When asked why that was her response, Ms Robertson reiterated that Ms Ashman did not tell her to, repeated what Ms Ashman had said that caused her to leave the patient’s bay to get guedels, and went on to say that the code should have already been called.[167]  Ms Robertson said that a code should be called before starting compressions, as was taught in first aid training each year.[168]  Ms Robertson said Ms Ashman did not ask Ms Fox why Ms Fox did not call the code, despite Ms Fox also being in the room at the time.[169]
  6. [129]
    Ms Robertson inferred that, at some stage, the emergency team was called, as they appeared on the ward after the patient had received CPR and had been resuscitated.[170]  Some time later, when Ms Robertson had returned to the nurses’ station, Ms Ashman said, “I think you need some education.”[171]  Ms Robertson said that Ms Ashman was chastising her while Ms Fox was also sitting at the nurses’ station.[172]  Ms Robertson also gave evidence that, following the incident, she was left alone on the ward.[173]
  7. [130]
    Ms Robertson said that, when Ms Ashman asked her why she did not call the code, she knew that Ms Ashman would “put the lot on me”.[174]  This made her feel helpless.[175]
  8. [131]
    Ms Robertson made a note in her diary of the incident, which broadly supports her evidence.  She said that she wrote it the next morning and she later gave a copy of that note to Ms Naylor, who had asked her for a statement about the incident.  She gave it to Ms Naylor at a meeting on 29 March 2012.[176]
  9. [132]
    Ms Ashman prepared a PRIME incident report about the incident.  A PRIME incident is one that might affect patient safety.[177]  Each of Ms Ashman and Ms Fox also made a written report to Ms Naylor about the incident about a week later.[178]  They each said that they were assisting the patient to go to the toilet, on a moveable shower chair, when she said she felt faint and lost consciousness.  Ms Fox went out to check the monitor, which showed the patient to be asystolic.  She returned to help Ms Ashman take the patient out of the chair to the floor, where Ms Ashman started CPR.  While they were moving her to the floor, Ms Robertson came into the bay and Ms Ashman asked her to call a MET (that is, a Code Blue).  Ms Robertson left the bay and returned shortly after, when Ms Ashman told her to get the guedels.  While she was out, the patient’s heart beat returned.  No Code Blue was called during the incident.
  10. [133]
    Ms Ashman and Ms Fox both said that a MET call can be made by pushing a button, which leads to alarms sounding, or by ringing an emergency phone number, in which case the alarms do not sound.[179]  Ms Ashman said in her report that she had assumed that, as she had asked Ms Robertson to call a MET, she had done it. 
  11. [134]
    Ms Ashman also wrote that, after the incident, she spoke to Ms Robertson, who said she was not aware that Ms Ashman had asked her to make a MET call.  She did not appear to recall the number to ring.  She also wrote that, while she was talking to the doctor after the incident, Di[180] explained to Ms Robertson where the buttons were and what the number was.
  12. [135]
    Ms Ashman insisted, in cross-examination, that she was concerned, in retrospect, for patient safety, which is why she made her report about the failure to make a MET call.  She said that she complained about Ms Robertson because Ms Robertson was the only person she had asked to make a MET call and she had not done so.  At the time, Ms Fox and she were on the floor with the patient.[181]
  13. [136]
    Ms Fox said that, as she and Ms Ashman were lifting the patient from the chair to the floor so that CPR could be started, Ms Robertson looked in to where they were.  She recalled Ms Ashman saying to Ms Robertson, “Call a MET.”[182]
  14. [137]
    Ms Fox said she did not make a MET call because Ms Ashman had asked Ms Robertson to do it and she assumed that she had.  But, as she did not hear an alarm, when she went out to get the defibrillation trolley and to check the monitor again, she asked Ms Robertson, “Why haven’t you called a code?”  Ms Fox thought she would push the button to call a code when she went back into the patients’ bay, but by then the patient had recovered consciousness.[183]
  15. [138]
    Ms Fox said that she heard Ms Ashman ask Ms Robertson later, why she did not make a MET call and Ms Robertson said she did not know how to, so Ms Ashman explained to her the three ways to do it.
  16. [139]
    Neither Ms Ashman nor Ms Fox had a good memory of the details of the incident when they gave evidence.  They relied substantially on their respective reports as accurately recording the incident.  Ms Fox conceded that her memory of the details of the event, after so long a time, may be flawed, but she thought it was fine when she wrote her note, although she also conceded that it may not have been a perfect recollection of everything that had happened.[184] 
  17. [140]
    I considered that each of the three nurses gave evidence to the best of her recollection, assisted by her note.  It is not surprising that their recollections of the events differed, both shortly after they occurred and at trial.  I do not consider the differences generally to be surprising.  But, on the whole, their different recollections are not entirely inconsistent and they have, between them, enabled me to form views on what actually happened.
  18. [141]
    The situation that night was obviously very stressful for all concerned.  There was an emergency, in which a patient had lost consciousness and her heart had stopped beating.  Ms Ashman and Ms Fox were trying to get her onto the floor so that Ms Ashman could do CPR.  I accept that, when Ms Robertson first came into the bay, Ms Ashman and Ms Fox were putting the patient onto the floor and Ms Ashman looked up at Ms Robertson and said words to the effect, “I want a MET call (or a code) and the guedels.”  Ms Robertson went to get guedels, but did not make a MET call.  Whether that is because she did not think she had been asked to do so or because she did not know how to do so is not necessary to decide.  A Code Blue was not called.  I find that Ms Fox went out to check the monitor and to get the resuscitation trolley while Ms Ashman continued with CPR.  At the time she went out, no alarms had gone off.  However, it was possible that Ms Robertson had made a MET call by phone, so Ms Fox asked her if she had done so.  At about that time, the patient regained consciousness and a heartbeat, so a MET became unnecessary.
  19. [142]
    Ms Ashman and Ms Fox clearly recalled that, when Ms Robertson came into the bay while they were dealing with the patient, Ms Ashman asked for a code to be called.  Ms Robertson recalled that Ms Ashman was dealing with the patient by giving her compressions, but Ms Fox was merely standing by her.  I consider Ms Robertson’s recollection in this regard to be implausible:  a nurse of Ms Fox’s experience would not merely stand by, doing nothing, while her fellow nurse was giving a patient compressions.  Had Ms Fox had an opportunity, I expect she would have pressed a button to call a code, but she was not able to do so by the time Ms Robertson first entered the bay.  At that stage, I find, she and Ms Ashman were still in the process of lowering the patient to the floor after Ms Fox had returned from going out to check the monitor when the patient said she felt faint.  That is consistent even with Ms Robertson’s evidence that, after Ms Fox came out to check the monitor, Ms Robertson followed her back to the patients’ bay.  Clearly there would not have been time for Ms Fox and Ms Ashman to complete lifting the patient from the shower chair to the floor by the time Ms Robertson entered the bay.  Ms Ashman had not yet started giving compressions, although she may have been about to do so.
  20. [143]
    In those circumstances, it should have been clear to Ms Robertson that somebody needed to call a Code Blue and that she was the person most able to do so at the time.  Although she was also asked to fetch the guedels, a request to “call a code and get the guedels” was clearly a request to do both.  Even if it was not directed specifically to her, she should have recognised that the more urgent (and quick) thing to do was for her to call a code and only then to get the guedels.
  21. [144]
    I reject Ms Robertson’s evidence that, when she first went into the patient’s bay, Ms Ashman was already performing compressions and Ms Fox was standing next to her.  Ms Robertson’s recollection was clearly flawed.  First, it does not make sense that Ms Ashman would call for a sick bag when the patient was unconscious and under compressions.  It is more logical that she asked for guedels, which are necessary for unconscious patients who may vomit.  Secondly, Ms Robertson contradicted her own evidence in first saying that, when she first went into the patient’s bay, following Ms Fox, the patient was on the floor with a pillow under her head and then saying that she placed a rolled up blanket under the patient’s head while she vomited and Ms Fox went to get a sick bag.  I consider that she has mixed up the sequence of events and recalls some things that did not happen.
  22. [145]
    It seems that, in retrospect, Ms Robertson did not think she had been asked to call a Code Blue.  However, it should have been clear to her that, when Ms Ashman asked for a code, she was directing her request to Ms Robertson.  At that time, Ms Fox was assisting Ms Ashman with the patient.
  23. [146]
    In the circumstances, there were grounds for Ms Ashman and Ms Fox, in retrospect, to be concerned that Ms Robertson had not made the call.  It was appropriate for Ms Ashman to elevate the incident to a PRIME report.  Having done so, Ms Naylor properly asked all the ward 9C nurses involved in the incident to provide their reports to her, which they all did (including Ms Robertson), so that she could consider the event and take such steps as she thought appropriate in the interests of patient safety.  Ms Ashman’s and Ms Fox’s reports did not directly accuse Ms Robertson of incompetence, but even if they had it would not have been inappropriate for them to express their opinions.  They were present, they were experienced nurses and it was the hospital’s obligation to assess the situation, determine the causes and take appropriate steps, if any, to consider ways to avoid any potential for repetition.
  24. [147]
    To take these steps was not bullying, badgering or mobbing of Ms Robertson.  Rather, it was a necessary course of conduct in the interests of patient safety and the proper administration of the hospital.

28 March 2012 – accusation of incompetence on Code Blue

  1. [148]
    Ms Robertson claims that, on 26 March 2012, she was falsely accused of incompetence by Ms Naylor and humiliated in front of other persons.[185]  However, while the meeting at which this is alleged to have occurred was organised on 26 March 2012, it did not take place until 28 or 29 March 2012.[186]
  2. [149]
    On that day, there was a meeting between Ms Robertson, Ms Naylor and Mr McPhee, also attended by Ms Koch.  Ms Naylor had called the meeting to discuss the incident on 18 March. 
  3. [150]
    Ms Robertson said Ms Naylor was rude, abrupt, abusive and “stand-overish.”[187]  They discussed the incident.  Ms Robertson said she felt “terrible” during this meeting as she was being blamed for something she did not do.  She said that she told Ms Naylor she was feeling unsupported and that she was not being listened to.[188]  Ms Robertson said that Ms Naylor accused her of being incompetent and made reference to the (alleged) medication error, while raising her voice at her, which made Ms Robertson feel devastated.[189]  Ms Robertson postulated that she would have been showing physical signs at the meeting of how she was feeling, such as being sweaty and nervous.[190]
  4. [151]
    Ms Robertson said she was shocked that she was the only nurse called to this meeting, and it made her feel nervous and ill.[191]
  5. [152]
    Ms Koch recalled that she attended a meeting in March, but did not recall details without referring to her file note.  She said that she typed a file note shortly after the meeting, from hand written notes that she had made during the meeting.[192]
  6. [153]
    Ms Koch said Ms Robertson was given two hand written documents from two nurses, which Ms Robertson read while there but had to hand back to Ms Naylor.  She denied that they were the emails to Ms Naylor from Ms Ashman and Ms Fox, but they could only have been those emails, as there are no other documents from those nurses describing their versions of the incident.
  7. [154]
    Ms Koch was taken to parts of her file note and asked questions about them.  She said that, when Ms Robertson said (as recorded in the note) that she did not raise a code because “they never directed her too [sic] and there was [sic] three RNs”, she was upset:  she raised her voice and said that she was not the only person who was able to call a code.  But she did not do anything else to indicate that she was upset.
  8. [155]
    Ms Koch said that, when Ms Naylor put to Ms Robertson (as recorded in the file note) that it was no particular person’s responsibility to call the code but a competent nurse would have done it, Ms Robertson got upset and started getting teary.
  9. [156]
    In her file note, Ms Koch records that Ms Robertson and Ms Naylor had a discussion about an incident in which Ms Robertson had said that an infusion pump had stopped and she had then had words with Ms Naylor about doing observations (clearly the incident on 11 August 2011).  Ms Koch had recorded “FN got angry and was raising her voice at Maureen.”  Ms Koch said that Ms Naylor indicated anger by raising her voice and sitting forward in her seat and eyeballing Ms Robertson.  She was angry when she stated that “MR doesn’t take directions from RNs who are busy.”[193]
  10. [157]
    Ms Koch’s note recorded that Ms Naylor later said that having IV (which Ms Koch said referred to IV fluid) on the floor was a safety issue for patients.  The note went on:

MR was very upset at this as she said she would never put the patient at risk and that she found it difficult to talk to some RNs as she knew what they were saying about her and the other staff, as she had witnessed it on night duty and she felt intimidated and that was why she was appearing to be slow on answering questions as she was being careful and thinking out the answer before speaking.

  1. [158]
    Ms Koch said that Ms Robertson said she did not like to get things wrong because the RNs hung off her every word.
  2. [159]
    Ms Koch recorded in the file note that the result of the meeting was that Ms Robertson would be given the following support:  she was given the Federal government standards on medication and a list of courses to upgrade her practice;  she was told the retention of information given was of concern; reference was made to her peers’ concerns as to patient safety and she would be removed from medication rounds (Ms Koch said that would be until she had done her upgrade and she would be supervised).  Ms Naylor told her that she could go to her “upline” if she was not happy to talk to ward staff.  Ms Robertson said she asks for help and some nurses help and some do not.  Mr McPhee suggested courses and said she would have an educator to support her on medication rounds.
  3. [160]
    In cross-examination, Ms Koch agreed that Ms Robertson raised her voice and got angry during the meeting. 
  4. [161]
    Mr McPhee recalled that the meeting was called as a result of an incident where Ms Robertson had not called a Code Blue when she had been asked to do so, which meant that medical help did not arrive.  There was also an assertion that she had not recognised that a patient was in a significant deteriorating state.  He said he thought that Ms Robertson did not recognise that her failure to call a code (or to recognise a deteriorating patient) was a serious problem.  They agreed to start another performance improvement plan which would take into account all of those elements.[194]  He did not recall any aggression at the meeting.
  5. [162]
    Mr McPhee was invited to read the note of the meeting made by Ms Naylor.[195]  He agreed that it seemed accurate.  When it was put to him, in cross-examination, that Ms Naylor had said that it was no particular person’s responsibility to call a code but a competent nurse would have done so, he could not remember if that had been said but, he said, “it is any competent nurse’s responsibility to call a code if a patient’s crashing.”[196]
  6. [163]
    Ms Naylor said that, at the meeting, Ms Robertson gave her a copy of Ms Robertson’s diary note about the night of 18 March 2012.  She identified her note of the meeting,[197] but had no recollection of the meeting itself.  She said that it was her view that a competent EEN would have made a MET call.  She was concerned that Ms Robertson said it was not her responsibility to make a MET call, because it is every nurse’s responsibility to do so, whether or not they are asked.[198]
  7. [164]
    In cross-examination, the events recorded by Ms Koch in her file note were put to Ms Naylor, but she could not recall anything being raised other than the MET call incident, which was what (she said) she was investigating.  She accepted, because it was recorded in her note, that Ms Robertson told her that she felt she was the victim at times.  She agreed that one of her own roles, as NUM, was to provide Ms Robertson with support when she was working on the ward, which was one reason for putting her onto day shift.
  8. [165]
    Ms Robertson’s complaint about this meeting is that Ms Naylor called her incompetent and humiliated her in front of other people.  In her particulars she claims that the allegation “and conflicting statements by RNs” had left her with a feeling that she was isolated from any support.
  9. [166]
    Given my findings about the incident on 18 March 2012 and the reports made to Ms Naylor by Ms Ashman and Ms Fox, it was appropriate for Ms Naylor to investigate the incident and to discuss it with Ms Robertson.  Ms Robertson’s response (including in her diary note) demonstrated that she did not consider that she was at fault at all.  It is not surprising, in the circumstances, that Ms Naylor made it very clear to her that she considered that a competent nurse would have called the code before doing anything else.  While perhaps appearing to be harsh, it may have been a way of drawing to Ms Robertson’s attention the seriousness of the situation, especially when combined with the pre-existing concerns about her medical knowledge and practice.
  10. [167]
    As for raising the alleged IV fluid incident, I accept that Ms Naylor did so.  I consider it likely that she did so in the context of discussing the primacy of patient safety which, she considered, Ms Robertson had endangered again by not making a MET call when asked to do so.
  11. [168]
    I do not consider Ms Naylor’s words in that meeting to be bullying, badgering or mobbing of Ms Robertson.  Rather, they were stern words by a manager seeking to make clear her concerns about a nurse’s competence and the importance of patient safety, preparatory to approving a plan to improve that competence, particularly in the interests of patient safety.

10 April 2012 – informing RNs about supervision

  1. [169]
    In the particulars of paragraph 3 of the statement of claim is an allegation of an event on 10 April 2012.  Although a separate allegation about that event is not made in the statement of claim, it is alleged in paragraph 3 that particulars of the alleged bullying, badgering and mobbing of the plaintiff included but were not limited to those set out in that pleading, with full particulars given elsewhere.  No objection was taken to this paragraph of the particulars so, although I had said that I would not allow the plaintiff to give evidence of matters not within the pleadings, this allegation remains in the particulars and evidence was given about it without objection. 
  2. [170]
    The allegation in the particulars is that, on this date, Ms Robertson was working with RN Kate Nicholls.  Ms Nicholls asked her to “do vitals” on Ms Nicholls’ patients and to administer medications supervised by Ms Nicholls.  The acting NUM at the time, Joye Hill, called Ms Nicholls into her office.  When Ms Nicholls came out, Ms Robertson asked her if anything was wrong and Ms Nicholls said, “Just what you told me about yourself.”  This alerted Ms Robertson to the fact that nurses were being questioned about her performance on the ward and that she was being scrutinised.  That made her feel tentative and nervous and further undermined her confidence.
  3. [171]
    Ms Robertson gave evidence that she asked RN Nicholls to supervise her in the administration of medication and, later in the shift, Ms Nicholls was told by the acting NUM that she needed to supervise Ms Robertson.[199] It was Ms Robertson’s evidence that it was demoralising that she had to tell a nurse with whom she had been working for years that she had to supervise her and her conversation with Ms Nicholls made her feel “gut-wrenched”.[200]
  4. [172]
    I can only infer, from the fact that Ms Robertson felt that she had to tell Ms Nicholls that she required supervision in administering medication, that she had not worked with Ms Nicholls since that requirement had been imposed on her.  Ms Robertson quite properly informed Ms Nicholls that she had to be supervised in the administration of medication.  It was also appropriate for the acting NUM responsible for that shift to ensure that Ms Nicholls was aware of that requirement.  While it may have been embarrassing for Ms Robertson, it had been a requirement since at least February that year and was a requirement that she was working to overcome by undertaking further education and training.  Indeed, supervision in the administration of medicines was part of that training. 
  5. [173]
    I do not consider it to be bullying, badgering or mobbing for the relevant manager to ensure that the nurses on duty with Ms Robertson knew that she was not permitted to administer medications without direct supervision.  That was a direct consequence of the limitation on Ms Robertson’s practice.  It was clearly necessary to ensure that the direction was being carried out and to direct RNs that they must supervise Ms Robertson accordingly.

12 April 2012 – rude and condescending attitude

  1. [174]
    Ms Robertson claims that, on 12 April 2012, she was spoken to by Tracey McDonald, another EEN, in a rude and condescending way.[201]
  2. [175]
    Ms Robertson gave evidence that Ms McDonald was her supervisor that day.  Ms McDonald asked her to do a task, but she was unable to do it as she was in the middle of another task.  When she completed what she was doing, Ms Robertson went back to Ms McDonald and asked her if there was anything she could do.  Ms Robertson said Ms McDonald was “in a tizzy,” gave her some paperwork and “was going crook, speaking down to me.”  Then Ms McDonald noticed an RN was nearby and her tone of voice changed to “normal.”[202] 
  3. [176]
    Ms Robertson said she was devastated that she was having issues with Ms McDonald, as she had not previously had any problems with her, believed she had worked well with her.  She was unsure why an EEN was supervising her.  However, Ms Robertson did not raise any of her concerns or how she was feeling with anyone at the time.[203]
  4. [177]
    Ms McDonald could not recall an incident of this nature and said she would not have spoken to Ms Robertson in a rude and condescending way, as she was also an EEN at the time.[204]
  5. [178]
    In cross-examination, Ms McDonald agreed that her interaction with Ms Robertson likely occurred at a time when there was overlap between her and Ms Robertson’s shifts.[205]  The only other occasion on which Ms McDonald could recall working with Ms Robertson as an EEN was when Ms Robertson was a supernumerary, however Ms Robertson would have been working very closely with RNs.
  6. [179]
    Ms McDonald accepted that there had been occasions where she had asked Ms Robertson for help.  It was put to her that if Ms Robertson was not able to help, she might respond, “Okay.  Whatever.”  Ms McDonald could not recall but said she would normally just go and ask another nurse for help.[206]
  7. [180]
    It was put to Ms McDonald that she was asked to educate Ms Robertson and it was part of her role to educate other EENs.  Ms McDonald denied this and said she may have helped Ms Robertson if she had asked.[207]
  8. [181]
    Ms McDonald was invited to read one of the performance improvement plans.[208]  She agreed that the document recorded that Ms Robertson had worked as a supernumerary with her on 12 April 2012.  She also agreed that reviewing this part of the document assisted in refreshing her memory of working with Ms Robertson.  Ms McDonald agreed that, over the course of the shift, the only concern she had was that Ms Robertson described an anticoagulant agent as a cholesterol medication.  Ms McDonald could not recall to whom she had given this feedback, though she thought it was probably the NUM.[209] 
  9. [182]
    Ms Robertson’s evidence that Ms McDonald “was going crook, speaking down to me” was not helpful.  It was her opinion, but not based on any evidence of what Ms McDonald said or did.  It does not satisfy me that Ms McDonald was rude or condescending to her.  Even if Ms Robertson had given evidence that, when she told Ms McDonald she could not help her immediately, Ms McDonald had said, “Whatever” (as alleged in the particulars of paragraph 3 of the statement of claim), I cannot see how that could amount to being rude or condescending.
  10. [183]
    I therefore do not accept that Ms McDonald’s actions or statements were bullying, badgering or mobbing of Ms Robertson.

May 2012 – accusation of incompetence about low blood pressure #1

  1. [184]
    Ms Robertson claims that in May 2012, she was falsely accused of incompetence by an RN named Rachel.[210]
  2. [185]
    Ms Robertson gave evidence[211] that, sometime in May 2012, a patient had low blood pressure which she reported to Rachel – the RN on shift with her – and asked if she should contact the doctor.  Rachel said the patient had had low blood pressure all day, the doctor was aware and to leave it with her.  At the end of this shift, Ms Robertson handed over to Tessa Coulter and mentioned the patient’s low blood pressure.  Ms Coulter asked Ms Robertson what had happened and looked at Rachel, who shrugged her shoulders.  Ms Robertson looked at Rachel and said, “What?” to which Rachel responded, “Okay, okay, okay.”
  3. [186]
    Ms Robertson’s evidence was that she felt “totally wrecked” after this because she felt that Rachel and Ms Coulter’s attitude to her was as if she did not exist and, if she was not being listened to, she could not do her job properly.  Ms Robertson felt that Ms Coulter was “negating her existence,” but she was unable to recall or articulate why she described Ms Coulter’s demeanour in this way.
  4. [187]
    Ms Robertson said that she returned to work the following day and told Ms Coulter that she had been unable to sleep and had been crying all the previous night.  Ms Coulter apologised and said she had reviewed the paperwork and later understood what Ms Robertson meant.
  5. [188]
    Ms Coulter could not recall the incident described by Ms Robertson, and said she has never yelled at anyone in relation to blood pressure.[212]  Ms Coulter said she was a graduate and a very junior nurse at the time.
  6. [189]
    In cross-examination,[213] Ms Coulter recalled working with a number of Rachels through her career and also that there were occasions when she would take handover from Ms Robertson.  However, she reiterated that she could not remember an incident where she took handover from Ms Robertson while someone named Rachel was sitting nearby.
  7. [190]
    Ms Coulter agreed that, in circumstances where a patient had very low blood pressure, the EN should inform an RN or contact a doctor and record the blood pressure.  It was put to Ms Coulter that, during a handover, Ms Robertson told her that a patient had very low blood pressure, to which she responded in a loud voice, “And what have you done about it?”  Ms Coulter did not remember this and said she had never yelled at anyone, particularly as she was then a junior nurse.
  8. [191]
    It was also put to Ms Coulter that, during this incident, Ms Robertson looked over to Rachel, who shrugged her shoulders, Ms Robertson responded by saying something like, “What” or “Don’t do this” and then Rachel told Ms Coulter about the patient’s low blood pressure.  Ms Coulter could not recall an incident as described occurring.  Ms Coulter was also asked whether she remembered Ms Robertson telling her the following morning that she had been crying all night.  Ms Coulter did not remember any such incident and said she probably would have remembered a conversation like that.  She did not recall apologising to Ms Robertson.
  9. [192]
    This incident is alleged to be an occasion on which the RN, Rachel, falsely accused Ms Robertson of incompetence.  Unusually, neither in the particulars of that allegation, nor in Ms Robertson’s evidence, is there any detail of such an accusation.  Furthermore, some of the matters put to Ms Coulter (such as, that she yelled at Ms Robertson), which she denied, were not the subject of evidence from Ms Robertson.  Even her diary note (which was not relied on by Ms Robertson or counsel) does not mention Ms Coulter yelling at Ms Robertson, nor does it otherwise support Ms Robertson’s evidence.
  10. [193]
    Even if Rachel had shrugged her shoulders and then said, “Okay, okay, okay,” that cannot amount to an accusation of incompetence. 
  11. [194]
    There is therefore no evidence that Rachel accused Ms Robertson of incompetence.  However, the particulars of the occasion appear to amount to an allegation (although it is not directly alleged) that, even absent an accusation of incompetence, the behaviour of Ms Coulter and Rachel constituted part of the badgering, bullying and mobbing that is alleged in the chapeau to paragraph 3 of the statement of claim.  But again, Ms Robertson’s evidence did not prove most of the matters alleged in those particulars.  Even if they had, I do not consider the evidence to amount to badgering, bullying or mobbing.  Ms Robertson was handing over to Ms Coulter and it was her responsibility to tell Ms Coulter that she had reported the patient’s low blood pressure to Rachel, who had told her that the doctors were aware of it.  Even if Rachel had shrugged her shoulders, that could be an attempt to indicate that Ms Robertson should go on and give this explanation.  Alternatively, if (as Ms Robertson said) Ms Coulter did not seem to have grasped what Ms Robertson was saying, it could equally have meant that Rachel was indicating that she didn’t think it was necessary for Ms Robertson to explain further to Ms Coulter.
  12. [195]
    I find that Ms Robertson has not proved that the incident, as alleged, occurred.  Even if it had occurred, it would not have amounted to badgering, bullying or mobbing.

15 May 2012 – accusation of incompetence about low blood pressure #2

  1. [196]
    Ms Robertson claims that, on 15 May 2012, she was impliedly accused of incompetence by Tracey Brumby.[214]
  2. [197]
    Ms Robertson gave evidence[215] that, on 15 May 2012, she was looking after a patient on a “one on one special”:  a situation in which a nurse is required to remain with a particular patient throughout the shift.  She did not give the patient a medication that had been prescribed to decrease his blood pressure (an anti-hypertensive), as the patient already had low blood pressure.  Ms Robertson’s evidence was that you would call the doctor in these circumstances, but she simply told the RN on shift with her.
  3. [198]
    Ms Robertson said that, at handover time, she was required to remain with the patient until a nurse for the new shift came in to receive handover.  Ms Brumby, an RN for the new shift, “marched” towards the patient’s room where Ms Robertson was and said, “What’s this about a blood pressure?” in an angry tone.  Ms Robertson said that she was so frightened that she could not say anything and, when she did not reply, Ms Brumby marched out of the room.  Joye Hill, the acting NUM at the time (and also an education facilitator), then arrived and told Ms Robertson that an assistant in nursing (an AIN) would relieve her.  Shortly after, an AIN arrived and Ms Robertson gave her a handover.  Ms Robertson then noticed that Ms Hill was standing behind her listening to the handover. 
  4. [199]
    Ms Robertson said[216] that she felt devastated at having been spoken to in that manner by Ms Brumby and felt that Ms Hill, by listening to her handover without telling her she was there, was spying on her.  She also said that this and the other events that had happened to her were accumulating and beginning to make her paranoid, feeling that people were out to get her, so she would double-check and triple-check everything she did.
  5. [200]
    Ms Brumby did not have a strong memory of the plaintiff, but confirmed that she regularly worked in the afternoon.[217]  Ms Brumby was asked whether she recalled an incident when she marched into the nurses’ bay and asked Ms Robertson, “What’s this about blood pressure?”  Ms Brumby could not recall such an incident.  She said she would not have marched around the ward with her hands on her hips.
  6. [201]
    Ms Brumby said that, if she became aware of a blood pressure issue with a patient, she would have checked the patient, checked with staff members and notified a doctor if necessary.
  7. [202]
    In cross-examination,[218] Ms Brumby said that she had worked at the hospital since 1996 and in cardiology since 1997.  She agreed that, as she worked part-time, when she returned to work she would ensure that she knew what was going on with each of the patients under her care.  To do so, she agreed that she would speak with other staff members about each patient.
  8. [203]
    It was put to Ms Brumby that, regardless of whether she could remember Ms Robertson, as she would have been concerned about a patient’s low blood pressure she would have said something to the effect of, “What’s this about blood pressure?”  Ms Brumby said she would not have used those words.  She said she would have asked how the patient was and whether the nurse wanted her to look at the patient.  She would have said this in a supportive tone.  Ms Brumby would have expected any team member to be supportive of the patient and the nurse looking after the patient.
  9. [204]
    Ms Brumby could not remember concerns being raised about Ms Robertson in May 2012.  She denied that, as a result of those concerns, she had marched into the nurses’ bay with her hands on her hips and asked, “What’s this about blood pressure?”  She said she would never walk or speak like that.
  10. [205]
    Ms Robertson recorded this incident in her diary.  Relevantly, she wrote:

Tracey Mann[219] just looked at vitals on adds chart & start:- why is this man’s BP↓ the look on her face was not friendly - Just the statement.  I started to explain – & she walked away.  I did not give hand over for this pt.  I went into panic inside, I felt sick & wanted to run.

  1. [206]
    This entry supports Ms Robertson’s evidence that Ms Brumby looked at the patient’s chart and then came over to Ms Robertson and asked about his low blood pressure.  It supports her evidence that she construed Ms Brumby’s words and appearance as aggressive.
  2. [207]
    However, having seen Ms Brumby give her evidence, I formed the view that she was unlikely to be the sort of person who would walk or speak in the manner Ms Robertson described.  I accept that, having looked at the patient’s chart, she went over to the patient’s room and asked Ms Robertson something about the patient’s blood pressure, but I do not accept that she marched in with her hands on her hips and asked about it in an aggressive manner.  In my view, Ms Robertson has construed Ms Brumby’s actions as aggressive and inappropriate because, by then and particularly by the time she gave evidence, she felt as if everyone was against her, because they continued to check her work carefully.  She construed other nurses’ questions to her as having been asked aggressively and was anxious and fearful about what they may think or say about her.  But I find that her construction of those matters is personal to her and her evidence about the events (as opposed to her feelings) is hard to accept as reliable without corroboration.
  3. [208]
    But even if Ms Brumby had acted and spoken in the manner described by Ms Robertson, that could not possibly be construed, as alleged in the statement of claim, as an implied accusation of incompetence.  The question said nothing about Ms Robertson.  Rather, Ms Brumby was seeking information about the patient, as one would expect her to do as a nurse coming onto the shift, particularly about a patient whose blood pressure was low and yet he or she had been prescribed an anti-hypertensive drug.
  4. [209]
    Although it is not really relevant to the alleged bullying, I see nothing wrong in Ms Hill listening to Ms Robertson’s handover to the AIN.  She was the NUM and would have been well aware of the concerns about Ms Robertson’s practice.  It was appropriate for her to see how Ms Robertson handed over a patient and to do so, if it happened, without Ms Robertson realising, so that her presence would not affect how Ms Robertson acted.
  5. [210]
    I find that the incident did not occur as described by Ms Robertson and Ms Brumby’s conduct did not constitute bullying, badgering or mobbing of Ms Robertson.

22 May 2012 – global assessment, calculation tests and education

  1. [211]
    On 22 May 2012, RN Bronwyn Seehusen undertook a global assessment of Ms Robertson’s nursing skills.[220]  Ms Seehusen appears to have been chosen for that task by Mr McPhee or Ms Naylor because, having received feedback about Ms Robertson from a number of sources, they wished to have an independent person assess her overall competence.[221]  To pass the assessment, Ms Robertson needed to achieve a minimum score of “3” on all applicable criteria.  Ms Robertson received a score of “3” on all applicable criteria.[222] 
  2. [212]
    Ms Robertson said that, in the feedback session with Ms Seehusen after the assessment had been completed, Ms Seehusen told her that, although Ms Robertson had passed the assessment and was competent, she did not think Ms Robertson was up to par enough, but she did everything right.  She didn’t do anything wrong.  Ms Seehusen wanted more from her, but her patient didn’t require more, because he or she was not really sick.[223]  Ms Robertson said that she was glad that she had been assessed as competent and she was not concerned by the fact that she had not been assessed as being at a “proficient” or “expert” level.[224]  Ms Robertson’s evidence was that, after the incidents discussed above, she was relieved that her first global assessment validated her competence.[225]
  3. [213]
    Following the global assessment, Mr McPhee asked Ms Robertson to complete a medication calculation test while she was working.[226]  Ms Robertson’s evidence was that she completed half of the questions in the allocated time and completed the other half at a later stage.[227]  Ms Robertson said that she was not told the results of the test or given any feedback, nor the purpose of her doing the test.[228]  On this basis, and perhaps due to the fact that Ms Robertson said she had not previously failed any medication calculation tests, she assumed she had passed this test and was happy about that.[229]
  4. [214]
    Mr McPhee gave evidence that the first time she completed this test, she only completed 15 of the 20 questions, but when she was given a further opportunity to complete the test with a calculator, she got all 20 questions correct (a pass).[230]
  5. [215]
    In accordance with her performance improvement plan[231], Ms Robertson said that she attended a number of educational workshops between 13 February 2012 and 16 May 2012.[232]  She attended a medications course on 13 and 14 February 2012.[233]  This was said to be to help her improve her medications knowledge.[234]  Her evidence was that, at the beginning of the course, she was told cardiac medications would not be covered, however she said she still found the course educational.[235]  However, she did not inform anyone that the course did not cover cardiac medications.[236]

5 June 2012 – conflicting directions

  1. [216]
    Ms Robertson claims that, on 5 June 2012, she was given conflicting directions by Ms Naylor, the first such direction implying incompetence on Ms Robertson’s part.[237]  In the particulars of that paragraph, she alleges that, at a meeting with Ms Naylor and Mr McPhee at 4.00pm that day, she was told that she could not give medicines.  At 4.45pm, though, Ms Naylor told her, “We’ve changed our minds, you can give medication with RN supervision.”
  2. [217]
    Ms Robertson gave evidence[238] that she had a meeting on 5 June 2012 with Ms Naylor and Mr McPhee at which she was told she could not administer medications.  Then at about 4.00pm that day, following the meeting, she was told by Ms Naylor that she could give medications under supervision, because she would not learn unless she administered them. 
  3. [218]
    Ms Robertson said she felt like Ms Naylor was “mucking” her around and she was traumatised as she did not know what she would be doing from one day to the next.
  4. [219]
    Ms Robertson made a diary note of that meeting.[239]  She wrote the following:

4pm

Meeting with Fiona & Rob & Union aware -

Fiona “Your an excellent nurse Maureen, we can see your working hard “now”.  I don’t want U to do meds yet.  Rob “I will do some work on meds with U.”  Fiona “U have some night shifts coming up but for now things are ongoing.” Fiona “Your not in trouble.”

At 1645 – Fiona came up & said “Maureen we’ve change our minds. U can do meds with RN supervise.  You need to learn & U won’t learn if U don’t do them.  I’ll put out Email for RNs to support.”

  1. [220]
    Neither Ms Naylor nor Mr McPhee was questioned about this meeting or Ms Naylor’s subsequent conversation with Ms Robertson.  However, in cross-examination, Ms Naylor agreed that, at the meeting on 6 February 2012, it was agreed that Ms Robertson was to cease administering medications for three months.[240]  She also agreed that, from at least 2 April 2012, Ms Robertson had returned to giving medications to patients while being supervised by an RN.[241] 
  2. [221]
    In his cross-examination, Mr McPhee was taken to the performance improvement plan dated 19 December 2011.[242]  He agreed that, at the meeting on 19 December 2011, it was discussed and agreed that Ms Robertson would not dispense medications during the period from 19 December 2011 to 19 March 2012.[243]
  3. [222]
    Mr McPhee also agreed that, at the meeting on 6 February 2012, it was reiterated to Ms Robertson that she was not to administer medications at all without supervision until the end of the performance improvement plan or he and Ms Naylor were convinced that she was a safe practitioner.[244] Mr McPhee said this was reiterated at the meeting as Ms Robertson had thought that she had been given permission to administer medication by herself.[245]  Mr McPhee said he did not give Ms Robertson permission to administer medication unsupervised at any time after 19 December 2011.[246]
  4. [223]
    A summary of the performance improvement plan assessment written by Mr McPhee indicates that he did not recommend that Ms Robertson be deemed safe to administer drugs independently.[247]  He recommended that she not administer medications at all.
  5. [224]
    I accept that, at the meeting, Ms Robertson was told that she could not administer medications but, shortly afterwards, Ms Naylor told her that she could not do so without supervision from an RN.  Whether the change occurred because she accurately recorded that she was at first told she could not administer medications at all or it was simply not initially made clear enough to her that the existing situation would continue, so that she was not allowed to administer medications except under supervision, is not really material.  Certainly, after Ms Naylor told her the final position, she could have been under no misapprehension:  she was able to administer medications under the supervision of an RN.
  6. [225]
    While Ms Robertson considered the apparently changing instructions to be part of what she saw as the hospital staff’s ongoing harassment of her, I consider it to be an example of possibly inadequate communication or a miscommunication that was quickly clarified.  It was within the hospital’s power and prerogative, as her employer with particular concern for patient safety, to decide whether or not she could administer medication.  The situation had not, effectively, changed since December the previous year:  unless and until she demonstrated sufficient competence with medications to satisfy her employer that there was no risk to patient safety, she was not to administer medications at all by herself, but at most only under the supervision of an RN.  I do not accept that, at any time during that period, Mr McPhee or Ms Naylor told her that she could do so unsupervised.  That would be totally inconsistent with the instructions they had given to her and that had been recorded in writing, as well as inconsistent with their clearly ongoing concerns about her abilities.
  7. [226]
    I do not accept that the instructions she was given that day were conflicting:  rather, the latter clarified the former.
  8. [227]
    Both an instruction that she not administer medications at all and an instruction to administer them only under supervision might be said to imply that Ms Robertson was not competent to give medications unsupervised, or at all.  But at that time Ms Naylor and Mr McPhee had genuine concerns, based on reports from others but also on their own observations, about her competence to administer medications.  To imply that she was not competent was not bullying, badgering or mobbing.   It was a conclusion (tentative or firm) that was open to the hospital pending her further education and assessment.
  9. [228]
    Therefore I do not accept that anything said at or shortly after the meeting on 5 June 2012 constituted, or could properly be viewed as, bullying, badgering or mobbing of Ms Robertson.

13 July 2012 – abuse about leg dressing

  1. [229]
    Ms Robertson claims that, on 12 July 2012, she was abused by RN Sarah Kennedy.[248]  However, the particulars of the allegation make it clear that, although preliminary events leading to the incident occurred on 12 July, the incident itself is alleged to have occurred on 13 July.
  2. [230]
    Ms Robertson gave evidence[249] that, while on the afternoon shift on 12 July 2012, she was asked to dress a patient’s wound.  The patient refused to bend his leg, so she was unable to apply the dressing.  She said she did not want to hassle the patient and she appeared to believe that the dressing was not absolutely necessary.[250]  Ms Robertson said that she handed over the patient to the night shift and told them that she would dress the wound the following morning.[251] 
  3. [231]
    The next morning, Ms Robertson asked another RN to assist her to apply the dressing to the patient’s leg, but the RN was unable to do so before Ms Kennedy started her afternoon shift.  Ms Robertson said that Ms Kennedy came straight over to her and said “Have you done that dressing?”  Ms Robertson told her that she had not had time to do so and had asked the morning shift RN to help her with the patient.  Ms Kennedy was “ripping” through the paperwork for the handover, then she “snatched” it all up and went to do the dressing.  The patient cooperated with her to have it done.  Ms Robertson asked Ms Kennedy if she had done something wrong, to which Ms Kennedy replied that she had not got things right with the paperwork.  Ms Robertson asked her to show her what she had done wrong.  Ms Kennedy looked through the paperwork and then said, “Well, no, not you specifically.  In general, nobody’s doing the paperwork right.”  Ms Robertson described Ms Kennedy as being rude to her.
  4. [232]
    Ms Robertson said she felt devastated, as she was again being accused of not practising appropriately and she had no colleagues to talk to.[252]
  5. [233]
    In her examination in chief, Ms Kennedy was asked whether she had any recollection of an incident on 13 July 2012 when she arrived on the ward and questioned Ms Robertson in an aggressive or condescending tone about a dressing that should have been done and then doing the dressing herself.  She had no recollection of this.  Nor did she recall having a conversation with Ms Robertson about her leaving things undone on her shift.  She said it was not her practice to speak aggressively or in a condescending way to staff.[253]
  6. [234]
    In cross-examination,[254] Ms Kennedy was asked whether she remembered an event in July 2012 in relation to a patient who was uncooperative when Ms Robertson attempted to dress his wound.  Ms Kennedy could not recall such an incident.  It was put to Ms Kennedy that on this occasion she spoke to Ms Robertson in a condescending tone.  Ms Kennedy did not remember doing so.  Further details of the incident, including a discussion in relation to patients’ care plans, were put to Ms Kennedy, however she could not recall them at all. 
  7. [235]
    Ms Kennedy agreed that, if she came into work and the nurse who had previously been looking after her patients had not done his or her work, it would be a problem and if it happened regularly could become irritating.[255]  She could not recall whether, by August 2012, she was concerned that Ms Robertson was not completing her work for her patients.[256]
  8. [236]
    It appears that Ms Kennedy was on the night shift beginning in the evening of 12 July, when Ms Robertson had talked about the dressing when she handed over her patients.  When she started the afternoon shift on 13 July, she was aware that the dressing had not been done the night before and that Ms Robertson had said she would do it in the morning.  She was concerned to see whether it had been done, so she immediately asked Ms Robertson if she had done it.  Having been told that it had not been done, she decided just to do it herself.
  9. [237]
    I find that it was understandable and perfectly acceptable for Ms Kennedy to ask Ms Robertson if she had done the dressing, given that Ms Robertson had said that she would do it in the morning.  Her question was neither inappropriate nor aggressive.  She may have expressed irritation when Ms Robertson told her that it had not been done, but that is understandable in the circumstances.  It is not correct to describe the incident as bullying, badgering or mobbing.

27 July 2012 – not administering medications unsupervised

  1. [238]
    Ms Robertson claims that, on 27 July 2012, she was abused and accused of incompetence by Ms Naylor.[257]
  2. [239]
    Ms Robertson gave evidence[258] that, at one stage after April 2012, she thought that she was allowed to give medications without supervision.  (She said later that Mr McPhee had told her one day that she could give medicines unsupervised.[259])  She recalled an occasion, apparently in 2012, in which Ms Naylor came up to her on the ward and said, “Maureen, what’s happening about medications?”  Ms Robertson replied, “I’m giving them.”  Ms Naylor said, “No, you’re not meant to be giving them on your own.”  Ms Robertson said, “Well, I am, you know.”  Ms Naylor said she was not to give medications because somebody had said that she had short-term memory loss because she had come on shift and gone to the computer to look up a medication.
  3. [240]
    Ms Robertson said that she would often look up patient records, doctors’ reports or medications two or three times a shift, but when she went to the computer it was not always to look up medications.  She said she responded to Ms Naylor that she did not have short-term memory loss, but she followed the direction not to give medication without supervision after that.
  4. [241]
    In cross-examination, Ms Robertson was asked why she contended that Ms Naylor’s conversation with her was abuse.  She said, “I’ve been told not to do meds, to do meds, to do meds supervised.  It was a continuous thing.  …  I never knew what I was doing from one minute to the next.  …  Because one time I’m doing meds;  the next time I’m not doing meds;  then I’m doing meds supervised.”[260]
  5. [242]
    Ms Robertson recorded the incident in her diary,[261] which largely accords with her evidence.
  6. [243]
    Ms Naylor recalled doing a supervised medication round with Ms Robertson on 27 July 2012 and she made a short record of it that was later typed up by Ms Hill.[262]  However, she was not asked about this specific incident.
  7. [244]
    I have already said that I do not accept that Mr McPhee had told Ms Robertson that she could administer medications unsupervised.  Such an instruction would be entirely contrary to Mr McPhee’s recommendations, including at about 24 July 2012,[263] and to the instructions that had been given to Ms Robertson by Ms Naylor on 5 June and on earlier occasions.  Ms Robertson has not recorded anywhere in her diary that Mr McPhee gave her such an instruction.  Mr McPhee denied having given her any such direction.[264]  To the contrary, Ms Robertson had no basis for believing, in July 2012, that she was authorised to give medications unsupervised.  It is incomprehensible to me why she thought otherwise.
  8. [245]
    I accept Ms Robertson’s evidence that the conversation with Ms Naylor occurred largely as she described.  However, I do not accept that Ms Naylor abused Ms Robertson or accused her of incompetence.  Ms Naylor simply told her (as she should have known) that she was not yet entitled to give medications unsupervised.  Ms Naylor explained that some nurses were concerned that she had a poor short-term memory, as she seemed to look up medicines more frequently than should be necessary.
  9. [246]
    This conversation was not – and could not constitute – bullying, badgering or mobbing.

17 August 2012 – abuse about chest pain

  1. [247]
    Ms Robertson claims that, on 17 August 2012, she was abused by Ms Codd.[265]
  2. [248]
    On 17 August 2012, Ms Robertson was working with Ms Codd.[266]  Ms Robertson gave evidence[267] that a new patient came up from the emergency department.  While she was taking observations of the patient, he said that he had chest pain.  She went to speak to Ms Codd, telling her that the patient had chest pain.  Ms Codd said, “The patient has come from emergency with chest pain?”  Ms Robertson explained that he complained about chest pain while she was taking his observations, not immediately after he came up to the ward.  Ms Codd repeated that he had come up from emergency with chest pain.  In the course of this conversation, Ms Codd began shaking her fists and yelling, “So a patient has come up with chest pain.”
  3. [249]
    In her evidence in chief,[268] Ms Codd said she did not recall an incident in August 2012 when Ms Robertson had received a patient from the emergency department and Ms Robertson spoke to her about the patient’s chest pain.
  4. [250]
    Ms Codd said that a patient who had reported chest pain in the emergency department should not have been brought up to the ward; he should be transferred pain free.  She said that, if an EEN came to her and reported that a recently received patient had chest pain, she would want to know whether they came to the ward with chest pain and what had been done to manage it.  The chest pain management protocol required a number of steps to be taken, including for an EEN to report the incident to an RN.  Ms Codd could not recall Ms Robertson bringing this incident to her attention.
  5. [251]
    Ms Robertson’s description of the incident was put to Ms Codd. She could not recall the incident.  In particular, Ms Codd did not remember becoming angry and raising her voice, nor shaking her fists.  Ms Codd said she would not do either of those things at work.
  6. [252]
    In cross-examination about this incident,[269] Ms Codd agreed that, if Ms Robertson had told her that a patient who had recently come up from the emergency department had chest pain, if would have been rational for her to ask whether the patient came from emergency with chest pain.  She agreed that, if Ms Robertson responded that the patient complained of chest pain while she took his vitals, she would have understood what that meant.  It was put to Ms Codd that this conversation, in effect, went around in circles and she became loud, impatient and shook her hands at Ms Robertson.  Ms Codd could not recall this incident at all, but said she has never shaken her hands at anybody.
  7. [253]
    Simone Griffiths was working as an EEN (she is now a clinical nurse) and was also present on this occasion.[270]  Ms Griffiths was asked about an incident in which a patient came onto the ward and reported chest pain to Ms Robertson, so Ms Robertson spoke to Ms Codd while she was present.  Ms Griffiths could not remember this incident but said it was feasible that this occurred.[271]
  8. [254]
    Ms Griffiths said if a patient came onto the ward from the emergency department, an EEN would take handover from the emergency department escort, including what the patient presented with, what symptoms they had and what treatment they had had.  The EEN would then take an ECG and perform observations on the patient.
  9. [255]
    Ms Griffiths was asked about the incident described by Ms Robertson.  Ms Griffiths could not recall such an incident, and in particular could not recall Ms Codd becoming frustrated and shaking her fists.  She said she would have remembered if someone had been shaking her fists at Ms Robertson.
  10. [256]
    In cross examination, Ms Anderson described the conversation that is said to have occurred between Ms Robertson and Ms Codd.  Ms Griffiths could not remember such a conversation, but said the first part of the conversation, in which Ms Robertson had reported that the patient had chest pain and Ms Codd had asked if he had come onto the ward with chest pain, sounded normal.  Ms Anderson demonstrated the way in which Ms Robertson had showed how Ms Codd shook her fists.  Ms Griffiths said she did not remember Ms Codd shaking her fists at all and that she would have remembered it if she had seen it happen, because it was unacceptable.
  11. [257]
    Ms Robertson recorded the incident in her diary.  While in some respects her note accords with her evidence, there are some important differences.[272]  For clarity, I set out the relevant part of her note.

As I was doing vitals, pt [patient] c/o [complained of] cp [chest pain] sharp pain going up neck & into jaw – 6/10.  I got ECG machine & did vitals & told nurse in charge.  Pain was resolving & pt given ½ GTN.  Pain management as per protocol attended.  I went out to desk & Michelle said “What happen – pt come to ward with chest pain.”  I said “No pt got cp as I was doing vitals.”  Michelle said “So he had cp on arrival to ward.”  I said “No he was in our bed, I was doing vitals & that’s when he got cp.”  Michelle, “Hang on I don’t understand.”  She then goes into throwing her hands around.  I am becoming frozen, how can U not understand what I am saying.  So I started from the moment pt arrived to ward and went through it all again.  Michelle alright then.  Simon [sic] is sitting right beside me.

  1. [258]
    I consider that Ms Robertson’s contemporaneous note is more accurate than her recollection at trial.  I accept that the incident occurred as recorded in the diary.  Ms Codd was clearly trying to ascertain with certainty whether the patient had chest pain on arrival or only after having been accepted onto the ward.  She did not accept Ms Robertson’s explanation at first, but she was satisfied when Ms Robertson explained the entire sequence of events from the time the patient was brought into the ward by the emergency personnel.  It seems that both she and Ms Robertson were getting frustrated with each other.
  2. [259]
    I consider it likely that, by this time, Ms Codd did not like Ms Robertson and had serious doubts about her overall competence.  That may be why she wanted a more detailed explanation before accepting that it had been appropriate for the emergency department to deliver the patient to the ward.  In that respect, Ms Codd was being overly cautious and perhaps unjustifiably sceptical of accepting Ms Robertson’s word.  I find that she briefly waved her hands in the air, perhaps out of frustration, while trying to get a more detailed explanation, but I do not accept that she was yelling at Ms Robertson or shaking her fists at her, as Ms Robertson said in the course of her evidence.
  3. [260]
    Ms Codd’s caution in accepting Ms Robertson’s short explanation was understandable, given her concerns and those of others about Ms Robertson’s competence, including in recognising a patient’s deteriorating condition.  But it was unnecessary for her to question her in the manner she did, rather than simply directly asking her to give more detail about the patient’s condition on arrival and up to the time he complained of chest pain.  It was inappropriate for her to wave her hands in frustration. 
  4. [261]
    Ms Codd’s conduct did not amount to abusing Ms Robertson, as alleged, but if it was combined with other incidents of a similar nature, it had potential to constitute bullying or badgering.  I shall reconsider it when I come to consider whether the incidents that I find occurred, together constituted bullying, badgering or mobbing.

Other relevant events

Global assessment in August 2012

  1. [262]
    On 28 August 2012, RN Keely Mohr undertook a global assessment of Ms Robertson.  Ms Mohr and Ms Robertson had not met before then.  In cross-examination, Ms Robertson agreed that, as far as she knew, Ms Mohr was completely independent;  she did not know where she came from.[273]  However, she later said that she had a suspicion that, in producing a bad report and in making statements that Ms Robertson said were untrue, Ms Mohr was complying with what Ms Naylor wanted, to the end that Ms Robertson be removed from the ward, and that Ms Naylor put Ms Mohr up to putting in a false report.[274]  She disputed many of the matters recorded in the report.  She also said that Ms Mohr stopped her looking up patient records and intervened to stop her completing her work efficiently.[275]
  2. [263]
    In Ms Mohr’s report of her assessment,[276] there were a number of criteria that were marked as being “unsatisfactory”.  Ms Robertson agreed that her understanding was that, if the matters in Ms Mohr’s report were true, it would be mandatory for the hospital to refer Ms Robertson to the Australian Health Practitioner Regulation Agency (AHPRA).[277]
  3. [264]
    Ms Robertson said Ms Mohr provided feedback to her at a meeting later that day, at which Ms Naylor and Mr McPhee were also present.[278]  Ms Robertson said that, at the meeting, Ms Mohr started by saying, “You’ve failed.  If it was up to me, I’d have you walked off the floor, you’re a terrible nurse and you shouldn’t be practising.  You need to think about what you’re doing.”  Ms Robertson said there was no discussion about specific issues or education, nor was she shown the global assessment results.[279] 
  4. [265]
    Ms Robertson was clearly wrong in saying that there was no discussion about specific issues as, in her diary note of the day, she set out several issues that were raised in Ms Mohr’s discussion of her assessment with her.  That note, too, does not record that Ms Mohr told her she was a terrible nurse, nor that Ms Mohr said that, if it was up to her, she would have walked Ms Robertson off the floor.
  5. [266]
    Ms Naylor was asked about this alleged meeting, however she could not recall it.[280]  She did not have any recollection of a meeting between herself, Ms Robertson, Ms Mohr and Mr McPhee in which Ms Mohr said to Ms Robertson, “You’ve failed.  If I had my way, I’d walk you off the ward right now.  You’re a terrible nurse and you should think about what you’re going to do” or words to that effect.[281]  Ms Naylor said she would have remembered such things being said, as she would not have allowed someone to speak to Ms Robertson in that way.[282]
  6. [267]
    Similarly, Mr McPhee was asked if he attended such a meeting or heard Ms Mohr make any such comments.  He said he did not recall attending, nor those words. He was sure that, if those words had been said, he would have remembered them as they are “certainly out of the ordinary.”[283]
  7. [268]
    Ms Mohr gave evidence[284] about the assessment, so far as she could recall it, as well as her usual practice in carrying out such assessments.  Among other things, while she could not recall giving feedback to Ms Robertson, it was her practice always to do so (as she was required to do) and to do it in private.  In this case, she came in as an independent assessor, assessed Ms Robertson and left her assessment with the NUM, Ms Naylor.  She had a private discussion with Ms Naylor about it when she gave her the document.  She did not remember Ms Naylor and Mr McPhee being present at her review discussion with Ms Robertson.[285]
  8. [269]
    Ms Mohr denied telling Ms Robertson that she had failed, she was a terrible nurse and, if it was up to her, she would march Ms Robertson off the ward.  She said she would never have said those things to anyone, ever.  She tries to be tactful when delivering feedback.
  9. [270]
    I find that Ms Mohr was completely independent in carrying out the assessment of Ms Robertson.  She had no motive or reason to set out to fail Ms Robertson.  In particular, she did not attempt to please Ms Naylor or to give Ms Naylor a reason to remove Ms Robertson from the ward or from her practice generally as an EEN.  Ms Mohr carried out the assessment in an appropriate manner, observing Ms Robertson in her work, occasionally asking her questions about drugs and other matters relevant to the patients under Ms Robertson’s care, and intervening in her patient care only when she considered it necessary for the patient’s proper care and safety.  She did not stop Ms Robertson from looking up patient records or drugs, nor from carrying out her duties generally.  The matters recorded in the assessment were true and her opinions stated in it were genuinely held.
  10. [271]
    Ms Robertson was asked why, if Ms Mohr had said what she alleged, she did not write that into her diary entry of the meeting.  She said it was because she is a person who finds it hard to express herself.[286]  I do not accept that explanation.  Many of the entries in her diary demonstrate the contrary.  She both expressed herself and she recorded her perceptions of what was said and done in some detail.  She often recorded her feelings quite graphically.  In her evidence, too, she expressed herself adequately and said that she recalled things that were said by others to her.  I have no doubt that, if Ms Mohr had said those words, Ms Robertson would have recorded them in her diary.
  11. [272]
    As Mr Morton pointed out in his written submission, not only did Ms Robertson not record Ms Mohr’s alleged conduct in her diary, she also did not mention it to anybody, not even to her lawyers, her psychiatrist, Workcover or AHPRA.[287]
  12. [273]
    I do not know why Ms Robertson thinks Ms Mohr said those words.  Mr Morton submitted that it is because she was lying, which should affect my view of her evidence generally.  I have already expressed the view that Ms Robertson was generally attempting to tell the truth, as she recalled or construed events.  I do not consider that she deliberately lied in any of her evidence, but her recollections are coloured by her overall view that she was bullied and treated very badly by the hospital and its staff.  While I do not accept her evidence about Ms Mohr’s statements to her, I consider it likely that, having realised that Ms Mohr had assessed her as not competent, Ms Robertson may have wondered to herself why, if she was so bad, she was not just walked off the ward.  That thought has transformed into a belief that Ms Mohr actually told her exactly that.
  13. [274]
    It is apposite, in this respect, to quote from a decision long ago in England, in which Lord Pearce said:

Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist.  It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.[288]

  1. [275]
    Those words are, I think, apposite to much of Ms Robertson’s evidence.
  2. [276]
    Ms Robertson did not record any meeting attended by Ms Mohr, Ms Naylor and Mr McPhee to discuss the assessment.  I consider that she is mistaken in her recollection of such a meeting.  There was no such meeting.
  3. [277]
    I find that Ms Mohr reviewed her assessment with Ms Robertson at the end of the session.  She did not say any of the derogatory things that Ms Robertson recalls her saying.  Those words, if said, would be completely unprofessional and inappropriate.  I do not accept that Ms Mohr would have said them.
  4. [278]
    At the time of her meeting with Ms Robertson, Ms Mohr had not completed the assessment report.  She completed it shortly after and provided it to Ms Naylor.
  5. [279]
    On 30 August 2012, Ms Naylor wrote a letter to Ms Robertson confirming that she was not to dispense medications unsupervised.[289]  Ms Naylor could not recall when or how this letter was given to Ms Robertson.[290]  Ms Robertson acknowledged that she received it.[291]

The hospital’s concerns about Ms Robertson’s performance

  1. [280]
    Concerns about Ms Robertson’s ability to fulfil the requirements of an EEN were first recorded in Ms Fraser’s note of her conversation with Ms Harvey on 5 April 2011.  Those concerns related to her knowledge of medicines, her prioritisation of patient care and her recognition of a patient’s deteriorating condition.  Ms Fraser then undertook a performance appraisal and development plan with Ms Robertson, in which she formed the view that Ms Robertson required some further education in medication awareness, rhythm interpretation and general clinical skills.  They agreed upon the education to be provided, which included Ms Robertson working one day shift per roster in order to work with a clinical educator to improve her medication and clinical skills over the next six months.
  2. [281]
    That education occurred throughout the remainder of 2011.  However, by December 2011 Ms Naylor (then the acting NUM) and Mr McPhee continued to have concerns about Ms Robertson’s abilities.  Those concerns were based on their own observations, as well as reports from other nurses who had worked with Ms Robertson.  The concerns led to the performance improvement plan meeting on 19 December 2011, at which stage Ms Robertson was instructed not to administer medication without supervision.  That meeting was followed by some intensive assessment and support from a number of staff, including Ms Hill, Ms Naylor and Mr McPhee.  By January 2012 the concerns continued, as listed by Mr McPhee in his note.[292]
  3. [282]
    Those concerns were discussed with Ms Robertson in the meeting on 6 February 2012.  She was instructed not to administer medications at all for the three month period of the performance improvement plan that was given to her at or shortly after the meeting.  Again, she was offered continuing education, support and assessment of her abilities.
  4. [283]
    Then concerns were raised about Ms Robertson’s acknowledgment of her obligations in the event of a Code Blue, referring in particular to the incident on 18 March 2012.  She did not recognise or accept that all the nurses on the ward were responsible for calling a Code Blue and that, having been told, “I want the guedels and I want a code called,” she had a responsibility to do both unless she saw or agreed with another nurse that the other nurse would do one or both.
  5. [284]
    Mr McPhee said, that following the meeting on 28 March 2012, he prepared a new performance improvement plan for Ms Robertson, which he identified.[293]  That plan recorded the concerns about Ms Robertson and the further education and support to be provided to her.  As completed over the following months, the plan demonstrates that she attended a large number of education sessions, as well as being actively supervised on the ward.  Sometimes she demonstrated proficiency, but on other occasions she was reported as having performed inadequately.  Concerns were raised by a number of people.  Although, in the May global assessment, she was assessed as competent, Ms Naylor and Mr McPhee continued to have concerns about her performance, as it was not consistently competent, in their view.  This was demonstrated, in part, by matters listed in the attachment to the March plan, which recorded observations of Ms Robertson by a number of staff over the period from April to July 2012.
  6. [285]
    Mr McPhee was also asked about the attachment to the plan.  He said that the things recorded in that document happened.  Ms Robertson did whatever they asked her to do during the plan period (up to August 2012) but, when asked if there was any improvement in her clinical skills, he said it was the same as before – “sometimes she was good and sometimes she just didn’t get it.”[294]  This opinion seems to be supported by the comments of the various nurses who worked with Ms Robertson over that period.  All of them gave positive feedback about her performance, but also most raised concerns about some aspects (of varying importance) of her actions.  The comments demonstrated that on some days she performed competently or, indeed, well, while on others she could not recognise or recall appropriate medicines or other aspects of patient care.
  7. [286]
    In those circumstances, it is not surprising that, despite Ms Seehusen finding Ms Robertson to be competent on 22 May 2012, Ms Naylor and Mr McPhee were not convinced that she was consistently competent and later feedback from a number of people led them to decide to have Ms Mohr conduct another assessment.  The result of that assessment was so poor that even Ms Robertson agreed that, if the facts stated by Ms Mohr were true, the hospital would be obliged to refer Ms Robertson to AHPRA.

First complaint to AHPRA – September 2012

  1. [287]
    Ultimately, that is what the hospital did.  Ms Naylor provided a detailed referral to AHPRA on 3 September 2012.[295]
  2. [288]
    The result of that referral was that AHPRA ultimately accepted undertakings from Ms Robertson, in April 2013.  Under those undertakings, she was only to work under the supervision of an RN approved by AHPRA, she would undertake further education addressing her clinical competence in safe medication administration and she was to provide reports from her supervisor addressing her “illness and competence to practise” after one and three months from the undertakings.
  3. [289]
    Ms Robertson said in evidence that, while she started undertaking the required educational programmes, she did not complete them before she became unable to do so, or to work, due to her psychiatric condition.[296]  She later said that she completed the theoretical course but was unable to undertake the practical requirements because she was too ill.[297]

Work at Robina

  1. [290]
    In October 2012, Ms Robertson commenced working in the Acute Medical Unit at Robina Hospital.  This came about because, at the end of August, Ms Robertson was given a copy of Ms Naylor’s complaint to AHPRA and she decided that she had to go somewhere else.  She met the Director of Nursing on 3 September, seeking a transfer to another hospital.[298]  Eventually she was placed at Robina for a period of 12 weeks from 15 October 2012.  The letter confirming her appointment[299] stated that she would have a global assessment after six weeks and another at the end of her appointment.
  2. [291]
    Ms Robertson said that she only had one global assessment while she was there.  That occurred on 18 December 2012.[300]  The assessment recorded that Ms Robertson was competent in one of eight competency units and she was at advanced beginner level for each of the others.  The assessor gave detailed comments on each competency unit as justification for her assessed level of competence.  The assessor concluded that Ms Robertson did not display a level of nursing practice commensurate with a registered EN, but rather she functioned at an advanced beginner level.  She was not an independent practitioner who could adapt practice readily to manage complex situations.  However, the assessor concluded that, with direction, supervision and encouragement to self-assess realistically, Ms Robertson may develop insight into her current practice and develop accordingly.
  3. [292]
    Ms Robertson’s secondment to Robina came to an end in early January 2013.  However, when the time came to return to the Gold Coast Hospital on 7 January, she became very anxious and could not face going in, so she rang in sick.  She went to her doctor and obtained a medical certificate.  She never returned to work.[301]

Second complaint to AHPRA – June 2013

  1. [293]
    Ms Naylor was informed of AHPRA’s decision (that is, to accept undertakings from Ms Robertson) in respect of her referral, by letter dated 13 May 2013.[302]  Having received it, she telephoned AHPRA on 22 May 2013 to discuss “the clinical practice” of Ms Robertson.
  2. [294]
    Ms Naylor then made a second referral to AHPRA on 4 June 2013,[303] to which she attached the chronology and documents that had been attached to her original referral, together with several additional chronology entries and documents.  She sent that referral under cover of a letter dated 5 June 2013,[304] in which she referred to her conversation on 22 May 2013 and said she was providing further information about Ms Robertson’s undertakings.
  3. [295]
    In that letter, Ms Naylor set out the nursing standards that, she said, Ms Robertson had failed to meet.  She listed what she described as major areas of concern with Ms Robertson’s clinical practice.  They were, failure to retain information over a period of more than five minutes, failure to retain specific knowledge of medication, failure to recognise a deteriorating patient and respond appropriately and failure to work safely without RN supervision for every aspect of clinical care.  She submitted that, given the outcomes identified following extensive education and assessment, it was necessary for Ms Robertson’s fitness and competence to practise to be investigated further.  She recommended that Ms Robertson’s registration be suspended until her clinical practice had reached acceptable standards.  She also recommended investigation of Ms Robertson’s difficulties retaining recent information and alleged memory deficits.
  4. [296]
    Ms Naylor could not recall why she sent the second referral to AHPRA.  One might wonder why it was necessary, given that the alleged failures were all raised, in one form or another, in the first complaint.  However, it was not pleaded, nor suggested to her, that she did so other than in good faith.
  5. [297]
    Ms Robertson responded to the second AHPRA referral on 1 August 2013, in a letter in which she also responded to the 18 December 2012 global assessment report (which she said she had not seen before receiving it as part of the second AHPRA referral).
  6. [298]
    It is not clear, on the evidence, what the outcome of the second referral was, as Ms Robertson appeared (not surprisingly, given the passage of time) to blend the outcomes of the two reports together somewhat.  She did do some further education in 2017, apparently in an attempt to comply with AHPRA requirements, but she said she was unable to complete the physical requirements because she was too sick to complete the work required.[305]  Consequently, she never completed the requirements to return to work as an EEN.

Psychological assessment – January 2014

  1. [299]
    In January 2014, at AHPRA’s request, Ms Robertson undertook a psychological assessment in order to determine if she had a cognitive or psychological impairment that could detrimentally affect her capacity to practise.  The assessing psychologist prepared a report[306] in which he concluded that her verbal and visual memory was not impaired and she possessed a relative cognitive strength in learning, recalling and recognising verbal information.  Her ability to engage in mental flexibility, abstract reasoning and problem solving was also unimpaired and fell within the range that would be expected for a woman of her age and education.  Her memory and attentional abilities were areas of cognitive strength.  There were no indications to suggest that any difficulties she had exhibited in retaining information that had been presented to her were in any way due to a cognitive deficit or incapacity.
  2. [300]
    The psychologist noted that Ms Robertson reported some psychological distress.  She resented the way she had been treated, distrusted the motives and actions of those involved and was hypersensitive and vigilant to any further harm or inequities she may suffer.  Her pattern of responses suggested that her ongoing emotional distress was in response to stressors she had experienced in the workplace and were not characteristic of any persistent or underlying psychiatric disorder.
  3. [301]
    Finally, the psychologist concluded that Ms Robertson did not suffer from any cognitive or mental impairment, disability, condition or disorder that detrimentally affected or was likely to detrimentally affect her capacity to practise a an EEN.

Was Ms Robertson bullied, badgered or mobbed?

  1. [302]
    I have found two occasions on which it might be said that Ms Robertson was bullied by other staff:  on 6 April 2011 (by Ms Harvey) and on 17 August 2012 (by Ms Codd).  The behaviour of each of those nurses was, in some respects, inappropriate and no doubt insulting and offensive to Ms Robertson.  She was clearly upset by their conduct.
  2. [303]
    Conduct that is usually said to be bullying constitutes intimidating or demeaning another person, especially by repeated threats to their person, career, or social standing, or by harassment in person, on social networks, etc.[307]  Badgering is to harass or torment someone.  Mobbing, as I have said above, is to gang up on someone.
  3. [304]
    It is clear to me that both Ms Harvey and Ms Codd grew to dislike Ms Robertson and neither of them had confidence in her abilities as a nurse.  Had they engaged in similar conduct repeatedly and persistently, it would have amounted to bullying and badgering her.  If they combined to do so, it would have constituted mobbing.  But their conduct, even on these two occasions, although inappropriate, did not amount to bullying.
  4. [305]
    The incidents were isolated and separated by a long period.  Ms Harvey and Ms Codd did not persistently attack or otherwise treat Ms Robertson in a bullying manner.  Therefore, they did not badger her.  Although they no doubt discussed her frequently over the period concerned, I do not accept that they deliberately combined to harass her.
  5. [306]
    In the circumstances, Ms Robertson has not satisfied me that the defendants’ employees, or the defendants themselves, bullied, badgered or mobbed her.
  6. [307]
    As a consequence of that finding, Ms Robertson fails in her claim against the defendants.  However, in case I am found to be wrong in this conclusion, I shall proceed to consider whether, if she had been treated as she alleges, the defendants owed her and breached the alleged duty of care and, if so, what loss she has suffered.

Did a duty of care arise?

Legal principles

  1. [308]
    As Ms Robertson’s employer, the hospital owed a non-delegable duty to take reasonable care to avoid exposing her to unnecessary risks of injury.[308]  The present question is whether the defendants owed her a duty to take reasonable care to avoid causing her a psychiatric illness in the course, or as a result, of her employment. 
  2. [309]
    As an employer, the defendants have vicarious liability for harm caused by the conduct of their employees acting in the course of their duties as employees.  To be liable for their employees’ conduct, there must be a sufficiently close connection between that conduct and the type of conduct the employees were engaged to perform, so that it may be concluded that the conduct was carried out in the course of their employment.[309]  There is no issue, in this case, that, if the defendants’ staff had bullied, badgered or mobbed Ms Robertson, their actions were undertaken in the course of their employment by the defendants.  The defendants would therefore be vicariously liable for their employees’ conduct.
  3. [310]
    The starting point for determining whether the defendants owed the relevant duty is to consider the obligations which the parties owed one another under the contract of employment, any further obligations arising from that relationship and any applicable statutory provisions.[310]  Ms Robertson pleaded that it was a term of her contract of employment “and/or it was a duty of the defendants” to take all reasonable precautions for her safety.  Although I have not seen any formal employment contract between the hospital and Ms Robertson, she was employed as an EEN and would clearly have been required to carry out the duties and responsibilities of an EEN in a competent and safe manner.
  4. [311]
    Courts recognise, as a matter of general knowledge, that some recognisable psychiatric illnesses may be triggered by stress.  It is, however, a further and much larger step to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work.
  5. [312]
    The central inquiry in determining whether a duty of care to avoid a psychiatric injury arose is whether, in all the circumstances, the risk of the particular employee (that is, the plaintiff) sustaining a recognisable psychiatric injury was reasonably foreseeable by the employer, in the sense that the risk was not far-fetched or fanciful.[311]  To trigger a duty to take reasonable steps to avoid a psychiatric injury, the indications of impending harm to her health arising from stress or other factors at work must be plain enough for any reasonable employer to realise that it should do something about it.[312]  Evidence as to what notice the employer had that the employee in question was at risk of suffering psychiatric injury will often play an important role in cases such as this.  When employees manifest signs of stress at work, courts will make a distinction between stress on the one hand and a recognised psychiatric illness on the other.  The courts will not assess an employer’s capacity to detect signs of mental illness as though the employer were a medical specialist.[313]
  6. [313]
    It does not follow that, if such a person suffers a psychiatric injury, the employer will necessarily be liable.  The employer’s obligation is only to take reasonable care to avoid a psychiatric injury.  The central issue remains as described above.
  7. [314]
    The mere fact that an employee has been exposed to stressful situations in the workplace (even situations that should not have occurred) does not make it reasonably foreseeable that the employee will suffer psychiatric injury.  This extends to stress caused by poor relationships between employees.  In Eaton v TriCare (Country) Pty Ltd,[314] McMurdo JA said:

It was not the legal responsibility of the respondent to its employees to provide a happy workplace or one in which their productivity might have been enhanced by temperate and polite behaviour from those in managerial positions. The relevant legal responsibility was to take reasonable care to avoid a risk of a psychiatric injury to the appellant, in the circumstance that she was exhibiting a particular vulnerability.

  1. [315]
    On the other hand, an employer who has relevant information about a specific employee may be liable even though the matters about which the employee complains would not foreseeably cause psychiatric injury to most people.  Foreseeability of psychiatric injury is not assessed by reference to a notional person of normal fortitude, but on the basis of the impression created by, and the other overt or foreseeable sensitivities of, the actual person affected.[315]  This invites attention to the nature and extent of the work being done by the particular employee and signs given by that employee.[316] 
  2. [316]
    The mere fact that an employee has suffered a psychiatric injury, even as a consequence of her employment, does not demonstrate that the employer had a duty to the employee to avoid causing such an injury, nor that, even if a duty arose in the particular circumstances of the case, the injury was caused because the employer breached that duty.  To succeed, the employee must prove that a duty arose in the circumstances, the duty was breached and the breach caused the injury.
  3. [317]
    So far as workplace bullying is concerned, in Nationwide News Pty Ltd v Naidu[317] Spigelman CJ said:

It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough. …

It does appear that over recent decades the helping professions and the pharmaceutical industry have medicalised many of the normal stresses of everyday life, including working life. The law has not expanded legal responsibility for conduct in the same way.   Koehler makes it clear that the common law of Australia will not do so, failing to follow such developments in other common law jurisdictions.

An employer can be liable for negligence because of a failure to protect an employee against bullying and harassment. However, the existence of such conduct does not determine the issue of breach of duty.  As Hayne J put it in Tame (at 417 [296]):

“… [A] plaintiff will not recover damages for an injury which psychiatric opinion recognises as a psychiatric injury by demonstrating only that such an injury was reasonably foreseeable and that the defendant's negligence was a cause of the injury which the plaintiff sustained.”

One of the elements required to be assessed is the degree of probability that the risk of psychiatric injury may occur, even when the reasonable foreseeability test of a risk that is not far fetched and fanciful, has been satisfied.

  1. [318]
    Whether there were sufficient indications to give rise to foreseeability of injury and therefore the imposition of a duty to take reasonable steps to avoid that injury must not be assessed in hindsight, but in the light of the employer’s knowledge of the facts at the time the duty is alleged to have arisen.   For that reason, evidence as to what notice the employer had, including signs given by the employee, that the employee in question was at risk of suffering psychiatric injury often plays an important role in such cases.[318]
  2. [319]
    Of course, it is psychiatric injury that must be foreseeable.  Except in exceptional circumstances, a person is not liable, in negligence, for causing distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness.[319]
  3. [320]
    The number of episodes of potential breach and the seniority of the persons concerned are also relevant factors.  As Henry J has said,[320]

Firstly, it is logically necessary to consider the foreseeability of the risk of psychiatric injury by reference to the foreseeable cumulative effect of those episodes. The nature of a single episode may not of itself bespeak a probability of psychiatric injury but the increasingly draining impact of an accumulation of such episodes might. 

Secondly, if the repeated episodes of potential breaches are attributable to a principal perpetrator it is appropriate to consider the perpetrator’s position of power in the workplace relative to that of the psychiatrically injured employee. As a general and by no means determinative proposition, repeated potential breaches by a junior employee would not ordinarily be recognised as being as likely to cause psychiatric injury as repeated potential breaches by an employee in a position of managerial power over the injured employee. In the case of the former, there may of course be other elements present in a particular case, including signs given by the injured employee, rendering psychiatric injury foreseeable. In the case of the latter however, the intrinsic power differential is of itself an element tending to increase the probability and thus foreseeability of psychiatric injury.

  1. [321]
    The defendants in this case rely strongly on two intermediate appellate court decisions that have held to the effect that an employer has no duty to an employee to undertake an investigation into that employee’s conduct of his or her duties in a manner that avoids a foreseeable risk of psychiatric injury arising from the investigation.  Those decisions are State of New South Wales v Paige[321] and Govier v The Uniting Church in Australia Property Trust (Q).[322]  The defendants submitted that the defendants’ conduct in dealing with Ms Robertson was akin to an investigation into her conduct (that is, her conduct and competence as an EEN) and into complaints made about her by other employees.  In that case, the defendants owed her no duty of care to conduct that investigation in a safe manner.
  2. [322]
    In Paige, the New South Wales Court of Appeal held that a duty, proposed by the plaintiff as owed by an employer, to supply a safe system of work to an employee in relation to the incidents of the contract of employment, such as in the disciplinary procedures under consideration in Paige, was a novel category of duty which involved an extension beyond the duty established by case law to supply a safe system of work in relation to the conduct of tasks for which an employee was engaged and was not a duty recognised by law. 
  3. [323]
    In Govier, the Queensland Court of Appeal held that, similarly, the law does not impose a duty of care in the course of investigating an employee’s conduct or complaints against an employee.  The plaintiff in that case had been physically attacked by a fellow employee and, in the course of investigating that complaint, the employer accused the plaintiff, effectively, of inciting the attack or of being the attacker herself.  Those accusations caused the plaintiff further distress (over that caused by the other employee’s conduct toward her) that aggravated her existing psychiatric injury because she perceived that the defendant was attacking her, that she was not supported by management, that baseless allegations of unprofessional conduct had been made against her and that unjust threats had been made to terminate her employment.
  4. [324]
    Fraser JA categorised those allegations as “concerned only [with] the respondent’s exercise, allegedly in a careless way, of its contractual rights to investigate a workplace incident involving two employees and a client, and to make decisions about the appellant’s contract of employment which it was contractually entitled to make.”[323]  His Honour concluded that the defendant did not owe the plaintiff a duty of care to avoid injury by its conduct of the investigation.
  5. [325]
    On the basis of these cases, the defendants submit that, even if the defendants knew that there was a foreseeable risk of psychiatric injury to the plaintiff arising from the defendants’ consideration of the complaints that had been made about her competence and its consequent review of her competence, the defendants owed her no duty of care to take steps to avoid such injury in the course of their review.
  6. [326]
    Ms Anderson submitted that the defendants were not investigating Ms Robertson’s conduct.  They did not conduct any investigation, as they should have, into the allegations made against her, but merely accepted them as the truth and acted on them.  Therefore, this case is distinguishable from those cases

Did the circumstances alleged give rise to a duty?

  1. [327]
    In her statement of claim, Ms Robertson alleges three alternative occasions on which a duty of care arose in the defendants to take reasonable care to avoid the risk of psychiatric injury to her. 
  2. [328]
    First, Ms Robertson alleges that the duty arose by 19 December 2011, in the light of the incidents alleged to have occurred on and before that date and Ms Naylor’s alleged knowledge, on that date, that Ms Robertson lacked confidence in administering medications and required support and help to increase her confidence.[324]
  3. [329]
    Secondly, the duty is said to have arisen by 29 March 2012, as a result of all the incidents alleged to have occurred on and before then and because, by then, the hospital knew that Ms Robertson felt that she was being unfairly targeted by other staff on ward 9C; both Ms Robertson and the hospital knew that, if Ms Robertson’s registration as an EEN was withdrawn as a result of the complaints about her, she would not be able to continue in her profession; the defendants did not offer Ms Robertson an assurance that the complaints against her would be investigated; and the hospital assumed that she was incompetent.[325]
  4. [330]
    Thirdly, the hospital had such a duty by 22 May 2012, as a result of all the previous alleged incidents and the facts that Ms Robertson had completed the further education and testing required of her, she had been assessed as a competent EEN in the global assessment conducted that day and yet Ms Naylor and McPhee remained of the view that she was not capable of safely administering medications on the basis of other nurses’ complaints.[326]
  5. [331]
    I must consider these contentions on the assumption that the incidents that I have found occurred, or at least some of them, constituted bullying, badgering or harassment of Ms Robertson.  On that assumption, did the defendants know sufficient information to give rise to a reasonable apprehension that Ms Robertson might suffer a psychiatric injury if steps were not taken by the hospital to avoid that?
  6. [332]
    On each of the alleged occasions, the defendants’ responsible officers (whose knowledge I impute to the hospital) were Ms Naylor (as the NUM) and Mr McPhee (as the clinical nurse educator). 
  7. [333]
    There is no evidence that, on any of those occasions, either Ms Naylor or Mr McPhee knew about Ms Robertson’s complaints about the incidents on 1 April, 6 April, 19 May or 5 November 2011.  Nobody appears to have told them and Ms Robertson did not raise them at any stage.  But they did know, because Ms Robertson told them at the meeting on 19 December 2011, that by then Ms Robertson felt lonely because she did not feel supported by other nursing staff and she was not confident in administering medications.
  8. [334]
    Ms Robertson and her counsel placed great emphasis on the accusation, made at this meeting, that she had made a medication error, and that the accusation was made without any prior investigation into the allegation.  They submit that that fact and Ms Robertson’s statements at the meeting about how she felt should have put Ms Naylor and Mr McPhee on notice that she was at risk of developing a psychiatric injury.
  9. [335]
    I have found that Ms Naylor raised the allegation in the context of a more general discussion about Ms Robertson’s competence in administering and dealing with medications.  When she denied making such an error, Ms Naylor said she would look further into it, which she did.  I do not consider that the mere raising of the allegation that had been made to Ms Naylor would give rise to a foreseeable risk of psychiatric injury.  It would certainly be foreseeable that it would cause Ms Robertson some concern and distress, but that should have been allayed by the proposal to look into it further and, ultimately, by Ms Naylor’s apology after doing exactly that.
  10. [336]
    I do not consider that the defendants’ knowledge, as at this meeting, gave rise to a foreseeable risk of psychiatric injury.  It would have been clear to Ms Naylor and Mr McPhee that some of the nursing staff had doubts about Ms Robertson’s competence as a nurse.  Apart from the incorrect allegation of a medical error, they had no knowledge that staff may have, on occasions, acted inappropriately toward her.  It would also have been clear that Ms Robertson was feeling unhappy in working with some of the other nursing staff and that she was not confident that she could properly administer medications.  But those matters could not, in my view, give rise to such a foreseeable risk.  Rather, they – and the complaints about her – gave rise to a need to provide education in medication that would increase her confidence and would be likely to result in her overall satisfaction at work improving. 
  11. [337]
    By 28 March 2012, Ms Robertson had been assessed by Mr McPhee and other staff observing her practice on different occasions.  They confirmed, as she was told on 6 February 2012, that she did not meet the competency standards.  At the 6 February meeting, she told Ms Naylor and Mr McPhee that she had lost confidence and felt that her ability to administer medications was often disregarded by other staff:  in essence, she felt the same as she had in December 2011.  She was offered both counselling and more education to assist her. 
  12. [338]
    On 28 March 2012, Ms Naylor and Mr McPhee discussed the Code Blue incident with Ms Robertson.  She was, effectively, admonished by Ms Naylor for not accepting that she had a responsibility to have called a code, whether or not she was directly asked to do so by Ms Ashman.  Ms Robertson told Ms Naylor and Mr McPhee that she was feeling unsupported, that she was not being listened to and that she felt the victim at times.  They all agreed to start a new performance improvement plan to take into account her concerns.
  13. [339]
    Again, I do not consider that, by 28 March 2012, Ms Robertson gave any signs to Ms Naylor and Mr McPhee that she was at a foreseeable risk of psychiatric injury.  No doubt it was obvious that she felt stressed and upset and that she continued to feel that she was not getting support, but that does not of itself make such a risk foreseeable, particularly in circumstances where, having admonished her for, in the employer’s view, not having performed her duties, she was offered more support and education in order to improve her competence.  If her competence improved, one might reasonably have expected that her confidence and her relationships with other staff would also have improved. 
  14. [340]
    As to the third date by which Ms Robertson alleges the relevant duty of care arose (if it had not arisen on either of the earlier occasions), she does not rely on the alleged incidents in April and May 2012, but only on the incidents in and before March 2012.   She particularly relies on the facts that, on 22 May 2012, Ms Seehusen assessed her as competent, yet Ms Naylor and Mr McPhee continued to lack confidence in her ability safely to administer medications, based on other nurses’ complaints.  Ms Anderson submitted that this attitude of Ms Naylor and Mr McPhee, even after Ms Seehusen’s assessment, gave rise to a foreseeable risk of psychiatric injury because it meant that her employer was “moving the goal posts”.
  15. [341]
    At this stage, Ms Anderson submitted, Ms Robertson had been treated as an incompetent nurse for over a year but she was now shown to be competent.  It was foreseeable that, having had that positive assessment, she might suffer a psychiatric injury if her supervisors and fellow staff did not accept that she was competent and treat her as such.
  16. [342]
    The defendants submit that the hospital was not moving the goal posts.  It had an ongoing obligation to ensure patient safety and, to that end, to be satisfied that Ms Robertson was consistently competent, especially in the administration of medicines and in recognising a patient’s deteriorating condition.  Its senior nursing staff had ongoing concerns about her competence and the hospital was therefore entitled to investigate and take steps to ensure her competence.  Notwithstanding this one-off assessment of her performance on one day, experience (including the direct experience of Ms Naylor and Mr McPhee) indicated that she was not yet consistently sufficiently competent to be permitted, especially, to administer medicines without supervision.
  17. [343]
    I do not consider that these facts gave rise to a foreseeable risk of psychiatric injury.  They gave rise to a risk of ongoing stress, given the hospital’s insistence that she continue to be supervised, but that supervision included ongoing education on the ward that had the prospect of Ms Robertson overcoming the concerns by demonstrating her knowledge and competence.
  18. [344]
    Ms Anderson submitted that the hospital did not carry out any investigations, either of the allegations against Ms Robertson or of her competence.  I disagree.  Concerns about her competence were raised by a number of nurses on a number of occasions.  As a result, her employer called her in to discuss them and decided that it would take steps to assess her and then to educate and support her in her practice.  The hospital did not have a duty to Ms Robertson, on each occasion that nursing staff gave its management details of concerns they had about her competence, to conduct a formal or detailed investigation into the concerns, to see if they were justified.  Indeed, I cannot see what more the hospital could have done, apart from calling in each nurse to explain the events and their consequent concerns in more detail.  It had no duty to do that.  Ms Robertson did not, in any event, demonstrate how that would have changed the outcome that the defendants continued to have genuine concerns about her competence as an EEN.
  19. [345]
    In respect of all these occasions, I consider that the hospital, as Ms Robertson’s employer, was entitled to review Ms Robertson’s practice and to decide for itself whether she was able competently and consistently to carry out the duties of her employment.  That is what it was doing at all times from 19 December 2011.  Even if there was a foreseeable risk that those actions might cause Ms Robertson psychiatric injury, the hospital had no duty of care to take reasonable steps to avoid such an injury if it were to arise from its reasonable steps in investigating, assessing, educating and, where it considered it necessary, admonishing her where she did not perform her duties properly.
  20. [346]
    Therefore, I find that the defendants did not owe the plaintiff the posited duty of care at any time.

Did the hospital breach any duty of care?

  1. [347]
    Notwithstanding that finding, I must consider whether, if the defendants did owe the plaintiff such a duty, it breached that duty.
  2. [348]
    Of course, any breaches can logically only have occurred after a duty of care arose.  Therefore, the earliest possible breach was on 19 December 2011.  Despite that, in her submissions Ms Anderson relied on the alleged incidents before that date as breaches of the defendants’ duty.  It is not possible that those incidents can themselves have been breaches of a duty that had not yet arisen, on Ms Robertson’s own case. 
  3. [349]
    Ms Robertson alleged that the defendants breached their duty in seven ways:
  1. (a)
    failing to take any, or any adequate, precautions for her safety while she was carrying out her assigned work;
  2. (b)
    exposing her to a risk of injury of which they knew or ought to have known and which could have been avoided by reasonable care;
  3. (c)
    failing to have in place a reasonable system for investigating complaints;
  4. (d)
    failing to prevent and protect her from badgering, bullying, mobbing and harassment in the workplace;
  5. (e)
    requiring her to work as a supernumerary when they knew or ought to have known that she had been bullied and that that would be humiliating and degrading and would increase the risk of her being exposed to injury;
  6. (f)
    failing to provide and maintain any safe or proper system of work; and
  7. (g)
    failing to take any, or any adequate, action to protect her health when they knew, or ought to have known, that the bullying was continuing and that false accusations injurious to her health had been previously made against her.
  1. [350]
    Detailed particulars of most of those allegations were provided, but they are too numerous to set out here.  I shall attempt to address them in broad form in my discussion of the allegations.
  2. [351]
    Ms Anderson criticised the defendants for not investigating the various nurses’ complaints about Ms Robertson, but accepting them at face value.  But she did not say, for example, what the defendants should have done to investigate them that it did not do.  From December 2011, it raised the complaints with her, in either general or specific terms, and arranged for her to be overseen and assessed in order to help Ms Naylor and Mr McPhee to decide whether she was competent or to improve her confidence.  I consider its actions in that respect to have been entirely appropriate and, if it had the duty, it fulfilled it by arranging to have her supervised in order to assess her competence and to give her educational and operational support.
  3. [352]
    It is material that Ms Robertson did not complain to anyone at the hospital that she was being bullied, badgered or mobbed.  Ms Anderson submitted that the defendants knew that she felt that she had been bullied, but there is no evidence that she made such a complaint.  Had she done so, then the hospital may have been on notice that it should take steps with the other nurses to ensure that any such behaviour did not continue.  While she said she felt alone, unsupported and the victim, she was then given substantial support, both while on shift, in her assessments and in her further education, all of which had the design and potential to improve her competence, her confidence and her relationships with other staff.  She was also directed to the hospital’s counselling service, should she feel that she needed any psychological support.  She did not take up that suggestion, she said, because she was already seeing a psychologist outside the hospital system.  She did not inform the hospital of that fact.
  4. [353]
    Ms Anderson submitted that the hospital ought, among other things, to have ensured that Ms Naylor and Mr McPhee did not pre-judge Ms Robertson’s abilities on the basis of complaints made about her.  It seems to me that they did not do that.  They took account of the complaints made about her and went on to undertake their own assessments of her abilities.  It was also open to Ms Naylor to form her own professional view about Ms Robertson’s failure to call a Code Blue on 18 March 2012, especially as Ms Robertson did not dispute that she had not called a code;  rather, she thought others ought to have done so. 
  5. [354]
    Ms Anderson submitted that the defendants knew that Ms Robertson needed support for her lack of confidence.  They did.  They gave her that support by implementing performance improvement plans, arranging for her to have further education and to work with other nurses as a supernumerary and reminding her of the hospital’s counselling service.  It is not clear what else they could have done. 
  6. [355]
    Far from requiring Ms Robertson to work as a supernumerary being a breach of duty, it was part of the support and education that was made available to her to attempt to improve her abilities and her confidence. 
  7. [356]
    It is not clear to me how the fact that the defendants knew that some of the allegations could lead to her registration being made subject to conditions, or suspended or withdrawn, could contribute to or constitute any breach of any duty.  The education and support that the hospital provided to her was intended to ensure that she had (or regained) sufficient competence to continue to work as an EEN.  While it may have been a source of stress to her, if she considered it, that her registration may be under threat, that was due to assessments of and concerns about  her competence by a number of professional staff over a period of time.  It was not a breach of duty by the hospital to take steps to assist her to retain her registration.
  8. [357]
    I am not persuaded that there was anything unsafe in the system of work, the conduct of the investigations and the provision of education and on-the-ward support that were undertaken.  It was all undertaken in the interests of patient safety and Ms Robertson’s ability to continue to practise as an EEN.
  9. [358]
    In summary, I do not consider that the hospital breached any duty it may have owed to Ms Robertson.

Ms Robertson’s illness

  1. [359]
    Notwithstanding that conclusion, it is necessary for me to consider whether, if the hospital did have the relevant duty of care and breached it, that breach caused Ms Robertson to have a psychiatric illness.
  2. [360]
    It is not disputed that Ms Robertson has a psychiatric illness.  The defendants did not call any evidence about her state, nor did it challenge the evidence tendered on Ms Robertson’s behalf.  I turn now to consider that evidence.
  3. [361]
    Dr Asha Sadasivan is a consultant psychiatrist practising on the Gold Coast.  Ms Anderson tendered a letter dated 12 August 2014 from Dr Sadasivan to Workcover, a letter dated 17 May 2019 from her to Ms Robertson’s solicitors and a note of a conversation she had on 5 March 2020 with Ms Anderson and her instructing solicitor.[327]
  4. [362]
    In her 2014 letter, Dr Sadasivan said that Ms Robertson first attended at her clinic on 15 February 2013, with symptoms of mild to moderate depression “in the context of alleged bullying and harassment from work.”  She said that Ms Robertson had told her that she had been accused of making a medication mistake without any evidence and that it was reported to AHPRA.  AHPRA placed restrictions on her practice and she lost confidence in her abilities to fulfil her responsibilities, especially administering medication.  Since 2014 she had been well and had managed to commence the medication course.  Dr Sadasivan said that she had suffered from major depressive disorder precipitated in the context of situational stressors related to her job.  However, she was then well and had the capacity to return to work, being in remission and with a good prognosis.
  5. [363]
    In her 2019 letter, Dr Sadasivan said that Ms Robertson had suffered permanent psychiatric disability and had lost her confidence, particularly in relation to her ability to work in her pre-morbid capacity.  This had had a significant impact on her ability to work in the role for which she was qualified.
  6. [364]
    In the note of her conversation in March 2020, it is recorded that she said that, although Ms Robertson theoretically might be capable of some level of work, she was not commercially employable.
  7. [365]
    Dr Gary Larder is consultant psychiatrist with AHPRA and a Clinical Senior Lecturer in the Department of Psychiatry at the University of Queensland.  He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and of the Royal Australian College of General Practitioners.  Ms Anderson tendered two reports by Dr Larder, respectively dated 17 August 2017 and 8 November 2019, and a note of a conversation he had with Ms Anderson and her instructing solicitor on 4 March 2020.
  8. [366]
    In his diagnosis in each report, Dr Larder opined that Ms Robertson had a chronic psychiatric condition consistent with a major depressive disorder, with a history of recurrent anxiety and depressive systems. 
  9. [367]
    I find that Ms Robertson had a mild to moderate depressive disorder in early 2013, which progressed to a major depressive disorder, although it seemed to have been substantially overcome, or at least to be in remission, by August 2014.  However, some time later in 2014 it regressed to an ongoing major depressive disorder, as diagnosed by Dr Sadasivan.  I find that she still has a major depressive disorder, as Dr Larder reported.

Was Ms Robertson’s psychiatric injury caused by any breach of duty by the defendants?

  1. [368]
    The defendants submitted that, even if the duty and breaches alleged occurred, the plaintiff has not proved that the defendants’ breaches of duty caused her psychiatric injury.
  2. [369]
    They pointed to the general principles for assessing causation set out in s 305D of the Workers Compensation and Rehabilitation Act 2003 (Qld).  They submitted that, to prove that the defendants’ conduct caused the injury, the plaintiff must prove that, if the defendants had performed their duty, that would have averted the harm.[328]  That it could or might have prevented the harm is not enough.[329]  Nor is it enough that the injury followed the breaches of duty:  reasoning on the basis of such an assumption, as the plaintiff does here, is flawed in logic and the flaw is deepened when the reasoning is sought to be used to exclude any other preceding event from having had a causal relationship with the event which occurs later in time.[330]
  3. [370]
    The defendants submitted that there were two reasons in particular why Ms Robertson had failed to prove that her illness was caused by any breaches of duty by the hospital.
  4. [371]
    First, she has neither pleaded nor proved how, if the alleged breaches had not occurred, it would have prevented her illness.  It is incumbent on a plaintiff both to plead and to prove a counterfactual hypothesis.[331]
  5. [372]
    Secondly, there must be sufficient correlation between the findings of breach and the expression by the psychiatrist of the assumptions which underlie his or her opinion as to causation.[332]  The defendants submitted that Dr Larder’s and Dr Sadavasian’s reports do not record all the alleged incidents, they record other matters that are not subjects of the statement of claim, they do not identify matters that are the alleged breaches of duty and they do not identify what would have happened if the breaches had not occurred.  Therefore, their evidence is not sufficient to prove that Ms Robertson’s illness stemmed from any breach of duty by the defendants.
  6. [373]
    In her written submission, Ms Anderson dealt with causation very briefly.  She submitted that, but for the defendants’ negligence as alleged in the statement of claim, Ms Robertson would not have been injured.  The defendants did nothing to take care for her psychiatric health.
  7. [374]
    In her address Ms Anderson submitted that the evidence of both psychiatrists proved that her psychiatric illness was caused by the incidents and bullying at work.  No other cause was suggested and, in particular, no incidents or causes outside of her work at the hospital were said by the defendants, or suggested to Ms Robertson, as having caused that illness.  Therefore, from a medical point of view, there were no other causes of injury and so I can accept that her injury was caused by the incidents and bullying at work.
  8. [375]
    Ms Anderson referred me to the decision of Judge Devereaux SC in Eaton v Tricare (Country) Pty Ltd.[333] His Honour there described Midwest v Arnold as a case where:

There was a very real possibility that the medical witness whose opinion was accepted based his opinions partly on matters that were rejected by the trial judge in making his findings, or on evidence which the judge did not in the end accept.  McPherson and Williams JJA held that the plaintiff failed at trial to establish her cause of action.

  1. [376]
    Judge Devereaux had also rejected some of the facts that the psychiatrists had relied on in forming their opinions as to the causes of the plaintiff’s illness.  Nevertheless, his Honour found that the psychiatric evidence proved that the defendant’s conduct caused that illness.  His Honour said:[334]

Ultimately, I feel comfortable drawing, from the psychiatric opinion, certain conclusions while taking into account the variations in base facts.  This is because of the nature of the findings I have made inconsistent with the plaintiff’s account to the doctors.  …

If this approach seems contrary to the reasoning in Arnold, it may be defensible on the basis that it is a practical approach.  It does not seem realistic or reasonable in a case such as the present, where many particulars of conduct over a long period of time are relied on for their cumulative effect, for the expert to offer an infinitely calibrated set of opinions furnished according to the possible combinations of accepted facts.  The alternative would be for the trial judge to make findings of fact before the opinion evidence is called.  And that does not seem workable.

The remaining question is whether the facts upon which the opinions were given are so substantially different from the findings I have made in favour of the plaintiff that the doctors’ opinions do not support a conclusion that the plaintiff’s experience in the workplace under the management of Harrison caused her present condition. There are some facts referred to by Dr Whiteford in his first report, dated 5 November 2010, which I have not found.  … 

With the benefit of the opinions of the doctors, filtered as I have discussed above, I am satisfied that it is safe to conclude the plaintiff’s consistently excessive workload and the conduct of Harrison as I have found them to be caused the plaintiff’s current psychiatric condition. In reaching this conclusion it [sic] take into account all of the evidence, particularly including the evidence of the course of the plaintiff’s psychological state and its deterioration during the period of Harrison’s management of the facility.

  1. [377]
    On appeal from Judge Devereaux’s, the appellant (Ms Eaton) contended that, given what were said to be significant differences between the factual premises upon which the psychiatrists opined and the findings made by the trial judge, his Honour was wrong to find as he did on the question of causation.  McMurdo JA rejected that proposition.  His Honour said:[335]

The respondent is correct in contending that any finding of causation must be made by reference to the particulars of an accepted breach of duty. The defendant’s breach of duty was by the conduct of Ms Harrison which the trial judge accepted did occur.  …  Because the primary facts by which the respondent was negligent were those employed by the trial judge in his conclusions on the subject of causation, a conclusion by this court of causation would be consistent with the reasoning and findings of the trial judge.  ... 

The question then is whether the trial judge was correct to reason that such differences as there were between the factual premises of the psychiatric opinions and the facts as found by his Honour, did not preclude reliance upon those opinions for a finding of causation.  …

The facts found by the trial judge were largely as they were alleged by the appellant.  …  In substance, the trial judge found that such conduct did occur.  …  The probative value of the evidence of [the psychiatrists] was not diminished by the fact that there were some relatively few instances where the trial judge found that the appellant had exaggerated the aggressive nature of Ms Harrison’s conduct.

  1. [378]
    Ms Anderson submitted that, even if I do not find in Ms Robertson’s favour in respect of all the incidents and breaches of duty that she alleged, having regard to the matters that Ms Robertson had reported to the psychiatrists and their opinions that those events caused her illness and having regard to Ms Robertson’s evidence of how she felt about each of the incidents, I can be comfortable in finding that the defendants’ breaches of duty following those incidents caused Ms Robertson’s illness.  Even the incidents that occurred before a duty arose are relevant, given Ms Robertson’s evidence that their effects on her accumulated over time.
  2. [379]
    I turn now to the facts relied on and the opinions expressed by each of the psychiatrists in this case.
  3. [380]
    In her 2014 letter, Dr Sadasivan opined that, in early 2013, Ms Robertson had a mild to moderate depressive disorder “in the context of alleged bullying and harassment from work.”  She recorded that Ms Robertson had told her that she believed that staff on the ward did not like her and that she had been accused of making a medication error.  Ms Robertson also told her about the apology for asserting that she had made that error.  Dr Sadasivan did not refer to any other alleged instances of bullying and so she appears to have accorded the mild to moderate depression to the alleged medication error and apology and other staff’s apparent dislike of Ms Robertson. 
  4. [381]
    Dr Sadasivan then referred to the report to AHPRA and the conditions placed on Ms Robertson’s practice.  Without specifically alluding to those matters, she went on to diagnose major depressive disorder, but she did not say when that particular disorder arose.  She went on to say that Ms Robertson’s “depressive episode appears to have been triggered by alleged bullying, work related stress, and her difficulty in adjusting with changes in the work when she was moved to daytime shifts.”
  5. [382]
    In her 2019 letter, Dr Sadasivan said that, as a result of bullying at work (incidents of which the doctor did not identify), Ms Robertson has suffered from permanent psychiatric disability.  She has lost her confidence, particularly in relation to her ability to work.  Her concentration has been affected and she struggled to do any complex tasks.  She is not able to work at all in her previous position, nor in any similar position.  The prospect of further training had been overwhelming and she had been unable to complete the course required by AHPRA. 
  6. [383]
    In the meeting on 5 March 2020, Dr Sadasivan was asked about the work-related issues that had affected Ms Robertson.  She said Ms Robertson had talked about the staff bullying her and that she felt she was being made a scapegoat when things went wrong.  She opined that Ms Robertson’s mental health issues were all related to work.  She was not commercially employable.  She had lost all confidence and did not have the confidence to complete the courses AHPRA required.
  7. [384]
    In his first report, Dr Larder recorded that Ms Robertson had told him about the infusion pump incident on 11 August 2011,[336] being accused of a medication error on 19 December 2011, a requirement (about a month later) to undertake a performance improvement plan (which appears, from Dr Larder’s description of the timing, to refer to the 6 February 2012 meeting, about which Ms Robertson does not make any complaint, but it may be simply to the performance improvement plan process from 19 December 2011) and being accused of incompetence, on 28 March 2012, concerning the Code Blue incident on 18 March.  He also recorded that she referred to bullying generally, to a meeting in August 2012 in which she was told about the first AHPRA complaint, going to Robina and then her dealings with AHPRA.
  8. [385]
    He concluded, relevantly:

I believe that your client presents with a chronic psychiatric condition which resulted from the incidents/bullying at work and the stressors your client experienced as a result of them, which has led her to suffer from a degree of permanent disability.

  1. [386]
    In his second report, Dr Larder recorded that Ms Robertson had told him very briefly about the alleged medication error and that somebody had complained that Ms Robertson did not know how to take a blood pressure, and she had gone into some detail about the infusion pump incident (but again, not the alleged subsequent abuse by Ms Naylor).  She had said she was bullied out of work in 2013, had to do some things for AHPRA and then learned of the second complaint to AHPRA.  As to the second complaint, Ms Robertson told him:

I was off the planet, that was sort of like the end of me, the second lot of complaints, just the lies.  Absolutely distressing …”

  1. [387]
    Dr Larder’s conclusions in his second report were:

I believe that in the context of the life events from 2013, your client presents with a chronic psychiatric condition which resulted initially from the incidents/bullying at work and the stressors your client experienced as a result of them, which has since been perpetuated and maintained by various procedural and bureaucratic processes which has led her to now suffer from a degree of permanent disability.  …  [Her] presentation is consistent with a Major Depressive Disorder, which has been treated and is in partial remission.

  1. [388]
    The note of the conversation on 4 March 2020 records, among other things, Dr Larder’s opinion that Ms Robertson is essentially unemployable and the treatment at work was the trigger for her inability to work now.  He was also asked about the incident on 1 April 2011 when the patient died.  He said that such an incident could have been very stressful for Ms Robertson and caused her to feel isolated and alone.  He said that it was very likely that the early work-related stressor from early April 2011 would have adversely affected Ms Robertson’s ability to discharge her duties and she may not have been aware of that.
  2. [389]
    In summary, the particular matters (that is, apart from general references to bullying at work) that were mentioned by Dr Sadasivan and Dr Larder as having caused Ms Robertson’s depressive disorder were:
  1. (a)
    the patient’s death on 1 April 2011 – Dr Larder in conversation;
  2. (b)
    the infusion pump incident on 11 August 2011 (but not the alleged abuse by Ms Naylor) – Dr Larder’s first and second reports;
  3. (c)
    the medication error accusation on 19 December 2011 – Dr Sadasivan’s first report and Dr Larder’s first and second reports;
  4. (d)
    the process of undertaking a performance improvement plan in December 2011 or February 2012 – Dr Larder’s first and second reports; and
  5. (e)
    the meeting on 28 March 2012 about the Code Blue incident – Dr Larder’s first report.
  1. [390]
    As well, Dr Sadasivan refers to the first AHPRA complaint and requirements and Dr Larder refers to the effect of the second AHPRA complaint.  They appear to be factors that each doctor considered to have exacerbated Ms Robertson’s then pre-existing illness.
  2. [391]
    In their conversations in March 2020, each doctor was asked about, but excluded as a cause of Ms Robertson’s depression, some other matters that had occurred in Ms Robertson’s personal life.
  3. [392]
    I am satisfied, on the basis of each doctor’s evidence, that Ms Robertson’s illness was caused by stressors she experienced in her work at the hospital.  Those stressors arose from the deterioration of her relationships with other nursing staff and the re-education process that she underwent, principally in 2012.  However, I have found that none of the events that the doctors say contributed to her illness constituted bullying.
  4. [393]
    Furthermore, neither doctor was asked whether, if the hospital had taken the particular steps that Ms Robertson alleges it ought to have taken in order not to breach its duty, or if it had not taken the steps that Ms Robertson alleges were in breach of its duty to her, her illness would not have occurred.  In the absence of that evidence, it is not possible to conclude that, if the hospital had taken the steps that Ms Robertson alleges it should have taken, she would not have suffered the illness.
  5. [394]
    In these circumstances, Ms Robertson has not satisfied me that her illness was caused by the hospital’s alleged breaches of its alleged duty, rather than by the stresses she underwent at work that were not themselves breaches of duty.
  6. [395]
    In any event, of the particular incidents mentioned by the doctors as having caused the illness, two (the infusion pump and the February performance improvement plan meeting, or the performance improvement plan process generally) are not subjects of complaint by Ms Robertson and neither they nor the others constituted bullying.  The AHPRA complaints and Ms Robertson’s difficulties in fulfilling AHPRA’s requirements cannot be taken into account as grounds for liability, as a person who, in good faith, makes a referral to AHPRA is protected by statute from any liability.[337]
  7. [396]
    Therefore, Ms Robertson’s illness was not caused by any breach of duty by the defendants.

Damages

  1. [397]
    Notwithstanding my conclusions on liability, it is necessary for me to assess what damages would be payable if Ms Robertson had proved her case.  Unfortunately, many of the amounts claimed by her are disputed by the defendants, so it is necessary to consider each item claimed.

General damages

  1. [398]
    The amount of general damages for pain and suffering must be determined pursuant to ss 306O and 306P of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and ss 129 and 130 and schedules 9 to 11 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld).  That amount is dependent on the extent of permanent impairment that Ms Robertson has suffered as a result of her illness.
  2. [399]
    In his first report, Dr Larder opined that Ms Robertson’s impairment on the scale provided in schedule 11 of the Regulation (PIRS rating) was 11%.  Ms Robertson relies on that opinion to claim general damages of $22,950, on the basis that a PIRS rating of 11% indicates a very severe psychological condition under item 11 of schedule 9, resulting in an appropriate injury scale value (ISV) under schedule 9 of 15%.  On the apparent basis that the injury was sustained on or between 1 July 2012 and 30 June 2013, under table 3 of schedule 12 general damages therefore amount to $22,950.
  3. [400]
    The defendants rely on Dr Larder’s second report, in which he determined a PIRS rating of 5%.  That equates to a moderate mental disorder resulting in an ISV, under item 12 of schedule 9, of 2 to 10.  The defendants submit that an ISV of 4 is appropriate.  On the assumption that the injury was suffered in the year to 30 June 2014, that results in general damages of $5,440, determined under table 4 of schedule 12.
  4. [401]
    Ms Anderson submitted that, notwithstanding Dr Larder’s later assessment, Ms Robertson was not obliged to obtain a second report from him and therefore I can still have regard to his first report in determining the appropriate PIRS rating.  If I am not satisfied that I should adopt that rating, it is open to me to determine a rating between the two assessments.
  5. [402]
    I do not accept Ms Anderson’s submission in this respect.  The most up to date evidence is that Ms Robertson has an illness on which an appropriate PIRS rating is 5%.  The up to date information concerns her position as at the trial.  Ms Robertson’s disorder has now reduced from serious to moderate.  As there is no challenge to Dr Larder’s calculation of that rating, I will adopt that rating.
  6. [403]
    In Dr Sadasivan’s first letter, she stated that Ms Robertson had mild to moderate depression in February 2013.  In her second letter she opined that the illness had developed into a major depressive disorder by, apparently, some time in late 2013.  I consider that the latter date is when the relevant injury was sustained.  Therefore, the appropriate table in schedule 12 is table 4.
  7. [404]
    At a PIRS rating of 5%, Ms Robertson’s illness is toward the lower end of the ISV scale in item 12 of schedule 9.  The lowest value on that scale is 2.  I consider that, in Ms Robertson’s circumstances, the appropriate value on that scale is 5.  Therefore, under schedule 12, table 4, I assess general damages at $6,550.

Special damages

  1. [405]
    In an amended schedule of damages provided by Ms Anderson after the last day of the trial, Ms Robertson claimed special damages for out of pocket expenses of $12,114.10 for medications, doctors’ fees and travelling expenses.  They are supported by the evidence and are not disputed.  In addition, WorkCover paid $10,143.12 for medical expenses, which Ms Robertson will have to refund. 
  2. [406]
    Therefore total special damages are $22,757 (ignoring the cents).
  3. [407]
    The defendants have submitted that I should award interest on Ms Robertson’s out of pocket expenses.  Calculated at 0.34%,[338] over 7 years this amounts to $288.

Past economic loss

  1. [408]
    Ms Robertson was due to return to work at the hospital on 7 January 2013.  She did not, claiming that she was sick.  She obtained a medical certificate on 9 January 2013 stating that she was unable to work.  Ultimately she obtained a workers’ compensation medical certificate stating that she had been unable to work from 8 January 2013.[339]  I shall adopt that as the date she stopped work.
  2. [409]
    Ms Robertson claims past loss of income since about then at the rate of $900 per week.  The defendants submit that her net income in the year to 30 June 2012 was $833.74 per week.
  3. [410]
    The defendants submit that Ms Robertson is only entitled to past loss of income until the date that she was no longer able to practise unless she complied with AHPRA’s requirements, namely 15 May 2013, resulting in a past loss of income for only 17.71 weeks.  I do not accept that submission.  Although, after giving her undertakings to AHPRA, Ms Robertson never fulfilled them and therefore she could not have worked as a nurse unless and until she fulfilled them, Dr Sadasivan’s and Dr Larder’s evidence is that she was not able to fulfil the requirements because of her illness.  If that illness had been caused by the defendants’ breaches of a duty of care owed to her, then her inability to fulfil the requirements would have been caused by that illness and therefore by the breaches.  The two doctors opine that she will never work again in that field (if at all).
  4. [411]
    Therefore, I should calculate Ms Robertson’s past loss of income from 8 January 2013 to the date of this judgment.  As to the weekly rate, it is arguable that, if Ms Robertson had not become depressed, she might have returned to working night shifts, with a consequent increase in her income over that achieved in the 2012 financial year (which was less than in 2011).  Ms Anderson did not say how she came to claim $900 per week, but I assume she took into account that possibility and the possibility of pay increases since then.  However, Ms Robertson was not assessed as having an illness until early 2013 and throughout most of 2012 she was required to work mostly on day shifts.  I consider her 2012 income to be an appropriate starting point, but allowing something for likely increases in pay scales since then. 
  5. [412]
    Based on her 2012 PAYG payment summary, her net income in that financial year was $42,464, equating to $812.15 per week.[340]  Allowing for possible higher earning capacity on night shifts and increases in pay scales, I consider that an appropriate rate is $850 per week.  Over 395 weeks to 3 August 2020, that amounts to $335,750.  Ms Anderson submitted that I should deduct from that sum payments totalling $46,733 that the defendants made to her after workers’ compensation payments ceased in October 2014.  There is no evidence of what period that covered but, based on her earnings of $812.15 per week, that appears to equate to about one year of income.  Deducting that sum results in past loss of income of $289,017. 
  6. [413]
    Ms Robertson received a total of $85,540.63 (gross) from WorkCover, which should be deducted from the damages awarded for past loss of income.[341]
  7. [414]
    Ms Robertson does not claim interest on past lost income, so I will not allow for it.
  8. [415]
    Past loss of superannuation, calculated at 9% of net income lost, is $26,011.

Future loss of earning capacity

  1. [416]
    Ms Robertson claims four years’ loss of earning capacity, apparently on the basis that she would have retired when she turned 70 years old.[342]
  2. [417]
    The defendants submit that she should not be awarded any damages for loss of future earnings due to her not fulfilling AHPRA’s requirements.  I have already found that her lost earning capacity, including her inability to fulfil those requirements, was due to her illness.  Therefore, I reject this submission.  Furthermore, Dr Larder expressed the opinion (which I accept) that she is not fit to work in her position as an EEN nor for the hours of work that she held and performed with the defendants.  As I have said, Dr Sadasivan said that she is not commercially employable.  Therefore, I accept the Ms Robertson is unlikely to be capable of undertaking paid work in the future.
  3. [418]
    The real issue is when Ms Robertson was likely to retire if she had continued to work as an EEN.  Ms Robertson said she enjoyed her job (apart from the issues the subject of this proceeding).  She was asked in her evidence when she planned to retire.  She said she had no particular plan in mind as at 2012.  She might have cut down a day, but she had not contemplated retirement.  She just presumed she would feel how she was in her sixties.[343]  The defendants did not challenge this evidence in cross-examination.
  4. [419]
    There was no other evidence of any other possible illness or reason that might have prevented her working until 70 years of age.  I did not understand her work to involve a great deal of physical difficulty.  Having regard to these matters and her evidence, I will allow the claim on the basis that she would have retired at that age.  I will allow her future loss, but I will allow for contingencies by calculating it at the same weekly rate as her past loss and applying a discount of 10%.
  5. [420]
    Three years and 10 months (say 200 weeks) at $850 per week amounts to $170,000.  The present value of that sum, using the discount rate of 5%,[344] is $154,700.  Discounting by 10% for contingencies results in damages for future loss of $139,230.
  6. [421]
    Ms Robertson claims loss of future superannuation at 9.5%, which the defendants did not dispute and I would allow.  That amount is $13,227.

Future medical expenses

  1. [422]
    Ms Robertson claims a global amount of $5,000 for future medical expenses.  The defendants did not concede any amount on that item.  I understand that she continues to require medication for her depression and she continues to see Dr Sadasivan about once every six weeks.  Having regard to these matters and her past expenses, which appear to be ongoing, the sum claimed seems reasonable and I would allow it.

Total nominal damages

  1. [423]
    Therefore, if I had given judgment for Ms Robertson, I would have awarded the following damages:

(a)

General damages

$6,550.00

(b)

Special damages

$22,757.22

(c)

Interest on special damages

$288.00

(d)

Past economic loss

$289,017.00

(e)

Loss of past superannuation

$26,011.00

(f)

Future economic loss (present value)

$139,230.00

(g)

Future loss of superannuation

$13,227.00

(h)

Future medical expenses

$5,000.00

 

Subtotal

$502,080.22

 

Less WorkCover receipts

$85,540.00

 

Total

$416,540.22

Conclusions

  1. [424]
    I have found that:
  1. (a)
    Ms Robertson was not bullied, badgered or mobbed except, perhaps, having been bullied on two occasions, well separated in time and circumstances;
  2. (b)
    the defendants owed no duty of care to Ms Robertson to protect her from psychiatric injury;
  3. (c)
    even if the defendants did owe Ms Robertson such a duty, they have not breached it;
  4. (d)
    even if the defendants owed and breached such a duty, Ms Robertson has not satisfied her onus of proving that the breach caused her illness.
  1. [425]
    Consequently, Ms Robertson has failed to prove her claim and I shall give judgment for the defendants.

Footnotes

[1]  I take this use of the word “mobbed” to mean that the nurses ganged up on her, in the sense of combining against her.

[2]  T2-28:18-19.

[3]  T2-28:25-40.

[4]  T2-28:44-46.

[5]  Further amended defence, paras 3(c), 5, 6(d) and 6(g) in particular.  Detailed particulars of the concerns as to Ms Robertson’s competence were set out in amended particulars of the defence that were provided separately.

[6]  Extracts from her diary were tendered in evidence, but eventually the entire diaries for 2011 and 2012 were tendered:  exhibits 16 and 17.  The first entry in the 2011 diary is for 1 April 2011.

[7]  That is, she did not have responsibility for any patients, but rather was to observe and be observed as part of a process of ongoing education for her.

[8]  T7-156:32 to T7-157:24;  T7-167:45 to T7-170:28; exhibit 2, tab A.

[9]  “The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and ... to define the issues for decision” - Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279, 286.

[10]  The fact that she had a psychiatric condition was admitted, although the extent of that condition was not (amended statement of claim paragraph 5, further amended defence, paragraph 5), but the hospital did not call any evidence contrary to the plaintiff’s psychiatric evidence as to the extent of her condition, nor did it challenge that evidence.  I consider that evidence later.

[11]  Amended statement of claim, para 3(a).

[12]  T2-33:23;  T2-33:45 to T2-34:7;  T2-34:13-16.  It appears the patient was being monitored from CCU:  T2-35:44.

[13]  T2-35:15-24.

[14]  T2-34:20-25, 44-47.

[15]  T3-78:1-10.  Ms Anderson submitted that she relied on this and other evidence about how Ms Robertson felt about the incidents as being relevant only to quantum.

[16]  Outline of defendants’ submissions, para 21.

[17]  T4-13:28-42.

[18]  T7-123:26-27.

[19]  T2-33:17-21, 23-27.

[20]  Plaintiff’s outline of submissions, paras 39 and 40.  In fact, Ms Robertson suggests it was she who was caring for the patient “directly” before her death.

[21]  Ms Robertson said she had not had that experience before either.

[22]  T7-107:32-44;  T7-122:32.

[23]  A Clinical Treatment Consultant was said to be a person who, on night shift, is effectively in charge of the hospital and responds to critical incidents:  T2-11:1-3;  T2-34:28-29.

[24]  T2-34:36-37.

[25]  T2-35:4-7;  T2-35:36-41.

[26]  Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions), p 2.

[27]  T4-14:9-18.

[28]  T7-108:24-32;  T7-142:37-38.

[29]  Sarah Brunton.  This is, of course, inconsistent with the other evidence that the person being comforted was Ms Codd.

[30]  Outline of defendants’ submissions, para 18.

[31]  Mr Robert McPhee, the hospital’s clinical nurse educator for cardiology at the time, agreed, in his cross-examination, that he would expect comfort to have been offered to everyone present when a patient died on a ward:  T6-138:24-29.

[32]  T3-78:4-5.

[33]  T4-21:26-33.

[34]  A Code Blue is an alarm requiring urgent assistance from anyone available, as a patient is at risk of dying or has died.  It is also referred to as a MET call (MET standing for medical emergency team).

[35]  Plaintiff’s outline of submissions, para 41.

[36]  Amended statement of claim, para 3(c).

[37]  Ms Harvey was then acting as a nurse educator, supervising and assessing Ms Robertson’s performance as an EEN.

[38]  T2-37:11-17, 37-47.

[39]  T2-38:29-32.

[40]  T2-40:13-14.

[41]  T3-79:21-26. 

[42]  Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions) p 3.

[43]  T7-149:27-39;  T7-159:13-20.

[44]  T7-149:34-43.

[45]  Part of exhibit 16.

[46]  Exhibit 2, tab 2A, a note by Ms Fraser dated 5 April 2011 at 8.45am, recording a telephone call from Ms Harvey.  The note also records a number of other concerns about different asserted deficiencies in Ms Robertson’s knowledge of relevant matters.

[47]  Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions) p 3.

[48]  Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions) p 4.

[49]  T7-160:25 to T7-161:33.

[50]  Defendants’ submissions on findings of fact (appendix 1 to outline of defendants’ submissions) p 4.

[51]  Amended statement of claim, para 3(b).

[52]  T2-61:1-26.

[53]  Plaintiff’s outline of submissions, para 45.

[54]  T2-40:16-18, 34-36.

[55]  T3-81:26.  Ms Robertson did not mention this statement when she first gave evidence about this incident, on the previous day, but only when reminded about it.

[56]  T2-40:37-43.

[57]  Exhibit 2, tab 2B;  T2:41:28-38.

[58]  At the time she gave evidence, Ms Fraser had been a nurse for 47 years: T7-133:35.

[59]  T7-135:5-8.

[60]  T2-45:6-7, 41-44.

[61]  T2-43:22-24, 35.

[62]  Ex 2, tab 2A.

[63]  T7-135:28-29.

[64]  T7-137:6-7.  There is no reason to believe that she did not follow that practice on this occasion.

[65]  Exhibit 16.  Although written on the page for 5 April 2011, Ms Robertson has crossed out that date and inserted, “Thursday 7-4-11”.  It is not clear, however, that the note was written contemporaneously and some was written in a different pen, but no point was made of this.  In fact, the note was not originally tendered, but has been tendered only as part of the whole diary. Ms Robertson was not asked about the note.

[66]  T7-136:28-46.

[67]  T3-81:20.

[68]  Amended statement of claim, para 3(f).

[69]  Particulars of paragraph 3 of the statement of claim, at 19/5/2011.

[70]  T2-71:6-8, 23-25.

[71]  T2-71:27-31.

[72]  T2-71:44-45.

[73]  T3-82: 42;  T3-83:14-16. 

[74]  T4-36:17 to T4-37:30.

[75]  T4-37:35-36.

[76]  Exhibit 16, at 19 May 2011.

[77]  Exhibit 21.

[78]  Amended statement of claim, para 3(g).

[79]  Ms Naylor was not then the NUM.

[80]  T2-72:23-29.

[81]  T2-72:33-44;  T2-73:1-2.

[82]  T2-73:7-24.

[83]  T2-76:20-35.

[84]  T2-76:36-39;  T2-77:18-28.

[85]  T6-29:24 to T6-30:4.

[86]  T6-46:23-24;  T6-47:23-25.

[87]  T6-49:28-29.

[88]  T8-37:22-31;  T8-85:14-15;  T8-87:15-20.

[89]  T2-77:36-37;  T2-78:36-38.

[90]  Being Linda Fraser, the NUM at the time:  T2-78:13-16.

[91]  Professor Jed Williams was described by Ms Robertson as the person who ran, or was in charge of, the hospital: T2-78:18-19;  T4-43:40-41.

[92]  T2-77:47 to T2-78:11.

[93]  T4-28:32-35; T6-29:5-17; T6-30:6-26; T6-49:4-5.  At the beginning of her examination in chief, Ms Daly was asked about an event on 4 November 2011 (T6-28:30), but her evidence clearly concerned the event that is alleged to have taken place in August that year.

[94]  T6-48:25-29.

[95]  T8-31:6 to T8-32:19;  in cross-examination, T8-87:25 to T8-88:41.

[96]  T2-78:40.

[97]  T4-42:10-15, 26.

[98]  T4-42:34-42;  T4-43:5-15.

[99]  T4-44:8-12.

[100]  T5-72:45 to T5-73:10.

[101]  Amended statement of claim, para 3(i).

[102]  T2-79:29-43.

[103]  T4-11:20-25;  T7-11:9-10.

[104]  T7-11:42 to T7-12:22.

[105]  T7-16:21 to T7-17:28.

[106]  T7-151:3-30.

[107]  T175:32 to T176:15.

[108]  T176:45 to T177:2.

[109]  Exhibit 16, at 5 November 2011.  Ms Harvey said she did not know the term ITW, but it may mean TWI (a T-wave inversion):  T1-75:21-27.

[110]  Amended statement of claim, para 3(j).

[111]  Exhibit 3, tab 3.

[112]  T2-80:10-13.

[113]  T-80:36-39.  Ms Koch also worked at the hospital as an EEN:  T2-80:41-45.

[114]  T2-89:16 to T2-90:13.

[115]  T2-81:13-26.

[116]  T2-88:21-33.

[117]  T2-81:35;  T2-82:17-24.

[118]  T2-81:37-42;  T2-88:4-7.

[119]  T2-81:26-27;  T2-81:31-33.

[120]  T2-89:10-14.

[121]  T2-84:21-23;  T2-85:7-8.

[122]  T2-91:3-8.

[123]  T2-91:13-15.

[124]  Exhibit 2, tab 2E.

[125]  T2-85:3;  T2-85:26.  It appears Ms Robertson had previously signed a document, while working, in relation to starting rotating shifts (a combination of day and night shifts) and was unhappy about this:  T2-86:3-26.

[126]  T2-95:3-6.

[127]  T3-84:21-37. 

[128]  T3-85:10-19. 

[129]  As she purported to remember the meeting after referring to her note, the note itself was not tendered, although it was marked I for identification.

[130]  T5-91:27-40.

[131]  T6-54:36 to T6-55:30.  He identified exhibit 2, tab 2E as the plan.

[132]  T6-56:46 to T6-57:1.

[133]  T6-62:34.

[134]  T6-85:33.

[135]  T6-79:45 to T6-80:3.

[136]  T6-86:1-9.  His note in the plan that they agreed that she would not dispense medications during the plan period did not record “without supervision”, but he agreed that she was permitted to do so under supervision.

[137]  Exhibit 3, tab 4.

[138]  Exhibit 2, tab 2C.

[139]  Plaintiff’s outline of submissions, para 59.

[140]  Exhibit 2, tab 2D.

[141]  The memorandum was not dated by Mr McPhee, but Ms Naylor said she inserted the date and initialled it, so she would have received it on or about that date:  T8-71:29-36.

[142]  Exhibit 3, tab 5;  T2-94:5-9.

[143]  Exhibit 2, tab 2G.

[144]  Exhibit 2, tab 2G;  Exhibit 4;  T2-99:21-25.

[145]  Exhibit 2, tab 2G.

[146]  T2-101:37-38.

[147]  T2-102:1-3.

[148]  T2-102:37-42.

[149]  T2-103:6-8, 40-41.

[150]  T4-59:34-41.

[151]  T4-61:23 to T4-62:15.  The response is exhibit 7.

[152]  Exhibit 2, tab 2G;  T2-104:1-4.

[153]  T2-104:6-16.

[154]  T6-63 to T6-64

[155]  T8-37:46 to T8-38:11; T8-40:40-41

[156]  Amended statement of claim, para 3(k).

[157]  Particulars of paragraph 3 of the statement of claim, p 4.

[158]  T2-104:31-39. 

[159]  T2-105:16-21.

[160]  T2-105:21-23.

[161]  T2-105:25-27.

[162]  T2-105:28-29. 

[163]  T2-105:36-39.  A guedel is a medical device used to open or maintain an unconscious patient’s airway.

[164]  Ms Robertson’s diary recorded that they were Terri-Ann [Bell] and Di [Taylor].

[165]  T2-105:41-46.

[166]  T2-106:1-2.

[167]  T2-106:4-6.

[168]  T2-106:15-25.

[169]  T2-106:27-30.

[170]  T2-106:41 to T2-107:2;  T2-107:35-40.

[171]  T2-107:4-6.

[172]  T2-107:24-28.

[173]  T2-107:29-32.

[174]  T3-85:43-44. 

[175]  T3-86:18-20. 

[176]  T2-109:37 to T2-110:23.  The note is exhibit 2, tab 2K.

[177]  T7-83:23-24.

[178]  Exhibit 2, tabs 2I and 2J.

[179]  Ms Fox:  T7-25:7-26;  Ms Ashman:  T7-86:37 to T7-87:5.

[180]  That is Di Taylor, an RN from CCU.

[181]  T7-101:36-41;  T7-102:25-27.

[182]  T7-20:26-41.

[183]  T7-44:35 to T7-46:4.

[184]  T7-43:7-23.

[185]  Amended statement of claim, para 3(l).

[186]  The particulars of paragraph 3 of the Statement of Claim, at pp 4-5, say 29 March, apparently based on a note by Ms Koch that records it as occurring on 29 March (exhibit 18).  A note by Ms Naylor records it as 28 March (exhibit 2, tab 2L).  The difference is immaterial.  I will adopt Ms Naylor’s date because that is the date stated in her note, which forms part of the hospital’s records.

[187]  T2-109:12-14.

[188]  T3-13:22-45.

[189]  T3-18:5-35;  T3-19:20-25.

[190]  T3-20:3-6.

[191]  T3-87:4-9. 

[192]  Exhibit 18.

[193]  T5-109 to T5-110.

[194]  T6-65:15-35.

[195]  Exhibit 2, tab 2L.

[196]  T6-128:31-32.

[197]  Exhibit 2, tab 2L.

[198]  T8-43:14-36.

[199]  T3-23:4-10;  T3-24:8-14, 30-40.

[200]  T3-24:27-46.

[201]  Amended statement of claim, para 3(m);  particulars of paragraph 3 of the statement of claim, p 5.

[202]  T3-25:24-35.

[203]  T3-29:8-19.

[204]  T6-15:3-16.

[205]  T6-17:1-11.

[206]  T6-17:29-33.

[207]  T6-23:18-31.

[208]  Exhibit 2, tab 2M.

[209]  T6-23:45 to T6-24:22-39.

[210]  Amended statement of claim, para 3(n).  Ms Robertson said she did not know Rachel’s surname:  T3-29:28.   However, in her diary entry for this day (recorded by her on 31 May but starting “not sure of date”), she records that it was Rachel McInery.  No witness mentioned that person.

[211]  T3-29 to T3-34.

[212]  T8-25:9-15.

[213]  T8-25 to T8-28.

[214]  Amended statement of claim, para 3(o).

[215]  T3-34 to T3-37.

[216]  T3-37 to T3-38.

[217]  T7-5 to T7-6 (examination in chief).

[218]  T7-6 to T7-8.

[219]  I assume that Ms Mann and Ms Brumby are the same person.

[220]  T3-39:3-4;  exhibit 2, tab 2N.

[221]  Mr McPhee: T6-105:15-21.  The feedback, together with additional later feedback, was later summarised in a document prepared by Ms Hill that forms the appendix to exhibit 2, tab 2M.

[222]  Exhibit 2, tab 2N.

[223]  T3-42:23-40.  It was not entirely clear from Ms Robertson’s evidence what “more” was wanted, but it appears that perhaps Ms Seehusen wanted to see a broader range of Ms Robertson’s capabilities than Ms Robertson was actually required to perform on the day due to patient demands:  T3-42:38-40.

[224]  T3-43:33-36.

[225]  T3-44:1-7.

[226]  T3-44:11-23.

[227]  T3-44:23-46.

[228]  T3-45:7-18.

[229]  T3-49:14-30.

[230]  T6-68:3-6.

[231]  Exhibit 2, tab 2E.

[232]  T3-45:14 to T3-47:46.

[233]  T2-86:46-47.

[234]  T2-90:45-46.

[235]  T2-87:1-3;  T3-46:37-44.

[236]  T3-47:1-2.

[237]  Amended statement of claim, para 3(p).

[238]  T3-63 to T3-65.

[239]  Exhibit 13, also part of exhibit 17.

[240]  T8-117:1-6.

[241]  T8-152:21-34.

[242]  T6-55:3-5.

[243]  T6-56:40 to T6-57:1.

[244]  T6-61:28-33.

[245]  T6-61:42-44.

[246]  T6-62:1-4.

[247]  Exhibit 2, tab 2O.  He apparently wrote it in late July 2012: T6-73:17-19.  It is referred to in the chronology in exhibit 2 as 27 July 2012.

[248]  Amended statement of claim, para 3(q).

[249]  T3-49 to T-52.

[250]  T3-50:29-32.

[251]  T3-50:32-33.

[252]  T3-54:7-17.

[253]  T7-56 to T7-57.

[254]  T7-70 to T7-72.

[255]  T7-71:9-13.

[256]  T7-71:37-39.

[257]  Amended statement of claim, para 3(r).

[258]  T3-55 to T3-56.

[259]  T5-29:11-30.

[260]  T5-30:25-29, 40;  T5-31:9-10.

[261]  Exhibit 17, at 27 July 2012.

[262]  T8-46:24-31;  exhibit 2 tab 2M (last page).

[263]  Exhibit 2, tab 2O.

[264]  T6-61:42-44;  T6-62:1-3.

[265]  Amended statement of claim, para 3(s).

[266]  T3-56:40-45.

[267]  T3-57 to T3-58.

[268]  T7-114 to T7-115.

[269]  T7-128 to T7-129.

[270]  T7-12 to T7-14.

[271]  T7-12:30.

[272]  Ms Robertson was not cross-examined about the differences, so I must treat them with some care.

[273]  T5-52:18-20.

[274]  T5-53:18-21, 35-43.

[275]  T5-53 to T5-61.

[276]  Exhibit 2, tab 2Q.

[277]  T5-61:45 to T5-62:4.

[278]  T3-71:21-24.

[279]  T3-74:38 to T3-75:5.

[280] T8-52:16-19.

[281]T8-52:21-27.

[282]T8-52:29-32.

[283]T6-74:24-43.

[284] T8-3 to T8-8 in chief;  thereafter in cross-examination.

[285]T8-13:34-40;  T8-15:13-31.

[286]T5-67:1-16.

[287]T5-65 to T5-66.

[288] Calogeropoulos v Vergottis [1968] 2 Ll Rep 403, 431; cited more recently in Withyman v New South Wales [2013] NSWCA 10, [65].

[289]Exhibit 2, tab 2R.

[290] T 8-52:11-19.

[291] T 3-75:15-16.

[292] Exhibit 2, tab 2D.

[293]Exhibit 2, tab 2M, pp 1-5.

[294] T 6-66:6 to T6-67:8.

[295] The referral and its accompanying documents comprise exhibit 2, tab 2 and the accompanying documents.

[296] T 3-92:11-16.

[297] T 3-92.

[298] T 3-60:1-41.

[299] Exhibit 2, tab 4U.

[300]Exhibit 2, tab 4V; exhibit 3, tab 2, pp 8-15.

[301] T3-87 to T3-88.

[302] Exhibit 2, tab 4, sub-tab 9.

[303] Exhibit 2, tab 3 and the documents behind tab 4 at tabs A to Z and 1 to 10c.

[304] Exhibit 2, tab 4, sub-tab 10a.

[305]T3-92 to T3-93; exhibit 3, tab 8.

[306]Exhibit 5.

[307] Macquarie Dictionary Online, “bully.”

[308] Czatyrko v Edith Cowan University (2005) 79 ALJR 839, [12].

[309] State of New South Wales v Lepore (2003) 212 CLR 511.

[310] Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, [21].

[311]Koehler, [33], [35].

[312]Hayes v State of Queensland [2016] QCA 191, [131] citing Barber v Somerset County Council [2004] 1 WLR 1089, 1092.

[313]Hayes, [131].

[314][2016] QCA 139, [60].

[315]Koehler, [55].

[316] Koehler, [35].

[317] (2007) 71 NSWLR 471, 478 [23]-[26].

[318] Hayes, [130] (Dalton J).

[319] Tame v New South Wales (2002) 211 CLR 317, [7]; Koehler, [36].

[320]Robinson v State of Queensland [2017] QSC 165, [18]-[19].

[321] (2002) 60 NSWLR 371.

[322] [2017] QCA 12. Special leave to appeal to the High Court was granted ([2017] HCATrans 183), but that appeal appears not to have proceeded to a hearing.

[323] Govier, [75]. Gotterson JA and North J agreed with Fraser JA.

[324]Particulars of the statement of claim, para 2(e)(na).

[325]Particulars of the statement of claim, para 2(e)(dda).

[326] Particulars of the statement of claim, para 2(e)(ff).

[327] Together these documents formed exhibit 19.

[328] Relying on Lusk v Sapwell [2011] QCA 59, [76].

[329] Queensland Corrective Services Commission v Gallagher [1998] QCA 426, [26] – [27]; Woolworths Ltd v Perrins [2015] QCA 207, [173].

[330] Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2016] QCA 247, [57].

[331] Lusk (above); Findlay v Victoria [2009] VSCA 294, [2]-[3]; James v State of Queensland [2015] QSC 65, [43]; Berry v CCL Secure Pty Ltd [2020] HCA 27, [72].

[332] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 75, [64]; Hayes v State of Queensland [2016] QCA 191, [184]; Midwest Radio Pty Ltd v Arnold [1999] QCA 20.

[333][2015] QDC 173, [167].

[334] [2015] QDC 173, [169]-[170], [185]-[186].

[335] Eaton v TriCare (Country) Pty Ltd [2016] QCA 139, [65], [66], [68]. Fraser JA and Boddice J agreed with McMurdo JA.

[336]Of course, that incident itself is not a subject of complaint, which is about the subsequent argument with MsNaylor about patient observations.

[337] Health Practitioner Regulation National Law (Queensland), s 237. MsRobertson does not allege that either referral to AHPRA was made other than in good faith.

[338] Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305N: one half of the 10 year bond rate at the end of the last quarter, which was 0.68%.

[339] Exhibit 2, tab 4, sub-tab 4a. The defendants submitted that the appropriate date was 9 January, based on the first medical certificate.

[340] Exhibit 3, tab 14, p 44. My calculation of the weekly income allows for the leap year.

[341] Exhibit 3, tab 13. That sum includes tax, which would otherwise be added in accordance with Fox v Wood (1981) 148 CLR 438.

[342] She was born on 8 June 1954.

[343] T 4-4 to T 4-5.

[344] Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 306L.

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Editorial Notes

  • Published Case Name:

    Maureen Joy Robertson v State of Queensland

  • Shortened Case Name:

    Robertson v State of Queensland

  • MNC:

    [2020] QDC 185

  • Court:

    QDC

  • Judge(s):

    Barlow QC DCJ

  • Date:

    06 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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